Mr P J Jackson v The Chief Constable of Greater Manchester Police: 2401945/2014 and 2402865/2016

Governing Body of St. Albans Girls’ School v Neary

[2010] IRLR 124

Abegaze v Shrewsbury College of Arts and Technology

[2010] IRLR 241

Harris v Academies Enterprise Trust

[2015] IRLR 208

Baber v The Royal Bank of Scotland PLC [

UKEAT/0301/15

and 0302/15] Emuemukoro v Croma Vigilant (Scotland) Ltd.

[2022] ICR 327

[75]The Tribunal cites these cases in this order as this is their chronological order, and one can therefore trace the development of this line of jurisprudence through the decisions of the EAT and Court of Appeal that are referred to.

[76]The respondent’s position is this. The test to be applied in considering whether to strike out under rule 37 (whether it be under limb (1)(b) or (c)) is, and has always been, whether a fair trial remains possible. That is not the same test as to whether there is a real risk that a fair trial is not possible, the Tribunal must be satisfied that it is more than a risk, it is a reality.

[77]In support of that being the test, the respondent relies upon the following. In the course of his judgment in Bolch v Chipman

[2004] IRLR 140

Burton P. says this: “Assuming there be a finding that the proceedings have been conducted scandalously, unreasonably or vexatiously, that is not the final question so far as leading on to an order that the notice of appearance must be struck out. The helpful and influential decision of the Employment Appeal Tribunal, per Lindsay P, in De Keyser Ltd v Wilson

[2001] IRLR 324

is directly in point. De Keyser makes it plain that there can be circumstances in which a finding can lead straight to a debarring order. Such an example,and we note paragraph 25 of Lindsay P’s judgment, is ‘wilful, deliberate or contumelious disobedience’ of the Order of a court. But in ordinary circumstances it is plain from Lindsay P’s judgment that what is required before there can be a strike out 20 of 39 of a notice of appearance or indeed an originating application is a conclusion as to whether a fair trial is or is not still possible. That decision is not only a decision binding on employment tribunals and persuasive before this tribunal, but it follows well established authority – in the High Court in the persuasive decision of Logicrose Ltd v Southend United Football Club Ltd by Millett J (as he then was), reported in The Times 5 March 1998, and in the Court of Appeal in Arrow Nominees Inc v Blackledge

; both of which authorities were recited by Lindsay P in the course of his judgment in De Keyser.”

[78]Bolch v Chipman and the cases cited by Burton P in his judgment were referred to in the judgment of the EAT in Weir Valves v Armitage

[2004] ICR 371

. In the course of his judgment, HHJ Richardson says this: “13 What are the principles on which the employment tribunal should act in deciding whether to strike out a case such as this, where there has been a breach of a direction? 14 Where the unreasonable conduct which the tribunal is considering involves no breach of a court order, the crucial and decisive question will generally be whether a fair trial of the issues is still possible: De Keyser v Wilson

[2001] IRLR 324

, 328 – 329 , paras 24 and 25, applying Logicrose Ltd v Southend United Football Club Ltd The Times 5 March 1998, and Arrow Nominees Inc v Blackledge

. De Keyser Ltd v Wilson was recently followed in Bolch v Chipman , para 55…..” 15. Even if a fair trial as a whole is not possible , the question of remedy must still be considered so as to ensure that the effect of a debarral order does not exceed what is proportionate : see Bolch v Chipman , para 55(3) and (4)…..”

[79]In Blockbuster Entertainment v James

Sedley L J summarised the law (then in respect of rule 18 of the 2004 rules, but this is immaterial) as follows, at para 5 of his judgment: “This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge

and of the EAT in De Keyser v Wilson

[2001] IRLR 324

, Bolch v Chipman

[2004] IRLR 140

and Weir Valves v Armitage

[2004] ICR 371

, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal.”

[80]In Abegaze v Shrewsbury College of Arts and Technology

[2010] IRLR 241

Elias LJ in the Court of Appeal , in th course of his judgment said: 21 of 39 “15.The relevant legal principles applicable to this case are not in dispute. In the case of a strike out application brought under para. (c), it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate. If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed. 16. These principles can be derived from Blockbuster Entertainments Ltd v James

(CA); Arrow Nominees v Blackledge

[2001] 2 BCLC 167

(CA); and Bolch v Chipman

[2004] IRLR 140

(EAT).”

[81]In Baber v The Royal Bank of Scotland PLC [

UKEAT/0301/15

and 0302/15] Simler, P. said this when considering the test for striking out under rule 37: “13. Even in a case where the impugned conduct consists of deliberate failures in relation, for example, to disclosure, the fundamental question for any Tribunal considering the sanction of a strike out is whether the parties’ conduct has rendered a fair trial impossible : see Bolch v Chipman

[2004] IRLR 140

EAT where, having cited De Keyser v Wilson

[2001] IRLR 324

EAT and Arrow Nominees Inc v Blackledge

[2000] EWCA Civ 200

, Burton P set out guidance for Tribunals when determining whether or not to make a strike out order, as follows:(i) There must be a finding that the party is in default of some kind, falling within Rule 37(1).

(ii) If so, consideration must be given to whether a fair trial is still possible and save in exceptional circumstances, if a fair trial remains possible, the case should be permitted to proceed.

(iii) Even if a fair trial is unachievable, consideration must be given to whether strike out is a proportionate sanction or whether there may be a lesser sanction that can be imposed.

(iv) If strike out is the only proportionate and fair course to take, reasons should be given why that is so. See also James v Blockbuster Entertainment Ltd

CA to similar effect , where Sedley LJ recognised the draconian nature of the strike out power and that it is not to be readily exercised. He held, even where the conditions for making a strike out order are fulfilled, it is necessary to consider whether the sanction is a proportionate response in the particular circumstances of the case, and the answer to that question must have regard to whether the claim can be tried because time remains in which orderly preparation can take place, or whether a fair trial cannot take place.”

[82]More recently, in Emuemukoro v Croma Vigilant (Scotland) Ltd.

[2022] ICR 327

the then President Choudhury J summed up the law , at paras. 9 and 10 of his 22 of 39 judgment. He recited and approved the dicta of Sedley LJ in Blockbuster Entertainment Ltd v James rehearsed above. He went on, however, to consider a contention made on behalf of the appealing respondent employer that the test to be applied was whether a fair trial was possible at all , as opposed to whether a fair trial was possible within the allocated trial window. He rejected that contention, with these observations, at paras 18 and 19 (Ms Hunt being counsel for the claimant, and Mr Kohanzad for the appealing respondent : “18 In my judgment, Ms Hunt’s submissions are to be preferred. There is nothing in any of the authorities providing support for Mr Kohanzad’s proposition that the question of whether a fair trial is possible is to be determined in absolute terms; that is to say by considering whether a fair trial is possible at all and not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. Where an application to strike out is considered on the first day of trial, it is clearly a highly relevant consideration as to whether a fair trial is possible within that trial window. In my judgment, where a party’s unreasonable conduct has resulted in a fair trial not being possible within that window, the power to strike out is triggered. Whether or not the power ought to be exercised would depend on whether or not it is proportionate to do so. 19 I do not accept Mr Kohanzad’s proposition that the power can only be triggered where a fair trial is rendered impossible in an absolute sense. That approach would not take account of all the factors that are relevant to a fair trial which the Court of Appeal in Arrow Nominees

[2000] 2BCLC 167

set out. These include, as I have already mentioned, the undue expenditure of time and money; the demands of other litigants; and the finite resources of the court. These are factors which are consistent with taking into account the overriding objective. If Mr Kohanzad’s proposition were correct, then these considerations would all be subordinated to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact to deal with the issues. In my judgment, the question of fairness in this context is not confined to that issue alone, albeit that it is an important one to take into account. It would almost always be possible to have a trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and costs for the other parties. However, it would clearly be inconsistent with the notion of fairness generally, and the overriding objective, if the fairness question had to be considered without regard to such matters.”

[83]Thus, in all of these authorities , there is no mention of the Tribunal needing to determine whether there was a risk that there could no longer be a fair hearing, rather the Tribunal must determine , one way or the other , whether there actually could be. That was still the approach of Coudhury P. in Emuemukoro v Croma Vigilant (Scotland) Ltd . Whilst he accepted that the claimant did not have to show in absolute terms that a fair trial could never take place, and it was enough to show that one could not take place within the allocated window. He did not speak of risk, he spoke of determination of whether the inability to have a fair hearing was made out.

[84]In support of the claimant’s argument, Mr O’Dempsey cites Logicrose Ltd v Southend United Football Club Ltd reported in The Times 5 March 1998, and the Court of Appeal decision in Arrow Nominees Inc v Blackledge

. 23 of 39 Logicrose contains the seeds of the claimant’s argument, developed in the judgment of the Court of Appeal in Arrow Nominees.

[85]Dealing first with Logicrose (cited in Bolch page 113 AB), the principle is stated to be “In his Lordship’s judgment an action ought to be dismissed or the defence struck out only in the most exceptional circumstances once the missing document had been produced and then only, if, despite its production, there remained a real risk that justice could not be done. That might be the case if it was no longer possible to remedy the consequences of the document’s suppression despite its production. It would not be right to drive a litigant from the judgment seat, without a determination of the issues, as a punishment for his conduct, how- ever deplorable, unless there was a real risk that the conduct would render further proceedings unsatisfactory.’

[86]This was cited with approval in Arrow Nominess, in the EWCA (see Bolch p119 authorities bundle).That test, submits Mr O’Dempsey, was a “real risk” test.

[87]That principle has never been narrowed by subsequent cases; Sedley LJ was using a shorthand explicitly back-referring to the detailed principles given in the earlier cases. De Keyser (EAT) at paragraph 24 also adopts the Logicrose test. Weir Valves (EAT) at para 14 (AB p8) explicitly refers to Logicrose and De Keyser.

[88]For the respondent, Mr Gorton submitted that the law is stated shortly, accurately and definitively by Elias LJ in the Court of Appeal in Abegaze v Shrewsbury College of Arts and Technology

[2010] IRLR 241

at para 15 which had all the relevant cases referred to it (Arrow Nominees, Bolch, Blockbuster etc). “In the case of a strike out application brought under r 37(i)(b) it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate. If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed”.

[89]The Tribunal takes Mr O’Dempsey’s point, that the earlier cases of Logicrose and Arrow Nominees do support a lesser test of “real risk”, but this has perhaps been lost in subsequent considerations of the test by the EAT and the Court of Appeal. The language of the later authorities is not consistent with the “real risk” approach, and in the Employment Tribunal context (for the other two cases were both Chancery cases under the CPR) the test that has actually been applied has been for some time now that of whether a fair trial remains possible , not whether there was a real risk that it was not.

[90]This Tribunal considers itself bound by the orthodoxy that has grown up on the authorities in this field of employment law, whether they be right or wrong , and will apply the test of whether a fair trial remains possible, not whether there is a risk that it does not remain possible. 24 of 39

[91]That said, as Emuemukoro v Croma Vigilant (Scotland) Ltd demonstrates, it is legitimate to examine whether a fair hearing within the allocated trial window remains possible. Is a fair hearing still possible?

[92]The Tribunal having found that the respondent has behaved in a manner which falls within rules 37(1)(b) and (c) , it must now go on to consider whether a fair trial is still possible. It must also do so in order to determine whether the claimant can rely upon rule 37(1)(e), which is in the clear terms that the Tribunal must decide whether it is no longer possible to have a fair hearing, and does not refer to risk.

[93]To do so the Tribunal must examine what aspects of the claimant’s case he contends have been adversely affected by the respondent’s conduct. The claimant’s case on these aspects is to be found in paras.18, 20 and 22 of his application of 13 May 2022, and 92 to 101 of Mr O’Dempsey’s Skeleton argument.

[94]The former reads: 18. The R’s failure during standard disclosure and subsequently to disclose has rendered a fair trial impossible because someone in R plainly selectively disclosed statements made to the IPCC(a) during ordinary disclosure

(b) at the stage of composing witness statements;

(d) during the C’s cross examination. It was obvious that the statements were relevant to the issues in the case relating to: i. C’s reasonable belief (at the least) ii. in the case of detriment 1.5, (i) obtaining a deposit order in respect of that detriment (as the IPCC statement of Tom Elliott revealed that there would be oral evidence given by Mr Elliot concerning what he was told as to the reason for his suspension which the ET would have to evaluate), and (ii) C’s preparation of his case (as Mr Elliott did not have his IPCC statement before him as an aide memoire when his statement was being compiled); iii. The R’s evidence of at least Kay Dennison, Peter Fahy, Simon Barraclough, Julian Flindle on behalf of the R, who had all given evidence to the IPCC; iv. The C’s own witness statement in preparing his statement without sight of what had been said by others to the IPCC v. The C’s witnesses’ evidence where they had previously given statements to the IPCC, i.e., Rick Mortimer and Tom Elliott vi. The state of knowledge of the disclosures made by the C of relevant actors on behalf of the R, including Russ Jackson, Ian Pilling, Peter Fahy and Simon Barraclough vii. The C’s identification of witnesses to call, which for example in light of the content of his statement to the IPCC may have included Paul Bailey. viii. Support provided to Cs case by documentary evidence in the form of the witness statements provided to the IPCC from persons such as Dave Law, Bob Ashton, Harry Kearney, the relatives of the victims of Harold Shipman. 25 of 39 And at para. 20: 20. Despite R being very conscious of seeking IPCC material from the C, the communication of the Reports to DCC Pilling (during the period C had his 2016 grievance) was not disclosed. This failure to disclose meant that when compiling his witness statement C could not refer to highly material evidence which goes to the motivation of Mr Pilling, and others in failing to ensure that the grievance was dealt with. A fair hearing within the current time allocation will not be possible in respect of the question of constructive dismissal and other elements of the claim. And para. 22: 22. In the light of R’s failure to disclose relevant material it is submitted that a fair trial of the whole is no longer possible: (a) C has not been able to refer to material whilst being cross examined which would have plainly supported the assertions he makes about the protected disclosures; (b) The ET has listened to extended cross examination based on partial disclosure of documents, and cannot be expected properly to assess credibility or other aspects of the C’s evidence in the light of that lack of proper disclosure at the correct time; (c) The failure to disclose will clearly have had a material impact on the ability of the C to prepare for the hearing over an extended time period, not least in the preparation of his witness statement. (d) The failure to disclose goes not only to the case relating to protected disclosures but also the cases concerning the reasons for dismissal and detrimental treatment of the claimant.

[95]In the Skeleton argument, the claimant argues as follows: Impact on R’s defence and applications available to C at the appropriate time93. If the materials from the IPCC witness statements had been available when disclosure was made, C would have applied for a strike out/deposit order in relation to the defence concerning protected disclosures 1.2, 1.3 as having no or little reasonable prospect of success. He would have had this material available to consider when making decisions about which PDs to continue to pursue or drop in order to save tribunal decision making time.

94. Had disclosure been made at the appropriate time the R’s position on the IPCC protected disclosures could not seriously have been maintained and this would have resulted in a very large time saving for the parties and the tribunal. R has never argued that it differentiates causally between different PDs. Hence had proper disclosure been made it is highly likely that either the defence would have been amended to accept that protected disclosures had been made or if R had not been willing to do that voluntarily a deposit order (with subsequent withdrawal of the defence on this point) would have been made or the case for R on these points would have been struck out as having no reasonable prospect of success. 26 of 39 Impact on C’s preparation of case Choice of C’s witnesses and preparation of witness statements 95. The absence of the materials has made a difference to the way in which C has had to prepare his witness statements; make choices about who to approach to give evidence in the case; and in respect of the content of their witness statements. The non-availability will have affected the points of reference he had in order to answer questions in cross examination.

[96]In relation to the witnesses, he might have wanted to call to support his case, C had considered calling Mr Bailey but decided not to do so. It was known that Mr Bailey had brought claims against the R but not that he had provided a statement to the IPCC in relation to the Poppy investigations. Had the contents of his IPCC statement been known C might well have called him. Other potential witnesses that might have been called (or sought) include Mr Kearney (WSB 141), Mr Law (WSB 93 & 107), and Jane Whitham (WSB 336). The tone of these witness statements when read with information that C believed they might be able to give would have given him more confidence to approach them to give evidence on these and other issues (for example Ms Whitham re the allegation of misogyny, ability as an SIO and what happened on OL Whitham as she was part of the team and had worked with the C on previous investigations). Impact on Trial C’s ability to respond to cross examination or re-examination on PDs and causation of detriments.

[97]C submits that in a case of this scale, where evidence of this nature has turned up after the C has given his evidence and has been challenged repeatedly over matters to which the undisclosed materials relate, it is impossible for the tribunal to assess that evidence with any confidence. The failure to disclose the IPCC material is not confined to the statements alone. Moreover, due to the delays that have affected this case (relating to R’s concerns over whether national security issues were raised, and the pandemic) C’s access to these witness statements clearly may have acted as an aide memoire for him when preparing the case.

[98]C had to deal with cross examination relating to the events in 2016 without having reference to the interactions of Mr Pilling with the IPCC at that time (which would of course have made it also clear that R had electronic copies of the IPCC materials including witness statements); the suggestion that nothing relevant was happening during the relevant period of the grievance was something to which C had to reply without access to materials which are capable of showing a motive for his treatment over the grievance and failure to give him the reasons for his removal as OIOC. In reality the materials now disclosed show that there was motive for the R to do nothing about C’s grievance. 27 of 39

[99]It is no answer to this point to say, “well, you have the material now and the tribunal can evaluate the evidence after this material is put to R’s witnesses”. This is insufficient for two reasons:(i) evaluation of evidence is well known to be a process influenced by many factors including demeanour in response to questions which in turn can be affected by the witness’s ability to reference documents in reply (or in reexamination);

(ii) there will be a material lengthening of the cross examination of the R’s witnesses to cover the material which will threaten completion within the trial allocation.

[100]It is difficult for the tribunal to assess the C’s evidence without him being able to refer to these interactions. Impact on assessing evidence

[101]The provision (not by R but by a third party) of the materials comes at a point which makes the evaluation of the C’s credibility on these protected disclosures, and the attempt to damage his credibility more generally, impossible to evaluate, as the tribunal has spent several weeks hearing cross examination of the C without his being able to refer to relevant material6; it has seen Mr Mortimer ambushed with his IPCC statement which was used to try to undermine his credibility by reference to inconsistencies between the IPCC statement and his witness statement. Of course, because it was not disclosed, he did not have it as an aide memoire; the same point can be made in relation to Mr Elliott.96. The respondent makes a number of points. It contends (if the Tribunal is against it on the disclosability of the material) that any impact upon the claimant’s case can be remedied by recalling the claimant and any other witnesses to whom the IPCC material can then be put. Secondly, the claimant , or his legal team, must bear some responsibility for this situation, having actual or constructive knowledge of the likely existence of this material since , at the latest October 2019. In terms of any alleged ambush of the claimant’s witnesses Elliott and Mortimer, this was not the responsibility of the respondent, but of the claimant, who failed adequately to proof them, or to enquire, if they were unsure, of the respondent or the IPCC, whether they had made witness statements to the IPCC. Discussion upon whether a fair trial is still possible, and if not, whether that has been caused by the respondent’s default.

97. Dealing (not quite in the order set out in the claimant’s Skeleton) first with the alleged impact upon the claimant’s preparation for the final hearing, and what the effect would have been of earlier disclosure of this material, it is noted that the only witness that the claimant says he would have called is Paul Bailey. It is said that he made a conscious decision not to do so. It is said that the claimant did not know that Paul Bailey had made a witness statement to the IPCC, and that , had the contents of such a statement been known the claimant “may well” have called him.

98. Whilst none of the Poppy reports expressly mention Paul Bailey as having been interviewed or having made a statement, that Paul Bailey may have made a witness statement to the IPCC was something that the Tribunal considers the claimant either 28 of 39 knew , or could easily have found out. The claimant says in his own statement to the IPCC (page MB 1446) that his belief that there was cronyism in the GMP was shared by others including the Black and Asian Police Association , of which Paul Bailey was the Chair.

99. In weighing up whether to call him, the claimant could easily have approached him (he has been represented in his Employment Tribunal claims by the same solicitors) to check if he had made an IPCC statement.

100. The claimant could indeed still seek to call him now. He has, in fact, attended the Tribunal as an observer on a number of days of the hearing, so is clearly available. The effect of the material non -disclosure of his witness statement is thus capable of mitigation, and does not pose a threat to a fair hearing, and certainly not one that is solely of the respondent’s making. 101. In respect of any other witnesses, it is noted that Mr O’Dempsey’s Skeleton at para. 96 refers to other potential witnesses that might have been called as “including” Harry Kearney, Dave Law and Jane Whitham. With respect, it is not sufficient for a party seeking to establish that a fair hearing is no longer possible to suggest that witnesses who cannot be called “include” certain persons, implying that there are others. If there are, they should be identified. As it is, the claimant was aware that Dave Law was being interviewed by the IPCC because they discussed the ineptitude of the Investigator at taking witness statements. He is expressly referenced as having been interviewed in Appendix 5 of Poppy 1.

[102]In terms of what Dave Law’s witness statement to the IPCC may have said, his presence at a number of crucial meetings at which the disposal of human tissue was discussed is documented in the Poppy Report, and specifically at paras . 286 to 290, his evidence about what was said in a meeting on 2 February 2011, and his opposition to the proposal to dispose of human tissue without informing family members, is summarised. Thus the claimant was, or should have been, well aware of Dave Law making a witness statement to the IPCC, and what it was likely to say. It is hard to see why he did not approach him to make a statement in these proceedings, which, of course, he may still do.

[103]In relation to Harry Kearney, that he was interviewed is also apparent from Appendix 5 to Poppy 1. It is correct that he too expresses views which are critical as to the respondent’s actions in connection with this issue. Quite what his evidence would add to that which is already before (and will doubtless now be added to) the Tribunal is unclear, but the claimant could still, if he felt it really necessary , seek to call him.

[104]Finally, in relation to Jane Whitham, she made a witness statement in Poppy 2. She is referenced as a person from whom a witness statement was obtained in para. 92 of the report, and in Appendix 8. She made a lengthy statement dealing with her specific involvement in Operation Nixon. The claimant does not say that he wishes to call her in relation to this evidence as such, but that had he seen her (and indeed the others’) IPCC witness statements, this “would have given him more confidence to approach” her , and other witnesses on these and other, unrelated, issues. 29 of 39

[105]That is, with respect , a very weak and far from compelling basis upon which to suggest that the non -disclosure of this material has prejudiced a fair trial, or had any real influence upon the claimant’s preparation of his evidence for this trial. Jane Whitham’s witness statement to the IPCC makes no reference to anything other than Operation Nixon, so it is unclear why its disclosure would have led to the claimant approaching her for other evidence outside the scope of Operation Nixon. Again, of course, he can approach her now, and apply for permission to adduce further evidence.

[106]In short, save perhaps for Paul Bailey, the claimant has failed to establish any credible basis upon which the Tribunal could be satisfied that the non – disclosure of this material has actually hindered his preparation for trial, in terms of witnesses. Even if it has, some of the responsibility for that must lie at his door, and, in any event, any such damage caused can still be remedied by applications to call additional witnesses.

[107]The Tribunal now turns to the next basis upon which it is contended that the non – availability of this material has rendered a fair trial impossible, and that is that the claimant’s evidence thus far, without access to this material, has been unfair. The Tribunal acknowledges that if the claimant was unable , in cross – examination , to give full and persuasive answers , particularly in relation to the sources of , and reasonableness of his belief in the disclosures he had made, to the extent that sight of the undisclosed material before completing his witness statements, or even before his cross – examination , his case may have been prejudiced by this default on the part of the respondent.

[108]That said, Mr O’Dempsey has cited no specific examples of when this may have occurred, and the Tribunal cannot, without extensive trawling through its notes and the transcripts, recall any such instances. The Tribunal , for these purposes, is prepared to accept that that this may have occurred, and that the claimant may well have been able better to answer some questions in cross – examination had he had access to the undisclosed IPCC material. In particular, there was cross – examination and Tribunal questioning on 24 January 2022 about DCC Pilling, and why the claimant considered that his treatment of him had been by reason of his having made any protected disclosure. That may have been an instance when, had he known that DCC Pilling had received the IPCC reports and witness statements, he may have mentioned that fact. Against that, however, DCC Pilling in his witness statement does say (at para. 19) that he had read the Poppy reports “when they were received by the Force”, but he is not specific about when this would have been.

[109]The Tribunal does not accept , however, that this makes it impossible for the Tribunal to evaluate the claimant’s evidence with any confidence , without his having been able to refer to this material. The submission is that access to these materials may have acted as an aide memoire for the claimant when preparing his case. That is so, but the Tribunal can easily take into account that this material was not available to the claimant in assessing his evidence.

[110]The simple and obvious answer to this submission, is that the claimant can now refer to that material. To the extent that his memory can be refreshed by reference to these materials , this can be done by means of a further witness statement, and/or 30 of 39 further re-examination. Any damage to his credibility or risk that his evidence may be seen as a poor account in some respects, can be remedied by reference to this material. To that extent the Tribunal does not accept the submission in para. 99(i) of the claimant’s Skeleton, the Tribunal is quite capable of evaluating evidence at various stages, and is generally wary of relying upon “demeanour”. If the claimant is now able to respond to questions that were put to him in cross – examination or by the Tribunal by reference to this material, there is still time and opportunity for him to do so.

[111]As to proposition (ii) in para. 99, in relation to the lengthening of cross – examination of the respondent’s witnesses, the Tribunal will revert to this matter below.

[112]In terms of those claimant’s witnesses whose evidence has already been taken, Elliott and Mortimer, whilst it was unfortunate that they were cross – examined upon their IPCC statements, the Tribunal agrees that , given the knowledge of the fact that they had each made such statements that the claimant had, or constructively had, any unfairness in relation to their evidence was not caused by the respondent, as much as by the fact that they were not adequately proofed. In any event, no objection was taken to the admission of this undisclosed material at those stages in the hearing.

[113]The Tribunal now turns to another proposition made by the claimant as to the effect of the non – disclosure of the IPCC witness statements, and of the email chain that has now been produced by the IOPC which reveals that this material, and therefore probably also the Poppy reports, were sent to DCC Pilling. The claimant’s contentions are set out in para. 20 of the Application document of 13 May 2022, and para.98 of his Skeleton.

[114]To be frank, and with no criticism of Mr O’Dempsey, from whom the Tribunal should have sought clarification during his oral submissions, the Tribunal had not fully appreciated that the claimant’s case is (or appears to be) that until the disclosure from the IOPC he did not know that the Poppy reports and the witness statements had been sent to DCC Pilling, the person to whom his grievance had been allocated. That the claimant would not initially know this from the respondent’s disclosure may seem to be rather borne out by the disclosure that was originally given of the communications between the IPCC and the respondent, and the IPCC and the claimant , to be found in File 16. Reference is made to the “Appropriate Authority”, but in the Poppy reports that is simply stated to be the GMP, and not any individual.

[115]Nothing in the correspondence in File 16 identifies DCC Pilling as the recipient of any of the Poppy materials. There is reference to DCC Hopkins, and it may be that DCC Pilling took over as the person within GMP as the “Appropriate Authority” upon DCC Hopkins becoming Chief Constable. In his witness statement DCC Pilling refers (paras. 15, 16 and 17) to Supt. Anderson and Supt. Egerton as being the respective “Appropriate Authority” in respect of the three Poppy operations. He makes no reference to receipt of the Poppy material in April 2016. That , if correct, may explain why the claimant was unaware until , at the earliest exchange of DCC Pilling’s witness statement , and then this later disclosure that DCC Pilling had received the Poppy material, or when. 31 of 39

[116]It is not, however, the whole story, as it overlooks, as it seems, with respect, both parties have, two documents in File 9, at pages 3095 and 3096/7. The former is an email from DCC Pilling to Laura Shuttleworth and John Egerton on 8 April 2016, to which he attaches the IPCC report into Poppy 3. The latter is then a response from John Egerton to DCC Pilling as to what action he proposes to take in relation to Julian Snowball.

[117]This material is not referenced in DCC Pilling’s witness statement, which will doubtless be the subject of cross – examination. It rather undermines the claimant’s case, if such it be, that it was not until the recent disclosure of the IPCC witness statements that he knew, or could have known, that DCC Pilling had received any Poppy reports.

[118]The question then is what effect has this had upon a fair hearing? The claimant’s argument is that had he known that DCC Pilling , the person whom he contends subjected him to the detriment of delaying the conclusion of his grievance, had received the Poppy materials , he could have dealt with this in his witness statement or cross – examination, as showing motive for his treatment. DCC Pilling’s evidence, however, does reveal that he had read the Poppy reports, even if he does not state in terms that they were sent to him. The Tribunal finds it hard to accept (what it thought was) the premise of this submission, that the claimant was unaware that DCC Pilling had personally received any Poppy material. But, assuming it is correct, or correct in respect of Poppy 1 and Poppy 2, in terms of the claimant’s own witness statements, the inclusion of any reference to these matters would not have been the inclusion of any relevant facts of which the claimant had direct knowledge, and needed to prove. They would be, at best, matters of comment or speculation by him, as to the possible motives that DCC Pilling may have had for his treatment of the claimant. The claimant does now have that material, and it can, and now doubtless will,(for he has yet to give evidence), be put to DCC Pilling. That the claimant was unable to mention it, for what it would be worth, in his own evidence is really of only marginal , if any , relevance. It will be a matter of weight to be given to his evidence whether he knew, and if he did not, why he did not, that DCC Pilling had received this material. There is thus no real prejudice to the claimant’s case , on this issue ,arising from this aspect of the late disclosure, and a fair hearing upon it remains possible.

[119]Another aspect that the claimant relies upon is a contention that , had this material been available, the claimant’s case in respect of PDs 1.2 and 1.3 would have been very strong, so as to entitle him to seek orders of either strike out, or for a deposit, in connection with the respondent’s response of denial that these two disclosures were protected disclosures. He submits that it is highly likely that the defence would have been amended to accept that protected disclosures had been made, or that a deposit order would have been made “voluntarily” or by the Tribunal.

[120]With respect the Tribunal cannot agree. The respondent has now also had opportunity to review the IPCC material in full, even if it had not done so previously. The Tribunal has, on several occasions, urged the parties to narrow the issues where at all possible. As late as March 2022 the Tribunal repeated its exhortations, especially in respect of some of the protected disclosures relied upon where the basis facts of 32 of 39 what had occurred were not in dispute, and had formed the basis of the IPCC recommendations for further action.

[121]The respondent has considered its position, and in a Note of 12 June 2022 has set out its position as to why it still feels unable to make concessions in respect of the claimant’s alleged protected disclosures, in general, and PD 1.2 in particular. The respondent may be right or wrong to do so, and the Tribunal will have to determine these issues, but this clearly demonstrates that even with the IPCC material fully considered, the respondent has not had any change of position in respect of concessions that any of the disclosures were protected. There would not, therefore have been any amendment of the response, or a voluntary change of position, nor, the Tribunal considers, would the respondent have agreed to a deposit order. That would have left the claimant with the option of seeking strike out or deposit orders, but the Tribunal is far from satisfied that any such orders would actually have been made.

[122]To some extent, however, that is by the by, the question for the Tribunal is whether a fair trial, in the sense of the final hearing, is still possible. To that extent what interlocutory orders may or may not have been made had this disclosure been given when it should have been, apart from being a highly speculative exercise, is not very germane to the issue of the hearing as it now proceeds. Had a deposit order been made (probably the best the claimant could have hoped for) the respondent would have been likely simply to have paid it, and to have pressed on. All this has little bearing, in the Tribunal’s view, upon whether a fair hearing remains possible. A fair hearing within the allocated trial window.

[123]As is clear from the recent case of Emuemukoro v Croma Vigilant (Scotland) Ltd.

[2022] ICR 327

, the question of whether a fair trial remains possible should not be considered in absolute terms, but should be approached from the point of view of the allocated trial window. That is apparent from para. 18 of the judgment : “ …..that is to say by considering whether a fair trial is possible at all and not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. Where an application to strike out is considered on the first day of trial, it is clearly a highly relevant consideration as to whether a fair trial is possible within that trial window. In my judgment, where a party’s unreasonable conduct has resulted in a fair trial not being possible within that window, the power to strike out is triggered. Whether or not the power ought to be exercised would depend on whether or not it is proportionate to do so.”

[124]It is right to note that the dicta of Coudhury J. are in the context of an application being made on the first day of the trial, where these considerations will be particularly apposite. The facts of that case , as ever, are instructive. The claimant had been dismissed by the respondent in late December 2017. He presented claims of unfair dismissal, and other allied claims in May 2018, which were listed for a 5 day hearing on 4 November 2019. The respondent failed to comply with case management orders, and so was not ready for the hearing to commence . It conceded that that and fair trial was not possible within the trial window, as its failure to give disclosure impacted upon the claimant’s case, as well as its own. If the claims were not struck 33 of 39 out, the only alternative was for the hearing to be postponed, with the prospect of it not being re-listed until late summer 2020. In those circumstances the EAT upheld the Tribunal’s decision to strike out the response.

[125]It would be wrong to assume that consideration of whether a fair trial can be held within the allocated trial window should only be a factor in applications made at the start of a listed final hearing, but it will be appreciated that the situation is a little different when, as here , the application has been made part way through a hearing.

[126]The Tribunal accepts that the late disclosure of this material will have an effect on the length of this hearing, so that it will not conclude within the allocated trial window. That window was 70 days, but that is going to be exceeded, and probably always was. Whilst the claimant seeks to blame the respondent for loss of the initial four weeks, with applications relating to rule 50 matters, and other issues, that is not the same as contending that this non – disclosure has occasioned this delay in completion of the hearing, or extension of the time needed for the hearing.

[127]Leaving aside this application, it is unclear just by how much the admission of (hopefully only some of) this further material, with concomitant re-calling of witnesses, calling of further witnesses , and any other consequences , will actually prolong this hearing. The Tribunal would expect it to be a matter of days, not weeks. Had the material been available earlier, the Tribunal would have expected the listing to have been extended accordingly to accommodate it, so the trial window ultimately may have ended up being around the same as it may now end up being.

[128]That is, it is appreciated, somewhat speculative, but the claimant has failed to advance anything other than generalisations as to the likely effect upon the length of the hearing, and the Tribunal does not consider this is as significant a factor as it may otherwise have been. The Tribunal considers that there is a significant distinction between cases where the breach complained of has delayed the start of, and necessitating the postponement of by many months, a final hearing and cases where that breach has prolonged the duration of the final hearing. In the latter case, as here, context is everything, and there is a further distinction to be drawn between cases where the breach significantly extends the time needed to complete the hearing, for example by doubling or tripling it. In this case, already listed for 70 days, the proportional extension occasioned by the breach is rather less, in the overall scheme of things.

[129]Whilst the effect upon the claimant’s mental health has been alluded to (para. 114 of the Skeleton) no medical evidence has been adduced, and nothing has been put before the Tribunal to suggest that there is any risk to the claimant’s health, or he will be unfit to participate in, any extended hearing .

[130]That is not to say that the extending of the time necessary now to complete the hearing is not to be totally discounted, but it must be examined in the context of the likely length of hearing necessary in any event had the disclosure been given when it should have been, and the overall delay that may now be occasioned in the conclusion of the hearing. 34 of 39

[131]This case was listed for 70 days, in one tranche between November 2021 and March 2022. It would not, for various reasons, have been completed within that timeframe, and is already listed for a further 5 weeks. It is now likely that more hearing time will be needed. It is, however, likely that it will be possible to conclude the hearing (if not the deliberations and judgment) before the anniversary of the start of the final hearing on 2 November 2021. Whilst not what the claimant wanted, and doubtless frustrating and upsetting for him, the Tribunal considers that it is still possible for the final hearing to be concluded within a reasonable time, in the context of these particularly complex and extensive claims.

[132]The Tribunal’s conclusion therefore, in the light of all the above, is that a fair trial remains possible, and the threshold condition for the Tribunal to consider striking out the response , or any part of it, has not been made.

[133]The Tribunal would add, for completeness, that if the Tribunal has applied the wrong test, and should have applied the “real risk” test, it would have come to the same conclusion. Whilst there is some risk that there cannot be a fair hearing, the Tribunal considers that this would be a very small, and hence not a real risk. Proportionality and the sanction of striking out.

[134]In these circumstances the Tribunal need go no further. It is clear, however, that even if the Tribunal did consider that a fair trial was no longer possible, it should be slow to impose the accepted Draconian sanction of striking out a claim or a response. As Mr Gorton submitted, citing Summers v Fairclough Homes [2012] 1 WLR, even when the claimant had acted dishonestly and fraudulently to increase the value of his claim, an order striking out the claim was not appropriate. Lord Clarke’s dicta on why strike out exists as a theoretical sanction, but is rarely (if ever) a proportionate sanction makes it clear that the draconian step of striking a claim out is always a last resort, a fortiori where to do so would deprive the claimant of a substantive right to which the court had held that he was entitled after a fair trial. It is very difficult indeed to think of circumstances in which such a conclusion would be proportionate. Such circumstances might, however, include a case where there had been a massive attempt to deceive the court but the award of damages would be very small. The test in every case must be what is just and proportionate. It seemed to the Supreme Court that it will only lie in the very exceptional case that it will be just and proportionate for the court to strike out an action after a trial.

[135]He cited also Masood v Zahoor

[2010] 1 WLR 746

and Ul-Haq v Shah [2010] 1 WLR as examples of cases where the conduct in question had been extreme, but the Court refused to strike out the claims. In the employment context, he cited Blockbuster Entertainment Ltd. v James

referred to above, where, after a recital of the general principles, Sedley LJ said this: “19. In deciding this, the tribunal needs to have in mind that the application before it is one that was made, in effect, on the opening day of the six days that had been set aside for trying the substantive case. The reasons why this happened are on record and can be recanvassed; but it takes something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial. 35 of 39 The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise well-founded one, made on the eve or the morning of the hearing.20. It is common ground that, in addition to fulfilling the requirements outlined in paragraph 5 above, striking out must be a proportionate measure. The employment tribunal in the present case held no more than that, in the light of their findings and conclusions, striking out was ’the only proportionate and fair course to take'. This aspect of their determination plays no part in Mr James's grounds of appeal and accordingly plays no part in this court's decision. But if it arises again at the remitted hearing, the tribunal will need to take a less laconic and more structured approach to it than is apparent in the determination before us.

21. It is not only by reason of the Convention right to a fair hearing vouchsafed by Article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Ke Jokai Tea Holdings [19921 1 WI.R 1196, especially at 1202EII. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike out power exists. The answer has to take into account the fact - if it is a fact - that the tribunal is ready to try the claims; or - as the case may be - that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can |w accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of 1he existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.”

[136]That is the approach we have taken. Even if we were wrong on the test to be applied, and only a real risk that a fair trial cannot be held need be , and has been, shown, we would still have to consider the proportionality of striking out the response, or any parts of it.

[137]In terms of striking out the whole of the response, that would not, on any view, be proportionate. The default in question, which relates to the non – disclosure of the IPCC material held by the respondent, relates, on the claimant’s own case, to only some of the claimant’s claims. The main focus has been on PD1.2 and 1.3, but Mr O’Dempsey’s submissions have sought also to embrace PD1.8, PD2.1, and PD 3.1. In terms of detriments, D1.5, in relation to Tom Elliott is engaged, but he also seeks to bring in D2.18 to 2.22, and the constructive dismissal. 36 of 39

[138]Pausing there, PD1.8 does not relate to the non – disclosure of the IPCC material, as far as the Tribunal can see. This relates instead to the alleged non – disclosure of warrants in connection with the Dale Cregan case.

[139]Given the limited and discrete failure of disclosure in respect of the IPCC materials, strike out of the whole of the respondent’s response was never likely to have been a propionate response, and would have indeed looked like the penalisation of a defaulting party , which the caselaw makes abundantly clear is not the purpose of strike outs.

[140]In terms of striking out those parts of the response to which the material defaults do relate, we would not, even if we were wrong on the fair trial issue, consider that a proportionate response. The effects of the defaults are still capable of remedy, their effects upon the claimant’s case and his preparation for trial are nothing like as serious as has been contended for, and other sanctions or applications can be put in place to put the claimant into the position, or more or less the position, he should have been in had the disclosure been given when it should have been. That some responsibility for failing to raise defaults that were , or should have been, obvious to the claimant , who has been legally represented throughout, at any time before the commencement of the hearing (or even after it, after the first deployment of any IPCC witness statements in the course of the hearing) is another factor that we take into account in determining the proportionality of the sanction of striking out , in all the circumstances.

[141]In approaching this matter, the Tribunal has taken into account a number of factors as to the extent to which it can accept that the respondent’s conduct has led to the risk, or rather the likelihood, that there cannot now be a fair hearing. In assessing the seriousness of, and consequences of, the respondent’s conduct, however, the Tribunal bears in mind that the overriding objective applies to both parties. Its aim is to get parties to concentrate on constructive and proportionate preparation for the final hearing. Its purpose, when introduced into all civil litigation, was to discourage interlocutory procedural applications, and constant adversarial challenges before the Tribunal to the other side’s conduct of the proceedings. In short , its focus was to stop parties engaging in costly and time consuming satellite litigation, and to “get on with it”.

[142]To that extent we consider that it is germane to consider the conduct of the claimant in these matters. A number of points arise. Firstly, and most obviously, the claimant , himself a former Police officer, is represented by a major firm of lawyers, who have instructed top employment counsel. This application has arisen primarily, because, as we have found, the respondent breached the Tribunal’s orders for disclosure, and thereby acted unreasonably , in not disclosing to the claimant the IPCC witness statements that it had received. We have determined above, however, that this was not deliberate or contumelious, but was an error.

[143]The claimant , however, seeks to ascribe any difficulties in the conduct of his case that may arise in consequence of that breach solely to the respondent. We do not consider that he can do so. 37 of 39

[144]Firstly, as our findings above show, that witness statements had been made to the IPCC, and hence were likely to have been provided to the respondent was apparent from the three Poppy reports themselves. Whilst a consistent approach was not taken in each report, and no specific reference was made to, for example the statements of Paul Bailey, Thomas Elliott and Kieran Murray , there was to most of the others , and the likely existence of such statements was apparent from the disclosed Reports themselves.

[145]Secondly, the claimant knew that witness statements were being taken by the IPCC. He had made one, but he was also aware that others would be doing so, as, for example, he told the IPCC whom to contact for this purpose. He had a discussion with Dave Law about how poorly the person taking his statement had carried out this task. In the updates he received from the IPCC in 2015 he was informed that they were taking witness statements from relevant persons (see pages MB 5788, 5790 and 5792).

[146]Thirdly, the respondent in any event, in October 2019, disclosed four witness statements (two each from Joanne Rawlinson and Martin Bottomley) which had clearly been made to the IPCC. That there may also be other statements , particularly in Poppy 2 , where Appendix 8 sets out that some 30 witnesses were interviewed, and Poppy 1, where Appendix 5 sets out that 19 witnesses were interviewed, including Dave Law, Joanne Rawlinson and Martin Bottomley, was or should have been immediately obvious from the Reports and that disclosure.

[147]The claimant , however, made no enquiry, and did not seek any further disclosure, relying instead, it seems upon the respondent, of which he was already deeply distrustful, to have complied with its disclosure obligations.

[148]Further, he prepared witness statements for, and called two witnesses, Tom Elliott, and Mortimer , both of whom had made witness statements for the IPCC investigations. It is appreciated that the former was not expressly referred to in any of the three Poppy reports, but the latter was clearly identified as having been interviewed in Poppy 2.

[149]These are all matters that the Tribunal considers are legitimate to take into account in the exercise of its discretion, and in assessing whether a fair trial is still possible, and if not, the extent to which the respondent is to be held responsible for that, and as to the proportionality of making any strike out order in all these circumstances. Timing issues.

