Clark v The Chief Constable of Essex Police [2006] EWHC 2290 (QB)

Case No TLQ/06/0622

[2006] EWHC 2290 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18 th September 2006

Before

MR JUSTICE TUGENDHAT

Between

ClarkClaimant

The Chief Constable of Essex PoliceDefendant

Mr Julian Waters (instructed by Jeffries) for Claimant

Mr John Norman (instructed by Barlow, Lyde & Gilbert) for the

Hearing Hearing dates: 5 th to 11 th July 2006

Judgment

[1]Between 1976 and 13th October 1999 the claimant worked as a constable in the Essex Police Force. On 13th October 1999 he stopped work, suffering from shingles and depression. On 7th December 2001 a Certificate of Permanent Disablement was issued. It stated that the Claimant was suffering from depression. The Claimant retired from active duty on medical grounds on 27th January 2002. On 11th October 2002 he issued the Claim Form in this action naming the Chief Constable of Essex Police as defendant. It is alleged that the Claimant was suffering from personal injury caused by the negligence of the Defendant or by harassment, bullying and victimisation of the Claimant by his immediately senior officers, for which the Defendant is said to be vicariously liable.

[2]The main events out of which this claim arises took place in a period of about two years between November 1997 and October 1999. In November 1996 the Claimant had joined a unit known as the Divisional Support Team (DST) in which he acted as Detective Constable. In July 1997 the Claimant was involved in a substantial investigation into theft and the handling of stolen goods. The operation was known as Orchid and the Claimant was appointed Officer in Charge. In due course the Claimant was appointed Disclosure Officer for the ensuing prosecutions.

DISCLOSURE AND OTHER DUTIES IN 1998-1999

[3]In order to understand the context in which these events occurred, and the roles of the individuals concerned, it is necessary briefly to refer to the duties of the Prosecution relating to the presentation of evidence in criminal proceedings as the law stood in 1998 and 1999. In Archbold 1999, para 4-273 it is stated:

“One of the most important of the duties of the prosecution relates to the disclosure of matters in their possession to the defence. This is an area of law which has developed rapidly in recent years. It is also notoriously difficult. …”

[4]The Criminal Procedure and Investigations Act 1996 provided a new scheme.

(a) …”

[5]There then follow provisions for compulsory disclosure by the accused and secondary disclosure by the prosecutor. Section 8 provides for an application by an accused for disclosure and Section 9 provides a continuing duty of a prosecutor to disclose. Section 23 of the Act imposes an obligation on the Secretary of State to prepare a code of practice. He did so and it came into force on 1st April 1997 (SI 1997 No. 1033). It applies in respect of criminal investigations conducted by police officers which began on or after the day on which the code came into effect. At the dates with which this case is concerned, all this was therefore relatively recent. For investigations begun before 1st April 1997 the common law applied. The duty of disclosure at common law flowed from the general responsibility of prosecuting solicitors or counsel to act fairly. It arose at the institution of proceedings and was a continuing duty which lasted until the conclusion of the proceedings. The common law had itself developed only a few years before: see R v Ward, 96 Cr.App R 1 CA;

[1993] 1 WLR 619

[6]The investigation (which came to be referred to as the case of R v Read and others) did not commence before 1st April 1997: see the Disclosure Officer’s Report dated 28th April 1997. Accordingly this must have been amongst the earlier investigations to which the new law applied. The Claimant was not only the Disclosure Officer, he was also the Officer in Charge of the investigation.

[7]These expressions and other relevant matters are to be found in the Code of Practice (SI 1997 No. 1033). Para 2.1 of the Code includes the following:

“An investigator is any police officer involved in the conduct of a criminal investigation. All investigators have a responsibility for carrying out the duties imposed on them under this code, including in particular recording information, and retaining records of information and other material; The officer in charge of an investigation is the police officer responsible for directing a criminal investigation. He is also responsible for ensuring proper procedures are in place for recording information, and retaining records of information and other material in the investigation; The disclosure officer is the person responsible for examining material obtained by the police during the investigation, revealing material to the prosecutor during the investigation and any criminal proceedings resulting from it and certifying he has done this; and disclosing material to the accused at the request of the prosecutor;”

[8]Para 3.1 of the Code is headed “General Responsibilities”. It includes the following:

“3.1 The functions of the investigator, the officer in charge of an investigation and the disclosure officer are separate. Whether they are undertaken by one, two or more persons will depend on the complexity of the case and the administrative arrangements within each police force. Where they are undertaken by more than one person, close consultation between them is essential to the effective performance to the duties imposed by this code.”

[9]Para 9.1 of the code requires the disclosure officer to certify to the prosecutor that to the best of his knowledge and belief all material which has been retained and made available to him has been revealed to the prosecutor in accordance with the code.

THE LEGAL BASIS OF THE CLAIM

[10]Although the decision in Waters v. Commissioner of Police for the Metropolis

[2000] 1 WLR 1607

is a decision on an application to strike out the proceedings, it is authority for certain propositions for which the Claimant relies in this case. These include the following passages from the speech of Lord Slynn of Hadley, with whom the majority of their Lordships agreed: “The principle claim raised in the action is one of negligence-the "employer" failed to exercise due care to look after his "employee." Generically many of the acts alleged can be seen as a form of bullying-the "employer" or those to whom he delegated the responsibilities for running his organisation should have taken steps to stop it, to protect the "employee" from it. They failed to do so. They made unfair reports and they tried to force her to leave the police. Of course, the police constable does not have an ordinary contract of employment with the commissioner or with anyone else: he maintains his traditional status as a constable. Yet it is clear, or at the least arguable, that duties analogous to those owed to an employee are owed to officers in the police service: see Frost v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455; Knightley v. Johns [1982] 1 W.L.R. 349 and Costello v. Chief Constable of Northumbria [1999] I.C.R. 752. Moreover it is also to be borne in mind that by section 88(1) of the Police Act 1996: "The chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."… (p1610C-F) If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and, if they do, that physical or mental harm may be caused to an individual. I would accept (Evans L.J. was prepared to assume without deciding) that, if this sort of sexual assault is alleged (whether it happened or not) and the officer persists in making complaints about it, it is arguable that it can be foreseen that some retaliatory steps may be taken against the woman and that she may suffer harm as a result. Even if this is not necessarily foreseeable at the beginning it may become foreseeable or indeed obvious to those in charge at various levels who are carrying out the commissioner's responsibilities that there is a risk of harm and that some protective steps should be taken…. The courts have recognised the need for an employer to take care of his employees quite apart from statutory requirements: Spring v. Guardian Assurance Plc. [1995] 2 A.C. 296, 335A-B. As to ill-treatment or bullying see Wigan Borough Council v. Davies [1979] I.C.R. 411, 419 (a claim in contract); Wetherall (Bond St. W1) Ltd. v. Lynn [1978] 1 W.L.R. 200 (a constructive dismissal case); Veness v. Dyson, Bell & Co., The Times, 25 May 1965 where Widgery J. refused to strike out a claim that "[the plaintiff] was so bullied and belittled by her colleagues that she came to the verge of a nervous breakdown and had to resign" and Petch v. Customs and Excise Commissioners [1993] I.C.R. 789, 795. This can be the position whether the foreseeable harm is caused to the mind or to the body of the employee: Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, 404 (Windeyer J.). On the basis of these cases, subject to consideration of one overriding point, I do not find it possible to say (any more than Evans L.J. was prepared to say) that this is a plain and obvious case that(a) no duty analogous to an employer's duty can exist;

(b) that the injury to the plaintiff was not foreseeable in the circumstances alleged and

(c) that the acts alleged could not be the cause of the damage. As to the last of these, whilst I accept that many of the individual items taken in isolation are at the least very unlikely to have caused the illness alleged, the plaintiff's case puts much emphasis on the cumulative effect of what happened under the system as it existed….(p1611A-G) "The chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."… (p1610C-F)

[11]Mr Waters also refers to passages in the speech of Lord Hutton as follows:

“An important part of the plaintiff’s claim for negligence is that she was subjected to protracted harassment and victimisation by other officers because she had broken a workplace taboo in making a complaint against a male colleague, and that the defendant was in breach of his duty because he failed to protect her against such treatment…(p1615D) I consider that a person employed under an ordinary contract of employment can have a valid cause of action in negligence against her employer if the employer fails to protect her against victimisation and harassment which causes physical or psychiatric injury. This duty arises both under the contract of employment and under the common law principles of negligence. (p1615G It is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it. (p161E-F)”

[12]The cause of action against the Defendant is based on upon the principle of vicarious liability for the acts and omissions of all other officers in the Essex Police Force and upon alleged breaches of duties of care, and other duties, owed by the Defendant to the Claimant

[13]The Claimant pleads that the duties owed to him by the Defendant include those commonly relied upon by employees against employers, namely to provide a safe place of work, and to protect the Claimant from bullying, victimisation and intimidation at work including by work colleagues. The Claimant also relies on the more recently recognised obligation of an employer not to conduct himself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the Claimant and Essex Police and not to breach that relationship.

[14]The central allegation is one of bullying, but it is not alleged that those for whom the Defendant is vicariously liable were deliberately or intentionally inflicting injury upon the Claimant. The case against them is also one of negligence. In substance the case is that the alleged bullies knew or ought to have known that the Claimant was vulnerable to stress caused by pressure at work, and that they ought to have foreseen that their conduct would cause injury to the Claimant.

[15]The substance of the pleaded complaint of bullying by senior officers is set out as follows in the Amended Particulars of Claim, para 6:

“As a consequence of the displeasure various officers, namely DS Kreyling, CI King and DCI Bird, subjected the Claimant to bullying, harassment, humiliation, intimidation, oppression and victimisation at work. It is the Claimant’s case that they deliberately acted in the course of their employment so as to punish/take revenge on the Claimant for his role in the investigation and complaints and to deter and/or discourage and/or pressurise him from taking further steps in the complaints and from pursuing what the Claimant perceived to be the appropriate course in the steps in the investigation. The officers treated the Claimant in a way, which they would not have done had the Claimant not inadvertently incited their displeasure. The Claimant will ask the court to construe the facts and matters set out below as part of a course or courses of conduct towards him, as well as individually.”

[16]The particulars of bullying can be gathered under three separate headings. i) The first head, which starts in early 1999, consists of occasions which are said to be too numerous to particularise in which Mr Kreyling oppressed, humiliated and harassed the Claimant by shouting at him demanding unnecessary reports, refusing bona fide subsistence claims and questioning the Claimants conduct unreasonably. Some examples of this are recorded in the Claimants notebook and other contemporaneous documents. ii) The second head relates to events between about 5th May 1999 and 11th May 1999. It was at this time that the Claimant was transferred from his position at Rayleigh to a uniformed position at Hadleigh in circumstances where the Claimant was made to understand that he was being punished on the basis of what he says is a false report by Mr Kreyling relating to his, the Claimant’s, claims for certain expenses. Closely related to this is a report written by the Claimant, dated 5th May, addressed to CI Bottrill, (he is now Superintendent) and prepared at the request of the Crown Prosecution Service (“CPS”), and in particular Mr MacInnes. iii) The third heading relates to events in early October 1999 at the start of the trial of a number of defendants at Basildon Crown Court, when he was dismissed as Officer in Charge and Disclosure Officer in the case and threatened with defamation proceedings by another officer.

[17]Particulars of negligence include causing, allowing or permitting the bullying, failing to take steps to bring it to an end, failing to respond to the Claimant’s complaints and breaching the relationship of trust and confidence between the Claimant and the Essex Police. It is alleged that the Defendant knew or ought to have known about the bullying pleaded in para 6, or ought to have foreseen that these acts might occur, by reason of the Claimant acting as he did in raising concerns about the conduct of Mr Kreyling on 20th November 1997.

[18]The Claimant alleges that the damage he has suffered as a result of the alleged negligence of the Defendant, his servants or agents includes Secondary Affective Disorder of Depressive Type, Post Traumatic Stress Disorder, and related physical symptoms including shingles. It is alleged that as a result he has lost his job in the Police Force. It is also alleged that the Defendant his servants or agents knew or ought to have known that the Claimant was vulnerable to stress caused by pressure at work by reason of an incident in 1990 in which he had been bullied, and which had led to his transfer from Southend to Rayleigh to ensure his safety.

[19]Mr Norman for the Defendant stresses that this is not a claim that the Defendant is liable for the intentional infliction of injury, but a claim in negligence. The main focus of his case has been on the issue of foreseeability.

[20]Mr Norman submits that the Claimant cannot pass this threshold test. He notes that despite the Claimant’s experience in 1990 (when he was off work as a result of similar conduct, as he alleges), neither the Claimant, his wife, nor anyone else thought that he was unwell before October 1999. He had by then been back at work for eight years without falling sick. There are systems in place in Essex Police for picking up problems, and these systems are not criticised. The Claimant did not make use of the avenues of complaint available to him in so far as he was alleging breach of duty to himself (as opposed to complaining of the conduct of Mr Kreyling).

[21]These submissions are, of course, primarily directed to the period before October 1999, since after the Claimant had stopped work, there was no question of his pursuing other avenues of complaint.

[22]Mr Norman relies on the statement of the law by Hale LJ (as she then was) in Hatton v Sutherland

[2002] EWCA Civ 75

, which is summarised at para [43]: “(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (para 22). The ordinary principles of employer’s liability apply (para 20). (2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): this has two components(a) an injury to health (as distinct from occupational stress) which

(b) is attributable to stress at work (as distinct from other factors) (para 25). (3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (para 23). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (para 29). (4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health (para 24). (5) Factors likely to be relevant in answering the threshold question include: (a) The nature and extent of the work done by the employee (para 26). Is the workload much more than is normal for the particular job? … Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? … (b) Signs from the employee of impending harm to health (paras 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? … (6) … (7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (para 31). (8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (para 32). (9) The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties (para 33). (10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (para 34). (11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty (paras 17 and 33). (12) … (13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care (para 33). (14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm (para 35). (15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras 36 and 39). (16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event (para 42). ” (a) The nature and extent of the work done by the employee (para 26). Is the workload much more than is normal for the particular job? … Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? … (b) Signs from the employee of impending harm to health (paras 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? …

[23]Mr Waters submitted that this statement was made in the context of a number of appeals arising out of claims for occupational stress, but none of them involved bullying. He submitted that in Hatton the stress was not inflicted deliberately: Proposition (3) in Hatton includes a reference to normal pressures, namely “An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability”. By contrast, Mr Water submits that in the present case, while the injury was not inflicted deliberately, the stress was inflicted deliberately. None of the cases to which I have been referred provide any specific guidance on the proper approach in a case where bullying or victimisation is alleged. There was such an allegation in Garrett v London Bourough of Camden

[2001] EWCA 395

, but the allegation failed on the issue of causation: see para [51]. Mr Waters submits that the threshold for occupational stress claims is based on the fact that all jobs are stressful to some extent. In Rorrison v West Lothian College 1999 Ct of Sess the allegations were summarised as “constant harassment, criticism and humiliation”. However, Lord Reed, considering the matter on an application to have the action dismissed (a debate on Procedure Roll) held that the case would have been bound to fail on the issue of foreseeability, and so of the existence of a duty of care. He held that the risk that was foreseeable was that the pursuer would be unsatisfied, frustrated, embarrassed and upset, but that is a far cry from suffering psychiatric disorder.

[24]It seems to me that I can and should be guided by Hatton, but that what is foreseeable must depend on the facts of each case. In Waters Lord Slynn referred specifically to the need for the injury to be foreseeable, and I see no inconsistency between what he said in that case and what Hale LJ said in Hatton. She made the position clear in Proposition (5)(a) and (b), cited above.

[25]In addition to denial of liability, the Defence includes one of contributory negligence, in particular failing to use the various opportunities made available to police officers who find themselves in a situation such as that which the Claimant alleges and failing to heed advice and take reasonable care for his own health. The Defence also pleads that the Claimant failed to take reasonable steps to work again

THE EVENTS OF 20 NOVEMBER 1997

[26]Information was received by the police, in large measure from a suspect named Read, who gave evidence on behalf of the Crown. A series of arrests was planned for 20th November 1997. One of those to be arrested was a jeweller who had a shop in Rochford. He was subsequently tried in Basildon Crown Court in October 1999 with other defendants, and acquitted. I shall refer to him as M.

[27]The Claimant was at this time Acting Sergeant at Rayleigh. He did not carry out the arrest himself. That task was assigned to John Kreyling, who was stationed at Rochford at that time. In November 1997 Mr Kreyling was Detective Sergeant. He had been promoted in January 1990 and been transferred to the Rayleigh Division in 1994, covering Rayleigh and Rochford sections. From mid 1996 he carried out the role of acting Inspector. Subsequently to the events with which I am concerned, in January 2002, he was promoted to the rank of Detective Inspector at Basildon. He retired from the police force after completing 30 years service in December 2004.

[28]DS Dovaston, as he now is, gave evidence before me, called by the Claimant. He had joined the Essex Police in 1994 and the Divisional Support Unit at Rayleigh in 1997. The unit then consisted of PS Harvey, the Claimant, PC Enver and another officer on attachment. He states that as a result of information obtained, Mr Read was arrested, decided to give Queen’s evidence, and gave so much information that DS Dovaston and others spent many hours writing his statements. The information included to whom he had disposed of his stolen property and the involvement of those who became the other defendants in the resulting proceedings. Mr Read alleged that M had purchased large amounts of stolen property, gold and jewellery over an 18 month period. DS Dovaston states that he and the Claimant suspected that M would still be in possession of stolen property which could be identified as that which had come from dwelling burglaries. He states that he was present at some of the briefings at which the Claimant kept Mr Bird informed of these matters.

[29]DS Dovaston states that originally there were eleven suspects in addition to Mr Read, but that following a conference with Mr MacInnes of the Crown Prosecution Service (“CPS”), this was reduced to seven. Mr MacInnes is a barrister employed by the CPS. He was the reviewing lawyer for the Read case. He was assisted by a case worker, Ann Ebbsworth. The Claimant was asked to put together the operation to arrest these suspects.

[30]DS Dovaston states that M appeared to be the most active suspect and that it was believed that he held large amounts of stolen property from defendants in the case. There was other recorded intelligence that he was involved with other criminals. DS Dovaston states that the arrest of M had been expected to be dealt with by the unit, but that at some time before the arrest, Mr Kreyling approached senior officers and requested that his department carry out the arrest. DS Dovaston states Mr Kreyling said that as M lived and worked in his area, he felt that he could obtain better results and more intelligence if he carried out the arrest. DS Dovaston states that Mr Kreyling was fully aware of the evidence against M, and that he did not mention that M had worked as a jeweller for his family.

[31]The Claimant’s account of events included the following. In overall charge of the operation was Detective Inspector Bird. The Claimant attended his office and was informed that DS Kreyling was aware that M was an intended target and had requested to carry out the arrest, stating that the man worked and lived on his manor and therefore he would be able to get more intelligence. The Claimant states that Mr Kreyling was to carry out the arrest and search the property and he himself would accompany Mr Kreyling when interviews were carried out.

[32]Mr Kreyling had met M at his shop on 18th November 1997. In a Witness Statement made on 2nd February 1998 he described that visit. He said he saw a man who he knows to be M who handed to him a small medal with an inscription which he describes. Part of the inscription is “Dux Medal 1923”. A member of the public had identified this as stolen property when she saw it at M’s shop. The information that led to the item being identified in M’s shop was derived from a source who had identified Mr Read as handling stolen jewellery and property from Mr Burton, who was a well known local burglar, and from his associates. Mr Read was arrested the same day.

[33]The events of 20th November 1997 are recorded by Mr Kreyling in his notebook. The material part reads as follows:

“1130a CID Officers Rochford, note made re visit to [M’s shop] at 11am today 1105 Saw [M] in shop [in company of] DC Binks. I told him that as a result of enquiries made of the man [M] alleged was bringing in jewellery (A Stone) he had been identified and stated in interview that M had sold him a [illegible] and told him at the same time it was stolen. [M] said No, he was arrested by DS Kreyling on suspicion of Handling Stolen Goods, cautioned ‘No, no, no way, as I said he used to bring it in here and use to make him jewellery of his own design’ Told going to Rayleigh, he stated customers from Cambridge in back of shop, discussion with DC Binks, de-arrested arrangements made for [M] to be spoken to later that day.”

[34]The Claimant did not see that notebook then, and it was not produced in connection with the criminal proceedings until at or very shortly before the trial in early October 1999. This is a significant fact in the case.

[35]Mr Kreyling denies that he requested to arrest M. Mr Bird also states that Mr Kreyling did not make that request, and that the decision that Mr Kreyling make the arrest was made by himself, that is Mr Bird, with the Claimant. Mr Kreyling stated that it was on the morning of 20th November that he was asked to make the arrest.

[36]In cross-examination Mr Kreyling accepted that before 20th November he knew little more about operation Orchid other than that it was a large operation, involving theft and handling, and that he knew one of the thieves who was involved. He was not aware of the number of suspects to be arrested. He says that he understood M was not as important a suspect as those arrested in the early morning, and that possibly no jewellery would be found at his shop. I do not know how he and Mr Bird formed so different a view of the importance of M from the view which DS Dovaston and the Claimant state that they held. Mr Kreyling accepted that he was supposed to search M’s premises. He accepted the obvious, namely that his omission to arrest M and search M’s premises might have meant that good evidence, in the form of possession of stolen goods, might have been lost.

[37]The Claimant states that at 11am on 20th November he received a phone call from Mr Kreyling in which Mr Kreyling stated that there had been a hiccup but gave no further details. Mr Kreyling went on to say that M would be arrested at 6pm. The Claimant expressed concern at the restriction on time for interviewing that would be involved in this arrangement, but was informed that it had been authorised by the management team. M was arrested later that day and arrived at Rayleigh police station with DC Binks and another Detective Constable who had arrested him. The Claimant was told that M’s property had not been searched. He was told that M had been arrested and de-arrested by Mr Kreyling that morning that M had called Mr Kreyling by his first name and asked him to go into a small office and that Mr Kreyling had then de-arrested M and stated that the police would return later to re-arrest him. The Claimant had asked DC Binks what further evidence had been obtained between the time M had been arrested and de-arrested and was informed there was none. M was interviewed and released on bail

[38]The Claimant interviewed M. He states that during that interview M stated that he was personally known by Mr Kreyling and had been the Kreylings’ jeweller for 12 years. This was just an allegation by M so far as the Claimant was concerned, although the fact of a link, albeit in a less extensive form, was accepted by Mr Kreyling before me. The existence of such a link was not accepted by Mr Kreyling to the Claimant’s knowledge at any time during the events relevant to this case. This allegation by M, and Mr Kreyling’s response (or lack of response) to it, are also of great importance in this case.

[39]On 21st November the Claimant went to see DCI Bird complaining that, as he felt, the investigation had been seriously undermined and there was at least a case of negligence. He says that he was told by DCI Bird that he would get a full explanation from Mr Kreyling.

[40]In his witness statement Mr Bird states that during 20th November 1997 he was informed that Mr Kreyling had arrested M, but that he had auditors or some other persons in the shop, which would have caused him economic loss if he had had to shut the shop, and that Mr Kreyling had decided to de-arrest M and to interview him later. Mr Bird states that he was content with this decision. He trusted the decision making of Mr Kreyling and DC Binks who was with him. Mr Bird was also content because the earlier arrests and searches had been so successful that the officers involved had a larger than expected workload, and so the two officers who had attended M’s shop became free for other duties. Finally, Mr Bird had not expected to recover stolen property at M’s shop. He states that the decision was documented in the file held for this operation, but that the file could not now be found.

[41]Mr Bird states that the Claimant did not mention his concerns to him, Mr Bird, and that he did not know that the Claimant felt aggrieved. The Claimant states that although he expressed his concerns to DCI Bird, he was never given an explanation by DCI Bird or by Mr Kreyling. He states that following these events Mr Kreyling started bullying him, and harassing him and other officers in his unit for whom he was responsible.

[42]Mr Kreyling stated in evidence that he did not give an explanation to the Claimant. He accepted that it was not unreasonable for the Officer in the Case to want such an explanation, but he chose not to give it to him. He said he chose to give any reply to Mr Bird, the senior officer, not to the Claimant. He said he was a Detective Inspector, and he chose to respond to the senior officer, Mr Bird. He offered no reason for this decision. He said he could not recall being asked why he had done what he did. He offered no explanation why Mr Bird should not have told the Claimant his, Mr Kreyling’s explanation, and could think of no reasons for his not doing so. He said he could nor recall the Claimant pursuing the matter.

[43]DS Dovaston states that it became a problem when M was not arrested by Mr Kreyling. He said the Claimant was livid, and he was disappointed. DS Dovaston was concerned about the legality of the arrest, de-arrest him, and subsequent arrest. He states that M was the main suspect for handling property stolen by Mr Read and Mr Burton and that not searching his shop meant that M was left to dispose of any property that he might have been in possession of. He was aware that the Claimant was extremely concerned at the effect that it would have on the case and that the Claimant told Mr Bird.

[44]DS Dovaston was not cross-examined on any of the foregoing evidence.

MARCH-APRIL 1998

[45]On 26th February 1998 search warrants were obtained and M’s shop and home address were searched. In the course of the search a piece of paper was recovered. The form in which it is available to this Court is not the original. It is a copy of one of the documents used in the criminal proceedings. The document is in manuscript in different handwritings. At the top of the page the name Kreyling appears apparently in connection with some pieces of jewellery. At the bottom left of the page there is the name Binks with a telephone number for a police station with his extension. And at the bottom right of the page in Mr Kreyling’s handwriting in capital letters there is his name and the telephone number of Rochford Police Station. That appears immediately under some writing which itself appears to relate to a ring.

[46]The emergence of this piece of paper added to the Claimant’s suspicions that Mr Kreyling had at least been neglectful and had failed to disclose his family’s involvement with M. The bottom entries appear likely to relate to one or other of the visits of Mr Kreyling on 18th and 20th November 1997. The entry at the top of the page does not appear to me to be likely to relate to police duties. The Claimant also considered that it was unlawful to arrest a suspect de-arrest him and later re-arrest him without there being any change in the evidence available to the police.

[47]Mr Kreyling has explained in his witness statement and in his evidence to me the connection between members of his family and M. Mr Kreyling’s brother and father are both former police officers. Mr Kreyling’s father knew M through his professional work. After his mother had died, his father wanted a piece of jewellery made in memory of her, and his brother had used M to carry out the work.

[48]In March 1998 the claimant was planning an operation to raid an address in South Fambridge. It was a substantial operation involving firearms which had required a lot of preparation, in which care had been taken to maintain confidentiality. On 27th March 1998, the day on which the operation was planned to take place, the Claimant notified Mr Kreyling. Mr Kreyling disagreed, to put it neutrally, and the operation was cancelled. Mr Kreyling has told me that he considered the operation was not appropriate. He said he questioned the Claimant and that put the Claimant’s nose out of joint. He said the Claimant had not prepared professionally for the operation, he was caught out over this and embarrassed, and that it was the Claimant who complained to Mr Bird.

[49]From the Claimant’s point of view it was Mr Kreyling’s actions in disseminating information about the proposed operation that had led to the cancellation and he was concerned at Mr Kreyling’s intervention, amongst other reasons because he considered it undermined his position as Acting Sergeant. The Claimant’s evidence to me is that Mr Kreyling shouted at him over the telephone and that the Claimant hung up on him. Mr Kreyling denies ever having shouted at the Claimant.

[50]On 28th March 1998 there was a conversation between Mr Bird and the Claimant by telephone in which Mr Bird told the Claimant that Mr Kreyling was complaining about the Claimant. The Claimant states that one of the complaints against him was that he had hung up on Mr Kreyling.

[51]On 2nd April 1998 the Claimant wrote a report in which he referred to the conversation on 28th March with Mr Bird, and stated the facts about the operation and what passed between himself and Mr Kreyling. The report concluded saying: “I consider DS Kreyling is making unrealistic complaints, he is oppressive in his conduct and I wish to make a grievance of his oppressive conduct and neglect of duty”.

[52]I find that Mr Kreyling had complained to Mr Bird about the Claimant, and that this was the Claimant’s response (which included a complaint of his own), rather than that the Claimant was the one making the first complaint.

[53]The report was headed “Duty Report for Operation Zenith 27/3/98 and Grievance of Oppressive Conduct by DS Kreyling”. It is addressed to Detective Chief Inspector Bird. The report refers to Mr Kreyling having “confronted” the Claimant when the Claimant contacted Mr Kreyling to notify him that he intended to carry out the operation. One of the points that the Claimant makes is that Mr Kreyling had reminded him that the Claimant was only Acting Sergeant whereas Mr Kreyling was Detective Sergeant at that time.

[54]In the middle of the report the Claimant wrote this:

“At the present time I am very worried of any decision that DS Kreyling makes, as I feel that he is a risk to my operation and this is upheld in the way he deals with his colleagues and prisoners. Recently he was asked to arrest a primary offender in an offence of conspiracy to handle stolen property and jewellery. He called the target’s address, arrests him, tells him why he is there, and then de-arrested the suspect as he stated he had appointments during the morning telling him to be ready at 6pm that evening. The defendant had every opportunity to destroy evidence and to make up an account of his actions. We all had to wait until 6pm, his staff and myself ended up working half way through the night and the defendant did not admit his part and there was no evidence available gained from the search. I was later informed that DS Kreyling had a personal contact with the suspect outside the Police Force, so to that effect, I am very concerned with the decision he comes to.”

[55]Mr Bird states, in para 12 of his witness statement that he that he was never made aware of the report dated 2nd April 1998 and that he is certainly not aware of any officers asking for it to be withheld. Mr Bird’s witness statement makes no reference to the contents of the report of 2nd April, and so I have only the evidence of the Claimant as to what they said to one another in the conversation referred to in it.

[56]In his witness statement the Claimant states that by this time Mr Kreyling had started to question him in front of the other supervisors in an insulting and degrading manner. At one supervisors’ meeting he had shouted at the Claimant in front of all the persons present.

[57]Mr Kreyling made a witness statement for the purposes of this action on 5th September 2004. He refers to the document dated 2nd April 1998. What he says about it is that he notes that it was not until that date that the Claimant took any formal complaint, “when he filed the report on 2nd April 1998 mentioned [in the Particulars of Claim]… the report of 2nd April 1998 is primarily concerned with an incident at South Fambridge…”

[58]Mr Kreyling was asked about the document in cross-examination. He said at once that he saw it in April 1998. He accepted that the account of the visit by himself to M’s premises in the paragraph starting “Recently he was asked”… was correct. He said he understood this incident was bothering the Claimant and the Claimant had not had an explanation. It was suggested to him that Mr Bird had showed it to him. Mr Kreyling said that it was possible that Mr Bird had showed it to him and he was not saying that he did not see it in 1998.

[59]There was a short time during this part of his evidence when it appeared unclear as to whether his evidence was that he had seen it or that he had not. But he quickly made clear that it was his evidence that he had seen it. He said that he understood from the document that he was being accused of neglect and corruption, and that he took it personally and that any police officer would feel the same. Although it did not mention his brother or father, he felt that the accusation of corruption involved them as well. He went on to say that he was professional enough to have confidence that the police would rigorously investigate the matter and that he would be exonerated. However, in answer to further questions he stated that he did not recall being asked any subsequent questions about the matter by anyone conducting an investigation, and he had made no enquiries as to whether anything was being done to investigate it. It was suggested to him that he knew Mr Bird had got the Claimant to shelve it and he said that was not true.

[60]Mr Kreyling accepted Mr Waters’ suggestion that he was livid that a fellow officer should have made a suggestion against himself.

[61]Mr Kreyling gave two reasons in the course of his evidence for not explaining to the Claimant the reasons behind his actions on 20th November 1997. The first had been that he had given an explanation to Mr Bird and that that was all that was required of him. The second was that once the grievance had been submitted, there could be an investigation, and the last thing he was going to do was to approach the Claimant in those circumstances. There could have been an adverse inference drawn that he was asking him to drop the charge.

[62]Mr Kreyling went on to say that he did not recall that he had at anytime (that is before the present proceedings) been asked about his actions on 20th November 1997 by anyone conducting any investigation. This is a point to which I shall have to return. He said that when he became the Claimant’s line manager (see below) he was aware that the Claimant’s complaint about him had not been dealt with, but he was not aware that an investigation had not been started.

[63]As the cross-examination proceeded Mr Kreyling appeared to become confused, speaking of what I understood to be the Claimant’s later report dated 5th May 1999 to which I shall refer below. This document was submitted by the Claimant and contains complaints about Mr Kreyling similar to those contained in the document dated 2nd April 1998.

[64]Later in his cross-examination Mr Kreyling was asked about a document dated 11th May 1999 in which he commented in detail upon the Claimant’s report dated 5th May 1999. At that point he said that he did not think that he had seen the 1998 document in 1998. He said he believed the first document he saw containing the Claimant’s allegations against him was the one in May 1999. He said that he may have confused the two. I find that Mr Kreyling did see the Report dated 2nd April 1998 in 1998, or at the very least had been made aware of its existence and contents.

THE ESSEX POLICE GRIEVANCE PROCEDURE

[65]Since I find that the Claimant had submitted a Greivance to Mr Bird on 2nd April 1998, it is necessary to consider what procedures then applied. Essex Police have a formal Grievance Procedure. At that time the edition in force was dated 4th October 1993. It includes the following:

“1.1 The main purpose of the grievance procedure is to ensure that individual members of staff… who feel aggrieved about the way they have been treated, either by management or by their colleagues, are given every opportunity to have their grievances resolved in a fair and just manner. Grievances should normally be discussed first with a local line manager in an effort to find a resolution. It is only after these discussions have failed to resolve the issue that the grievance procedure should be invoked. The grievance procedure is intended to resolve issues as quickly as possible and not to establish guilt or provide punishment. It is an informal and flexible means of resolving problems. (The last two sentences are printed in bold in the original). The procedure is intended to deal with all types of grievance (except issues relating to civilian gradings) including claims of unfair interpretation or implementation of personnel policies and conditions of service… the grievance procedure is not a method for making an allegation under the police discipline code… 1.2 The grievance procedure may also be invoked in cases of harassment… 5.1 Those responsible for dealing with grievances should bear in mind that the procedure is aimed at achieving a resolution rather than establishing innocence or guilt. It is not necessary for an aggrieved person to prove his or her case beyond all reasonable doubt. … 6. Victimisation 6.1 Victimisation of a person who has invoked, or intends to invoke, the grievance procedure… will amount to a breach of discipline… 6.2 The unjustified transferring of an agreed member of staff could be regarded as an act of victimisation. This course of action should never be used simply to resolve a grievance. There may be operational reasons which justify a move, or a move may be requested. In these instances, the reasons must be fully recorded. The Equal Opportunities Advisor and Complaints and Discipline should be consulted before the transfer of anyone involved in a grievance. Once a decision is made to transfer that person the reasons for that decision must be fully explained to them. 6.3 If a person feels that they or anyone else is being victimised, they should contact, without delay, their management or their Equal Opportunities Advisor, or Complaints and Discipline, or a staff representative or a Confidential Councillor for advice. 7.1 Grievances should be investigated as promptly as possible. …”

[66]There then follows a detailed description of the different stages of grievance procedure. There are Appendices to the document. In the first Appendix, headed Essex Polices Statement on Harassment at Work it is stated that “all supervisory personnel have a duty and have a responsibility for taking positive action to eliminate any harassment or intimidation of which they are aware.” There is a warning to all managers of the possible consequences to do this. There is an explanation that if the grievance clearly is a discipline or criminal or serious offence then the proper procedure is to contact the Complaints and Discipline directly.

