The Excluded Middle

The 'Fallacy of the Excluded Middle' is committed whenever we inappropriately reduce a set of options to two alternatives, excluding other options such as those that are somewhere between those alternatives.

I was reminded of the fallacy earlier this week when a reader pointed me in the direction of this article by the Chief Executive of Probation in Lancashire examing a possible inverse relationship between police force detection rates and the measured rates of reoffending used by the Probation Service in those areas. It contains this comment:- “our current performance is 11.3% therefore 88.7% don't reoffend“.

No sooner had I read that than “That's not right.” popped into my mind. “11.3% reoffending merely means that 88.7% haven't been caught.”

Now, I don't mean to be particularly uncharitable. Clearly one of the reasons they haven't been caught may be that they hadn't committed any crime for which they could have been caught, but also, perhaps they had committed such an offence and were just lucky, or had a proficient lawyer (I hesitate to use the term 'good' in this context), or for some other reason evaded capture, including taking advantage of the generally difficult nature of proving things to the standard required in a criminal court.

And the excluded middle came to my mind again today when pondering events in Lincolnshire. Lincolnshire, I should remind you, is the area where a nationally prominent Independent candidate withdrew during the election, where an email mix-up denied the Conservative candidate a listing on the national PCC election website, and where the election came down to a fight between two Independents, a retired Council Chief Executive and the ultimate victor, a local TV presenter.

Lincolnshire's PCC had decided to suspend his Temporary Chief Constable, and then felt forced to tell the world why, in the face of legal action from said senior officer. I'll not go into that, as I know considerably less than what I've read about it. However, what I will go into is the implications that are being drawn from the fact that the officer won, and that the High Court judge who handed him his reinstatement decided that the PCC's decision was “perverse and irrational”.

I have seen two forms of reaction to this.

1) The PCC's decision has been ruled unlawful, say some. His suspension of a senior officer caused that officer some considerable distress, and cost the public a fair whack, including the cost of this case. Should the PCC not resign?

2) The PCC has been going on about how he is elected but is suddenly being bossed around by a judge, and how PCCs will now be looking over their shoulder before they make decisions. What is the use of his office if he can be over-ruled by a judge?

Which made me think of the excluded middle.

A PCC has lost a judicial review. The world has not ended. The PCC has not been found in a compromising position with small boys, or with his hand in the till – what has happened was 'unlawful', but not in the sense of “criminal”. The law requires decisions to be reasonable and proportionate. The judge decided that test was not met in this case. There may well once have been a Home Secretary who did not do anything unlawful in this sense, but at the moment I struggle to think of one – judges sometimes seem to take an impish joy in sending the decisions of people in that office back for reconsideration. So the PCC now gets to feel like countless Home Secretaries and other ministers have felt – a red face, perhaps a stinging on the back of the hand, but able to fight another day.

On the other hand this judge's choice of words is perhaps more than usually harsh. Losing a judicial review pretty much requires that something is 'unreasonable', but 'perverse and irrational' seems a bit stronger. Is this another instance of judicial disapproval of people who have what they lack, a few votes behind them, showing its ugly face, or is it a reflection on the degree of departure from reason in this particular case? Or something else (he says, in an effort to avoid an excluded middle)? Who can say for sure?

However, I have expressed before my concern about the tendency in some areas for PCCs to adopt an 'I can do whatever I want' attitude. Some unfortunate statutory wording around their powers to appoint a Deputy, together with 'scrutiny' by Police and Crime Panels that will never have need of toothpaste, may have engendered in some a willingness to appoint mates to jobs without adverts or other trifles that mere humans take to be necessary. As these appointments have yet formally to be challenged, a sense of invinceability could have become a risk, and could have spread beyond their personnel decisions. Perhaps not now though?

I accept that PCCs will make some decisions in a manner with which the courts will disagree. For me it is curious though for a PCC to expect to make decisions without having looked over his shoulder and considered actively whether a judge might consider them to be within the bounds of reason or legality. One welcome development of the past few years is that more Chief Constables have been finding their actions under greater scrutiny than they anticipated, including from PCCs. PCCs must be careful to avoid adopting the bad habits of the past and need to remember that their own role is all about accountability.

 

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Policing: The Only Way is Ethics

Today, you can find my comments on allegations that undercover police officers stole the identities of dead children here at MSN UK News #SocialVoices.

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The removal of local justice

Julie Iles ran as Conservative Candidate for Surrey Police and Crime Commissioner after years of service as a local magistrate.

An unexpected consequence of standing for election as the Police and Crime Commissioner in Surrey has been my resignation as a magistrate.

Regular readers of TopOfTheCops will know that when Lord Justice Goldring issued guidance, stating that magistrates were required to resign if they were standing for this office, I was part of the delegation that secured a change to this position. My concern then was not only for magistrates who had already been selected as candidates but also for other magistrates who had been, or were likely to be, appointed to serve on Police and Crime Panels as LJ Goldring had also called for them to resign.

I was always very clear that I would resign as a magistrate if I took office as PCC because I felt the two roles were incompatible and I communicated this through my blog on the campaign website in August. Throughout the campaign I was on leave of absence from the bench but I had hoped to resume sitting if I was not successful in being elected as PCC.

Having been clear on this I was surprised when a complaint was submitted to the Lord Chancellors Advisory Committee. I was less surprised when I saw that it came from a Labour Party activist who was a sub agent for the Labour candidate. His claims were that I used my role in the judiciary to validate my campaign, that I implied I would continue as a magistrate if elected and that I would use my position as a magistrate to deliver on election pledges. Having responded in writing perhaps my biggest surprise was that the Advisory Committee did not dismiss the complaint as pure political mischief making.

Taking these claims in turn surely it would have been strange if I had not referenced the fact that I was a magistrate? I had been for the best part of ten years and my desire to make a difference in the criminal justice landscape stemmed at least in part from being a magistrate. I said throughout that being a magistrate gave me a genuine experience of the impact that crime had on peoples’ lives. I did not imply that I would continue as a magistrate in fact I had publicly communicated the very opposite. Finally I was not elected to the office of PCC so any issue about using the judiciary to deliver on election promises was completely redundant and yet I was asked to attend a conduct investigation panel.

One of the qualities that used to be valued in magistrates and actively tested in the recruitment process was that of “common sense”. Convening a panel of four people plus a note taker seemed to me to be the antithesis of a common sense approach, a waste of the public purse and a case of being seen to follow the process, dot the i’s, cross the t’s and cover oneself. I attended although I had already made up my mind to resign regardless of what their findings might be.

Two other things were also raised. One was an email from the Divisional manager for Victim Support. She had written to me after the election because they were rolling out a presentation across schools and it was something she wanted me to help with as I already worked with schools in Surrey for our Magistrates in the Community scheme. My bench chairman felt it was inappropriate that this lady wanted to develop the connection we had made during the course of the campaign. I explained that I did not know this lady beforehand, we had met twice formally during the campaign and I would not see her again in the course of any court room duties. In any event if someone is known the magistrate would recuse themselves from taking any part in proceedings.

Second was a tweet I posted some weeks after the election when our Surrey PCC, Kevin Hurley, appointed his deputy. Mr Hurley is a former policeman and so is his deputy. I do hold a view that police policing the police is not what was envisaged in setting up the office of Police and Crime Commissioner – you only have to look at recent big headline stories to know that introspection has not served the public well. My tweet was simply a signpost to the announcement followed by ”another ex- policeman just what we need?” It was a question to stimulate debate on social media.

On both of these things the panel did not explain, though I asked repeatedly, in what way I might be biased in performing any court room duties. Magistrates have no dealings with Victim Support and neither the PCC nor his deputy have powers to direct arrests or how any investigation is conducted and therefore are not instrumental in matters being judged in court. However the panel did talk about the perception of bias and given the famous quote “perception is reality” how can one fight a perception that cannot be explained ergo guilty until proven innocent.

