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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Clark v The Chief Constable of Essex Police [2006] EWHC 2290 (QB) (18 September 2006) URL: https://www.bailii.org/ew/cases/EWHC/QB/2006/2290.html Cite as: [2006] EWHC 2290 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Clark |
Claimant |
|
- and - |
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The Chief Constable of Essex Police |
Defendant |
____________________
Mr John Norman (instructed by Barlow, Lyde & Gilbert) for the
Hearing dates: 5th to 11th July 2006
____________________
Crown Copyright ©
Mr Justice Tugendhat :
DISCLOSURE AND OTHER DUTIES IN 1998-1999
"One of the most important of the duties of the prosecution relates to the disclosure of matters in their possession to the defence. This is an area of law which has developed rapidly in recent years. It is also notoriously difficult. …"
"(1)The prosecutor must-
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused, or
(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a)…"
"An investigator is any police officer involved in the conduct of a criminal investigation. All investigators have a responsibility for carrying out the duties imposed on them under this code, including in particular recording information, and retaining records of information and other material;
The officer in charge of an investigation is the police officer responsible for directing a criminal investigation. He is also responsible for ensuring proper procedures are in place for recording information, and retaining records of information and other material in the investigation;
The disclosure officer is the person responsible for examining material obtained by the police during the investigation, revealing material to the prosecutor during the investigation and any criminal proceedings resulting from it and certifying he has done this; and disclosing material to the accused at the request of the prosecutor;"
"3.1 The functions of the investigator, the officer in charge of an investigation and the disclosure officer are separate. Whether they are undertaken by one, two or more persons will depend on the complexity of the case and the administrative arrangements within each police force. Where they are undertaken by more than one person, close consultation between them is essential to the effective performance to the duties imposed by this code."
THE LEGAL BASIS OF THE CLAIM
"The principle claim raised in the action is one of negligence-the "employer" failed to exercise due care to look after his "employee." Generically many of the acts alleged can be seen as a form of bullying-the "employer" or those to whom he delegated the responsibilities for running his organisation should have taken steps to stop it, to protect the "employee" from it. They failed to do so. They made unfair reports and they tried to force her to leave the police. Of course, the police constable does not have an ordinary contract of employment with the commissioner or with anyone else: he maintains his traditional status as a constable. Yet it is clear, or at the least arguable, that duties analogous to those owed to an employee are owed to officers in the police service: see Frost v. Chief Constable of South Yorkshire Police [1999] 2 AC 455; Knightley v. Johns [1982] 1 WLR 349 and Costello v. Chief Constable of Northumbria [1999] ICR 752. Moreover it is also to be borne in mind that by section 88(1) of the Police Act 1996:
"The chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."… (p1610C-F)
If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and, if they do, that physical or mental harm may be caused to an individual. I would accept (Evans L.J. was prepared to assume without deciding) that, if this sort of sexual assault is alleged (whether it happened or not) and the officer persists in making complaints about it, it is arguable that it can be foreseen that some retaliatory steps may be taken against the woman and that she may suffer harm as a result. Even if this is not necessarily foreseeable at the beginning it may become foreseeable or indeed obvious to those in charge at various levels who are carrying out the commissioner's responsibilities that there is a risk of harm and that some protective steps should be taken….
The courts have recognised the need for an employer to take care of his employees quite apart from statutory requirements: Spring v. Guardian Assurance Plc. [1995] 2 AC 296, 335A-B. As to ill-treatment or bullying see Wigan Borough Council v. Davies [1979] I.C.R. 411, 419 (a claim in contract); Wetherall (Bond St. W1) Ltd. v. Lynn [1978] 1 W.L.R. 200 (a constructive dismissal case); Veness v. Dyson, Bell & Co., The Times, 25 May 1965 where Widgery J. refused to strike out a claim that "[the plaintiff] was so bullied and belittled by her colleagues that she came to the verge of a nervous breakdown and had to resign" and Petch v. Customs and Excise Commissioners [1993] I.C.R. 789, 795. This can be the position whether the foreseeable harm is caused to the mind or to the body of the employee: Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, 404 (Windeyer J.).