[67]The Essex Police have a number of documents giving guidance on bullying, harassment and inappropriate behaviour at work. One of them has a list of forms that bullying may take. It includes persistent criticism, constantly undervaluing effort, humiliating people in front of others, shouting at people to get things done. Another example given is spreading malicious rumours. That is not this case, but the making by a manager of false or materially exaggerated allegations of misconduct to superior officers must be included in the list. The suggested action to be taken by the victim includes reporting the matter immediately to his own Manager or Supervisor, or to the Manager or Supervisor of the bully. Support is also available from Grievance Advisers and others. It is recommended that the victim should keep a written record of the treatment, including dates and details, and report the matter immediately (advice that the Claimant followed, as appears below). It is not in dispute that Managers have a duty to take action immediately to eliminate any inappropriate behaviour of which they are aware.

[68]The Claimant states that Mr Bird refused to accept the Grievance. He states that it remained on Mr Bird’s desk for a week. He states that Mr Bird told the Claimant to calm down and that the document would create problems for Mr Kreyling’s promotion. According to the Claimant, Mr Bird said he wanted to get rid of Mr Kreyling because he had too many Sergeants. Mr Bird told the Claimant that he, Mr Bird would speak to Mr Kreyling and get him to behave correctly, and that he would take the responsibility for the arrest of M. The Claimant says he explained his doubts and at first refused to withdraw the report. The Claimant states that after further conversations between them, and five days later, he took the report back on the understanding that if he experienced any more oppressive conduct from Mr Kreyling he would give it back to Mr Bird.

[69]There is no reference in Mr Bird’s witness statement to any conversations between himself and the Claimant at this time.

APRIL 1998-JANUARY 1999

[70]Shortly after this Mr Kreyling was moved to Rayleigh police station and became the officer immediately senior to the Claimant, that is his line manager. This is not relied upon as part of the cause of action, but on any view it was unfortunate.

[71]The Claimant stated that the oppression continued. DS Dovaston also states that the Claimant was constantly undermined by Mr Kreyling. DS Dovaston was cross-examined in this part of his evidence. He said he felt that his unit were constantly monitored and their ability questioned.

[72]The Claimant decided to record matters in his pocket book. The first of these was recorded on 7th April although the incident had happened earlier. The Claimant recorded a number of episodes in his notebook. A police officer’s notebook is normally used for recording events relating to the performance of his duties, and is commonly used in court as a means of refreshing his memory. It is a document that is open to inspection by senior officers at any time, and the Claimant’s were inspected by senior officers in 1998 and 1999, including by Mr Kreyling.

[73]On Tuesday 7th April 1998 the Claimant made an entry in his notebook relating to some drugs. He thought that he was being set up by Mr Kreyling, who was at that time at the station. There is no evidence that he was, and this was not put to Mr Kreyling in cross-examination.

[74]About this time the Claimant was undergoing the annual staff appraisal, for constables and sergeants for which there is a standard form of report. The document is stamped 14th May 1998, but some entries are dated much earlier, in September 1997. The Report states that the Claimant held the rank of Detective Constable and had been in post for 1 year and 9 months out of 22 years service in the police force. Since the last appraisal it states that he had been on duty with the Divisional Support Unit, and had received two commendations from the Chief Constable, one in May and one in September 1977. It is an excellent report. The entry by the Reporting Officer made on 22 September 1997 includes:

“You have maintained a high level of respect from the officers at Rayleigh during a very successful six month period of Acting Sergeant on the Support Unit”

[75]The Report notes that the Claimant continues to detect a large number of crimes, mainly by informant led enquiries. It was expected that in the next year’s work he would continue to carry out his Acting duties. Under the heading Additional Comments it records that the Claimant, on being posted to the Divisional Support Team formally became a Police constable. This was never formalised, and the Claimant had stated that should he leave the DST, then he would wish to revert to Detective Constable status. DI Haynes, who wrote this comment, added that, where possible, this would be done, i.e. the Claimant would be offered a Detective’s post if the DST for whatever reason were to be disbanded, provided there were a vacancy. CI Bottrill signed the form on 27th April 1998 adding the comment “a very good appraisal for a productive officer. Well done”. On 30th April 1998 Mr Bird signed the Report as Acting Superintendent. He added the comment “An excellent year for an experienced, highly motivated officer. Well Done.”

[76]Mr Norman who referred me to this and other reports. One of his purposes in doing so was to point out that this report, like all the others, also contains an assessment of qualities and skills, including an assessment of “understanding of and effects of stress”. The Claimant’s score on this was “Very Good”, as it was on all his other Appraisal Reports.

JANUARY-APRIL 1999

[77]A similar Appraisal Report was stamped 2nd February 1999. This records that since the last appraisal the Claimant had received a further Chief Constable’s commendation, in August 1998, and other commendations. For this report, the reporting officer was DS Harvey. On 16th December 1998 he included this comment: “David, another excellent years work with all your identified objectives being achieved in one case, [that being the case involving M]. You have had an extended period of time acting in my absence and although some people have criticised your methods, you have stuck to your guns, and the results that you have achieved speak for themselves. You continue to work with the high motivation of an officer who enjoys wholeheartedly every aspect of his job, and I thank you for your support”.

[78]On 14th January 1999 Mr Bird signed the Report, adding the comment “another good years work from an exceptionally industrious officer”. There are added commendations written on 18th January 1999 from CI Bottrill, CI King and Superintendent Stanley.

[79]My attention was drawn to the comment written by the Claimant on 28th January 1999 in the box of ‘Comment by Appraised Officer’. It includes:

“My achievements are only a reflection of the hard work carried out by the officers on the DST. I take the role of Acting seriously and will not be bullied into making decisions which would jeopardise the safety of the persons I am supervising. I am very pleased that our achievements are acknowledged…”

[80]Mr Norman submits that that is an example of the Claimant referring to bullying at this time, and, so far as his superior officers could be expected to see, it shows him coping with the situation. It shows that he is not afraid to make complaints, and that if he had wanted to make the complaint more forcefully or through other available channels, then he had the opportunity to do so. The passages including the words “criticised” and “bullied” are consistent with the allegations in this case.

[81]On Tuesday 2nd February 1999 the Claimant recorded in his notebook a meeting with Mr Kreyling at which they went over the week’s work. The Claimant wrote that Mr Kreyling “demanded the handing over of the DST Time off book”. He states that he photocopied it and handed the original to Mr Kreyling. The book has never been returned.

[82]In his witness statement the Claimant explained that the members of the unit agreed to work in their own time on the condition that the time worked would be entered into their duty book and overtime book, a practice also referred to as ‘the back of the book’.

[83]In evidence the Claimant stated that on 2nd February 1999 Mr Kreyling demanded the book because the Claimant initially refused to give it. It contained the record of overtime that had been served but not yet remunerated. The Claimant said that Mr Kreyling said that he (Mr Kreyling) had been instructed that there would be no more time in the back of the book.

[84]Mr Faber was called by the Claimant to give evidence about this. He is an Exchequer Services Manager with Essex Police, and is responsible for all financial transactions of the Force. The Claimant had contacted him claiming to be entitled to outstanding overtime and holiday pay which had been gained while working at Rayleigh. The Claimant told Mr Faber that he had recorded overtime not only in the signing on book but also in a book for unpaid overtime. In the latter case, the amount is then allocated as time off, and authorised by a senior officer, who might be a Sergeant or line manager

[85]Mr Faber states that this is a known practice within small units. Mr Faber explained that payment would only be made after a directive had been received from senior officer at Rayleigh, and that he had received none. He states that in the past he has received such directives and payment has been made for such overtime.

[86]In cross-examination Mr Faber said that recording overtime in the back of the book is against police regulations, but is a practice that has always existed and still exists today.

[87]There is a memorandum dated 5th February 1999 from Mr Kreyling to CI King with a copy to be sent to Mr Bird. That records a number of items of a critical nature which Mr King stated that he had brought to the Claimant’s attention. The memorandum of 5th February 1999 was not signed by the Claimant. He did sign a subsequent document dated 16th March, which appears very little different. He was asked about the difference, and did not point to anything in either document which might explain why he signed one version and not the other.

[88]The following Tuesday 9th February the Claimant made a further entry in his pocket book relating to a meeting with Mr Kreyling. There was a mention of duty sheets and the note records that Mr Kreyling started shouting. The Claimant wrote that he asked him to refrain from shouting but Mr Kreyling said “I am the DI. When I give you a direct order you will do it.” The Claimant recorded that he replied “I am going to leave this meeting. Your conduct is oppressive.” He noted that he then collected his papers, and that Mr Kreyling continued to shout at him saying that he was going to tell the Chief Inspector. The Claimant said “that’s up to you. When you stop shouting at me I’ll speak to you”. He noted that after about two hours Mr Kreyling returned and asked to continue the meeting, which they did.

[89]The Claimant stated that he wrote the entry of 9th February 1999, because he had previously complained to CI King that Mr Kreyling was shouting at him. CI King confirms this, and it is the evidence of both him and the Claimant that CI King told the Claimant that if Mr Kreyling continued to shout then the Claimant should leave the meeting. The Claimant states that he also told DCI Bird, that he had said get on with it, and he thought it was amusing. I do not have any evidence from Mr Bird on this point.

[90]The Claimant and CI King also gave evidence of another incident in which Mr Kreyling had complained to CI King about the Claimant, and CI King had advised Mr Kreyling to make the Claimant a cup of tea. CI King stated that he was aware that the Claimant and Mr Kreyling had come into conflict. In his witness statement he attributes that to the Claimant being uncomfortable with the process of the “health check”, during which there were matters which the Claimant was required to address.

[91]The “health check” was a procedure which CI King had instructed be carried out. Its purpose was to monitor staff and ensure competent levels of performance in their existing roles, in particular, prompted by concerns which CI King had about the extent to which overtime had been worked by the unit. There was no suggestion that the reported times had not been worked, rather that they tended to be worked at times that produced increased levels of remuneration being paid before Christmas and summer holidays.

[92]Mr Kreyling stated in evidence that he never shouted at the Claimant. He said he was simply carrying out his management duty which had been assigned to him.

[93]On 11th March 1999 the Claimant made a record of a meeting with Mr Kreyling that day. He records that he did not agree with some of the points which he said were not true in a report monitoring the divisional support unit and asked that they be changed before he would sign. He records the complaint that the reports were very negative and picked fault on matters which he had little control over when he was off duty, such as the duty report mileage book.

[94]The report prepared by Mr Kreyling on the monitoring of the Divisional Support Team, and dated 16th March contains the following criticism. The duty roster is said not to have been kept up to date on a daily basis. It is said that the Claimant has not contacted DS Turner with sufficient detail for him to prepare the duty lists. It is said that the Claimant had at the previous meeting agreed to prepare records of work for each officer within the DST and produce them for Mr Kreyling’s perusal, and that he had not done this. It records that there had previously been a discussion relating to the system of recording rest days worked by officers within the team. Mr Kreyling had requested that the document be produced to him, but without success. It recorded that the document had now been produced.

[95]In his notebook the Claimant records that it was not true that he had not given the information to DS Turner, that it was not true that the Records of Work had not been kept and that it was not true that the rest day book had not been handed over, because Mr Kreyling had been in possession of the book the night after the meeting. However, the Claimant did sign the report dated 16th March 1999, including these criticisms.

[96]The Claimant states that it was about this time that he was getting bad headaches, although he thought that he could cope. He attributed the headaches to the pressures that Mr Kreyling was putting him under.

[97]The Claimant states that at this time he asked Mr Kreyling and Mr Bird for Mr Kreyling’s pocket book, but it was never produced to him. He said Mr Bird was instructing him to withhold any details or concerns about the arrest of M. He became concerned at his position as Disclosure Officer. He contacted Mr MacInnes.

MEETING THE CPS

[98]Mr MacInnes gave evidence that the committal of the suspects in the Read case was old style, that is with oral evidence, and took place in early 1999. He had been in regular touch with the Claimant and DS Dovaston. Initially all the defendants were charged with handling stolen goods, theft and burglary and (with the exception of the three jewellers) possession of firearms and ammunition. At the early stages of the case Mr MacInnes was not aware that M had been arrested twice on 20th November, de-arrested the first time, and that his premises had not been searched on the first visit. At some time before the committal hearing he became aware that there were circumstances relating to the arrest of M that needed looking in to.

[99]On the advice of counsel, and shortly before the committal hearing, all the defendants were charged with conspiracy to handle stolen goods.

[100]After the committal Mr MacInnes requested the Claimant and DS Dovaston to forward all papers for the trial as soon as possible. The papers he expected to receive included pocket books, although he did not specifically request these.

[101]Mr MacInnes stated that the practice at that time, encouraged by judges, was for the prosecutor to make more extensive disclosure of unused material than is now the practice.

[102]Mr MacInnes stated that the Claimant said to him that there were things that he did not know about the events on 20th November. Mr MacInnes noted that there was a difference between the amount of stolen property recovered from the other two jewellers arrested, and the amount recovered from M. It struck him as odd. He was not sure whether the point was raised first by himself or by the Claimant.

[103]Mr MacInnes stated that he sent a memorandum to the Claimant chasing up the documents, including pocket books. He was intending to forward them to the Defence.

[104]During April 1999 Mr MacInnes stated that he received a call from the Claimant stating that he had a problem, and requesting a meeting. At the meeting the Claimant appeared extremely worried. He explained what Mr Kreyling had done on 20th November and stated that Mr Bird had instructed him to withhold the facts that should be disclosed. He said that the reason given for this request by Mr Bird was that it would prevent Mr Kreyling being reprimanded for his negligent actions, which could seriously affect Mr Kreyling’s prospects of promotion. The Claimant stated that, given the lack of evidence against M, he had expected that the case against him would go no further than the committal stage. M had been committed. The Claimant was scared of reprisals from senior CID staff, but was more concerned about the forthcoming trial. Mr MacInnes advised him that if he withheld evidence the consequences would be very serious. Mr MacInnes advised the Claimant to write a full report outlining his concerns to the Head of Internal Investigations which would then be forwarded to Mr MacInnes with an explanation.

[105]Mr MacInnes stated that it was his view at the time that it would have been apparent to both the prosecution and the defence that something out of the ordinary had happened at the arrest of M, namely the de-arrest and there being no search, followed by a further arrest which he considered did not conform to the Police and Criminal Evidence Act. The integrity of the prosecution was at risk, in his view. He felt concerned at the position of the Claimant as Disclosure Officers.

[106]The Claimant decided to write the report.

DISPUTED EXPENSES CLAIMS

[107]In the middle of April the Claimant put in a claim for re-imbursement of his expenses. Mr Kreyling did not accept them. There were a number of items that were questioned. The amounts involved are very small, and a great deal of time was spent at the trial in cross-examination upon them. It is impossible for me to adjudicate upon whether the claims were proper or not, and I do not have to do so. A brief summary of the points is sufficient.

[108]There was debate as to whether the timing of Mr Kreyling’s response to the claim for expenses, contemporaneously with the concerns that the Claimant was expressing to the CPS, was a co-incidence or not. I am unable to make a finding on this point, and it does not seem to me to make a difference to the outcome of the case.

[109]Two of the questioned items concerned the Claimant’s work for the police in Norfolk, who were defendants to a civil action in Norwich County Court. The Claimant’s expertise in wild life was relevant, and he was assisting Norfolk Police. He had been scheduled to spend three weeks in Norfolk. The cost of the Claimant’s time was to be borne in the first instance by Essex Police, but they had arranged to be re-imbursed by Zurich Insurance, the underwriters for Norfolk. The case in Norfolk settled on the first day.

[110]The Claimant could, of course, have stayed in a hotel in Norwich, but he had a relative there who agreed to accommodate him, so he did not book a hotel. He could have also have driven back to Essex after the settlement had been reached, which was at 4.30pm. It is a four hour drive, and he decided to spend one night in Norwich, and drive back to Rayleigh the next day. He did this. I do not know whether it would have been questioned that the four hour drive back from Norfolk was overtime, if the Claimant had made the journey that night.

[111]The Claimant left Norwich at 9 am the next morning and arrived back at his desk at one o’clock. After a break, he then started work for Essex Police, intending to work an eight hour shift from 1400 to 2200, which is a standard shift.

[112]Before leaving Norwich the Claimant also decided buy a bunch of flowers for his relative, The bunch of flowers cost him £12 at the market, but he did not obtain a receipt.

[113]On the evening of his return there was a football match in which many Essex police officers were involved in one capacity or another, and which he had good reason to attend as well. Mr Bird came into his office, said he had been working hard and should join them in supporting the Division team. Mr Kreyling was there too. He included the time in his days work. The Claimant states that he checked the duty books and that Mr Kreyling and Mr Bird both included the time in their duty books.

[114]The Claimant completed a Claim for Travelling, Subsistence and other expenses (form GC70, also referred to a Gold From) including the following words: “[14th April] Travelling to Norwich County Court away from place of duty overnight accommodation at Beccles Road Norfolk £12.00 [15th April] From 0900 to 1300 … Travelling from Norwich”.

[115]A third, unrelated, claim related to 8th March. He entered on the form: “Engaged away from place of duty Case Conference at CPS Chelmsford ref Morris unable to take ref[reshment]s in usual way £5.34”.

[116]The Claimant recorded the meeting with Mr Kreyling on 20th April 1999 in his pocket book. Mr Kreyling asked him to close the door. Mr Kreyling said that he should not have incurred the expenses. The Claimant said he had a report about Norfolk, and Mr Kreyling asked to see the report. The Claimant said he would check with the Police Federation (who advise on such matters). He wrote that Mr Kreyling’s conduct was oppressive. He noted that Mr Kreyling requested to examine his pocket book.

[117]In evidence the Claimant stated that he explained to Mr Kreyling that he had purchased flowers for £12. He noted that it would have been obvious to anyone that £12 could not have been the price of hotel accommodation. Mr Kreyling asked for a receipt. Since he did not have one the Claimant wrote on an Essex Police Compliments Slip: “… I did not get a receipt for the accommodation as it was with a relative but I gave them flowers which cost £12. They had agreed to house me for the period of the trial 3 weeks”.

[118]The Claimant did not re-submit the form to Mr Krelying, as requested. He re-submitted them to CI King, on 22 April. On 23 April CI King signed the printed form certifying that the journeys and expenses claimed had been authorised and necessarily incurred. The Claimant did not tell CI King that the claim had been previously returned by Mr Kreyling for re-submission to him (Mr Kreyling). Mr Kreyling was in fact off work on 22 April. CI King was in principle a proper person to whom to submit the claims. If he had not been he would not have signed them as he did. And he also had had some involvement in the arrangements between Norfolk and Essex Police, although perhaps not as much as the Claimant thought he had. In any event, he had more involvement in those arrangements than Mr Kreyling, who had had none.

[119]On 29 April Mr Kreyling sent a memo to PS Harvey, who forwarded it to the Claimant. The memo referred to a conversation with the Claimant which he said had been on 21 April, and said: “… To date the officer has not re submitted the form GC 70 and required report to me Will you please instruct PC Clark to submit the papers before he retires from duty on 30 April 1999”.

[120]The Claimant returned that form endorsed in his own writing as follows: “Attached GC70. The Norfolk report has already been submitted as you were sick it went through CI King 22.4.99 and a copy is with the division”.

[121]In his evidence in chief the Claimant said he submitted the claims to CI King because Mr Kreyling was off sick. In cross-examination he said he did not tell CI King that the expenses had been queried by Mr Kreyling because he wanted to see if the claim went through, and it did. I find that that was the real reason why he re-submitted the forms through CI King. He believed that he was being treated oppressively by Mr Kreyling, that the claims were good ones, and was testing that belief by seeing whether CI King raised any queries. He did not, and the claims have, eventually, been paid.

[122]However testing his line manager in this way carried serious risks, which the Claimant does not appear to have appreciated.

[123]On 5th May 1999, without further discussion with the Claimant, Mr Kreyling wrote a report to DCI Bird. It reads as follows:

“I report relative to the above [Clark form GC70]. On 21 April PC Clark handed me form GC70 in respect of expenses incurred during the month of March 1999. I briefly perused the form and a short time later spoke to PC Clark in my office, in particular in relation to the following: 1 An entry for 8 March 1999 in respect of a claim for £5.34. I intimated to the officer that as he stated he was only at Chelmsford for approximately three quarters of an hour and returned to Rayleigh at about 7pm the same day that he could have taken refreshments as normal, whereupon he was taking his meal in the normal way and therefore no additional expenditure would be incurred. I then produced the ‘DST’ Duty Roster which covered the dates, 14and 15 April 1999. I showed both entries to PC Clark and queried the following matters with him: 2 The officer told me that he travelled to Norfolk to attend court on Wednesday 14 April 1999 in respect of a wildlife investigation, having attended court, proceedings were stopped during the afternoon, the prosecution was therefore concluded with a negative result. 3 I enquired of the officer why he stayed in Norfolk during the Wednesday evening when court had finished during the afternoon. PC Clark told me that having arrived in Norfolk during the Wednesday morning, he immediately went to a hotel and booked accommodation which he then told me he could not cancel, as court had finished earlier than expected, but, as PC Clark advised me, “the Zurich Insurance Company were paying the costs anyway”

. I explained to the officer it was irrelevant that an Insurance Company were paying for all of his incurred expenses other than Essex or Norfolk police. 4. I then showed PC Clark the Duty Roster for 15 April 1999. I enquired of the officer why he had signed on for duty at 09.00 hrs and then incurred four hours overtime having signed off at 22.00 hrs the same day. He told me he was rostered for a late turn duty on 15 April so by leaving Norfolk by 09.00 hrs he had incurred overtime. I then pointed out to the officer that he should have worked a 09.00 to 17.00 duty on that day, which would have prevented him incurring four hours overtime. PC Clark again intimated to me that it did not really matter because, again, the Zurich Insurance Company were paying all expenses and he PC Clark was just about to conclude a full report of his actions and all expenses incurred during the Wildlife Investigation on behalf of Norfolk Police. At this point in time, I told PC Clark that I was not happy with the papers placed before me and that I wanted them resubmitted accompanied by the report he was compiling on behalf of Norfolk Police. There is no doubt at this point, PC Clark was under the impression that there was the possibility that I would not approve of one or more claims on his form GC 70. By 29 April PC Clark’s form GC70 had not been re-submitted to me so I forwarded a report to PS Harvey requesting submission of same. I eventually received form GC 70 from PC Clark upon which he made a note stating that as I was sick on 28 April, he had submitted all forms relating to the Norfolk enquiry through Chief Inspector King which included his full accounts records. Upon learning of this fact I was of the opinion that the officer had submitted the papers through another officer to prevent me from refusing the claim in respect of the Norfolk enquiry and the officers conference with CPS at Chelmsford. On 4 May I contacted Finance Department at Headquarters to find that PC Clark’s form GC70 in respect of the Norfolk enquiry along with the accounts record had been signed by both Superintendent Stanley and Chief Inspector King. Copies of the same were faxed to me and are enclosed with others for your information. PC Clark, in my opinion throughout this matter has been deceitful and apart from disobeying an order to return papers to me, I would contemplate the officer having committed a criminal offence (s). I established on 4 May that PC Clark did not stay at a hotel during the evening of 14 April but, as he wrote upon an Essex Police compliment slip, he stayed at a relatives house and was therefore submitting a claim for flowers even though he did not have a receipt. This report and papers are forwarded for your information and action as felt necessary in this matter. I have not spoken to the officer about the overtime for 15 April that he “booked even though he watched the Croker Cup football final at headquarters during the evening”.

[124]That document contains a number of statements, which, as I find, are obviously incorrect. This is no doubt in part because, as he wrote, he only “briefly perused the form”. Some of these errors are immaterial. One such is that the proceedings in Norfolk were civil, not a prosecution. Another is that the note from the Claimant stated that Mr Kreyling was sick on 22nd April not 28th April.

[125]Other misstatements are difficult to explain in the same way. The Claimant did not go to a hotel or book hotel accommodation and I find that he did not tell Mr Kreyling that he had done so. The Claimant had mentioned the fact that the costs were being paid by the Zurich Insurance Company, but it would have been entirely out of character if he had state it in a way which suggested that it was therefore unimportant what expenses were claimed. Mr Kreyling did not establish on 4th May that PC Clark did not stay at a hotel because the Claimant had never suggested that he did stay at a hotel. A sum as small as £12 was obviously not a charge for hotel accommodation, whatever else it might have been.

[126]As to the claim in respect of the conference in Chelmsford, in evidence Mr Kreyling accepted that in 1999 the journey time between Rayleigh and Chelmsford was such that there was nothing wrong with a claim for two hours.

[127]The important issue in relation to this document is not whether the claims were good or not, but whether there was any justification for Mr Kreyling writing that report without further discussion with the Claimant and including in it the words:

“throughout this matter [PC Clark] has been deceitful and apart from disobeying an order to return papers to me, I would contemplate the officer committing a criminal offence(s)”

. These very serious allegations were not raised with the Claimant by Mr Kreyling, or by anyone else at any material time. The Claimant came to hear about this report by Mr Kreyling (from CI King on 11th May 1999) but not what it contained.

[128]I am content to assume, in favour of Mr Kreyling, that the expenses referred to in his report of 5th May could legitimately have been queried by him. There were no receipts for £5.34 or the £12. The question of how the four hours drive from Norfolk to Rayleigh should have been accounted for was debated at much length at the trial, and perhaps could have been debated at much length in April 1999. What I cannot see, and what Mr Kreyling could not explain, was why any reasonable person in Mr Kreyling’s position could have contemplated that the Claimant had committed a criminal offence or offences.

[129]I can understand why a suspicion (but nothing more) of deceit might have been raised on a different point. Mr Kreyling could reasonably have suspected that the submission of the documents through CI King, rather than through himself, was to avoid the queries being raised again by himself. In fact, as I have said, the reason was not as the Claimant had stated, namely that Mr Kreyling was off sick, but that the Claimant wished to test whether he was being fairly treated by Mr Kreyling. While Mr Kreyling might have suspected deceit, in my judgment to carry out a test in that way is not deceitful. Given the very bad relationship which clearly then existed between the two men, Mr Kreyling may or may not have understood that explanation. The problem is, as I have stated, that neither he nor anyone else put the allegation to the Claimant and the Claimant was never able to refute the details of that document.

[130]On Friday 7th May 1999 the Claimant had a meeting with Mr Bird. He made a note of it over two pages of his pocket book. He asked Mr Bird about rumours that officers would be moved from DST and tenured. Tenured is an expression for re-deployment. After initially giving him comfort that he would not be moved, Mr Bird told the Claimant that he did not wish to mislead him, but that he would soon be moved. The Claimant asked what he had done wrong and suggested this was something to do with Mr Kreyling. Mr Bird told the Claimant to wait until Monday.

MANAGEMENT TEAM MEETING ON Monday 10 MAY 1999

[131]The minutes of this meeting include the following:

“Discipline Matter – PC 1588 Clark Superintendent Stanley referred to a report submitted by acting Detective Inspector Kreyling dated 05.05.99 in respect of a subsistence claim submitted by PC Clark relating to overnight accommodation during the Norfolk enquiry and an inappropriate claim for overtime. The group agreed that PC Clark had made inappropriate claims on his gold form. Having been challenged initially by Detective Inspector Kreyling and DCI Bird it would appear that the subsistence form had subsequently been submitted through the Command Team for authorisation which led to an enquiry being carried out by Acting Detective Inspector Kreyling. It was agreed: PC Clark should be informed of the Command Team’s decision to post him to a pro-active team, either at Canvey or at Hadleigh. Should PC Clark decide not to work as part of the team, then he will be posted to shift within this division. The Officer needs to be aware that the Command Team are conscious of the good work carried out by PC Clark, however, the claims were inappropriate given that he also had responsibility as Acting Sergeant during the period of the Norfolk enquiry. PC Clark should be advised of the Command Team’s decision by Chief Inspector King at the earliest opportunity. DCI Bird stated that he will be travelling with PC Clark to see counsel in respect of a current enquiry and that should the matter be raised by PC Clark he will be advised by DCI Bird of the outcome of this meeting”

It was agreed:

[132]The next event was the meeting with counsel which was in London later that day, however, the management committee minutes must be considered in the light of the meeting which took place between CI King with the Claimant the following day, 11th May. That meeting is recorded by CI King in a three page Briefing Paper. It is also recorded in the pocket book of the Claimant.

[133]CI King candidly stated that the minutes of the management meeting of 10th May were written by him. As already noted the relevant part of the minute is headed “Discipline Matter”. Mr Stanley and CI King both said that was a mistake. It was not, they said, a discipline matter but a management meeting. The point is that if it was a discipline matter or meeting then it was plainly fundamentally flawed. No one has suggested otherwise.

[134]The reason is that common fairness, not to mention the Essex Police Procedures, require that before a disciplinary decision is taken the accused person should have an opportunity of commenting upon the allegations made against him. (I was referred to the voluminous Home Office Guidance, on Misconduct Procedures, in particular pars 3.3 and 3.11) The minute quite unambiguously records an agreement to a decision to post him to either Canvey or Hadleigh and that the claims he had made were inappropriate. There is of course no suggestion that he was aware that these matters were being considered by the management meeting at all.

[135]The minutes also record just two matters which can be said to be reasons for the decision. The first is “the group agreed that PC Clark had made inappropriate claims on his gold form” referring to overnight accommodation during the Norfolk enquiry and inappropriate claim for overtime. That is a reference to the £12 for the flowers and the time taken to drive from Norfolk to Essex together with the claim for the full shift at Essex from 14.00 to 22.00 hrs on the same day. The second point is in the words “it would appear that the subsistence form had subsequently been submitted through the Command Team for authorisation which led to an enquiry being carried out by A/Detective Inspector Kreyling.” That appears to be a reference to what Mr Kreyling described as the deceitful act of re-submitting the claim to CI King without telling him that it had already been queried by Mr Kreyling.

[136]It is correct that £12 for the flowers and the overtime claim had been challenged by Mr Kreyling on 20th April. It is not correct that they had been challenged by Mr Bird. Mr Kreyling was not at the meeting on 10th May and Mr Bird was. That false information came from Mr Bird.

[137]The criticism that the subsistence form had subsequently been submitted through the Command Team for authorisation is not one which had been communicated to the Claimant by anyone at any stage.

[138]The minute on its face can only be properly described as a minute of a discipline matter. The substance of the minute cannot be described as a management decision. It may very well be that, for reasons which were subsequently given by CI King to the Claimant on 11th May, the same decision could have been reached for purely management reasons. But that is not the point. Looked at on its face, the minute records a meeting which would merit the description attributed to it by the Claimant namely a kangaroo court. It was a kangaroo court, because those attending jumped from the accusation to the condemnation without pausing to find out what the accused person had to say about it.

[139]The Briefing Paper states that it relates to a conversation that CI King had with the Claimant at 12.30 pm on Tuesday 11th May in respect of a report submitted by A/Detective Inspector Kreyling dated 05.05.99. The Briefing Paper mentions only the first of the reasons which had founded the decision of the management team, namely the claims in respect of the £12 and the four hours overtime on 15th April. The Briefing Paper does not mention the subsequent submission of the same claim to CI King instead of to Mr Kreyling. However, it is clear that that was mentioned, albeit not in terms of any alleged deceit. In the Claimant’s note of the meeting he records that he was told that Mr Kreyling had reported that the Claimant had gone over his head in submitting the report to CI King.

[140]The Briefing Paper includes the following:

“I informed PC Clark that the purpose of the meeting was to explain to him the decision made by the Command Team on 10.05.99 that he would be transferred from the Divisional Support Team to another position within the division… I informed PC Clark of the spurious claims that he had made in April 1999 on his G70 gold form, I then referred to the March 1999 subsistence claim form and I informed him that it is my belief that the claims for 04.03.99 are unjustified as were the 05.03.99,… I then referred to a claim dated 26.03.99 and informed him that the claim was unjustified…”

[141]None of the claims for 4th 5th or 26th March 1999 are ones that are referred to in Mr Kreyling’s report of 5th May. CI King records on the Briefing Paper that he conceded that the claim for 26th March was justified. I have heard no more about those of 4th and 5th March 1999.

[142]So far in the Briefing Paper there is nothing to suggest that the decision made the previous day had been a management decision, and everything suggests that it was a discipline matter. The Briefing Paper then continues that CI King told the Claimant that he was to be posted to either Hadleigh or Canvey and CI King asked whether he had a preference. At that point it is recorded that the Claimant was upset by this decision. It is at that point that there is the first mention of any management issue in these documents. CI King records that he told the Claimant that he had been on the Divisional Support Team for some three and a half years and at some stage in the not too distant future he would have had to leave the DST due to the tenure policy introduced by the Rayleigh Command Team. CI King then records what appear to have been attempts to persuade the Claimant that this was a good move for him, and CI King records that he would state to PS Bowers (who I take to be an officer at Hadleigh) “that the reason for the posting was PC Clark’s period of tenure coming to an end”. This assurance was presumably meant benevolently, but it is quite clear that it was not true: the true reasons were the expenses claims.

[143]It is clear from the Briefing Paper that the Claimant was not responding well to what he was being told. CI King noted “should it become apparent that PC Clark was not working to the required standard then he would be posted to a shift”. It is clear from the Claimant’s notebook that he regarded this as a warning and that seems to me to be the natural interpretation of it.

[144]The Briefing Paper then continues as follows:

“PC Clark asked me what assurance I could give him that he will be “protected”

I asked him what he meant by being protected. He replied “from John Kreyling” I informed PC Clark that he needed to be aware and realise that if he had done anything wrong, then it was only appropriate that he should accept any discipline handed out to him, however, if any fellow officer of supervisory rank was acting improperly, that would be dealt with by myself or other members of the Command Team or myself. PC Clark then made reference to the effect that he had completed a whole pocket book in relation to conversations he had had with A/DI Kreyling. I asked him for what purpose a record was kept. He informed me that A/DI was carrying out a check on the Divisional Support Team and that both himself and John Kreyling had become involved in a number of confrontational situations which had been reported to DI Bird. On one occasion a confrontation resulted in PC Clark considering a submission of a grievance against A/D Kreyling. I informed PC Clark that I had studied the last four appraisals and noted that he had come into conflict with a number of officers. PC Clark then related to the incidents which occurred at Southend involving Detective Inspector Frampton and Chief Inspector Down….”

[145]There then follows an account of a discussion of the Claimant’s rank and of the Force policy on tenure. CI King informed the Claimant that he would not still retain the rank of Detective Constable and that he would no longer receive his Detective Allowance.

[146]The paper then records what must have been an attempt by CI King to persuade the Claimant that a move was in the best interests of his career It is followed by these two paragraphs:

“PC Clark then referred to a report that he submitted and which was received by Chief Inspector Botrill on the afternoon of 10.05.99 in respect of an incident in November 1997 involving DS Kreyling. PC Clark asked what was going to happen in respect of the report. I informed PC Clark that DCI Bird was obtaining a duty report from DS Kreyling, once that report had been received both this report and the report from DS Kreyling will be sent to Complaints and Discipline Department. I asked PC Clark why did he submit the report. He stated that it was his responsibility as Disclosure Officer in respect of the Burton/Read case. PC Clark then asked the question “what do I do now in respect of this particular case. I take it that I have now finished with it and won’t have anything to do with it”

. I informed PC Clark that he had a professional responsibility to ensure that he provides support to members of the Divisional Support Team and should anything be asked of him in respect of that particular case, then he should still undertake to carry that out”.

[147]The Claimant’s pocket book note contains references to attempts he made to defend himself against the accusations partly by stating that Mr Kreyling was picking on him, that he had acted on advice from the Federation and that he had not done anything wrong.

[148]Having re-read these documents, and considered the attempts by Mr Stanley and CI King to explain why this was a management decision properly reached rather than a fundamentally flawed disciplinary procedure, I have no hesitation in concluding that it was a fundamentally flawed disciplinary procedure.

[149]CI King reported back to Mr Bird on 12 May 1999 in a document headed “Claim Form March 1999 from PC Clark….”. The document states that CI King informed the Claimant that CI King felt it was inappropriate for him to make claims in respect of 4,5 and 8 March 1999, that he accepted that claims for 10th , 15th and 26th March were legitimate and that another claim dated 10th April should have been for 15March 1999. He suggested that the form be returned to the Claimant for him to consider his claims as they may have been made in error, “having been advised incorrectly by the Police Federation”. There is no mention of the April claims in respect of Norfolk. As already stated eventually all these claims were pursued by the Claimant and paid. At no time did the management team record any repetition of the allegations by Mr Kreyling that the Claimant had throughout this matter been deceitful or that he might have committed a criminal offence.

[150]The other report dated 5th May which has figured large in this case is the one the Claimant wrote report as advised by Mr MacInnes. It is headed “Read File – Defendant [M] – action carried out by DS Kreyling”. It is addressed to CI Bottrill. It reads as follows (the paragraph numbers inserted by me to correspond to the paragraph numbers used in Mr Kreyling’s response dated 11th May 1999): “1.] Since November 1997 I have been the Officer in Charge of a serious burglary investigation involving several burglars and handlers of stolen property 2.] One of these defendants is a man called M. 3.] Case papers have been submitted and we are awaiting pleas and directions. 4.] It has been brought to my attention that M intends to use as his defence the fact that he knew several police officers and had given information in the past and had he known the vast amount of property he had taken had been stolen he would have notified the officers he knew. 5.] Questions could be asked regarding the way M was originally arrested by DS Kreyling. Firstly DST Officers had intended to carry out the arrest and search of M’s property, but at the request of DS Kreyling he was given the task of arresting M as it was stated that the defendant lived and worked in his area and he might be able to obtain intelligence. Intelligence was such that it was believed that M had been handling stolen property over a protracted period from burglars from the Rayleigh Southend and outside Force areas. 6.] On Thursday 20 November 1997 DS Kreyling and DC Binks attended M’s shop in … and DS Kreyling arrested M for suspicion of handling stolen property, after telling him the reason for his arrest. 7.] After a while, DS Kreyling had a conversation with M as a result of which he de-arrested him and left the premises. 8.] I am informed that M had stated that he had appointments and it was inconvenient. An appointment was made for him to be arrested by other officers later that day. At 5.40 pm the same day DC Binks arrested M and seized papers and receipt books. M was interviewed by DC Binks and myself and had to be re-interviewed at a later date. Page 2 para 1] During this time M brought to the police station two items which he stated he had received from either Martin Reed or Robbie Burton. Page 2 para 2] As I felt there was futher evidence to obtain I had search warrants executed at both his business and home address is on 26.02.98 and further receipt books were seized. Page 2 para 3] Throughout the investigation M has not cooperated with interviewing officers. Page 2 para 4] on Monday 10.05.99 I am to attend a case conference relating to all the defendants in Chambers in London. Page 2 para 5] I am very concerned that what is going to be alleged by Counsel and I feel the actions of DS Kreyling could undermine the case for he prosecution and should be brought to the attention of our Counsel. Page 2 para 6] During the investigation I discovered DS Kreyling had been using M as their jeweller. I am surprised this was not disclosed at the time of M’s arrest and he disclosed it during the interview to the arresting officers.

[151]This is one of the passages in the Claimant’s Report which Mr Kreyling was in due course to describe as slanderous. The Report continued: Page 2 para 7] The points I wish to be covered are: Page 2 para 8] 1. Why did DS Kreyling not disclose his involvement with M? Page 2 para 9] 2. Why was he de-arrested at about 9am and then re-arrested at 17.00 about eight hours later after knowing why he was under arrest. He would probably have destroyed any evidence which had been in his shop or home address? Page 2 para 10] 3. Seeing as the intelligence which was available and DS Kreyling’s knowledge that Martyn Reed had stated he had been taking most of his stolen property to M and, in turn, M had supplied Reed with stolen property from an armed robbery and a full search should have been carried out at the time of his arrest. Page 2 para 11] 4. As Disclosure Officer DS Kreyling has never informed me of the earlier arrest and I should have been in the position to enter it on the MG 6E4PS because it must undermine the case of the prosecution. Page 2 para 12] 5. Why was M allowed to carry on his work in the normal way and causing him no loss in earnings when Police officers were held on duty incurring overtime and extra costs? Page 3] I consider DS Kreyling’s actions to be negligent and a misused loyalty to the jeweller may be the reason. I have spoken to complaints and discipline at Headquarters and have been advised to put this report to my line supervisor. I submit this report for your consideration.” Page 2 para 7] The points I wish to be covered are: Page 2 para 8] 1. Why did DS Kreyling not disclose his involvement with M? I submit this report for your consideration.”

Page 2 para 8] 1. Why did DS Kreyling not disclose his involvement with M?

[152]There was an issue as to when and to whom the claimant submitted his report dated 5th May 1999. In his witness statement he states that before writing it he contacted Complaints and Discipline and spoke to Superintendent Newman. Superintendent Newman told him to address the report to CI Bottrill as head of personnel at Rayleigh who would then pass it on to his department and in turn to the CPS. The Claimant adds that he has never received a reply to his report and doubts that it ever reached Complaints and Discipline. He does not in terms state when and to whom he handed it.

[153]The earliest written reference to this report made by the Claimant is one in his notebook for 7th May 1999. Immediately after the note of that meeting he wrote the words “Report ref disclosure”.

[154]There is also a reference in a document which was prepared for Complaints and Discipline after the Claimant had stopped work in 1999. It was submitted in November 1999. In that document he refers to a meeting he had with Mr Bird on Friday 7th May 1999 referred to above. It is after describing that meeting and saying that it had concluded, that in that document the Claimant says that he submitted the report to CI Botrill referring to the disclosure issues.

[155]Later in the document submitted to Complaints and Discipline under the heading “Allegations King” the Claimant again refers to the submission of his report. In that connection he says that it was less than twenty four hours after he submitted the report to the Command Team that he was told by CI King that he would be posted to a new position. That conversation with CI King is unquestionably dated to 11th May 1999.

[156]Evidence from the Defendant’s witnesses is to the effect that it was actually received on Monday 10th after the meeting of the management team earlier in the day to which I referabove. Mr Stanley says that the document was handed to him by the Claimant at some time after the meeting on 10th May. The Claimant says that it was put into Supt Botrill’s tray. Supt Botrill says that he did not see it, because he was working elsewhere in Essex for the days before the meeting on 10th May.

[157]I find that the Claimant submitted the Report of 5th May 1999 some time after his meeting with Mr Bird on 7th May. I also find that it did not come to the attention of any member of the management team before their meeting on 10th May. Whether the Claimant left it in Supt Botrill’s tray or whether he handed it to Mr Stanley, is immaterial. I accept that he spoke to Mr Stanley about it.

THE TRANSFER TO HADLEIGH

[158]The Claimant was duly posted to Hadleigh. For some three to four months he carried out the duties of a uniformed officer. He was not harassed by anyone. But he felt humiliated by the return to uniformed duties in the circumstances described above. However, he remained on record as the Disclosure Officer and Officer in Charge of the case for the trial that was due to start in October 1999. The actual functions were carried out by Rayleigh by PC Dovaston and the two of them remained in regular touch by telephone. At some point it became clear that the work was too much for one man. The Claimant states that there were over 200 witnesses and more that 1500 exhibits. He asked for permission to go to Rayleigh to work for fourteen days before the start of the trial. While he was there he was not bullied but neither did he have any direct contact with Mr Bird or any other members of the management team.

Mr KREYLING’S RESPONSE TO THE CLAIMANT’S REPORT

[159]In order to understand what happened at the beginning of the trial in October, it is necessary to record Mr Kreyling’s response to the report of the Claimant dated 5th May 1999. Mr Kreyling’s response is dated 11th May and is addressed to DCI Bird. I shall set it out in full: “My report in answer to the content of PC Clark’s is as follows; Page 1. 1. Para 4 Prior to my visit to M’s shop on 20th November 1997, I had not previously met him. 2. Para 4 Prior to my visit to M’s shop on 20 November 1997 and since that date I have never received or requested from M any information”.

[160]I interpose to note that these two paragraphs are obvious errors. Mr Kreyling must have forgotten about his visit on 18th November 1997. The response continues: 3. Para 4 Prior to November 20 1997, I had no knowledge to the effect that M had acquired a vast amount of property which had been stolen. 4. Para 5 To the best of my recollection, officers from the DST had not intended to arrest M on 20 November 1997 as they were already dealing with prisoners from this particular operation. 5. Para 5 “Intelligence was such that it was believed that M had been handling stolen property over a protracted period from burglars from the Rayleigh, Southend and outside Force areas” means , “ It was suspected that M had handled stolen goods.” 6. I arrested M on suspicion of handling stolen goods and de-arrested him, as I recall, because he had important customers at his shop premise, who always attended on a particular Thursday when business amounting to a lot of money took place. As I recall, I de-arrested due to an explanation he gave me and if I had not done so, could have opened Essex Police to civil litigation and a requirement to pay a large amount of monies to M. 7. Para 8 Where did PC Clark obtain this information?

[161]I interpose to say that the answer the Claimant gave to this question in his evidence before me was that the information came from DC Binks. DC Binks’ statement in the criminal proceedings is dated 13th March 1998 and does not refer to the visit on the morning of 20th November 1997. He made a statement on 21 May 2001 (I presume for the purposes of the inquiry by Complaints and Discipline). It differs on one point from Mr Kreyling’s account, in that it states that the people at the shop were accountants, not people doing business. Mr Bird referred to them as auditors (see para 40 above). Mr Kreyling’s response continues. 8. Para 8 Arrangements were made for M to be arrested later that same day by DC Binks. Page 2 9. Para 5 Please have PC Clark evidence his concerns in respect of allegations by M’s counsel. 10. Para 6 Please have PC Clark evidence this slanderous remark. 11. Para 8 Please have PC Clark evidence this slanderous remark relating to “my involvement with M”.

Page 2

[162]I interpose to say that the Claimant’s information as to Mr Kreyling’s involvement with M came from M when the Claimant interviewed M following M’s arrest late on 20th November. This observation by Mr Kreyling is to be distinguished from his stance in the present proceedings. As already stated, in the present proceedings Mr Kreyling set out his family’s connection with M in his witness statement. The papers before me do not evidence when Mr Kreyling first made those admissions. He did not make them to the Claimant in 1999. Mr Kreyling’s response continues:12. Para 9 Please have PC Clark evidence this remark.

13. Para 10 Please have PC Clark evidence this remark.

14. Para 11 PC Clark was aware of M’s earlier arrest.

15. Para 12 Officers were not held on duty incurring extra costs, they were dealing with other matters connected with the operation. Page 3

16. Para 1 PC Clark should evidence this statement. This report is submitted for your information as felt necessary in this matter”.

Page 3

[163]The Claimant did not see this document while he was still Disclosure Officer or at any time before he retired from the police force.

[164]I invited Mr Norman to explain to me the legal basis, if there is one, for the concern that arresting M on the morning of 20th November might have exposed the Essex Police to civil litigation and the requirement to pay a large amount of monies to M (see para 6 of Mr Kreyling’s response). Mr Kreyling’s explanation is preceded by the words “as I recall”. I have not seen any document, contemporaneous or other, referring to possible litigation or large losses.

[165]Mr Norman submitted, as is undoubtedly the case, that police forces regularly face claims for compensation arising out of arrests which are alleged to be wrongful, in the sense that they give rise to claims for false imprisonment or malicious prosecution. Mr Norman also submitted that an otherwise lawful arrest can be challenged as an abuse of power if it is a disproportionate response in a particular set of circumstances. That is correct, but I did not find this submission helpful in relation to the facts of this case.

[166]On the facts as stated by the Claimant and DS Dovaston, there can have been little reason to fear that the arrest could have been challenged in civil litigation.

[167]There is no record in Mr Kreyling’s notebook of anything that could reasonably support a fear of a claim for a large amount of damages. Mr Kreyling’s evidence to me is that he was only asked to carry out the arrest that morning and knew little of the facts relating to the investigation. Looked at on the basis of the factual position as Mr Kreyling described it in evidence, I am unable to see on what factual basis he could have reached the conclusion that taking M to the police station in the normal way could have exposed Essex police to civil litigation.

[168]However, I am not conducting an enquiry into this matter and do not put that forward as a finding of fact in relation to the events of 20th November 1997. Rather I am looking at the explanation with a view to considering how at the time, it might have been expected to appear to any third party to whom it might be disclosed. By third party I include the Claimant as Disclosure Officer, the CPS, and counsel for the Crown and the various defendants. If such persons had already formed any concerns or questions as to why Mr Kreyling treated M as he did, in my judgment the explanation given by Mr Kreyling in his response of 11th May could not have been expected to be regarded by them as satisfying their concerns.

[169]Mr Bird regarded the situation created by the Claimant’s Report as a serious one. He attended a conference regarding the impending trial with counsel in London in company with the Claimant on 10th May 1999. During that conference he received a telephone call from CI King informing him that the Claimant had submitted a report questioning the integrity of the arrest of M and of Mr Kreyling. CI King had immediately asked Mr Kreyling for his pocket book in order to check whether the pocket book was consistent with the allegations raised by the Claimant. He was satisfied that the two are consistent, and so that what the Claimant had written was not based on any disputed facts as to what had happened.

[170]The pocket book does not provide an explanation which can be regarded as satisfying any concerns there might be about the matter. Mr Bird in his witness statement states that he did then tell the Claimant that he had supported the decision to delay the interview of M although it is not clear from that phraseology that he supported exactly what had been done, or with what knowledge he made that decision. Mr Bird does not say in his witness statement that Mr Kreyling ever said anything to him about his family and M.

[171]Mr Bird states that he asked the Claimant why he had not expressed concerns to Mr Bird before, and he states that the Claimant had no answer to that question. Mr Bird said that he was extremely angry and could not understand why the Claimant was doing what he was. A report such as this, he says in his statement, could potentially have undermined all the good work that had taken place in this investigation, including, that of the Claimant himself. This part of the statement is difficult to understand. It may be that he is speaking of his state of mind at a time when he did not yet know that the contents of the report were consistent with Mr Kreyling’s pocket book. Otherwise the implication of the statement must be that the report should not have been made, notwithstanding that it raised genuine concerns which might undermine the prosecution case. If that were the true import of what he was saying in his statement, that would be consistent with the Claimant’s contention that he, the Claimant did keep Mr Bird informed, and Mr Bird told him to withhold the information concerning Mr Kreyling’s behaviour over the arrest. Mr Bird denies giving such an order.

[172]On 19th May 1999 Mr Bird wrote a memorandum addressed to Superintendent Stanley. It includes the following:

“Forwarded herewith are copies of the report from PC 1588 Clark and Acting Detective Inspector 274 Kreyling of which you have knowledge for onward transmission to Complaints and Discipline. [These are the reports of 5th and 11th May]. The original report has been forwarded to the Crown Prosecution Service for their information and attention. The Crown Court Trial for M and a number of other defendants is due to commence on 04.10.99. PC Clark raises issues in his report that bring into question the integrity of ADI Kreyling and therefore the investigation as a whole. ADI Kreyling addresses some of these issues in his report, and I feel it may be of use to Complaints and Discipline if I briefly outline the background of the investigation…”

[173]There then followed two paragraphs relating to the investigation. These include “It was felt unlikely that stolen property would be recovered from M’s shop”. It is not clear where that information might have come from, since it was not the view of the Claimant or DS Dovaston. The report then continues:

“I was made aware at some stage during the day on 20.11.97 that M had been de-arrested because of work commitments and was going to be interviewed later in the day. Having heard an explanation from the officers involved I was in agreement with that course of action. I do not believe the investigation has been undermined or lacks integrity, and this is the view I have expressed to the Crown Prosecution Department. As PC Clark has made contact with the Complaints and Discipline department prior to the completion of his report, I feel it is appropriate for them to have sight of this report. Report forwarded for your information and onward transmission to Complaints and Discipline.”

Report forwarded for your information and onward transmission to Complaints and Discipline.”

[174]This is a troubling document in relation to the Claimant’s allegation that he was told to withhold the information and not disclose it. Superintendent Stanley said in evidence that he could not remember seeing this document. If it had reached him it would have been his responsibility to forward it. Mr MacInnes stated that before the trial of this action he had not seen the Report of Mr Kreyling dated 11 May 1999 or this Report dated 19th May 1999. It was suggested to him that it might have got lost. Mr MacInnes would not accept this, and neither do I. He said it was a document he would have wanted to give to prosecuting counsel. The Claimant gave evidence that he did not have this document and first saw it in the bundle prepared for this trial.

[175]Mr Bird in his witness statement says this: “Superintendent Stanley said that if I was content that the investigation had been conducted with total integrity, then it was sufficient to reveal it to the CPS and there was no need at that stage to inform the Complaints and Discipline department at that time. I duly took the report to the CPS and outlined what had occurred. The Report was retained by the CPS and was the subject of a PII Hearing on the first day of the trial where the judge decided that it was not necessary to disclose it to the defence. I do not recall the CPS expressing concern or criticism about the M aspect of the investigation”.

[176]There can be no doubt that the CPS was expressing concern about the aspect of the investigation relating to M’s arrest. On 12th October 1999 Mr MacInnes wrote a two and a half page report about the case against M. He was concerned that the evidence against M was weak. His report includes the following: “It then struck me that there was potentially further complications in that I did not know exactly why M had not been arrested when originally spoken to and the premises effectively sealed and items of jewellery within the shop seized. It was entirely possible, I felt, that the Crown’s case could be embarrassed when it came to questioning from a co-accused as to the significance as to the lack of any stolen property found at M’s premises. In addition, I am afraid I was curious as to what exactly had happened. To this end, I raised the position regarding the initial arrest de-arrest and re-arrest of M and asked for a report. I felt that this was something which would need to be discussed with counsel and I therefore asked the officer to provide either a written report or a report in the form of a MG6 as this was something that would have to be considered in the light of the Criminal Procedure and Investigations Act in relation to unused material. As it transpired, this was considered at a PII application at the start of the trial and it was felt that the information obtained from the officer was not either of assistance to the defence or undermining the prosecution case. I have been asked to provide this report explaining why it was that the request was made to the officer in the case for a report concerning the circumstances of the arrest of M and would emphasise that I do not have access to any of the case papers. To the best of my recollection and belief however, the reasoning behind the requests for an explanation are exactly as stated above. I do not believe that there would be a written record on my papers asking for a formal report. I would just add that the circumstances of the detention of M were disclosed to [prosecuting counsel] who agreed with my indication that it was essential that the prosecution team be made aware of all circumstances surrounding all aspects of this case”.

[177]There is no doubt that there was some discussion of these issues at the start of the case. There is also no doubt that information as to the arrest and de-arrest of M had been communicated to prosecuting counsel and the CPS in the form of the Claimant’s report dated 5th May (I shall refer below to this at para 182). I am unable to conclude that the reports dated 11th May and 19th May were made available to CPS. Mr Bird himself was saying that there was no need to inform Complaints and Discipline Department at that time.

[178]On balance, with some hesitation, I conclude that the two reports of 11th and 19th May were probably were not communicated in documentary form to prosecuting counsel or to the CPS. The account which appears in Mr Kreyling’s pocket book was given to them at a late stage before the trial. He was asked questions about that in evidence at the trial, and it is clear from the passages of the transcript upon which he was cross examined before me that the pocket book had then appeared but only very recently. I have seen nothing to suggest that by that time anyone had seen any comment by Mr Kreyling on dealings between any member of his family and M.

[179]It is difficult for me to assess the significance of Bird’s concerns as to the effect of the Claimant’s Report of 5th May 1999 on the trial. The Claimant’s Report did not contain any factual information that M did not already know. M knew the circumstances of his own arrest and what he had said in interview. So it seems unlikely that the Claimant’s Report could undermine the prosecution case against M. I do not know what the position might have been in relation to the co-accused (referred to by Mr MacInnes in his Report of 12th October 1999). The concern of Mr Bird may have been about that, or it may have been a concern that Mr Kreyling’s actions (which he had approved after the event) might be thought to have left the prosecution with a weak case, that what the Claimant was doing was drawing attention to that, and that Mr Kreyling’s explanation might appear less than convincing. Since Mr Bird did not give evidence orally, he could not be asked. In his witness statement the only concern about the Report he refers to is that it contained serious allegations against Mr Kreyling which the Claimant should only make if he was sure of his facts and had considered carefully.

[180]On 24th September 1999 solicitors for M wrote to Mr MacInnes concerning the unused material which he had made an appointment to view at Rayleigh Police Station the following week. The solicitor asked for an opportunity to interview Mr Kreyling. He asked for confirmation that Mr Kreyling had not made any other statements or notes that had not either been included in the prosecution witness statements list or in the unused material schedule that had been served upon him. He asked for confirmation as to whether any statement had been taken from an officer “by the name of DI Kreyling”, meaning Mr Kreylings brother.

[181]In his witness statement the Claimant states that he understood this letter as a suggestion that he was withholding information and he consulted CI Bottrill. CI Bottrill replied and confirmed this with a memo which read: “On Friday 1st October 1999 you spoke to me in relation to the above defendant [M] and asked for feedback, as you had not received any update following your submission of an A 57 in April of this year [that is a misdated reference to the report of 5th May 1999]. I am now informed that your report was presented to the CPS and in his opinion, the matters described will not have any bearing on the case. Your original report is retained by him together with the rest of the file. My advice to you remains the same as per our earlier conversation i.e., you answer all questions posed truthfully and if you do not know why certain actions were taken you say so, even if you feel this may cause you embarrassment ”.

[182]At about this time the report of the Claimant dated 5th May was available to Mr MacInnes. In his witness statement Mr MacInnes states that he received it from the Claimant. At the same time he was shown a copy of Supt Bottrill’s memo of 1st October. Mr MacInnes states that he had not previously received the report and neither he nor the Claimant at this stage had any comments upon it from Mr Kreyling. He states that it was not his opinion that the matters described would not have any bearing on the case and he had not told anybody that that was his opinion. I accept that evidence. I prefer the evidence of Mr Stanley (at para 174 above) and Mr MacInnes to that of Mr Bird.

[183]At this point the Claimant was removed as Disclosure Officer and Officer in the case.

THE THREAT OF DEFAMATION PROCEEDINGS

[184]The Claimant states in his witness statement that at the start of the trial he went with Mr Bird into an interview room at the Crown Court. In Mr Bird’s witness statement he states that the Claimant said that he, the Claimant, believed that Mr Bird thought that the Claimant had leaked the contents of his report to M’s defence. According to the Claimant Mr Bird told the Claimant that he did not think that the Claimant had spoken to M’s solicitor. But the Claimant says Mr Bird went on to say that the Kreyling brothers were considering slander writs against him and that Mr Bird had advised him not to submit the report and depending upon what he said at the trial the Kreyling brothers would decide whether or not they issued slander writs.

[185]According to the Claimant Mr Bird went on to say that he would back them, that he held the rank of Chief Inspector whereas the Claimant held the rank of Acting Sergeant and who did he think they were going to believe. The Claimant says he did not wish to be in Mr Bird’s company and left the room.

[186]According to Mr Bird’s witness statement Mr Bird said he did not know of the Claimant’s reasons for submitting his report and that the decision to de-arrest had been an operational decision, which he had endorsed. He also added that he, Mr Bird, did not believe that the Claimant had any grounds for questioning the integrity of Mr Kreyling.

[187]Mr Bird’s statement then includes the following statement: “I also told him that I had deliberately not discussed the issue with him since the day of the conference [a reference to 10th May 1999] because of the possibility of action that John Kreyling may or may not be considering”.

[188]Mr Bird does not in terms identify the possible action as being a defamation claim, although (in the light of the other evidence referred to below) I find that that is what he was referring to. Mr Bird’s statement goes on to say that the discussion then concluded that a short time later the Claimant asked whether he should go to a solicitor because of what he, Mr Bird had said. Mr Bird replied that he did not know if Mr Kreyling intended to take the matter further, so that it was a decision he would have to make. Mr Bird states that he did not make any mention of evidence that the Claimant might have been giving at court, and denies telling the Claimant what he should or should not say.

[189]Mr Bird had information from Mr Kreyling. Mr Kreyling had referred to the Claimant’s Report of 5th May as slanderous in his own response of 11th May. He does not in terms confirm, but neither does he deny, that he proposed to take libel proceedings. But it is important to note (in his favour) that it was not himself, but Mr Bird, who chose to communicate that fact to the Claimant. Mr Kreyling’s witness statement contains the following:

“At paragraph 6.14 of the Particulars of Claim, the Claimant mentions proposed libel proceedings. My brother and I had spoken together about how we could deal with the serious allegations that Dave Clark seemed to be making against us, and I did tell Graham Bird about our discussions. I told my brother that the Claimant had been calling me basically a ‘bent’ officer, which I am not, and which I would not tolerate. …”

[190]The Claimant did see a solicitor. He saw Mr Sheldon, a solicitor with experience in criminal litigation whom the Claimant had known for ten years or so and with whom he has had frequent and regular dealings over routine criminal matters on a professional basis.

[191]Mr Sheldon gave evidence of what happened on 4th October 1999 when he had attended Basildon Crown Court on a matter unrelated to any in which the Claimant was involved. He stated that the Claimant was visibly distressed and asked if he could see Mr Sheldon for advice on a personal matter. The Claimant was shaking with distress concerning an issue of giving evidence in court that day. He told Mr Sheldon that he was required to give evidence in a prosecution concerning an alleged conspiracy to handle stolen property, that he had been the officer in charge of a team of twenty officers and had been acting under the supervision of a Detective Chief Inspector. Mr Sheldon then recounts the summary of the case, and of the Claimant’s concerns about it, as expressed to Mr Sheldon. These concerns were related to the fact that the suspect had been arrested, de-arrested and left with an opportunity to dispose of any evidence, and that the arresting officer had some personal connection with these suspects, and was an officer senior to the Claimant.

[192]Mr Sheldon was informed that the Claimant had submitted a report to the CPS in which these matters had been mentioned. The Claimant’s distress had been triggered by a conversation with the senior officer at the court that day to the effect that as a junior ranking officer, the Claimant would be less likely to be believed and moreover there would then follow civil proceedings for defamation, at which, again the Claimant would be less likely to be believed due to his lower rank. Mr Sheldon advised him that much more serious consequences would follow if he withheld evidence and were guilty of perverting the course of justice.

[193]In cross-examination Mr Sheldon made clear that the Claimant wanted to give evidence, since he was Disclosure Officer, and to bring forward his concerns that the investigation might be compromised.

[194]The Claimant in his witness statement described his meeting with Mr Sheldon on 4th October 1999. He stated that he felt very worried at the threat of being sued for slander. After speaking to Mr Sheldon he went to Basildon Police Station for dinner and met Mr Bird. He states that Mr Bird on leaving advised the Claimant to remember, what he, Mr Bird had said, which the Claimant took as a warning.

[195]On returning to the Crown Court he met Mr MacInnes in company with counsel. Suddenly they were joined by Detective Chief Inspector Paul Kreyling, who burst into the room demanding to speak to Counsel. He was shouting and looked very angry. Counsel asked Mr MacInnes to escort DCI Paul Kreyling from the room as he was professionally embarrassed as DCI Paul Kreyling was a witness for the Defence. Mr MacInnes described this incident, explaining that DCI Paul Kreyling was furious about being called to give evidence for the Defence and felt that the Claimant’s report had involved him. Mr MacInnes attempted to explain that this was not the case, that he was not mentioned in the Claimant’s report, and that his being called as a witness was at the request of M’s counsel. Mr MacInnes describes the situation as worrying, DCI Kreyling was so angry, and Mr MacInnes was concerned that somebody could get hurt.

[196]At this time Mr MacInnes was still concerned about the events of 20th November 1997. He did not believe that the arrest of M had been in accordance with the Police and Criminal Evidence Act and he was concerned that Mr Kreyling’s pocket book was only submitted at that late stage, and then only after Mr Bird’s permission had been requested. It was his opinion that these matters did seriously affect the outcome of the trial. Four of the defendants were acquitted including M.

[197]Mr MacInnes understood from the Claimant, that the Claimant thought that what Mr Bird had said to him meant that Mr Kreyling and his brother were considering taking libel action against him if he gave evidence against them and that Mr Bird would give his backing to these officers. Mr MacInnes tried to reassure the Claimant that they could not take this action and the Claimant assured him that it would not affect his evidence.

[198]DS Dovaston described the Claimant as extremely stressed at this incident. He stated that the Claimant had told him that the Kreyling brothers were going to take a slander case against him, and Mr Bird was going to support them. DS Dovaston stated:

“He was scared, it was unbelievable”

. In cross-examination he said the Claimant was physically scared, and he could see that by the Claimant’s demeanour.

[199]It is difficult to make sense of this incident. The suggestion that either or both of the Kreyling brothers might sue a fellow (but more junior) officer for defamation on the basis of what was written in the Claimant’s Report of 5th May is extraordinary for a number of obvious reasons. The fact that Mr Bird should have communicated that to the Claimant (as I find that he did) at a time when the Claimant was about to give evidence in the Crown Court on the same topic is even more extraordinary. What Mr Bird said to the Claimant must give rise to serious concern as to whether he was attempting to pervert the course of justice by threatening a witness. But that is not relevant to the Claimant’s claim in this case.

[200]With hindsight, it is not necessary to be a libel lawyer to see that the proposal of the Kreylings would make no sense at all. All that the Claimant had done was to write down the substance of what happened on 20th November 1997, and what M had said in interview, and raised some reasonable questions. On the information now available to me (and the information available to the Kreyling brothers in October 1999), there was nothing untrue in what the Claimant had said about the arrest. It is not necessary to be a libel lawyer to appreciate that there is something unrealistic about a police officer being sued for defamation on the basis of a report he makes to his superior officers of allegations that a suspect has made to him in interview about another officer. And the notion that a police officer might be sued for defamation for what he says in evidence to the Crown Court is even more bizarre. Notwithstanding Mr MacInnes’s assurances to this effect, none of this could reasonably have been expected to be clear to the Claimant at the time. The fact that senior officers were suggesting some proceedings against him is something that he would be bound to take very seriously indeed.

[201]Mr Kreyling was not cross-examined on this. He did not need to be. He is not the one who had talked to the Claimant about slander. He is not to be criticised for his thoughts. None of this could be put to Mr Bird, because he did not give evidence in person.

[202]It is common knowledge that giving evidence in court can be a difficult and stressful ordeal even for those who are accustomed to doing it. This is obvious to judges in many cases. It must have been obvious to Mr Bird, as it was to Mr Sheldon and DS Dovaston, what the effect on the Claimant was of the threat that Mr Bird communicated to him. But nothing was done by Mr Bird to help the Claimant.

ASSESSMENT OF WITNESSES

[203]There was little challenge to the Claimant on his evidence as to what he suffered after 4th October 1999, and so this is a convenient point at which to express my conclusions on the witnesses.

[204]The Claimant is an unusual witness in one important respect. He came to court with a file of Appraisal Reports (some referred to above, and others below) praising his work as a police officer. Some of these Reports are signed by officers who gave evidence for the Defendant in this case. It must be rare indeed for a claimant to carry such ringing endorsement from witnesses called by a defendant.

[205]My own impression of the Claimant was of a careful and honest witness. I have not overlooked that there are features of his personality referred to by the experts, and illustrated by the facts of this case, which make him unusually persistent and single minded. His conviction as to the rightness of his cause could lead him to see things from too narrow a perspective. There is some sign of this, for example in his note book entry for 7th April 1998 (referred to above) where he believed he was being set up by Mr Kreyling in relation to some drugs.

[206]The Claimant also came with the support of a retired senior officer, Mr Davies, who spoke highly of him from personal experience.

[207]The evidence of the Claimant was supported by the evidence of Mr MacInnes and DS Dovaston. I can think of no reason why persons in their positions (currently serving with the CPS and the Essex Police), should come to give evidence in this case other than to tell the truth, and none has been suggested.

[208]Mr Bird made a witness statement dated 8th August 2004. At that time he was still serving with the Essex Police in the rank of Detective Chief Inspector. I am informed that he retired in December 2005 and went to live in New Zealand. His witness statement was admitted under the Civil Evidence Act. The present case was first listed for trial last October, when Mr Bird was available to give oral evidence. The trial had to be adjourned, and I have not had the benefit of hearing his evidence given orally and subject to cross-examination.

[209]At the end of the case, when it was clear what serious allegations were being made on behalf of the Claimant relating to Mr Bird, I expressed my concern at the fact that he had not been available to comment upon those allegations. After that he was contacted briefly on holiday in New Zealand. It is accepted by everyone, including myself, that no adverse inference is to be drawn against Mr Bird merely from his absence. There is no suggestion that he was unwilling in principle to give evidence. Which persons are called to give evidence in civil proceedings such as these is a decision for the parties, not for the Court. I must try the case on the evidence the parties chose to adduce before me.

[210]The Defendant has chosen to present Mr Bird’s evidence only in the form of a written statement under the Civil Evidence Act. That has obvious consequences. He has been unable to comment on a number of points, as noted above. And where his evidence conflicts with that of the Claimant and the witnesses called by him, I am left to compare an untested written statement with oral evidence tested in cross-examination. That would not necessarily mean that I would prefer the latter. But in the circumstances of this case I have found that the evidence of the Claimant and his witnesses is to be preferred. And where there is evidence that reflects badly on Mr Bird, and he has not commented upon it, I have nothing to dissuade me from drawing the inferences that the evidence which I do have suggests that I should draw.

[211]Mr Kreyling was the main witness for the Defendant. He gave his evidence carefully, but there were times when I found his evidence unconvincing. There was an enquiry into the complaints made by the Claimant in this case following his retirement. Statements were taken from DS Dovaston and PC Binks in 2001. The Claimant was sent a number of letters. On 2 August 2001 the Professional Standards Department of Essex Police wrote to the Claimant that they had been informed by the CPS that no criminal prosecution would take place against Mr Kreyling. The letter referred to the time that had passed, and stated that outstanding issues would be addressed by Superintendant Noakes. On 24th September 2001 the CPS wrote to the Claimant that investigations had been conducted by Professional Standards relating to an alleged offence of attempting to pervert the course of justice by interfering with the enquiry. The letter states:

“I came to the conclusion, having considered all the evidence available, that it was not possible to show that DS Kreyling acted in the way that he accepted that he had in order to try and pervert the course of justice.”

[212]On 29th October 2001 the Deputy Chief Constable of Essex Police wrote to the Claimant regarding the outcome of the investigation which was instigated following allegations the Claimant made against Mr Kreyling. The letter stated it was delivered personally by Supt Noakes and included the following: “The allegations were correctly made and I thank you for bringing them to or attention…. I have adjudicated on the misconduct matters, as a result of which two officers have received strong, constructive advice from their Divisional Commander”.

[213]In a letter from Professional Standards to the Claimant’s MP dated 1 February 2002 the two officers were identified as Mr Kreyling and Mr Bird.

[214]Mr Kreyling was asked on a number of occasions whether he recalled being asked about the subject matter of the Claimant’s complaints by anyone in 1998 or afterwards. He said that he had no recollection. So far as 1998 and 1999 are concerned, I accept that evidence. For the period after the Claimant ceased work, I cannot accept that evidence. Mr Kreyling’s answers to these questions were also hesitant, such as “Not so far as I remember”. The sort of conversations referred to in the letters of 2001 are not ones that Mr Kreyling could have forgotten.

[215]There were other topics on which Mr Kreyling’s answers were evasive. He was asked questions about his response dated 11th May to the Claimant’s Report of 5th May 1999. It is to be noted that on 11th May Mr Kreyling did not comment on or deny the allegation that he had been given the task of arresting M at his own request. Asked to explain that, he gave the appearance of not understanding that the question concerned his response of 11th May, and not the factual question whether he had made the request or not. I was not convinced that he failed to understand the question, which was repeated more than once. There were a number of other topics on which I found his answers evasive hesitant and unpersuasive. I cannot regard him as a candid witness.

[216]Mr Stanley gave me a good impression as a witness generally, but he was unwilling to accept what seems to me to be plain, namely that the decision about the Claimant made at the meeting of 10th May 1999 was a disciplinary and not a management one, and as such a flawed decision. I regard CI King’s evidence about that decision in the same way. In his case it is clear that the Claimant did express his concerns about Mr Kreyling more than once, and most importantly as recorded in the Briefing Note. By the time that was written, CI King had received the Claimant’s Report of 5th May. By that time he should have realised that there was something questionable about the allegations of Mr Kreyling as communicated to the meeting by Mr Bird on 10th May. He should have considered that the Claimant had been unjustly treated, and seriously so, and reconsidered his move to Hadleigh. He did call for and check Mr Kreyling’s pocket book. That was not a sufficient response.

[217]I have also considered the oral evidence in the light of the contemporaneous documents. Except where I have indicated otherwise in the earlier parts of this judgment, I find that where there is a conflict between the evidence of the Claimant and the witnesses called by him, and the witnesses called by the Defendant, I prefer the evidence of the Claimant and the witnesses called by him. I find the facts accordingly.

FINDINGS OF FACT ON THE ALLEGATIONS OF BULLYING

[218]I find the allegations set out in the Particulars of Claim para 6 (para 15 above) are made out against Mr Kreyling and Mr Bird, but not against CI King. The matters before mid April 1998 do not directly affect the outcome of this case, since they caused no injury. But they form the background of subsequent events which were cumulative to them. These early matters also prompted the Grievance of 2nd April 1998. I find that all of three, that is including CI King, failed to take the steps that they ought to have taken to bring the mistreatment to an end in response to the Claimant’s complaints.

[219]In my judgment the actions of Mr Kreyling (humiliation, criticism and shouting) from the time he became the Claimant’s Manager up to and including the writing of the letter dated 5th May 1999 are properly to be regarded as bullying. I accept the Claimant’s and DS Dovaston’s evidence. In my judgment the Claimant has also established that Mr Kreyling’s letter of 5th May was a form of bullying. The letter grossly exaggerated the criticisms that could properly have been made of the Claimant arising out of his submission of his claims for expenses. It contained material misrepresentations to the effect that the Claimant had made false or improper statements to Mr Kreyling. The Claimant did not know the contents of the letter, but by 11th May 1999 he knew that there had been some report from Mr Kreyling that had given rise to the removal to Hadleigh.

[220]The bullying was reported to CI King and he did make suggestions as to how the confrontations between the Claimant and Mr Kreyling should be handled by each of them. In the absence of more specific complaints to CI King before 11th May 1999, it cannot be said that what he knew was such that he ought to have foreseen that the Claimant would suffer injury.

[221]The meeting of 10th May 1999 was not attended by Mr Kreyling. Mr Bird did attend and made a materially false statement, namely that the Claimant had been challenged by Mr Bird on his expenses claim, and submitted it again through the Command Team after that. Mr Bird’s actions must be viewed in the light of my finding that since April 1998 he knew that the Claimant was complaining of bullying by Mr Kreyling, and he had returned the 2 April 1998 Grievance to the Claimant on the understanding that it would be resubmitted if the bullying recurred.

[222]Mr Bird knew that the issues between Mr Kreyling and the Claimant had not been resolved. Mr Bird should have investigated Mr Kreyling’s report of 5th May 1999 in the light of that.

[223]Instead he adopted Mr Kreyling’s criticisms. Moreover, at his meeting with the Claimant on 7th May he gave the Claimant to understand that the Claimant might be moved as a result of the meeting on 10th May. So he had every opportunity to find out what the Claimant might want to say or do about the allegations of Mr Kreyling, but he chose not to take it.

[224]The other officers present at the meeting of 10th May 1999, Mr Stanley, CI King and Supt Bottrill believed what they were told by Mr Bird. They are much less culpable than he. Nevertheless, I have found that the meeting was clearly a Disciplinary Hearing which was obviously defective as such, since there was no opportunity for the Claimant to defend himself. The fact that a tribunal believes that an accused will have no answer to a charge is not a reason for denying the accused an opportunity to be heard. Mr Bird is not recorded as having reported to the meeting what the Claimant said about the accusations. He did not know himself what the Claimant might say, not having challenged him (although he said he had challenged him).

[225]What Mr Stanley, CI King and Supt Bottrill and Mr Bird did was to discipline the Claimant unlawfully.

[226]I find that the Claimant did suffer psychological injury as a result of the events of 11th May 1999, that is by the condemnation by an unlawful disciplinary proceeding and the move which in substance amounted to a demotion by way of punishment.

[227]So the question arises whether any of the officers should have foreseen that this would cause such injury. In my judgment the actions of Mr Kreyling are so serious that he ought to have foreseen that, in the light of the previous confrontations between them, his report of 5th May 1999 was likely to lead to the Claimant being disciplined unfairly and to suffer injury both physical and mental.

[228]Mr Kreyling, Mr Bird and CI King all knew that the Claimant was unable to cope with the treatment he was receiving from Mr Kreyling and Mr Bird, because he complained to Mr Kreyling and to Mr Bird about their treatment of him, and he told all three of them about the treatment he was receiving from Mr Kreyling.

[229]The conduct of Mr Kreyling in relation to the Time Off book, which he demanded and did not return, was a form of bullying. It may well have been possible to have handled this matter to the same effect without bullying. I make no finding as to whether the way that these matters were recorded in the book was correctly done or not. But the manner in which Mr Kreyling carried out his management functions was oppressive. It was oppressive for Mr Kreyling to shout at the Claimant.

[230]The move to Hadleigh may well also have been justifiable on management grounds, if the committee had set about it in the right way. But the Claimant was bound to feel a high degree of injustice at the way in which it was in fact handled. It was clearly foreseeable that perpetrating that injustice would be deeply wounding to the Claimant. Mr Bird intended that he be unfairly disciplined. The others present at the meeting did not. But once CI King had become aware of the Claimant’s Report of 5th May, and spoken to the Claimant on 11th May, he ought to have foreseen how wounding to the Claimant would be the succeeding period which he was to spend in uniform duties. There was time to put that right, or to attempt to put that right in the following weeks, but nothing was done.

[231]The most important event of all on which the Claimant succeeds was the threats which Mr Bird made to the Claimant on 4th October. These were obviously going to cause, and plainly were, during that day, causing the Claimant severe stress and distress.

[232]Neither of these two important matters can be described as the normal pressures of the job of a police officer. Injury to the Claimant’s health as a result of these two matters was reasonably foreseeable.

INJURY AND EVENTS AFTER 4th OCTOBER 1999

[233]The Claimant states that he felt very nervous and stressed and had very bad headaches when he got up the next day, and these went on for several days. When he came to give his evidence he was asked only a few questions.

[234]After several days had gone by he thought that he had been stung by a bee on the side of his head just over his left ear. He went to see his doctor and was diagnosed with shingles. The doctor attributed the headaches to stress and depression. By now he was not able to sleep and had a skin rash between his legs and on his elbows.

[235]Following this a report of sickness absence was completed notifying an absence commencing 18th October 1999 attributed to shingles.

[236]The Claimant sought advice from the head of Police Federation. Following that arrangements were made for a full report from him to be sent to the Head of Complaints and Discipline. I have already referred to some passages in this document.

[237]He then started attending cognitive therapy treatment at Chelmsford. He recalls the stress and depression that he had suffered in 1990, which had resulted in him being absent from work for nine months as a result of his having reported a Senior Officer for corruption and giving unlawful orders. He felt he was now stigmatised again as a whistle blower.

[238]The Claimant describes himself as able to cope with normal stress such as a Police Officer must be expected to submit to. He had also learned from 1990 how to cope with stress. He felt he could cope with the stress that had arisen as result of what he refers to as the petty harassment of Mr Kreyling, but that he could not cope with the stress he felt when senior officers all seemed to turn against him as well.

[239]In his witness statement the Claimant goes on to refer to a number of incidents that occurred following his going absent on sick leave. While he characterises these as harassment, they are not relied on in this action as giving rise to any damage, and for this reason there was no investigation of them in oral evidence.

[240]He described his condition as of the date of making the witness statement in November 2004 as follows. He said he was in his social life constantly on his guard, that he got angry very easily and felt very sensitive to any cut or injury. He could not sleep. He lacked tolerance with his family and friends. His restlessness at night has meant that he and his wife have had to sleep in separate rooms for the past two years and left him affected by tiredness all day. That affected his concentration and his ability to drive. Since 1999 his health had got progressively worse. He woke up with headaches. Paracetamol provided only temporary relief. The shingles returned on another occasion. He suffered from depression feeling unwanted, with total loss of self esteem and mood swings. He has put on weight. he was proscribed Prozac and anti depressants over two periods and suffered from side effects as a result. One was irritable bowel, and another stress related eczema on elbows and armpits between the legs and elsewhere. He suffered abscesses in his ears which gave him the worst pain. He has had twenty seven in all. For these he has received treatment from the Ear Nose and Throat specialist at Southend Hospital, Mr Gatland. He has had to go to hospital on several occasions on account of the abscesses. The pain is worse than any toothache and as a result he has had problems with hearing. Having suffered a permanent 40% loss to his hearing in the high octave area.

[241]From about 23rd April 2003 he has had problems with his heart. He was admitted to Southend Hospital and found to have an irregular heartbeat and a pulse rate of 150. There he has been looked after by Mr Kelly.

[242]He has tried to get back to work, and has in fact spent a period of time working at the Crown Court. That was in March 2004 but after four days at work he was admitted to Southend Hospital with a pulse rate of 130. He was advised to refrain from further work. He applied to drive mini buses for voluntary work and youth organisations, but following a medical examination he was declared not fit enough to have a permit for that. He still hopes to return to work. The Claimant’s wife runs a business of her own. While the Claimant was a serving police officer he obtained permission to help her in her business. Since his retirement he has continued to help her as he did formally, but the work has never been remunerated.

[243]He states that had his employment not been terminated he envisaged staying on in the police force. He would have expected to remain in the force and would have taken the extended period of employment up to the age of 60.

[244]The Claimant’s wife Marion Clark, also gave evidence. She first noticed that the Claimant was upset when he started to be supervised by Mr Kreyling. Mrs Clark had herself been employed by the Essex Police from January 1971, within the Prosecutions Department rising to the post of Office Manager. She retired on taking maternity leave in November 1982. She had in fact worked for Mr Kreyling’s father in the Prosecutions Department.

[245]What she noticed was that the Claimant was having trouble in sleeping, he was having mood swings and was complaining of feeling on his own and not being supported by Senior Officers. He became increasingly stressed. And during the trial in October 1999 she noticed a complete change in his manner. He complained that he was let down by the Essex Police Force and was very upset. He complained that he had pains on the side of his head which were diagnosed as shingles. His health suffered and he again had mood swings after that. He lacked concentration and memory. His sleep pattern was all over the place, so they had to sleep in separate rooms, and on some nights he would not have more than two hours sleep. She too described the other symptoms that he has described.

[246]In cross-examination concerning the appearance of the symptoms she described, Mrs Clark said that she knew the symptoms he had suffered in 1990 and that initially he was coping.

[247]There was little, if any cross-examination of either the Claimant or Mrs Clark on their description of his symptoms. I was not referred at trial to any of the extensive medical documentation in the bundle, other than a printout from the computer of his GP notes. These show that the Claimant does seek medical advice when he thinks he needs it and there are regular entries in the printout during the 1990’s including entries for June and September 1997, January and June 1998 and February and September 1999. The entries for shingles, stress related problems and the other symptoms he has described starting on 18th October 1999 and onwards.

[248]I accept the evidence of the Claimant and Mrs Clark that he did suffer and has suffered the symptoms they both describe.

[249]In his Claim for Injury Award made on 27th December 2001 the Claimant stated that the injury that he was linking to his ill health retirement occurred in September 1999.The details the Claimant gave of the incident that led to his injury were the following “As Disclosure Officer in a major trial, being placed under intolerable pressure by Senior Officers threatened with slander if I gave evidence, withholding evidence and a total attempt to pervert the course of justice by senior officers. Anxiety caused by the lack of support and care by Professional Standards and harassment caused to my family to date… For the past 2 years I have been suffering stress and depression related illnesses brought on by the mis-conduct of several Senior Officers who attempted to cover up the unprofessional behaviour of another Supervisory Officer…”

THE EXPERT EVIDENCE – INJURY AND CAUSATION

[250]On first June 2001 the Claimant was interviewed by Dr S Acharyya MBPS M.Phil MRCPsych, Consultant Psychiatrist at Rochford Hospital. Dr Acharyya records that the Claimant reported that he had been off work since late 1999 and described his concerns about the investigation he had been engaged on, the concerns about his evidence and the threat of a reprisal from more senior officers. He also described events that had occurred subsequently.

[251]Dr Acharyya recorded that at the time of that interview the Claimant reported that his main problems were difficulty in sleeping, recurrent migraine headaches and psoriasis, shingles, migraine, ulcers, boils on the face and top of legs, mood swings and being irritable with his children. He also reported bouts of profuse sweating, poor sleep and waking with rapid heartbeat. He was feeling depressed and had been described an anti depressant by his GP, but subsequently developed irritable bowel syndrome. He was proscribed Tamezopan to help him sleep. Dr Acharyya described the Claimant’s pre-morbid personality as one of an obsessional kind whereby one finds it difficult, sometimes impossible, to conclude a task until he has performed it to the best of his ability. He also had a high expectation of himself and set extremely high targets for himself. Dr Acharyya commented that these characteristics had been a great asset to him in his work as a police officer, but on the negative side it produced a tremendous amount of internal pressure. The Claimant had previously been to see a Consultant Psychiatrist through the Occupational Health Department of the Essex Police.

[252]Dr Acharyya described the nightmares which the Claimant reported were recurrent and with very similar themes. He also noted that the Claimant described a road traffic accident that occurred in 1995 involving a 12 year old girl. The Claimant had happened to be at the scene, and with his colleague he attempted to administer first aid to the child, who was dying. A Paramedic Doctor arrived on the scene and attempted a tracheotomy and, when that did not work, opened the child’s chest, all this at the side of the road. The child was about the same age as the Claimant’s own daughter and the Claimant described how he could not get the dead child’s picture out of his mind when he closed his eyes at night. That was one of the three recurrent nightly dreams.

[253]Dr Acharyya diagnosed Post Traumatic Stress Disorder as defined in the International Classification of Diseases 10th Edition and the American Diagnostic and Statistical Manual Edition 4. In addition he diagnosed that the Claimant suffered secondarily from Affective Disorder of Depressive Type which is characterised by objective biological shifts, such as early morning awakening, diurnal variation of mood, perversion of appetite and weight anergia and marked anxiety and feelings of depression. His opinion is that the other symptoms are psychosomatic, namely the psoriasis, shingles, irritable bowel syndrome, which he considered are most certainly associated with stress related disorder. Dr Acharyya found the Claimant to have markedly poor attention span and concentration, which are also indicative of biological shifts and lead to the diagnosis of Affective Disorder of Depressive Type.

[254]Dr Acharyya considered that the conditions required treatment by anti depressant drugs and, for medium to long term, Cognitive Behavioural Therapy (“CBT”). The Claimant had already begun a course of CBT. He considered that if the Claimant were to return to work he would again quickly slip into a marked depressive state. He did not believe that the Claimant would currently be able to cope with a full work load. The Claimant’s successful return to work was dependant, in his view not only on his receiving the appropriate pharmacotherapy and behavioural therapy, but also on work environment and changes in attitude among the Claimant’s colleagues and superiors.

[255]Dr Acharyya saw the Claimant again on 4 September 2003, when he undertook a full psychiatric assessment at his private consulting rooms. By this time he had been instructed by solicitors on behalf of the Claimant. He had studied reports by Dr Kelly Consultant Cardiologist, Mr Gatland, Consultant Surgeon, Mrs Williams Cognitive Behavioural Therapist and the Claimant’s GP notes.

[256]On this re-assessment he still noted that the Claimant had active features of PTSD as evidenced by his score on the Structured Interview administered by a clinician, where the Claimant scored a total of 42 points with 13 points for the sub-scale of re-experiencing the Traumatic Event, 18 points for the sub-scale Avoidance of Stimuli associated with Trauma and 11 points on sub-scale measuring increased Arousal. In addition he noted that the Claimant has a very clear Affective Disorder of Depressive Type. He expressed the opinion that the Claimant continued to suffer with these conditions since the assessment in June 2001. He thought it most likely that each of these disorders further aggravated or rekindled the other. He noted that the Claimant had not presented with any symptoms whether of Affective Disorder nor of PTSD prior to what he harassment which is the subject of the claim in this action.

[257]Dr Acharyya expressed the opinion that on the balance of probabilities the Claimant’s psychiatric condition as well as the shingles and other physical manifestations associated with the Affective Disorder and PTSD were caused by the treatment he received at the hands of the Police as set out in the Amended Particulars of Claim.

[258]I pause to comment at this stage that it is this finding as to PTSD that was the most controversial at the trial. The point being made on behalf of the Defendant was that the only traumatic event capable of giving rise to PTSD which the Claimant had described was the road traffic accident in 1995.