[150]The Tribunal did raise with the claimant the issue of when the decision to make this application was made, and whether it should have been made any earlier that it was . It is grateful to the claimant’s solicitors for providing by email the information as to the timing of the application, and when it was first mooted, following the disclosure from the IOPC in March 2022. We note what they say, and do not consider that any delay on the part of the claimant in making this application (in that period) is germane to our decision, and has not been taken into account in making it. 38 of 39 The resumed hearing – applications.

[151]The Tribunal appreciates that the parties will need time to consider this judgment, and the steps than now need to be taken. It is hoped that the hearing can, after dealing with any applications (but not any costs applications – the Tribunal is , provisionally, not minded to determine any such applications until the conclusion of the whole case) arising from this application, resume with the respondent’s witness evidence before the next adjournment until July. More time will be required, of course, after that next session of hearings , and once a revised ELH is available, the Tribunal will look to further list the hearing as soon as possible.

[1]The claimant made no protected disclosures, and his claims are accordingly dismissed.

[2]Whilst unnecessary in the light of the Tribunal’s first finding, the Tribunal nonetheless finds that the claimant was not, in any event, constructively dismissed.

[1]By a claim form presented on 12 May 2014 the claimant , who was at the time a serving Police officer, brought claims of whistleblowing detriment arising from protected disclosures that he had made to the Independent Police Complaints Commission (“the IPCC”) on 31 January 2014. On 2 September 2016 the claimant presented the second claim, case no. 2402865/2016. The claims are of protected disclosure detriments, and 1 of 367 automatically unfair dismissal for having made a protected disclosure, arising from the same disclosures.

[2]It is not proposed to rehearse the lengthy procedural history of the claims, and their case management in this judgment, the salient parts are set out in Annexe A to it. The parties agreed to provide a recording and transcription service for the hearing , for which the Tribunal is grateful. That service, however, is a service to the parties, and has not been provided by the Tribunal, although its output has been provided to the Tribunal . The transcription, accordingly, of the proceedings is not part of the public record of them, save where any part of it has been expressly referred to in the evidence , submissions or this judgment. Private hearings were also recorded and transcribed, although not always in their entirety. There were various applications made in the course of the hearing, upon which the Tribunal ruled, and made orders or gave judgment. Those orders and judgments, and the reasons for them, were given orally, or were promulgated in writing , at or around the time, and will not be rehearsed again in this judgment.

[3]It is appreciated that this reserved judgment is being promulgated over two years after the start of the final hearing. The Tribunal regrets this, but the procedural history and Annexe B should explain , or largely explain, the reasons for this. Further, whilst the Tribunal was (having reverted back to the parties on a specific issue in November 2023) ready to promulgate its judgment in early December, it was hesitant about doing this so close to the Christmas and New Year break, given how that was likely to impact upon the parties’ time and ability to read and digest the judgment, take legal advice and any other necessary further steps. The claimant was agreeable to this further delay, but the respondent suggested that the Tribunal could release a brief letter stating , in summary, the outcomes. The claimant resisted this, and the Tribunal considered that it would not be appropriate. Whilst the Tribunal was prepared to send the judgment to the parties on 8 January 2024, the claimant , who had a pre-booked holiday in January 2024, preferred that it await his return from that holiday, hence it has not been sent to the parties until the date at the end of this judgment. The Tribunal needed a little more time for the whole Panel to proof read the draft, and this final reserved judgment is now promulgated with the Tribunal’s gratitude to the parties for their considerable patience. The scheme of this judgment.

[4]Given the complexity of the claims, the issues, and the evidence, this judgment will be broken down into Chapters, with the aim of providing some clarity and concision . The first Chapter will be introductory, with some basic background to the claims and relevant information about the final hearing. It will also provide some guidance to the audience for this Reserved Judgment as to what to expect from it. The second Chapter will set out the Tribunal’s findings of fact which are relevant as background and context for an examination of claims made, and determination of the issues that they raise. These are largely uncontroversial facts, which set out the overall chronology of the events which give rise to the claims. The third Chapter will set out the Tribunal’s approach to the determination of the issue of whether the claimant made any protected disclosures. That will involve a consideration of how the Tribunal should approach the disclosures , in terms of each party’s pleaded case, and the List of Issues, and what legal tests to apply. In the fourth Chapter the Tribunal will then go on to make its findings 2 of 367 of fact relevant to the particular issues relating to the individual disclosures , and will then determine whether the claimant made any protected disclosures, and which of the claimed protected disclosures are made out by the claimant.

[5]The fifth Chapter will address the Tribunal’s approach to the issue of whether the claimant was subjected to any detriments by the respondent on the grounds that the claimant had made any protected disclosures.

[6]The sixth Chapter will relate to the claimant’s claim of constructive automatically unfair dismissal, and will set out the Tribunal’s findings of fact as to whether the claimant was constructively dismissed, and, if so, whether that was for the automatically unfair reason that he had made any protected disclosure. The Tribunal will then determine that claim. The seventh Chapter will contain some general observations of the Tribunal upon the proceedings generally. Finally, taking its lead from the claimant, and to help to navigate the numerous paragraphs and sub-paragraphs that this judgment will require, the Tribunal will enumerate the Chapters with roman numerals (in different font) , so that the paragraphs set out under each Chapter can more readily be distinguished, and the numeration of paragraphs will restart with each new Chapter. It is hoped this will assist the reader.

[7]To further assist navigation, the Tribunal can provide this Index to the judgment which should direct readers to specific topics for ease of access. Chapter I: a). The claims generally and the final hearing: Pages 6 to 8 b).Adjustments for the claimant : Pages 8 to 12 c).The Tribunal’s task and what it will decide: Pages 12 to 13 Chapter II. – Background core facts. a.)Abbreviations. Pages 13 to 15 b).The background facts and chronology: i)The claimant’s career and other events within GMP up until June 2012. Pages 15 to 18 ii)The claimant’s grievances, further promotion applications, and involvement of the PCC. Pages 18 to 35 iii)The claimant’s disclosures to the IPCC. Pages 35 to 47 iv).The IPCC investigation outcomes. Pages 47 to 50 3 of 367 Chapter III: The protected disclosures – the Tribunal’s approach. a.The protected disclosures relied upon – summary. Pages 50 to 52 b.) Discussion of the Tribunal’s approach to the determination of the protected i)Grouping. Pages 53 to 54 ii).The Law – protected disclosures. Pages 54 to 56 iii) The Tribunal’s approach to determining whether the claimant made protected Pages 56 to 60 iv).What should the Tribunal consider? Pages 60 to 64 v).Discussion of the scope of the Tribunal’s consideration of what information was conveyed. Pages 64 to 70 vi).The effect of the List of Issues. Pages 70 to 73 vii).The tests to be applied in determining whether any disclosure was a protected Pages 73 to 77 viii).The claimant’s submissions on Korashi. Pages 77 to 79 ix).Effect of lack of pleading of want of reasonable belief. Pages 79 to 80 x).The public interest test. Pages 81 to 82 xi).Meaning of “belief”. Page 82 Chapter IV: Findings upon the disclosures. i)The claimant’s evidence and credibility issues. Pages 82 to 90 ii)The Tribunal’s general approach to the protected disclosures. 4 of 367 1.Protected disclosure1.1 Pages 90 to 113 2.Protected disclosure 1.11 Pages 113 to 120 3.Protected disclosure

1.2 Pages 120 to 146 4. Protected disclosure

1.3 Pages 146 to 158 5.Protected disclosure

1.4 Pages 158 to 162 6. Protected disclosure

1.5 Pages 162 to 180 7.Protected disclosure

1.6 Pages 180 to 195 8.Protected disclosure 1.8 Pages 195 to 205 9.Protected disclosure 1.9 Pages 205 to 217

[10]Protected disclosure 1.12 Pages 217 to 221 11.Protected disclosure 1.13 Pages 221 to 232

[12]Protected disclosure3.1 Pages 232 to 236 13.Protected disclosure

3.2 Pages 236 to 247 Protected disclosure 1.16 Pages 247 to 255 Protected disclosure 3.4 Pages 255 to 263 Protected disclosure 3.5 Pages 263 to 273 Protected disclosure : 1.14 Pages 273 to 287 Protected disclosure 2.1 Pages 287 to 303

[19]Protected disclosure 3.3 Pages 304 to 315 Postscript on disclosures Pages 315 to 317 Chapter V: The detriment claims. Pages 317 to 321 Chapter VI : The constructive dismissal claim. a).Discussion and findings: was the claimant constructively dismissed? Pages 322 to 323 5 of 367 b).The relevant assumed facts. Pages 323 to 329 c).The relevant facts as determined by the Tribunal on this issue. Pages 329 to 337 d).The Law – constructive dismissal. Pages 337 to 340 e).Discussion and findings: was the claimant constructively dismissed? Pages 340 to 342 f).The retirement was not in response to the alleged fundamental breach, but would have occurred in any event. Pages 342 to 343 g).The Last Straw. Pages 343 to 348 h).Affiirmation. Pages 348 to 352 Chapter VII: Postscript : the Tribunal’s observations. Pages 352 to 354 Chapter I. a).The claims generally and the final hearing. I. 1. The final hearing commenced on 1 November 2021, but was taken up with applications and case management, so no evidence was heard until 2 December 2021. The hearing was concluded with the end of the parties’ closing submissions on 16 May 2023. The hearing was not continuous, and considerably overran the original estimate of 70 days. This was for a variety of reasons, including an application in relation to rule 50, various other applications between the parties which arose in the course of the hearing, and non – availability of parties , witnesses, or representatives, and/or the Tribunal , sometimes by reason of or connected to COVID – 19, and other issues. I. 2. It is not proposed to set out the precise history of the hearing here, nor of the various witnesses who gave evidence, and when they did so. Those details are set out in Annexe B hereto. Witnesses who gave live evidence for the claimant were : The claimant ; Officer 28 , Carl Jones, Officer N , Graham Brock , Kevin Dolan, Tom Elliott, Richard Mortimer . For the respondent they were: 6 of 367 Simon Barraclough , Kay Dennison, Neil Evans , Julian Flindle , Denise Hill , Caroline Jones (formerly Ball) , Anthony Mole , Ian Palmer , Jamie Pearson ,Jonathon Rush, Zoe Sheard, Stephen Keeley , Nicola Spragg , Russ Jackson, Paul Savill ,Sir Peter Fahy, Debbie Ford, Ian Pilling , and Martin Bottomley. Additionally, the claimant adduced witness statements from, but did not call: Simon Akker and Shaun Donnellan whose written evidence was agreed, and Julie Barnes , Maggie Oliver, and David Sutcliffe whose witness statements were admitted, but not agreed. The respondent adduced witness statements from, but did not call: Scott Sloan , whose witness statement was agreed, and Paul Parker, who was not called, and whose statement was not agreed, but was admitted. I. 3. At the conclusion of the originally listed period of the hearing on 10 March 2022, the Tribunal postponed the hearing, to be resumed for an initial period of two weeks on 13 June 2022, and a further three weeks commencing in July 2022. For various reasons the evidence was not concluded until 1 December 2022, and the parties then made Submissions. These were written, and supplemented by 3 days of oral submissions. the respondent’s Final Submissions are dated 24 February 2023, the claimant’s Closing Submissions undated, the respondent’s Responsive Submissions are dated 12 March 2023, and the claimant’s Response to the Respondent’s Closing Submissions are also undated. Whilst the Tribunal appreciates that each parties’ written Submissions were co-authored by the Juniors and their Leaders, the Tribunal hopes that the former will forgive it for referring to them only by reference to the names of their Leaders. I. 4. These claims were first commenced (effectively, as there was a prior unsuccessful attempt by the claimant when acting in person) on 29 July 2014, with the second claim form being presented on 2 September 2016. There was then amendment of that claim. The claims have been extensively case managed, and the final hearing has been postponed on a number of occasions. After much revision of case management timetables, and extensions of time for steps such as exchange of witness statements, the final hearing, listed for 70 days , finally commenced on 1 November 2021. I. 5. The Tribunal has been provided with a hearing bundle (some parts of which are for hearings to be held in private) of some 25 lever arch files, running to some 10,000 plus pages. The claimant has given evidence (being recalled at the end of the March 2022 sitting), as have all of his live witnesses, and the respondent has called a large number of witnesses, as set out in Annexe B. I. 6. By way of summary, the claimant’s claims are of protected disclosure detriment, and automatically unfair constructive dismissal by reason of his having made protected disclosures. He relies now, having withdrawn some, upon 19 protected disclosures, and claims that he was subjected to some 31 alleged detriments. 7 of 367 I. 7. All the protected disclosures relied upon were made at the same time, in January 2014, to the IPCC (as it was then, now the Independent Office for Police Complaints, the IOPC), in three documents referred to as PDR1, PDR2 and PDR3. I. 8. In his (the Tribunal will treat the respondent as a person, not an entity, although as the Chief Constable he is sued solely in his capacity as Head of the GMP, and the incumbent has changed three times since the commencement of the claims) responses, which were consolidated in the Consolidated Grounds of Resistance dated 21 March 2017 , the respondent makes no admissions as to the claimant having made any protected disclosures , the fact of his communication of information to the IPCC being admitted (save for two PDs) , but no more. He denies any detriment or causation thereof by any protected disclosures that may be proved, denies that the claimant was constructively dismissed, or , if he was, that this was because he had made any protected disclosures. I. 9. In terms of documents , there were some 19 lever arch files of open documents produced to the Tribunal, but this was added to during the hearing. Because of the sensitivity of some of the material for ongoing criminal investigations, or for Police methods and tactics generally (which had at one point led to the claims potentially being heard as national security cases in London), some of the evidence was heard in private, and material for use in such parts of the hearing was in closed bundles, of which there were 6. It was possible, however, during the progress of the hearing for the amount of redaction and exclusion from public accessibility to be considerably reduced , which the respondent carried out. There were three lever arch files of witness statements (for use in open and closed sessions). b).Adjustments for the claimant and history of the judgment. I 10. The claimant has mental health issues, and the Tribunal was asked to make adjustments for him during the course of the hearing. Whilst not part of his claims that he is a person with a disability, the Tribunal has been asked to make reasonable adjustments on the basis that he is. To that end the claimant , on 21 February 2022, produced to the Tribunal two Psychiatric Reports from Dr J K Appleford, a Consultant Psychiatrist, the first dated 11 October 2021,the second dated 18 January 2022. I 11. The status of these documents is not totally clear, but it was made clear that they were not agreed by the respondent. They have not been admitted into the bundle. The Tribunal , accordingly , considers that they can only have limited weight, and they have been accepted at face value for the purposes of case managing the hearing, and ensuring that the claimant , regardless of whether his condition does or does not amount to a disability under the Equality Act 2010, had a fair hearing. I 12. A number of “adjustments” (for that is the term used, regardless of whether, strictly, they were) were made for the claimant during the hearing. From the outset the Tribunal was asked for, and granted, regular breaks for consultation by Mr O’Demspey with the claimant . A “buffer” day was sought , and the claimant’s cross – examination began on 2 December 2021. The claimant asked for , and was granted, a day of not giving evidence on 15 December 2021, as he had not slept for two nights. There was 8 of 367 an early adjournment on 17 December 2021, when the claimant became upset during cross – examination. I 13. The claimant also contracted COVID during the hearing, and no cross – examination of him took place on 10 January 2022 and 11 January 2022. I 14. In a private preliminary hearing on 13 January 2022 the Tribunal raised with the claimant’s counsel the absence of medical evidence, in the light of the need for these adjustments , and also the claimant’s answers to questions in cross – examination , in which he seemed to suggest that he may be seeking to rely upon his mental health in respect of his ability to prepare his case, and prepare for cross – examination. The concern was expressed by the Tribunal that if it was going to be argued that it should take the claimant’s mental health into account when assessing his evidence, some medical evidence would be required. I 15. A further preliminary hearing was held on 19 January 2022, in which the claimant produced the two Psychiatric Reports from Dr Appleford, and 2 pages of GP notes. The latter were subsequently admitted into the Bundle (pages 6639 and 6640), but the former never have been. At a further preliminary hearing on 24 January 2022 , after the claimant’s evidence had (at that time) not concluded, but before the respondent was to call his first witness Nicola Spragg, Mr O’Dempsey told the Tribunal of the level of distress that the claimant had experienced when giving his evidence, and how he would need more time to give his counsel instructions before the cross – examination was commenced. No application was made at that time for the formal admission of the Psychiatric Reports, and, indeed, if they were to be admitted, Mr O’Dempsey indicated that an application for an order under rule 50 would be made. The issue of the deployment or otherwise of these Reports was discussed again on 28 January 2022, when Mr O’Dempsey drew a distinction between the GP records, and the Reports. As to the first of the Reports , he said that this had relevance to the question of compensation. That is indeed so, as in it , at para. 1.2, Dr Appleford quotes from the letter of instruction from the claimant’s solicitors dated 18 August 2021: “We are seeking an opinion in relation to both the cause and extent of our client’s psychological condition and in particular and the impact upon his earning capacity. As already indicated, this is an urgent request as, whilst we require the report primarily in order to assist our client with his application for an Injury Award, it is anticipated that your responses will also assist with his Employment Tribunal claim.” The Tribunal’s understanding of an “Injury Award” is that this is an entirely separate and extra – judicial form of compensation scheme, probably under the Police Pensions Regulations, and other Regulations (“Injury Benefit”) , whereby a Police officer injured with a permanently disabling condition on duty may apply for a monetary award. Indeed, the ensuing 6 pages of the instructions to the doctor set out the relevant tests that would be applied for this purpose, and invite his opinion as to whether the claimant satisfies them. In summary, the opinion of Dr. Appleford was that the claimant would indeed satisfy the requirements of the Injury Award scheme. 9 of 367 I 16. In the course of the Report, the doctor sets out his opinion on the claimant’s mental health and its effects upon him. That was, of course, predominantly in the context of his ability to continue to carry out the duties of a Police officer. The Report does, however, touch upon a number of matters which are not confined to the duties of a Police officer, such as (para. 20.39 of the Report) : ▪ the ability to sit for reasonable periods, to write, read, use the telephone and to use (or learn to use) IT;• the ability to make decisions and report situations to others;

• the ability to evaluate information and to record details;

• the ability to understand, retain and explain facts and procedures. I 17. At para.20.40 he says this: “In my opinion, and on balance of probabilities, Mr Jackson remains unwell. His account, as described in the body of this report, is that he remains depressed, lacks interest, enjoyment, and motivation, has memory and concentration difficulties, has reduced energy, and has become socially withdrawn. He lacks confidence in his abilities. He has significant and disabling anxiety. He is anxious and avoidant of contact with Police Officers.” I 18. The issue of the status of these Reports was discussed again on 28 February 2022, when Mr O’Dempsey again said that the Reports were not being deployed in evidence at that stage. In terms of the status of this Report, it was made clear that the respondent did not agree it, nor that it should go before us. It did, of course, and the question therefore is how we should treat it. Our view was that we should treat it as an unagreed document , to which we could give some weight as to the adjustments that the Tribunal should make to accommodate any difficulties that the claimant may experience in the hearing , as a result of his mental health, regardless of causation of his condition, but not whether the condition did or did not amount to a disability. It could also assist us in conjunction with our own observations, and experience of the claimant during the course of the hearing. That , however, relates to the first Report. We will return to the second in our discussion of the claimant’s testimony below. I 19. To continue with examples of the adjustments that were made , on 22 February 2022 there was an adjournment of a day because the claimant was too ill (i.e mentally ill) to give instructions for cross – examination. An application was made, and granted , that the Tribunal allowed a full day before commencing the cross – examination of Martin Bottomley , after the conclusion of the cross – examination of Simon Barraclough. I 20. On 23 June 2022 the claimant left the Tribunal building with what was described as a massive panic attack, and was unable to give instructions. On 11 July 2022 the claimant requested that the hearing day did not extend beyond 16.30, which was agreed. On 29 July 2022 , during the cross – examination of Supt. Savill, the claimant was unable to attend the Tribunal , either in person, or even remotely, for the second time. This caused difficulty in Mr O’Demspey getting instructions, with the result that the 10 of 367 cross – examination could not be concluded, and Supt. Savill’s cross – examination had to be resumed in September 2022. I 21. The claimant on 11 November 2022 again could not attend in person, or remotely, having gone missing from home, to the understandable consternation of his wife who had informed his solicitor about this. This was, it should be noted, after the disclosure of a third notebook by Martin Bottomley. The Tribunal adjourned, and in due course was asked , on 21 November 2022 for an additional day for cross – examination of Martin Bottomley. This was granted, for 25 November 2022, but the claimant on 22 November 2022 informed the Tribunal that he had overlooked a family commitment , so would not be available to see or hear the evidence to be given on 25 November 2022. The Tribunal declined to change its decision, and the further evidence was heard on 25 November 2022. Whilst the transcript of that evidence was made available to the claimant over that weekend, he did not read it, so on 28 November 2022 the Tribunal was faced with an application from Mr O’Dempsey for a further delay because the claimant had not been able to give him instructions. The Tribunal determined that the cross – examination should continue, with the proviso that Martin Bottomley could be recalled by CVP if necessary. This, it should be noted, was not so much an accommodation that was being sought by the claimant because of any medical issue, but was predominantly a domestic issue. I 22. That is not an exhaustive list of all the adjustments that were made, and generally whenever additional time was sought by the claimant , it was granted. I 23. It is perhaps opportune at this juncture to correct some assertions that have been made as to the length of the claimant’s cross – examination. This has been put , in some documents, at 31 days, or 6 weeks. The Tribunal does not agree this calculation. Its calculation is 21 (or thereabouts) days. The last (subject to a brief recall) full day of the claimant’s cross – examination was 31 January 2022, day 24 of the transcribed hearing when evidence was taken, but the claimant did not give evidence on 10 and 11 January 2022 due to illness, Nicola Spragg gave evidence on 26 January 2022, and the claimant’s evidence was concluded on 1 February 2022. He may have been “in the witness box” , of course, for longer, but his actual time under cross – examination was less than 31 days. I 24. In terms of the length of time the hearing took, whilst some complaint is made as to the length of the claimant’s cross – examination, neither side stuck to the estimates for cross – examination that had been provided in November 2021 at the start of the hearing. By way of example, the estimate for cross – examination of the claimant was 15 days, but ran for 21.5 days, that for Martin Bottomley was for 4 days at most, but ran for 8.5 days, the estimate for Sir Peter Fahy was 1 day at most, but took 2.5 days, Russ Jackson was estimated for 5 days, but took 11, and the evidence of Ian Pilling and Paul Savill ran in each case for around twice the estimates provided. This is not to be critical, and was affected by a number of factors, one of which was continuing (and late) disclosure, and another was the delays in obtaining instructions from the claimant for the reasons discussed above. The Tribunal must also accept some responsibility for this, but given representation by senior employment counsel , and general acceptance by both sides that all the evidence heard needed to be heard, there was little more that 11 of 367 the Tribunal feels could have been done (given the claims and the issues) to reduce the time that this hearing has taken. I. 25. The List of Issues, despite the considerable previous case management that had bene carried out, was not agreed until 1 December 2021. As will be seen, there are issues as to what the parties may or may not be free to argue as a result of that List of Issues . The parties made substantial written closing submissions , to which they spoke, and the hearing concluded on 16 May 2023. The Tribunal’s deliberations then commenced, but were perforce non – continuous, due to, firstly , the fact that the Panel had not expected still to be engaged upon this case that long after it had commenced, with consequent limitations upon the availability of the Panel. There were also other factors (including industrial action affecting access to the Tribunal, and health issues of various parties) , which has contributed to the delay in its promulgation. As will be seen below, the Tribunal considered it prudent to seek the parties further representations upon a crucial aspect of how it should approach its task, and these were sought and provided in November 2023. The parties are thanked for their patience. c).The Tribunal’s task, and what it will decide. I. 26. Whilst the parties doubtless are fully aware of the nature of the litigation process in the Employment Tribunal, and the issues that it will decide, the wider audience for this judgment may not be. The Tribunal is aware that there has been a considerable amount of interest by external parties , and the general public , in this case, and many of them have, from time to time, observed the hearings, or parts of them. Some have a particular personal interest, by reason of being involved directly, or indirectly, in some of the subject matter covered in the evidence, others have a wider, more “political” interest , quite legitimately, in how the GMP conducted itself in the period to which the claimant’s disclosures relate. I. 27. The Tribunal will say a little more , in particular , to the former group at the conclusion of this Judgment, but at this stage we consider it important to make it clear to our wider audience what the Tribunal will and will not be deciding. I. 28. The Tribunal hearing was not a public inquiry. It was the forum for the determination of the specific claims brought between the two parties. It will decide those claims, and only the issues necessary for that purpose. It will, therefore, firstly be deciding whether the claimant made any protected disclosures. That is not the same as deciding whether he was a “whistleblower”, in general terms. That is a lay term, and is a status. The protected disclosure legislation does not recognise “whistleblower status”, and the term “whistleblower” appears nowhere in it. It requires , instead, a claimant to establish that he made protected disclosures, as defined by s.43 of the Employment Rights Act 1996. That , as will be seen by anyone who reads on, is a highly technical and legalistic issue, to which the Tribunal is required to apply strict tests in accordance with the legislation and considerable body of caselaw that has grown around it. I. 29. That means that the Tribunal will not be deciding if any of the matters that the claimant disclosed were true, it will be deciding whether the claimant had the requisite reasonable beliefs under the relevant sections of s.43 of the Act. Whilst the true factual 12 of 367 situation will often have some bearing upon the claimant’s beliefs, it will not be a central finding that the Tribunal will be required to make in order to determine these claims. I. 30. Further, whilst the claimant has to show that he reasonably believed that it was in the public interest to make the disclosures that he did, the Tribunal will not be deciding whether in taking his disclosures to the IPCC, the claimant “did the right thing”. As it was, the claimant took more matters to the IPCC than he has relied upon as protected disclosures for these claims. The claimant had , as anyone has, the right to bring matters to the attention of the IPCC, and it is not the Tribunal’s role to comment upon what he took to the IPCC, or the manner in which he did so, save to the extent that this is relevant to the issues in these claims. I. 31. The Tribunal will therefore not , for instance be determining : Whether there was a culture of cronyism within the GMP; Whether any officers were corruptly promoted as a result of that culture, or for any other reason; Whether any officers lacked experience , ability, or competence in the roles into which they were promoted; Whether any of these alleged failures or alleged corrupt practices had serious consequences of the nature that the claimant has claimed in his disclosures. I. 32. The Tribunal will, of course, be examining the claimant’s beliefs in what he disclosed, but it will, we hope, be appreciated that a finding that he had or did not have any particular reasonable belief is not the same as a finding that what he disclosed was either correct or incorrect. I. 33. In summary, therefore, despite the entirely understandably high level of public interest in these proceedings, from a variety of standpoints, this has not been (although at times it was in danger of becoming) a public inquiry into the promotion practices or policing decisions made by the GMP in the first and second decades of the 21st century. Rather, it has been, as all such cases are, an examination, of the narrow issues between the parties , within the confines of the Employment Tribunal litigation process, applying the applicable legal tests to the facts that it has found, and the determination of whether the claimant’s claims should succeed or fail. That ultimately has been the Tribunal’s task, nothing more. Chapter II. – Background core facts. a.)Abbreviations. II. 1. Given the plethora of abbreviations and acronyms used in the evidence, the Tribunal considers it more helpful to set these out at this stage than to refer the reader to some (perforce far distant) Annexe or Glossary at the end of the Judgment. II. 2. The abbreviations, acronyms and other forms of shorthand most commonly used in the evidence and the documents are summarised thus: 13 of 367 ACC – Assistant Chief Constable ACO – Assistant Chief Officer ACPO – Association of Chief Police Officers CC – Chief Constable COG – Chief Officers’ Group CPS – Crown Prosecution Service CS – Chief Superintendent DCC – Deputy Chief Constable DCI – Detective Chief Inspector DCS – Detective Chief Superintendent DI - Detective Inspector DS – Detective Superintendent (sometimes Detective Sergeant; will be D/Sgt where so) EOI – Expressions of interest FRO – Force Review Officer MAPPA – Multi - Agency Public Protection Arrangements MFH – Missing from home MCRU - Major Crime Review Unit MIT – Major Incident Team NWRCS - North West Regional Crime Squad NWCTU- North West Counter Terrorism Unit OCG – Organised Crime Group OIOC – Officer in Overall Command OLWD – Organisational Learning and Workforce Development OPYS – Force Operational Security Officer PIP 4 – This is a reference to the Professionaling Investigation Programme , under which officers were to attain levels of qualification as part of their career progression as SIOs. Once such qualifications had been achieved at a certain level, the officer would be designated , for example, a PIP3 or a PIP4. The latter was a specific role, in that it was 14 of 367 common for a PIP4 officer to be assigned to an investigation to assist the SIO as a “critical friend ” PSB – Professional Standards Branch SCD – Serious Crime Division SLT – Senior Leadership Team SIO – Senior Investigative Officer SPOC – Single Point of Contact SWIP – Senior Women in Policing T/… Temporary [applicable rank] TOR – Terms of reference WYP – West Yorkshire Police The above, however, come with the health warning that they are not always consistently applied, and where this occurs the Tribunal will alert the reader. b).The background facts and chronology. II. 3. The Tribunal unanimously finds the following relevant background facts, the majority of which are agreed, or non – controversial. In such instances the Tribunal may not cross reference page numbers or other sources of the evidence for these undisputed facts. Where page numbers are referred to they will be from the main, open, bundle. Where, however, they are references to the closed bundle (but not those subject to Advanced Handling Conditions), they will be preceded by “OL”. i)The claimant’s career and other events within GMP up until June 2012.

3.1 In January 1986 the claimant Joined Greater Manchester Police .In June 1987 the claimant was made an Area Officer. In summer 1988 he became a trainee Detective Constable . In 1988 he passed his sergeant’s exams, ranking in the top 200 nationally.

3.2 In January 1989 he joined the new plain clothes unit. On 6 January 1992 the claimant was promoted to Sergeant at Oldham. In 1993 the claimant joined the CID in Oldham. In 1995 the claimant set up the Proactive unit for Oldham division to tackle crime and drugs . In 1996 the claimant was promoted to Inspector in uniform at Stretford . Later that year he was promoted to DI and was a founder member of the MCRU.

3.3 Between 1996 -2000 the claimant attended a HOLMES (a computerised database) course. He completed all national SIO development modules and attended the Management of Serious Crime course. In Summer 2000 the claimant became a DI on the Bolton division.

3.4 In 2002 the GMP set up the MIT , and the claimant joined that unit at the outset. 15 of 367

3.5 In 2006 the claimant became a temporary DCI. In June 2007 he was promoted to permanent DCI and remained in MIT as SIO. In October 2008 the claimant became a temporary Superintendent.

3.6 In February/March 2009 the claimant applied for promotion to permanent Superintendent , but was not appointed.

3.7 On 20 April 2009 the claimant was posted to Stockport and reverted to a DCI role

3.8 On 13 January 2010 the claimant again made an application for promotion to permanent Superintendent . He was supported in this by his line manager Supt. Barton. On 24 March 2010 the claimant attended a Promotion board chaired by ACC Sweeney and ACC Hopkins. The claimant was not appointed.

3.9 In 2010 the respondent’s Force was subject to austerity measures which resulted in cuts to the Force’s budget , and the need to reduce the number of serving officers. For first time in its history the Force was faced with the prospect of reductions in Police staff, and reduction in the number of officers in senior ranks.

3.10 On or about 4 February 2011 Operation Nixon, an investigation into the activities of Dominic Noonan, a suspected paedophile on release on licence, began, and was assigned to MIT Syndicate No.8. DCI Dominic Scally was appointed a TD/Supt., and on or about 22 March 2011 become the SIO on Operation Nixon. On 17 April 2011 an incident occurred during this Operation which resulted in a 13 year old boy being present inside a flat with Noonan, with no intervention being carried out. The claimant was not involved in this Operation, and did not learn of these events until some time later. The relevant facts are set out in the discussion of PDs1.2 and 1.3 below.

3.11 On 9 June 2011 the claimant applied for a Detective Superintendent role in the North West Regional Crime Squad (“NWRCS”). He was not successful, and did not get an interview. He had been supported , however, by DCS Shenton.

3.12 The claimant’s Individual Achievement Review of June 2011 , completed by D/Supt. Ross (pages 6749 to 6752 of the bundle) was positive. On 5 July 2011 the claimant was appraised by D/Supt. Ross and D/Supt, Barraclough. He was deemed suitable for immediate promotion.

3.13 On 9 January 2012 D/Supt. senior CID posts were advertised in the Serious Crime Division. On 15 January 2012 the claimant expressed interest in a role in Operation Warrior (page 445 of the bundle) . On 16 January 2012 the claimant’s application for the Supt. role was supported by D/Supt. Barraclough and DCS Shenton (pages 448 and 449 of the bundle).

3.14 On 21 April 2012 a domestic incident occurred between Supt. X and his wife, which resulted in the involvement of TD/Supt. Scally and an MIT team, and the subsequent arrest of Mrs. X. The claimant was not involved at the time, and this became the subject matter of his PD3.3, the facts relating to which will be found in the discussion of that particular disclosure below. 16 of 367

3.15 On 26 April 2012 the respondent opened a promotion process for CIs to temporary Superintendents. On 1 May 2012 the claimant had a discussion with DCS Shenton, who told him that he would not be supporting the claimant in this exercise. The claimant accordingly did not make an application. On 15 May 2012 the claimant had a meeting with ACC Heywood about not being supported by DCS Shenton for the T/Supt. promotion exercise, and about issues with his promotion process.

3.16 DCI Denise Worth did apply in this process, and was supported in it by TD/Supt. Scally and DCS Shenton. The latter had supported her application “with limitation” because of her lack of experience as a detective.

3.17 On 17 May 2012 ACC Heywood called the claimant regarding the issue of support in the promotion process , and they discussed the issues that the claimant had with DCS Shenton. ACC Heywood supported DCS Shenton’s views.

3.18 On 25 May 2012 a member of a criminal gang , Mark Short, was murdered , and Operation Somerville was commenced to investigate this serious crime . Dale Cregan was later declared a suspect and arrested. Further facts in relation to this, and linked investigations are set out under the findings for PDs 1.5 to 1.9 below. T/Supt. Worth was initially the SIO on this Operation, but stood down , and TD/Supt. Scally became the SIO. The facts relating to this Operation, and the roles of T/Supt. Worth and TD/Supt. Scally are discussed in further detail in our findings in relation to PDs1.5 to 1.9, and 1.16 below.

3.19 On 22 June 2012 DCS Barraclough forwarded to the claimant an email he had sent to DCS Shenton regarding the lack of promotion support for the claimant (page 525 of the bundle), in which he said this: “You asked me to put down my views concerning the suitability of Pete Jackson for temporary promotion to Superintendent. Pete is an extremely able SIO who really knows his business. He leads his team well from the front and works hard to get impressive results. He is intelligent and very passionate. This passion can often be the undoing of him, and it is my view that over the last 12 months Pete has felt himself in conflict with the organisation, and perceived that he had been badly treated over aspects of a previous spell on the J Division. This in turn has led to a great deal of emotion, which flavours his current leadership style. Until Pete rationalises this and learns to control his passion he will find promotion a significant challenge. I have discussed this with him on previous occasions, and in particular, following his recent meeting with you. Having said that, his view on this process, which is entirely understandable, is formed from a personal comparison with those who have been supported in this process. The question as to his suitability therefore becomes one of 'it depends who you are measuring him against', as I am not convinced that the same standard of selection for support is being used across the force for every candidate. I also think that he is not the sort of person force command are currently looking to promote. He is extremely forthright in his opinion, would not necessarily share their view 17 of 367 of the world, and would find it impossible to hide it This probably reflects back on his passion and emotion, and to some extent the current narrow church of senior officer selection, with inevitable reductions in senior ranks on the horizon. However, there is no doubt in my mind that Pete could be trusted to lead any investigation, regardless of size and complexity, and the risk presented to the force.” ii)The claimant’s grievances, further promotion applications, and involvement of the PCC.

3.20 On 25 June 2012 the claimant raised a grievance against DCS Shenton for failing to support him in the promotion process (Grievance Report pages 527-536 of the bundle). This is the first time that the claimant makes many of the allegations that later become his PDR1 document. At this stage, however, he only raised these matters internally, by way of a grievance.

3.21 On 26 June 2012 the death of a Hungarian male occurred, which became the subject matter of Operation Agricola to which on 28 June 2012 T/Supt. Denise Worth was appointed the SIO . Further relevant facts are set out under PD3.5 below.

3.22 On 2 July 2012 the claimant sent CS Rush, who had been appointed to investigate it, his grievance report (pages 553 to 558 of the bundle). This is set out in the formal form provided by the respondent for this purpose, but its contents are the same as the document referred to above. Whilst the first two pages of this grievance are about the failure of DCS Shenton to support him for promotion in the recent T/Supt. EOI exercise, and DCS Shenton apparently changing his mind, having previously supported the claimant, in the next four pages the claimant warns of dangers of cronyism to the police and the public. He highlights the deficiencies of TD/Supt. Scally as the SIO on Operation Somerville, and his handling of Operation Nixon. He also makes reference to the promotion of DCI Worth, and her alleged failings.

3.23 On 24 July 2012, after the claimant met with CS Rush, and the matter was referred back to ACC Heywood, the claimant’s grievance was passed to ACC Ian Wiggett.

3.24 On 25 July 2012 the claimant presented his first Employment Tribunal claim, case number 2408935/2012. He was acting in person at that time. In that claim (pages 1 to 6 of the bundle) he brought claims of sex discrimination. In this claim he gave the details as follows: “My claim relates to being unfairly denied the opportunity for promotion to Superintendent and is set against a background of a culture of cronyism, favouritism and discrimination that currently exists within GMP, which is seeing some officers unfairly advanced and promoted and others unfairly disadvantaged. The closeness of an officer's relationships with a senior officer and their gender are now more important factors in determining promotion than their performance, skills and experience. My claim relates specifically to a process for temporary promotion to Superintendent which was advertised via the GMP internal e-mail system on Tuesday 26th April 2012 with a closing date for submissions being Friday 4th May 2012. On Friday 1st May 2012 I went to see my Divisional Commander, DCS Shenton, with a view to applying for 18 of 367 promotion but was told that he was refusing to support me for the process. I believe that DCS Shenton practices cronyism and favouritism and that his decision was not based on my performance and ability and that he favoured officers with closer personal relationships to him. As a result on Tuesday 15th May 2012 I met with ACC Heywood to make a complaint about DCS Shenton not having supported me . ACC Heywood reported back to me on Thursday 18th May 2012 and told me due process had been followed. He did not offer to support me for promotion although it was within his power to do so and he had told me only in January 2012 that I was a very strong applicant for promotion and that there would be a number of Detective Superintendent posts becoming available in the following 12 months.. ACC Heywood reported back to me on Thursday 18th May 2012 and told me due process had been followed. He did not offer to support me for promotion although it was within his power to do so and he had told me only in January 2012 that I was a very strong applicant for promotion and that there would be a number of Detective Superintendent posts becoming available in the following 12 months. Neither did he provide any explanation as to what had changed. Around this time I became aware that DCI Denise Worth had applied for the promotion process but had circumvented DCS Shenton (the process requiring the support of your Divisional Commander) and had gone directly to ACC Heywood, who had supported her for the promotion process. DCI Worth holds the same position as myself, as an SIO in the Major Incident Team. I would strongly contend and believe I can provide evidence to support the view that I am a far stronger candidate than DCI Worth, in terms of my performance, experience, achievements, academic background and leadership skills. I am aware that DCI Worth has had performance issues and is currently struggling to cope in her current role. On many investigations she has not been allowed to undertake the SIO role and on a recent investigation junior officers had to take the lead, Investigative opportunities were missed and she was removed from the investigation. I find it difficult therefore to comprehend how DCI Worth could be supported by ACC Heywood when she does not appear to be competent in her current role. I believe ACC Heywood has only supported DCI Worth because she is female. I contend that her current performance and experience does not warrant support for promotion and that she is not as strong a candidate as myself. I firmly believe that if I were a female officer with my background, achievements, performance level and experience that ACC Heywood and DCS Shenton would have undoubtedly supported me for promotion. I have submitted a grievance report which relates to this complaint of discrimination. Much of the report also relates to the practice of cronyism and favouritism which I contend currently exists in GMP and which provides a backdrop against which this kind of behaviour is allowed to go unchecked. It also contains protected disclosures. In the first instance ACC Heywood gave my grievance to a Senior officer who is a personal friend of DCS Shenton to try to resolve. As a result I have asked for it to be reassigned to another senior officer.” There is no further documentation , other than the ET1, relating to this claim in the bundle for these claims, for which it was not necessary. As no ET3 was served until 19 April 2014 (pages 7 to 14 of the bundle) , and the claimant was following the grievance 19 of 367 process, it seems most likely that the parties agreed a stay of that claim pending the completion of the grievance process, as mentioned in an email from the claimant on 12 March 2013 , page 782 of the bundle.

3.25 On 8 August 2012 the claimant had a meeting with ACC Wiggett, following which he was asked to provide more documentation (page 616 of the bundle).

3.26 On 10 August 2012 Dale Cregan murdered David Short, the father of Mark Short, and Operation Mirato was commenced, followed by Operation Dakar (the hunt for Cregan and others) T/D Supt. Scally was appointed OIOC of Mirato and Somerville (see the facts found in relation to PDs 1.5 to 1.9).

3.27 On 10 September 2012 ACC Wiggett sent an email to ACC Copley (page 632 of the bundle) asking her to explain the process of temporary Superintendent promotion, and in particular the difference between uniform and detective roles. He wished to interview DCS Shenton for the grievance investigation, and there was a delay whilst this was arranged.

3.28 On 18 September 2012 the claimant received an update regarding complaint progress. The same day PCs Nicola Bone and Fiona Hughes were murdered by Dale Cregan.

3.29 Having interviewed DCS Shenton on 26 September 2012, and other relevant parties, ACC Wiggett concluded his grievance investigation . His report is dated 23 October 2012 (pages 651 to 664 of the bundle) , and was sent to the claimant on 24 October 2012 (page 665 of the bundle).

3.30 In his grievance outcome ACC Wiggett went through the temporary Superintendent promotion process, and how it had changed. He rejected the claimant’s claims of cronyism and favouritism, and advised the claimant to concentrate upon what he needed to do to make himself more suitable for promotion. He rejected the suggestion that gender had played any part in the promotion of DCI Worth, or that TD/Supt. Scally had been promoted because of cronyism. The claimant was advised of his right of appeal.

3.31 On 25 October 2012 the claimant appealed by email sent to ACC Wiggett (page 668 of the bundle). He raised a number of points, challenging the decision and how it had been arrived at. He also sought an extension of time to submit his appeal, which was granted.

3.32 The claimant appealed the grievance outcome by submitting a Stage 3 Appeal form dated, originally on 8 November 2012, but updated on 12 November 2012 (pages 682 to 687 of the bundle). In that document he made reference to being contacted by DI Dennison on 14 August 2012 on Operation Mirato , the details of which are discussed further in the findings relating to PD1.9 below. He also referred to the recent arrest of the target of Operation Nixon for the rape of a 15 year-old boy, relevant to, and discussed in relation to PD1.2 below.

3.33 The claimant ended this appeal form with this: 20 of 367 “I have been highlighting serious issues about the above cases and certain SIOs since May 2012 when I started this grievance process. I feel the Force has ignored my warnings ands [sic] nothing has been done. I believe the above issues and investigations need to be addressed and that Op Nixon, Op Somerville, Op Mirato and Op Dakar should be subject of independent review.”

3.34 On 12 November 2012 the claimant sent an email to ACC Wiggett with a further updated grievance appeal (pages 694-699 of the bundle), making some handwritten annotations to the previous document.

3.35 On 23 November 2012 Joanne Foley confirmed that ACO Lynn Potts would deal with the claimant’s Stage 3 Grievance Appeal.