In spite of my resignation the panel have still reported their recommendations to the Office of Judicial Complaints, namely that I would require formal advice before returning to the bench. As I am not returning I can at least save the Lord Chancellor from troubling himself with this.

I am capable of independent thought, I have freedom of speech in this country and I’m not prepared to give up all outside interests in order to carry on being a J.P.

This whole sorry process sums up the spread of the nanny state and the removal of local justice. None of the people on the panel knew me much less had sat with me in court to form any opinion as to my impartiality. It’s a poor return on the investment that the court service have made in my training and development and the input that I have given back to this voluntary service. It seems that the senior judiciary are uncomfortable with the role of the PCC but if magistrates are to hold them at arms’ length we will never have a joined up approach to keeping the Queens peace, accepting community responsibility for our safety and preserving law and order.

 

Posted in Perspectives

Senior judge makes ‘land grab’

Some of you may remember the summertime saga of how the country’s Senior Presiding Judge, Lord Justice Goldring, attempted to ban magistrates from standing as Police and Crime Commissioners or doing anything that might be dodgy for being excessively political, you know, like delivering leaflets, before TopOfTheCops exposed them, wound up some PCC candidates, and within a week or so normality had resumed.

Well, this week we have been working with the Observer to reveal that when, on New Year’s Day Lord Justice Goldring moved on from that role, it was not before having left a little present behind, in an attempt to control magistrates interactions with the new PCCs.

The guidance issued in November is JO Circular AC(13) of 2012 and it leaves magistrates with few illusions as to who is boss, and few options as to what to do with PCCs. The guidance labours the point that individual magistrates are not in the public bodies listed as needing to cooperate with the PCC, and that the higher-ups in the Court Service can do that themselves, without magistrates help, thanks-very-much. No need for you mere JPs to bother your pretty little heads about it.

The emphasis of the document is very much that those Magistrates who have to work with PCCs should keep them at arms length, and though the impact of the August-U-turn may be felt in its more measured tones, the proposed restrictions are no less alarming.

There is practically a ban on magistrates being involved in public meetings with PCCs, as each instance would require the individual permission of the senior judiciary. Now, traditionally, plenty of magistrates have had their own separate involvement in politics. They may sit as Councillors. They may be MPs. They may want to keep their options open as to those roles. It doesn’t ring true with me that they would have felt the need to go cap in hand to a senior judge in order to participate in a public meeting with a PCC.

Some magistrates have reported receiving the guidance with a note requiring them to inform or involve senior court staff even if they have private meetings with PCCs, and this has not gone down well. Some magistrates feel that they know well enough what proper boundaries are, without an official being required to act as bodyguard/spy, and many will wonder what has changed since the days of magistrates being entitled to spaces on Police Authorities. Apparently it was fine then for magistrates not only to meet with the people who governed the police, but actually to be those very people.

The document betrays a concern about anticipated criticism of judicial decisions by PCCs – “In the event of a PCC commenting in public about judicial performance, whether about a particular case or individual judicial office-holder, or the sentencing patterns of a court or individual, in the first instance please contact the Chief Magistrate of Office of the Senior Presiding Judge for advice”.

This appears to show senior judges are uncomfortable with the new commissioners and aware of the potential for popular opinion to inform policing decisions and their sentencing decisions to be criticised.

I’m tempted to think that this latest guidance is evidence of a judicial land-grab as part of their strategy of dealing with elections within the criminal justice system. We are accustomed to judges defending judicial independence, but it seems they are greatly expanding the scope of what that independence might require, slowly squeezing out anyone with an involvement in politics or an independent thought in their head, in some effort to increase the distance between themselves and the new PCCs.

The problem for senior judges is that Magistrates may not wish to be treated like pawns in this game. They may have other commitments they don’t wish to give up. They may have a wider conception of the role of magistrate that goes beyond tick-boxing the existing guidance and that accepts a broader community responsibility for preserving law and order.