On the basis of these cases, subject to consideration of one overriding point, I do not find it possible to say (any more than Evans L.J. was prepared to say) that this is a plain and obvious case that (a) no duty analogous to an employer's duty can exist; (b) that the injury to the plaintiff was not foreseeable in the circumstances alleged and (c) that the acts alleged could not be the cause of the damage. As to the last of these, whilst I accept that many of the individual items taken in isolation are at the least very unlikely to have caused the illness alleged, the plaintiff's case puts much emphasis on the cumulative effect of what happened under the system as it existed….(p1611A-G)
"An important part of the plaintiff's claim for negligence is that she was subjected to protracted harassment and victimisation by other officers because she had broken a workplace taboo in making a complaint against a male colleague, and that the defendant was in breach of his duty because he failed to protect her against such treatment…(p1615D)
I consider that a person employed under an ordinary contract of employment can have a valid cause of action in negligence against her employer if the employer fails to protect her against victimisation and harassment which causes physical or psychiatric injury. This duty arises both under the contract of employment and under the common law principles of negligence. (p1615G
It is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it. (p161E-F)"
"As a consequence of the displeasure various officers, namely DS Kreyling, CI King and DCI Bird, subjected the Claimant to bullying, harassment, humiliation, intimidation, oppression and victimisation at work. It is the Claimant's case that they deliberately acted in the course of their employment so as to punish/take revenge on the Claimant for his role in the investigation and complaints and to deter and/or discourage and/or pressurise him from taking further steps in the complaints and from pursuing what the Claimant perceived to be the appropriate course in the steps in the investigation. The officers treated the Claimant in a way, which they would not have done had the Claimant not inadvertently incited their displeasure. The Claimant will ask the court to construe the facts and matters set out below as part of a course or courses of conduct towards him, as well as individually."
i) The first head, which starts in early 1999, consists of occasions which are said to be too numerous to particularise in which Mr Kreyling oppressed, humiliated and harassed the Claimant by shouting at him demanding unnecessary reports, refusing bona fide subsistence claims and questioning the Claimants conduct unreasonably. Some examples of this are recorded in the Claimants notebook and other contemporaneous documents.
ii) The second head relates to events between about 5th May 1999 and 11th May 1999. It was at this time that the Claimant was transferred from his position at Rayleigh to a uniformed position at Hadleigh in circumstances where the Claimant was made to understand that he was being punished on the basis of what he says is a false report by Mr Kreyling relating to his, the Claimant's, claims for certain expenses. Closely related to this is a report written by the Claimant, dated 5th May, addressed to CI Bottrill, (he is now Superintendent) and prepared at the request of the Crown Prosecution Service ("CPS"), and in particular Mr MacInnes.
iii) The third heading relates to events in early October 1999 at the start of the trial of a number of defendants at Basildon Crown Court, when he was dismissed as Officer in Charge and Disclosure Officer in the case and threatened with defamation proceedings by another officer.
"(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (para 22). The ordinary principles of employer's liability apply (para 20).
(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) (para 25).
(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (para 23). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (para 29).
(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health (para 24).
(5) Factors likely to be relevant in answering the threshold question include:
(a) The nature and extent of the work done by the employee (para 26). Is the workload much more than is normal for the particular job? … Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? …
(b) Signs from the employee of impending harm to health (paras 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? …
(6) …
(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (para 31).
(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (para 32).
(9) The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties (para 33).
(10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (para 34).
(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty (paras 17 and 33).
(12) …
(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care (para 33).
(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm (para 35).
(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras 36 and 39).
(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event (para 42). "
THE EVENTS OF 20 NOVEMBER 1997
"1130a CID Officers Rochford, note made re visit to [M's shop] at 11am today
1105 Saw [M] in shop [in company of] DC Binks. I told him that as a result of enquiries made of the man [M] alleged was bringing in jewellery (A Stone) he had been identified and stated in interview that M had sold him a [illegible] and told him at the same time it was stolen. [M] said No, he was arrested by DS Kreyling on suspicion of Handling Stolen Goods, cautioned 'No, no, no way, as I said he used to bring it in here and use to make him jewellery of his own design' Told going to Rayleigh, he stated customers from Cambridge in back of shop, discussion with DC Binks, de-arrested arrangements made for [M] to be spoken to later that day."
MARCH-APRIL 1998
"I consider DS Kreyling is making unrealistic complaints, he is oppressive in his conduct and I wish to make a grievance of his oppressive conduct and neglect of duty".
"At the present time I am very worried of any decision that DS Kreyling makes, as I feel that he is a risk to my operation and this is upheld in the way he deals with his colleagues and prisoners.
Recently he was asked to arrest a primary offender in an offence of conspiracy to handle stolen property and jewellery. He called the target's address, arrests him, tells him why he is there, and then de-arrested the suspect as he stated he had appointments during the morning telling him to be ready at 6pm that evening. The defendant had every opportunity to destroy evidence and to make up an account of his actions.
We all had to wait until 6pm, his staff and myself ended up working half way through the night and the defendant did not admit his part and there was no evidence available gained from the search.
I was later informed that DS Kreyling had a personal contact with the suspect outside the Police Force, so to that effect, I am very concerned with the decision he comes to."
THE ESSEX POLICE GRIEVANCE PROCEDURE
"1.1 The main purpose of the grievance procedure is to ensure that individual members of staff… who feel aggrieved about the way they have been treated, either by management or by their colleagues, are given every opportunity to have their grievances resolved in a fair and just manner. Grievances should normally be discussed first with a local line manager in an effort to find a resolution. It is only after these discussions have failed to resolve the issue that the grievance procedure should be invoked. The grievance procedure is intended to resolve issues as quickly as possible and not to establish guilt or provide punishment. It is an informal and flexible means of resolving problems. (The last two sentences are printed in bold in the original). The procedure is intended to deal with all types of grievance (except issues relating to civilian gradings) including claims of unfair interpretation or implementation of personnel policies and conditions of service… the grievance procedure is not a method for making an allegation under the police discipline code…
1.2 The grievance procedure may also be invoked in cases of harassment…
5.1 Those responsible for dealing with grievances should bear in mind that the procedure is aimed at achieving a resolution rather than establishing innocence or guilt. It is not necessary for an aggrieved person to prove his or her case beyond all reasonable doubt. …
6. Victimisation
6.1 Victimisation of a person who has invoked, or intends to invoke, the grievance procedure… will amount to a breach of discipline…
6.2 The unjustified transferring of an agreed member of staff could be regarded as an act of victimisation. This course of action should never be used simply to resolve a grievance. There may be operational reasons which justify a move, or a move may be requested. In these instances, the reasons must be fully recorded. The Equal Opportunities Advisor and Complaints and Discipline should be consulted before the transfer of anyone involved in a grievance. Once a decision is made to transfer that person the reasons for that decision must be fully explained to them.
6.3 If a person feels that they or anyone else is being victimised, they should contact, without delay, their management or their Equal Opportunities Advisor, or Complaints and Discipline, or a staff representative or a Confidential Councillor for advice.
7.1 Grievances should be investigated as promptly as possible. …"
APRIL 1998-JANUARY 1999
JANUARY-APRIL 1999
"David, another excellent years work with all your identified objectives being achieved in one case, [that being the case involving M]. You have had an extended period of time acting in my absence and although some people have criticised your methods, you have stuck to your guns, and the results that you have achieved speak for themselves. You continue to work with the high motivation of an officer who enjoys wholeheartedly every aspect of his job, and I thank you for your support".
"My achievements are only a reflection of the hard work carried out by the officers on the DST. I take the role of Acting seriously and will not be bullied into making decisions which would jeopardise the safety of the persons I am supervising. I am very pleased that our achievements are acknowledged…"
MEETING THE CPS
DISPUTED EXPENSES CLAIMS
"[14th April] Travelling to Norwich County Court away from place of duty overnight accommodation at Beccles Road Norfolk £12.00
[15th April] From 0900 to 1300 … Travelling from Norwich".
"Engaged away from place of duty Case Conference at CPS Chelmsford ref Morris unable to take ref[reshment]s in usual way £5.34".
"… I did not get a receipt for the accommodation as it was with a relative but I gave them flowers which cost £12. They had agreed to house me for the period of the trial 3 weeks".
"… To date the officer has not re submitted the form GC 70 and required report to me Will you please instruct PC Clark to submit the papers before he retires from duty on 30 April 1999".
"Attached GC70. The Norfolk report has already been submitted as you were sick it went through CI King 22.4.99 and a copy is with the division".
MR KREYLING'S REPORT OF 5TH MAY.
"I report relative to the above [Clark form GC70]. On 21 April PC Clark handed me form GC70 in respect of expenses incurred during the month of March 1999. I briefly perused the form and a short time later spoke to PC Clark in my office, in particular in relation to the following:
1 An entry for 8 March 1999 in respect of a claim for £5.34. I intimated to the officer that as he stated he was only at Chelmsford for approximately three quarters of an hour and returned to Rayleigh at about 7pm the same day that he could have taken refreshments as normal, whereupon he was taking his meal in the normal way and therefore no additional expenditure would be incurred.
I then produced the 'DST' Duty Roster which covered the dates, 14 and 15 April 1999. I showed both entries to PC Clark and queried the following matters with him:
2 The officer told me that he travelled to Norfolk to attend court on Wednesday 14 April 1999 in respect of a wildlife investigation, having attended court, proceedings were stopped during the afternoon, the prosecution was therefore concluded with a negative result.
3 I enquired of the officer why he stayed in Norfolk during the Wednesday evening when court had finished during the afternoon. PC Clark told me that having arrived in Norfolk during the Wednesday morning, he immediately went to a hotel and booked accommodation which he then told me he could not cancel, as court had finished earlier than expected, but, as PC Clark advised me, "the Zurich Insurance Company were paying the costs anyway". I explained to the officer it was irrelevant that an Insurance Company were paying for all of his incurred expenses other than Essex or Norfolk police.
4. I then showed PC Clark the Duty Roster for 15 April 1999. I enquired of the officer why he had signed on for duty at 09.00 hrs and then incurred four hours overtime having signed off at 22.00 hrs the same day. He told me he was rostered for a late turn duty on 15 April so by leaving Norfolk by 09.00 hrs he had incurred overtime. I then pointed out to the officer that he should have worked a 09.00 to 17.00 duty on that day, which would have prevented him incurring four hours overtime. PC Clark again intimated to me that it did not really matter because, again, the Zurich Insurance Company were paying all expenses and he PC Clark was just about to conclude a full report of his actions and all expenses incurred during the Wildlife Investigation on behalf of Norfolk Police.
At this point in time, I told PC Clark that I was not happy with the papers placed before me and that I wanted them resubmitted accompanied by the report he was compiling on behalf of Norfolk Police.
There is no doubt at this point, PC Clark was under the impression that there was the possibility that I would not approve of one or more claims on his form GC 70.
By 29 April PC Clark's form GC70 had not been re-submitted to me so I forwarded a report to PS Harvey requesting submission of same.
I eventually received form GC 70 from PC Clark upon which he made a note stating that as I was sick on 28 April, he had submitted all forms relating to the Norfolk enquiry through Chief Inspector King which included his full accounts records.
Upon learning of this fact I was of the opinion that the officer had submitted the papers through another officer to prevent me from refusing the claim in respect of the Norfolk enquiry and the officers conference with CPS at Chelmsford.
On 4 May I contacted Finance Department at Headquarters to find that PC Clark's form GC70 in respect of the Norfolk enquiry along with the accounts record had been signed by both Superintendent Stanley and Chief Inspector King.
Copies of the same were faxed to me and are enclosed with others for your information. PC Clark, in my opinion throughout this matter has been deceitful and apart from disobeying an order to return papers to me, I would contemplate the officer having committed a criminal offence (s).
I established on 4 May that PC Clark did not stay at a hotel during the evening of 14 April but, as he wrote upon an Essex Police compliment slip, he stayed at a relatives house and was therefore submitting a claim for flowers even though he did not have a receipt. This report and papers are forwarded for your information and action as felt necessary in this matter.
I have not spoken to the officer about the overtime for 15 April that he "booked even though he watched the Croker Cup football final at headquarters during the evening".
MANAGEMENT TEAM MEETING ON Monday 10 MAY 1999
"Discipline Matter – PC 1588 Clark
Superintendent Stanley referred to a report submitted by acting Detective Inspector Kreyling dated 05.05.99 in respect of a subsistence claim submitted by PC Clark relating to overnight accommodation during the Norfolk enquiry and an inappropriate claim for overtime. The group agreed that PC Clark had made inappropriate claims on his gold form. Having been challenged initially by Detective Inspector Kreyling and DCI Bird it would appear that the subsistence form had subsequently been submitted through the Command Team for authorisation which led to an enquiry being carried out by Acting Detective Inspector Kreyling.
It was agreed:
PC Clark should be informed of the Command Team's decision to post him to a pro-active team, either at Canvey or at Hadleigh.
Should PC Clark decide not to work as part of the team, then he will be posted to shift within this division.
The Officer needs to be aware that the Command Team are conscious of the good work carried out by PC Clark, however, the claims were inappropriate given that he also had responsibility as Acting Sergeant during the period of the Norfolk enquiry.
PC Clark should be advised of the Command Team's decision by Chief Inspector King at the earliest opportunity.
DCI Bird stated that he will be travelling with PC Clark to see counsel in respect of a current enquiry and that should the matter be raised by PC Clark he will be advised by DCI Bird of the outcome of this meeting".
"I informed PC Clark that the purpose of the meeting was to explain to him the decision made by the Command Team on 10.05.99 that he would be transferred from the Divisional Support Team to another position within the division… I informed PC Clark of the spurious claims that he had made in April 1999 on his G70 gold form, I then referred to the March 1999 subsistence claim form and I informed him that it is my belief that the claims for 04.03.99 are unjustified as were the 05.03.99,… I then referred to a claim dated 26.03.99 and informed him that the claim was unjustified…"
"PC Clark asked me what assurance I could give him that he will be "protected" I asked him what he meant by being protected. He replied "from John Kreyling" I informed PC Clark that he needed to be aware and realise that if he had done anything wrong, then it was only appropriate that he should accept any discipline handed out to him, however, if any fellow officer of supervisory rank was acting improperly, that would be dealt with by myself or other members of the Command Team or myself.
PC Clark then made reference to the effect that he had completed a whole pocket book in relation to conversations he had had with A/DI Kreyling. I asked him for what purpose a record was kept. He informed me that A/DI was carrying out a check on the Divisional Support Team and that both himself and John Kreyling had become involved in a number of confrontational situations which had been reported to DI Bird. On one occasion a confrontation resulted in PC Clark considering a submission of a grievance against A/D Kreyling. I informed PC Clark that I had studied the last four appraisals and noted that he had come into conflict with a number of officers. PC Clark then related to the incidents which occurred at Southend involving Detective Inspector Frampton and Chief Inspector Down…."
"PC Clark then referred to a report that he submitted and which was received by Chief Inspector Botrill on the afternoon of 10.05.99 in respect of an incident in November 1997 involving DS Kreyling. PC Clark asked what was going to happen in respect of the report. I informed PC Clark that DCI Bird was obtaining a duty report from DS Kreyling, once that report had been received both this report and the report from DS Kreyling will be sent to Complaints and Discipline Department.
I asked PC Clark why did he submit the report. He stated that it was his responsibility as Disclosure Officer in respect of the Burton/Read case. PC Clark then asked the question "what do I do now in respect of this particular case. I take it that I have now finished with it and won't have anything to do with it". I informed PC Clark that he had a professional responsibility to ensure that he provides support to members of the Divisional Support Team and should anything be asked of him in respect of that particular case, then he should still undertake to carry that out".
THE REPORT OF 5TH MAY BY THE CLAIMANT.
"1.] Since November 1997 I have been the Officer in Charge of a serious burglary investigation involving several burglars and handlers of stolen property
2.] One of these defendants is a man called M.
3.] Case papers have been submitted and we are awaiting pleas and directions.
4.] It has been brought to my attention that M intends to use as his defence the fact that he knew several police officers and had given information in the past and had he known the vast amount of property he had taken had been stolen he would have notified the officers he knew.
5.] Questions could be asked regarding the way M was originally arrested by DS Kreyling. Firstly DST Officers had intended to carry out the arrest and search of M's property, but at the request of DS Kreyling he was given the task of arresting M as it was stated that the defendant lived and worked in his area and he might be able to obtain intelligence. Intelligence was such that it was believed that M had been handling stolen property over a protracted period from burglars from the Rayleigh Southend and outside Force areas.
6.] On Thursday 20 November 1997 DS Kreyling and DC Binks attended M's shop in … and DS Kreyling arrested M for suspicion of handling stolen property, after telling him the reason for his arrest.
7.] After a while, DS Kreyling had a conversation with M as a result of which he de-arrested him and left the premises.
8.] I am informed that M had stated that he had appointments and it was inconvenient. An appointment was made for him to be arrested by other officers later that day. At 5.40 pm the same day DC Binks arrested M and seized papers and receipt books. M was interviewed by DC Binks and myself and had to be re-interviewed at a later date.
Page 2 para 1] During this time M brought to the police station two items which he stated he had received from either Martin Reed or Robbie Burton.
Page 2 para 2] As I felt there was futher evidence to obtain I had search warrants executed at both his business and home address is on 26.02.98 and further receipt books were seized.
Page 2 para 3] Throughout the investigation M has not cooperated with interviewing officers.
Page 2 para 4] on Monday 10.05.99 I am to attend a case conference relating to all the defendants in Chambers in London.
Page 2 para 5] I am very concerned that what is going to be alleged by Counsel and I feel the actions of DS Kreyling could undermine the case for he prosecution and should be brought to the attention of our Counsel.
Page 2 para 6] During the investigation I discovered DS Kreyling had been using M as their jeweller. I am surprised this was not disclosed at the time of M's arrest and he disclosed it during the interview to the arresting officers.
Page 2 para 7] The points I wish to be covered are:
Page 2 para 8] 1. Why did DS Kreyling not disclose his involvement with M?
Page 2 para 9] 2. Why was he de-arrested at about 9am and then re-arrested at 17.00 about eight hours later after knowing why he was under arrest. He would probably have destroyed any evidence which had been in his shop or home address?
Page 2 para 10] 3. Seeing as the intelligence which was available and DS Kreyling's knowledge that Martyn Reed had stated he had been taking most of his stolen property to M and, in turn, M had supplied Reed with stolen property from an armed robbery and a full search should have been carried out at the time of his arrest.
Page 2 para 11] 4. As Disclosure Officer DS Kreyling has never informed me of the earlier arrest and I should have been in the position to enter it on the MG 6E4PS because it must undermine the case of the prosecution.
Page 2 para 12] 5. Why was M allowed to carry on his work in the normal way and causing him no loss in earnings when Police officers were held on duty incurring overtime and extra costs?
Page 3] I consider DS Kreyling's actions to be negligent and a misused loyalty to the jeweller may be the reason.
I have spoken to complaints and discipline at Headquarters and have been advised to put this report to my line supervisor.
I submit this report for your consideration."
THE TRANSFER TO HADLEIGH
Mr KREYLING'S RESPONSE TO THE CLAIMANT'S REPORT
"My report in answer to the content of PC Clark's is as follows;
Page 1.
1. Para 4 Prior to my visit to M's shop on 20th November 1997, I had not previously met him.
2. Para 4 Prior to my visit to M's shop on 20 November 1997 and since that date I have never received or requested from M any information".
3. Para 4 Prior to November 20 1997, I had no knowledge to the effect that M had acquired a vast amount of property which had been stolen.
4. Para 5 To the best of my recollection, officers from the DST had not intended to arrest M on 20 November 1997 as they were already dealing with prisoners from this particular operation.
5. Para 5 "Intelligence was such that it was believed that M had been handling stolen property over a protracted period from burglars from the Rayleigh, Southend and outside Force areas" means , " It was suspected that M had handled stolen goods."
6. I arrested M on suspicion of handling stolen goods and de-arrested him, as I recall, because he had important customers at his shop premise, who always attended on a particular Thursday when business amounting to a lot of money took place. As I recall, I de-arrested due to an explanation he gave me and if I had not done so, could have opened Essex Police to civil litigation and a requirement to pay a large amount of monies to M.
7. Para 8 Where did PC Clark obtain this information?
8. Para 8 Arrangements were made for M to be arrested later that same day by DC Binks.
Page 2
9. Para 5 Please have PC Clark evidence his concerns in respect of allegations by M's counsel.
10. Para 6 Please have PC Clark evidence this slanderous remark.
11. Para 8 Please have PC Clark evidence this slanderous remark relating to "my involvement with M".
12. Para 9 Please have PC Clark evidence this remark.
13. Para 10 Please have PC Clark evidence this remark.
14. Para 11 PC Clark was aware of M's earlier arrest.
15. Para 12 Officers were not held on duty incurring extra costs, they were dealing with other matters connected with the operation.
Page 3
16. Para 1 PC Clark should evidence this statement.
This report is submitted for your information as felt necessary in this matter".
"Forwarded herewith are copies of the report from PC 1588 Clark and Acting Detective Inspector 274 Kreyling of which you have knowledge for onward transmission to Complaints and Discipline. [These are the reports of 5th and 11th May].
The original report has been forwarded to the Crown Prosecution Service for their information and attention. The Crown Court Trial for M and a number of other defendants is due to commence on 04.10.99.
PC Clark raises issues in his report that bring into question the integrity of ADI Kreyling and therefore the investigation as a whole. ADI Kreyling addresses some of these issues in his report, and I feel it may be of use to Complaints and Discipline if I briefly outline the background of the investigation…"
"I was made aware at some stage during the day on 20.11.97 that M had been de-arrested because of work commitments and was going to be interviewed later in the day. Having heard an explanation from the officers involved I was in agreement with that course of action.
I do not believe the investigation has been undermined or lacks integrity, and this is the view I have expressed to the Crown Prosecution Department. As PC Clark has made contact with the Complaints and Discipline department prior to the completion of his report, I feel it is appropriate for them to have sight of this report.
Report forwarded for your information and onward transmission to Complaints and Discipline."
"Superintendent Stanley said that if I was content that the investigation had been conducted with total integrity, then it was sufficient to reveal it to the CPS and there was no need at that stage to inform the Complaints and Discipline department at that time. I duly took the report to the CPS and outlined what had occurred. The Report was retained by the CPS and was the subject of a PII Hearing on the first day of the trial where the judge decided that it was not necessary to disclose it to the defence. I do not recall the CPS expressing concern or criticism about the M aspect of the investigation".
"It then struck me that there was potentially further complications in that I did not know exactly why M had not been arrested when originally spoken to and the premises effectively sealed and items of jewellery within the shop seized. It was entirely possible, I felt, that the Crown's case could be embarrassed when it came to questioning from a co-accused as to the significance as to the lack of any stolen property found at M's premises. In addition, I am afraid I was curious as to what exactly had happened. To this end, I raised the position regarding the initial arrest de-arrest and re-arrest of M and asked for a report. I felt that this was something which would need to be discussed with counsel and I therefore asked the officer to provide either a written report or a report in the form of a MG6 as this was something that would have to be considered in the light of the Criminal Procedure and Investigations Act in relation to unused material. As it transpired, this was considered at a PII application at the start of the trial and it was felt that the information obtained from the officer was not either of assistance to the defence or undermining the prosecution case. I have been asked to provide this report explaining why it was that the request was made to the officer in the case for a report concerning the circumstances of the arrest of M and would emphasise that I do not have access to any of the case papers. To the best of my recollection and belief however, the reasoning behind the requests for an explanation are exactly as stated above. I do not believe that there would be a written record on my papers asking for a formal report. I would just add that the circumstances of the detention of M were disclosed to [prosecuting counsel] who agreed with my indication that it was essential that the prosecution team be made aware of all circumstances surrounding all aspects of this case".
"On Friday 1st October 1999 you spoke to me in relation to the above defendant [M] and asked for feedback, as you had not received any update following your submission of an A 57 in April of this year [that is a misdated reference to the report of 5th May 1999].
I am now informed that your report was presented to the CPS and in his opinion, the matters described will not have any bearing on the case. Your original report is retained by him together with the rest of the file.
My advice to you remains the same as per our earlier conversation i.e., you answer all questions posed truthfully and if you do not know why certain actions were taken you say so, even if you feel this may cause you embarrassment ".
THE THREAT OF DEFAMATION PROCEEDINGS
"I also told him that I had deliberately not discussed the issue with him since the day of the conference [a reference to 10th May 1999] because of the possibility of action that John Kreyling may or may not be considering".
"At paragraph 6.14 of the Particulars of Claim, the Claimant mentions proposed libel proceedings. My brother and I had spoken together about how we could deal with the serious allegations that Dave Clark seemed to be making against us, and I did tell Graham Bird about our discussions. I told my brother that the Claimant had been calling me basically a 'bent' officer, which I am not, and which I would not tolerate. …"
ASSESSMENT OF WITNESSES
"I came to the conclusion, having considered all the evidence available, that it was not possible to show that DS Kreyling acted in the way that he accepted that he had in order to try and pervert the course of justice."
"The allegations were correctly made and I thank you for bringing them to or attention…. I have adjudicated on the misconduct matters, as a result of which two officers have received strong, constructive advice from their Divisional Commander".
FINDINGS OF FACT ON THE ALLEGATIONS OF BULLYING
INJURY AND EVENTS AFTER 4th OCTOBER 1999
"As Disclosure Officer in a major trial, being placed under intolerable pressure by Senior Officers threatened with slander if I gave evidence, withholding evidence and a total attempt to pervert the course of justice by senior officers. Anxiety caused by the lack of support and care by Professional Standards and harassment caused to my family to date… For the past 2 years I have been suffering stress and depression related illnesses brought on by the mis-conduct of several Senior Officers who attempted to cover up the unprofessional behaviour of another Supervisory Officer…"
THE EXPERT EVIDENCE – INJURY AND CAUSATION
1. "There is no good reason to suspect that Mr Clark would have developed psychiatric problems from 1999 onwards were it not for the problems he experienced at work.
2. The cause of these work place problems will be a matter for the Court rather than medical experts. We note that the information we have reviewed shows that Mr Clark's account of his work place problems are disputed in the Defendant's document.
3. We are agreed that Mr Clark developed clinically significant psychiatric symptoms in mid to late 1999. These symptoms have fluctuated between mild and moderate severity. The symptoms have included anxiety and depressive complaints. We are agreed that these symptoms have met the criteria for a diagnosable major depressive order. Mr Clark also describes anxiety symptoms, which can be incorporated within the diagnosis of major depressive disorders. However, in Dr Acharyya's view these symptoms also meet the diagnostic criteria for Post Traumatic Stress Disorder. Professor Fahy does not agree with this viewpoint.
4. We agree that Mr Clark's personality has influenced his reaction to his experiences at work. As noted in our previous reports, Mr Clark is a highly conscientious, tenacious man with perfectionist and obsessional traits. These qualities may have been the key to Mr Clark's success as a police officer, as described in his annual appraisals, but may also have limited his flexibility, and his ability to adjust to stresses or changing circumstances at work.
5. Mr Clark continues to describe residual depressive and anxiety symptoms. We agree that the litigation process, as well as Mr Clark's recent heart problems are exacerbating these symptoms.
6. Mr Clark's residual psychiatric symptoms are treatable, and we expect that he will make a good recovery from his symptoms, especially following the conclusion of the litigation process, although Mr Clark may find it difficult to cope with the outcome of litigation unless he feels that he is fully vindicated and supported. We agree that a combination of anti-depressant medication, supervised by a psychiatrist, and a course of cognitive behaviour therapy delivered by a clinical psychologist or specialist nurse, should assist Mr Clark towards a full recovery. We agree that in view of his experiences and preoccupations, a return to police work is not a realistic option. However, contrary to his own pessimistic views, our opinion is that Mr Clark should be fit to return to work shortly after the conclusion of the litigation."
"In view of Mr Clark's personality style, it is not difficult to understand why the above series of events could have been a source of stress for Mr Clark, even if his own behaviour may have contributed to the difficulties at work. The main sources of stress were that Mr Clark felt that his integrity had been challenged by allegations of inappropriate expenses claims, the threat of legal action against him, his "demotion", and the fact that his complaints against ADI Kreyling did not result in a satisfactory outcome".
"He does not fulfil the criteria for Post Traumatic Stress Disorder because of the nature of the triggering events and the range of his clinical symptoms. His symptoms resemble those of an adjustment disorder, and it is clinically meaningful to conceptualise Mr Clark's symptoms as arising of a problem of adjustment of a series of events at work and with his legal case."
"Mr Clark's residual psychiatric symptoms are at the borderline of clinical significance. In ordinary circumstances such symptoms would be expected to respond well to a combination of anti-depressant medication and 10 – 12 individual cognitive behaviour sessions. His treatment will be more beneficial once the legal case is concluded. At that stage, the psychological treatment would help Mr Clark to return to a level of functioning which is compatible with full-time employment. His own gloomy appraisal of his future work fitness cannot be justified on the basis of his current symptoms, and his likely response to a standard treatment programme. The fact that any future employment would not be as a police officer is a prospect that Mr Clark will have difficulty adjusting to."
KNOWLEDGE OF THE VULNERABILITY OF THE CLAIMANT
CONTRIBUTORY NEGLIGENCE
"But I have some reservations that this would not be accepted by some supervisory staff on the CI Department. Over the past year I have still received a backlash of a grudge that some supervisors on the department have against me. This I feel is totally unproductive and unprofessional and I think it is about time this matter was resolved by the intervention of a senior rank and maybe a meeting would resolve the situation".
"On returning to Rayleigh I am informed that a senior CID Officer had complained about my conduct and that he felt I had won over by using his officer for the detection of Rayleigh offences… certain persons noses were put out of joint".
DECISION ON LIABILITY
THE AMOUNT OF GENERAL DAMAGES
SPECIAL DAMAGES