3.36 On or about 22 November 2012 CS Zoe Sheard became an acting ACC (see email from ACC Copley page 703 of the bundle) , and TD/Supt. Scally was confirmed as being retained on Operation Mirato until 31 March 2013. 3.37. On 29 November 2012 the claimant applied for a Superintendent role with WYP (see pages 727 to 735 and 1471 of the bundle). TD/Supt. Scally also applied for the same role (see pages 736A to 736M of the bundle). 3.38 DCS Shenton supported the claimant for the WYP role, and indicated that he was a level “B”, a “Good Candidate” on the application form. In an email to ACC Heywood of 30 November 2012 (at page 713 of the bundle) DCS Shenton explained why he would support this application, but would not support the same application if made within GMP. The gist of his reasoning was that, having discussed the WYP role with a counterpart in that Force, he considered that the WYP role was akin to the former role that a Superintendent would have carried out in GMP, as an SIO, but that was no longer the case. Whereas the claimant would be suitable for the WYP role, which was in his view similar to what a Superintendent role in the GMP had been, he would not, in the view of DCS Shenton, be suitable for such a role as it now was in GMP. 3.39 On 30 November 2012 TD/Supt. Scally also expressed interest in a vacancy for a role in the NWCTU. He then withdrew from the application for the WYP role (in which he had been supported by the Chief Constable as an “Excellent Candidate” – see pages 736H and 736I of the bundle). 3.40 On 17 December 2012 TD/Supt. Scally was appointed to the NWCTU role as a substantive Supt. (see page 1805 of the bundle) . He remained a GMP officer. The relevant facts are set out in the findings for PD1.11 which relates to this appointment. 3.41 On 21 December 2012 the claimant was interviewed for the WYP post, but was not appointed (page 745 of the bundle). 3.42 On 4 January 2013 the claimant was to meet with ACO Lynn Potts regarding his Stage 3 Appeal and disclosures. In preparation for that meeting ACO Potts sought advice from Lesley Kewin of HR. She prepared note for ACO Potts , setting out the history of the claimant’s grievance (pages 750 to 753 of the bundle). She made reference to the claimant’s ET claim, and to the issues he had raised in the course of 21 of 367 his grievance about the culture of cronyism and the promotions of TD/Supt. Scally and DCI Worth. 3.43 In preparation for the meeting ACO Potts approached Paul Rumney of the PSB to enquire whether any of the matters that the claimant had raised in his grievance may give rise to conduct issues that should be investigated by the PSB. Supt. Paul Turner replied to him by email at 11.28 on 4 January 2013 (at page 754 of the bundle , before the meeting between ACO Potts and the claimant) in these terms: “I refer to page 6 of his stage three documentation where he alludes to serious issues raised regarding Op Nixon,Somerville, Mirato and Daker [sic]. The only operation that raises any detailed concerns that may require our attention appears to relate to Operation Nixon and the decision not to safeguard the child. However, a review has taken place already and this was alluded to at page 3 of his stage two document. This was commissioned by Darren Shenton. I would recommend that contact Is made with Darren and a copy of the review be requested and or the case discussed with the reviewing officer to find out its findings and recommendations. This will allow us to access the rigour of the review and whether it addressed the concerns raised and whether there are any PSB matters that need consideration. If a further review is required then a resource may need to be identified that has the requisite skills and is as independent as possible from those involved in the grievance. There may be no good solution as I would have suggested PPD resources other that [sic] two people mentioned in the grievance material now having been deployed there. I think the other three operations are all related to the manhunt and Investigation into Creegan. I am open to correction as the operations do not seem to have had their remits defined within the documentation. However, I have not found any material within the documentation that causes me any great concern that would require PSB involvement. There may have been some decisions taken that were not fully considered in terms of repercussions around the deployment of unarmed staff. These did not occur and the failure of Peter Jackson to seek alternative solutions may have been as poor as the decision he alleges was bad. After all. by failing to deploy, we may have lost opportunities to arrest him which may have exposed the public to more danger. In short, his arguments are poor with regard to wanting a full review. As such, I think we need no more than a light touch assessment to look at Nixon and ensure that Command and SCD management are content with there being no requirement for any formal investigation bearing in mind they reviewed it and did not refer the matter to us first time around.” 3.44 The appeal meeting was held on 4 January 2013 by ACO Potts supported by Lesley Kewin of HR, and the claimant was with his Fed. rep. Kieran Murray. The notes are at pages 755 to 765 of the bundle. The meeting covered the various aspects of the claimant’s appeal, and why he disagreed with the findings of ACC Wiggett. In relation to the allegations of operational failings that the claimant had made, the notes record this exchange (PJ being the claimant, LP being ACO Potts , IW being Ian Wiggett and KM being Kieran Murray) : 22 of 367 “7. PJ then raised that he had highlighted some serious operational failings to the Force since May 2012 and that nothing had been done about this. LP said that she had read the file details relating to stage 2 of his grievance and that IW had advised him that there were other routes outside of the grievance process that he could explore to raise these concerns. PJ said that he had discussed this issue with the Federation and sought legal advice in respect of this and the advice given was that he had already highlighted his concerns to the Force via this process and did not need to explore these other routes. LP said that if this was the case, then she needed confirmation from PJ that he was agreeable to her passing his concerns on to the Professional Standards Branch for them to progress. PJ and KM agreed with this course of action.” 3.45 After the meeting ACO Potts made a formal approach to PSB about these matters, with the result that on 10 January 2013 Supt. Turner wrote to her , saying this (page 759 to 760 of the bundle): “The allegations that cause concern having read the grievance documentation are levelled at Detective Supt Scally and his decisions around Merato [sic] (and associated operations) and Operation Nixon. The Merato allegations are around the deployment of staff without adequate health and safety considerations regarding armed support during the manhunt for Cregan. Interventions were undertaken not to deploy staff and as such nobody was put in the way of harm even if the decision was poor. In fact, I think the outlined actions by peter Jackson are poor as if he did perceive that the instruction was flawed and or therefore unlawful, he should have addressed I through raising his concerns with the decision maker so that an appropriate deployment could take place. By just pulling the plug, it could be argued that he exposes the public to further risk. The more serious allegation in my mind was operation Nixon. This amounts to no action taking place that resulted in a victim not being safeguarded and being raped by the target of the operation. I have read through a review document from SCD into Operation Nixon. Safeguarding measures were put in place. The review indicated that these could have been better had there been an overarching strategy and that some assessments could have been better. Good practice has also been identified. I think it is noteworthy that the team set up was acknowledged not to have all the ideal skill sets to conduct the enquiry (Operation Span was partially responsible for this). However, the force sought to provide specialist advice and peer review to support the investigation team. In short, as per many operations things were not perfect; lessons can be learnt but this is not a PSB matter. Turning to the specific allegation that a 15 year old boy was abused due to inaction. On the 30th October 2012, 1 sent a reply to Mary Doyle outlining our findings after she raised concerns about the response. In point of fact, Dominic Scally did not feature within the review. There was a delay in finding the boy as he was not able to give his location to be rescued. After some repeat calls, the victim was able to identify his location. The response then took 39 minutes as officers were sent to an RV point before entering the flat to rescue the boy. This appears to be to ensure the officers were properly briefed prior to deployment. Again, this is not a PSB issue and I found no evidence to indicate 23 of 367 any misconduct issues regarding any of the management team investigating Operation In conclusion, I cannot see any evidence, intelligence or information in the grievance documentation to justify a formal investigation into any officer named. If DCI Jackson is forthcoming with any evidence to support allegations of wrong doing I will be only too happy to access it.” 3.46 On 18 January 2013 DCI Worth was promoted to Temporary Superintendent in uniform in Oldham (see page 1471 of the bundle). 3.47 On 7 February 2013 Kieran Murray, sought clarification regarding the information provided that had been passed to PSB, and asked when an outcome would be provided. 3.48 On 4 March 2013 ACO Potts concluded her grievance appeal outcome (pages 774 to 781 of the bundle). She rejected the claimant’s appeal, and upheld the decision of ACC Wiggett. In relation to the matters that had been referred to the PSB she said this: “Following our meeting on 4th January 2013, I forwarded the content of your grievance appeal to Temporary Chief Superintendent Paul Rumney, Professional Standards Branch. An investigation into the allegations you made was carried out by Superintendent Peter Turner. At the end of his investigation, Superintendent Turner concluded that he could not see any evidence, intelligence or information in the grievance documentation you submitted to justify a formal investigation into any officer named. He advised that if you are forthcoming with any evidence to support allegations of wrong doing he will address this.” 3.49 There would appear to have been some delay in the claimant seeing this, as he had not done so by the time he sent an email to Lesley Kewin on 12 March 2013 (page 782 of the bundle) in which he questioned information he had been given to the effect that the stay of the ET proceedings (i.e the claimant’s first claim , alleging sex discrimination) would be lifted as the grievance had been concluded. The claimant was then sent a copy. He made comment upon the outcome in an email to his Fed. rep. on 13 March 2013 (page785 of the bundle). 3.50 On 28 March 2013 the claimant’s Fed. reps. Kieran Murray and Tom Elliott met with DCS Paul Rumney of PSB. The claimant was not present. The meeting was noted in Paul Rumney’s Day Book (pages 786 and 787, with a typed – up version at 787A and 787B of the bundle). They discussed the ET claim, and Mediation was discussed. They also voiced the claimant’s concerns about Operation Nixon, led by TD/Supt Scally , and the review of it. They also discussed his concerns about the investigation into Dale Cregan, where the claimant felt that the failings of TD/Supt. Scally on Nixon had led to the deaths of the two PCs who were killed. It was recorded how the claimant now wanted to “go outside” to get an alternative investigation. It was stated that the claimant had taken legal advice on the whistleblowing legislation, and he had witnesses queuing up to provide evidence that the decision making was flawed. It was also recorded that, post – Nixon , Noonan had been charged and remanded for similar issues. The claimant was said to have accepted that lessons had been learned, and neither he nor the Fed. 24 of 367 had any desire for misconduct action. It was recorded that the Fed.’s view of Ian Wiggett’s assessment was that it was fair and valid. 3.51 After that meeting DCS Rumney spoke with DCS Shenton , who agreed to convene a meeting of stakeholders on Operation Nixon to discuss the issues raised by the claimant , and reassure the PSB on matters of governance. 3.52 On 17 April 2013 Supt. Rumney held a meeting with ACC Sweeney, DCS Shenton, Martin Bottomley the FRO, TD/Supt .Scally and Supt.Lyon. He also reviewed the review of Operation Nixon. He examined safeguarding issues , and noted that the covert environment was a testing one. He recorded how the review had noted the SIO policy book entries that had been made (see pages 788 and 788A of the bundle). 3.53 On 18 April 2013 the claimant sent an email to his Fed. reps. asking them to take matter of Op Nixon outside of force command (see page 789 of the bundle). 3.54 On 29 April 2013 the claimant’s Fed. reps (without the claimant) again met with Supt.Rumney regarding the claimant’s concerns about Operation Nixon. Again Supt. Rumney noted the meeting in his Day Book (page 791 and typed up at 791A). Reference was made to managing the claimant’s expectations after the meeting with the Nixon SLT that had been held by Supt. Rumney. , who reported that he had only seen the review, and was reassured it had been thorough, and contained recommendations. There had, he said, also been an SLT review. He offered to speak to any witnesses that the claimant had referred to, in order to explore whether there was any tangible evidence of wrongdoing, but the Fed. reps. agreed to do this. They reported that the claimant saw Supt. Rumney as involved in the “cronyism”. He stated that he had not seen the core material, but from the review, he could not see any misconduct issues. 3.55 The claimant pressed his Fed. reps. for an update in early May 2013. 3.56 On 28 May 2013 an expressions of interest exercise opened for CI’s to apply for T/Supt. posts (page 797 of the bundle) . 3.57 The claimant wanted to apply for such a post , and on 30 May 2013 sent an email to DS Barraclough asking to discuss this (page 799 of the bundle). It is unclear if they met, but on 2 June 2013 the claimant sent his application form and supporting documents to DS Barraclough (pages 804 and 805 of the bundle) , and the same day submitted it formally. It is entitled “Senior Officers Development Pool” (page 807 of the bundle) and was submitted by Supt. Barraclough to DCS Shenton by email on 2 June 2013. The latter replied to Supt. Barraclough on 5 June 2013 that he had previously stated, when the claimant applied for the WYP post , that he could not support him in a similar application within GMP. He therefore asked Supt. Barraclough for his considerations as to why he (DCS Shenton) should now do so (page 809 of the bundle). His reply (page 810 of the bundle) was that he (Barraclough) would support the claimant’s application, as he considered that the claimant had addressed the previous issues that had been fed back to him. 3.58 On 6 June 2013 DSC Shenton sent the claimant’s application to ACC Heywood, along with his email exchange with Supt. Barraclough . Whilst DCS Shenton stated that 25 of 367 he does not support the claimant’s application, he left it to ACC Heywood to complete the form and return it to OLWD (page 811 of the bundle). 3.59 As the claimant’s application was not supported, it was not included with the other 48 which went forward for consideration (see page 813 of the bundle). 3.60 On 11 June 2013 the claimant prepared ‘Protected Disclosure (Report 1) (pages 814 to 834 of the bundle). 3.61 On 20 June 2013 the claimant prepared Protected Disclosure (Report 2) (page 1029-1054 of the bundle) . The claimant sent a copy of both these reports to Kieran Murray on 24 June 2013. 3.62 Around this time, precisely when is not clear, the claimant and his Fed. reps. were in contact with the office of the Police and Crime Commissioner, who was at the time the late Tony Lloyd. Russell Bernstein was their contact there, and it was him whom they met. Whilst in his IPCC witness statement the claimant says he met with the PCC in June 2012 (page 1476 of the bundle) this must be wrong, it was June 2013. In these meetings the claimant handed his PDR1 and PDR2 documents to the PCC. By the time he sent an email to ACC Copley on 2 July 2013, he had met with the PCC (or rather Russell Bernstein) three times. 3.63 By email of 28 June 2013 DCS Shenton informed the claimant that he has not supported him for promotion , and explained why (page 865 of the bundle). 3.64 On 2 July 2013 the claimant sent an email to ACC Dawn Copley complaining that he was being bullied and victimised by DCS Shenton , arising out of his previous grievance in 2012, and his recent lack of support for his application for the Superintendent cadre (pages 879 to 880 of the bundle). In this email he again refers to the culture of cronyism, and cites , without naming him, TD/Supt. Scally and his alleged failings on Operations Nixon and Mirato. 3.65 On 5 July 2013 the claimant’s father passed away. 3.66 On 10 July 2013 the claimant had his first meeting with ACC Copley. His Fed. reps. were also present. She met with him again on 24 July 2013, following which she wrote a lengthy file note (pages 893 to 895 of the bundle). In these meetings ACC Copley agreed with the claimant that CS Rumney would carry out a review of Operation Nixon, to see if there were any grounds for misconduct proceedings, and then report back to her. The claimant had reservations about this, but agreed to this course of action. It was agreed that she would look into Operation Nixon first. The claimant had provided ACC Copley with part of his PDR reports that he had supplied to the PCC, but not their totality. Her note records how the claimant was to come back to her on whether she could have “full and unfettered” access to the reports. It was also agreed that a welfare officer , John O’Hare, would be appointed for the claimant. 3.67 On 23 July 2013 DCS Shenton sent an email to ACC Copley setting out his rationale why the claimant was not supported by him for promotion (page 890 of the 26 of 367 3.68 The same day, ACC Wiggett sent ACC Copley an email about the allegations raised by the claimant in his grievance in respect of TD/Supt. Scally and DCI Worth, and how he had invited the claimant to take those up outside his grievance, but he had not done so (page p891 of the bundle). 3.69 ACC Copley asked DCS Rumney to review Operation Nixon, and he was provided with a written report from David Pinder of the MCRU in an email of 5 August 2013. The report itself is not in the bundle. DCS Rumney reported to ACC Copley on 19 August 2013 (page 899 of the bundle) 3.70 On 22 August 2013 the claimant, in reply to an email from him seeking a further meeting and update on his grievance, received an email from ACC Copley regarding her progress Operation Nixon (page 901 of the bundle). She also made reference to the need to review the promotion processes, and also to the Human Tissue Act issue that the claimant had raised. She also referred to the claimant’s outstanding ET claim, and how it would now proceed. She offered him a further meeting if he wanted one. 3.71 The claimant replied to her later the same day (page 902 of the bundle). He expressed concern at the delay, and the lack of progress in the review of Operation Nixon. He repeated his lack of confidence in DCS Rumney, given his previously expressed view that there had been nothing which warranted further action. He said that there was evidence of serious failings, misconduct in public office, and that there had been a cover up. He described these as “the most serious of issues”. He had wanted people brought to account and was concerned that some officers were due to retire in the near future. He sought a meeting as soon as possible. 3.72 The claimant also sent an email to Russell Bernstein ,to whom he had copied in the email to ACC Copley , the same day (page 903 of the bundle) requesting that his disclosures be referred out of the Force as a matter of urgency. 3.73 ACC Copley responded again to the claimant later that day, by a two page email (pages 904 and 905 of the bundle) in which she set out the actions that had been taken to investigate the wide ranging issues that the claimant had raised. She pointed out that she had only been involved for some 6 weeks, had held two meetings with the claimantand had been gaining clarity of his complaints. She pointed out that whilst he had provided her with some information, he had provided the PCC with more. She had asked for his agreement to her being provided with all the relevant papers, but was still awaiting this. She went on to express her confidence in DCS Rumney and his investigation. She assured him that once the investigation was complete a decision would be made whether a misconduct or a criminal investigation was required. She also sought to clarify whether the claimant did or did not want to raise a grievance against DCS Shenton for his recent conduct in relation to the EIO exercise, as she was unclear what the claimant wanted. She assured him of her intention to take the proper action , including referral to the IPCC or an external Force, once the investigation was complete. 3.74 The claimant replied to ACC Copley on 23 August 2013 (pages 907 and 908 of the bundle). He raised many questions as to why various steps had not been taken, the deficiencies in the investigation so far, and repeated his lack of confidence in DCS Rumney. 27 of 367 3.75 On 28 August 2013 ACC Copley replied to the claimant’s previous email (page 909 of the bundle). She agreed to a meeting. She went on to explain the stage that DCS Rumney had reached in his review, and gave an indication of when he would be likely to complete it. She accepted that the claimant had actually previously indicated that he did wish to pursue a grievance against DCS Shenton, but she had discussed this matter with DCS Shenton, and had got his explanation for why he had not supported the claimant’s application , which she set out. She relayed his explanation for the delay in this being communicated to the claimant . She invited the claimant to determine whether he still wanted to raise a grievance. 3.76 On 1 September 2013 DCS Russ Jackson became Head of the Serious Crime Division. 3.77 On 4 September 2013 the claimant asked ACC Copley to request a statement directly from DI Rick Mortimer about Operation Nixon, and to provide DI Mortimer with some reassurance that there would be no consequences for him if he did so (page 920 of the bundle). On 5 September 2013 ACC Copley requested a statement from Rick Mortimer , who responded immediately (page 926 of the bundle). 3.78 On or about 5 September 2013 the claimant had (or arranged, it is unclear whether it took place) a further meeting with Russell Bernstein of the PCC. 3.79 On 6 September 2013 (the date is taken from the document he prepared dated 4 February 2014 at pages 2075 to 2100 of the bundle) CS Savill of the PSB was tasked to undertake a severity assessment on Operation Nixon. 3.80 On 10 September 2013 the claimant submitted a further Stage 2 (Formal) Grievance (pages 929 to 932 of the bundle). In it the claimant grieved against DCS Shenton and ACC Heywood, for victimisation and bullying. He referred back to his grievance of June 2012, and their treatment of him since then. He covered a number of matters that he had already raised, plus some other ones, in support of his contention that he had, since June 2012 . been subjected to this type of conduct. In box 5, in answer to the request to outline the remedy he was seeking, the claimant stated “Promotion to Superintendent”. 3.81 On 10 September 2013 the claimant had a meeting with ACC Copley. The claimant sent her an email the day after (page 938 of the bundle). He referred to her request for all the papers that had been provided to the PCC, and said he would call in for them , and provide copies to ACC Copley’s PA. He went on to query whether the HSE and HM Coroner had been made aware of the issues he had raised about Operations Nixon, Somerville, Mirato and Dakar, or when they would be. She replied on 15 September 2013 (page 941 of the bundle) that no such notifications had been made, and would not be until the investigation into Nixon had been completed. 3.82 Following up the meeting ACC Copley sent the claimant an email on 24 September 2013 (pages 944 to 948 of the bundle). In this three page document she firstly asked whether the claimant would object to her being allocated his grievance. She outlined the steps that would then be taken, and identified what she considered he was raising in this grievance, which she summarised as 28 of 367 “1. You are unhappy with the investigation into your last grievance by ACC Wiggett and ACO Potts at Stages 2 and 3 respectively. 2. You are unhappy that DCS Shenton did not support you for a temporary promotion in June 2013 and you are also unhappy about the circumstances in which you were informed of that decision. 3. That you consider DCS Shenton and ACC Heywood have bullied and victimised you.” She went on the explain that there was no process for reviewing a concluded grievance, which was what she considered the claimant was seeking in issue 1. She went on to identify four sub – issues in the second and third headings. She explained how she had met with ACC Sweeney ahead of the meeting on 10 September 2013, and how it may be possible to resolve matters by an apology from him She discussed other matters in relation to how the claimant might be able to re-engage with the promotion process. She ended by making reference to the possibility that the claimant had raised of resolving his ET claim by without prejudice discussions. 3.83 On 25 September 2013 the claimant replied to ACC Copley (page 950 of the bundle) agreeing to her dealing with his grievance. He went on to respond to points that she had made in her email about his promotion. In conclusion he mentioned the possibility of another ET claim, but also expressed interest in resolving his existing ET claim by means of a without prejudice meeting. 3.84 On 26 September 2013 the claimant had a without prejudice meeting with ACC Copley , in which there was a discussion of a package of development for the claimant and promotion , including reporting immediately to Russ Jackson.The claimant would agree to withdraw his existing ET claim , and would agree that he would not be pursuing a second claim. The outcome of the meeting was not finalised until the claimant on 1 October 2013 sent an email to ACC Copley setting out his position (pages 962 to 964 of the bundle). He expressed his continued dissatisfaction, and that he would continue to seek an apology from the Force, and expose the cronyism in the Force and its consequences. He did however, agree to withdraw his ET claim, and said that he would not take out any further ET claims in respect of this grievance. 3.85 The same day the claimant sent an email to Russell Bernstein (page 965 of the bundle) expressing that he had reached an impasse with the Force, and asking for a further meeting. He pointed out that he was still awaiting the severity assessment on Operation Nixon, despite being assured that it would be completed by 20 September 2013. He asked for a further meeting. 3.86 On 2 October 2013 Kieran Murray sent an email to ACC Copley (page 967 of the bundle). He had seen the claimant’s email to her, which he described as “unfortunate”, and expressed his disappointment that the claimant had felt it necessary to send it to her. He said that the Fed. would continue to work hard to support the claimant , and thanked her for her patience to date. ACC Copley replied to him the same day (page 968 of the bundle), agreeing that the claimant needed some time to reflect, and noting that he appeared to be content with some issues, but that other remained, where he clearly wanted more. 29 of 367 3.87 On 2 October 2013 the claimant wrote to the Employment Tribunal withdrawing his claim (page 970 of the bundle). 3.88 The claimant copied to Russell Bernstein his email to ACC Copley of 26 September 2013, ahead of the meeting he was seeking. 3.89 There ensued further correspondence between the claimant and ACC Copley, but on 8 October 2013 the claimant, ACC Copley and Russell Bernstein met. It is unclear whether the claimant was accompanied by any Fed. rep. in this meeting. 3.90 The outcome was recorded in an email from ACC Copley of 8 October 2013, headed “Summary of our discussions and agreement”, in which she said this, (pages 982 to 984 of the bundle) : “I do understand that you continue to feel wronged and aggrieved by the decisions which have been made in relation to your promotion prospects, as well as the concerns you have raised about operational matters and cronyism. In trying to deal with the complex range of issues please find below a summary of where I believe we are now at:- You have withdrawn your ET and will not be submitting a second. You consider your current grievance to be completed and at an end. You will be accepting the package of development opportunities that we agreed at our last meeting, specifically:-

(a) I will arrange that with immediate effect you will report to Detective Chief Superintendent Russ Jackson for the purposes of demonstrating and assessing your readiness for promotion to the rank of Superintendent.

(b) DCS Jackson will identify a piece of project work for you to undertake to assist you in demonstrating skills and abilities to perform at the rank of Superintendent.

(c) When Detective Chief Superintendent Jackson considers you suitable to act in the rank of Superintendent, you will immediately be placed onto the list of those to be considered for temporary Superintendent duties.

(d) We will identify and agree an officer at the rank of Chief Superintendent who will act as your mentor.

(e) I will arrange for you to be invited to attend at one SLF Away Day to assist In the development of your strategic awareness.

(f) I will arrange a meeting between yourself and ACC Heywood for you to receive an apology about the delay in informing you about the decision not to support you for temporary promotion. 30 of 367 I would be grateful if you could now confirm that your current grievance is finalised and that you wish to accept these measures. Please also then let me know who you wish to have as a mentor and I will approach them. I understand that you would prefer your meeting with ACC Heywood to be alone, please let me know if you change your mind. I will now copy your plan to ACC Heywood and DCS Jackson so that your structured development work can continue. I wish you well with this and encourage you to try to look forward. You agreed that you trust DCS Jackson to assess you fairly and objectively but you remain concerned that ACC Heywood may not assess you fairly in the future. If you believe you are unfairly treated please let me know.” 3.91 ACC Copley sent an email to Russell Bernstein on the same day (pages 895 and 896 of the bundle) confirming this agreement. 3.92 The claimant met with DCS Russell Jackson on 11 October 2013 which he reported to ACC Copley by email that day (page 987 of the bundle). 3.93 On 5 November 2013 ACC Copley sent an email to the claimant about the draft of the Operation Nixon severity assessment (page 2062 of the bundle) where she said: “I would now like to turn to operational disclosures that you have made. I have read and carefully considered the draft severity assessment for Operation Nixon which has been written by D/Supt Paul Savill. It is a detailed and lengthy document. He and I are of the view that we would value the involvement of CPS at this early stage to help inform the final version of the severity assessment and the way forward. To that end we have secured the services of Janet Potter, head of the Complex Case Unit for Merseyside and Cheshire to advise us. It is not appropriate for our advice to come from John Dilworth and his team due to their connections to the investigations under discussion, Janet has agreed to deal with the matter confidentially and it is our intention that the document will be hand delivered to her. I am therefore now seeking your written agreement for me to disclose your full 'Protected Disclosures' document to the CPS to assist this process. I would be grateful if you could please respond to me at your earliest convenience. At this stage we are keeping this matter confidential and I ask that you do the same.” The claimant agreed by return email the same day ( page 2063 of the bundle). 3.94 On 7 November 2013 the claimant prepared an application for a (substantive) Supt. post , and sent it to DCS Russ Jackson (page 991 of the bundle). He gave the claimant qualified support for the application (see pages 991K(L) and (M) of the bundle), and the claimant formally submitted the application on 8 November 2013. 3.95 On 29 November 2013 a Manchester Evening News (“MEN”) article was published (not it seems, in the bundle) about the disposal of retained body parts relating to victims of Dr Harold Shipman, without the knowledge of the families. This led to a Force wide message being issued by the Chief Constable (page 994 of the bundle). In it he 31 of 367 expressed his concern that this information had been given to the victims's families by a GMP officer. 3.96 The claimant sent an email to ACC Copley on 29 November 2013 denying that he was the source for the MEN article, fearing that suspicion would fall upon him due to his disclosure (page 995 of the bundle). She replied suggesting that they meet. 3.97 Around this time ACC Copley was in contact with CS Savill who was intending to speak with the claimant. She spoke with the claimant on 2 December 2013, and sent an email to CS Savill on 3 December 2013 setting out what they had discussed (page 1002 of the bundle).The claimant had repeated that he was not responsible for the leak, and she told him that it was being investigated, and he would be spoken to. The claimant had expressed trust and confidence in the way in which ACC Copley was dealing with his concerns, and it would have been a ludicrous time for him to do anything to affect that. 3.98 On 9 December 2013 ACC Copley informed the claimant that she must withdraw from interview panel for his promotion application, and that ACC Shewan would take her place (page 1003 of the bundle). 3.99 On 11 December 2013 (a change from the original date of 12 December 2013) the claimant attended the promotion board interview for the Supt. post. The panel consisted of DCC Hopkins, ACC Shewan and CS Donnellan. He was unsuccessful. DCI Worth, however, was successful, although the date of her appointment is not documented in the bundle (the claimant references this in the third paragraph of section 4 of his PDR3 document.) 3.100 On 3 January 2014 ACC Copley sent an email about staffing in which she acknowledged that the claimant had been unsuccessful, and that he was to remain in post (page 1012 of the bundle). 3.101 On 17 January 2014 the claimant sent to ACC Copley a document entitled ‘Report re complaint of victimisation and Protected Disclosure Report 3’ dated 16 January 2014. The email to ACC Copley is at page 1015, and the attached document is at pages 1016 to 1027 of the bundle. The email was copied to Russell Bernstein. In the email the claimant said that he only wanted the Chief Constable to see the document, and was not submitting it through HR. He sought reassurance as to who had already had access to his reports. He said that he had lost all confidence in the Force and would be taking all his complaint outside it. He sought her assistance and support in ensuring that he was not subjected to any further victimisation or disadvantage. 3.102 The first three and a half pages of this document are headed “Grievance report re victimisation”, and relate to the claimant’s complaints about the promotion process he had just unsuccessfully undertaken. It starts with a specific complaint about a question that he was asked in the interview, which he believed had been hastily prepared solely for his interview, had not been asked of other candidates, and was unfair. He went on to question the whole process, including why the date of the interview as re-arranged from 12 December 2013 to 11 December 2013. He expressed his fear that he was being 32 of 367 treated this way because of his disclosures, and a suspicion that he might have been the source of the Shipman body parts story in the MEN . 3.103 The claimant went on under the heading “2. Further evidence in support of ‘protected disclosure” to make reference to the retirement party for DCS Shenton held on 27 November 2013, and the speech given by ACC Sweeney at that event. In that section he gave more information about the HTA issue (to become PD1.2) and what was to become PD3.3 , relating to the incident involving Supt. X. In the final section , entitled “Warnings proved right – further failings!” he went on to make reference to matters which would become PDs 3.1, and 3.2, and which relate to DCI Julian Snowball. Section 4 of this document is headed “Further concerns re Superintendent Promotion Process, the continuing smell of cronyism and further risks to the public.” Over the next three pages the claimant sets out allegations in relation to (but not exclusively, there are others mentioned) Denise Worth’s handling of two investigations, which would become PDs3.4 and 3.5. The latter relates to an investigation into the death of a Hungarian man, on which she was the SIO as a DCI in 2012. The former was more recent, and related to her involvement in the search for a missing person in Manchester City Centre, at the end of December 2013, when she was a Superintendent. 3.104 The claimant ends this document , under the heading “5. Conclusions” with 15 bullet points. He goes on to state his intention to take his whistleblowing reports outside the Force. He also requested that his grievance for victimisation and unfair treatment during the Superintendent Promotion Board process to be investigated. 3.105 In a separate email addressed to Russell Bernstein the same day (page 1029 of the bundle) the claimant confirmed his intention to take his whistleblowing outside the Force, and expressed his loss of patience with the Force. He attached his two previous whistleblowing reports. Whilst the claimant has stated that the PCC had referred his complaints back to the GMP, this is not, as such, documented. It is correct that the PCC did not refer the matters he raised to the IPCC, or anyone else, and did appear content that GMP continued to carry out its own investigations into the claimant’s grievances. The Tribunal cannot , however, see any formal “handing back” of the matters back to the GMP. 3.106 On 23 January 2014 the claimant emailed the IPCC , stating that he wished to disclose information as a whistleblower. He did not, at that stage, attach any of his documents, but sought a meeting. In this email he said this: “I have raised my concerns internally within GMP and tried to have the incidents investigated and action taken against those involved but as the cover ups go right up to Chief Officer level I have found that the Force has had no appetite to investigate itself. Chief Officers have simply closed ranks; prevaricating, constantly delaying responses and meetings and ultimately simply ignoring the issues I have raised, and this includes the Professional Standards Branch. I first made my complaints in May 2012 and despite my constant requests to have my complaints referred outside the Force for investigation I have been repeatedly ignored. Furthermore I have become isolated and victimised, with attempts made to blacken my name. As a result of my treatment and the resistance received within Force, In June 33 of 367 2013 I took my complaints to the PCC as a Whistleblower. Unfortunately I have found that the PCC's office appear to enjoy a very close relationship with the Chief Constable and Senior Officers, and despite my requests for the PCC to refer my complaints outside the Force he has allowed GMP to investigate Itself. As a result I have continued to encounter further delays and further prevarication and have been waiting for over 6 moths [sic] for the Force to conduct a ’severity assessment’. I know that as I write officers are Involved in trying to minimise actions, mislead and misinform to prevent the truth becoming known. I do not want to detail my disclosures within an e-mail but they are of the most serious nature and some are of a very sensitive nature, they include fallings resulting in the abuse of children, people being subjected to violent crime and loss of life. I believe the behaviour and actions of a number of senior officers amounts to Misconduct in a Public Office and criminal conduct.” 3.107 There was an initial telephone discussion (noted at pages 1084 to 1087 of the bundle) and then a meeting with the IPCC was arranged for 31 January 2014. 3.108 ACC Copley continued to correspond with the claimant. She asked whether he wanted her to continue to deal with his grievance about the promotion process. The claimant agreed that she should, so she made some enquiries. There was an exchange of emails between ACC Copley and the claimant between 24 and 27 January 2014 (pages 1062 to 1081 of the bundle). Some of these will be considered in greater detail when individual PDs are considered, but in essence , and in summary, ACC Copley explained , and apologised that the PSB assessment of Operation Nixon had been delayed, there had been CPS advice and a meeting would be held to discuss this with the claimant. On the Shipman issues, given the claimant’s referral outside the Force, she was not going to investigate this issue any further. 3.109 In relation to the concerns that the claimant had raised about a number of named colleagues, she said this (in her email of 24 January 2014, page 1063 of the bundle) : “You have again raised personal and professional concerns about a number of named colleagues, citing issues that you have observed and your conclusions. Please bear in mind that you may not know the whole story on some of these issues, you may have no knowledge of whether there has already been PSB involvement and if so, to what extent. In some cases you may never know this as it would not be appropriate for details of misconduct or performance issues for others to be shared with you.” 3.110 In relation to the missing person case involving T/Supt. Worth, she set out her account of what she asked T/Supt. Worth to do (to be considered further under PD3.5 below). 3.111 In relation to the grievance about the promotion process, ACC Copley set out her understanding of what had happened in that process. 3.112 She ended by asking him to clarify his intentions to take his disclosures outside the Force, and offered him a meeting with the DCC. She copied this email to Russell Bernstein. 34 of 367 3.113 In his response of 26 January 2014 (pages 1067 and 1068 of the bundle) the claimant declined a meeting with the DCC. He requested sight of the question papers for his promotion interview. He wanted to know who had seen his disclosures. He reiterated his concerns about the investigation of Operation Nixon, its scope, and how GMP was investigating itself. He commented upon his view of the Shipman issues (to be considered further under the discussion of PD2.1 below), his view of some of his colleagues and the cronyism that had taken place. Finally he responded with his further account of the MFH enquiry. He suggested that they should cease the exchange of such emails, but did want a meeting to discuss the update on the investigation into Operation 3.114 In her reply on 27 January 2014 (pages 1074 and 1075 of the bundle) ACC Copley informed the claimant that she had the file from the promotion board in her office, which he was welcome to view. She told the claimant that his reports had been shared with DCS Rumney, CS Savill and the CPS. They had also been shared with the CCU and DI Packer who was investigating the Shipman leak. She asked again for the claimant to clarify his intentions to take matters outside the Force. The claimant relied with an email later that day, saying that he would decide whether to pursue his grievance once he had seen the promotion board file. He did not say much more about his intentions, other than that he wanted matters examined outside the Force, but would discuss them when they met to discuss Operation Nixon. 3.115 DSI Liston of the IPCC opened a work book relating to the claimant’s complaints on 27 January 2014 (page 1082 of the bundle). 3.116 On 28 January 2014 Tom Elliott, one of the claimant’s Fed. reps. emailed ACC Copley . He referred to the claimant’s recent disclosure about the robbery in Operation Oakland, and how this was reinforcing his views about over - promotion of unsuitable officers. Tom Elliott expressed the view that seeing some progress on Operation Nixon may reduce the claimant’s “angst” (page 1089 of the bundle). 3.117 On 29.January 2014 ACC Copley emailed the claimant regarding the Operation Nixon update, and send an email to Russell Bernstein confirming the discussion as whether the Nixon matters should be investigated as matters of conduct or performance. She noted that the claimant had still not clarified his intentions in terms of going outside the Force , and stated her intention to continue dealing with matters until they were taken from her jurisdiction (pages 1091 and 2067 of the bundle). 3.118 On 30 January 2014 the claimant and Tom Elliott had a meeting with DCS Rumney. An account of what was said can be gathered from the claimant’s email later that day to ACC Copley, copied to Russell Bernstein, and DCS Rumney’s email to ACC Copley also of the same day, at pages 2068 and 2072 of the bundle respectively. In short, the claimant was told that the CPS had advised that the circumstances of Operation Nixon fell well short of the offence of misconduct in public office. (This will be discussed further under PD1.2 and PD1.3 below). 3.119 On 30 January 2014 ACC Copley emailed to DCS Russ Jackson about the need to keep an eye on the claimant’s welfare (page1098b of the bundle). 35 of 367 iii)The claimant’s disclosures to the IPCC. 3.120 On 31 January 2014 the claimant, with his Fed. rep. Tom Elliott, met with DSI Liston , and Investigator Doodson, of the IPCC , and PDR1, PDR2 and PDR3 were handed to them by the claimant. Those documents included two exhibits PPJ 1 and PPJ 2, and 10 Appendices, A to .J These have not been produced in that form to the Tribunal, and are not in the bundle, although some of the documents that comprised them may be. These are the disclosures that the claimant relies upon for these proceedings. To be clear, the actual copies of the PDRs as disclosed to the IPCC, in the form in which they were handed over to the IPCC, are not apparent from the bundle as such, but the Tribunal considers that they were in the case of PDR1 and PDR2 , they were as they appear at pages 1029 to 1054 of the bundle, and in the case of PDR3, at pages 1016 to 1027 of the bundle. 3.121 In PDR1 (page 1030 of the bundle) the claimant said this: “I have brought the very serious issues which I detail within this report to the attention of the GMP Force Command Team and other senior officers throughout the past 12 months (ACC Heywood, Chief Supt Rush, ACC Wiggett, ACO Potts, DCS Shenton and Acting Chief Supt Rumney). I also identified witnesses who could provide evidence of my disclosures; which relate to corrupt practice and serious failings in GMP. The Force has refused to investigate the matters and none of the witnesses have been seen. In sum, the issues raised have been ignored. The Police Federation have provided support to me during this time via Kieran Murray (Equality Lead) and Tom Elliott (Discipline Lead). In a final attempt to have the Force investigate the issues they met with T/Ch. Supt Paul Rumney, Head of the Professional Standards Branch. He said he had looked at the issues and refused to take the matter further. I no longer have any trust or confidence in GMP and now wish to bring these matters to the attention of the Police and Crime Commissioner. There are references within this report to a number of officers who can provide evidence in relation to the corrupt practices and serious failings within GMP which are detailed in this report. The names of some of these officers are already known to GMP Command. They and other officers also referred to within the report are rightly fearful of victimisation. As a result I have referred to all officers and GMP staff by letters of the alphabet and not by name. Their identities are disclosed as at Appendix ‘A’. I would ask that they also be afforded protection for assisting in this disclosure. Some of these officers are fully aware of my disclosure; others are persons that I know can provide evidence if interviewed, having 'first hand’ knowledge of the information and evidence that they can provide.” The Appendix A referred to has never been produced to the Tribunal. 3.122 On 7 February 2014 the claimant exchanged emails with ACC Copley (pages 1103 to 1109 of the bundle). This was largely further discussion of the CPS advice about Operation Nixon, and how ACC Copley was to deal with the outstanding grievance about 36 of 367 the promotion process. The same day the IPCC requested the claimant’s permission to share his IPCC documentation with the respondent. The claimant did not immediately provide this, and at that time the respondent was unaware that he had gone to the IPCC. 3.123 On 12 February 2014 the claimant informed ACC Copley by email that he had taken his concerns to the IPCC (page 1113 of the bundle). She replied the same day acknowledging this, and asked him to clarify what he wanted done about his outstanding grievance. She assured him of her, and DCS Russ Jackson’s , continuing support. 3.124 On 12 February 2014 IPCC Commissioner Jan Williams wrote to ACC Copley regarding the claimant’s disclosures (pages 1116-1117 of the bundle), copies of which she enclosed. She noted how , on the face of it, either there had been no assessment of whether any of the allegations amounted to a conduct matter , or whether there was any indication that a criminal offence had been committed, or disciplinary proceedings were justified. She directed that the GMP refer the Operation Nixon matter to the IPCC under the provisions of the Police Reform Act 2002. 3.125 On 13 February 2014 ACC Copley sent an email to CS Rumney and Supt Savill about the IPCC referral (page 1118 of the bundle). Supt. Savill had completed his severity assessment of Nixon on 4 February 2014, and she asked him for an electronic copy of this. She briefed the Chief Constable on the matter, and later that day sent a further email to CS Rumney and Supt. Savill (page 1120 of the bundle) in which she discussed whether ACC Sweeney , who was now seconded to the Hillsborough enquiry, should be informed of the IPCC enquiry, and what he should be told. 3.126 On 18 February 2014 ACC Copley sent a letter Jan Williams of the IPCC (pages 1124 to 1125 of the bundle) in which she provided more details of what actions the GMP had taken in response to the claimant raising many of the issues now before the IPCC. She attached a “log” of actions taken (which has been referred to as a “tracker” document) , but this has not been copied with this letter as it appears in the bundle. It was prepared by Supt. Savill, and is to be found at pages 5339 to 5567 of the bundle. It is an extensive document which sets out the respondent’s responses to the disclosures that the claimant had made , and the actions that had already been taken in response to the matters that the claimant had raised internally. 3.127 She referred to the history of the claimant’s applications for promotion since 2012, and the ensuing grievances. She explained the work that she had done to try to resolve these matters, and , in particular , how a severity assessment had been carried out on Nixon, and CPS advice had been sought, with the result that a Reg. 15 notice was to be served on TD/Supt. Scally. In relation to the various matters raised by the claimant in his disclosures, she said that the position was that some appeared worthy of a misconduct investigation, some had already been dealt with and others appeared to be mistaken. She stated that all GMP activity was now on hold pending the IPCC’s determination. 3.128 On 11 March 2014 ACC Copley had a discussion with Jan Williams as to what information could be provided to ACC Sweeney, whether the claimant would be identified as the whistleblower, and what matters the IPCC would be investigating. ACC Copley recorded this conversation in an email to herself (page 1129 of the bundle). On 37 of 367 12 March 2014 Jan Williams sent ACC Copley a letter , setting out what action the IPCC would be taking. In her letter she adopted numbering from a document that the Tribunal does not have before it, as it appears to be the “log” referred to above. It is, however, based upon the claimant’s PDR documents, and can be summarised thus. The IPCC agreed it would investigate: Operation Nixon DCI Snowball’s conduct as set out in PDR3 The Human Tissue Act issues The IPCC therefore declined to investigate the culture of cronyism and internal promotions, Operations Somerville, Mirato and Dakar, bullying, cover up, and Supt. Worth. 3.129 On 17 March 2014, having alerted GMP that it would be doing so, the IPCC issued a press release (page 1148 of the bundle) in these terms: “The Independent Police Complaints Commission (IPCC) has launched three investigations into Greater Manchester Police (GMP) following allegations made by an officer serving in the force. The officer has made a number of allegations including cronyism among senior officers, failure to follow correct procedures, failure to investigate complaints properly and corruption. The three investigations will examine; whether GMP officers misled families and the public when human remains from victims of serial killer Harold Shipman were disposed of; the actions of a Detective Chief Inspector and whether these put public safety at risk as well as the officer's alleged unauthorised bugging of a GMP office, which the force has told the IPCC did take place. claims that an investigation into alleged sexual abuse was poorly handled and the alleged failings covered-up by GMP. Officers whose actions will be investigated range from the rank of constable up to that of Assistant Chief Constable. GMP's Assistant Chief Constable Terry Sweeney is among those whose actions will be investigated. He was seconded to work on Operation Resolve, the police investigation into the Hillsborough disaster but has now stepped down from that role. IPCC Commissioner Jan Williams said: "These are serious allegations and the gravity and nature of the allegations, and the fact that they are made against senior officers within the force, means they must be investigated independently." 38 of 367 Following an IPCC assessment, a number of other allegations have been returned to GMP for the force to deal with.” 3.130 On 17 March 2014 Chief Constable Sir Peter Fahy circulated a force-wide email regarding the IPCC investigation (page 1191 of the bundle) , saying this: “Colleagues, You may be aware that today, the Independent Police Complaints Commission (IPCC) has announced that it Is to investigate a number of individuals within GMP following allegations that have been made by a serving officer. We will be fully cooperating with the IPCC to assist their Investigation and hope that this will be carried out as swiftly as possible. As matters are now subject to an independent investigation I am unable to go into much detail. However, I have stated before that the decisions dealing with (the aftermath of the Shipman Investigation were complex and sensitive; our priority was to avoid causing further distress to the families. We will be supporting the IPCC Investigation on all matters. We have a tremendous workforce that deal with challenging situations round the clock and I know that we will continue to do so and not let this situation distract us. It is important that people feel able to raise any issues or concerns they have and that those matters will be addressed. I support the need for difficult issues we face to be subjected to scrutiny and for there to be a transparent process for this. We have been working nationally with the College of Policing to develop Ethics Committees that will consider sensitive issues of policy. Locally we see great benefit in the creation of an Ombudsman to provide a clearer route for people who wish to raise issues of concern.” He went on to provide details of support available for anyone affected by the investigation. 3.131 The MEN carried the story the same day, (page 6351 of the bundle) and reported, correctly that , as a result of the IPCC investigation, ACC Sweeney had stood down from the Hillsborough Inquiry, and had returned to the GMP. 3.132 The respondent’s response to the IPCC investigation was Operation Centaurus. That was chaired by ACC Copley and first met on 17 March 2014. There had been prior discussion as to whether the claimant should be named as the whistleblower, and the view was taken that he should not be, and he was not. There was, as was anticipated, speculation in GMP that he may be, but the respondent did not release that information, nor did the IPCC. 3.133 On 20 March 2014 ACC Copley and Supt. Savill met with the IPCC, and she later set out the details of what was discussed in an email to the Chief Constable that day (pages 1251A(iii) to (iv) of the bundle). In that meeting ACC Copley asked the IPCC to investigate everything that the claimant had raised, but they would not. Further, they 39 of 367 made it clear that they would not investigate the claimant’s grievance about the last promotion process. 3.134 On 1 April 2014 ACC Copley emailed the claimant about her meeting with the IPCC, and in anticipation that he would be meeting them soon, for which she assured him he would be released from duty. She pointed out that the IPCC would not be dealing with his grievance about the Superintendent promotion exercise, and asked if he wished to progress this, and , if so, how (page 1260 of the bundle). The claimant replied to her on 3 April 2014 (pages 1263 and 1264 of the bundle) to say that he did not expect the IPCC to deal with his grievance, and asking her to return to it and investigate it. He went on to provide more information and advance more argument in support of this grievance. 3.135 On 1 April 2014 the IPCC issued the Terms of Reference for each of the investigations, code – named “Poppy” in these terms (pages 5368 to 5369, 5479 to 5480 and 5657 to 5658 of the bundle respectively): Poppy 1: Summary of events: Whether Greater Manchester Police misled families and the public relating to the disposal of human tissue from the victims of serial killer Harold Shipman. Terms of Reference To investigate; a) Whether there was active engagement with the families in respect to the human tissue. b) Was sufficient information given to families so that they could make informed decisions about the actions taken by Greater Manchester Police. c) Who made the decision to dispose of the human tissue by incineration. d) Whether the decision making was supported in law. e) Whether the human tissue had previously been declared correctly through the ACPO audit process. f) Whether the actions of Greater Manchester Police, in the disposal of the human tissue, were reasonable in the circumstances. g) How was the human tissue destroyed and how did Greater Manchester Police record this. 40 of 367 3. To identify whether any subject of the investigation, in the investigator’s opinion, has a case to answer for misconduct or gross misconduct, or no case to answer. 4 To consider and report on whether there is organisational learning, including:

• whether any change in policy or practice would help to prevent a recurrence of the event, incident or conduct investigated;

• whether the incident highlights any good practice that should be shared. Poppy 2: Summary of events Claims that an investigation, Operation Nixon, into alleged sexual abuse was poorly handled and the alleged failings covered-up by Greater Manchester Police. Terms of Reference 1- To investigate; a) What was the purpose of the Operation. b) Were there clear strategic objectives for the Operation. c) If these strategic objectives of the Operation were met by the actions on Sunday 17 April 2011. d) If the strategic objectives were not met, were there any individual or organisational failings which contributed to it. e) Was Greater Manchester Police’s subsequent internal review of Operation Nixon effective to address the events of 17 April 2011. 3. To identify whether any subject of the investigation, in the investigator’s opinion, has a case to answer for misconduct or gross misconduct, or no case to answer. Poppy 3: Summary of events That Julian Snowball utilised an unauthorised audio recording device and he was then transferred. There is an issue whether his actions on Operation Oakland put public safety at risk. Terms of Reference 41 of 367 To investigate; a) Were the actions of Julian Snowball, in relation to the placement of an audio recording device in the offices of Greater Manchester Police, lawful? b) Were these actions of Julian Snowball appropriately dealt with by Greater Manchester police In relation to the audio recording device. c) Examine the actions of Julian Snowball whilst engaged on Operation Oakland.;

• What was the purpose of the Operation.