Take Julie Iles – formerly Conservative PCC candidate in Surrey, and long-serving magistrate – until someone complained about her mentioning being a magistrate in her campaigning. Dragged before a Judiciary Advisory Committee Panel, she felt that “It seems that if I wanted to express an opinion I might be picked up on it.” and added “I think it’s asking too much to give all outside interests up for what is a voluntary service.” She has decided to give up being a magistrate.

Can the courts really afford to lose people like Julie Iles? Can they afford to make the price of being a magistrate so high? Can senior judges’ conception of  judicial independence be so strong that normal judges, like magistrates, can have no actual independence from those senior judges themselves? Perhaps the senior judiciary are the real threat to judicial independence?

I want to wish the best of luck to those magistrates who find the strength to hang on and who see the possibilities presented for working together with PCCs on a local basis to tackle the crime problems in their local communities. I hope that the Senior Judiciary do not make it impossible for that to happen, and I commend the public service of those magistrates who  have tried to make it work, but no longer feel they can.

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Comment re. IPCC investigation

A few things have come together in my mind today that I think I should share with you:-

We are all learning to deal with a new world where concerns about Police and Crime Commissioners go through Police and Crime Panels, and in some cases to the Independent Police Complaints Commission. Everyone is finding their way, but the reference that has taken place this week will be the first to test the system. It is clear that, if the IPCC decide to investigate the case, then either they will do so themselves, or involve police officers in an investigation. As such, and as the IPCC investigators have police powers, this effectively would be a police investigation, and I would not normally comment in any detail on a live police investigation.

I was careful to ensure the Sunday Times had the same information I had from my Freedom of Information requests to Lancashire County Council and Lancashire Police Authority, and I understand the Sunday Times were careful to check matters with the relevant authorities and Mr Grunshaw himself, leading to quotes from him in their article. The Sunday Times gave a reasonable amount of space to the issue, but some other reports have sought to summarise the issues, and that has not always ensured total accuracy.

I have been copied into some of the correspondence that has gone to Mr Grunshaw this week, and I worry that it does what I spent years in the police and investigating miscarriages of justice trying not to do, namely coming to a judgement before all the facts are in. That is what the IPCC investigation is about, and that is why I have been careful to say that I am not alleging any wrongdoing by Mr Grunshaw. There appear to be discrepancies between two sets of data and patterns in those sets of data that require a proper investigation, but we should not prejudge that investigation. People may think I’m being coy, or simply saying what people have to say in these circumstances. I am not. I have some of the evidence, but I don’t know what really happened with these claims, and it is now someone else’s job to find out. In the meantime, I don’t consider it right that Mr Grunshaw should be distracted from his very important job by prejudging these issues, and I hope that people recognise that.

Consequently, I have decided that I should suspend the posts on this site that relate to the evidence in this case at least until the investigation is complete. I understand any IPCC investigation results in a published report, and one would hope that such a report would be definitive.

Update 21 December 2012

The IPCC have said they will independently investigate this matter. Nicholas Long is the Commissioner with oversight of the case.

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And so it begins.

Oh dear, did I blow the whistle on local politicians' expenses? I'm ever so sorry. To be fair, I kind of knew that saying “Hang on, I think you should have a look at this” was the equivalent of painting a bright red target on my back, but then I also felt that the good people out there would see the backlash for what it was.

And so it begins…

Today, as is the practice at Lancashire County Council, I was informed that a Freedom of Information request has come in about me. Here it is -

I wish to make a request for information under the Freedom of Information Act concerning Councillor Sam Chapman. I would prefer to receive this information by email but if that is not possible then by post is acceptable too.

1. Please send me all the details you hold of all expenses claims made by Cllr Chapman (whether paid or not) since his election. I am particularly interested to know the date, amount and reason of each claim and whether it was paid and when by the Council. Please include a copy of all receipt and invoices for all claims.

2. Please send me all details you hold of all other payments made to Cllr Chapman since his election. I expect this will include, but will not be limited to, his allowances as a councillor and committee chairman.

