IN THE FIRST-TIER TRIBUNAL GENERAL REGULATORY CHAMBER (Local Government Standards in England)

I wonder what this is going to cost the Tax Payer?

Its a  big mess and all because a tiny group of Oakham Town Councillors past and present along with the support of Rutland County Council, intimidated and provoked me for complaining about a drunk amongst them.

For over a year now there complaints have been looked into and below is a copy of the direction from a judge..

Today I received notification both Councillor Dewis and Cllr Lucas have added another two standards complaints to the pile for reporting the clerks advice we should bribe some one with £5,000

The letter address to Paedophile Brookes are far more offensive than any breach of code I am accused off.

Reading copies of emails Rutland County Council managed to send me after my data protection request.show me Rutland County Councillors are also in breach of standards. The easiest one to refer to is to show other respect at all times.

Rutland County Council has deliberately  deleted email trails and files from its system and this will cost the tax payers thousands of pounds to employ an expert to retrieve all the missing data. Which I can only assume contain far more offensive and damaging content than I have already read.

IN THE FIRST-TIER TRIBUNAL

GENERAL REGULATORY CHAMBER

(Local Government Standards in England)

Ref Number: LGS\2010\0537

Applicant: ESO, Jennifer Rogers, Standards for England

Respondent: Councillor Martin Brookes of Oakham Town Council

DIRECTIONS

Background

1. I had some concern following my preliminary perusal of this application that the wording of parts of section 5 of the ESO’s report differed in some places from the wording in the accompanying documents on which those paragraphs needed to be based. I am grateful for the work done by the ESO in providing cross references between each of the paragraphs in that section and the papers in the accompanying bundle. That work identified one or two paragraphs for which there was no such evidence and parts of other paragraphs where it seems to me to be wiser to rely on the original materials than on the wording used by the ESO.
2. It was clear from the submitted material that much of the evidence is in documentary form and that the key issue before the Tribunal is to determine whether those documents, particularly those written by the Respondent, evidenced a breach or breaches of the relevant Code of Conduct which applied to him.
3. A few relevant facts are less dependent on that kind of document but those matters (the posting of offensive material on the Council Notice Board and the way the Respondent attended and was excluded from the Staffing Committee Meeting on 3 June 2010) are not factually in dispute.
4. There has been some delay in my being able to draft these Directions. I was initially unable to complete my examination of the papers when I was at the Tribunal’s premises but expected to be able remotely to access the quite substantial amount of work I had already done by using a laptop with a secure link to the computer system. That proved to be impossible seemingly because of some technical glitch affecting a number of laptops used by the Judiciary. My other commitments mean that there has been a delay in my regaining access to the relevant files.
5. The Applicant is of the view that the facts relevant to the allegations set out at paragraphs 1.3, 1.4, 1.5 and 1.6 are not such as to give rise to a finding that there has been a breach of the Code of Conduct. I see no reason to dispute that view and will accordingly strike out the Application so far as it relates to those allegations.
6. The Respondent had initially indicated an intention not to attend any hearing of his complaint but this was possibly because he was under the mistaken view that any such hearing would take place in Leeds where the staff serving this part of the General Regulatory Chamber are based. The Tribunal’s practice, however, is to hold hearings where possible in or close to the Local Government area concerned. With knowledge of that, the Respondent indicated that not only would he attend but that he would use the hearing to provide a wide ranging critique based on his experiences. That is not the purpose of the hearing, that purpose being to determine whether he has followed the provisions of the relevant Code of Conduct. For the Respondent to use the opportunity of a hearing to pursue some different purpose would be an abuse of process, the Directions which follow are designed to avoid such an abuse, to focus the parties on the key issues that are properly the concern of the Tribunal and to bring other issues to a speedy close.
7. Four particular provisions in that Code would seem to be relevant. These are:

• Paragraph 3(1) You must treat others with respect
• Paragraph 3(2) (b) You must not bully anyone
• Paragraph 3 (2) (c) You must not intimidate a person who is or likely to be a complainant or witness to proceedings under the Code
• Paragraph 5 You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute.

8. The issues which require determination by the Tribunal are:
   1. Did the Respondent fail to treat Councillor Charles Haworth with respect in sending the emails dated 10 March 2010 and 8 April 2010.
      1. In considering this matter the Tribunal will need to determine whether, in sending the emails, the Respondent was acting in his official capacity. I note that the first e-mails is stated to be from “Cllr Martin Brookes” but the second omits the title of Councillor. The content of the second, however, is clearly about the way both behave in relation to the Council. The Respondent is directed to indicate whether he wishes to dispute that in sending these emails, he was acting in the furtherance of his office as a Councillor and, if he does, to set out his reasons.
      2. Paragraph 5.12 of the ESO’s report states that in his email of 10 March 2010, the Respondent identified Councillor Haworth as one of the people responsible for a homophobic hate crime. The Applicant is directed to identify where within that email Councillor Hawarth is so identified.
      3. The Tribunal will also need to consider whether a decision to find the Respondent in Breach of the Code of Conduct by sending these emails is an unjustified interference with his right to freedom of expression as set out in article 10 of the European Convention on Human Rights. The need for such consideration is identified in paragraph 7.7 to 7.9 of the ESO’s report but the ESO does not appear to have gone on to consider the application of the principles in relation to these emails. So far as the second email is concerned I offer the observation that it cannot fairly be regarded as vulgar abuse.
      4. I am doubtful of the ESO’s assertion that the second email was deliberately rude and note his view that in isolation this email should not be regarded as amounting to a failure to comply with the Code of Conduct. I simply do not understand her reasoning that it can be so regarded when “viewed in tandem” with the earlier email. If the ESO wishes to maintain her view then she is directed to make further submissions. Subject to consideration of any such submissions I propose to strike out the allegation so far as it relates to the email of 10 March 2010.
   2. Whether comments made in the blog set out at pages 252 and 253 of the bundle accompanying the reference showed a lack of respect toward Mr Kelly. The comments were that Mr Kelly had threatened the Respondent. Had stood in front of the Respondent and appeared very angry, sat staring at the Respondent during a meeting and 3 times made a verbal threat. In addition the Respondent states that if Mr Kelly is present at any future meetings he will call the Police to have him removed.
      1. This allegation raises the same issues in relation to the Respondent’s capacity and the Right to Freedom of Expression as those identified above. Again the ESO has not moved on from his general discussion abut Article 10 to its application to the specific facts. If the Respondent’s view of Mr Kelly’s conduct is a fair one then it is difficult to see how any criticism can be levelled at the Respondent. But I do not think the Tribunal need or should concern itself with examining the truth or lack of it behind the Respondent’s comments.
      2. On the assumption that there is no validity in the Respondent’s criticisms of Mr Kelly and the further assumption that the comments could be regarded as vulgar abuse rather than any form of political expression, I am of the view that they are protected by Article 10. The threat to threat to call the Police strikes me as nonsensical rather than intimidatory. If called, the Police could be trusted to form their own view as to what if any action was needed on their part. If the Applicant wishes to maintain her view that this entry showed a lack of respect to Mr Kelly then she must make further submissions on the Article 10 point. Subject to consideration of any such submission I propose to strike out the application so far it concerns this allegation.
   3. Whether the email sent by the Respondent on 13 April 2010 and set out at the bottom of page 101 of the bundle accompanying the ESO report showed a lack of respect toward Councillor Dewis and/or was sent to intimidate a person who was or likely to be a complainant or a witness involved in proceedings related to an allegation that the Respondent had failed to comply with his authority’s Code of Conduct. The Tribunal will also need to consider whether the sending of this email brought the Council or the Respondent as a Councillor into disrepute.
      1. My analysis of the issue includes consideration of a possible breach of paragraph 3(2) (c) of the Code of Conduct, although that seems not to have been considered by the Applicant who nevertheless suggests that the email was linked to a complaint which Councillor Dewis had made against the Respondent. The Respondent is now directed to make whatever submissions he wishes as to whether there was a failure on his part to follow the provisions of Paragraph 3(2) (c). If he wishes to dispute that he was acting in an official capacity in sending this email then submissions should also be made in support of his position.
      2. The Applicant has expressed the view that the circulation of this email was not related to a legitimate political concern and so does not warrant the higher level of protection for free speech afforded by English Law. I observe that the fact that the Respondent may also have had some other motive does not of itself mean that the subject matter of his email may not have been of legitimate political concern.
      3. I have noted that, in his email, the Respondent claims to be passing on information he has obtained from a member of the public. He must have realised that, if untrue, the contents of his email were likely to be defamatory. The Tribunal would be helped by knowing what if any steps the Respondent took to check the accuracy of the information he was setting out. Subject to being satisfied that the Respondent was acting in an official capacity the Tribunal will need to consider whether in making or passing on allegations of this kind the Respondent was brining his office as a Councillor into disrepute
   4. Whether the Blog Entry of 14 May 2010 evidences a failure to treat Mr Beech with respect.
      1. The Applicant is directed to make submissions as to why the blog entry should be regarded as having been made by the Respondent in his official capacity. The Respondent may make contrary submissions if he so wishes.
      2. The Applicant is reminded of the dicta of Collins J in Livingstone v Adjudication Panel for England as to the extent to which Article 10 of ECHR offers protection against action resulting from the making of offensive remarks. The Applicant is directed to make submissions as to why that dicta should not be followed in relation to these remarks.
      3. I have noted that the Applicant is not submitting that the blog entry of May 13 evidences a breach of the Code of Conduct. I propose to strike out that part of the reference which deals with that entry.
   5. Whether Councillor Brookes treated the Town Clerk with respect and whether he bullied the Town Clerk.
      1. I have a difficulty in accepting the ESO’s view that a comment about the allegedly poor presentation of accounts does not benefit from the higher level of protection of free speech afforded to political views. I have the same concern about other criticisms which the Respondent has made of the Town Clerk. It would be difficult for the Respondent to argue that in his various blogs he treated the Town Clerk with respect. But even if his criticisms were unjustified they were about matters of legitimate public interest. The Tribunal would be helped by submissions from the parties as to whether the protection afforded by Article 10 of ECHR would be lost if the various comments were seen to be motivated by malice and whether the facts revealed by the ESO’s investigation could be seen as evidencing such malice toward the Town Clerk.
      2. The Respondent is also directed to make any submissions he wishes as to whether any of the following Blog entries should be regarded as not having been made in the furtherance of his office as a Councillor:

• Blog entry of 26 March 2010
• Blog entry of 29 March 2010
• Blog entry of 7 April 2010
• Blog entry of 12 April 2010
• Blog entry of 20 April 2010
• Blog Entry of 24 April 2010
• Blog Entry of 26 April 2010
• Blog Entry of 29 April 2010
• Blog Entry of 1 May 2010
• Blog entry of 6 May 2010
• Blog entry of 17 May 2010
• Blog entry of 21 May 2010

1. Blog entries of 26 May 2010 (other than those set out on pages 298 and 299 of the bundle).
2. Blog entry of 31 May 2010.
3. I can see no way in which the Blog entry of 21 April 2010or (in relation to the Town Clerk) the entries of 27 May 2010 can be seen as evidencing a failure to treat the Town Clerk with respect and so have excluded those entries and those on pages 298 and 299 from the matters to which the Tribunal will give further consideration.
1. Whether the statement (see page 304 of the bundle) that Councillors Kelly and Beech have been bullies and thugs shows a lack of respect.
   1. The ESO seems to have considered this evidence solely in relation to Councillor Kelly. But it seems to me that the matter under investigation was the making of the particular communication: the blog entry of 31 May 2010. If that entry involves disrespect being show to more than one person then account should be taken of this.
   2. The matter raises the same issues as earlier rehearsed as to how far the Code can properly be used to restrict such comments bearing in mind Article 10 of ECHR. Again the ESO has not so far undertaken the task she set herself in paragraph 7.9 of her report. She is now directed to do so.
2. Whether the Respondent treated others with respect in making a remark about Councillor Dewis and his daughter and in making an alleged remark when leaving the Council Chamber on 3 June 2010. There is also a need to consider, in the context of the 3 June 2010 alleged remark whether there was a breach of Paragraph 5 of the Code of Conduct (Bringing the Council or Office of Councillor into disrepute).
   1. Again, and for the reasons I have set out in paragraph , I have described this issue in wider terms than the ESO who has referred only to treating Councillor Dewis with respect.
   2. The relevant documentary evidence is that set out on page 310. There is a suggestion that a different phrase about Councillor Dewis’s daughter was originally used and that the blog was later edited to read as reproduced on page 310. The Respondent is directed to indicate whether he accepts that he originally used a phrase which a lesbian friend found offensive.
   3. The matter raises the same issues as earlier rehearsed as to how far the Code can properly be used to restrict such comments bearing in mind Article 10 of ECHR. Again the ESO has not so far undertaken the task she set herself in paragraph 7.9 of her report. The ESO is now directed to do so.
   4. The Tribunal will also take account of the submissions earlier requested as to the effect of any perceived malice on the protection afforded by Article 10 of ECHR. The parties are each invited to make submissions as to whether malice on the part of the Respondent toward Councillor Dewis can be evidenced from the material submitted as part of the application.
3. Whether, by his actions on 6 May 2010 (in relation to putting material onto the Council’s Notice Board and his blog of that date), the Respondent brought the Council or his office as a Councillor into disrepute.
   1. The Tribunal has noted that the Respondent has signed an Adult Offenders Disposal Form in relation to his actions on that day. The Tribunal would propose to adopt the wording on that form in describing his actions.
   2. The matter raises the same issues as earlier rehearsed as to how far the Code can properly be used to restrict such comments bearing in mind Article 10 of ECHR. Again the ESO has not so far undertaken the task he set himself in paragraph 7.9 of his report. He is now directed to do so.
4. Whether by his actions on 3 June in refusing to leave the Council Chamber when asked, the Respondent brought his authority or his office as Councillor into disrepute and whether there was disrepute caused by the way the Respondent reported this in his blog for that day.
   1. There would not seem to be a need to resolve any dispute there may be as to whether the Respondent was ejected or left voluntarily when requested to do so by the Police. It is common ground that the Respondent did not leave when requested and that the meeting was held up until the Police were called.
   2. The relevant blog entry is at page 316.
5. Whether the Respondents actions in emailing a local football Club and Oakham School about Mr Harrison involved a breach of paragraphs 3 and /or 5 of the Code of Conduct.
   1. The Tribunal has noted that both emails were also copied to third parties and the one to the School was copied to the Press.
   2. The Tribunals will take account of any submissions received in response to the request made above for submissions about the effect of malice on the operation of Article 10. The parties are also invited to make submissions on whether there was malice toward Mr Harrison.
6. Whether the Respondent failed to treat Councillor Lucas with respect
   1. The Tribunal has noted that in another investigation an ESO had found no evidence that Councillor Lucas has referred to the Respondent as a Paedophile. But the ESO was satisfied that the Respondent had been told by a third party that Councillor Lucas had said something derogatory about him.
   2. The issue raises the same need as identified earlier to consider whether the Respondent is protected by Article 10 of ECHR from action under the Code of Conduct. The ESO is directed to make submissions on this aspect. It seems to me to be difficult for the Respondent to claim that his comments on this occasion were expressions of political opinion but he has the opportunity of making such submissions on the matter as he wishes.
1. Bold type has been used to highlight matters on which submissions are either directed to be made or invited.
2. