This report is in response to The Law Commission’s review of the law
Misconduct In Public Office (MIPO). There is a risk that MIPO is likely to
abolished unless we can raise public awareness on the importance of keeping
the only law that provides accountability to the public when those who are in a
position of power betray the trust placed in them. The problem is that MIPO
has not been used in many cases where it should have been against powerful
people because the general public have been unaware of it. At the end of this
report readers will be asked to give your opinions.
A crucial point is that if any new law replaced MIPO it would not have
retrospective power. The act of attempting to abolish MIPO is the very
reason we need such a law in the first place. Otherwise some wrongdoers
could escape justice.
The Law Commission has published its latest report (Report 229). This
document states that the preferred option is for the law to be abolished. Given
the erosion of public confidence in those institutions that govern them I would
argue that MIPO has never been more vital.
I agree that some amendments to language are needed given that it is over two
hundred years old but the essential elements of this law must remain. The
question that should be asked is not “Should MIPO be abolished?”
The question that should be answered is “Why have the institutions that
govern us become accountability averse?” This culture has resulted in
avoidable deaths, cover-ups, illegal wars, invasion of privacy, blacklisted
workers, state spying for political purposes, miscarriages of justice and many
other immoral and illegal activities arising from misconduct in public office.
The Law Commission has described MIPO:
Page 51 3.34 “Historically, prosecutions for misconduct in public office appear
to have concentrated on one particular type of harm to the public interest, that
harm being to the public’s confidence in terms of their expectation of and belief
in the integrity of the institutions that govern them.
As part of our conclusions on the historic development of the offence in appendix A
to the background paper we said the mischief to be addressed was misconduct in both a
positive and negative form by officers who performed functions on behalf of the state.
This included the Judiciary and other officers independent of the Crown and the
executive. Specifically the offence was addressed to officers who might not
otherwise be made accountable for their actions and where the functions being
performed had the potential to affect the public interest, therefore the principle
underlying the offence was one of accountability for a serious breach of
legitimate expectation held by the public as to how an individual would perform
In plain English, this law was originally aimed at the judiciary and other public
officers whose failures caused serious harm to the public interest and who
would not be held to account by any other law.
“A public officer acting as such”
The concern we have is that cases prosecuted currently are disproportionately
against police officers. For example a police officer found to be fiddling his
petrol accounts could be dealt with via disciplinary procedures or by the law
that deals with fraud offences. Also the term “acting as such” is clearly aimed
at the duty to the public that is being undertaken. It could be argued that buying
petrol is not a police officer’s duty to the public.
However if a police officer attends the scene of a crime, eg an assault, and then
exploits his position of authority by going on to have a sexual relationship with
a vulnerable victim of crime, then that is clearly a situation that should be
prosecuted under MIPO.
If a police officer tampers with or fabricates evidence and falsely incriminates
an innocent person that too should be prosecuted under MIPO.
If MIPO is abolished then my concern is that the most serious breaches will be
downgraded to mere offences and this will not capture the harm done to the
public interest. Some cases which would include senior public officials cannot
be dealt with by other laws so these individuals will remain unaccountable for
their actions. We need to keep MIPO with amendments to ensure it is used
more widely and to prosecute appropriately.
Breach of Duty
Page 161 (2) The Law Commission MIPO consultation:
“The cases prosecuted also emphasise the importance of making a clear
distinction between those judicial officers who intentionally or recklessly breach
a duty of their their position and thereby undermine the correct administration
of justice and those who make decisions that might prove unpopular or arrive
at an incorrect decision by reason of an error or mistake.
“For good reason scenarios involving office holders who make either
unpopular decisions or erroneous decisions in good faith have never been able
to be prosecuted as misconduct in public office. To do otherwise would leave
judicial decisions subject to unwarranted interference from those who
disagreed with them on subjective including political grounds and thereby
undermine the independence of the judiciary.”
Based on the following facts, I submit that judges should remain on the list of
those liable for breach of duty. This law was originally aimed specifically at
those public officials whose misconduct would not be addressed otherwise.
Running a helpline for whistleblowers and families who have lost a loved one, I
have gathered evidence from thousands of helpline cases over sixteen years.
What this evidence confirms is that when a judicial verdict is questioned the
presumption is that the judge made an unpopular decision or an error. There
is no investigation whatsoever as “judicial independence must never be
questioned”. The term “unwarranted interference” has been applied so rigidly
that it has resulted in an approach of “no interference no matter how perverse
the judgment”. There was a time that this attitude was taken regarding the
conduct of police officers, and history has shown the harm done by such
complacency. All public officers should bear scrutiny.
“The remedy is appeal”?
Some would argue that appeal is a remedy in such situations, however this is
prohibited because most people barely have the funds to access the justice
system in the first place, let alone the costs of appealing such decisions. The
onus should not be put on the victim of judicial injustice. When a judgment
could only be addressed by a re-trial this is not an option because often a retrial
is with the same judge and is very difficult to obtain. Legal opinion from a wide
range of legal information resources is that an appeal on the grounds of bias and
misconduct is impossible to win.
In those courts where there is not the safeguard of a jury or a transcript, the lack
of scrutiny has seriously undermined public confidence in the justice system.
Where there is access to a transcript such as in High Court cases, firstly the cost
is prohibitive so this prevents people from obtaining one, and the judge has the
unilateral power to amend any transcript before release, therefore is able to
remove any evidence supporting his/her own misconduct. Digital recording of
court proceedings by the public is forbidden so that is another obstacle to
Employment Tribunals have increasingly earned the reputation of a failing,
complacent, unjust and corrupt system as shown by the many comments in
response to “Is the tribunal system corrupt?”i
(Cunningham & Read 2014).
This reputation is a direct result of repeated concerns being presumed wrongly to
relate only to either unpopular or mistaken judgements. I deal with these two
elements as follows.
I suggest that the following filter should be applied where a judge has failed to
deliver a verdict based on the evidence: if all the mistakes made in the judgment
are brought to a judge’s attention in writing along with the references to relevant
parts of the evidence that contradict the verdict, and the judge then amends the
verdict accordingly, I accept that the judge could have made a mistake
originally, as long as it was not a recurrent pattern indicating incompetence or
misconduct. Please see examples in Appendices 1-3 of documents submitted to
If however all the alleged mistakes were pointed out to the judge and no action
was taken to amend the judgment then at this point the action becomes a
positive action to breach duty as it is an intentional act.
If a decision is unpopular but is based on the evidence then there should be no
question of interference, however it must be borne in mind that a verdict can be
unpopular precisely because it is not based on the evidence and is therefore
untrue and unjust.
Harms and Wrongs
The evident harms to public confidence in the administration of justice and
harm to the public interest should be included in consideration but there can be
much more serious harm which I will demonstrate in the Case Scenarios
I am not a lawyer but I deal with reports of gross injustice everyday and none of
us needs to be a lawyer to contribute to this debate which affects everyone. I
believe there needs to be much more public involvement in law, unpaid except
for reasonable expenses of course as I have no wish to see a “gravy train”.
I suggest that in both law making and Crown Prosecution Service (CPS)
decisions there needs to be much more public scrutiny in the form of a public
panel randomly selected in a similar capacity to a jury. There have been a
number of widely publicised casesii iii that have been prosecuted wrongly
causing distress and wasting public money, as well as a number of cases that
were not prosecuted but should have been. The public interest is best served by
encouraging the public to be interested in matters that affect them, and to bring
much needed commonsense to decision-making.
Page 20. 2.34 The Law Commission consultation 229:
The seriousness test requires that the neglect or misconduct must be of such a
degree as to amount to an abuse of the public’s trust in the office holder. In
other words the breach must be one which merits prosecution not merely civil
law or disciplinary proceedings. There are a number of factors that can assist in
deciding whether the misconduct in question is serious enough to justify the use
of criminal law.
The likely consequences of the breach of duty. The offence itself contains no
requirement that the prosecution prove any particular consequence. The offence
is concerned with conduct, however the existence of a risk of adverse
consequences is relevant to the determination of whether the breach of duty is a
The existence of an improper motive, for example, bad faith, dishonesty,
oppression or corruption may also be relevant. Some early cases refer to
dishonest, oppressive, corrupt or partisan motive being required as a separate
element of the offence. However the later cases contain no such requirement.
Motive may simply be taken into account when assessing seriousness.
Some circumstances may also result in the breach being viewed as more serious,
such as a breach of duty by a senior public official as opposed to the same
breach by a lower level official.
I have used the following three examples to highlight real and fully documented
cases and ask readers to decide if such cases occurred in future, whether the
remedy should be either:
a) Applicants who have already been in the legal system for two years, and
are consequently suffering great hardship already, should then be expected to
find the means to appeal on the grounds of “bias and misconduct”?
b) Should there be a procedure to investigate the evidence in relation to such
judgments and disciplinary procedures be in place or referral to the Crown
Prosecution Service (CPS) if required?
What currently happens is that if judges are disciplined or dismissed it is done
in total secrecy, the only way to obtain the information is through Freedom Of
Information requests which give only a general oversight and the number of
judges involved, but allows them total anonymity.
Also absolutely no consideration is given to any cases which may have been affected by these judges’ behaviour, in fact any potential victims of injustice would not even
know that the judge who tried their case had later been disciplined or dismissed.
Only a small number of judges are disciplined but the number of judges against
whom concerns are raised is kept secret (and the only reason I know this is
because such cases have been reported on our helpline). The tendency seems to
be that names come into the public domain of those who have committed for
example a driving offence, but the names remain secret of those whose conduct
as a judge has been found to be fault. We rightly demand accountability and
transparency for those judges who ignore evidence or reach perverse verdicts.
Do you think that any of the following cases “warrant interference” with a
Case Example One:
Z is an Employment Tribunal Chairman who is judging a Public Interest
Disclosure Act (PIDA) case. The whistle-blowing involves the serious abuse of
vulnerable elderly people in a care home. Prior to the case going to court, the
PIDA prescribed regulator conducts a full inquiry and upholds the whistleblowing allegations in full.
At the tribunal directions hearing Z gives assurances to the defendant (ie the
employer) that the regulator’s inquiry report will not be disclosed in the
proceedings. The defendant subsequently chooses the defence of denying both
the disclosures and the harassment that forced the whistle-blowers to resign.
Z decides then to judge the disclosures himself, not only disregarding the
prescribed regulator’s report but contradicting that report in full in many
respects. His verdict includes criticism of the whistle-blowers for alleged
“exaggeration” on a particular disclosure relating to falsification of medical
records even though this disclosure is upheld in the regulator’s report by a
qualified independent pharmacist.
The whistle-blowers write a comprehensive response to Z two days later,
pointing out his errors, what the evidence says and what was heard in court, and
clearly indicating where in the court bundles the relevant documentary evidence
can be found.
Z chooses not to amend the verdict nor to respond. The whistle-blowers do not
have the financial means to appeal but they have tried to get the evidence
looked at to no avail. They also write to all the bodies responsible for the court
and complain about the conduct of Z, providing all the evidence and stating that
his actions amounted to Bias and Misconduct. The only response to this is that
no one could take any action as it would be to question a judicial decision.
The Harms and Wrongs in Case Example One
As the case related to Public Interest Disclosures, there can be no doubt that the
public interest has been harmed. Confidence in the administration of justice has
also been harmed. Judge Z exceeded his jurisdiction firstly in disregarding
evidence from the prescribed regulator, and then in ignoring this being brought
to his attention so his actions are clearly not a “mistake” but must be a
As a result of Judge Z’s reference, the employer issued public statements
repeatedly suggesting the whistle-blowers were liars and referred to the Tribunal
judgment that claimed they had “exaggerated”. The abusive staff continued to
work for the defendant and some were promoted.
Within four years of Z’s verdict the company lost the contract for all six homes
in the area and a new company took over which issued a report to the local
authority listing comprehensive failings including:
lack of disciplinary action against abusive staff
staff who were not suitable to work with vulnerable people
vulnerable residents in all the homes had suffered an exceptionally high
number of injuries and falls requiring hospital treatment
lack of documentation
statutory notifications had not been recorded or reported
Staff who had witnessed all of the above failures chose not to blow the whistle
on these because the fate of the previous whistle-blowers was common
If a newspaper had falsely accused the whistle-blowers of exaggeration they
would have had the remedy of libel laws but because the lie was in a judicial
verdict there was no remedy, ie a judge cannot be sued. In effect the whistleblowers were punished by their employers and then by the law for doing the
Case Example Two
Judge Z is an Employment Tribunal Chairman Hearing a whistle-blowing PIDA
case. Again the case involves the abuse of vulnerable people at a care home.
There is a crucial piece of evidence to be judged. The evidence available to Z
consists of the following, including verbal evidence subject to crossexamination, and documents.
Evidence from applicant (ie the whistle-blower)
The whistle-blower reported abuse which has been investigated and
upheld by the regulator but the whistle-blower discovers that her
employer has ignored the regulator and attempted to place the abusive
staff member in another home owned by the company (Home A) on
The whistle-blower discovers this and informs the regulator who contacts
the company director and objects to the abuser being employed in Home
A. The company director then places the abuser in another home (Home B)
and when the whistle-blower discovers this happened on August 31st, the
same date the regulator had contacted the company director about Home
A, the whistle-blower loses all trust in her employer.
Evidence from the company director
He says he saw no reason why he could not place the abuser in Home B
on August 31st.
No mention is made of Home A or the regulator’s objection and
instruction that the staff member is not suitable to work with vulnerable
people, besides already being on police bail for theft.
Tribunal witness statement from the regulator
When informed that the abusive staff member was to be redeployed to
Home A on the orders of the company director, the regulator telephoned
the director and objected as the staff member was believed to have been
involved in serious abuse and was already on police bail for theft.
The company director finally agreed to this but on the same date he
placed the abuser in Home B. The regulator confirms this evidence from
the staff records.
The Tribunal verdict says the company director was a credible witness, that
when he was contacted on August 31st he agreed not to place the abuser in
Home A, and that it was not until November that he placed the abuser in Home
Judge Z is informed by the whistle-blowers that his verdict contradicts the
evidence and he is directed by the applicant in writing to the evidence submitted
to the Tribunal, but Z chooses to ignore this.
The company director goes on to be a key Government advisor on care, and he
uses the Tribunal verdict to protect him from any criticism citing that the
Tribunal had found him to be “a credible witness”.
When there are two different versions of events then any independent evidence
available should be considered and reflected in the verdict. From three
versions of the same event Z came up with a fourth version of events that
was not supported by the evidence he had seen and heard.
In effect the company director could not be judged “a credible witness” if on the
exact same date he was stopped from placing an abuser in one home he went on
to place her in another home without the regulator’s knowledge and knowingly
against the regulator’s clear instructions. The only way to overcome all the
factual evidence that this person is not a credible witness is to create a
fabricated version to justify the perverse conclusion. When informed of this Z
declines to amend his judgement.
Harms and Wrongs in Case Example Two
Serious harm to the public interest and trust in the administration of
A person who disregarded the regulator’s concerns about a known abuser
and went on to hide this person in at least six other homes.
All of these homes were subsequently reported to the authorities as
having serious failings in care.
The whistle-blower suffered long term hardship, the company director
went on to be awarded an OBE for services to care and became a key
Government advisor on elderly care.
Case Example Three
Judge Z is an Employment Tribunal Chairman hearing a Public Interest
Disclosure Act case involving elderly people being deliberately and needlessly
sedated in doses not authorised by a doctor.
The employer fully denies the allegations of abuse as well as of causing
detriment to the whistle-blower. Weeks of evidence is heard showing how the
medication records were falsified, with the signed documents being presented in
court during cross-examination.
These records all uphold the whistle-blower’s version. The prescribed regulator
and an independent pharmacist both uphold the whistle-blower’s version.
The company director says that the company conducted an internal review and
found nothing wrong with how medication was administered.
The Tribunal concludes a few mistakes were made in medication and no
mention is made of all the independent expert evidence. The employer’s version
is the only evidence referred to in the verdict. The whistle-blower refers Z to
the 81 medication records presented in cross examination, the regulator’s report
and the pharmacist’s report but still Z declines to amend the verdict.
Harms and Wrongs in Case Example Three
Serious harm to the public interest and the administration of justice.
Excess of jurisdiction.
Serious actual and potential harm to public health and safety.
A short time later a resident from this home died and a coroner’s inquest
recorded an open verdict as the sedative drugs administered could not be
discounted as the cause of her death.
Further widespread failures in the administration of medication in homes
owned by this same company were linked to numerous cases of death and
abuse, and still continue to occur.
The evidence is that death rates in some of these homes have trebled
compared to similar homes.
The Invisible Crimes
All of the above scenarios and harms and wrongs came from just one case: the
Bupa 7. In total over 300 pieces of crucial evidence from the court bundles, and
which contradicted the verdict in full, were brought to the judge’s attention in
writing but to no avail. Please see Appendix 1 (BUPA7 response to verdict) for
this supporting evidence. So perverse were the conclusions that if all names had
been removed from the verdict the whistle-blowers would not have recognised
the judgment document as being about their case.
The harms and wrongs listed are all fact. The whistle-blowers tried to appeal
with no legal representation on Bias and Misconduct, which are grounds of
appeal widely regarded as impossible to win. However their appeal was
declined, the applicants were notified of this decision and informed they had
seven days to lodge an appeal, the decision was date stamped over a week too
late. Please see Appendix 2 (BUPA7 were illegally denied an appeal). When
the Employment Appeals Tribunal (EAT) was informed in writing, they refused
to address this and a High Court judge said “This could not happen” – until
confronted by the document.
The whistle-blowers then went to the President of Employment Tribunals and
sent all the evidence to Public Concern At Work (PCAW) appealing for help to
no avail. It has recently been accepted by PCAW that the Public Interest
Disclosure Act has failed.
Had earlier whistle-blowers’ concerns been acted upon by those notified, then
subsequent whistle-blowers would have been saved from the injustice inflicted
by an inadequate law in an unjust, unaccountable system.
The BUPA7 then went to the Department of Trade and Industry, their Member
of Parliament called for a public inquiry, and they petitioned Parliament three
times They went to the Prime Minister and the Health Department amongst
others and left no stone unturned.
There were over 200 pages of correspondence with Lord Falconer alone who
was the Lord Chancellor and responsible for judicial conduct issues. The
response was the same every time: “There can be no unwarranted interference
with judicial decisions”.
In fact the Bupa 7 case shows that they never stood a chance in the legal system
because the Tribunal chairman had given assurances to BUPA that the
prescribed regulator’s inquiry report would not be disclosed during the hearing.
Please see Appendix 3 for the final paragaph of the Ambache letter.
The BUPA 7 case clearly demonstrates the need for MIPO not only to be
retained but to be used as originally intended. The BUPA7 case showed
clearly that a crime of misconduct in public office was committed which has
never been prosecuted. This highlights the need to keep the current MIPO law
to ensure that all such injustice is addressed, not only the BUPA 7 case but also
many more in a system where transparency and accountability are not present
and where the harm to the public continues. In effect, like the BUPA7, victims
of injustice can “scream it from the rooftops” and still no-one is held to account.
The BUPA7 case, was the first case lodged under a new law The Public Interest
Disclosure Act 1998. The harm and wrong from that case is to every whistleblower
that came after them, and the case precedent that was set left the legacy
“When you see suffering and wrong, look the other way because the law will
not protect you if you speak up.”
The evidence heard in a court of first instance will never be subject to the same
scrutiny by any subsequent court, nor will any Government body instigate an
inquiry. This is because any future appeal hearing would only be on points of
law, and would not examine the full evidence.
Misconduct in public office consultation Page 98 re 3.240-3.241
“Again we must distinguish between two groups of cases, in one the bias,
prejudice or conflict of interest leads D into conduct that is wrong in itself and
would be wrong even if no bias, prejudice or conflict of interest were present.
In the other , the act or decision may have been correct in itself, but D was
wrong to act at all given the appearance of bias.”
In all these cases there is the basic wrong of breach of duty not to allow the
decision making process to be influenced or appear to be influenced, by bias,
prejudice or a conflict of interests. This is a breach of public trust in the
stronger sense. Where the act in question is a judicial or administrative
decision, there is also a breach of a duty of actual or perceived impartiality.”
Bias And Prejudice
I was one of a group of whistle-blowers who attended the Law Commission
consultation seminar on 20th January 2016. One of the panel speakers who gave
a presentation on why MIPO should be abolished was Clare Montgomeryiv of
Matrix Chambers who sits as a Deputy High Court Judge. Ms Montgomery
stated “Whistle-blowers break the law”. She launched a scathing attack on
Edward Snowden and displayed outright hostility in her tone, attitude and
responses to questions from whistle-blowers. She was challenged by Chris
Ledbrook, a Ministry of Justice whistle-blower who corrected her by stating that
he was a whistleblower and had not broken the law. Nor had any of the
whistleblowers in our group broken the law.
My concern is that were Ms Montgomery to judge a case involving whistleblowing
then her demonstrated high level of hostility could render her
judgments tainted by bias. When such open bias can occur in a Law
Commission consultation on the only law to hold such bias to account, this
demonstrates the vital importance of recognising the harm and injustice
hostility in the form of bias can cause. How perverse this was, given that at
the consultation event a fictitious scenario was discussed about the rights and
wrongs of a scenario involving a judge making a similar bigoted generalisation
at a private social event. In contrast, Ms Montgomery was representing the
case for abolition of MIPO, the very law which would recognise and redress the
potential harm caused by bias and prejudice to the fair administration of justice.
There is much debate in the consultation paper about identifying clearly what
the exact duties of individual public office holders are, in order to identify any
breach of those duties. There is no such question applicable to a judge in this
consultation paper. The public expectation is that a judge’s duty is to judge the
evidence and arrive at a decision based on that evidence.
I am not advocating that judges should not hold views on issues. They are
entitled to their opinions but if those views could have even the smallest risk of
interfering with their judgments they should declare this as an impediment and
not judge such cases. The judiciary hold such a degree of power that to render
them beyond scrutiny when genuine concerns are raised is not in the interests of
justice nor is it morally right.
If I was called to jury service in for example a care home abuse case, due to my
work and experience I would have such strong feelings about the issue that my
judgment would be affected and I would feel duty bound to declare the position
If such a duty to declare a relevant interest is expected from an ordinary citizen,
should not the same duty also apply to those administering justice, and where
there has been a breach of that duty should there not be an expectation of
“Who exactly is a public office holder?” seems to be the main area of
MIPO could be amended to have a list defining public office holders which
could be added to as required, to reflect the changing situation. What should be
measured is the level of trust and expectation in each public office holder.
Law Commission, Misconduct In Public Office Page 95:
“However we are aware that many of the same consultees as referenced (NB
This consultation event invitation was aimed “to engage with practitioners and
experts…” rather than the general public) also expressed anxiety that
complaints processes, which could give rise to disciplinary or regulatory action
against the decision maker are in fact inadequate as means of holding the
decision maker to account.
Daphne Havercroft, campaigner: My observations and experiences and those of
many members of the public, including victimised whistle-blowers, lead me to
conclude that these processes are rarely if ever adequate to deal with alleged
wrong-doing because those who have a public duty to follow the processes
repeatedly fail to do so with impunity.
Additionally most were concerned that civil or administrative law remedies
were beyond the means of most members of the public who might be affected by
the wrongful decision making,
Mr Barry Faith commented there must be a way for members of the public to
bring publicly appointed paid officials to account without having to bear the
cost of doing so. The cost of taking someone to court is prohibitive when faced
with a publicly appointed/paid official who can call on the services of their
organisation’s legal advisor for opinion/advice….
These are obviously important points to be considered, however the
inadequacies or otherwise of regulatory or civil sanctions are outside the scope
of this particular project. We cannot recommend how access to civil justice can
be increased or how employers, regulators and independent adjudicators can
be made more effective. Nor is it the function of criminal law to compensate
for deficiencies in the availability of civil sanctions.”
I disagree because these issues do indeed fall within the scope of the
consultation and it is the function of the criminal law to ensure that those
public office holders who have breached their duty are not allowed to continue
and cause further harm.
The MIPO consultation paper states that any lack of civil remedies is not the
concern of MIPO, but I disagree because it is certainly the function of
criminal law to hold to account those who can be proved guilty of
misconduct in administering justice in all settings including civil law (eg
employment tribunals). So if remedy is denied as a result of a judge’s
misconduct in any court, then MIPO is applicable. This is borne out by the fact
that the early MIPO prosecutions were against Justices of the Peace.
Case example of events that could happen
This scenario is included because the MIPO consultation specifically states they
cannot conceive damage to property being included on the list of possible harm.
A fire officer raises concerns that a closure or reduction in crews will lead to
damage to property or loss of life but is ignored. A short while later the fire
officer begins to experience victimisation by management, and smearing of his
reputation, culminating in dismissal. Please see Breaking The Silence Part 1v
for common patterns of such victimisation of whistle-blowers.
He takes his case to an Employment Tribunal but the evidence is not judged
fairly because C the chairman is hostile to whistle-blowers and fails to judge on
the evidence before him. Two years later a fire occurs resulting in large loss of
life and damage to property and an inquiry finds the events occurred as a result
of the station closure and/or reduction in crews which had been raised by the
fire officer as a foreseeable likelihood. The subsequent fire inquiry would
include an upheld verdict of the whistleblowing case.
Case Example: Death of Mr Rene Tkacik on Crossrail construction
A London coroner on the inquest into the death of Crossrail worker Rene Tkacik
refused to admit the evidence from a whistle-blowervi who had warned of the
same safety issues that led to the death of Mr Tkacik. All available evidence
should be examined and reasons given for any judgment. To refuse to admit
such evidence is a positive act of a breach of duty.
Case Example: Hillsborough
The coroners who gave the earlier Hillsborough verdicts vii have never been
investigated or held to account – in fact not a single Public Officer is yet to be
prosecuted and the media coverage has focused mainly on the conduct of only
one senior police officer, even though when the case is examined closely other
people should also be investigated for misconduct.
Ombudsman, Safeguarding, Local Authority
Case Example: Carmathen County Council whistle-blower Delyth Jenkins
Carmarthen whistle-blower Delyth Jenkins viii exploded the myth that those in
authority investigate and act when abuse of vulnerable people is involved.
Every single level of accountability failed the vulnerable and the whistle-blower
trying to protect them. Not a single person has been held to account in this case.
There are far too many NHS cases to list here but the public will be aware of
media coverage of many cases in which clear misconduct has occurred by
people with a duty to the public, including victimisation of whistle-blowers.
It is important to remember that for every case in the news there are many more
which never come to public attention and no whistleblowing case, in the NHS
or any other sector, should be regarded as more important than any other.
The scale of misconduct with impunity is massive and it continues because
MIPO has not been used in cases where it should have been, against people in
posts where they have breached their clear duty to the public.
Who Is A Public Officer?
The List of Persons
This question seems to be the main area of contention with many proposals
being suggested. My concern is that this issue and the disagreement
surrounding it will result in Misconduct In Public Office being abolished. In
other words I do not want the best of MIPO thrown out with the worst. I
propose that the post holders of the following bodies should be designated as
Public Officers for the purposes of MIPO and will explain why:
Group 1: The Judiciary
All working in court settings, including coroners, Court of Protection etc.
Group 2: Law Enforcement
The Police, Probation, and Prison services.
Group 3: Crown Prosecution Service (CPS).
Group 4: Government
National and local government and Civil Service employees.
Non-Civil Service advisors who influence policy.
Group 5: All Investigating Bodies
eg Charities Commission, Monopolies & Mergers Commission,
Independent Police Complaints Commission, Care Quality Commission,
Care & Social Services Inspectorate Wales and many more.
Group 6: Professional Bodies
eg Nursing & Midwifery Council, General Medical Council, General
Dental Council and many more.
I have concluded that if all of the above had fulfilled their duty in the first
instance than most of the injustice, cover-ups, lack of accountability and harm
in cases brought to Compassion In Care would not have occurred, as well as
many reported elsewhere.
If MIPO is amended with a core list of this type which could be added to, that
would be the most efficient way to protect the public from the harm and wrong
which continues to occur. In the next section I will give examples of how the
above groups are linked but accountability is essential and the buck has to stop
somewhere. Currently we have no “buck” and no “somewhere”.
“All Public Officers That Administer Justice” (MIPO consultation paper)
Why? Because of the degree of power held by judges any breach of duty can
cause serious repercussions. I have given some case examples but what should
be considered is not just the breaches that occur, but that no organisation or
system is in place that recognises the difference between “warranted
interference” and“unwarranted interference” which is a crucial distinction.
No public officer should be beyond scrutiny or the law. When those who seek
legal protection for harm suffered as a result of genuinely acting in the public
interest are wronged by the law, then that is a benchmark of injustice. Can any
justice system claim to uphold the public interest while whistle-blowers are
Direct links between these categories and examples
In criminal courts the Judiciary rely on the Police to have fulfilled their duties
in investigating and gathering evidence. For example, if the Police fail to
investigate adequately or at all, this failure will link to the CPS being unable to
In other areas of law there are many interlocking connections, for example
when a prescribed regulator fails to investigate this may well have an impact
in a judicial setting and so on. When a coroner fails to consider evidence this in
turn can link to how the Police or CPS act. Where there has been a breach of
duty the full impact of that breach needs to be considered.
The Police and Prison Officers
How the police conduct themselves whilst preventing or investigating crimes
must include under-cover operations eg “Spy Cops”ix forming relationships with
activists in order to spy for the State. If a junior officer was acting on the
command of a senior officer it should be the senior officer held to account.
In a prison situation where staffing numbers were cut and as a direct result
crucial paperwork was not completed, the person(s) responsible for the situation
should be held accountable, not a junor post holder scapegoated.
Government also has the power to hold regulators to account and ensure that
private companies operating publicly funded contracts should conduct their
business effectively and ethically. Eg in the Southern Cross care scandal, in the
years preceding the collapse, evidence of abuse was being reported repeatedly
to regulators and to successive ministers, all of whom breached their duty by not
taking action. The phrase that sums this up is Who knew What, When, and
What action did they take?
It should also be a duty to ensure that any Government advisor who is
influencing policy is beyond reproach in their conduct. I include in this
category Government advisors who are not civil servants.
Government links to law so there should be a duty to act on concerns about
particular laws if the inadequacy of those laws is causing failures that allow
criminal activity and a prime example of this is the Public Interest Disclosure
Act about which we have petitioned Parliamentx xi.
Bodies With a Duty to Investigate and Protect
These would include all those authorities and regulators, for example
Healthcare, Prison, Financial, Legal, Safeguarding Boards. This section of
Public Officers alone accounts for over half the failings brought to our attention.
The below examples are taken from our evidence:
1. In a single establishment in a period of eighteen months over 150 separate
safeguarding alerts were investigated by the Local Safeguarding Board, all
related to sexual assaults on vulnerable adults. Each alert was looked at
separately, no consideration was given to the overall picture. Some alerts were
upheld, some were inconclusive and some were not upheld. The regulator
mentioned none of this in their inspections which totally misled the public as to
the true situation.
2. In another establishment with a long history of abusive and neglectful
behaviour the local Safeguarding Board failed again and again to take action.
We obtained Freedom Of Information (FOI) requests which revealed the
manager from the problem establishment was a permanent member of the
safeguarding board. The regulator also sat on this board and saw no conflict of
interest in this situation. The fact that the members’ identities had to be obtained
by us via FOI is hardly an indicator of transparency and there was clearly a
wilful attempt to mislead the public. Please see Wentworth Cross in Breaking
The Silence Part 3 xii.
3. Breaking the Silence Part 3 also includes the information that a
Safeguarding Board took a vote on the evidence of abuse. Fortunately three of
the five members upheld the abuse – the other two were in fact those responsible
for the abuse in the first place. Would a jury be allowed to include a vote from
4. The BBC Panorama “Behind Closed Doors”xiii featured our work and
followed a case where whistle-blowers contacted us after raising their concerns
with their employers, Safeguarding and the CQC to no avail.
Panorama went into The Old Deanery care home and filmed the abuse.
The regulator inspected the home during the undercover filming and rated
it “compliant”. As a result of Panorama’s filming there was a Police
investigation and subsequent CPS prosecution. Three abusers were jailed
and will never be able to harm vulnerable people again but no-one was
held to account for failing to act on the whistle-blower concerns
which could have prevented the abuse much earlier. Panorama should
not need to be a replacement regulator to stop public officers breaching
5. The CQC as regulator was given copious independent evidence that an
individual had facilitated abuse by failing to take action on reported abuse of
elderly people and then, knowing that evidence, concealing an abuser in
employment in other homes. This individual later became a respected key
advisor to both Government and the CQC, whose senior management recently
contributed to a public statement of support and thanks to the person in the
video tribute “Dear Des” xiv.
These examples are just a tiny proportion of our evidence. Following the
Panorama broadcast we were contacted by over 4000 other whistle-blowers who
identified with the issues in the programme. The scale of human suffering is
beyond words and for every whistle-blower who risked their job to try and
protect the vulnerable there is an authority who failed to act. We campaign for
Edna’s Law specifically to protect the whistle-blowers but ultimately it is MIPO
which should hold to account the authorities that fail to act on whistle-blowers’
Professional Bodies with a Duty to Protect, Investigate and apply the
Natural Laws of Justice in Misconduct Hearings etc
NMC & GMC
The main concerns we receive about the NMC and GMC are as follows:
Whistle-blowers being smeared and malicious counter-allegations are the
motive for a growing number of referrals and more investigation needs to take
place in order to recognise this issue. There needs to be accountability for those
who have made false accusations and who are under the discipline of
professional bodies eg see the case of Dr Raj Mattu xv.
Many people report to us that vital evidence is not being considered in relation
to the charges that go through to a full hearing, and that no satisfactory
explanation is given as to why such evidence is being excluded. The
investigation and assessment of evidence prior to any decision to go to a hearing
is the problem.
If evidence is not to be included then there should be a written explanation as to
why. When people raise concerns with these bodies they are not treated as vital
witnesses who know the evidence. Instead they are largely excluded from the
preliminary process and that is certainly part of the problem.
How It Would Work
These six groups of public office holders all interlink but in every single case
they are at the heart of the problem. Every cover-up, tragedy, injustice, harm
and wrong reported to our helpline can be traced back to these six groups. Bad
things happen when those holding positions of power are beyond scrutiny or
accountability for misconduct.
When a judge in a case for example such as the BUPA 7, has been informed in
writing that over 317 pieces of independent evidence contradict the verdict
in full and yet still the judge declines to comment or act on this, then it is an
obvious and fundamental breach of duty which reaches the criminal threshold
and the MIPO seriousness test.
MIPO is a crime that needs a specially trained and properly resourced national
investigation unit as it would not be practical to be run by local police forces, as
many cases involve consequential harm to the public across wide geographical
There also needs to be a major change of culture and that can only change with
accountability. We would not expect a police officer to approach a burglar
about to break into a house and say “Put that pane of glass back and we will
say no more about it.” Yet this is an approach safeguarding, regulators and
others listed in the six groups take every day.
When the truth is ignored because the person responsible is in a powerful
position which allows them to hide behind a shield of “no unwarranted
interference”, no matter what supporting evidence is available, it is a
fundamental breach of trust.
So many people have had to fight the justice system for decades to get justice
such as in Hillsborough, Bloody Sunday, the Child Abuse Inquiry, and many
more. There is an endless list of abhorrent wrongdoing that shames us as a
country and the only law that could be used to hold these people to account is
I repeat what I wrote at the start of this submisssion: a crucial point is that
if any new law replaced MIPO it would not have retrospective power. The
act of attempting to abolish MIPO is the very reason we need such a law in
the first place. There may be some who may prefer MIPO to be abolished
for their own interests.
I submit we keep MIPO with the suggested amendments above and actually use
this law in the way it was clearly intended to be used because interference in
injustice is ALWAYS warranted.
BUPA 7 Whistle-blower
Founder & Director of Compassion In Care
Co-Founder of The Whistler
i Cunningham N, Reed M et al, 2014 http://etclaims.co.uk/2014/03/is-the-tribunal-system-corrupt/
iv Clare Montgomery QC http://www.chambersandpartners.com/uk-bar/person/227977/clare-montgomery
v Compassion In Care Breaking The Silence Part 1 http://www.compassionincare.com/node/9
vi Mr Rene Tkacik’s inquest
vii Hillsborough http://www.contrast.org/hillsborough/history/inquest.shtm
viii Delyth Jenkins http://www.compassionincare.com/sites/default/files/breakingsilence/W-B2.pdf
ix Police Spies Out of Lives https://policespiesoutoflives.org.uk/
x John Horam presented petition to Parliament http://www.compassionincare.com/node/10
xi Charlotte Leslie MP presented petition to Parliament https://youtu.be/HiXsMgqQvi8
xii Breaking The Silence Part 3 http://www.compassionincare.com/node/168
xiii BBC Panorama “Behind Closed Doors” https://youtu.be/guETCAUsY2M
xiv ACC-TV “Dear Des” tribute video including CQC leaders https://www.youtube.com/watch?v=hrrLIB-B638
xv Dr Raj Mattu https://sharmilachowdhury.com/2016/02/10/press-release-from-dr-raj-mattus-legal-team/
This report is dedicated to all those victims of injustice who were brave enough to submit
their evidence and who have been fighting for years for justice, and particularly to those
victims like Edna who did not survive.
A special dedication also to all those in public office who do work hard for accountability,
and who will never budge from the truth, no matter how much pressure is put on them by the unscrupulous to do so.
We remember in this respect Mr Richard Turner, a man of great integrity, now sadly deceased.
With thanks to Stephen Honour and Christine England for their invaluable help and support in preparation of this report.
Please see the following pages for Appendices 1-3 for some of the documents from the
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Appendix 1 BUPA 7 Response to verdict