3. Please send me all the details you hold of any complaints made against Cllr Chapman both since his election or pertaining to his election campaign and received by any officer or member of the Council, or anyone else if the information is held by the Council.

The info doesn't say who it's from, but I have offered to trade copies of all my receipts if they will tell me who I should send them to.

Now, I know from bitter experience just how frustrating it is to have to wait for the answer to such a request, and as the deadline for this one is 18 January, and as I suspect the officers might then just direct the person asking to the website where they publish most of this stuff anyway, and so don't have to tell anyone separately, I thought I would do what I could to save them the agony of waiting and stop it from spoiling their Christmas.

So here's what I can tell you in terms of answers since I was first elected in 2009:-

1. Expenses claims.

2009-10 None

2010-11 None

2011-12 None

2012-13 None so far.

That's a total of nothing, by the way, or 'nowt', seeing as it's Lancashire.

Sorry, that's a bit dull isn't it? Clearly I have spent money on my Council-related travel, mainly on mileage to County Hall and back again, and also on food when I was there, and the rules do allow Councillors a privilege not extended to members of staff, whereby travel to 'work' and some grub to make the trip worthwhile can be charged to the taxpayer, but I didn't take advantage of that one.

Now, that's kind of meaningless with nothing to compare it to, but County Councillors all do different jobs, so it's kind of difficult to get a fair comparison. Hmmm. I've decided that as I chair Lancashire County Council's Audit and Governance committee that maybe I should just see how my predecessor on what was the Audit Committee has done over the same period.

That person was on the Wyre Borough Council and Lancashire Police Authority as well, so please bear with me with the maths. The Police Authority's website isn't reliably accessible since the Authority was abolished, but you can find the expenses here so I hope I've added this right – In the last three years his “expenses” (food, mileage, travel, parking, etc) were:-

2009-10 LCC £1,336.60 + Wyre £190.23 + LPA £2,489.04 = Total of £4,015.87

2010-11 LCC £2,824.79 + Wyre £220 + LPA £1,135.29 = Total of £4,180.08

2011-12 LCC £1,778.20 + Wyre £65.10 + LPA £2,192.10 = Total of £4,035.40

2012-13 – Don't know yet, and may never know the Lancashire Police Authority figures.

That's a total of £12,231.35 in expenses in 3 years, which is, er, £12,231.35 more than me.

Wow! Looks like somebody has a season ticket on the gravy train!

Who is this mystery councillor?

2. All other payments, including allowances as a councillor and committee chairman.

For being a County Councillor and Chair of the Audit Committee I have received the grand total of

2009-10 £10,254.61 (a part-year amount as I was elected in June)

2010-11 £13,034.04

2011-12 £13,034

2012-13 Haven't done the sums

So for three years that is a grand total of £36,322.65

Though I should take your guidance here. When I was elected I took a reduction in hours from my employer to allow me to do my duties as a Councillor. Now, the unions had negotiated a discretion for the Director to still pay me my full salary while on my duties as a Councillor, but I wrote to him and asked him just to deduct it from my pay, seeing as I thought it was wrong for the taxpayer to pay me for the same time twice. Should I deduct that from these allowances – it was a hefty sum, though I never worked out how much?

What about our mystery Councillor – how did he do?

2009-10 LCC £13,500.34 + Wyre £10,464.62 + LPA £14,721 = Total of £38,685.96

2010-11 LCC £16,851.17 + Wyre £10,570.29 + LPA £15,103.92 = Total of £42,525.48

2011-12 LCC £12,357.11 + Wyre £5,872 + LPA £15,103.92 = Total of £33,333.03

2012-13 Info not available

So our mystery councillor pulled in £114,544.47 in allowances in 3 years, which is very impressive, as his party aren't even in power. Now that's a professional politician!

All told, on my sums, with expenses, he grossed over £126,000 in income over a 3 year period by virtue of getting elected a couple of times in Fleetwood.

Yes, our mystery councillor is none other than Clive Grunshaw, Lancashire's new £85,000 per year Police and Crime Commissioner, who incidentally hasn't given up his Wyre Borough Council or Lancashire County Council jobs or allowances just yet. Well, he has to make ends meet.

3. Complaints.

Oh, there's an idea – I hadn't thought of asking about complaints. I'll have to remember that one.

For me, none I know of, but there may be some no-one has told me about and, now that I'm a target, I guess I can expect that to change.

For Clive Grunshaw – I hope to have told you about the main ones, but who knows?

Anyway, I hope all that has taken a weight off the mind of the enquirer. Perhaps, if they like the suspense, they should ask about what percentage of the council meetings I'm expected at that I actually turn up to. I can't wait to do that comparison.

P.S.

Don't rush to thank me for my relatively parsimonious approach – instead, thank this guy. He is Malcolm Pritchard, an Independent County Councillor from Hyndburn who doesn't just not claim expenses, but doesn't even claim the basic allowance for doing the job. So over 3 years he has cost nothing at all. I can't afford to do that, but I salute Malcolm's sense of public service.

 

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Look who’s (still) here.

If a stereotypical police officer from central casting were to ask me “What were you doing on the morning of Wednesday 21st March 2012?” I would be able to give them a surprisingly full answer for something nearly 9 months ago, but they might be inclined to believe me because I would also be able to produce something they would recognise, namely a contemporaneous note.

The note in question was of the meeting that day of the Lancashire Police Authority, where I was one of perhaps two members of the public watching them do their generally invisible work. I used it to inform this post, but not everything in my note made it straight to the web. Some of it had to wait patiently, until today.

It was something that struck me as odd at the time. Saima Afzal, an 'Independent' member of the authority, kept talking about the arrangements after the Police and Crime Commissioner elections, and whether she and others “may or may not be around”. But Saima was not one of the potential candidates for any of the parties, and had displayed no interest in running as an Independent. The Police Authority and its 'Independent' members would be abolished. Whatever did she mean? How could she be around, and to who else was she referring?

Fast forward to today and this announcement from Commissioner Grunshaw, whereby he reveals a slew of unadvertised appointments to positions of “Assistant Commissioner”, including Bruce Jassi, who became Chair of the Police Authority shortly after TopOfTheCops revealed that Grunshaw had begun wrongly referring to himself by that title, Amanda Webster, the outgoing Vice-Chair of the Police Authority, and guess who…Saima Afzal MBE.

Including Grunshaw and his nominated Deputy this makes 5 members of the Police Authority, four nominally Independent, who will still be involved in the governance of policing in Lancashire – all four of these Independents last year voted to support Grunshaw's contentious proposed rise to the Police Authority's part of the Council Tax, ensuring the Commissioner would have as much money to spend as possible. Wow – whoever you vote for, the unelected Police Authority still gets in, and in particular the tax-raising spend-spend-spend part of it.

The announcement is somewhat lacking in clarity, particularly in how long these 'interim' appointments will last, but it seems that each will be paid at a full-time rate of £51,000 per annum although, doing only 2 days each, their individual payments will be £20,000 each year. Well, we wouldn't want them going short, would we?

Another of my contemporaneous notes, in the form of a tweet from the last Police Authority meeting of 7 November, records the fact that Saima Afzal declared she was supporting Grunshaw in his campaign for PCC – what a shocking coincidence that he should later give her a job!

As the Taxpayer's Alliance joins the debate on Commissioners' appointments started by TopOfTheCops and the Mail on Sunday, some will see this as more croneyism and jobs for the boys from Grunshaw, and will criticise the new Commissioner set-up for allowing this to happen. But, in lacking an open recruitment process, the appointments are not clearly lawful and the Commissioner cannot rely on exemptions from appointing on merit that are limited to the Deputy post. Any who suspected that, regardless of a Conservative majority on Lancashire Councils, Labour had through the 'Independents' an informal permanent majority on the old Police Authority can now reflect on a new transparency, and the ability voters will have to punish errant Commissioners at the next election, which is, at most, 41 months away.

 

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