[259]Dr Acharyya noted that the course of the Claimant’s illnesses had not abated in any tangible degree notwithstanding the course of anti-depressant medication and the CBT. He therefore concluded that the Claimant requires to undergo intensive psychiatric treatment under the supervision of a Consultant Psychiatrist with fairly intensive therapeutic programme that involves not least an intensive course of CBT and treatment with major anti-depressant and anxoilytic medication. The Claimant’s current medical state was not such that he would be able to hold down any paid occupation even on a part time basis. He envisaged that the Claimant’s mental state would deteriorate in the absence of any rigorous treatment regime. That report was dated 6th February 2004.

[260]Questions were asked about his reports on behalf of the Defendant. In response, on 1st April 2005 Dr Acharyya wrote that there were two precipitating traumatic events likely to cause PTSD. The first he identified was the road traffic accident in 1995, already described. Dr Acharyya considered that the symptoms of PTSD were present following that incident and were exacerbated due to what took place between him and his superiors subsequently. That is a reference to submitting the report about his conduct of the investigation.

[261]Professor Fahy of the Institute of Psychiatry in Denmark Hill, provided a report at the request of solicitors for the Defendant. His report is dated 29th May 2003, but it is convenient to turn directly to the Joint Psychiatric Statement made by the two experts dated 1st September 2004. That records that they had agreed the following points: 1. “There is no good reason to suspect that Mr Clark would have developed psychiatric problems from 1999 onwards were it not for the problems he experienced at work. 2. The cause of these work place problems will be a matter for the Court rather than medical experts. We note that the information we have reviewed shows that Mr Clark’s account of his work place problems are disputed in the Defendant’s document. 3. We are agreed that Mr Clark developed clinically significant psychiatric symptoms in mid to late 1999. These symptoms have fluctuated between mild and moderate severity. The symptoms have included anxiety and depressive complaints. We are agreed that these symptoms have met the criteria for a diagnosable major depressive order. Mr Clark also describes anxiety symptoms, which can be incorporated within the diagnosis of major depressive disorders. However, in Dr Acharyya’s view these symptoms also meet the diagnostic criteria for Post Traumatic Stress Disorder. Professor Fahy does not agree with this viewpoint. 4. We agree that Mr Clark’s personality has influenced his reaction to his experiences at work. As noted in our previous reports, Mr Clark is a highly conscientious, tenacious man with perfectionist and obsessional traits. These qualities may have been the key to Mr Clark’s success as a police officer, as described in his annual appraisals, but may also have limited his flexibility, and his ability to adjust to stresses or changing circumstances at work. 5. Mr Clark continues to describe residual depressive and anxiety symptoms. We agree that the litigation process, as well as Mr Clark’s recent heart problems are exacerbating these symptoms. 6. Mr Clark’s residual psychiatric symptoms are treatable, and we expect that he will make a good recovery from his symptoms, especially following the conclusion of the litigation process, although Mr Clark may find it difficult to cope with the outcome of litigation unless he feels that he is fully vindicated and supported. We agree that a combination of anti-depressant medication, supervised by a psychiatrist, and a course of cognitive behaviour therapy delivered by a clinical psychologist or specialist nurse, should assist Mr Clark towards a full recovery. We agree that in view of his experiences and preoccupations, a return to police work is not a realistic option. However, contrary to his own pessimistic views, our opinion is that Mr Clark should be fit to return to work shortly after the conclusion of the litigation.”

[262]Thus the only point at issue is the diagnosis of PTSD.

[263]In his report of 29th March 2003 Professor Fahy sets out the history of index events. The history up to November 1997 covers some two pages. Significantly, it does not record that the Claimant mentioned the event in 1995, the road traffic accident. In the section “Previous Medical History” Professor Fahy records that the Claimant denied any significant physical or mental health problems prior to 1990 and under “Personality” that the Claimant described his pre-1999 personality as “bouncy, busy, happy, sociable, compassionate and enthusiastic.”

[264]Under the heading “Mental State Examination”, Professor Fahy stated that he asked the Claimant in detail about anxiety and post-traumatic symptoms. He states that the Claimant did not describe any specific anxieties but that he acknowledged continuing preoccupation with his experiences at work, vivid and at times intrusive memories of his work experiences and occasional dreams about police work. Professor Fahy then refers to and considers in detail numerous documents relating to this case, including the two reports by Dr Acharyya already referred to. Professor Fahy notes that Dr Acharyya concluded that the Claimant continued to exhibit symptoms of PTSD, but that in his view the logic of this diagnosis is unclear as there is no reference to an index event which would satisfy conventional criteria of PTSD.

[265]Professor Fahy notes that what the Claimant suffered during the early 1990’s was likely to have amounted to a mild depressive disorder from which the Claimant made a full recovery by his return to work. Nevertheless, this episode constituted a risk factor for further episodes of mood disturbance. In his opinion the key to understanding the Claimant’s psychiatric symptoms in recent years comes from considering of his personality structure, which is as already described in para 4 of the Joint Statement. Referring to the matters the subject of this action, Professor Fahy notes: “In view of Mr Clark’s personality style, it is not difficult to understand why the above series of events could have been a source of stress for Mr Clark, even if his own behaviour may have contributed to the difficulties at work. The main sources of stress were that Mr Clark felt that his integrity had been challenged by allegations of inappropriate expenses claims, the threat of legal action against him, his “demotion”, and the fact that his complaints against ADI Kreyling did not result in a satisfactory outcome”.

[266]As to PTSD Professor Fahy concluded:

“He does not fulfil the criteria for Post Traumatic Stress Disorder because of the nature of the triggering events and the range of his clinical symptoms. His symptoms resemble those of an adjustment disorder, and it is clinically meaningful to conceptualise Mr Clark’s symptoms as arising of a problem of adjustment of a series of events at work and with his legal case.”

[267]Professor Fahy says this under the heading:

“Treatment and Prognosis”: “Mr Clark’s residual psychiatric symptoms are at the borderline of clinical significance. In ordinary circumstances such symptoms would be expected to respond well to a combination of anti-depressant medication and 10 – 12 individual cognitive behaviour sessions. His treatment will be more beneficial once the legal case is concluded. At that stage, the psychological treatment would help Mr Clark to return to a level of functioning which is compatible with full-time employment. His own gloomy appraisal of his future work fitness cannot be justified on the basis of his current symptoms, and his likely response to a standard treatment programme. The fact that any future employment would not be as a police officer is a prospect that Mr Clark will have difficulty adjusting to.”

[268]It is of course elementary, that a psychiatrist or other expert can only give an opinion on the history recounted to him by the subject and the documents with which he is provided. The diagnosis of PTSD can be supported, if at all, only on the oral history, because it finds no reference in the documents, and the Claimant did not mention his symptoms in his visits to his GP. It seems to me that the different conclusions reached by the two experts can simply be explained on the basis that the 1995 road traffic accident must have assumed a quite different level of importance in what the Claimant said to Dr Acharyya compared to what he said to Professor Fahy. On the evidence before me, which includes not only the experts’ reports, but the evidence given in court and the documentation to which I have been taken, I am quite unable to conclude that on the balance of probability the Claimant is suffering from PTSD or that he did suffer from it in 1995.

[269]Even if I were wrong about that, it does not seem to me that it would make a significant difference to any subsequent conclusions that might be drawn in this case. The events in 1995 are not relied on, and could not now be relied on, as giving rise to a cause of action against the defendant. Whatever he suffered in 1995, the Appraisal Reports demonstrated that he coped very well and operated to a very high standard up to early 1999. I accept that the events of the early 1990s when he had been off work for nine months following ill treatment at the hands of different senior officers, do mean that he was more vulnerable than he would otherwise have been in 1999. But I cannot find on the balance of probability that anything that occurred in 1995 made him more vulnerable than he would otherwise have been.

[270]Accordingly I accept and gratefully adopt those agreed conclusions reached by the two experts which they have set out in their Joint Statement. I also accept those parts of their reports which I have set out above and which expand upon the agreed conclusion in relation to the depressive disorder. In my judgment that disorder is the result partly of the events in April and May 1999 which I have found to have occurred, but mainly of the events in the first few days in October 1999 which I have found to have occurred. I also find that all the physical symptoms described were caused by the same events, except for the problems that the Claimant has suffered with his heart. I have seen no evidence upon which I could conclude that the problem with his heart is the result of the events in 1999 which I have found to have occurred.

KNOWLEDGE OF THE VULNERABILITY OF THE CLAIMANT

[271]As already noted, CI King on 11th May 1999 referred to the Claimant having come into conflict with senior officers in the past.

[272]Evidence of this was given by Mr Davies who had served with Essex Police from December 1966 to October 1997, when he retired as the Divisional Commander at Rayleigh Police Station. During this time he had been the Claimant’s supervisor on two occasions and they subsequently became friends.

[273]He describes in glowing terms the Claimant’s highly productive work and exemplary conduct over the period during which he knew him in the Essex Police.

[274]He states that he knew that the Claimant had reported the malpractice and unlawful orders of a senior officer, and that prior to going into the CID unit, and whilst he was in the CID unit, the Claimant suffered numerous incidents of harassment. This remained unchecked for a considerable period of time, resulting in the Claimant suffering depression. He was still suffering reprisals in December 1994. At that time the Claimant was serving in Southend and had been placed back on uniformed shift work. A post became available in Rayleigh division. The Claimant accepted it. There was at that time a policy of placing CID officers on the Divisional Support Team, and that post was taken up by the Claimant. It was at that point that the arrangement was made whereby the Claimant would receive full detective allowances and be referred to as DC Clark.

[275]Mr Davies had retired by 1999. There is no evidence that any of the witnesses for the Defendant knew in 1999 that the Claimant had suffered depression on this earlier occasion as a result of ill treatment by fellow officers. Mr Davies also confirmed that the title Detective Constable was in fact an honorary title so far as the Claimant was concerned, that it was unusual for a uniformed officer to retain that title and that he could understand why the Claimant would have been concerned to retain it.

[276]On the facts that I have found, injury to the Claimant’s mental and physical health was a reasonably foreseeable consequence of the mistreatment he suffered on 10th -11th May and 4th October 1999. Accordingly, the Claimant does not need to prove any particular vulnerability on his part in the circumstances of this case.

[277]The contents of the personel file of the Claimant must have been known to some person acting for the Defendant. Whether as a matter of law that person’s knowledge can be combined with the knowledge of Mr Bird, Mr Kreyling, and (to a lesser degree) CI King of the treatment that the Claimant was suffering, so as to produce relevant knowledge of the Defendant concerning the Claimant’s vulnerability is not a point that I have to decide.

CONTRIBUTORY NEGLIGENCE

[278]In cross examination Mr Davies stated that the social connection between them had lasted more than ten years by 1999. Having retired with the senior rank of Superintendent, Mr Davies knew all the other senior officers who have given evidence in this case. He was cross-examined to the effect that the Claimant could have approached him with a view to seeking a resolution of his problem, in addition to using the more conventional avenues available to all officers. Mr Davies said that he would have been guarded in becoming involved before his own retirement and that he and the Claimant had been very careful about what they told one another concerning police matters. I am left with the impression that Mr Davies would have been willing to help, but that he had some reservations about whether he could or should have helped, if he had been asked.

[279]The Annual Staff Appraisal Report stamped with the date 12th January 1994 refers to the Claimant as a Police Constable serving at Southend. He had had one Chief Constable’s commendation since the previous appraisal. Amongst the ratings, there was one on qualities and skills. On this he was rated as very good at willingness to accept criticism and advice and had received similar ratings in other appraisal. The Report is an excellent one. It includes a comment by Inspector Clark that he could carry out the task of actively gathering intelligence. In his own comments, the Claimant includes a reference to this, dated 4th January 1994., saying: “But I have some reservations that this would not be accepted by some supervisory staff on the CI Department. Over the past year I have still received a backlash of a grudge that some supervisors on the department have against me. This I feel is totally unproductive and unprofessional and I think it is about time this matter was resolved by the intervention of a senior rank and maybe a meeting would resolve the situation”.

[280]The annual staff Appraisal Report stamped 14 March 1995 identifies the Claimant as a Police Constable at Southend Police Station. At that point he was aged 39 with 20 years service. It states that his duties since the last appraisal were uniformed and plain clothes. He had training in Wildlife skills and had received one Chief Constable’s commendation, two Chief Constable’s letters and a number of another letters by way of commendation. The Reporting Officer, PS Walker, states that he has had another outstanding year, dating his comments on 11 October 1994.

[281]The Claimant’s own comment on this Report is dated 24 March 1995. It includes a statement that he was extremely disappointed at being taken off a unit on which he had been training young officers. He thought that work was more important than putting him back on shift where the work was not so demanding or rewarding. He expressed the hope that he would soon be returned to a similar field of work.

[282]There is an Annual Staff Appraisal Report stamped 7th November 1995. This refers to the Claimant as a patrol officer with the rank of Police Constable at Benfleet Police Station in Rayleigh Division. His work since the previous appraisal is said to be uniform patrol work. The Reporting Officer again gives him an excellent report referring to his continuing good humour and enthusiasm, saying he is stubborn and tenacious yet he always seems to have time to guide younger members of the shift. PS Hayhurst, adds that if the Claimant wished to return to do more training that he would be loathed to lose him, but clearly the Claimant should have a divisional role.

[283]On 6th November 1995 the Claimant in his own comment noted that he was disappointed that whilst at Southend he was always undermined by DI Frampton, that this was common knowledge but never addressed and he expressed the hope that this officers influence would not continue to hold him back.

[284]There is an Annual Staff Appraisal Report stamped 28 January 1997. This identifies the Claimant as holding the rank of Police Constable at Rayleigh Police Station in the post of Divisional Support Team Officer. It is again an excellent report, with the reporting officer commenting on 1st November 1996 upon his high motivation, professional manner and excellent investigative skills. In a part of the report completed by himself on 17th January 1997, the Claimant states that he would like to go on to CID but felt that there were still undercurrents and derogatory remarks being made by some senior CID officers about him. He then sets out the achievements which he suggests makes these remarks inappropriate and adds: “On returning to Rayleigh I am informed that a senior CID Officer had complained about my conduct and that he felt I had won over by using his officer for the detection of Rayleigh offences… certain persons noses were put out of joint”.

[285]The witnesses called for the Defendant also gave evidence of the various avenues of grievance and redress there are for Essex police officers. Superintendant Bottrill lists eight. The first two, and the fifth, speaking to your immediate Line Manager and Supervising Sergeant, and to other officers, were of little relevance in this case. Mr Kreyling was the Line Manager. The Claimant did speak to Mr Bird and CI King. The Claimant also tried the third, the Grievance Procedure but was persuaded by Mr Bird to withdraw it in April 1998. He did not try the fourth, speaking to the Federation Officer. He did try, and did eventually succeed (after he had stopped work) in speaking to Complaints and Discipline. Self-referral to Occupational Health was effectively what he did after 4th October 1999. As noted above, he did refer to the problem at Appraisal in 1998, but he had no opportunity to do so after that.

[286]The notable feature of the Claimant’s predicament was that his ill treatment arose out of his complaints about the arrest of M on 20th November 1997. The mistreatment of himself was not an issue which could be addressed separately from that.

[287]While I accept that officers in Essex Police did have a number of alternatives open to them to deal with stress at work, in this case the Claimant cannot be criticised for not doing more than he did to address the problems he faced. I reject the plea of contributory negligence.

[288]I also reject any submission that the Claimant has failed to mitigate his damage.

DECISION ON LIABILITY

[289]Accordingly, for the reasons which I hope I have adequately set out above, the Claimant succeeds on the issue of liability.

THE AMOUNT OF GENERAL DAMAGES

[290]General damages fall to be assessed on the basis of the findings of the experts in their joint report, which I have accepted, as set out above.

[291]Both counsel naturally directed my attention to the JSB Guidelines relating to psychiatric damage. The Claimant’s ability to cope with life and work has been seriously reduced in the period between October 1999 and the date of trial. But it is expected to recover. There has been some effect on the Claimant’s relationships with family, friends and those with whom he comes into contact. Fortunately this is not as great as it might have been. The Claimant’s wife and friends continue to support him. It is expected that treatment will be successful, particularly in the light of the fact that the Claimant has received the vindication he sought in this action. He will remain vulnerable to some extent, but the prognosis is relatively good. The injury results from what can be described as a breach of trust, since it was the responsibility of Mr Kreyling and Mr Bird, his managers, to protect him from the injury they themselves inflicted.

[292]It does not appear that the language used in the JSB Guidelines (severe, moderately severe, moderate and minor) exactly matches the language used by the experts (major depressive disorder with symptoms that have fluctuated between mild and moderate severity). In the moderately severe category of the JSB Guidelines there are included cases of work-related stress resulting in permanent or long standing disability preventing a return to comparable employment. This describes the Claimant’s position. The range of damages applicable to such cases is £10,500 to £30,000.

[293]In my judgment the Claimant falls in the lower half of the range of Moderately Severe. I assess general damages at £18,000.

SPECIAL DAMAGES

[294]For the purposes of these proceedings the parties have prepared schedules of special damages. I was not referred to these more than cursorily in the course of the trial. It was indicated to me that depending upon the findings of fact that I would make in this judgment, it was expected that all or most of the issues relating to quantum would be agreed.

[295]One matter which will affect the assessment of special damages is the prognosis, and the impact of the Claimant’s problem with his heart. In my judgment this problem was not caused by the breaches of duty that I have held to have occurred, and the special damages will therefore fall to be assessed on the basis that that problem would have occurred in any event.

[296]This judgment was circulated in draft at the end of July with a view to it being handed down on 31st July 2006, the last day of term. I invited the legal representatives of both sides to attempt to reach agreement on outstanding issues, and to communicate to me any points which they wished to raise as to how those matters are to be resolved formally, and what, if any, further hearings there might need to be either before or after this judgment is handed down. The parties asked me not to hand down the judgment on that date, in order to enable them to have more time to consider the judgment in draft, and reach agreement on outstanding matters. No such agreement has been reached yet, but the parties have agreed the order to be made today, namely that there be judgment for the Claimant for further damages to be assessed by myself. The time for appealing will be extended until 28 days after the conclusion of the assessment of damages and costs will be reserved.

Cited in 1 later judgment

Mullen v Accenture Services Ltd. 2010