• Were there clear strategic objectives for the Operation.

• If the strategic objectives for the Operation were met.

• If the strategic objectives were not met, were there any individual or organisational failings which contributed to it. 3. To identify whether any subject of the investigation, in the investigator’s opinion, has a case to answer for misconduct or gross misconduct, or no case to answer. 4. To consider and report on whether there is organisational learning, Including:

• whether any change in policy or practice would help to prevent a recurrence of the event, incident or conduct investigated;

• whether the Incident highlights any good practice that should be shared. 3.136 On 7 April 2014 the claimant received the approved Terms of Reference for the IPCC investigation (page 1267 of the bundle). On 7 April 2014 the claimant sent an email (pages 1271 to 1272 of the bundle) to ACC Copley regarding his concerns about officers being approached regarding status in the investigation, the signing of a card of support for ACC Sweeney , the claimant’s status as a whistleblower becoming known , the selection of officers for the team to respond to IPCC disclosures and his Fed, rep. Tom Elliott being put on “gardening leave” (matters that have been relied upon, in most instances, as detriments). 3.137 On 10 April 214 the claimant met with IPCC. In the ensuing weeks there was further email traffic between the claimant and ACC Copley in which the claimant raised various issues about his treatment as a whistleblower. The IPCC are involved in this, as the lead investigator, Steve Martin , was also appraised of the claimant’s concerns. The possibility of a further grievance, against the DCC, was discussed. The PCC was also involved as a possible decision maker. It is not proposed to rehearse this communication in any detail here. 42 of 367 3.138 On 16 April 2014 the IPCC updated ACC Copley on the progress of the three Poppy Investigations (pages 5765 and 5766 of the bundle). 3.139 On 30 April 2014 the IPCC issued a reg. 16 Notice of alleged breach of the standards of professional behaviour on TD/Supt. Scally (page 2117 to 2120 of the 3.140 On 2 May 2014 there was a meeting between two members of the IPCC, Chief Constable Fahy and the Police and Crime Commissioner (see page 1306 of the 3.141 On 6 May 2014 ACC Copley and the claimant had a phone conversation. The next day ACC Copley sent the claimant an email (page 1313 to 1315 of the bundle) confirming their discussion. An Acting Detective Superintendent post in the MIT had become available. This was a development post, but as there was another candidate for it, Peter Marsh, each of them would do 6 months, Peter Marsh doing the first 6, with the claimant starting on 1 December 2014. In the rest of the email ACC Copley sought to answer the claimant’s various issues that he had raised in his previous emails, as to his welfare and allegations of further mistreatment due to his being identified as a whistleblower. 3.142 There ensued further email traffic about the claimant being offered the role of head of MIT , and regarding his welfare . On 12 May 2014 the claimant presented his further ET claim, number 2401467/2014 (pages 17 to 28 of the bundle). The claimant informed ACC Copley that he had done this by email on that day (page 1328 of the bundle) . In this claim, which he drafted himself , he claimed to have suffered detriments in the form of being identified as a whistleblower, and being victimised. This was, however, as he said, a protective claim, as he hoped to resolve issues by means of his grievance. 3.143 On 19 May 2014 ACC Copley invited the claimant to a meeting with Chief Constable Sir Peter Fahy (page 1335 of the bundle). 3.144 On 19, 21 and 23 May 2014 the claimant was interviewed by the IPCC. 3.145 On 11 June 2014 the claimant attended a meeting with Chief Constable Fahy along with ACC Copley and DCS Jackson and Federation representative PC Rothwell. This meeting was intended to resolve the claimant’s grievances, but did not go well, and became one of the detriments that the claimant claims in these proceedings. ACC Copley’s account of that meeting is in her email of 14 June 2014 (pages 1356 to 1358 of the bundle) and the claimant’s is in a note (wrongly dated 13 May 2014) attached to an email from him of 13 June 2014 (pages 1346 to 1350 of the bundle). It is not necessary at this juncture for the Tribunal to make findings about the details of what occurred in this meeting. 3.146 The claimant then went off work sick, with work related stress , having said , in his email referred to above, that he assumed that negotiations were now at an end, and that he had no option now but to proceed to an Employment Tribunal. 43 of 367 3.147 On 13 July 2014 the claimant’s son suffered a serious and potentially life - threatening assault in Manchester city centre. Whilst the claimant had been due to return to work, he then obtained a fit note for a further week for stress (page 1385 of the bundle). The ensuing investigation was assigned to the MIT, an unusual step. The claimant was unhappy with the investigation, became involved in it, having issues with the way in which it was being conducted, and seeking to have some input as to what charges should be preferred against the suspect that was arrested. This was to cause some issues as to whether he unduly interfered in it, and the CPS later raised some concerns about his actions. 3.148 On 15 July 2014 the Employment Tribunal rejected the claim that the claimant had submitted dated 12 May 2014 (pages 36-37 of the bundle) due to non – compliance with the early conciliation provisions. 3.149 Whilst it had been the intention that the claimant would take up the Acting position in MIT in December 2014, due to there being no successful candidate for the post of Head of MIT, and Peter Marsh declining to take up the Acting post , on 16 July 2014 the claimant was offered the post as Temporary Detective Supt as Head of Major Incident Team by ACC Copley in a meeting with her. The claimant expressed the view that this should be a permanent position, a substantive promotion, but she explained how this was not possible. He returned to work on or about 23 July 2014 (when he underwent a return to work interview) as a T/DSupt. in the role of Head of MIT. 3.150 On 29 July 2014 the claimant presented his ET1 in claim number 2401945/2014 (pages 38-55 of the bundle ). The claimant was now represented, and this claim was drafted by and submitted by his solicitors. The Tribunal refers to the procedural history in Annexe A for the details of this claim. 3.151 On 5 August 2014 the claimant withdrew his grievance of 1 September 2013, after discussion with ACC Copley. This is recorded in the form at page 1402 of the bundle. 3.152 On 12 August 2014 the IPCC issued a press statement , entitled ‘Notices served on GMP officers as part of whistleblower investigations’ (page 1407 of the bundle). This was a reference to the fact that the Chief Constable, ACC Sweeney, TD/Supt. Scally and DI Bridge had been served with Notices under the Police (Conduct) Regulations 3.153 In 14 August 2014 the PSB was considering the claimant’s conduct in connection with the assault on his son, and a severity assessment was carried out, with a view to a possible referral to the IPCC. That referral was made on 18 August 2014, but on 22 August 2014 the IPCC returned it (page 2718A of the bundle) saying that there did not appear to be evidence of misconduct , and left the matter for GMP to deal with. 3.154 On 20 September 2014 IPCC and GMP made statements about ACC Sweeney’s retirement (whilst ACC Sweeney was being investigated) . He retired on 30 October 2014, and this was the subject of a newspaper article in the MEN (pages 6394 to 6396 44 of 367 3.155 On 22 September 2014 a final (there had been earlier ones) severity assessment was carried out into the claimant’s actions in respect of his son’s case. The recommendation was for local management action (page 2759 to 2764 of the bundle). On 24 September 2014 ACC Copley agreed to local management action being taken, and this was implemented by DCS Russ Jackson. 3.156 DCS Jackson continued to line manage the claimant , and there remained some difficulties in their relationship. Various issues were raised, which are not relevant for this section of the judgment, but, in short, each had issues with the other. In summary, the claimant was still raising some historic issues, and concerns about his treatment for being perceived as a whistleblower, and DCS Russ Jackson was finding the claimant difficult to manage , with senior colleagues reporting their issues with the claimant to him. 3.157 The IPCC investigations continued, with witness statements being taken from a large number of witnesses. On 1 December 2014 the claimant signed his IPCC witness statement (pages 1444 to 1515 of the bundle). 3.158 On 5 March 2015 the IPCC issued a press release entitled ‘Update on GMP whistleblower investigations’. In it the withdrawal of misconduct notices against the Chief Constable, ACC Sweeney (whose retirement was noted),and another unidentified retired officer was mentioned, as was the fact, that a DI and a DS were still under notices of criminal or misconduct notices , and that a DCI remained subject to a misconduct notice. The press release went on to state that the investigation into the Shipman body parts was continuing, but that the IPCC was no longer investigating the alleged cover – up of Mr Snowball’s bugging of other officers. The Operation Oakland investigation (without it being so identified) was also continuing . 3.159 On 11 March 2015 the claimant met with the Chief Constable to discuss his grievances, the discussion focussing on the promotion process. Denise Hill , the Head of Human Resources, was to carry out a review of the process. The claimant sent an email (pages 1534 and 1535 of the bundle) after this meeting setting out his suggestions for how this should be carried out. 3.160 On 13 April 2015 a gross misconduct notice was served on Mr Snowball. The same day the claimant wrote to the IPCC Commissioner expressing his concerns over the progress of the IPCC investigations . In this 5 page document he was critical of the IPCC for the manner in which it had returned much of what he had disclosed back to the GMP, and had split the investigations into three. He was very critical of the investigations, and questioned the experience and abilities of the investigators. He asked for a meeting with the Commissioners. He also gave the IPCC further information about D/Supt. Barraclough allegedly suggesting there should be destruction of documentation relating to actions taken over Shipman body parts in order to frustrate any future FOI (Freedom of Information Act) requests (pages 1537 to 1541 of the 3.161 The substantive response from the IPCC (Dan Budge) of 24 April 2015 does not appear in the bundle, but the claimant’s response to it of 26 May 2015 does (pages 45 of 367 1547 to 1550 of the bundle). In it, he remained critical of the IPCC, did not accept the responses he had been given, and sought more updates. 3.162 On 26 July 2015 Paul Massey , the head of a Salford OCG, was shot dead . Shortly afterwards , on 12 August 2015 Mark Fellowes, another OCG member, was also shot . The initial investigation was carried out by Operation Vail. After some discussion, however, and because of the seriousness and potential escalation of inter – gang violence , it was suggested by the claimant that all the connected Operations be brought under one umbrella Operation. This was agreed, and that Operation became Operation Leopard. On 25 September 2015 Russ Jackson set Terms of Reference for Operation Leopard (see page OL 1210). 3.163 On 29 September 2015 the claimant was sent those terms of reference for Operation Leopard, and was confirmed as OIOC by DCS Russ Jackson . Russ Jackson was appointed PIP4 on 12 October 2015 3.164 On 23 October 2015 Chief Constable Sir Peter Fahy retired. His successor was Ian Hopkins 3.165 There are a number of issues which arose during the claimant’s tenure as OIOC of Operation Leopard, many of which are relied upon as detriments and/or particulars of breach of contract for the claimant’s detriments and constructive dismissal claims. They will be considered, as appropriate, in those contexts in due course. It is not, however, necessary to consider them any further at this juncture, save to record that there were conflicts between the claimant and DCS Russ Jackson, and other senior officers in Operation Leopard. 3.166 The next relevant background facts relate to the review of Operation Leopard, the proposed removal of the claimant from the post of OIOC, his sickness absence, and subsequent departure from the Force. These are basic , chronological facts, and not findings of any issues which require determination for the purposes of the detriment and/or constructive dismissal claims. 3.167 On 2 March 2016 Martin Bottomley was instructed by DCS Russ Jackson to complete a review of Operation Leopard within 2 weeks. On 16 March 2016 the Organisational Review began. 3.168 On 29 March 2016 there was a meeting between DCC Pilling, ACC Sutcliffe, DCS Russ Jackson , Martin Bottomley and a legal representative at which the claimant’s tenure as OIOC was discussed (see OL page 1092). 3.169 On 30 March 2016 ACC Sutcliffe and DCS Russ Jackson met with the claimant to discuss his removal as OIOC . ACC Sutcliffe sent the claimant an email (sent 16:19) with the rationale for the decision (see OL page 1118) The claimant was informed by ACC Sutcliffe and DCS Jackson of his removal as OIOC. It was then suggested the claimant became Deputy OIOC with full time PIP4 rather than being replaced as OIOC. The claimant challenged the decision to remove him as OIOC. ACC Sutcliffe said the claimant could remain as OIOC with D/Supt Barraclough as full time PIP4. 46 of 367 3.170 On 5 April 2016 the claimant informed ACC Sutcliffe, DCS Jackson and Martin Bottomley of his intention to remain as OIOC , but with a PIP4 other than Simon Barraclough . DCC Pilling then took the decision to remove him and replace him with D/Supt Barraclough (see OL pages 1147 to 1150) 3.171 On 5 April 2016 the claimant submitted a grievance in relation to DCS Russ Jackson, ACC Rebekah Sutcliffe, and Martin Bottomley (OL page 1150). The history of that grievance, who deal with it, when and how, are the subject of the Tribunal’s findings of fact in relation to the constructive dismissal claim under Chapter 6. iv).The IPCC investigation outcomes. 3.172 On 6 April 2016 the IPCC provided the Poppy 3 (Snowball) outcome report, dated 5 April 2016 (pages 5661 to 5734 of the bundle) to the respondent (see page 5807 of the bundle where this is confirmed to the claimant). Its conclusions in relation to the respondent’s investigation into the bugging incident (pages 5714 to 5715 of the bundle) was that the investigation carried out by the GMP complied with the legislation, was within the range of reasonable responses and could not be criticised. The decision to award a written warning was similarly found to be one that the GMP was entitled to make at the misconduct meeting. 3.173 In relation to Operation Oakland the IPCC conclusions were (at pages 5728 to 5734 of the bundle): Mr Snowball’s conduct was not criminal He had a case to answer for misconduct There were mitigating factors which the Appropriate Authority may wish to take into account when determining the misconduct charge. 3.174 On 7 April 2016 the claimant reported sick due to work related stress. He never thereafter returned to work . 3.175 On 26 April 2016 the IPCC sent the Poppy 1 (human tissue) outcome report to the respondent, as was confirmed to the claimant in a letter from the IPCC on 25 May 2016 (page 5810 of the bundle). The final report was dated 29 April 2016 (pages 5372 to 5464 of the bundle) . Its conclusions (pages 5463 and 5464 of the bundle) were: ACC Sweeney did not have a case to answer for misconduct in respect of the disposal of the Shipman human tissue by incineration and without informing the Shipman victims’ families. In respect of an email exchange between ACC Sweeney and DCS Shenton (which came to light in the investigation, and was not one of the matters that the claimant had disclosed) this was inappropriate and may be considered to demonstrate indifference to the distress and upset caused to professional colleagues engaged in grappling with an extremely difficult and emotive issue. The degree of indifference expressed in the email, taken together with the apparent failure to engage in a fully transparent and accountable manner, was so serious as to amount to a case to answer for misconduct. 47 of 367 3.176 The investigator recorded this: “627. Hence for the avoidance of doubt in the view of the investigator there is evidence which may provide the basis for a potential finding that ACC Sweeney’s conduct fell below the standards of professional behaviour expected of him relating to the manner in which the issues around the Shipman tissue samples were dealt with but not as regards the substantive decisions on the issue of disclosure to families and the manner of disposal.” 3.177 On 2 September 2016 the claimant presented his further ET1 claim number 2402865/2016 (pages 83 to 99 of the bundle). 3.178 On 23 September 2016 the Poppy 2 outcome report (pages 5481 to 5611 of the bundle) was sent by the IPCC to the respondent, of which the claimant was informed by letter (see page 5817 of the bundle) the same day . Its conclusions (at pages 5607 and 5608 of the bundle) were: “1020. Regardless of the lack of resources available to Det. Supt Scally, he made the decision to have DI Bridge, an officer inexperienced and untrained in covert policing, on duty that weekend. Further, he considered it appropriate to deploy knowing the limitations of the team. 1021. He also knew the limitations of the surveillance position and the intelligence feed. Det. Supt Scally had been made aware of the paramountcy principle and duties therein. It is reasonable to suggest that that at no time was Det. Supt Scally absolutely sure that the Children were not at immediate risk of harm or even had been harmed. This aspect remains unclear. 1022. There was a lack of pre-planned tactics, due to Det Supt Scally’s record keeping, limited the available options for DI Bridge. It meant that any intervention or disruption would be based on dynamic decision making. While an experienced officer may have been comfortable with this situation, DI Bridge clearly was not. 1023. Det Supt Scally*s telephone support to DI Bridge was well intentioned, however there is and was clearly confusion as to who had responsibility for decision making. The lack of clarity as to what was expected from DI Bridge, in terms of updates and Information sharing, exacerbated this issue. 1024. By default, during the incident on 17 April 2011Det Supt Scally delegated the risk management of Child 44 and 48 to an inexperienced officer. Given he had effectively declared himself on duty and he was the only experienced covert officer, Det Supt Scally should have considered managing the incident personally having decided to let It go ahead without any kind of intervention to prevent it taking place. 1025. It is also evident that Det Supt Scally was made aware that Nominal 7 had left with Child 44 and 48. Like DI Bridge, Det Supt Scally did not instigate any action to deal with this risk. Indeed, it is also not clear that he had even planned or considered this scenario. 48 of 367 1026. Given his seniority of rank, the nature of the risks posed by Nominal 7, the foreseeable limitations of resources available to manage the risk it is considered by the lead investigator that Det Supt Scally was not diligent in his duties. 1027. Based on the evidence presented above, it is my opinion that Det. Supt. Scally has a case to answer for misconduct.” 3.179 In relation to DI Bridge, the conclusion was similarly that he too was not diligent in his duties, and had a case to answer for misconduct. Accordingly TD/Supt. Scally and DI Bridge were recommended for misconduct proceedings. The claimant was informed that this was the outcome, without the officers being named. 3.180 in summary, the claimant was informed by the IPCC of the final conclusions of the Poppy reports (but not provided with copies thereof) , and whether any misconduct action had been recommended , by: Poppy 3 – letter of 13 May 2016 (page 5808 of the bundle) Poppy 1 – letter of 25 May 2016 (page 5810 of the bundle) Poppy 2 – letter of 15 November 2016 (page 5820 of the bundle) 3.181 On 31 January 2017 the claimant retired from the GMP. The full facts of the circumstances leading up that are set out in the Tribunal’s judgment at Chapter 6. 3.182 On 17 March 2017 TD/Supt. Scally’s misconduct hearing was held by CS Wayne Miller. The outcome was that misconduct was not proven, and “unsatisfactory performance” was the decision. The Written Decision dated 17 March 2017 is at pages 2191 to 2196 of the bundle . 3.183 The hearing of the misconduct allegation against DI Bridge was also heard by CS Wayne Miller the same day. He came to the same conclusion in respect of his conduct, and this too was found to be unsatisfactory performance (see pages 2197 to 2201 of the bundle for his Written Decision). 3.184 On 31March 2017 the Julian Snowball misconduct meeting, arising out of Operation Oakland was held by DS Emily Higham. The decision she made is recorded in the Written Decision document at pages 2402 to 2404 of the bundle. She noted his inexperience, and naïve decision making, but found, after some discussion, that the charge of misconduct was not proven, and that the issues should be treated as a performance matter. 3.185 As a result of the IPCC investigations, the following officers had received Notices (at the level set out below) under the Police (Misconduct) Regulations, with the following outcomes: Sir Peter Fahy Gross Misconduct 1 Aug 2014 - Withdrawn 5 March 2015 ACC Sweeney Gross Misconduct 3 Sept 2014 – Retired 49 of 367 DCS Shenton Gross Misconduct 3 Sept 2014 - Withdrawn 5 March 2015 DCI Warren Gross Misconduct 11 Aug 2014 - Withdrawn 2 July 2015 TD/Supt. Scally Gross Misconduct 19 May 2014 – Unsatisfactory performance DCI Bridge Gross Misconduct 3 October 2014 – Unsatisfactory performance DCI Snowball Gross Misconduct 13 April 2015 – Unsatisfactory performance 3. 186 The claimant continued to correspond with the IPCC after his retirement, enquiring about what actions had been taken against the officers whose conduct had been referred back to the GMP, and trying to persuade the IPCC to investigate Operation Grainger, in which ACC Heywood’s evidence had been the subject of strong criticism from a Crown Court Judge. II. 4. Those, then are the relevant facts which are the background or core facts, which set the timeline, and context in which the claimant’s claims fall to be considered. Both types of the claimant’s claims, be they detriment or dismissal, rely upon his having made protected disclosures. Indeed, given that the claimant seeks to make no link between any particular disclosure, and any particular detriment , or treatment amounting to grounds for him to resign and claim constructive dismissal, his case (not accepted by the respondent, however) is that his claims could potentially succeed if he only establishes that he had made one protected disclosure. The converse, of course, is that if he cannot establish that he made even one protected disclosure, all his claims must fail. II. 5.The Tribunal proposes therefore, rather than rehearse all its relevant findings of fact in respect of all the issues in the claims, to pause here, and next to set out its findings in respect of the issues as to whether the claimant made any protected disclosures. Then, if it is found that he did, to identify those disclosures , and then set out its relevant findings of fact in respect of the detriment and dismissal claims. The Tribunal trusts that this will assist to prevent conflation of the evidence and issues, and assist in the determination of what are quite separate and distinct issues. Chapter III: The protected disclosures – the Tribunal’s approach. a.The protected disclosures relied upon – summary. III 1. As the claims were finally presented to the Tribunal, the claimant put his case solely upon the disclosures that he made to the IPCC in January 2014. Thus , whilst there is reference to prior “disclosures” made internally in grievances to the respondent, and then to the PCC, in mid - 2013, none of these were, in the end, relied upon as protected disclosures for the purposes of these claims. That was, however, not always the case, and, as the procedural history sets out , initially the claimant was relying upon disclosures made to the respondent and the PCC, but then abandoned these, and relied solely upon those he made to the IPCC, (in writing, and not, as was set out in the List of Issues, in any information provided orally in interviews) . 50 of 367 III 2. All the disclosures relied upon, therefore, are those contained in the three documents that the claimant submitted to the IPCC – “PDR1” (pages 836 - 857 of the bundle) , “PDR2”(pages 858 to 860 of the bundle) and “PDR3” (pages 1016 to 1027 of the bundle). The first two of these documents bear the date 20 June 2013, because the claimant submitted them to the PCC around that time. The third, however, is dated 16 January 2014, and had not previously been submitted to the PCC. III 3. Whilst these documents contain the disclosures that the claimant relies upon for these claims, the claimant does not claim that the entirety of the contents of these documents constitute his protected disclosures for the purposes of these claims. It therefore follows that the claimant , on his own case made , in these documents, both protected and unprotected disclosures. III 4. The respondent , in his response documents, has admitted that the claimant made disclosures which “conveyed information”, but has made no further admissions than that. He has therefore put the claimant to proof of all the remaining elements of protected III 5. The claimant originally contended that he had made 23 protected disclosures, but by email of 1 December 2021 disclosures nos.1.7, 1.10, 1.15 and 1.17 have been abandoned, so that now only some 19 are relied upon for these claims. They are (using abbreviated descriptions which are not necessarily totally accurate): Protected disclosure 1.1: Corrupt promotion of DCI Scally in early 2011. Protected disclosure 1.2: decision by Scally not to intervene to protect child. Protected disclosure 1.3: cover up of failure to safeguard child. Protected disclosure 1.4: Scally allowed to retain position and critical role. Protected disclosure 1.5: release of Dale Cregan on bail. Protected disclosure 1.6: significant failings in Operations Somerville, Mirato and Dakar. Protected disclosure 1.8: strategy of executing repeated warrants on Cregan family. Protected disclosure 1.9: placing two unarmed officers outside the house of an associate of Dale Cregan. Protected disclosure 1.11: corruption in promotion of Scally in 2013 to North-West Counter-Terrorist Unit. Protected disclosure 1.12: unlawful use of bugging devices by CI Snowball. Protected disclosure 1.13: failure to impose appropriate disciplinary sanction on CI Snowball. 51 of 367 Protected disclosure 1.14: When a review of Operation Span (sexual abuse of children in Rochdale) undertaken by the Greater Manchester Police Review Team resulted in a report which was highly critical of the Force, ACC Sweeney told the authors of the report to change it and, when they refused to do so, suppressed the original report and arranged for a report to be written by the Force Review Officer, Martin Bottomley. Protected disclosure 1.16: DCI Denise Worth was supported for promotion because of her close relationship with ACC Sheard and in spite of having been taken off the Operation Somerville murder investigation for alleged failings (this being cited as another example of cronyism) Protected disclosure 2.1: DCS Shenton, with the knowledge of ACC Sweeney and ACC Heywood, authorised the destruction of human tissue from the victims of Harold Shipman without notifying their families. Protected disclosure 3.1: DCI Snowball oversaw an operation whereby police were ordered to stand by and watch as criminals put on balaclavas in a car park and then armed themselves with baseball bats before committing an armed robbery at a pub in the Stockport area. DCI Snowball could have directed officers to intervene, arrest the offenders and safeguard the members of the public in the pub, but instead allowed the landlord/licensee and customers to be subjected to a violent robbery. Protected disclosure 3.2: No disciplinary action was taken against DCI Snowball for allowing the robbery to take place, or for falsifying details on a warrant in the investigation, because of his friendship with ACC Sweeney and other senior officers. Protected disclosure 3.3: ACC Sweeney arranged for DCS Shenton and TD/Supt Scally to deal with a domestic incident between a Superintendent and his wife in an unlawful and inappropriate manner, which involved the Superintendent’s wife being unlawfully arrested and her home unlawfully searched by a Major Incident Team for sexual video material relating to the Superintendent. Protected disclosure 3.4: Superintendent Denise Worth failed to implement urgent actions in relation to a missing person’s investigation, including actions recommended by the Claimant, which could have located the missing person’s mobile phone and thus the missing person himself many hours earlier. The individual was later found dead after a fall. Protected disclosure 3.5 : Superintendent Worth, when DCI, led an investigation into the death outdoors of a Hungarian man and determined it was accidental. At the inquest the Coroner concluded that the case was suspicious and referred the case back to GMP for review. Following that review, it was decided to investigate the case as a murder, the previous decision making of DCI Worth hindering the progress of the case and reducing the opportunities for successful conclusion. III 6. These disclosures have been given the abbreviations “PD1.1” etc., and the term “protected disclosure” has been abbreviated to “PD” in much of the documentation, and this will generally be the usage adopted in this judgment. 52 of 367 b.) Discussion of the Tribunal’s approach to the determination of the protected i)Grouping. III 7. Whilst the claimant has pleaded his protected disclosures in a particular fashion, they are not , with respect and no criticism, set out in a particularly logical or coherent manner. If taken strictly in numerical order they would involve the Tribunal having to recite and refer back to evidence that is relevant evidence across more than one III 8. The Tribunal, accordingly, proposes to group the disclosures together, so that where the evidence overlaps, it will not need to be rehearsed in full more than once , and a more coherent overall picture will hopefully emerge. III 9. In some instances, of course, disclosures are “stand alone”, and will be treated as such, in Group 6. Where they are not, whilst still considered as separate and individual disclosures, they will be considered in sequence as part of a group with broadly common subject matter. III 10. Accordingly, the Tribunal proposes to deal with the disclosures in this order: Group 1: Disclosures pertaining to TD/Supt. Scally and cronyism: i.Protected disclosure 1.1: (Corrupt promotion of DCI Scally in early 2011) ii.Protected disclosure 1.11 (Corrupt promotion of TD/Sup Scally in 2013 to North-West Counter-Terrorist Unit) Group 2 : Disclosures relating to Operation Nixon , the alleged cover – up and lack of action against TD/Supt. Scally . iii.Protected disclosure 1.2: (Decision by Supt. Scally not to intervene to protect child) iv.Protected disclosure 1.3: (Cover up of failure to safeguard child) v. Protected disclosure 1.4 (Scally allowed to retain position and critical role) Group 3 : Disclosures pertaining to the failings of TD/Supt. Scally and others in respect of the Operations to apprehend Dale Cregan. vi.Protected disclosure 1.5 (Release of Dale Cregan on bail) vii.Protected disclosure 1.6: (Significant failings in Operations Somerville, Mirato and Dakar) 53 of 367 viii .Protected disclosure 1.8 (Strategy of executing repeated warrants on the Cregan family) ix. Protected disclosure 1.9 (Placing two unarmed officers outside the house of an associate of Dale Cregan) Group 4 : Disclosures relating to the conduct of T/Supt. Snowball and the lack of action taken against him. x. Protected disclosure 1.12 (Unlawful use of bugging devices by DCI Snowball) xi .Protected disclosure 1.13 (Failure to impose appropriate disciplinary sanction on CI Snowball) xii. Protected disclosure 3.1 (DCI Snowball allowing robbery in a public house to take place) xiii. Protected disclosure 3.2 (Failure to take disciplinary action against DCI Snowball) Group 5 : Disclosures relating to the promotion of DCI Worth and her alleged failings as an SIO. xiv. Protected disclosure 1.16 (Support of DCI Worth for promotion) xv. Protected disclosure 3.4 (Supt Worth’s failure to utilise covert tactic CT1 in a missing person enquiry) xvi. Protected disclosure 3.5 (Supt Worth’s failure to treat the death of a Hungarian man as other than accidental) Group 6: Stand alone disclosures: xvii .Protected disclosure 1.14 (Re – write of review of Operation Span) xviii. Protected disclosure 2.1 (Disposal of human tissue) ix. Protected disclosure 3.3 (Despatch of senior officers to deal with a domestic incident) ii).The Law – protected discsloures. III 11. Before setting out the relevant facts, and considering each PD in turn, the Tribunal considers that it would be of assistance to set out the relevant law that it will apply to these issues. The definition of protected disclosure is to be found in the Employment Rights Act 1996 (the ERA”), thus: 54 of 367 43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. III 12. Whereas, up until 2013 there was also a requirement that the disclosure be made in good faith, that requirement was removed in relation to the definition of protected disclosure , and instead, by s.49 ,and amendment of s.123 of the ERA, good faith now only goes to remedy, whereby a lack of good faith, if established, will entitle the Tribunal to reduce any compensation awarded by up to 25%. The respondent made an unsuccessful attempt to amend the response to add such a plea in this case, so any alleged lack of good faith can go to neither liability nor to remedy. III 13. Further, the Tribunal’s understanding is that , as he is relying solely upon his disclosures to the IPCC, and not any prior disclosures to the respondent internally, or the PCC, the claimant has made disclosures which fall within s.43F of the ERA, disclosures to a prescribed person. The “person” in question was therefore the IPCC, now the Independent Office for Police Conduct. III 14. The claimant did make a late, but unsuccessful , application to amend his claims to contend that he had made his disclosures pursuant to s.43C(2), in that , although made to the IPCC, the disclosures were made by him “in accordance with a procedure whose use by him is authorised by his employer ”, and hence are to be treated as being made to the respondent. That would take them out of the regime of s.43F. III 15. The Tribunal rejected that application (reasons were given orally and in writing). Examination of the manner in which the claimant made his disclosures to the IPCC confirmed that he did so by direct contact with the IPCC, so could not begin to bring himself within the provisions of s.43C(2). III 16. Hence the provisions of s.43F are applicable. They are as follows: 55 of 367 43F Disclosure to prescribed person (1) A qualifying disclosure is made in accordance with this section if the worker— (a) makes the disclosure … to a person prescribed by an order made by the Secretary of State for the purposes of this section, and (b) reasonably believes— (i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true. (2) An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each descriptions, is or are prescribed. III 17. At the time of the claimant’s disclosures in January 2014, the relevant order prescribing the IPCC as a prescribed person was the Public Interest Disclosure (Prescribed Persons) Order 1999. That was superseded by the 2014 Order, which expressly provides that the former will apply to any disclosure made before 1 October 2104. Whilst the original 1999 Order did not prescribe the IPCC as a relevant body for this purpose, it subsequently was by Public Interest Disclosure (Prescribed Persons) Order 2014 (SI 2014/2418) , and no issue is taken upon the claimant having made his disclosures to the IPCC, or that he reasonably believed that the information disclosed fell within a description of matters in respect of which that body was so prescribed. iii) The Tribunal’s approach to determining whether the claimant made protected III 18. Guidance as to how the Tribunal should carry out its task is set out in the leading case of Kilraine v. London Borough of Wandsworth

[2018] ICR 1850

, in which Sales LJ said , at para: 36 “Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in s 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.” And at para. 41 56 of 367 “It is true that whether a particular disclosure satisfies the test in s 43B(1) should be assessed in the light of the particular context in which it is made.” III 19. Before proceeding any further, the Tribunal must set out the issues that it has had to consider , and the legal tests that it has to apply, before determining whether the claimant did make any protected disclosures. Whilst ordinarily that would be a relatively straightforward exercise, that has not been the case in these proceedings. III 20. The reason for that lies in the origins and evolution of the claimant’s disclosures. The genesis of the difficulties faced by the Tribunal lies in the fact that the claimant’s disclosures were not contained in one single document, in which a few specific and clear disclosures were made, which are claimed to attract protection under s. 43B, but rather they were contained in three separate documents, sent to the IPCC on 31 January 2014. Further, the entirety of the contents of these documents is not relied upon as amounting to the protected disclosures, but rather some 19 (now, formerly it was 23) specific disclosures are relied upon as amounting to protected disclosures. The Tribunal has also not been assisted by the fact that the PDR documents have not been included in the bundle in the form that they were sent to the IPCC, in that there were at least 10 Appendices to the first PDR, referenced by the claimant as Appendices A to J, but , whereas one would have expected them to have followed on in the bundle in sequence, they do not. Rather the Tribunal has had to try to identify them in the bundle by piecing together the evidence as to what they may have been. This has proved possible in most instances, but the Tribunal is far from confident that it has even now correctly identified all these Appendices. III 21. These disclosures have their origins in the claimant’s grievances following his unsuccessful applications for promotion. The claimant first raised a grievance against DCS Shenton for failing to support him in the promotion process (Grievance Report pages 527-536 of the bundle) on 25 June 2012 . That document not only sets out why the claimant felt that he had the necessary qualifications and experience to be promoted, but also sets out the claimant’s allegations that other officers had been favoured and over – promoted because of a culture of cronyism that went on to become the central theme of the disclosures that he made to the IPCC, some (but not all) of which are relied upon as the claimant’s protected disclosures in these proceedings. III 22. A full account of the procedural history is contained in Annexe A, but a consequence of the way in which the claimant’s protected disclosures have come to be fully formulated and pleaded has been that this did not occur until a very late stage in the proceedings . For a considerable time previously , the protected disclosures were not identified as individual disclosures , but merely by reference to the claimant’s PDR documents (1,2 and 3) that he submitted to the IPCC. III 23. It was not until the Scott Schedule was produced on 23 March 2015 that the claimant specified some 31 specific protected disclosures that he (at the time) relied upon. Thereafter , the claimant produced a List of Issues dated 15 February 2018 (pages 205 to 265 of the bundle) . The claimant has made some complaint that the List of Issues was agreed, but has since been referred to as “the claimant’s List of Issues” , but the fact remains that it was in the draft List of Issues produced initially by the claimant that 57 of 367 he , for the first time (for the previous claim forms and Grounds of Claim did not), specified the individual disclosures that he was relying upon as protected disclosures, and what specific matters under the various subsections of s.43B(1) of the ERA he claimed that they tended to show . Only as the case was being heard, did the claimant’s case become clear. The respondent (and the Tribunal) was unclear until final submissions whether the claimant was relying upon s.43F only, or was seeking to rely upon s.43C as well in respect of the disclosures to the respondent or the PCC, both of which were still pleaded at para.6.1 in the List of Issues . The claimant confirmed in his final Submissions that only s.43F was relied upon, the disclosures to the IPCC. To be clear, whilst para.6.2 of the List of Issues confirms that the claimant relies upon the written disclosures in PDRs 1,2 and 3 made to the IPCC, para.6.3 goes on to suggest that he was also relying upon oral disclosures to the IPCC that he made in three days of interviews with the IPCC, but this has not been pursued, and only the written disclosures contained in the documents provided to the IPCC are relied upon. III 24. The List of Issues has therefore become, in effect, the claimant’s pleaded case. In relation to the protected disclosures , its scheme has been to refer back to the claimant’s PDR documents, and extract from those specific allegations, which are then pleaded to amount to protected disclosures, and in each instance the basis upon which the claimant contends that the disclosure in question amounts to a protected disclosure is set out. In many instances the full text of the relevant parts of the claimant’s PDR documents is recited in the body of the List of Issues. In some instances, however, it is not. Care therefore needs to be taken in identifying what the claimant is relying upon as constituting his protected disclosures, as in some instances it will not be confined to the text that has been extracted and replicated in the List of Issues, but will require reference back to the PDR document to see what other information is also being relied upon as part of any particular protected disclosure. III 25. This has been graphically highlighted by the respondent producing a table of the information contained in the PDR documents and relied upon by the claimant in the List of Issues, in which those parts which have been expressly recited in the List of Issues are highlighted in yellow, and those parts which , the respondent contends , have been pleaded in it as constituting the allegedly protected disclosure , but have not been reproduced in the List of Issues , are highlighted in red. This document was produced on 9 May 2023, annexed to a document entitled “Response to consider whether to apply to plead aggregation”, and is entitled “Analysis of PDR Submissions by Peter Jackson for matching content in Agreed List of Issues”, and will be referred to as the “Yellow/Red Analysis” document. The form it takes is to highlight in yellow the disclosures as they have been recited in the List of Issues, and to highlight in red those other parts from the PDR documents which the respondent contends have been, or ought to be, included in the information that the claimant disclosed. (It is not always 100% accurate, but graphically illustrates the issue.) The respondent has characterised this approach as “filleting” of the information disclosed. The Tribunal’s consideration of each protected disclosure below will show where this has occurred, and what information was not expressly recited in the List of Issues but which, on the respondent’s case, forms part of the claimant’s pleaded case. This issue affects all the PDs to a lesser or greater degree, save for PD1.8, PD1.9, PD1.10 (now withdrawn) , PD1.15 (which only omits the words “Example 1”) , and PD2.1. 58 of 367 III 26. It is unfortunate that technical limitations do not permit that Yellow/Red Analysis document to be annexed to this judgment, but the Tribunal trusts that this will assist in understanding how the Tribunal has approached its task. The respondent has also produced another (10 page when printed) colour – coded document, in which the total of 287 allegations made by the claimant in the claimant’s grievances, appeals, PDR documents , pleadings and witness statements (some 19 columns in total) are tracked through all these documents, and then, in the 20th column, are ascribed a current status. Again, it is regrettable that this too cannot be attached to this judgment, but it has been a useful tool for the Tribunal, and will be described as the “Master Tracker” document. III 27. The claimant too has helpfully provided a colour - highlighted document in which the relevant parts of the three PDR documents have been highlighted , and the protected disclosures to which they relate have been highlighted (not always , the Tribunal considers, accurately but that is of no consequence). This document shows how the claimant’s disclosures have been constructed from divers parts of these three documents, and , in some instances , overlap. III 28. It is unfortunate that the claimant’s protected disclosures have had to be extracted from his three substantial PDR documents in this way. This sometimes means that the totality of the content of some of the protected disclosures has had to be gleaned from various disparate parts of the PDR documents. That is not a criticism of the claimant, who probably , when he wrote them (basing them in large part on previous documents he had submitted as grievances or complaints to the PCC) did not expect that years later he would be required to identify and extract from them a number of specific protected disclosures. Few workers, the Tribunal expects, sit down and draft their whistleblowing complaints so as to ensure that they will fall neatly and clearly into the requisite categories of protected disclosures under the ERA, unless they are doing so with legal assistance , with a view to ensuring that they are making valid protected disclosures. Equally, few workers make such wide ranging disclosures, with serious and disparate allegations being made about a considerable number of individuals and instances of wrongdoing over some 36 pages. III 29. All this, however, serves to highlight how the issue of precisely what the claimant’s pleaded case requires , or allows, the Tribunal to consider when determining whether any of the disclosures relied upon amount to protected disclosures , is not a simple one. III 30. At one point it appeared that the respondent was seeking to argue that the claimant had only made one protected disclosure, namely that there was a culture of cronyism in GMP, and that all the matters contained in the PDRs were but examples of this one disclosure. This was prompted, in part, by the claimant’s own evidence, in cross – examination, where he appeared to be saying just that, he had only really made one disclosure – that there was a culture of cronyism leading to corrupt promotions of incompetent officers. The claimant’s legal representatives, however, have not framed his claims this way. III 31. This has been given the term “aggregation” by the respondent, and also has been referred to by him as the claimant’s “macro case”. If that was to be the respondent’s position, however, the claimant contended that this would require amendment , and 59 of 367 would be a considerable and impermissible departure from the List of Issues. The respondent, however, did not seek to go so far , and expressly rowed back from such a contention. He accepted that the claimant had pleaded a “micro case”, in which he had made, and the respondent had responded to , upon 19 separate disclosures, each one of which would require the Tribunal to determine whether it was or was not a protected disclosure. It was submitted that they were, however, part of a macro case, in which the respondent contends the claimant could not have any reasonable belief, but the claimant had pleaded 19 specific disclosures, and the Tribunal should determine whether each one amounted to a protected disclosure III 32. Mr O’Dempsey, for the claimant , has been a little unclear in his approach to the proposition that the Tribunal must consider the totality of what the claimant disclosed . For example , at para. 49 of his Submissions he says: In the List of Issues, in the case of each PD relied upon, reference is made to the passages in the PDR which set out the information disclosed. It is important that the ET clearly understands that the List of Issues is not therefore the summary that appears at the start of each, but the passages that are set out and/or cross referenced within the PD. iv).What should the Tribunal consider? III 33. The issue is how the Tribunal should approach the protected disclosures, and what material the Tribunal may, or may not, take into account in determining whether the claimant has made any protected disclosures. III 34. The Tribunal’s consideration of each protected disclosure will show where this alleged “filleting” has occurred, and what information was not expressly recited in the List of Issues but which is understood to, or should be found to, form part of the claimant’s pleaded case. This issue affects all the PDs to a lesser or greater degree, save for PD1.8, PD1.9, PD1.10, (PD1.15 only omits the words “Example 1” – and is withdrawn) , and PD2.1. In some instances this type of omission results in substantial amounts of material contained in the relevant and cited paragraphs of the PDRs not being replicated in the List of Issues. This is particularly so in the case of PD1.2 where 14 relevant paragraphs of PDR1 are not recited, PD1.5 where 12 paragraphs and the whole of Section H are omitted, and PD1.6 where 9 out of 18 bullet points are omitted. III 35. In the course of its deliberations, however, the Tribunal had encountered parts of the PDR documents which were not picked up by the respondent as also containing parts of the information that the claimant had disclosed in respect of disclosures that he expressly relies upon. This may be partly due to the withdrawal of some of the specific disclosures, but information (in some instances quite extensive) set out under those disclosures remains relevant to, and part of, other, maintained, disclosures (see for example “Section H” and “Section L”). This in effect meant that there were more potential “red” areas that the respondent could have included in its Yellow/Red Analysis document. III 36. Thus the Tribunal’s proposed approach , when setting out the PDs, has been to set out the entirety of the information disclosed , whether expressly or by incorporation, 60 of 367 in the PDRs which is contended to amount to any one of the PDs. The Tribunal proposes to consider, when determining whether any of the disclosures relied upon amount to protected disclosures, not only the expressly recited extracts from the relevant parts of the PDRs that are contained in the List of Issues, but also any additional parts thereof, and any other parts of the PDRs referred to, which are expressly, or implicitly, relied upon, but which are not replicated in the body of the List of Issues. III 37. The Tribunal noted that in some instances the omitted parts of the PDRs referred to are minor, and nothing will turn upon them. In others, however, large swathes of text have been omitted from the List of Issues, but have been expressly pleaded to contain the relevant protected disclosure relied upon, and contain information that the claimant did disclose, and will arguably fall to be assessed against the relevant tests for s.43B and s.43F disclosures. III 38. A particular issue arises in relation to PDR3. Unlike PDR1 and PDR2, the claimant has not used paragraph numbers in this document. Hence, in the List of Issues he has not referred to any paragraph numbers, but has simply recited paragraphs taken from PDR3, which are said to constitute the disclosure that he made. Unlike PDRs 1 and 2 where the claimant has made reference to, but not recited in full, whole paragraphs in these two documents, he has not done so in respect of PDR3. He has instead cited specific parts of the paragraphs relied upon, and not always in their entirety. III 39. The Tribunal will therefore need to consider whether it can, and should, take into account any other parts of PDR3, outside those paragraphs from which extracts are recited, when determining whether the expressly pleaded parts do or do not amount to any protected disclosures. III 40. Mr O’Dempsey, for the claimant , appeared to accept that the Tribunal would be entitled to take the first approach, i.e that of considering the totality of the paragraphs expressly pleaded, but with omissions, as also containing information that constitutes the disclosure which is alleged to be protected. Para. 49 of his Submissions set out above is cited. III 41. Inherent in that paragraph appeared to be acceptance that if there is “cross – reference”, this material too can be considered. This is particularly germane to Section H, and Section L, to which the claimant cross – refers in various parts of his PDR documents which are relied upon as his protected disclosures. III 42. That was the Tribunal’s understanding. Whilst there had been some discussion of these issues in the hearing, the Tribunal wanted to be totally clear of the parties’ positions before finalising its Judgment. To that end, it contacted the parties before finalising its judgment, to ensure that their positions were clearly understood. III 43. The Tribunal also sought the parties’ views upon whether it is confined to only those pleaded paragraphs, as expanded, and whether , in determining whether the claimant has made the particular disclosure relied upon , it can, or indeed should, also take account of other paragraphs in the same document, not overtly omitted by any 61 of 367 ellipsis, in determining whether the claimant made the protected disclosure contended for. III 44. This is very germane to PD3.5, where, immediately after the pleaded paragraph in the List of Issue comes an ellipsis (with the omitted parts thereof supplied in red in the respondent’s Yellow/Red Analysis document), there appears this paragraph: As a result a murderer is free to walk the streets of Manchester, perhaps to strike again. I understand T/Supt Worth has blamed her mismanagement of the case on her lack of training and not being PIP 3 accredited. I find this hard to accept when her last 3 roles have been as a Detective and I and many other SIOs have dealt with numerous murders and 'critical incidents’ prior to becoming PIP 3 accredited. On a daily basis unaccredited DIs and DCIs with far less experience make decisions on persons found deceased in a variety of circumstances. I understand no action has been taken in respect of T/Supt Worth. The murder T/Supt Worth wrote off as not being suspicious is ironically now being investigated by another officer who was unsuccessful in the recent promotion process and is having to pick up the pieces following T/Supt Worth’s failings. III 45. The Tribunal asked whether the claimant contended that the Tribunal is not entitled to consider that this is part of the information conveyed as part of this disclosure, as it was sent to the IPCC and if not, why not? III 46. A further part of this section of PDR3 states: “It cannot be ignored that DCI Worth is a very close friend of CS Sheared (sic) , the Head of Workforce Development who has been involved in setting up the Promotion Process. It is CS Sheard who in her short time as ACC promoted DCI Worth to Temporary Superintendent; this was at a time when another male officer had been promised that he would be next to be given an acting superintendent position. Furthermore, CS Sheard, when previously the officer’s Divisional Commander had rewritten for her a poor appraisal which had been completed by T/Supt Worth's line manager, as referenced in my 'whistle-blowing report. The officer’s current daily work colleague is CS Hankinson, one of the main interviewers in the process. Although nothing can be proved there was widely held suspicions that this officer would be better ‘informed’ and ‘prepared’ on her attendance for interview than other candidates. The officer’s success certainly did not come as a surprise to anyone.” III 47. Part of this information was also contained in PD1.16, and will be considered there, but was the claimant’s case that the Tribunal is not entitled to consider this information also in the context of PD3.5, and, if not, why not? III 48. The claimant’s solicitor replied by letter to the Tribunal by email on 27 November 2023. In it he said: “You have asked for the Claimant’s view on how the tribunal should approach the protected disclosures and what material the tribunal may or may not take into account in determining whether the claimant has made any protected disclosures. 62 of 367 As you point out the starting point is the list of issues , which is the list of issues agreed between the parties. Where text has been omitted, this was because the claimant has not relied on the information contained in those omitted paragraphs as comprising part of the disclosure of information under section 43B. If not part of the disclosure of information, the information of course does not fall for consideration under section 43F. With respect, the tribunal have misunderstood the terms of paragraph 49 of the claimant’s submissions. Within the agreed list of issues for each protected disclosure relied upon there is an introductory paragraph which sets out in summary the information disclosed. The point being made by Mr O’Dempsey was that the protected disclosure was not that summary but rather was the quoted passages that followed. The position, if unclear in paragraph 49 of the primary submissions, was clarified in the responsive submissions by the claimant at paragraph 581 where the claimant “submits that the disclosure should be defined by reference to the material contained in the list of issues and taken from the PDR for that purpose.” There would have been no point in setting out the passages relied upon (as the information disclosed and said to constitute the disclosure in the list of issues) if the intention of the parties had been to indicate that the disclosure information was in reality all of the paragraphs (that is including those not quoted in the agreed list of issues) to which reference was made to locate the subset of information relied upon within the PDRs. The list of issues makes clear by the use of two formulae that it is the quoted passage that is the information relied upon as the disclosures. The first is that the protected disclosure was set out at a particular paragraph(s) of PDR1 “which stated as follows”; the second is “which were worded as follows”. The position of the claimant remains unchanged. The tribunal, when it is considering the tests of whether “the information disclosed and any allegation contained in it, are substantially true” is confined to consider only the information relied upon as the disclosure and is confined therefore to considering only those paragraphs that are set out. It cannot take into account other material in the same document to determine whether the claimant made the qualifying and therefore the protected disclosure contended for. Similarly, when referring to the test under s43B the reasonable belief can only be judged in reference to the quoted information. The claimant does not repeat his submissions on reasonable belief in this letter. You have referred specifically to a paragraph relating to PD 3.5 commencing “As a result a murderer is free to walk…” and also to a section of PDR 3. The oral submissions at day 101 p 135, l 16 ff to 140 were dealing with the disclosure identified in the list of issues at 3.5 and dealing with the cross examination that had occurred in relation to that protected disclosure and the question of reasonable belief in the allegations and information in the disclosure identified in the List of Issues. . The position of the claimant is that the tribunal is not entitled to consider these as part of the information constituting the disclosure as:

a. it is not in the agreed list of issues and neither has it been pleaded as such; 63 of 367

b. the witness evidence did not address material parts of these paragraphs as they were not included in the agreed list of issues

c. disclosure did not cover all issues referred to in these paragraphs for the same reason;

d. it would be necessary to hear argument on each such piece of information as to whether it constituted part of the information disclosed and relied upon as having any causal effect and this could not happen due to the above reasons. The Claimant’s position therefore remains as set in the oral submissions day 101, 15 May 2023: p6 l13 – p21 l5 and p 83, l10-20, p 135 l15- 13.All of these aggregations and sub-aggregations should have been identified by the respondent as issues. In brief all of the submissions objecting to the respondent’s attempt to argue for aggregation apply to the idea that some form of sub-aggregation is permissible. In summary, quite apart from the unfairness to which it manifestly gives rise, the tribunal will be drawn into error if it pursues this sub-aggregation approach.” III 49. The respondent’s response to this on 27 November 2023 was : (i) This issue is relevant to C’s credibility and his alleged PDs. (ii) The ET’s analysis of how C’s case is framed is correct: this is a matter of express pleading by C. (iii) C’s response is wholly contrary to C’s own (oft repeated) evidence to the ET: his alleged PDs must be read as a whole and not analysed in isolation. (iv) It is also contrary to how C expressly argued the case in the submissions at para 49. (v) Finally, as a matter of common sense, a claimant cannot pick and choose parts of the PD he/she makes – the PD must be analysed as it is not as a claimant wishes it (sc. “to”) be seen. III 50. The claimant’s response to that, also on 27 November 2023, was that item (i) was not relevant , as this was not the issue, the claimant did not accept point (ii), the List of Issues had been agreed, in point (iii) the claimant’s evidence did not define the disclosures, and point (iv) had been addressed. As to point (v), this was said: The parties have frequently pointed out the technical nature of the concepts involved in PIDA detriments, and the point now under consideration is such a technical point. The definition of the issues in this case was a matter of protracted consideration by both parties. It was plain that the respondent has created an issue with the way in which the disclosures were defined. It failed over the majority of the proceedings to indicate that there was a dispute in this area. The respondent now seeks to resile from the way in which the parties had approached the disclosures to be considered by the tribunal, and should not be permitted to do this. v).Discussion of the scope of the Tribunal’s consideration of what information was conveyed. 64 of 367 III 51. Whilst the claimant’s position is heavily reliant upon the List of Issues, the Tribunal will start by considering what approach it should take, untrammelled by the List of Issues, and then consider whether it should deviate from that approach because of the List of Issues. III 52. The Tribunal’s first task must be to determine what information was conveyed in determining whether the claimant has made any protected disclosure. In Twist DX Ltd and others v. Armes and others (

UKEAT/0030/20/JOJ

), Linden J said: “[52] The first stage is to identify the information disclosed by the worker which is said to amount to the qualifying disclosure. This is crucial because section 43B(1) requires the tribunal to go on to consider whether the claimant's beliefs about that information fell within the section and, if the conclusion is that there was a qualifying disclosure, whether the disclosure of that information was a, or the, reason for the treatment complained of, depending on whether the complaint is victimisation contrary to section 47B of the 1996 Act, or automatic unfair dismissal contrary to section 103A.” At para. 64 he said: “[64] Having identified the information which was disclosed, the ET should ask whether the claimant believed, at the time of the alleged disclosure, that the disclosed information tended to show one or more of the matters specified in Section 43B(1)(a) -(f) of the 1996 Act and, if so, which of those matters.” III 53. The Tribunal notes that whilst Linden J. uses the term “which is said to amount to the qualifying disclosure” in para. 54, he does not in para. 64. This Tribunal considers that its first task is to consider what information was disclosed, in totality, and not just to focus upon what information was disclosed “that is said”, i.e. pleaded by the claimant , to amount to the qualifying disclosure. III 54. In some, indeed, many, instances this is not an issue, as the claimant’s pleaded case (i.e as set out in the List of Issues) does, or at least appeared to, include contentions that he disclosed information in wider terms than have been expressly recited in the List of Issues. In others, however, the inclusion of some further material as part of the information conveyed leads to the inclusion, by reference or implication, of more information , which must then also fall to be considered in determining whether any particular protected disclosure has been made. Beyond that , however, may be other material which does not fall into either of these categories, but which the Tribunal considers must also be considered as forming part of the information conveyed, even if not expressly pleaded as information relied upon as forming part of the disclosure. III 55. Our conclusion is that the determination of what information was conveyed, and whether it amounted to any particular protected disclosure , is a matter for the Tribunal alone, which cannot, absent any other reason to do so, be circumscribed by the claimant choosing not to rely on any particular part of the information that the Tribunal may go on to find was in fact part of the information that he conveyed as part of his disclosure. That this must be so is apparent from the provisions of s.43F, s.43G and s.43H of the ERA, which apply to third tier and above disclosures , all of which require a whistleblower to show that at the time they made the disclosure they reasonably believed that the 65 of 367 information disclosure and any allegation contained in it are substantially true. If, therefore a worker could , despite conveying certain information in the course of making disclosures , in the non – legal sense of the word , in which they lacked the necessary reasonable belief, avoid the consequences of that lack of belief by not relying upon that information or allegation as part of their disclosure, they would be able to circumvent those provisions by “filleting” as it has been put by the respondent their disclosures. Whilst the respondent has suggested that this may be why the claimant has taken this approach, the Tribunal does not so find, and , frankly it does not matter why he has done so. The logic of this conclusion leads the Tribunal to find that it cannot be restricted in its enquiry as what information was conveyed in the disclosures that were made by the claimant only to those matters upon which he expressly relies in support of his contention that any particular disclosure was protected. As ever, that approach must be tempered by common sense and proportionality. The Tribunal , when considering whether the claimant has made any particular protected disclosure , must look at the information that was conveyed, in context and in the round. Clearly, were the Tribunal to start bringing in unconnected extraneous information, with no apparent nexus to the disclosure relied upon, that would be impermissible. As will be apparent, however, the Tribunal has approached its task by considering very carefully the information disclosed, how it was disclosed, and how it should be read. III 56. The Yellow/Red Analysis document produced by the respondent vividly highlights what information the respondent is contending should also be considered. Whilst it was produced late in the proceedings, on 9 May 2023, the claimant’s counsel had an opportunity to respond to it, and make any points that he wanted to in response to it in his oral submissions on 15 May 2023, but he did not do so in specific terms. He did dispute the respondent’s entitlement to “aggregate” the omitted parts of the PDRs with those that had been expressly pleaded, but made no specific points upon any specific instances where the respondent’s Analysis had done this. III 57. This is consistent with the origin and evolution of the claimant’s case on his protected disclosures. They were initially very wide ranging, with blanket pleading that his disclosures “were contained in” the three PDR documents. Further particularisation was ordered, and more specific disclosures were identified, in stages, but reference was always made back to the PDR documents. The claimant’s position now is that only the expressly recited portions of the PDR documents that are set out in the List of Issues can be considered as the information that was conveyed, and the Tribunal cannot stray outside their confines. III 58. Mr O’Demsey’s submissions have not always been clear or consistent on this point. Quite apart from what he meant in para.49, in some instances he fails actually to set out the exact wording of the disclosure in his submissions. In relation to PD1.3, for example, in para.83 he says: “The wording is significant. PD1.3 was set out at (xxix) to (xxxiii) of PDR1, and was worded as follows:” No wording then follows. That happens again in: para. 96, in relation to PD1.4 66 of 367 para.105 in relation to PD1.5 para.128 in relation to PD1.6 para.139 in relation to PD1.8 para.165 in relation to PD1.9 para.172 in relation to PD1.11 (although arguably less clearly so, but there is a colon at the end of the paragraph which betokens a likely recital of text) para.185 in relation to PD1.12 para.190 in relation to PD1.13 para.197 in relation to PD1.14 para.208 in relation to PD1.16 para.221 in relation to PD2.1 para.235 in relation to PD3.1 para.243 in relation to PD3.2 para.259 in relation to PD3.3 (even referring to underlining being added to the words which then do not actually follow the colon) para.282 in relation to PD3.4 and para. 299 in relation to PD3.5 III 59. Returning to PD1.6, in para.128, Mr O’Dempsey refers to the information that the claimant was disclosing. He says this: “It is submitted that the disclosure contains, in context, information amounting to information capable of being disclosures: there was significant interference in all three investigations from ACPO/ Senior Officers, including ACC Heywood, ACC Shewan, DCS Shenton, who did not have the level of knowledge of the officers running the different investigations and they were ordering SIOs to conduct actions that they did not necessarily agree with in terms of arrests etc; leading to e-mails being pasted into policy books by SIOs who wanted to evidence decisions that were not of their own making;.there was a sense of panic at times within Command team, demonstrated when ACC Heywood suggested at one point that they should go public with a ‘Name Your Own Price’ reward for information to secure the arrest of Cregan. (In fact this was a persistent discussion: see throughout August ……. September 2012). This would clearly have been a desperate measure which would have caused enormous embarrassment to the Force, but it highlights the feelings of desperation problems arose around the strategy in relation to Cregan family and other suspect families, in particular what was viewed as an antagonistic approach taken to Cregan family with a large number of search warrants executed by TAU and firearms teams without success, 67 of 367 alienating the family and increasing the ill feeling of Cregan towards the police. This approach was reflected in a message sent out to the Force by ACC Heywood via the GMP Intranet website on 29/08/12 when he said; ‘Public safety demands that we visit Dale Cregan’s family and friends regularly until he reappears’ (C attached this at Appendix ‘F’). It was also released to the media (C attached this as ‘G’). There was real danger in this ‘tactic’, yes it is fine to execute a firearms warrant at an address when you have good intelligence that the person is hiding up there but it is a totally different story to repeatedly call at relatives and friends addresses without any information, particularly as it is a tactic that is oft used by police to flush out ‘wanted criminals’ by becoming an annoyance to their families, however it is not a tactic to be used when the person sought is an ‘out of control’ killer armed with firearms and hand grenades. In such a case there is a real danger that the tactic will unduly antagonise him and thereby hugely increase the risks to police officers. There were significant failings in the understanding of risk by TD/Supt Scally, including the lack of risk assessments both for his investigation team officers and divisional officers. There are examples on two separate occasions of him wanting to deploy officers to properties connected to Cregan with his requests being refused by myself on one occasion and a (sic) Inspector due to the risks and lack of risk assessment .there were significant failings in the understanding of risk by Force Command, including the lack of risk assessments both for the investigation teams and in particular the lack of understanding of risk in regard to other police staff not directly involved in the investigation, including the failing to identify and assess risk in terms of how the G division conducted its daily business, the introduction of patrol plans to mitigate risks, and the assessment of calls received and the response to incidents…..” This is, of course, largely a repetition of the matters that the claimant set out in paras.(lix) to (lxi) of PDR 1. III 60. Comparison with the agreed List of Issues is instructive. Under PD1.6 it is therein pleaded , at para. 128, that paras.(lix) to (lxi)) of PDR1 contain the information disclosed, which is not then recited. The further matters that Mr O’Dempsey alludes to (page 34 of his submissions) as being information that “was capable of being disclosures” from “there was significant interference” onwards are largely matters that appear in PDR1 in the list of bullet points under para.(lxi) , which forms the basis of PD1.6. Taking the “interference” bullet point as the 10th, the next 7 points are what are rehearsed by Mr O’Dempsey in this paragraph under PD1.6. Those later bullet points, however, are not recited in the List of Issues (and are hence red in the Yellow/Red Analysis document), but Mr O’Dempsey is here inviting the Tribunal to consider them as part of the information disclosed. III 61. Another example of the confused approach of the claimant can be seen in PD1.3. In the List of Issues (pages 265G to 265H of the bundle) paras. (xxix), (xxxi) and (xxxii) are recited as setting out PD1.3. Para. 20, however, refers to paras.(xxix) to (xxxiii). Only three of these paragraphs, however, have been recited , the first, para. (xxix) ending with an ellipsis. Thus, para.(xxxiii), which reads: “The actions of ACC Sweeney and DCS Shenton amount to a 'cover up’ of TD/Supt Scally’s actions; on a point of law if this were proven then they may have conspired to pervert the course of justice and it is requested that their actions should also be subject 68 of 367 of an independent investigation and again a file should be submitted for consideration by the Crown Prosecution Service.” has not been included in the recited parts of this PD. In para.22 of the List of Issues, however, which sets out what the claimant says he reasonably believed his disclosures tended to show, reference is made to the claimant’s belief that this disclosure tended to show that one or more criminal offences had been committed, namely perverting the course of justice, and misconduct in public office. Whilst the latter is not mentioned anywhere in paragraphs referred to , the former is. If the Tribunal is not to consider any information which is not expressly recited in the List of Issues, how can it find that the claimant had these beliefs ? III 62. The respondent points out that the claimant may be seeking deliberately to exclude the omitted parts of his PDRs that should really be considered for tactical reasons. The claimant contends that the respondent agreed to the List of Issues, which has this restrictive effect, and cannot now, and the Tribunal cannot now, look outside it. III 63. Whilst there has been much discussion of “aggregation” , and “filleting”, it is interesting to note that the evolution of the argument as to what the Tribunal can and cannot consider when determining whether the claimant conveyed information, and if so what that information was, lies in the line of cases which arose from whilstleblowers seeking to rely upon information which was not expressly conveyed in one document or upon one occasion, claimed as amounting to a protected disclosure, when the respondents contended that they had not conveyed “information” which satisfied the statutory test. In other words , they sought to restrict the relevant disclosures to one document , or piece of information, that had been relied upon. This led to the decision of the EAT in Norbrook Laboratories (GB) Ltd v. Shaw

[2014] ICR 540

which held that it was possible to “aggregate” information conveyed in separate documents or provided on separate occasions so that , when taken together, they amounted to information of the quality required to satisfy s.43B. Subsequent cases examined when “aggregation” was or was not appropriate, but the principle was well established. The caselaw, however, from the Tribunal’s research, is one – way traffic – with the claimants were arguing that their disclosures should be considered from the point of view of “aggregated” information , in order to survive as potentially protected disclosures, and respondents saying they should not be, thereby failing to meet the statutory definition. III 64. To the extent that the claimant in this case seeks to limit the Tribunal to the pleaded case on what information was conveyed , the Tribunal questions whether he can do so. It seems to us a necessary corollary of the aggregation line of cases that if the Tribunal is satisfied that the claimant disclosed information , as part of the disclosure relied upon, which included information not expressly pleaded as information relied upon, the Tribunal is entitled to consider that information as well, even if the claimant did not seek to rely upon it as part of his protected disclosure. That must, the Tribunal considers, be the position, as otherwise, a whistleblower would be able to circumvent the provisions of s.43F, whereby he is required to show a reasonable belief in the information conveyed and any allegation contained in it, by simply excising parts of the information conveyed in which he may not be able to satisfy that test. 69 of 367 III 65. In the alternative, the Tribunal considers that it is entitled to examine the parts of the PDRs not expressly relied upon in the List of Issues as being relevant context in which to assess the reasonableness of the beliefs of which the claimant has to satisfy the Tribunal under s.43B and s.43F. III 66. In summary and conclusion therefore, in determining whether the claimant made any protected disclosures the Tribunal will, subject to the List of issues point, consider: a)The information expressly pleaded and recited in the List of Issues as having been conveyed; b) Where in the List of Issues reference is made to complete paragraphs, which had not been recited in full in the List of Issues, and/or where any ellipsis appears to indicate any omission, the omitted information will also be considered; c) Where , whether in the recited information, or that to be considered by virtue of (b) above, reference is also made to any other information by reference to any other part of the PDR document (e.g. Section H), that information shall be considered too as forming part of the information conveyed; d) To the extent that any unenumerated paragraphs have been pleaded and recited in the List of Issues taken from PDR 3, where the pleaded paragraph has been incompletely set out, the omitted words will be considered as forming part of the information conveyed; e) To the extent , that whilst not expressly pleaded , or partly pleaded, in the List of Issues as forming part of the information conveyed, any preceding or ensuing paragraphs in PDR3 which are inextricably linked to the pleaded information conveyed in any PD under PDR3 will also be considered as forming part of the information conveyed, or, in the alternative, the context thereof. vi).The effect of the List of Issues. III 67. That finally brings us back to a consideration of the effect of the agreed List of Issues, and the caselaw in connection with the significance of effect of an agreed List of Issues. III 68. The claimant relies heavily upon the judgment in Chandhok v Tirkey

[2015] IRLR 195

(a case the spelling of which seems to vary in various references, but is believed to be correct in this iteration). This case emphasised the importance of Tribunals adhering to a List of Issues, particularly an agreed List of Issues. It is right that this is an agreed document, but as with all agreements, it falls to be construed as to what the parties thereby agreed. The respondent’s position is that where , by reference to complete paragraphs of the PDR documents the claimant has claimed to have made a disclosure by conveying the information in those paragraphs, then it is the totality of the contents of those paragraphs that the Tribunal should consider. That is the case even if the List of Issues contains , as it sometimes does, an ellipsis, by the use of “…” in the List of Issues, and parts of the paragraphs referred to, or even complete paragraphs, are not recited. The respondent, in effect, is saying that this was the basis of his agreement to the List of Issues. 70 of 367 III. 69. The Tribunal’s understanding of para. 49 of the Closing Submissions was that this was the claimant’s position too, but it now appears it is not. III 70. It is a frequent direction at a preliminary hearing is that the parties draw up an agreed list of the issues of law and fact to be decided in the case. As Mummery LJ has stated: 'A list of issues is a useful case management tool developed by the tribunal to bring some semblance of order, structure and clarity to proceedings in which the requirements of formal pleadings are minimal' see Parekh v London Borough of Brent

[2012] EWCA Civ 1630

). The list of issues must not, however, be confused with the pleadings: whilst a party may permissibly signal that they are no longer relying upon a pleaded claim by agreeing to a list of issues which does not include that claim, a party may not unilaterally introduce a new claim or defence through the vehicle of the list of issues. Any contested additions to the factual or legal issues in a claim or response require an amendment application dealt with in the proper way. The EAT held in Chandhok v Tirkey that the ET1 and ET3 are the documents which define the parameters of a claim. The list of issues should reflect the pleadings and it follows that where the parameters of the claim have changed via a consensual amendment or the decision of a Tribunal judge on a disputed amendment application, it may be good practice for the pleadings to be amended with the list of issues then mirroring the final version of the pleadings. III 71. Even when presented with an agreed list of issues at a case management hearing, the Tribunal has a role to play in examining the list and ensuring that it correctly reflects the legal and factual issues which must be resolved at the full hearing. As stated by the EAT in Price v Surrey County Council

UKEAT/0450/10

'Even where lists of issues have been agreed between the parties, they should not be accepted uncritically by employment judges at the case management stage. They have their own duty to ensure that the case is clearly and efficiently presented'. III 72. The authorities reveal something of a tension between the need for a Tribunal at the final hearing to respect an agreed list of issues and the need to apply afresh some critical evaluation to that list. Since the purpose of the list is to serve as a roadmap from the early stages of proceedings, and both the documentary and witness evidence should have been directed around relevance to those identified issues, it is right that Tribunals should be slow to depart from the agreed issues at a late stage. III 73. The Court of Appeal has expressed the view that where a list of issues is agreed, the general rule is that the issues to be determined at the final hearing will be limited to those in the list (see Parekh at [31], per Mummery LJ; Land Rover v Short

UKEAT/0496/10

per Langstaff J). This applies not just to the list of complaints made by the claimant but also to the list of defences relied on by the respondent (see Scicluna v Zippy Stitch Ltd

[2018] EWCA Civ 1320

). III 74. However, notwithstanding this general rule, the Court of Appeal in Mervyn v BW Controls Ltd

2020 IRLR 464

described it as 'good practice' for an Employment Tribunal, at the start of a substantive hearing where one or more parties are unrepresented, to consider whether any list of issues previously drawn up at a case management hearing properly reflects the significant issues in dispute between the parties. In providing this guidance the court recognised (at [38]) that it will be unusual 71 of 367 for the Tribunal at the final hearing to depart from a list of issues agreed at the case management stage, but stated that there is no requirement of exceptionality for such a departure (the question is whether it is 'necessary in the interests of justice' per rule 29). This approach is consistent with the previous decision of the Court of Appeal in Parekh, where Mummery LJ pointed out that although the general rule is that a Tribunal at the final hearing will decide only the issues in the list which has been agreed, tribunals are not 'required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence', and stated that, as case management decisions are not final decisions, they can be revisited and reconsidered, for example if there has been a change of circumstances, thereby avoiding 'endless appeals, with potential additional costs and delays' (at [31]). III 75. In Mervyn the Court of Appeal gave guidance (at [38]) that relevant considerations when considering whether it is necessary in the interests of justice to depart from an agreed list of issues at a late stage will include: just how late a stage it is (an amendment before the evidence has been called is quite different from an amendment afterwards); whether the list of issues was the product of agreement by lawyers or involved a litigant in person; and whether amendment would lead to a delay to the hearing for further evidence or submissions to be prepared or, even without such a hiatus, to the issues becoming too extensive to resolve within the time allotted for the hearing. III 76. If a Tribunal at the final hearing does propose to alter the ambit of the list of issues from the list that was agreed by a previous employment judge at an earlier stage, it must give its reasons for doing so and must give a proper opportunity to the parties to make submissions before a decision is made. That was the view of Keith J in Ijegede v Signature Senior Lifestyle

[2022] EAT 4

. III 77. A further consideration must be what the parties agreed when they agreed the List of Issues. It was an overdue document, not produced until after the hearing had started. The ellipses in the text of the disclosures referred to were not readily apparent. In some cases there are swathes of omitted whole paragraphs, in others only a word or a line was omitted. The respondent’s yellow/red Analysis document shows where this occurs. It may be that neither party quite realised what the effect of the List of Issues being set out in this way would be. III 78. As the caselaw makes clear, departure from an agreed List of Issues does not require exceptional circumstances. The test is whether it is in the interests of justice to do so. All the factors set out in Mervyn (which doubtless are not intended to be exhaustive) need to be considered. The List of Issues was agreed, and that carries a lot of weight. What that agreement meant, however, is open to argument, and even the claimant’s position on what can and cannot be considered part of the information conveyed has not been clear or consistent. The departure , if such it be, is late, but the parties have been given an opportunity expressly to make representations upon it, and have done so. The claimant has submitted that the Tribunal should not allow such a departure because the claimant has prepared his case on the basis of the “narrow” construction of the List of Issues, and it would be unfair for him now to be faced with a 72 of 367 wider set of issues, covering evidential matters that have not been considered, and matters which would require further evidence and documents. III 79. We do not agree. The claimant has identified no specific areas where consideration of the further material as information contained in the disclosures has not been dealt with in the evidence, or where the claimant would be prejudiced by the inclusion of this material. He was extensively cross – examined upon not only the expressly pleaded disclosures, but virtually all of the wider material that was contained in all his PDRs, regardless of whether they were being expressly relied upon as part of the pleaded disclosures. The claimant has not identified any specific aspects where he can say he would be prejudiced because he did not cover these matters in his evidence (which was itself very wide ranging) or in cross -examination. The Tribunal’s view is that there are no such instances, but, if there are , they are very few, and minor, and the Tribunal will be alert to them as it considers each disclosure separately. In principle, the Tribunal considers that departure from the List of Issues, to the extent that the Tribunal proposes to do so, would be in the interests of justice as it would enable the Tribunal to carry out its prime function of determining what information was conveyed, and then whether , in the circumstances, any protected disclosure is thereby established. vii).The tests to be applied in determining whether any disclosure was a protected III 80. In terms of the tests to be applied when considering whether the claimant has made any protected disclosure, the Tribunal has been referred to, and assisted by, reference to Whilstleblowing Law and Practice , 4th Edition. The relevant tests are discussed in these passages (sections 6.82 to 6.83), from which the Tribunal has extracted these passages: “……. The reasonable belief test for a qualifying disclosure has been considered notably in the cases of Darnton v University of Surrey (2003] ICR 615 (EAT) and Babula v Waltham Forest College

, In Muchesa v Central & Cecil Housing Care Support (

EAT/0443/07

, 22 August 2008), the EAT acknowledged that there are differences in wording as compared to section 43B. As the EAT accepted (at para 26), The subject matter of the belief , i.e what the worker had reasonably to believe if he is to obtain protection is different. Notwithstanding this, the EAT concluded that the guidance in Darnton and Babula applies also to the test under sections 43 F, 43G, and 43 H. Having regard to this, we suggest that the following considerations are relevant: (a) As in the case of the reasonable belief test for a qualifying disclosure, the worker’s reasonable belief must be tested by reference to the circumstances as they were understood, or ought to have been understood, by the worker, rather than simply by the facts as ultimately found to have existed by the ET. (b) It must be reasonable for the worker to believe both (i) that the factual basis for what was disclosed was true and (ii) that it tends to show a relevant failure (see Muchesa at para 27), In relation to a qualifying disclosure, the extent to which the worker is expected to investigate and hold a belief in the truth of what is disclosed will depend on the circumstances. Indeed, there may be cases where a worker can only pass on information from a third party and is not in a position 73 of 367 to assess whether it is true: eg Dr Y-A-Solt v Imperial College of Science, Technology anti Medicine (UKEAT/0350/ 14/DM, 3 September 2015). But in relation to a disclosure under sections 43F, 43G, and 43H, the statutory language makes expressly clear that a reasonable belief is required that (i) the information disclosed and (ii) any allegation contained in it are substantially true. (c) The worker will not lose protection if the belief was mistaken, provided it was a reasonable belief for the worker to hold, But, as with the test for reasonable belief in section 43B, whether the allegation was in fact true may be relevant in ascertaining the reasonableness of the belief. This was emphasized in Muchesa. [There ensues a recital of the facts of that case] …….The ET found that the claimant did not have a reasonable belief that the disclosures made to the external recipients were substantially true. The EAT concluded that the ET was entitled to consider whether the complaints were true and to regard its view of this as an important tool in the resolution of the reasonable belief issue, especially as the claimant was complaining of matters of which she claimed to have direct knowledge. The ET was also entitled to have regard to objective factors such as the failure to use the whistleblowing policy and to ask another member of staff to witness the conduct of which she was complaining, failure to write up the incident, and spending time photocopying rather than dealing with the incident. In all, she had not behaved in the manner to be expected had she reasonably (or indeed genuinely)believed in the truth of the complaints. (d) Again, as in the reasonable belief test for a qualifying disclosure, and as illustrated by Muchesa, all the circumstances must be considered in order to ascertain whether the belief was reasonable. However, the standard to be applied in relation to whether it was reasonable to hold the belief is higher than that for a qualifying disclosure. In particular, the worker may be required to have done more to look into the matter, or have had it looked into, than at the first tier of disclosure. Thus, in relation to a disclosure to the employer (or other first tier disclosure) there may be a reasonable belief even though the worker has done little to investigate the matter, because the policy of the legislation is to encourage workers to raise their concerns with the employer who may be best placed to investigate. More investigation may be required in relation to regulatory disclosure for the worker to hold a reasonable belief in the substantial truth of the information disclosed. (e) Under section 43 F, there is no obligation first to raise the matter with the employer. However, if it was raised with the employer, it will be relevant to take into account any response by the employer, or any failure to respond or inadequacies in the response, in relation to how this affects the reasonableness of the belief. (f) The differing considerations which are likely to apply to a disclosure under section 43F are indicated by the fact that the phrase ‘tends to show’ which appears in section 43B does not appear in section 43F (or 43G or 43H). ……. the phrase is important in the context of section 43 B. It accommodates the possibility that the worker may only have access to part of the evidential picture. As such, it might be premature to require, prior to making a disclosure to the employer (or other 74 of 367 first tier disclosure), that the worker hold a reasonable belief that the allegation is substantially true. It might he sufficient that the worker has come across, and disclosed, information which tends to show a relevant failure, even though it is possible that on further investigation the full evidential picture may show this not to be the case. By contrast, for the purposes of section 43F (and 43G and 43H), the worker cannot merely say that the information disclosed tends to point in the direction of a relevant failure, and needs further investigation. The worker must reasonably believe that the allegations are substantially true.

(g) Notwithstanding the degree of leeway built into the ‘substantially true test, it does not follow that the worker can make any allegations that are known to be false, even if those allegations are only peripheral. In Korashi v Aberfawe Uro Morgannwg University Local Area Health Board |2O12| 1RLR 4 it was argued that where there were a number of allegations made as part of a disclosure, it would be sufficient if the gist of the complaint was reasonably believed to be substantially true. However, the EAT expressed the view that, whilst there is no obligation to make any allegation, the statutory formulation requires that in relation to each allegation made, there must be a reasonable belief that it was substantially true. The effect is that scattergun allegations will not be protected if they include some wild allegations known to be false. However, ETs will still need to exercise care not to overlook the degree of leeway afforded by the term substantially". There is a public interest in concerns as to relevant failures being raised with the appropriate prescribed body. It would be unfortunate if those with the courage to come forward and raise such concerns were to lose protection because of a degree of lack of circumspection in the terms in which the concerns are raised. III 81. The reference to Muchesa is to Muchesa v Central & Cecil Housing Care Support [

UKEAT/0433/07

] in which it was held that it was relevant to consider , when assessing whether a worker held a reasonable belief in the truth of what was disclosed and what it tended to show, how the worker would have been expected to have behaved if they genuinely held such beliefs. The worker’s conduct in that case was incompatible with her having such a belief, and the EAT upheld the dismissal of her claims on the grounds that she had not satisfied the test for reasonable belief. Similarly, in Simpson v Cantor Fitzgerald Europe

[2021] ICR 695

[2006] All ER (D) 158

(Nov) is correct. ‘24. ... The approach in ALM v Bladon is one to be followed in whistleblowing cases. That is, there is a certain generosity in the construction of the statute and in the treatment of the facts. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester

[2005] All ER (D) 92

(Feb)). As to any of the alleged failures, the burden of the proof is upon the claimant to establish upon the balance of probabilities any of the following. (a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on. (b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.’ III 96. Whilst the case to which HHJ McMullen was referring was a s.43B case, we consider that these dicta would be equally applicable in a s.43F case, and support the contention that the burden of proof in terms of proving that any protected disclosure was made rests with the claimant. To confirm the position, in Babula v Waltham Forest College

Wall LJ said, at para. 74 of his judgment: “It seems to me that in each of the instances identified in the six subsections, the whistleblower has to establish a reasonable belief that the information being disclosed 'tends to show' one or more of the situations identified in s.43B(1)(a) to (f).” III 97. The List of Issues clearly puts the claimant’s reasonable belief in issue. If the respondent has not cross-examined upon every aspect of it, that is his concern, he accepts the consequences. If the claimant , however, upon whom this burden lies, has not , in any particular instances, adduced sufficient evidence to satisfy it, that is a matter for him and his legal team. Whether the respondent advances , through cross – examination or otherwise, a positive case on lack of reasonable belief is of no consequence. If the claimant fails to satisfy the burden upon him in respect of any aspect of any pleaded protected disclosure , that disclosure will fail. 80 of 367 x). The public interest test. III 98. In respect of each disclosure the claimant will have to show that he reasonably believed that it was in the public interest to make the disclosure. The correct test to be applied was confirmed by Underhill LJ in the Court of Appeal in Chesterton Global Ltd. and another v. Nurmohamed

[2018] ICR 731

. The guidance has been interpreted and summarised by the EAT in Dobbie v Paula Felton t/a Feltons Solicitors

[2012] IRLR 679

. HHJ Tayler said this: There are a number of key points I consider it is worth extracting from Underhill LJ’s reasoning (in Chesterton) , and re-emphasising: (1) the necessary belief is that the disclosure is made in the public interest. The particular reasons why the worker believes that to be so are not of the essence (2) while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it – Underhill LJ doubted whether it need be any part of the worker’s motivation (3) the exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest (4) a disclosure which was made in the reasonable belief that it was in the public interest might nevertheless be made in bad faith (5) there is not much value in trying to provide any general gloss on the phrase “in the public interest”. Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression (6) the statutory criterion of what is “in the public interest” does not lend itself to absolute rules (7) the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest (8) the broad statutory intention of introducing the public interest requirement was that “workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers” (9) Mr Laddie’s fourfold classification of relevant factors may be a useful tool to assist in the analysis: i. the numbers in the group whose interests the disclosure served ii. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed iii. the nature of the wrongdoing disclosed iv. the identity of the alleged wrongdoer (10) where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest 81 of 367

[28]There are a few general observations I consider it worth adding: (1) to (7) (not cited) (8) while motivation is not the issue; so that a disclosure that is made with no wish to serve the public can still be a qualifying disclosure; the person making the disclosure must hold the reasonable belief that the disclosure is “made” in the public interest. If the aim of making the disclosure is to damage the public interest, it is hard to see how it could be protected. Were a worker to disclose information to his employer, that demonstrates that it is discharging waste that is damaging the environment, with the aim of assisting in a coverup, or to recommend ways in which more waste could be discharged without being found out; while the disclosure would otherwise be a qualifying disclosure, it is hard to see how the disclosure could be “made” in the public interest. The fact that a disclosure can be made in “bad faith” does not alter this analysis. A worker might make public the fact that the employer is discharging waste because he dislikes the MD, and so is acting in bad faith, but nonetheless hold the reasonable belief that making the disclosure is in the public interest because the discharge of waste is likely to be halted. Generally, workers blow the whistle to draw attention to wrongdoing. That is often an important component of why in making the disclosure they are acting in the public interest.

[29]Disclosures about certain subjects are likely to be “made in the public interest”.” That will be the test that the Tribunal will apply. xi).Meaning of “belief”. III 99. Before embarking upon our examination of each PD, we will finally emphasise that the test to applied in each instance , i.e whether under s.43B or s.43F, is of reasonable belief. That is more, as was observed by Lord Summers in Kirby v. Glasgow Caledonian University (

UKEATS/0021/18/JW

) (at para. 32 of the judgment) than reasonable suspicion, which is not enough. Chapter IV: Findings upon the Chapter IV: Findings upon the disclosures. i)The claimant’s evidence and credibility issues. IV 1 .Before making its findings on whether the claimant made any protected disclosures, the Tribunal will set out some of the considerations it has taken into account in determining whether the it can safely rely upon the claimant’s evidence. His credibility, in the widest sense of the word is central to these issues, as the burden of proving what he believed, and that his beliefs were reasonable, for these purposes, rests solely with him. IV 2. Mr Gorton’s Final Submissions contain a substantial section on this topic (pages 4 to 48) . He starts off by referencing general principles to be applied when a Court or Tribunal is considering evidence, citing Chapter 45 of Phipson on Evidence, and the judgment of Leggatt J. in the case of Gestmin SGPS SA v Credit Suisse (UK) Ltd.

[2013] EWHC 3560

Comm . He invites consideration of the nature and reliability of oral 82 of 367 and documentary evidence generally. He then goes on to make specific points against a “checklist” of matters taken from Phipson namely:(1) the consistency or otherwise of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness’s evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) lies established in evidence or in the context of the proceedings;

(6) the demeanour of the witness;

(7) the inherent probabilities of the witness’s account being true. 65. Under inherent probabilities (7) there are 17 helpful indicators: A long list of indicators of a not credible and unreliable witness may be given, some of the most common ones are as follows: (1) evasive and argumentative answers; (2) tangential speeches avoiding the questions; (3) blaming legal advisers for documentation (statements of case and witness statements); (4) disclosure and evidence shortcomings; (5) self-contradiction; (6) internal inconsistency; (7) inconsistency with contemporaneous documents;

(8) shifting case;

(9) new evidence; and

(10) selective or absence of disclosure. To this list can be added some more equivocal and subjective indicators:

(11) getting flustered at difficult questions;

(12) giving incredible detail and making things up on the spot; 83 of 367

(13) changes in demeanour and signs of being uncomfortable when giving certain answers;

(14) answers which are inherently incredible and contrary to sense;

(15) making uncorroborated allegations of fabrication;

(16) wild speculation;

(17) scripted and well-rehearsed witness. IV 3. With the exception of (17) , which Mr Gorton accepts does not apply to the claimant’s evidence, he goes on to set out several specific instances where it is argued that the claimant has given evidence which is either not reliable, or is untruthful, and which is not the result of any confusion or lack of complete recollection. IV 4. It is not proposed to set out again here all the matters that are relied upon in relation to credibility and reliability in the Final Submissions, as many will be considered in the context of the Tribunal’s examination of the individual protected disclosures, and detriments, but two major examples of where the respondent contends that the claimant has gone further than simply not having recalled, or having been vague, or confused in his evidence, but has lied, are in relation to DSupt. Peter Marsh (relating to PD3.5) , and what he alleges he told the claimant about the investigation being a murder investigation , and Operation Nixon , where he relied upon information from a Confidential Unit, for the first time , in his evidence before the Tribunal. IV 5. In relation to the former, the claimant , we accept, added in his oral evidence, an allegation that DSupt. Peter Marsh (whom he did not call) had told him that the death of the Hungarian male , the investigation into which by DCI Worth is the subject matter of PD 3.5 , was being investigated as a murder, when the documentary evidence shows that this was not the case. That was a possibility, but the Coroner had not returned the investigation “as a murder”, nor was that the immediate assessment that DSupt. Peter Marsh made, as shown in the documentary evidence of his report of 14 January 2014. This will be discussed further in the discussion of PD3.5 below. IV 6. In relation to the latter, the claimant has, he accepted, given different accounts on different occasions as to whether , firstly, the 13 year old boy involved in Operation Nixon, was at risk of sexual assault, or was actually sexually abused by the nominal under investigation, and secondly whether that nominal went on actually to rape a 15 year old boy. As will be seen , the claimant changed his account, and accepted that he gave different accounts for different audiences. The suggestion that he had obtained information from a Confidential Unit was not made until his evidence on 16 January 2022, in cross – examination. IV 7. We find there is considerable force in the respondent’s Submissions, and these are indeed instances where the claimant has overstated the facts, and made allegations for which there was no foundation. IV 8. Another factor relied upon, is the claimant’s failure to mention the Family matter (the subject of PD3.3) for over 18 months, only raising it in his PDR3 document in 84 of 367 January 2014. Mr Gorton took the Tribunal through the history of these allegations, and invites the Tribunal to question why this was. IV 9. Mr Gorton also relies upon the absence of certain matters from the claimant’s evidence, in particular his first witness statement. He points out, correctly , that whilst this is said to be full and comprehensive, and runs to 226 pages, it omits the following: The claimant’s promotion board held on 13 January 2010 The claimant’s application of 9 June 2011 for the Regional Crime Squad application when ACC Sweeney was chair of interview panel His application to join Operation Warrior in 2012 when he was supported by Darren Shenton and Simon Barraclough when DS the former was allegedly only supporting those in his ‘tribe’ His application to West Yorkshire Police on 29 November 2012 with support from Darren Shenton and ACC Heywood The fact that he had previously in his very first Employment Tribunal claim attributed his lack of promotional success to sex discrimination in July 2012, that claim being about the claimant not getting promoted whereas DCI Worth was. The significant assistance provided to him by ACC Copley and Russ Jackson in 2013 which is in effect “air brushed” out of existence in his witness statement. Having sent his grievance to ACC Copley on 10 September 2013 ,she agreed to a meeting and then a subsequent meeting on 26 September and a further meeting 8 October 2013 involving Russ Jackson from which a package of development measures to ready the claimant for promotion was agreed. His application to the 7 November 2013 Supt. promotion board with help, counselling and guidance from Russ Jackson, and the fact that he was interviewed and failed the Board (with Supt. Donnellan part of the Board). The failure to mention that Russ Jackson and ACC Wiggett had supported him in remaining in the pool and continuing as head of MIT in September 2015 IV 10. All of these are facts, and potentially highly relevant ones, but the claimant has omitted any reference to them in his witness statement, thereby painting an incomplete and partial picture of the way in which he had been treated . This , it was submitted, was because the claimant felt that these matters would not advance his case, and he was being selective. IV 11. Whilst the claimant has, in this aspect, and others, sought to blame his legal representatives (of which he has had 6 individual lawyers , but has had the same firm represent him, and Mr O'Dempsey has been his counsel since at least November 2019) this too is a factor on Mr Gorton’s “checklist” , as a potential flag for dishonesty or unreliability of a witness. The Tribunal would add to that the fact that the claimant’s witness statement is dated 6 August 2021. The omitted matters were all in the claimant’s knowledge, and indeed , in relation to the first ET claim, his solicitors’ knowledge , as 85 of 367 the respondent , in his response to the first of these claims , expressly, in para. 6 of the Grounds of Resistance to these claims , on 3 October 2014 (page 63 of the bundle) referred to that claim , which had been withdrawn. The claimant’s failure to mention that claim at all in his witness statement, when it related to some of the same issues he raises as protected disclosures in these claims, is very odd. It leads the Tribunal to the conclusion that this was deliberate, as the claims made in that first claim were of sex discrimination, and related to the promotion of DCI Worth, about which the claimant has made some of the disclosures relied upon in these claims. The Tribunal is also troubled by the other omissions highlighted by the respondent, and does indeed consider that these omissions , whether deliberate or not, considerably undermine the claimant’s credibility, and support an inference of a lack of candour in his evidence. IV 12. Whilst not accepting all of them, in many respects the Tribunal considers that the respondent’s points are well made, and he has advanced cogent arguments for the Tribunal approaching the claimant’s testimony with a degree of caution. IV 13. For the claimant , Mr O'Dempsey submitted that the claimant , a distinguished and experienced senior detective, who was widely respected by his colleagues, was not, and should not be found to have been, dishonest, or unreliable, in his evidence to the Tribunal. He had relied upon information from trusted colleagues, and was entitled to take it at face value. In his oral submissions, Mr O’Dempsey invited the Tribunal , repeatedly , to reject any notion that the claimant was “making stuff up”. This was, of course, a response to the respondent’s submissions that he was doing so, at least in some instances. Mr O'Dempsey argued, correctly, that much, perhaps 95%, it was hard to put a figure on it, of what the information he conveyed was correct , and could be shown to be true. That, however, is not the point. As will be seen , in the case particularly s.43F disclosures, that is not enough. If the claimant did not have a reasonable belief in even 5% of any disclosure, that is potentially fatal. Mr O'Dempsey is doubtless seeking to rely upon the reliable aspects of the claimant’s disclosure to support other aspects where there is less corroboration or support for what he disclosed. IV 14. A stark feature of the claimant’s case on his protected disclosures is that in most instances the claimant has given as sources of his information, either his own knowledge, some identified officers or persons, or other unidentified officers or persons. In the case of the latter, he was largely unable to provide details of who these persons were , and in one case he was able to, but unwilling to do so. This led to the creation , at the request of the Tribunal, of the Table showing his sources of information, which is contained at pages 359 to 362 of the respondent’s Final Submissions. Of these he called Rick Mortimer, Shaun Donellan, Kevin Dolan and Graham Brock. IV 15. His own witness statement is very sparse on details of what he was told by his informants. His evidence of what he was told, before he made his disclosures, is therefore highly germane. In no instances has the claimant produced any note or record of what he was told verbally by his sources, and when. IV 16. This is surprising, to say the least. The claimant was, as was clear from all the evidence , a highly experienced and effective detective, who had led many serious and extensive criminal investigations. He was well aware of the need for note taking, and record keeping. The Tribunal expected , particularly once he was in conflict with the 86 of 367 respondent, which began in 2012, if not earlier, that he would have kept some notes or records of significant events and conversations. He did not, or, if he did, he has not disclosed these to the Tribunal. This is particularly relevant in the many instances where he claims to have been given information by others which was purely verbal , and which was then relied upon by him for his protected disclosures. None of these conversations have been documented by the claimant . True it is that the claimant sent extensive emails during the last 4 years of his service, in which he set out , often quite repetitively, the information that became his protected disclosures, but this was often considerably after the event, and in none of this material does the claimant record or recite precisely what he had been told and by whom. IV 17. This is even more surprising , quite apart from the general expectation that the Tribunal has of a senior and experienced detective, because of the evidence that was before the Tribunal from Tom Elliott, one of his Fed. reps., in answer to questions from the Tribunal (in fact about the meeting at which P C Rothwell was his new Fed. rep. following the suspension of Tom Elliott) that the claimant was regarded as an extensive notetaker, the word “meticulous” being used. IV 18. Further, the evidence of Kieran Murray in his IPCC witness statement (page 6924 of the bundle) was that the claimant had been advised, as one would expect, by the Federation to “commit to paper” what had been discussed about Operation Nixon . It is also clear from that statement that the claimant and the Fed. sought advice from the Fed.’s solicitors, whom we would also have expected to encourage notes or other record making. This become very significant the further into the process the claimant went, but despite making disclosures about matters which he claims he was told about in 2012, and even in late 2013, the claimant took , or can produce no, notes of the conveying to him of that information. IV 19. In addition to the matters referred to in the respondent’s Submissions , there was one particular aspect of the claimant’s evidence which caused the Tribunal to have considerable reservations about it. That was in relation to DI Kay Dennison. She was a witness for the respondent, and was referred to by the claimant in his disclosure PD1.9 in which he alleged that she contacted him during the hunt for Dale Cregan to ask him to provide officers to relieve other officers who had been assigned to keep observations outside a property which was associated with Dale Cregan. The details will be considered in the Tribunal’s discussion of that PD, but , Kay Dennison having made reference in para. 3 of her witness statement of 28 July 2021 to some previous professional involvement with the claimant , the claimant then made a second, 49 page, witness statement, undated , but clearly after witness statements had been exchanged, in which at paras. 16 to 18 he stated that when he interviewed her for a post she had applied for in MIT in 2007, she had referenced a case in Manchester City centre, in which she claimed to have had some involvement, but which the claimant , who had been the SIO on the case, stated in his second witness statement that she had not . He, in effect, accused her of lying in that interview. After prolonged cross - examination about this, the claimant accepted that he had been wrong, she had been involved in that operation, and that she had not made any such false claim. This was , in our view, significant, and was an indication of the claimant’s readiness, even at a late stage in the proceedings to make (without any reservation or qualification) serious allegations against a colleague , from which, in effect, he was obliged to back down. 87 of 367 IV 20. There are other instances in the evidence where the claimant was dismissive of any errors in the details of what he had disclosed. Whilst these will be discussed in the course of our consideration of the individual PDs below, a stark example is PD3.3 , where the claimant alleged that ACC Sweeney had “turned out” DCS Shenton to an incident, when it was clear that DCS Shenton was not “turned out” at all. IV 21. Turning to the second medical report that was submitted on behalf of the claimant, that dated 18 January 2022, this appeared to be evidence upon which the claimant may have been seeking to rely to explain any deficiencies in his evidence, as the instructions given to Dr Appleford on 14 January 2022 were : “I am contacting you to ask if you are available to provide an urgent further report in relation to Peter Jackson, to answer the following questions based on the material that you have already seen and the conclusions you have reached having interviewed Mr Jackson. Those questions are as to what impact the identified conditions would have had on Mr Jackson’s: 1. ability to concentrate, read and absorb large volumes of information in the period from 2018 to date; and 2. recall that information and otherwise prepare to give evidence in his tribunal claim (where he commenced giving evidence on 1st December 2021)” IV 22. Dr Appleford goes on to then express an opinion in response to the questions he was asked. This Report, however, is not agreed, and has not been added to the Bundle. Its status is therefore uncertain, and the respondent would object to the Tribunal using it to assess the claimant’s credibility. Mr Gorton’s Final Submissions, at para.71 (page 13 of that document) in relation to the issue of credibility do refer to the medical reports, and the need to be sensitive to the claimant’s vulnerabilities and stress, but he goes no further than that. IV 23. Further, and perhaps more tellingly, Mr O'Dempsey has not, in his written or oral Submissions sought to refer to , or rely upon, this second Report in connection with how the Tribunal should approach the claimant’s evidence. The Tribunal accordingly will disregard it for these purposes. In any event, at its highest, whilst it may negate any inference of dishonesty in the claimant’s evidence that the Tribunal may be invited to draw, it does not make any difference to the reliability of the claimant’s evidence, it merely provides a possible explanation for any deficiencies in it, as an alternative to a finding of dishonesty. To the extent that the Tribunal would always have to weigh up the evidence, and consider the claimant’s explanations for any deficiencies in it, this Report was never likely to be of much assistance to the Tribunal in carrying out that function, and has not, in the event, probably for that reason, been relied upon for this purpose. IV 24. The Tribunal does not have to be satisfied that the claimant was “making stuff up”, merely that he did not have a reasonable belief in what he had disclosed. It is, of course, part of the respondent’s case that the claimant was, at least in some of his evidence, doing precisely that. The two are not the same. If, of course, a person has 88 of 367 made something up, and repeats it, they cannot have a reasonable belief in what they then convey. The converse , however, is not the case. One does not have to have invented something to lack a reasonable belief in it. A person may be told something by another person, which is not correct, but does not question it. A person, for example, may be told something , or have a belief about something, that involved three people in wrongdoing, but in fact only two were involved, but some pre-conception or assumption has operated upon the mind of that person, and they have formed this belief. They have not made anything up. In short, whether a belief is reasonable or not is not dependent upon any finding that the claimant made anything up, it will be determined in all the circumstances known to him at the time he made his disclosures. IV 25. That said, the Tribunal has had to decide whether , in some aspects , the claimant’s evidence has not only been unreliable, but that it has been dishonest. That the core facts of the matters that the claimant disclosed were correct is, of course, important, but , as will be seen, that is of little assistance to him in determining whether he had, particularly for the purposes of s.43F, a reasonable belief in the information that he conveyed and each allegation contained in it. IV 26. The Tribunal has been struck, through the course of the claimant’s evidence, and indeed his written communications going back to 2012, by his tendency to dramatise, intensify, and exaggerate matters. At the very outset of his PDR1 document disclosed to the IPCC, for example, he said that the respondent had “failed to investigate” the matters that he had raised, and that “In sum, the issues raised have been ignored”. That was, of course, a gross exaggeration. The issues raised had not been resolved to his satisfaction, a number of officers had not been interviewed, but as the “Tracker” document prepared by DSupt. Savill (pages 5339 to 5567 of the bundle) which was provided to the IPCC reveals, the issues had not been ignored. The significant attempts to engage with the claimant about his “disclosures” by , in particular, ACC Copley, among others, are therein set out. This must have come as some surprise to the IPCC when it was received, as the picture painted by the claimant in his PDR documents gave no indication of the respondent’s responses to the issues that he had raised. IV 27. The claimant has been described, although he does not accept this , as being angry, perhaps, of course, with good cause. The Tribunal can accept that he did so present on occasion. The strength of his feelings have been documented in, for example, the observation of Kieran Murray in his witness statement to the IPCC (page 6924 of the bundle) that he wanted to “blow GMP out of the water” , and the references he also made (we find, although he disputed them) to bringing a tsunami down on GMP, and bringing down SLTs. He has also been described, which he would not necessarily disagree with, as being somewhat “black and white” in his views, and to have the view that colleagues were either for him or against him. He has, he would agree , a strong moral compass, and is passionate. IV 28. The Tribunal considers that , whilst perhaps with mixed intentions, and to advance what he saw as his cause of righting the various wrongs that he considered had been perpetrated all around him , his perceptions and communications have on occasion been influenced by his passion. His sense of injustice in terms of his personal treatment, and in the wider sense , has come with the expense of balanced examination and accurate onward communication of information that he had received. That is a charitable 89 of 367 view, but there is another, which is less benign , and inclines to a conclusion that the claimant, on occasion, has deliberately sought to mislead the Tribunal in some parts of his evidence. IV 29. We would not go that far, but for a number of reasons, which are set out in more detail in the discussions below, the Tribunal has found that the claimant’s evidence on many aspects of his claims is simply not reliable. IV 30. That is not to say that the respondent’s witness evidence is not to be scrutinised, and is to be accepted without demur. This part of the judgment, however, relates to the determination of the issues of whether the claimant made any protected disclosures, as to which his evidence is central. Whilst some of the evidence adduced by the respondent is relevant to these issues, it is much less so, and will be considered at the appropriate junctures below. ii)The Tribunal’s general approach to the protected disclosures. IV 31. The Tribunal accordingly has taken the approach to the disclosures set out in Chapter III above, and that unfortunately means that it will be necessary to rehearse the totality of what the claimant disclosed in each instance in order to assess whether he has established that any given disclosure amounts to a protected disclosure. This is the only way to assess the totality of the information disclosed in each disclosure, and avoids the need for continual cross – references to different documents. Against that background, the Tribunal will make its findings of fact in respect of the protected disclosures, and then whether the claimant has established that any of his alleged PDs satisfy the tests for protective disclosures. In the ensuing paragraphs, where all 19 PDs are examined, in order to assist navigation, paragraph numbers will be prefaced by the identification of the PD being discussed. Whilst this is a little cumbersome, it avoids ever ascending enumeration, and should make referencing quicker and easier. Group 1: 1.Protected disclosure 1.1: Corrupt promotion of DCI Scally in early 2011 (and the claimant’s information contained in this and other disclosures that the respondent corruptly and cronyistically over – promoted DCI Scally (and in other disclosures DCI Snowball and DCI Worth) , i)The pleaded disclosure (with the extracts omitted from the List of Issues added with underlining): Information disclosed: In early 2011 ACC Sweeney promoted DCI Dominic Scally to the role of Temporary Detective Superintendent (which role included the function of SIO on more critical and serious investigations) within the Force Major Incident Team (MIT) because of favouritism, without the position being advertised or any selection process taking place and notwithstanding the fact that DCI Scally did not have major crime experience or a major crime background. This was cited as one example of a culture of cronyism and corrupt practices, whereby officers were advanced into positions for which they did not have the requisite skills and experience because of close relationships with senior officers (other specific examples are referred to below). 90 of 367 PD 1.1. was set out at paragraphs (viii) to (ix) of PDR1 , under the heading “(B) When ‘cronyism goes badly wrong ! Operation Nixon” , which stated as follows: (viii) Early in 2011 Dominic Scally was a Chief Inspector in GMP when he was promoted into the role of SIO/Temporary Detective Superintendent within the Force Major Incident Team. The position was not advertised and no selection process took place. Mr Scally was placed into the position on account of his close relationship with ACC Sweeney, (who also has a close relationship with DCS Shenton and ACC Heywood. The relationship of these three senior officers is significant to a number of the disclosures made within this report). (ix) TD/Supt Scally did not have major crime investigative experience and there were other more suitable candidates with relevant investigative backgrounds and experience who did not get the opportunity to apply for the role. TD/Supt Scally had also failed at the first stage of the last two formal promotion processes, which has been suspended since March 2010. Questions have to be asked about how Mr Scally came to be a TD/Supt in the Major Incident Team and why a fair, impartial and transparent selection process was not undertaken. Para.12 of the List of Issues (page 265D of the bundle) sets out that the claimant says he reasonably believed that this information tended to show (a) that there had been a failure to comply with or one or more legal obligations, namely (i) the duty to protect the public and prevent crime; and/or (ii) the duty of a police officer to comply with the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2012 and in particular the standards of honesty and integrity; duties and responsibilities and discreditable conduct; and/or (b) that the health or safety of any individuals, namely the general public, had been endangered. PD1.1: 1. Dominic Scally joined GMP in 1992. His full career history up to 2012 is set out at pages 1811 to 1812 of the bundle, and summarised at pages 5595 and 5596 of the bundle in the findings of the IPCC. In summary, by 2003 he had been promoted to Chief Inspector at Salford , where he worked in CID, completed his SIO course, and led two homicide investigations. From 2006 to 2009 he worked as a DCI in the Serious and Organised Crime Group (“SOCG”). He had responsibility for the Force Economic Crime Section, which included Fraud, Money Laundering and Cash Seizure Teams and the Force Drugs Unit. He was one of a number of DCIs within the SOCG. During this period he was chosen to be the Temporary Detective Superintendent for SOCG for 3 months cover for sickness. He was responsible for complex and large scale investigations into organised crime groups, using a wide range of overt and covert policing tactics. SOCG also provided response to kidnaps and crimes in action, as well as critical manhunts. He was SIO for a number of such investigations including the successful manhunt for Lee Amos and Colin Joyce (two notorious gang members). He continued in that temporary rank on Operation Storm . From 2010 to 2011 he reverted to DCI on the Manchester Metropolitan Division. He was responsible for Crime Investigation and Criminal Justice. During this post he was the divisional representative on MAPPA 3 panels for high risk offenders resident on the division. He had some major 91 of 367 crime investigation experience, possibly not as much as the claimant, or other potential candidates, but the claimant was incorrect when he stated that TD/Supt. Scally “did not have major crime investigative experience”. The claimant had not seen , and was not aware of, TD/Supt. Scally’s career history at the time he made his disclosures to the PD1.1: 2. In January 2010 there was a promotion process for the rank of (substantive) superintendent. The claimant and Dominic Scally both applied , and both were unsuccessful . ACC Sweeney was involved in the process, as a member of the COG, but neither the claimant nor DCI Scally, as he then was, were appointed. PD1.1:3. The promotion process since 2011, and possibly earlier, had been in a state of flux in recent years as it adapted to the changing priorities, and the changing economic and staffing situation of the Force. The expectations of each rank had continued to evolve, and previous routes to promotion may not have remained pertinent. Most significantly, there had been a considerable reduction in the opportunities available for promotion: this had affected officers at all ranks. As opportunities reduced and expectations changed, there was an expectation that those seeking promotion should continue to develop themselves and adapt to the changing requirements. An officer who was recommended for promotion previously, did not necessarily mean that they would retain that support indefinitely. PD1.1:4. Further, within the Serious Crime Division, there had also been a considerable change in the management levels for major investigations. A few years previously , the role of Senior Investigating Officer was performed by Det/Supts, and there were more such positions to be filled. Since then, the SIO role had been passed to the DCI rank, and the Det/Supt roles have been reduced in number , and they were expected to undertake a wider range of strategic responsibilities. Across the Force, the number of substantive promotion opportunities had reduced considerably, as the overall size of the Force was reduced. Previously there have been frequent and regular assessment processes for substantive promotion. The need for temporary promotion had varied, but had generally been ‘occasional’ and ad hoc, with selection based on the specific needs of the individual post, e.g. local continuity or specialist experience. Because substantive promotions had been limited until the Force determined the future need and structure, a number of short-term vacancies had built up. There had consequently been a need for a more general process to fill several temporary vacancies. Substantive promotion processes usually involved a written application with line manager recommendation; this acted as a filter stage before progressing to an interview with a selection panel drawn from senior managers from across the Force. PD1.1: 5. This was the case for the D/Supt expression of interest process that DCI Scally and the claimant both went through in 2010. Before the process, ACC Copley emphasised to divisional and branch commanders that there should be no automatic right of passage for those who wanted to be considered for promotion, and at a time when the available positions were limited and likely to be subject of close competition, commanders should only recommend those that they considered fully ready and of the highest standard. 92 of 367 PD1.1: 6. Applications were then forwarded with the divisional commander’s recommendation to ACC Copley. These applicants were then considered against the available opportunities to select those with the most suitable experience to cover each individual position. Some posts required specialist experience, and therefore would not be appropriate for all those who had been recommended by their commander. PD1.1: 7. This differed from a substantive promotion process, where selection was made by the interview panel to a single pool, from which all the available posts are filled. Being temporarily promoted was not a guarantee of success at a future substantive process, and not being recommended or selected for a temporary promotion this time did not preclude an officer from applying for substantive promotion in the future. PD1.1: 8. There had also been a drive to reduce the level of bureaucracy attached to the promotion process and annual appraisal system. Previous promotion processes had required the presentation of lengthy accounts of ‘evidence’ alongside recent appraisal reports. It was difficult to draw comparisons across the wide range of roles and challenges in policing, and whilst a larger volume of reports and appraisals appeared to provide validation that was capable of independent evaluation, they all ultimately relied upon subjective assessment and line manager recommendations. For this process, candidates were required to produce a short account of their suitability for temporary promotion, highlighting their particular skills. This was supported by a short recommendation by their divisional commander. That recommendation was effectively based on overall performance, effectiveness, and experience to date. This method had been used for other selection processes, including temporary promotion, and the respondent’s view was that it was an effective and efficient means of allowing an individual to ‘express an interest’ and for senior managers to make a selection. It was not, however, without its critics. PD1.1: 9. The same process was applied across the whole Force, and the second stage of the process was intended to ensure that there was moderation and consistency between divisions/branches. An expressions of interest exercise for the role of T/Det Supt. was carried out in July 2011. Five (redacted) application forms are at pages 413 to 437 of the bundle. DCI Snowball and DCI Worth both also expressed interest, and their application forms are at pages 403 to 406 and 408 to 412 of the bundle respectively. PD1.1: 10. Lesley Kewin, HR Delivery Manager, commented in her report sent to ACO Potts with her email of 2 January 2013 (pages 746 of the bundle, with the report attached at pages 750 to 753, clearly wrongly dated 2 January 2012, when it was 2013): “There does not currently exist a written policy on selection methods for acting/temporary promotions. This has not been a significant problem in the past, but due to the reduced opportunities and from my recent experience on division , it would be one of my recommendations that a policy/procedural document is produced to assist SLTs in their decision making process and prevent further grievances.” PD1.1: 11. On 21 March 2011 Dominic Scally was appointed Temporary Detective Superintendent in the MIT. He was appointed SIO on Operation Nixon, which was already up and running, the following day. At the time he was working towards his PIP3 accreditation. The process whereby this occurred is not documented. The claimant 93 of 367 accepted in evidence that he did not know who had appointed TD/Supt. Scally, or who had been on any panel, or in any group , that had considered his promotion. PD1.1: 12. The claimant first raised the issue of the cronyistic promotion of TD/Supt. Scally when he raised a grievance on 25 June 2012 about the failure of DCS Shenton to support him in his application for a temporary superintendent post which was advertised on 26 April 2012 (pages 527 to 536 of the bundle). It was referenced on the third page (page 529 of the bundle) of that document, but the claimant did not mention ACC Sweeney by name at all in that document. What he did say (at page 529 of the bundle) was: “It is my view, and a view shared by many, that favouritism and cronyism is widely practised within GMP and that it is often the case that the closeness of a person’s relationship with an influential senior officer is a more important factor in determining whether one gains promotion than your actual performance, experience, ability and skills. What I believe is of real concern is that the practice of favouritism and cronyism is seeing officers advanced into positions for which they do not have the requisite experience, skills and abilities and as a consequence I believe the Force and the public are being placed at risk.” PD1.1: 13. He then went on to refer to Operation Nixon (i.e the subject matter of PD1.2, to be discussed below) and the failings of T/Supt Scally in that operation, and (page 530 of the bundle) states : “I think Op Nixon clearly demonstrates the negative consequences which can occur when persons are promoted into positions as a result of favouritism and cronyism rather than on the basis of their experience, skills and ability to perform the role.” PD1.1: 14. The whole of this grievance relates specifically to DCS Shenton, and the claimant makes no specific linkage of the promotion of T/Supt Scally to ACC Sweeney’s influence, nor does he suggest that it was ACC Heywood, as opposed to DCS Shenton, who was standing in the way of his own promotion. PD1.1: 15. The claimant raised this grievance to Ch/Supt John Rush, on 2 July 2012, but the claimant was concerned that he may not be independent because of his association with DCS Shenton, so it was instead , ultimately, referred , as a Stage 2 Grievance to Ian Wiggett, a Temporary ACC. He met with the claimant on 8 August 2012 to discuss the grievance, and produced an outcome letter on 23 October 2012 (pages 651 to 664 of the bundle). As part of the grievance process T/ACC Wiggett interviewed Det/Supt Barraclough, DCS Shenton, ACC Copley, Justine Godwin (of HR) C/Supt Rush,and C/Supt. Rebekah Sutcliffe. PD1.1: 16. In this letter ACC Wiggett set out his understanding of the promotion processes, and dismissed the claimant’s grievances that he had not been promoted due to the unfair influence of DCS Shenton, in not supporting his application. He also addressed what he regarded as the fifth point made by the claimant in his grievance, the allegation that that there was a culture of cronyism, with DCS Shenton only supporting his favourites for promotion. He rejected that contention. 94 of 367 PD1.1: 17. The claimant appealed this outcome on 8 November 2012. His stage 3 appeal document is at pages 682 to 687 of the bundle. It is a wide – ranging document, which makes reference back to ACC Wiggett’s outcome letter. In relation to the absence of a written policy on promotions, he says this (pages 683 and 684 of the bundle) : “My observations on this are - there is no written policy document which people can refer to which explains the current promotion/selection process. What is clear is that officers have regularly been placed into positions with no EOI or selection process. Officers have also moved from one acting position to another with no EOI or selection process. In a number of cases officers have acted for extremely long periods of time and in some cases this amounts to years. There is no transparency in the process. People do not know how EOl’s are marked and what the selection process is. I think I reflect the widely held view across the Force when I say that I have no confidence in the process and that the general perception is as I have said in my grievance report, that ‘favouritism and cronyism is widely practised within GMP and that it is often the case that the closeness of a person's relationship with an influential senior officer is a more important factor in determining whether one gains promotion than your actual performance, experience, ability and skills.” At page 695, the claimant says this: “In respect of T/D. Supt Scally my contention is that his continued support is due to his close relationship with DCS Shenton and other Senior Officers” PD1.1: 18. On 10 November 2012 CS Caroline Ball, Divisional Commander , Bury, Head of Organisational Learning and Workforce Development (“OLWD”) sent an email to a number of parties, headed “Selection of senior posts”. She said this (page 693 of the “I know most of you know the process and are often involved in working with your ACC in the selection but over the past couple of weeks I have had a number of queries about how we select senior posts. The main queries relate to specialist or change type posts rather than territorial ones which I think are quite well understood. Therefore I would be grateful if you could ensure your teams are aware of the process. Firstly COG [Chief Officers’ Group] decide if they want to fill a vacancy or need to create one because of a business need. In the case of specialist or new we will advertise eg Pegasus and hub. The substantive ranks are e mailed first with the advert, which is an agreed position with association and federation. Where there are no successful applicants, COG will then select from the development pools. As you know everyone in that pool has the support of their commander and ACC. This keeps the process simple and the pools are refreshed annually in spring so that we can highlight someone who has improved and are ready for development. We know that 95 of 367 there is no guarantee that just because someone is in the pool they will get a temporary job. Occasionally there will be a specific skill set required and a person not in the pool may be appointed in a temporary rank. As you know Dawn [Copley] has told us all that this should be rare because we do have wide skill sets in the pools. Additionally she also pledged that where COG do have to do this then they will tell us and why”. PD1.1: 19. She also sent a covering email (page 702B of the bundle), in these terms: “Please see my message below which is our process for selection of senior specialist posts. You must not veer away from this unless Dawn (then Zoe) has authorised it and Dawn is taking to COG next week. I would expect that you bring to me before ACC as you always do so that has not changed. There have been a lot of issues recently that have caused consternation, confusion and sometimes anger because of differing processes.” PD1.1: 20. CS Ball (now Jones) was in post from early 2011, and found that the promotion processes were erratic for all ranks. She undertook work with ACC Copley, and Emma Bilsbury (the Assessment Centre and Career Progression Unit Manager) to make the process more transparent and fair. She did have issues with how ACC Sweeney managed the promotion processes, and changed them “to suit” as she put it in her witness statement. She went on to say that by this she was referring to his desire to be more pragmatic , and to expedite the process, rather than anything more untoward. She was aware of rumours that he had his favourites, often male officers. She discussed these issues with the Chief Constable, having received approaches from female officers about the DCI promotion process. The Chief Constable told her that he would support her in letting OLWD determine fair and transparent processes, once approved by the COG. PD1.1: 21. The claimant’s Stage 3 grievance appeal was heard by ACO Lynne Potts on 4 January 2013( see pages 755 to 757 of the bundle). There appears to be no reference to ACC Sweeney made during the appeal by the claimant (unless he was the officer named at para.16 of the notes on page 757). ACO Potts’ outcome letter of 4 March 2013 is at pages 774 to 782 of the bundle. No mention is made in it of ACC Sweeney. PD1.1: 22. On or about (for we have no surrounding documentation) 11 June 2013 the claimant made his first disclosure, in PDR1 to the Police and Crime Commissioner (pages 814 to 834 of the bundle) . It is the same document as was disclosed to the IPCC as PDR1 , and hence contains , at paras. (viii) and (ix) the disclosures which relate to ACC Sweeney. That document was updated on or about 20 June 2013, also sent to the PCC around that time , again the bundle contains no documentation relating to its transmission (pages 837 to 856 of the bundle). Three new paragraphs were added, paras. (ixii), (xiiii) and (cxxxvi) . PD1.1: 23. On 26 September 2013 the claimant met with ACC Copley. The content of that meeting was without prejudice (the claimant having an extant ET sex discrimination 96 of 367 claim), but following it there was open communication between the claimant and ACC Copley. This was part of ongoing communication between them about his grievances, their outcomes, and his previous ET claim, which he had presented in 2012. On 1 October 2013 he wrote to her, to discuss the way forward. There had been a suggestion that the claimant meet with ACC Heywood, who would apologise to him for a delay in notification of his application for the Temporary Supt. role. The claimant set out his views, and his reasoning as to whether he should meet with ACC Heywood. He said this (pages 962 to 964 of the bundle) : “Unfortunately, I do not feel that the way forward offered to me at our meeting compensates in any way for the detriment I have suffered over the past few years. My career has been unfairly brought to a standstill for reasons that have nothing to do with ability or readiness for promotion. It has however had everything to do with 'cronyism' and not being in the right ‘clique’ or friendship group. My career has effectively been ended by the vindictiveness of certain senior officers whose integrity and honesty I have questioned. I firmly believe DCS Shenton and ACC Sweeney effectively handed me a 'black spot’ and ACC Heywood (who has done a complete 360 degree turnaround in terms of his views on my suitability for promotion) and others have simply sided with their senior colleagues. In our discussion you rightly highlighted the ‘realism' of my situation in that ACC Heywood is, and will continue to be, my Chief Officer and that without his support it makes it difficult for me to progress in the Force. You have said he would apologise for his recent treatment of me regarding the delay In notification of the result of my EOI for the Supt Cadre and I agree I will meet him and accept his apology in an attempt to try to build bridges and move forward. However In terms of ’realism' I do not see how I can go forward with any confidence or hope of ultimately being supported for promotion when my 'whistle blowing’ disclosures have still not yet been addressed. Whilst I can meet with ACC Heywood and try start to build bridges the question is ‘What will happen once my disclosures are investigated?. Again if we apply a dose of ‘realism’ to the situation we cannot get away from the fact that I have been critical of ACC Heywood in a number of areas of my ‘whistle blowing' report, not least re his leadership of Op Dakar and his oversight of Ops Somerville and Mirato. I have alleged that there were many failings in those operations which are detailed in my report , including a failure at senior level to recognise and act upon risks and ultimately it was a combination of failures that saw Nicola and Fiona tragically lose their lives. I was critical of the 'antagonistic' tactics used in relation to Cregan's family re the large number of search warrants executed at their addresses in an attempt to ‘flush’ him out. I have become aware, only in the last few days since our meeting, of further information which supports my allegations. I understand that Cregan has actually said that the approach taken to his family ‘with guns in their faces’ caused him to turn his anger towards the police. And he put the blame squarely at the feet of ACC Heywood who he saw leading the investigation and who was initially his intended ’target’. I am aware that he even attended a police station to try to locate him and when realising he would be unable to get to him then put together his evil plan to murder any random GMP Officers). 97 of 367 Clearly this Is a very emotive and sensitive subject but this information supports what I allege in my disclosures. I do not found (sic) it easy making such disclosures however I do feel extremely frustrated as it is true and fair to say that back in June 2012 I warned of the dire consequences of 'cronyism' and the risks presented to the public and the Force by advancing inexperienced individuals into critical decision making positions such as that of SIO. I feel that had an experienced SIO been involved from the outset and had ACC Heywood had the support and counsel of such an experienced SIO, then the outcome may have been different. I feel the Force has got things badly wrong in the past few years and one of the key factors is its lack of recognition of the value of 'experience'. So, what will ACC Heywood’s reaction be when I continue to push for my disclosures to be independently reviewed, to be brought to the attention of the IPCC, the Health and Safety Executive and to the attention of the Coroner. How will he and other senior officers react to all my disclosures? They touch upon a number of different areas and a number of different senior officers, they are extremely serious issues which present real reputational risks both to those senior officers and to the Force: The 'reality' is that in that context ACC Heywood will never support me, no matter what my performance, no matter how many projects I get involved in, no matter how great my contribution to the Force. I know this, he knows this and despite your best efforts I suspect (if we again apply a coat of 'realism' to the situation), that you would agree with me.” PD1.1: 24. On 6 October 2013 the claimant wrote again to ACC Copley (pages 977 to 980 of the bundle). In the course of this email the claimant says this (page 977 of the “Although you say ACC Heywood has offered me an apology, the apology only relates to the delay in the notification of the result of my EOI for the Superintendent cadre. It does not in any way relate to how I have been treated over the past couple of years. It does not explain why he suddenly and without good reason completely changed his view 'overnight' on my suitability for promotion. What is more important than the apology is a proper explanation for the way in which he has treated me. The truth is that neither ACC Sweeney nor DCS Shenton have wanted to see me promoted from the outset: for personal reasons that have nothing to do with ability. I have had it fed back to me from those who have been present in DCS Shenton's company that he has openly talked in strong terms of his 'hatred' for me. I think this is because I am not part of 'his clique’ and I have openly challenged him and his ’cronyism'. The difficulty he has had is in squaring his personal feelings with professional judgement and supporting his decisions with evidence. He has never produced any evidence to substantiate anything he has said against me. Unfortunately ACC Heywood, in siding with DCS Shenton has put himself in a difficult position, as in order to support DCS Shenton he has said things which are not evidenced and when examined can be shown to be contradictory to previous views that he has expressed.” He later says this (page 979 of the bundle): 98 of 367 “However the explanation for all of the above is simply 'cronyism'. I am not in ACC Sweeney and DCS Shenton's 'clique' and as a result I am treated negatively whenever I come within their sphere of influence.” PD1.1: 25. The claimant believes that TD/Supt. Scally was a friend and close associate of ACC Terry Sweeney, describing him as one of “Terry’s boys”. He believes that T/DSup Scally was in a clique with Terry Sweeney, and was promoted by him because of this. The claimant’s own previous explanation in his witness statement to the IPCC (see pages 1449 and 1450 of the bundle) for why ACC Sweeney had any animosity towards himself was in relation to his handling (then a Chief Supt., in his role as Head of PSB) of an incident that occurred between his wife and an Inspector about a dog bite that had occurred in May 2007, which resulted , as he put it , in them having “heated words”. PD1.1: 26. The claimant had no source of information for this disclosure other than his own knowledge. He was not aware of the career history of T/D Supt Scally, nor of who had actually promoted him. He accepted in evidence that no ACC would have the power to promote alone, and that the COG , comprising of ACCs, probably the ACO (HR , Lynne Potts) and the DCC , could formally make the decision. PD1.1: 27. The IPCC investigation concluded (pages 5595 to 5596) that TD/Supt. Scally did in fact have the requisite level of experience to lead Operation Nixon (and by implication, to have been promoted to TD/Sup rank). Discussion and findings on PD1.1, and, in part, of general application to all the PDs. What information was disclosed? PD1.1: 28. Our first task is to determine what information was disclosed. We find that the information disclosed was just as the claimant has pleaded in the List of Issues, set out above, save that this disclosure is made under the heading “When ‘cronyism’ goes badly wrong! Operation Nixon”. What did the claimant reasonably believe that the disclosure tended to show under s.43B(1)? PD1.1 29. Applying the relevant tests, the first one is whether the claimant has established that he reasonably believed that this disclosure tended to show that there had been a breach of a legal obligation. The test to be applied to determining this issue has been the subject of much discussion in the caselaw. The first question is whether there has actually to be legal obligation in existence , breach of which the whilstleblower is relying upon for their disclosure. This was considered in Babula v Waltham Forest College

cited above, where the Court of Appeal, Wall L J, held (at para. 75) that “provided his [the whistleblower’s] belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the facts that the belief turns out to be wrong , nor (2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to a criminal offence, is , in my judgment, sufficient , of itself, to render the belief unreasonable and thus deprive the 99 of 367 whistleblower of the protection afforded by the statute.” The same will apply to breach of a legal obligation. Another aspect, however, is the degree to which, if at all, a whistleblower has to spell out, in the disclosure, the legal obligation breach of which he says his disclosure tends to show. This was considered by the EAT, Linden,J, where he rejected the contention that a whistleblower must make some reference to the legal obligation he relies upon. He said this: 87. This is not to say that the questions whether the worker mentions, for example, criminality or illegality or health and safety in their disclosure, or whether it is obvious that they had these matters in mind, are irrelevant. What they said, and whether the matter is obvious, are relevant evidential considerations in deciding what they believed and the reasonableness of what they believed, rather than these questions presenting an additional legal hurdle, as Mr Nicholls effectively contends. If the nature of the worker’s concern is stated - if they say that they consider that the reported information shows criminality or breach of legal obligation or a threat to health and safety - it will be harder to dispute that they held this belief and that the professed belief that the disclosure tended to show the specified matter was reasonable. The point is the same if what the worker thinks is obvious from what they say in the alleged disclosure. Conversely, if the link to the subject matters of any of section 43B(1)(a)-(f) is not stated or referred to, and is not obvious, an ET may see this as evidence pointing to the conclusion that the worker did not hold the beliefs which they claim, or that the information is not specific enough to be capable of qualifying. But what cannot be said is that unless it is stated that the information tends to show one or more of the specified matters, or it is obvious that the concern falls within section 43B(1)(a)-(f), the information is incapable of satisfying the requirements of that section because it cannot reasonably be thought by the worker that it tends to show any of the specified matters.” Thus, this Tribunal concludes that whilst failure by the claimant to mention the specific legal obligations he is relying upon in the text of his disclosures as sent to the IPCC is not fatal, it is relevant to the determination of whether he actually and reasonably held the belief that this disclosure tended to show this particular matter under s.43B(1)(b). PD1.1: 30. The first legal obligation that the claimant relies upon is that to protect the public and prevent crime. The claimant has not specified the source of this legal obligation. In fact the prevention of crime has been stated to be the first duty of a constable in the Instructions to Constables of 1839. In terms of the common law duties of the Police, the judgment of Lord Toulson in Michael v Chief Constable of South Wales Police

[2015] UKSC 2

is a good review of the law. He said: “29. It has been long established that the police owe a duty for the preservation of the Queen’s peace. The phrase has an old-fashioned sound but the principle remains true. Halsbury’s Laws of England, fifth ed (2013), Vol 84, para 40, states that the primary function of the constable remains, as in the 17th century, the preservation of the Queen’s peace.

[30]In Glasbrook Brothers Ltd v Glamorgan County Council

[1925] AC 270

a colliery manager asked for police protection for his colliery during a strike. He wanted police officers to be billeted on the premises. The senior police officer for the area was willing 100 of 367 to provide protection by a mobile force, but he refused to billet police officers at the colliery unless the manager agreed to pay for the additional service at a specified rate. The manager promised to do so, but when the police submitted their bill the company refused to pay it on the ground that it was the duty of the police to prove necessary police protection without payment. The police sued the colliery and won.

[31]The House of Lords held that the police were bound to provide such protection as was necessary to prevent violence and to protect the mines from criminal injury without payment, but that it was lawful for the police to charge the colliery for extra protection, and that the judge had been entitled to find on the facts that the case fell into that category. Viscount Cave LC stated the nature of the duty of the police at pp 277-278: “No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; and the public, who pay for this protection through the rates and taxes, cannot lawfully be called upon to make a further payment for that which is their right. This was laid down by Pickford LJ in the case of Glamorganshire Coal Co v Glamorganshire Standing Joint Committee

[1916] 2 KB 206

, 229 in the following terms: ‘If one party to a dispute is threatened with violence by the other party he is entitled to protection from such violence whether his contention in the dispute be right or wrong, and to allow the police authority to deny him protection from that violence unless he pays all the expense in addition to the contribution which with other ratepayers he makes to the support of the police is only one degree less dangerous than to allow that authority to decide which party is right in the dispute and grant or withhold protection accordingly. There is a moral duty on each party to the dispute to do nothing to aggravate it and to take reasonable means of self-protection, but the discharge of this duty by them is not a condition precedent to the discharge by the police authority of their own duty.’ With this statement of the law I entirely agree …”

[32]To similar effect Lord Parker CJ said in Rice v Connolly

[1996] 2 QB 414

, p 419, that it is the duty of a police constable “to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury”.

[33]The duty is one which any member of the public affected by a threat of breach of the peace, whether by violence to the person or violence to property, is entitled to call on the police to perform. In short, it is a duty owed to the public at large for the prevention of violence and disorder.

[34]Under section 83 of the Police Reform Act 2002 (substituting Schedule 4 of the Police Act 1996) every constable is required to make the following attestation: “I … do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that 101 of 367 I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property …”

[35]This reflects the common law duty of the police.” PD1.1: 31. Thus, the first legal obligation breach of which the claimant says he believes that this disclosure (and all others where this formulation appears) tended to show is ones that derives from common law. The claimant did not articulate any of this, nor, to be fair, did his counsel, but the caselaw discussed above makes it clear that absence of precise specification of the source of the legal obligation is not fatal to reasonable belief for these purposes. The case law refers to cases where the legal obligation was sufficiently obvious, or was a matter of common sense. It has not been, and could not have been, seriously suggested that the claimant did not reasonably believe that the Police were subject to this legal obligation, as, indeed, as the caselaw cited above shows, they are. PD1.1: 32. That applies to the first of the two types of legal obligation that the claimant relies upon. The legal obligation in question has been specifically pleaded as being one that arises under Schedule 2 to the Police (Conduct) Regulations 2012. As observed below , the Tribunal cannot see any such legal obligation in those Regulations or in their predecessor, the 2008 Regulations. PD1.1: 33. The relevant provisions of the 2012 Regulations are as follows: Citation, commencement and extent 1.—(1) These Regulations may be cited as the Police (Conduct) Regulations 2012 and shall come into force on 22nd November 2012. Interpretation and delegation 3.—(1) In these Regulations— “Standards of Professional Behaviour” means the standards of professional behaviour contained in Schedule 2 Written notices 15.—(1) The investigator shall as soon as is reasonably practicable after being appointed, and subject to paragraph (3), cause the officer concerned to be given written notice— (a)describing the conduct that is the subject matter of the allegation and how that conduct is alleged to fall below the Standards of Professional Behaviour; PD1.1: 34. The Schedule to the 2008 Regulations is the same as is set out in Schedule 2 to the 2012 Regulations, and its provisions are as follows: SCHEDULE 102 of 367 Standards of Professional Behaviour Honesty and Integrity Police officers are honest, act with integrity and do not compromise or abuse their position. Authority, Respect and Courtesy Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy. Police officers do not abuse their powers or authority and respect the rights of all individuals. Equality and Diversity Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly. Use of Force Police officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances. Orders and Instructions Police officers only give and carry out lawful orders and instructions. Police officers abide by police regulations, force policies and lawful orders. Duties and Responsibilities Police officers are diligent in the exercise of their duties and responsibilities. Confidentiality Police officers treat information with respect and access or disclose it only in the proper course of police duties. Fitness for Duty Police officers when on duty or presenting themselves for duty are fit to carry out their responsibilities. Discreditable Conduct Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty. 103 of 367 Police officers report any action taken against them for a criminal offence, any conditions imposed on them by a court or the receipt of any penalty notice. Challenging and Reporting Improper Conduct Police officers report, challenge or take action against the conduct of colleagues which has fallen below the Standards of Professional Behaviour. PD1.1: 35. The Tribunal has to determine whether, when he made his disclosures the claimant did actually believe that they tended to show a breach of a legal obligation of this nature, and if so, whether that belief was reasonable. He has expressly referred to and relied upon the provisions of these Standards of Professional Behaviour on the basis that there is a legal obligation to adhere to them. There is not, certainly not in this or either version of the Regulations. The claimant has not identified any other basis for the Standards having legal force. PD1.1: 36. A further telling aspect is that the claimant first identified this species of s.43B(1)(b) disclosure on this basis in his first List of Issues , on or about 15 February 2018. He makes no mention in any of his PDRs to these Standards, unlike, for example, breach of

ECHR Article 2

, which he does refer to. Rather, he makes generalised allegations of cronyism and corruption, with no reference at all to the Standards. The Tribunal appreciates that there is no requirement that a whistleblower spells out in his disclosure breach of what legal obligation he is alleging his disclosure tends to show, but the caselaw above shows that this can be relevant factor in determining whether he had the requisite belief, and, if he did, whether he reasonably held it. PD1.1: 37. The Tribunal is driven to the reluctant conclusion that the claimant did not have breach of these Standards , as a legal obligation , in mind when he made his disclosures to the IPCC on 31 January 2014, and so did not actually have that belief when he made all his disclosures. The contention looks like an after the event (and inaccurate) gloss, emerging 4 years later, upon what the claimant thought at the time. Not only is no mention made of these Standards , or the Regulations in the PDRs, but there is no mention of them in any other documentation produced by the claimant in his grievances or any other documents. The Tribunal is therefore not satisfied that the claimant had any such a belief at the time that he made this disclosure at the end of January 2014. He may have believed that the conduct he was disclosing was dishonourable , discreditable and in breach of the standards to be expected of a Police officer. That such conduct was also unlawful, however, is the missing link, in which the claimant, we consider , lacked the requisite belief. It is to be remembered that this was, in any event , repetition of disclosures that he had made as part of his internal grievance, and to the PCC in June 2013, in none of which he had made this assertion. PD1.1: 38. Even if the claimant did hold this belief that this is what his disclosure tended to show, the Tribunal could not go on to find that any such belief was reasonably held. Whilst it is correct that a disclosure does not have to be right in order to merit protection, in assessing the reasonableness of any such belief the Tribunal is entitled to take into account the circumstances and knowledge of the discloser. The claimant was not only a senior police officer, but also has a law degree. That he should have relied upon an iteration of the Regulations which were not in force at the time of the matters to which this disclosure relates , (and indeed most others) shows a lack of care and attention to 104 of 367 detail, as does his failure to recognise that the Regulations do not actually impose any legal duty to comply with the Standards in the Schedule. They are procedural provisions, designed to ensure that officers being taken through misconduct proceedings are adequately informed of the case against them. Any belief that these provisions, or indeed their predecessors, imposed such a legal duty cannot have been a reasonable one. The claimant has failed to suggest an alternative basis for the Standards having legal effect, and cannot therefore show that he had a reasonable belief that this disclosure tended to show breach of any such obligations, as legal, as opposed to moral, obligations. PD1.1: 39. This disclosure would therefore, fail at the s.43B(1)(b) stage, were it to be based solely upon this legal obligation for the purposes of that limb of s.43B. It will be appreciated that this limb is also relied upon in respect of every other disclosure, so this finding will apply to each of the ensuing disclosures that the Tribunal will consider where this limb is relied upon for this reason. PD1.1: 40. The Tribunal has, however, found that the claimant could have a reasonable belief in the common law obligation cited by him , so the question then is whether he can show that he had a reasonable belief that his disclosure tended to show breach of this legal obligation. PD1.1: 41. The disclosure (read as the claimant asks, solely in respect of paras. (viii) and (ix) of PDR1) is that TD/Supt. Scally was promoted because of his friendship with ACC Sweeney, and also DCS Shenton and ACC Heywood. In fact , in the List of Issues, the claimant puts this as a disclosure that “ACC Sweeney promoted DCI Dominic Scally to the role”, whereas his PDR1 does not say that in terms. It may, however, be the implication. He says in this disclosure that TD/Supt Scally did not have major crime investigative experience, and that he had failed the first stage of the last two formal promotion processes. PD1.1: 42. From this, and the alleged closeness with ACC Sweeney, he submits that he reasonably believed that this disclosure tended to show that the respondent had failed (note the tense) to comply with its common law duties to protect the public and prevent crime. He bases this on the alleged lack of experience of TD/Supt Scally, but contends that there were other more suitable candidates who did not get the opportunity to apply for the role. He goes on to question why a fair, impartial and transparent process was not undertaken. PD1.1: 43. It will be appreciated that there is a considerable leap from asserting that there has not been a fair and impartial selection process , whereby other more suitable candidates have been excluded, to asserting that the improper appointment, of itself, breached the respondent’s common law duties to protect the public and prevent crime. That better candidates have been excluded does make the appointment, of itself, one which has breached the common duty relied upon. The claimant has also not used the terminology in s.43B(1) that a legal obligation was being, or was likely to be, not complied with, he has said that the disclosure tended to show that the non – compliance had occurred, i.e by the very fact of the appointment. PD1.1: 44. Allowing for a moment that the claimant actually believed , which the Tribunal can accept, given the claimant’s already poor opinion of TD/Supt Scally, in his lack of fitness for promotion, the Tribunal must question whether the claimant reasonably believed that this tended to show that the appointment , however allegedly corrupt or 105 of 367 cronyistic, had had the effect of putting the Chief Constable in breach of his common law legal obligations. The Tribunal cannot accept that the claimant could reasonably have believed that that was the case. He could have reasonably believed that such an appointment might have this effect, in due course, but a moment’s reflection would lead to the conclusion that this was only a possibility, the appointment, of itself, could not reasonably have been believed to have had (i.e in the tense of the disclosure) that effect. The claimant would therefore fail on this limb of s.43B(1)(b). PD1.1: 45. There is, however, a third limb relied upon, and that is that the claimant had a reasonable belief that his disclosure tended to show that the health and safety of any individuals, namely the general public, had been (again, the same tense is used) endangered. Again, the Tribunal will accept, for the previously stated reasons , that the claimant probably believed that this was the case, but again the Tribunal has to consider the reasonableness of this belief. Again, it cannot be the case that , on reflection, the claimant could reasonably have believed that this disclosure tended to show that the appointment, of itself, had endangered any members of the public. As with the previous limb, the claimant might reasonably have believed that it may in future do so, but not that it already had done. (The Tribunal disagrees with footnote 8 on page 19 of the claimant’s submissions – s.43B(1)(d) does not apply in the case where the claimant believes that the health and safety of individuals “is likely to have been put at risk”, he must reasonably believe that it has, is being or is likely to be in the future. That may be slightly nuanced, but that is the wording of the subsection.) The disclosure would therefore fail under s.43B(1)(d) as well. Did the claimant reasonably believe that it was in the public interest to make the disclosure , under s.43B(1)? PD1.1: 46. As will be discussed in relation to other disclosures below, and touched upon in the discussion above about that tests the Tribunal should apply. Amongst them is what we could call the Muchesa test , which is whether by his conduct in delaying making the disclosure , or by any other conduct, the claimant should be found to have acted incompatibly with holding the requisite beliefs that he must show for s.43B. Whilst this disclosure related to some quite historic matters, it was not of the much more serious and actual instances of actual harm, and even deaths, that are involved in other disclosures. We would not find, therefore that this disclosure fails on the Muchesa test. For completeness, the Tribunal has also gone on to consider whether the claimant has shown that he had a reasonable belief that it was in the public interest to make this disclosure. The respondent invites the Tribunal, in respect of this and all other disclosures, to find that he did not, but was really pursuing a private agenda, born out of his failure to gain promotion when others around him were succeeding. PD1.1: 47. The Tribunal does not accept that. As the caselaw cited above makes clear, a disclosure can be made, or reasonably believed to have been made, in the public interest even if it is partly, even largely , motivated by private concerns. Such a disclosure can now even be made in bad faith. Whilst we have no doubt that the claimant did have a highly personal interest in the matters about which he made his disclosures to the IPCC, he did nonetheless believe, and reasonably believe, that to make the disclosures to the IPCC (who, of course, could do nothing to rectify any previously unfair treatment of the claimant) when he did was in the public interest. This disclosure would not, therefore founder on this limb of s.43B. 106 of 367 PD1.1: 48. Again, this is an issue which will have to be considered in respect of each of the protected disclosures, as the claimant has to show this reasonable belief in respect of each one of them. This finding is likely to apply to some of them, but the Tribunal is conscious that it must consider each disclosure from this point of view, and there may be some where a different conclusion will be reached, given the nature or timing of the disclosure in question. PD1.1: 49. The Tribunal, although it need not do so, in the alternative turns now to s.43F, and the requirement that the claimant must show that he had reasonable belief in the substantial truth of any allegation contained in the disclosure. No issue of aggregation arises in relation to this disclosure, and the only line omitted from para. (viii) of the PDR1 document refers to the relationship between DCS Shenton, ACC Heywood and ACC Sweeney. PD1.1: 50. The claimant has firstly failed to show why his belief that ACC Sweeney (as opposed to anyone else) corruptly promoted TD/Supt Scally in 2011 was reasonable. The claimant’s only information was that ACC Sweeney would have been in the COG, but he would not necessarily have been the chair, and others would be on it. It therefore could not have been ACC Sweeney’s sole decision, and the claimant cannot have had a reasonable belief that ACC Sweeney “promoted” DCS Scally. Further, whilst the claimant may not have been aware of it, his belief that DCS Scally did not have major crime investigative experience was not a reasonable one either. He made no enquiries into his experience, but based his belief simply upon his subjective view that he was unaware of DCS Scally as having been involved in major criminal investigations, so therefore he did not have experience. This too was not a reasonable belief. The absence of a process of advertisement and selection was, at the time, the claimant accepted, the norm in GMP for Temporary Supt. posts , and the claimant himself later had gone through a similar process when he was made a temporary superintendent from October 2008 to April 2009. Thus whilst made to look questionable in the disclosure, that factor was, of itself, not unusual, or evidence of any corrupt practices at work. PD1.1: 51. The claimant rather undermines his own case by the last sentence of para.(ix) of PDR1, where he says “Questions have to be asked why a fair, impartial and transparent process was not undertaken.” Firstly, the claimant knew why, that was the process that GMP was using at the time. Secondly, if the claimant claims that he had a reasonable belief in the substantial truth of this allegation, what needed to be investigated? A claimant making tier three disclosures needs to have more than suspicion, even reasonable suspicion, he needs reasonable belief. If further investigation is needed, this further undermines the reasonableness of the claimant’s alleged belief. The culture of cronyism and corrupt promotions – the Sweeeney/Shenton/Scally clique. PD1.1: 52. Whilst the Tribunal considers that whilst this finding is sufficient to determine whether this disclosure was protected , it is opportune to examine at the same time the claimant’s belief that TD/Supt. Scally had been the beneficiary of cronyism , as a result 107 of 367 of his alleged connections with ACC Sweeney, and his alleged “gang” or clique, to which the claimant did not belong. This pervades virtually all of the claimant’s disclosures, and at one point it seemed that he may be putting his case on the basis that he only really made one disclosure to this effect, the other beneficiaries of cronyistic over -promotion being TD/Sup Snowball, and TD/Sup Worth, the latter being improperly favoured by ACC Sheard. PD1.1: 53. The claimant was questioned at some length about the basis for his belief in the existence of this clique, and effect upon promotion. In his (first) witness statement he said this: “64. It was in the years after Fahy took over that I became more aware of cliques or groups of associates within the senior ranks which heavily inﬂuenced attitudes towards promotions. There was a Cheshire clique which operated around the command team level and other cliques linked to ACC and Chief Supt level. I, as did many of my colleagues, perceived ofﬁcers who were friends of or closely associated to senior ofﬁcers were being advanced and promoted on the basis of their relationship to senior ofﬁcers rather than on their skills, ability and experience. This saw a culture develop where people tried to ingratiate themselves with senior ofﬁcers often trying to get themselves attached to 'projects' they were running. It was a culture that encouraged ofﬁcers not to challenge upwards for fear of creating ill feeling, despite the terms of the code of ethics encouraging officers to speak out. Ofﬁcers feared if they spoke out and challenged it would harm their career. At the time a popular phrase used by senior ofﬁcers was having a ‘can do' attitude. This was meant to enthuse ofﬁcers to perform and have a mindset they could get the job done but in reality, what developed was a ‘yes man/woman’ and “nodding dog' culture. It encouraged cronyism and sycophants. 65. l was seeing people being promoted who were at times ill-equipped to deal with the challenges of what their promoted role demanded. In short, I was concerned that this culture was seeing ofﬁcers being placed into what I considered to be critical decisionmaking roles, without the requisite experience, often at the expense of more suitably qualiﬁed colleagues. I am very forthright in saying that this was an era when the ‘cronies sycophants and ambitious incompetents ﬂourished’. 66. One such clique which I witnessed was the ACC Terry Sweeney and DCS Darren Shenton clique. It included people such as ACC Steve Heywood. Dominic Scally, Julian Snowball and John Lyons. Sweeney and Shenton had become very close colleagues over the years and were regularly referenced together as 'Sweeney and Shenton' in conversations, almost as though they were a pairing. It was well known in force that Shenton had in 2004. when a Detective inspector, been heavily criticised for the collapse of the high-proﬁle David Barnshaw murder trial by the judge (Judge Penry-Davey) who questioned his integrity and criticised his actions and poor evidence. [please see pgs. 6481-6483] Shenton was removed from the CID following this under what was believed to have been a disciplinary investigation and went to work in uniform with then Ch Supt Sweeney at Rochdale. Shenton subsequently rose to become GMP’s most senior detective as Head of the Serious Crime Division, as Sweeney progressed to become the ACC in charge of crime for the force. 108 of 367 67. As a member of MIT, I worked within both Force HQ and the SCD HQ at Nexus House. Working day in day out, attending various meetings, conferences, training days, seeing people interacting. using the canteens and having been in force since 1986 and knowing many people throughout the force. you see and get to know what’s happening. You see people interact, have conversations, you get to know who are close to each other and friends, who socialise, who are in cliques.” PD1.1: 54. When pressed for evidence of this alleged clique, and its membership the claimant said (pages 418 to 419 of the transcript) : Q….a close relationship between Mr Scally and Mr Sweeney, Mr Shenton and Mr Heywood. What was that based on?a. A. Again, sorry to sort of explain this. It’s difficult because it’s just your perception from being in work on a day-to-day basis. When I’ve tried to explain this before, when you’re in an organisation on a daily basis you come to know who are friendly with each other and who are not, and it’s difficult to put your fingers on it because it’s just from what you see and observe on a day-to-day basis. Q. Yes, it is your perception. Correct? A. Yeah. So how do you know anyone at work? When you work in a large organisation you see people and you know how they interact and you see it at conferences and canteens or whatever. You form views on whether people are friends or not. If I walked into a canteen Terry Sweeney would come over, shake my hand, ask me how I’m doing, etc., etc., but if Scally was there or the others, then you would see them chatting away and all the rest of it. So that’s how I form my views on people. It’s just living and working in an organisation over many years. PD1.1: 55. The claimant’s belief as to the reason for the promotion of officers whom he does not rate has shifted over time. He initially alleged that unsuitable officers were promoted because of sex discrimination (in favour of women). This was the basis of his very first Employment Tribunal claim in 2012, in which he complained of the discriminatory promotion of DCI Worth. This contention has not been maintained in this current claim following the withdrawal of his 2012 sex discrimination claim, and is not referred to in his witness statement. However, the belief has endured insofar as the claimant has maintained his belief that SWIP operated as ‘toxic’ force in GMP. PD1.1: 56. The claimant admits he has no first-hand knowledge of promotions which he has alleged to have been the result of cronyism/ corruption. His evidence in respect of cronyistic promotions ranges wider to include the promotions of Mr Rumney, Mr Adderley, Mr Wiggett, Mr Simpson, Ms Rawlinson, Ms Kennedy and Mr Hanson. He alleges that each of these officers were the beneficiaries of cronyism/ corruption notwithstanding his lack of knowledge of the circumstances in which they were promoted. PD1.1: 57. Serious allegations of cronyism/ corruption – including corruption by Sir Peter Fahy and the corrupt promotion of Ms Sutcliffe in 2010 (described by the claimant as a ‘really strong example’ of cronyism) are not relied on as disclosures. The allegation that 109 of 367 Sir Peter Fahy was guilty of cronyism/ corruption in relation to the appointment of officers from Cheshire was not put to him in cross - examination. His allegations as to the personnel who are behind the culture of cronyism have changed over time. PD1.1: 58. There was evidence from Mr Dolan that GMP introduced a policy known as ‘churn’ whereby officers would be moved across departments to increase the pool of officers with a range of skills. Mr Dolan considered that this was not welcomed by certain officers. Mr Dolan also gave evidence regarding the desire of SLT that those who were promoted would provide a ‘united leadership front.’ Mr Dolan said that he would at times challenge SLT and he considered that this may have resulted in his lack of support for promotion. Mr Dolan does not allege that this amounted to cronyism or corruption. That there were defects in the system, and the risk of favouritism was clearly present is apparent from the evidence form a number of sources, including Caroline Jones. Her evidence, however, did not support the claimant’s view that ACC Sweeney acted in the manner he alleges so as to promote certain officers. PD1.1: 59. For the claimant Mr O’Dempsey submits that the claimant can rely upon his experience and knowledge of the GMP, and in particular MIT and serious crime, and can be relied upon to recognise these corrupt practices. He also relies upon the views being expressed by colleagues that there was this culture of cronyism at work within GMP. Mr O'Dempsey referred in his Submissions to the claimant identifying cultures , including cronyism and a fear of speaking out, which were recognised by others, including the claimant’s witnesses. PD1.1: 60. The Tribunal has given this much consideration. It is hard not to be struck by the absence of any hard evidence from which the claimant makes these assertions. There is, the Tribunal considers, an element of circularity about them. Unsuitable and inexperienced officers are promoted into senior positions because of cronyism, which is itself evidence that this cronyism exists. In terms of actual observation and hard information upon which the claimant bases this belief , there is very little. PD1.1: 61. His evidence boils down to his observations of interactions in the canteen and other workplaces, and getting to know who got on with whom. He gives no evidence of these officers socialising together outside work, or in work – related contexts, such as sharing holidays or any other special occasions, or of any other relationships over and above being visible as friends in the workplace. Nor does he give any evidence of being excluded from this supposed clique, save that he was not promoted when others were. Outside those processes, however, other than the brief reference to Terry Sweeney cited above, there is nothing. PD1.1: 62. Whilst he majors on the Sweeney/Shenton relationship, and there is evidence that others believed that there was such a close friendship between these two officers, where his evidence is much weaker is in the alleged membership of this clique by DCI Scally, and, indeed, DCI Snowball. He has given no evidence of any socialising of Scally with either Sweeney or Shenton, or both of them. The other evidence cited (e.g that of DI Mortimer) was that Shenton was a close friend of Sweeney, and Sweeney was a close friend of Heywood. 110 of 367 PD1.1: 63. The claimant however, in cross – examination considerably expanded his thesis. He brought into it DCS Rumney, DCS Adderley, ACC Wiggett, Gary Simpson, Serena Kennedy, Ian Hanson, and Joanne Rawlinson, although he was unable to say who was involved in these “corrupt” promotions. PD1.1: 64. The Tribunal also notes how, in his grievance in June 2012, and his grievance appeal, he mentions DCS Shenton extensively, but makes no reference to ACC Sweeney, save in passing or in connection with DCI Worth. He does not in either of these documents allege that ACC Sweeney is part of a clique, or that he “promoted” TD/Supt. Scally. The focus is upon DCS Shenton only. ACC Heywood is only brought into this in the claimant’s email to ACC Copley of 2 July 2013 (pages 879 and 880 of the bundle) in which he inaccurately refers back to the content of his grievance of June PD1.1: 65. In his email exchanges with ACC Copley in October 2013, and the first mention of any clique is that DCS Shenton had such a clique. ACC Heywood is not mentioned as being in it. True it is that he does later mention “Heywood and Shenton’s clique”, but in his next email of 6 October 2013, when giving his reasons for not trusting ACC Heywood to support him in the future, he makes reference to the disclosures he had made about him, and makes no further mention of him having any clique. PD1.1: 66. The Tribunal’s conclusion from all the evidence is that all the claimant has established is a reasonable belief in the allegation that ACC Sweeney was a friend of ACC Shenton, and that TD/Supt. Scally was a friend of DCS Shenton. The evidence of DI Mortimer identified a connection between Shenton/Sweeney/Heywood, but was silent about TD/Supt. Scally being part of this set. All that is far from establishing any form of “clique”. A person can have two friends, and interact with each of then separately. The two friends may not be particularly friendly with each other, but share a friendship with their mutual friend. That is not a “clique”. A clique interacts in concert, as a unit. The claimant has given no evidence of TD/Supt. Scally being in the company of ACC Sweeney, and DCS Shenton, or indeed of any interactions between TD/Supt. Scally and ACC Sweeney from which he could reasonably deduce a friendship strong enough to influence improperly the latter’s role in promotions. PD1.1: 67. That senior colleagues within an organisation who have worked together for some time should become friends is not surprising, in fact it would be surprising if they did not. That is ,of course, of itself, not improper. The alleged (and for these purposes accepted) comment from Julian Snowball himself that he was in “Terry’s gang”, is not directly relevant to this disclosure, but is relevant evidence for an assessment of whether the claimant had a reasonable belief in the substantial truth of this allegation across the board. It is hardly a basis for such a belief. The claimant gives no context of this remark, and no other evidence , such as seeing Julian Snowball with ACC Sweeney, and/or DCS Shenton, or any other evidence from which his membership of this alleged clique could be discerned. PD1.1: 68. The existence of a clique at all, of course, even if established , only goes so far. It is, however, a quantum leap to go from establishing friendships or even cliques, to then assert that promotion decisions were made, corruptly, because of these cliques or friendships. The claimant has failed to explain why, if it was ACC Sweeney’s desire 111 of 367 to advantage TD/Supt. Scally, he did not do so when , in 2010, along with the claimant, he applied for promotion, a process in which ACC Sweeney would be involved, but he did not assist him to gain that position. PD1.1: 69. That there were , at the time we are concerned with, promotion processes which were not as rigorous and transparent as they might have been, giving rise to the risk that support from senior officers who were also personal friends may unduly advantage some candidates, does not mean that it did, merely that there was a risk that it might. Not for the only time, as will be seen, the claimant has gone further than to identify a risk of something wrong occurring , he has stated , as a fact, that it did. PD1.1: 70. The Tribunal’s understanding, and accepted by the claimant in cross examination, is that neither ACC Sweeney , nor any other ACC , alone could “promote” DCI Scally or any anyone else, to an acting Superintendent role. That would have to be a decision, if not of the Chief Constable, or the Chief Officers Group. As discussed above, the disclosure that ACC Sweeney promoted TD/Supt. Scally is inaccurate, as he could not have done. This is not, we consider, a matter that is immaterial, or does not detract from the “substantial truth” of this allegation. Implicit in this allegation, it seems to us, is not only that ACC Sweeney unduly influenced or supported TD/Supt. Scally for this promotion (terminology which would have been easier to justify) , but also that in promoting TD/Supt. Scally in this manner, ACC Sweeney went outside the due process for such promotions. That is an added implication, in which the claimant cannot have had a reasonable belief, and is a very material one. PD1.1: 71. Thus, if the claimant did have this perception, it did not amount to a belief which he could have held on a reasonable basis. It was simply part of his general thesis and view of the Force that this must have occurred, although he had no actual evidence for it. At most he had a suspicion that the promotion of TD/Supt. Scally was the result of cronyism, but that , we find, fell well short of a reasonable belief that it was. PD1.1: 72. That, however, is not the only information , or allegation, we consider in which the claimant has failed to show he had a reasonable belief. He also disclosed that TD/Supt. Scally lacked major crime investigative experience . He goes on to say that there were other more suitable candidates with relevant investigative backgrounds and experience who did not get the opportunity to apply for the role, in which he would doubtless include himself. He does not, however, confine himself to this comparative exercise, he makes the allegation that TD/Supt. Scally did not have major crime investigative experience. He bases that upon himself not being aware of any such experience, as he had not come across Mr Scally in his own career as a detective. Again, that may have been his perception, but the evidence shows that it was not a reasonable one. TD/Supt. Scally’s career history shows he did have some major crime investigative experience, having been, for example in the SOCG for three years. Whilst the Tribunal must focus upon what the claimant knew at the time , the fact that the IPCC investigation, which was fully sighted on TD/Supt. Scally’s career history, in a way that the claimant was not, concluded that he had the requisite experience to lead Operation Nixon. Whilst not quite precisely the same issue, nonetheless this is a good indication that , objectively, TD/Sup Scally had the requisite experience for the promotion to TD/Sup. Comparatively, of course, the claimant may well be right, and a disclosure that he had less experience than other potential candidates may well have been one that 112 of 367 could be reasonably have been believed. The claimant , however, did not limit himself to such a comparison, he stated that TD/Supt. Scally lacked major crime investigative experience, without any knowledge of his actual career history. PD1.1: 73. These two specific allegations made as part of this disclosure are that TD/Supt. Scally’s promotion was the result of cronyism, and that he lacked major crime investigative experience . They are serious, and the claimant’s lack of reasonable belief in them is fatal to them under s.43F(1)(b)(ii). Regardless of success on any s.43B issues, on this basis alone, this accordingly was not a protected disclosure. 2.Protected disclosure 1.11: corruption in promotion of Scally in 2013 to North- West Counter-Terrorist Unit Information disclosed: In January 2013 ACC Sweeney appointed TD/Supt Scally to the role of Detective Superintendent in the North West Counter-Terrorist Unit via a corrupt selection process which ACC Sweeney chaired, which resulted in Scally having responsibility for leading investigations to safeguard national security despite him having no major crime or counter-terrorism experience. [CGoC §69] PD 1.11 was set out in detail at §§ (lxxxiv) - (xciv) of PDR 1,under the heading “(I) Cronyism, corruption and the continuing risks – what next ?!!” which included the following information: (lxxxiv) In January 2013 ACC Terry Sweeney was the ACC with responsibility for the North West Counter Terrorist Unit. They had vacancies within the unit for a Detective Chief Superintendent, Detective Superintendent and Detective Chief Inspector. (lxxxv) In such a case one would expect the interview selection processes to be held in rank order, the most senior post being selected first allowing the new incumbent to take part in the interview process for the rank below and so forth. For example, the first interview panel would select a Chief Superintendent, the successful Chief Supt would sit on the interview panel for the Superintendent; the successful Superintendent would then sit on the interview panel for the DCI. (lxxxvi) However, in this case the first interviews that took place were for the Superintendent position, the second for the Chief Superintendent post and the third for the DCI post. (lxxxvii) TD/Supt Scally had applied for the substantive Detective Superintendent post. There were 7 candidates, including officers with Counter Terrorism experience. (lxxxvii) The interview selection panel was chaired by ACC Sweeney. The second panel member was Tony Mole. He was at that time acting in the Chief Superintendent role in the CTU. He had applied for the substantive role and was going to be interviewed the following week by ACC Sweeney, who would again be the panel chair. (lxxxix) Acting Ch Supt Mole had been tasked to find the third interview panel member who would be the ‘independent’ member. He made contact a few weeks before the 113 of 367 interviews with a number of senior officers to take on the third interviewing position. Identifying an interviewer and ‘back ups’ [sic]. (xc) Approximately a week or so before the interviews were to take place however Ch Supt John Rush, a close associate of ACC Sweeney, (and DCS Shenton and ACC Heywood – see final para in this section) was suddenly brought in as the third panel member and the other senior officers cancelled. Apparently the explanation provided by Tony Mole was that applicants had been asked if they knew any of the proposed interview panel and John Rush had been the only suitable candidate. (xci) Officer ‘L‘, an applicant for the DCI post, can provide evidence that this same question was not asked of the applicants for the DCI vacancy. (xcii) With Chief Supt Jon Rush in place, ACC Sweeney had the perfect interview panel to enable him to ensure selection of his favoured candidate. He was the Chair, his close associate the second panel member and the third was Tony Mole, who as Acting Ch Supt certainly wouldn’t want to do anything to upset ‘the apple cart’, particularly as it was his interview the following week. (xciii) However even that was not enough for ACC Sweeney, and just to ‘bib and brace’ it, he also coached TD/Supt Scally for the interview. Officer ‘R’ was working with TD/Supt Scally at the time and TD/Supt Scally told him he that was being coached for the interview by ACC Sweeney. This highlights how blatant the cronyism is within GMP. Senior Officers have this air of arrogance, believing they are all powerful and can do as they please. They forget they are public servants and publicly accountable for their actions. (xciv) The interview process was a sham. It was not fair and impartial. What chance did the other applicants stand? TD/Supt Scally was successful and now holds the substantive post of Detective Superintendent in the North West Counter Terrorism Unit. As the claimant has referred in para. (xc) to CS John Rush being a close associate of ACC Sweeney and DCS Shenton and ACC Heywood, and has referred to the “final paragraph” in this section, he must mean para. (xcvii) which reads as follows: (xcvii) The significance of Ch Supt John Rush as a close friend of ACC Sweeney, DCS Shenton and ACC Heywood needs to be briefly explained to understand the dynamics at work. In June 2012 I submitted a grievance against DCS Shenton for his failure to support me for promotion (and later also against ACC Heywood) having become disillusioned at seeing a culture of cronyism in the Force which was seeing less able and less experienced officers advanced into positions for which they were not equipped, as detailed throughout this report. I had initially approached ACC Heywood and had told him that I also had sensitive disclosures to make which supported my grievance and contentions of cronyism (TD/Supt Scally’s dealings on Op Nixon). ACC Heywood had nominated Ch Supt Rush, who he described as ‘independent’. Please see e-mail exchanges as at Appendix ‘J’ and Grievance report that, was dealt with by Ch Supt Rush which provides evidence of 114 of 367 Ch Supt Rush declaring himself to being a close friend outside of work with DCS Shenton. He therefore was clearly not ‘independent’. ACC Heywood had know this when he gave my grievance to him. Ch Supt Rush however, despite being a close friend of DCS Shenton not being ‘independent, still tried to resolve the matter as can be seen from the e-mails. In sum, he offered to mentor me in terms of improving 'my relationships with senior officers’ but although the grievance report contained the disclosures around Op Nixon and warnings that the public and officers would come to harm, he saw nothing in that to warrant any action and ignored the very serious issues I had raised. One has to question why? And was his eagerness to deal with the matter more fuelled by a desire to cover up the issues I was raising? The fact that Ch Supt Rush was also placed onto the interview panel and sent to deal with the misconduct of Snowball (see section ‘L’) by ACC Sweeney, highlights the links to ACC Sweeney, ACC Heywood and DCS Shenton. It is also of interest that in the wake of Cregan it is Ch Supt John Rush who been nominated to lead on Op Challenger, the investigation into alleged organised crime of the ‘G’ and North Manchester division.” The Tribunal, whilst the respondent has not included this in the red sections of his Yellow/Red Analysis document which seeks to match the totality of the content of the pleaded disclosures with the List of Issues where there are parts omitted, considers that these allegations too must form part of the information conveyed in this disclosure, and must be considered for the purposes of s.43B and s.43F. Para. 62 of the List of issues sets out the claimant’s case that this information tended to show

(a) that there had been a failure to comply with or one or more legal obligations, namely (i) the duty to protect the public and prevent crime; and/or (ii) the duty of a police integrity; duties and responsibilities and discreditable conduct; and/or

(b) that the health or safety of any individuals, namely the general public, had been endangered. PD1.11 1. The Northwest Counter Terrorist Unit (NWCTU) is a Unit which is not a Unit within the respondent’s Force but is a cross - Force Unit, drawn from all five Police Forces in the North West – Greater Manchester, Cheshire, Cumbria, Lancashire and Merseyside . GMP, however, was the lead force, and the employer. Its staffing was funded externally, by ACPO TAM, but all staff, accommodation, HR and other support functions were managed through GMP. PD1.11 2. In 2012, T/DCS Tony Mole who had been seconded for the previous two years to the Scottish Crime and Drug Enforcement Agency, was brought back to GMP to temporarily cover the role of Head of NWCTU during the Olympics as the current Head of unit was seconded to another role. In recognition of the complexities of the roles and the cost of training for NWCTU senior investigation officers, DCS Mole agreed with the Chief Constable of GMP that these posts would be substantive and carry a minimum tenure of three years to ensure a return on investment for the ACPO TAM funding. In late 2012 ACC Sweeney was the ACC in the respondent Force with responsibility for that Unit. Vacancies arose at that time for ranks of DCS, DS, an DCI. A statement was 115 of 367 issued (undated, at page 1807 of the bundle) about this process, and how it would be undertaken. DCS Mole as the Head of NWCTU oversaw this recruitment process. PD1.11 3. TD/Supt. Scally applied for the post of Detective Superintendent, a substantive post, whereas his post in the respondent Force was an acting one. His expression of interest is at pages 708 to 710 of the bundle. It is undated, but has been signed by DCS Shenton on 30 November 2012, and had to be submitted to Workforce Development by 2 December 2012. DCS Shenton supported the application by TD/Supt. Scally. PD1.11 4. There was no requirement or expectation that posts must be filled in rank order, and the interviews for the D/Supt posts were held on 7 December 2012, one week prior to the interviews for the DCS, Head of NWCTU to be held on 14 December 2012. PD1.11 5. In terms of the composition of the interview panel for the Superintendent roles, DCS Mole was of the view that as there was the prospect of promoting to a substantive Superintendent rank, a member of the Chief Officer Group, i.e an ACC, the Deputy Chief Constable, or the Chief Constable , should be on the panel. He discussed this with Sir Peter Fahy, who agreed, and, as ACC Sweeney was the Chief Officer in GMP responsible for NWCTU, he was the obvious choice. PD1.11 6. In relation to the post of Head of NWCTU, which DCS Mole had been carrying out as a temporary posting, but was seeking the substantive post in this exercise, there was no intention that ACC Sweeney would be on, still less chair, this panel. DCS Mole accordingly did not expect that ACC Sweeney would chair or be on his interview panel. PD1.11 7. DCS Shaun Donnellan told the claimant that he had been asked to be part of a three person panel for the interviews for the D/Supt posts. He also told him that he had then been withdrawn from that Panel a week before the interviews were scheduled , and replaced by C/Supt John Rush. Whilst the claimant asserts that DCS Donnellan also told him that the reason he had been given was that he had previous dealings with TD/Supt. Scally (and had failed him in an assessment) , this is not corroborated by DCS Donnellan, whose witness statement is wholly silent on this disclosure, and the involvement that he is alleged to have had in this process. PD1.11 8. The panel on 7 December 2012 when TD/Supt Scally was interviewed consisted of ACC Sweeney, T/DCS Mole and C/Supt John Rush. C/Supt. Rush had been asked by ACC Sweeney to sit on the panel. Notes of the interview were taken by each panel member, there were set questions, and a marking guide, and the scores for each question were recorded by each of the panel . TD/Supt. Scally was successful. Whilst this documentation has not be been made available to the Tribunal, it was reviewed by Ms Hill in her review (see below). The evidence of DCS Mole and DCS Rush is that the same process was followed in respect of each of the candidates for the Superintendent role. Their evidence is that in relation to TD/Supt Scally the panel each scored him roughly the same against the questions set in the interview , and that he was the highest scoring candidate. 116 of 367 PD1.11 9. On 14 December T/DCS Mole was interviewed for the DCS Head of NWCTU role by Sir Peter Fahy, Chief Constable of GMP and Stuart Osborne, ACPO TAM, ACC Sweeney was not on this interview panel. T/DCS Mole was successful. PD1.11 10. The officer ‘R’ referred to is DCI Graham Brock, who worked quite closely with TD/Supt. Scally at the time. DCI Brock had been told by TD/Supt. Scally that ACC Sweeney was helping him with an interview process. He was not aware of which process this was, and was not aware whether it was for the NWCTU post. He told the claimant that TD/Supt Scally had told him (Brock) that ACC Sweeney was helping him with an interview process. DCI Brock did not tell the claimant , because he did not know, that this process was that for the post in NWCTU. PD1.11 11.Denise Hill , then Head of Human Resources, conducted a review into the process at the request of Sir Peter Fahy in early 2014. She reviewed the file containing the documentation that the panel had created. She considered that the scoring was consistent with the answers provided by the interviewee. TD/Supt. Scally had scored the highest number of points in the interview. The documents she reviewed, however, have not been located, and are not in the bundle. PD1.11 12. Denise Hill produced an undated report which is at pages 1803 to 1807 of the bundle. In it, whilst she made recommendations for the future involvement of an external independent panel member for Det Supt. roles, as there had been for the DCS/Head of NWCTU role, she did not consider that there was any evidence that this had been a corrupt or sham process. She did not, however, investigate any of the matters that TD/Supt. Scally had put in his expression of interest form, in terms of whether they were accurate or a fair reflection of his experience and abilities. The information , the allegations contained in it , and what the claimant reasonably believed it tended to show. PD1.11 13. The Tribunal finds that the information conveyed by the claimant was as summarised in the List of Issues, plus the additional information identified by the Tribunal above. PD1.11 14. The claimant’s case on what he believed this information tended to show is set out above, by reference to para. 64 of the List of Issues. PD1.11 15. The Tribunal must first apply the tests under s.43B to this disclosure. The that this disclosure tended to show , under s.43B(1) that there had been a failure to comply with a legal obligation. PD1.11 16. The first of the legal obligations relied upon is the duty to protect the public and prevent crime. The Tribunal does not see how the claimant reasonably believed 117 of 367 that this disclosure tended to show that. It is appreciated that the claimant considered that TD/Supt Scally was not up to the job, and his appointment would lead to mistakes being made. This is a point that the claimant makes elsewhere. This particular disclosure does not. It refers to a corrupt process, but it does not say that the result of the allegedly corrupt promotion would be that the respondent was failing in his legal duty to protect the public and prevent crime. The Tribunal cannot therefore accept that the claimant reasonably believed that this disclosure tended to show that, because it plainly did not. PD1.11 17. The second legal obligation, of course, is the 2012 Police (Conduct) Regulations issues, which has previously been discussed, and discounted. PD1.11 18. The alternative limb of s.43B(1) relied upon is that the health and safety of any individuals, in this instance, the general public, had been (note the claimant does not rely upon the “is likely to be” limb) endangered. Rather as with the legal duty to protect the public and prevent crime limb, the Tribunal does not see how the claimant reasonably believed that this disclosure , of itself, in the terms in which it is couched, could tend to show any such thing. That the promotion was improper is one thing, but that it had endangered anyone, is another, and this disclosure cannot be read as even tending to show that. This disclosure accordingly fails the s.43B test. PD1.11 19. Finally, turning to the public interest, the Tribunal, for the same reasons as it did in relation to PD1.1 above, finds that the claimant did believe that it was in the public interest to make this disclosure, and that was a reasonable belief. That is notwithstanding that the claimant , being aware of such allegedly serious failings on the part of TD/Supt. Scally, and the allegation (made elsewhere) that he had committed the offence of misconduct in public office, did not take this to the PSB , or to the IPCC, when he was first aware of it, but instead utilised it in his grievance . This was a curious omission, and one that supports a suspicion that he was more keen to pursue his private interests than any true public interest. That, however, does not preclude a belief that to make such a disclosure cannot also be believed to be in the public interest, and the claimant does use terminology which does relate to the public interest. He satisfies the comparatively low public interest requirements of s.43B(1). PD1.11 20. If, however the Tribunal is wrong, and this disclosure satisfies the s.43B tests, and survives them, the Tribunal now turns to the next test, that under s.43F, which requires the claimant to have a reasonable belief in the substantial truth of the information and any allegations contained in the information disclosed. That , of course, includes the omitted sections of the paragraphs of PDR1. PD1.11 21. The information provided in this disclosure contains the following information and allegations: a) DCS Mole was going to be interviewed a week after he took part in the interview of TD/Supt. Scally by a panel chaired by ACC Sweeney, and would therefore be more unlikely to oppose ACC Sweeney’s choice of his preferred candidate TD/Supt. Scally; 118 of 367 b) DCS Donnellan had been removed from the panel to interview TD/Supt. Scally by ACC Sweeney to be replaced by DCS Rush, who was more amenable to ACC Sweeney’s views and unlikely to oppose ACC Sweeney’s preference; c) ACC Sweeney had coached TD/Supt. Scally for the interview for which he was going to chair the panel; d) The whole interview process was a sham, and was not fair or impartial. PD1.11 22. The Tribunal finds that the claimant has failed to satisfy it that he had a reasonable belief in the substantial truth of any of this information or the allegations contained in it. PD1.11 23. Firstly, DCS Mole was not going to be interviewed a week after he interviewed TD/Supt. Scally by a panel chaired by ACC Sweeney. That of course, is not fatal to this disclosure, as the claimant only has to have reasonably believed in the substantial truth of this information. He did not, he simply made an assumption. There was no evidential basis for it, he does not claim that anyone told him that , he simply jumped to that incorrect conclusion. He later accepted that the Chief Constable had put ACC Sweeney on the panel for the Superintendent post, and that he (Sweeney) had not been on the panel that interviewed DCS Mole. He suggested, however, that ACC Sweeney could still have wielded some influence over DCS Mole. That was not, the information that the claimant disclosed. The allegation that ACC Sweeney was going to chair the panel which was to interview DCS Mole is one in which the claimant did not have a reasonable belief. PD1.11 24. Turning to the next allegation, that DCS Donnellan had been removed from the panel to make way for CS Rush, the Tribunal is prepared to accept that the claimant had a reasonable belief that DCS Donnellan had been approached to be a panel member, and then was not required . The suggestion , or any belief on the part of the claimant , however, that a panel member for the Det. Supt. selection process, the then T/DCS Tony Mole, would have been influenced by the (supposed) chair of the panel, ACC Sweeney, as DCS Mole was to attend a forthcoming promotion board on the 14 December 2012, was not a reasonable one. PD1.11: 25. It is clear that the claimant is greatly exercised by the fact that TD/Supt Scally used in support of this application his leadership of Operation Nixon which the claimant regarded as a disgrace , for which he should have been prosecuted. At the time of his disclosure, of course, he did not know what was in TD/Supt. Scally’s application form, but whether he had included that Operation or not, the claimant’s view was that he was wholly unsuitable for promotion into the NWCTU role, and that ACC Sweeney, at least, knew that, but pressed on to get his friend appointed to this senior and important position. The claimant’s view, which he confirmed in cross examination , was that it was a corrupt process because it ended up with someone who had allowed a paedophile to take a child into a house being appointed to this very significant post. PD1.11: 26. That is an opinion, and it may be right, but in this disclosure the claimant has sought to allege that ACC Sweeney manipulated the process so as to “rig” the panel 119 of 367 to achieve his desired outcome, and coached TD/Supt. Scally to assist him get the post. The claimant went further, and stated that the interview process was sham, which was not fair or impartial. The claimant’s belief in each of those allegations was not reasonable, and is another example of his readiness to construct, or assume, a narrative which fits his pre-conceptions, and to make allegations in which, viewed objectively, he could not have had a reasonable belief. This disclosure accordingly fails on s.43F. Group 2: 3.Protected disclosure 1.2: decision by Scally not to intervene to protect child. with underlining) Information disclosed: In the course of an operation (Operation Nixon) in which a high profile violent paedophile was under surveillance TD/Supt Scally deliberately decided not to intervene and safeguard a 13 year old boy when the subject of the surveillance went into a house with the boy, drew the curtains, and remained in the house with the boy for 2 hours. TD/Supt Scally refused to allow any intervention in spite of protests from other officers. As a result of the failure to take any action against the paedophile who was under surveillance, the paedophile later went on to rape a 15 year old boy. 15. PD 1.2 was set out in detail at paragraphs (x) - (xxviii) and (xxxvii) - (xxxviii) of PDR 1. Those paragraphs were worded as follows: (These paragraphs are set out under the heading “(B) When ‘cronyism goes badly wrong! Operation Nixon”:) (x) TD/Supt Scally subsequently became the SIO for Operation Nixon, an investigation into a high profile violent GMP criminal who was a paedophile and high risk MAPPA 3 subject. I shall refer to him as ‘Nominal 1’. During the investigation he was the subject of covert surveillance. Staff raised concerns from the outset with the Management Team for Op Nixon (TD/Supt Scally, SIO, T/DCI Dave Warren, Deputy SIO and DI Chris Bridge) about the tactics being employed; believing the strategy of surveilling a paedophile was unduly problematic in that once he was seen to meet with a child it would necessitate intervention to safeguard the child. Officers ‘A’, ‘B’ and ‘C’ made these representations. (xi) Officer ‘C’ had initially been directed to provide advice to TD/Supt Scally and the Management Team on covert strategies. As they had decided that the surveillance tactic was to be pursued officer ‘C’ emphasised the need for written detailed intervention strategies, standard practice in such cases should a situation arise where the SIO is not contactable. T/DSupt Scally however told officer ‘C’, ‘What we can’t see, we don’t know’. Officer ‘C’ told him this was not acceptable. (xii) At a later date, whilst under surveillance ‘Nominal 1’ was seen to meet with a 13 year old boy and go into a house where the curtains were immediately drawn. Officers observing the address were reporting back what was happening via supervision. They believed that an intervention would take place. 120 of 367 (xiii) DI Bridge was in contact with the teams and telephoned TD/Supt Scally but got no reply. He then contacted officer ‘C’ who told him that an immediate intervention should take place. He provided details on how this could be achieved, advising that a call be made to the Force Duty Officer (FDO) to create an anonymous FWIN (incident log) reporting a child at risk at the address. The FDO could then ensure the prompt attendance of uniform officers to gain entry and safeguard the boy. This may have also provided evidential opportunities by enabling an interview of the boy, seizing of phones and other potential evidence as well as gaining an account from ‘Nominal 1’. (xiv) Officer ‘C’ assumed an intervention was to take place. After some time he spoke again with DI Bridge who informed him that he had now spoken with TD/Supt Scally and that TD/Supt Scally had disregarded the advice of officer ‘C’ and had refused to allow an intervention to safeguard the boy. He had made the decision to ‘do nothing’. DI Bridge reported this back to officer ‘C’, saying that TD/Supt Scally said ‘What we can’t see, we don’t know’, the view he had previously expressed to officer ‘C’ when being given guidance on covert strategies. It is understood that he was more concerned about compromising the investigation than safeguarding the child. (xv) This decision totally disregarded the rights guaranteed to the boy under Article 2 of the Human Rights Act. What outcry would there have been had this child been murdered when under the control of a violent paedophile; whilst the police looked on and did nothing? (xvi) Officers engaged on observations on the address became increasingly anxious and angry as they waited for an intervention that was never to come and they continued to helplessly watch as the boy remained in the address for approximately 2 hours. (xvii) As a result of TD/Supt Scally’s failure to act it is understood that the paedophile was allowed to sexually abuse the boy in the house. (xviii) Case law from 1979 (R v Lytham) established the tenet that the offence of Malfeasance, now ‘Misconduct in a public office’, included what Public Officials 'DIDN’T do as well as those that were ‘DONE’, i.e. it covered acts of OMISSION as well as COMMISSION. The defendant in that case, a police officer who stood by and failed to act whilst a bouncer fatally assaulted a man, was convicted of the offence which was upheld at the Appeal Court. (xix) TD/Supt Scally’s failure to act and safeguard the child is behaviour that similarly constitutes the offence of ‘Misconduct in a public office’. It is requested that the actions and decisions taken in Op Nixon by TD/Supt Scally and the Management Team should be the subject of an independent investigation and that in light of the potential criminality, that a file should be submitted for consideration by the Crown Prosecution Service. (xx) Officers ‘D’, ‘E’, ‘F’ and ‘G’ who were engaged on the operation were enraged and disgusted by TD/Supt Scally’s decision not to intervene and made their feelings clear when the surveillance was concluded, complaining to their supervisory officer, Officer ‘A’. 121 of 367 (xxi) Officer ‘H’ also worked on Op Nixon and was ‘livid’ at what had been allowed to take place. (xxii) Officer ‘A’ spent 8 hours on his day off writing a damning report about Op Nixon and what he and fellow officers perceived as the incompetence of the Management Team and flawed strategy of Op Nixon. He handed the report to DI Bridge. It is not known what happened to it. (xxiii) Officer ‘C’ who had provided advice to the Management Team and had strongly advised on an intervention when ‘Nominal 1’ was seen to enter the address, was also disgusted by TD/Supt Scally’s failure to intervene. He reported the matter to DCI Creely (now Temp Det Supt) who informed his line manager D/Supt Ian Dudderidge (now retired) who brought the matter to the attention of Detective Chief Superintendent Darren Shenton. (xxiv) DCS Shenton took no disciplinary or other action against TD/Supt Scally. (xxv) The day after officer ‘C’ had complained to his supervision, officer ‘J’, was summoned to a meeting with D/Supt Dudderidge and TD/Supt Scally. The officer, being junior in rank to TD/Supt Scally, was briefed in a somewhat embarrassing meeting in front of him as D/Supt Dudderidge painfully recounted the events of the previous day. He was informed about the incident that ‘should never have been allowed to happen’. A vain attempt was made to try to explain away the serious and criminal failings of TD/Supt Dominic Scally, by reference to him ‘not being of this world’, which meant that TD/Supt Scally was not an experienced detective, not accustomed to dealing with serious crime investigations and not familiar with the use of covert tactics. It clearly demonstrated that he was ‘completely out of his depth’. (xxvi) In reality no explanation could be given to explain, excuse or account for TD/Supt Scally’s failure to act and safeguard the boy. Even the most inexperienced of junior officers would have known what decision should have been made; there should have been an intervention, the boy should have been rescued from the situation. (xxvii) Officer ‘J’ was to meet with the Management Team of TD/Supt Scally, T/DCI Warren and DI Bridge and was tasked to work alongside them providing advice on ‘covert’ investigative tactics. It had been made clear to them all that they had to run any ‘scenarios’ past officer ‘J’. It was clear all the Management Team were inexperienced and did not really know what they were doing. Officer ‘A’s’ report had reflected this fact that. Officer ‘J’ subsequently had to instruct them on a number of occasions not to pursue a specific tactic or to make them put in place an intervention to safeguard children. (xxviii) TD/Supt Scally addressed the Op Nixon staff after ‘the incident’ at a meeting and told them that ACC Sweeney was Gold for the investigation and that he was fully aware of the investigation strategy and events; and the investigation and tactics were to continue. I feel it of paramount importance that ACC Sweeney be asked to confirm or deny this was his position and what facts were known to him when he gave this direction 122 of 367 (These paragraphs are set out under the heading “(C) Review of Op Nixon – A cover up!”:) (xxxvii) No action was taken against ‘Nominal 1’ as a result of Op Nixon and the investigation was subsequently closed. Alarmingly, a number of other potential victims were also identified during the investigation but no approach was made to them. (xxxviii) As a result of the failings of Op Nixon the paedophile was able to go on and rape a 15 year old boy at a later date, an offence for which he was arrested and charged. Attempts were eventually made to revisit potential victims identified during Op Nixon at this time but time and the opportunity had passed. The investigation was again poorly led, with further poor decision making on how the children should be approached. As a result they could not gain the co-operation of any witnesses. Officer ‘B’ is damning in his assessment of how the investigation was managed and feels that vulnerable children were badly let down by GMP. (See Appendix ‘B’ for copy of a report he has supplied on Op Nixon. See also Appendix ‘C for copy of an e-mail from Officer ‘C’, which is a brief overview of his involvement on Op Nixon and corroborates the information as detailed above). List of Issues - Para. 17: The claimant contends that he reasonably believed that the disclosure was made in the public interest , and tended to show (a) that a criminal offence, namely misconduct in public office, had been committed by TD/Supt Scally; and/or (b) that there had been a failure to comply with one or more legal obligations, duties under the Human Rights Act 1998 (HRA) and

Article 2 of the Convention

for the Protection of Human Rights and Fundamental Freedoms (ECHR) to safeguard the life of the 13 year old boy; and/or (iii) the duty of a police officer to comply with the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2012 and in particular the standards of honesty and integrity; duties and responsibilities and discreditable conduct; and/or

(c) that the health or safety of any individual, namely the 13 year old boy, had been endangered. PD1.2: 1. The Tribunal has been considerably hampered by the lack of the “key” documents that the claimant provided to the IPCC with his PDRs, in which the various persons whom he used in those documents by the use of initials were identified. He was unable during the hearing definitively to recall who was who, so identification by the Tribunal of these persons is somewhat tentative. In these paragraphs of PDR1 the Tribunal’s highly speculative view is that Officer ‘A’ is DS Hull, Officer ‘B’ is DS Woodhouse and Officer ‘C’ is DI Mortimer. . PD1.2: 2. Operation Nixon was an investigation into the activities of Dominic Noonan, a paedophile and MAPPA 3 offender , who was under surveillance in this operation. The Operation had commenced in early February 2011, following the collapse of a prosecution the previous year, and further intelligence being received in January 2011 that sexual offences were being committed by the offender, who was still at liberty. The 123 of 367 Operation was allocated to Syndicate 8 of the MIT . This was simply because it had the best capacity to take it . PD1.2: 3. The operation command structure was Gold, Silver and Bronze. ACC Sweeney was Gold commander. Initially, DCS Shenton was the Silver commander, although this may have formally been DCI Warren. TD/Supt. Scally , was not, at the time of the inception of Operation Nixon, in post. He had been promoted to that acting rank on or about 21 March 2011 , and then , the next day, was put in role , as OIOC, of this operation. DCI Warren remained the SIO. PD1.2: 4. The Operation involved the use of covert surveillance , i.e a proactive investigation, as well as a reactive investigation. Previous attempts to secure evidence against Dominic Noonan which could lead to a successful prosecution had not been successful, and the decision had been taken at a very senior level that covert surveillance tactics would be required. These tactics are very sensitive, and when used, their results , and information derived from them, are not often revealed even to other Police officers. They are also somewhat controversial, as they can involve situations where potential offenders are surveilled up to the point where they may be about to commit offences, which would provide good evidence to support a prosecution , but which thereby render potential victims vulnerable to harm if the offence is not stopped before it is committed. Intervention, in such a case, is therefore potentially required, but that runs the risk of revealing that the offender has been under surveillance. PD1.2: 5. The MIT Syndicate allocated to the operation was not experienced in covert operations of this nature. TD/Supt. Scally was the OIOC, and DCI Warren and DI Bridge were the next most senior officers. They too did not have much specialised covert operational experience. PD1.2: 6. The potential issues arising out of use of these covert tactics were recognised, and TD/Supt. Scally sent an email (pages 1841 and 1842 of the bundle) to DCS Shenton on 14 April 2011 setting out the potential risks of sexual offences being committed , and discussing the options that would have to be considered in the event that such activity occurred. PD1.2: 7. DI Rick Mortimer, who had a covert background, and considerable experience of this type of operation, did not have a formal role in the operation, but gave informal assistance. He had concerns at the deployment of an inexperienced MIT team to the operation, and raised them with DCI Creely , of the SOCG. The response was that the decision had been taken at a very high level and would not be changed. PD1.2: 8. On 17 April 2011, a Sunday, when it was not expected that there would be any relevant activity, and many officers were on a rest day, intelligence was received that the offender was meeting up with a young boy. This proved to be correct , and officers were called in to keep surveillance on a house or flat where the offender was seen to be in the company of two male persons, one a 13 year old boy, the other older, but still a youth, approach and enter the property. The curtains of the flat where the offender and the males were believed to be were then drawn. The amount of time that 124 of 367 the offender and the two males were in the house has been said to be as long as 2 hours. PD1.2: 9. Officers involved in the operation became concerned about the risk to the younger boy, and some believed that there should be some intervention to safeguard the boy from the risk of sexual assault. DI Bridge, in the absence of DCI Warren, telephoned DI Mortimer , and sought his advice . His view, which he expressed, was that there should be an intervention, and he made a suggestion as to how it may be effected. That advice was then given by phone by DI Bridge to TD/Supt. Scally, who was not on duty. DI Bridge advised that an intervention should take place, but TD/Supt. Scally declined to follow that advice, and decided not to intervene. The 13 year old in due course left the flat, and whether or not any sexual activity had taken place was not, at the time that the claimant made his disclosure, known by him. PD1.2: 10 . By the time of a meeting on 18 April 2011 TD/Supt. Scally had formally become the Silver commander, replacing DCS Shenton (see page 1846 of the bundle). PD1.2 11. The claimant had no first hand involvement in this operation. He first learned of it through conversations with DS Joe Hull, and DS John Woodhouse, who had both worked on it. These conversations were around May 2012, over a year after the event. DS Woodhouse told the claimant he had written a report about the handling of the incident, which he had provided to DI Bridge. It does not appear that this document was provided to the claimant at that time. It is dated 24 April 2011, and is at pages 6797 to 6805 of the bundle. Both officers told the claimant that they believed their concerns had been covered up and brushed under the carpet. PD1.2: 12. The claimant first mentioned this matter in his grievance of 25 June 2012. In his grievance document in Word format (pages 527 to 544 of the bundle) he says this: “T/D. Supt Scally subsequently became the SIO on Operation Nixon which was an investigation into Damian Noonan, who is a high profile criminal and paedophile. I have become aware that there may have been serious failings on Operation Nixon which saw a child put at risk of sexual assault by Noonan and that T/Det. Supt Scally failed to take action to intervene and safeguard the child. I am aware that officers engaged on the investigation were disgusted by the actions of the senior management team…. The claimant continued and provided much of the detail that subsequently was contend in his PDR1 document. In particular , he said this: “…… It appeared T/D. Supt Scally was more concerned about compromising the surveillance operation than the safety of the child. I believe that officers involved on the investigation were extremely upset by his decision to do nothing and could not believe the rationale being given, as surveillance was being carried out on the basis of Noonan being a paedophile and grooming young boys. The officers felt that T/D. Supt Scally allowed the child to be put at risk and I understand that the boy may have been sexually abused by Noonan. 125 of 367 I am aware that this issue was brought to the attention of D/Ch Supt Shenton. I am aware that some form of review has been conducted on Op Nixon. I do not know when this took place but I believe the issue of T.D/Supt Scally not taking action to prevent the boy coming to harm/being sexually abused has not been addressed..…….” And , later : I believe that the circumstances as related above appear to highlight a serious neglect of duty and I would have thought the investigation and the actions of the SIO and Management Team should have been the subject of independent review. I am concerned as to why no action appears to have been taken.” PD1.2: 13 The claimant continued to make reference to Operation Nixon during the grievance and appeal process. The claimant’s grievance was dealt with by T/ACC Wiggett, and they met on 8 August 2012 , of which there appears to be no documentary record in the bundle. The outcome was provided to the claimant by T/ACC Wiggett on 23 October 2012 (pages 651 to 664 of the bundle). He rejected the grievance, and declined to look any further into the claimant’s claims that there was a culture of cronyism, and advised the claimant of his right of appeal. PD1.2: 14 The claimant did appeal, and in his Stage 3 appeal form (there are two versions in the bundle, but they contain the same text) in the concluding box (page 687 of the bundle) the claimant says this: “ I reiterate that my grievance raises some serious issues for the Force over the management of these investigations and abilities of certain SIOs. I feel the following paragraph from my grievance is highly relevant in light of all of the above:- 'lt is my view, and a view shared by many, that favouritism and cronyism is widely practised within GMP and that it is often the case that the closeness of a person’s relationship with an influential senior officer is a more important factor in determining whether one gains promotion than your actual performance, experience, ability and skills. What I believe is of real concern is that the practice of favouritism and cronyism is seeing officers advanced into positions for which they do not have the requisite experience, skills and abilities and as a consequence I believe the Force and the public are being placed at risk. I do not make these comments lightly ' I have been highlighting serious issues about the above cases and certain SIOs since May 2012 when I started this grievance process. I feel the Force has ignored my warnings ands [sic] nothing has been done. I believe the above issues and investigations need to be addressed and that Op Nixon, Op Somerville, Op Mirato and Op Dakar should be subject of independent review.” PD1.2: 15. The claimant’s grievance appeal was heard by ACO Lynn Potts on 4 January 2013. The notes of that meeting are at pages 755 to 758 of the bundle. In the course of the meeting ACO Potts (at para. 7 of the notes) raised with the claimant a suggestion that had previously been made by T/ACC Wiggett that there were other routes that he 126 of 367 could take outside the grievance process to explore the issues that he was raising. The claimant said that he had discussed this issue with the Federation and sought legal advice in respect of this. The advice given was that he had already highlighted his concerns to the Force via this process and did not need to explore these other routes. ACO Potts said that if this was the case, then she needed confirmation from the claimant that he was agreeable to her passing his concerns on to the Professional Standards Branch for them to progress. He agreed with this course of action. PD1.2: 16. The PSB was then involved, and the claimant’s representative was informed of the steps that were being taken. On 15 February 2013 Lesley Kewin HR Delivery Manager sent an email to ACO Potts (page 770 of the bundle) in which she informed ACO Potts of a conversation she had had with the claimant’s Fed. Rep. Kieran Murray. Mention had been made of the claimant “getting giddy” in relation to any investigation being carried out by the PSB, and that he had mentioned contacting the IPCC. Kieran Murray had tried to influence him (“keeping him grounded” as it was put) against this. PD1.2: 17. By letter of 4 March 2013 ACO Potts provided the claimant with the outcome of his grievance appeal (pages 774 to 781 of the bundle). She recited much of what had been discussed in the meeting on 4 January 2013. She also informed the claimant that the matters he had raised had been referred to the PSB. At the end of his investigation, Superintendent Turner had concluded that he could not see any evidence, intelligence or information in the grievance documentation that he had submitted to justify a formal investigation into any officer named. She also told the claimant that if was forthcoming with any evidence to support allegations of wrong doing he would address the issues. PD1.2: 18. The claimant wrote to Kieran Murray after he had received the appeal outcome on 13 March 2013 (page 785 of the bundle). He described the outcome as a complete whitewash. He sought further advice as to what steps he should take. He said this: It’s staggering that they have tried to sweep the really serious issues under the carpet. PD1.2: 19. On 28 March 2013 the claimant , Kieran Murray and DCS Paul Rumney of the PSB met. The notes are at pages 786 to 787 of the bundle, with a typed up version at pages 787A to 787B. In that meeting the claimant’s view that the appeal was a whitewash was discussed. PD1.2: 20 The claimant’s Fed. reps. continued to have some dialogue with DCS Rumney , and on 18 April 2013 the claimant wrote to them saying : “Keiran/ Tom, can we look to escalate now and take it outside Force next week. They still haven't responded to my ET and reply was due other day and Paul Rumney has not responded, he had said mid April and in any event we know likely outcome. Happy to take advice on course of action but I thought PCC askin him to refer to IPCC and we also go to, Health n Safety, Coroner, Keith Vaz and Home Office. I think they've had long enough now and Ch Supt and ACC processes starting so think good time. Your thoughts?” 127 of 367 PD1.2: 21 In or around May 2013, as the claimant was preparing, with the assistance of his Fed. representative, his further grievance in relation to the lack of support from DCS Shenton for his promotion to TD/Supt., he and/or his Fed. rep. approached DS Hull and DI Mortimer about this incident in May 2013. On 27 May 2013 , (page 795 of the bundle) DI Mortimer sent the claimant an email in which he set out an account of the incident. On 28 May 2013 (pages 2025, and 2030 to of the bundle) DS Hull provided the claimant with his report document. The claimant , however, did not obtain a copy of DS Woodhouse’s report of 24 April 2011. PD1.2: 22. In his email DI Mortimer set out how he was contacted by DI Bridge on Sunday 17 April 2011 , and informed of the boy going into the flat. DI Bridge had been unable to contact TD/Supt. Scally , and asked DI Mortimer for advice. He said that there should be an intervention to remove the boy from the flat. He was later told by DI Bridge that when this advice had been given to TD/Supt. Scally he had not actioned it, saying “what we can’t see we don’t know about”. DI Mortimer does not state in this email that the boy was sexually abused, but does go on to recount how he later informed DCI Creely of his concerns, and then saw DS Dudderidge, whom he also informed of his concerns. DS Dudderidge told DI Mortimer that he had told DCS Shenton about the matter, who said he would look into it. DI Mortimer then heard nothing further about the matter. PD1.2: 23. Nothing in his account in his email contains any further details of the meeting that DI Mortimer had with DSupt. Dudderidge. DI Mortimer’s witness statement for these proceedings (his first one, pages 318 to 328 of the open witness statements bundle) makes no mention of TD/Supt. Scally being present when he saw D/Supt Dudderidge. PD1.2: 24. The Tribunal considers that , whilst it is not totally clear, the reference to any meeting with D/Supt. Dudderidge , at which TD/Supt. Scally may have been present, was with another officer, officer ‘J’, who is not DI Mortimer. Whilst the absence of the key provided to the IPCC by the claimant does not assist, it appears that this officer must have been one of the officers from the covert side of the operation (hence the reference in para.(xxvii) to him advising the other members of the team on such matters), either DCI Peach or D/Sgt Crook. From the IPCC witness statements that they both gave (pages 7272 to 7279 for the former, and 7182 to 7185 , of the bundle for the latter) the Tribunal’s view is that officer ‘J’ was D/Sgt Crook. In his account to the IPCC D/Sgt Crook, whilst referring to a meeting with D/Supt. Dudderidge, makes no mention of TD/Supt. Scally being present, nor of being embarrassed, nor of any comment being made to the effect that TD/Supt. Scally was ‘not of this world’. He was brought in after the event to provide covert advice and assistance. He was asked to “walk through” scenarios with TD/Supt. Scally , and formed the view that D/Supt. Dudderidge would have taken a different view about whether there should have been an intervention on 17 April 2011. The claimant has given no evidence of any communications with D/Sgt. Crook about Operation Nixon, and has not given him as one of his sources. PD1.2: 25. The claimant first reported this matter in his grievance report dated 25 June 2012 (pages 527 to 536 of the bundle). This 10 page document singles out DCS Shenton for criticism, and allegations of cronyism. 128 of 367 PD1.2: 26. The claimant’s allegations about Operation Nixon are at pages 529 to 530. He says that he had become aware that “there may have been serious failings on Operation Nixon which saw a child put at risk of sexual assault”. At page 530 of the bundle he said this: “The officers felt that T/D. Supt Scally allowed the child to be put at risk and I understand that the boy may have been sexually abused by Noonan.” PD1.2: 27. He goes on to say that he was aware the matter had been brought to the attention of DCS Shenton, and that some form of review was conducted. He was unaware of when this had taken place, he believed that the issue of TD/Supt. Scally not taking action had not been addressed. PD1.2: 28. That grievance was ultimately dealt with by T/ACC Wiggett on 23 October 2012 (pages 651 to 661 of the bundle). The grievance did not deal specifically with the claimant’s allegations about TD/Supt. Scally’s failings in Operation Nixon, and, in overall terms, rejected the claimant’s grievance. PD1.2: 29. The claimant appealed, and in his Appeal Form dated 8 November 2012 (pages 682 to 687 of the bundle) at page 686, he reported that as he went on leave on 26 October 2012, he became aware that the target of Operation Nixon had been arrested for the rape of a 15 year old boy. This is the source of his disclosure that the 15 year old boy had in fact been raped. Noonan was indeed arrested for such an offence on 23 October 2012 (see D/Supt. Savill’s severity assessment at page 2093 of the PD1.2: 30. On or about 11 June 2013 , and repeated in the later version of 20 June 2013 , the claimant in his disclosure document to the PCC (pages 814 to 834 of the bundle) the claimant stated at para. (xvii) that “it is understood that the paedophile was allowed to sexually abuse the boy in the house.” This remained the terminology used in the disclosure document “PDR1” later sent to the IPCC. PD1.2: 31. DS Hull made a written account of the incident, dated 28 May 2013, which is at pages 2025 to 2030 of the bundle. He sent a copy to the claimant by email on 28 May 2013. It is clear from his report that he and others in the team had misgivings about the whole approach that was being taken to apprehending and obtaining evidence against this offender, which involved , in the view of some of those involved, unacceptable risks to potential victims. The view had been taken, however, at senior command level that as other tactics to secure evidence and obtain a conviction had proved unsuccessful, these tactics, which involved surveillance in the hope of apprehending the offender in the preparatory acts to an offence, had been sanctioned. PD1.2: 32. His report details what he learned the following day (he was off duty on the day in question, and was telephoned by DI Bridge) which was that the boy had entered the premises, and had been there for 2 hours. Colleagues expressed concern that they had “potentially watched a serious sexual assault occur”. He does not state that the boy had been sexually assaulted. PD1.2: 33. There was disquiet about the incident, and continued dissatisfaction amongst officers about the whole concept of the use of such covert tactics where there was , 129 of 367 some perceived, an unacceptable level of risk to vulnerable victims. TD/Supt. Scally , however, whilst noting these concerns, and taking responsibility for the decisions made, informed the team that the operation would proceed in this way, with the endorsement of senior leadership. He goes on to detail the further conduct of the operation, and its ultimate scaling down. He makes no mention of any subsequent rape by the offender of a 15 year old boy. PD1.2: 34. DI Mortimer, DS Hull, and DS Woodhouse all made statements to the IPCC about the incident. DS Hull’s was made on 30 June 2014 (pages 7186 of the bundle), DS Woodhouse made his on 25 June 2014 (pages 7197 to 7212 , with a further statement on page 7213 of the bundle), and DI Mortimer on 11 July 2014 (pages 7240 to 7247 of the bundle). PD1.2: 35. DS Hull’s statement confirms how there was concern on the part of several officers in the team at the use of the covert tactics, and that this MIT Syndicate was being deployed, which had extensive reactive experience, but little or no covert experience. He details how these concerns were raised by him to DI Bridge, and how he was told that these decisions had been taken by ACC Sweeney as Gold commander and TD/Supt. Scally. He was told, but not directly by ACC Sweeney, that this decision had been ratified by ACC Sweeney. He details the events of 17 April 2011, and its aftermath. PD1.2: 36. DS Hull also states (page 7196 of the bundle) how he wrote his report of May 2013 after an approach from the claimant (whom he does not identify, but he must be the DCI who was “writing a report on officers being inappropriately promoted putting the public at risk”), and provided his report to the claimant . PD1.2: 37. DS Woodhouse’s statement echoes the concerns felt about the use of covert tactics, and the lack of experience of the MIT Syndicate in covert work. He was tasked with looking at potential recall of the offender, who was on licence following his last release from prison. He considered this to be a potentially good way to remove the offender from the streets, and prevent further offending, but this was not pursued by the management of the operation. He had grave misgivings about the whole operation, and the way in which covert tactics and reactive tactics were being deployed by the same team. He refers to TD/Supt. Scally coming into the team, and making the decision, which he agreed with, to split the reactive and covert sides of the team. He was not on duty on 17 April 2011. He wrote a report at the time, intending to send it to ACC Sweeney, which is likely to be that at pages 6797 to 6805 of the bundle, but in the end it may never actually have reached him. There is no suggestion that he provided this report to the claimant. PD1.2: 38. In his IPCC witness statement , made on 11 July 2014 (pages 7240 to 7249 of the bundle ), DI Mortimer explains how he did not have a formal role in Operation Nixon, but advised the management team on covert tactics. He expresses his concern at the fact that this operation was given to an MIT team without covert experience, and how when he voiced these he was told that this had been decision that was already made. He says he raised his concerns with TD/Supt. Scally as to what safeguarding would need to be in place to prevent the risk of harm to any vulnerable potential victims, 130 of 367 and say that TD/Supt. Scally told him “what we can’t see, we don’t know”. He recounts how he became aware of the events of 17 April 2011 from his wife, another serving Police officer , who was working on Operation Nixon. He was then called by DI Bridge , who had been trying to contact TD/Supt. Scally , because a young boy and another adult male had been seen to enter the premises where Noonan was, and then the curtains in the room where they were believed to be were drawn. DI Bridge said he did not know what to do, and DI Mortimer advised him that an intervention was required to extract the vulnerable potential victim from the house. He advised of a method of doing this, regardless of whether a strike team had been deployed. PD1.2: 39. DI Mortimer went on to recount how, on checking later that day with DI Bridge what had happened, he learned that no intervention had taken place, and that TD/Supt. Scally had spoken to DI Bridge, repeating what he had previously said about what they could not see they did not know. PD1.2: 40. DI Mortimer’s account then details what occurred the following day, and how he saw DCI Creely. PD1.2: 41. DI Mortimer exhibited to this statement three documents – a “timeline”, a signed witness statement, and an email to the claimant, presumed to be that of 27 May 2013 (page 795 of the bundle). The other two of these documents are not before the Tribunal. PD1.2: 42. DI Mortimer’s witness statement to the Tribunal in these proceedings makes no mention of TD/Supt. Scally being present when he was giving an account of the events of 17 April 2011 to D/Supt Dudderidge, and it seems more likely that this was D/Sgt Crook, whom the Tribunal believes is probably the Officer ‘J’ referred to. PD1.2: 43. The report of Officer ‘A’ referred to is that of DS Woodhouse, and is at pages 6797 to 6805 of the bundle, dated 24 April 2011. The claimant describes this as “damning” and refers to what “he and fellow officers perceived as the incompetence of the Management Team and flawed strategy of Op Nixon” . Reading that report, however, reveals that DS Woodhouse does not anywhere in this report suggest that TD/Supt. Scally , or indeed any other member of the management team was incompetent. He, and others , whose views he represented in this report, disagreed with the tactics and strategy of the operation, but he does not suggest that there was incompetence. PD1.2: 44. DCS Rumney subsequently conducted an investigation, and delegated completion of a severity assessment to D/Supt. Savill. He completed a draft in early November 2013, but this is not before the Tribunal. By email of 5 November 2013 ACC Copley informed the claimant of the progress of the investigation, and that she had received a draft severity assessment from D/Supt. Savill. She informed him that it was considered that the CPS should be consulted , and she sought the claimant’s consent to share his disclosures with the CPS , to which he agreed by return email the same day (page 2063 of the bundle). This duly occurred. Ms Potter with supplied with the report and the statements from DI Mortimer and DS Hull that had been provided to the claimant , and D/Supt. Savill then met with Ms Potter. 131 of 367 PD1.2: 45. From the witness statement provided to the IPCC by Janet Potter of the CPS (pages 7257 to 7259 of the bundle) there was a meeting between Ms Potter and D/Supt. Savill on 12 December 2013 to discuss a potential charge of misconduct in public office against TD/Supt. Scally. Her conclusion was that the high threshold for a charge of misconduct in public office was not met. She considered that at worst TD/Supt. Scally’s decision on 17 April 2011 was an error of judgment, where the protection of the public had to be weighed against the chances of conviction of an offender. She recognised that there may be differing opinions on this , but the threshold for a prosecution was not met. She informed D/Supt. Savill of her conclusion by email of 20 December 2013 (page 2065 of the bundle). Her actual advice, however, was contained in a separate document, an “MG3”, which has not been included in the bundle. The Tribunal considers, however, that its contents are likely to be the same as the evidence she gives in her IPCC witness statement, as to the reasons why she did not consider that the conduct of TD/Supt. Scally would meet the threshold for a charge of misconduct in public office. PD1.2 46. On the morning of 30 January 2014 the claimant with his Fed. rep. Tom Elliott met with DCS Rumney. He informed them of the CPS advice that had been received that the circumstances fell well short of misconduct in public office on the part of TD/Supt. Scally. He also told them that he was going to serve notices on TD/Supt. Scally in relation to his conduct. In this meeting, Tom Elliott commented that consideration should be given to action for unsatisfactory performance , as TD/Supt. Scally’s actions may well have been a poor decision made in a complex environment. Notices could be served upon TD/Supt. Scally if his account was required. This account of the meeting was confirmed in an email of that date (page 2072 of the bundle) from DCS Rumney to ACC Copley. PD1.2 47. The claimant , soon after this meeting, at 12.53, sent an email to ACC Copley, in which he set out an account of the meeting. He referred to being told the view of the CPS that there was no basis for a prosecution of TD/Supt. Scally . He said this: “I expressed concerns as follows;. 1. I don't think GMP should have investigated themselves on this matter (given the serious nature of the allegations, involvement of senior officers up to Chief Officer level and allegations of a 'cover up' by senior officers). 2. 1 don't know how CPS could form an opinion about the conduct of D/Supt Scally in Op Nixon as none of the witnesses who have evidence to provide, as I have referenced in my 'Whistleblowing report', have been spoken to and statements have not been taken. In all my service within GMP and extensive experience as an SIO I have never known CPS give formal advice without receiving a full file. How can they form a view without assessing all the evidence? 3. I have said that I believe if GMP continues with its intended course of action that they will be frustrating the course of justice. (In fact I believe that the Force may already have done this by their actions and inaction to date.) 132 of 367 4.I believe the Force has sought, and continues to seek, to cover up the failings in Op In my experience allegations involving criminal conduct always proceed as follows - secure available evidence, interview witnesses, obtain statements, interview the persons believed responsible, submit full file to CPS for a decision. This has not happened - why? Why has there been a real reluctance and resistance by GMP to speak with the witnesses? Police Officers who were there, involved, had conversations with D/Supt Scally, expressed concerns, know what went on? How can this not be regarded as relevant? How can CPS form a view when they only have D/Supt Scally's version of events. I have alleged a ‘cover up' of the actions and failings in Op Nixon by senior officers, officers who had oversight of Op Nixon including a Chief Officer who was Gold for the operation. There is no explanation for the manner in which GMP have handled this. I can only form the view that the Force doesn’t want to investigate the matter thoroughly and secure all the evidence because they know it will support the allegations contained within my 'Whistle-blowing' report.” PD1.2 48. The claimant made his disclosures to the IPCC the following day , 31 January 2014, at 9.00 a.m. when he handed his three PDR documents to the IPCC investigators DSI Linton and Investigator Doodson at the Police Federation office at Progress House, Reddish (see pages 1088 and 1088A of the bundle). PD1.2 49. The Tribunal finds that the information conveyed by the claimant was as summarised in the List of Issues. As , however, the information appears under the heading “(B) When cronyism’ goes badly wrong! Operation Nixon” , this also repeats the information and allegation contained in PD1.1 that TD/Supt. Scally had been promoted as a result of cronyism. It also includes: Information that TD/Supt. Scally had been a part of the Management Team from the outset of Operation Nixon, and other officers had raised their concerns about the operation to him; An allegation that the 13 year old boy in the house had been sexually abused; An allegation that TD/Supt. Scally had refused to allow an intervention; 133 of 367 An allegation that Officer ‘J’ had been ‘summoned’ to a meeting with DCS Dudderidge at which TD/Supt. Scally was also present, and required to repeat his account of the incident in front of TD/Supt. Scally , to his embarrassment ; An allegation that TD/Supt. Scally had been guilty of criminal failings; An allegation that TD/Supt. Scally not an experienced detective, not accustomed to dealing with serious crime investigations , and was completely out of his depth; Information that DS Woodhouse’s report stated that he and fellow officers perceived that the management team were incompetent. i)s.43B(1)(a) : a criminal offence had been committed; PD1.2 50. The Tribunal must first apply the tests under s.43B to this disclosure. The misconduct in public office, had been committed. This part of the claimant’s PDR1 document, which is at paras. (xvii) to (xix) of the document, has not been recited in the List of Issues, but it contains this information. The claimant clearly makes disclosures that state that TD/Supt Scally was guilty of the offence of misconduct in public office. Whilst he requests an investigation, and reference to the CPS, he precedes that with a clear statement that TD/Supt Scally’s conduct constituted that offence. The identification of what the claimant believed this disclosure tended to show confirms that this is one of the limbs of s.43B(1) upon which the claimant is relying. PD1.2 51. Whilst subsequently CS Savill of PSB, and Tom Elliott , the claimant’s Federation representative , in evidence, both agreed that TD/Supt. Scally’s actions , or lack of them, were, or could be, a judgment call, and an error of judgment, that would not preclude the claimant from believing that his disclosure tended to show that his conduct amounted to a criminal offence, even if , ultimately it was not considered to be. The test approved in Babula v Waltham Forest College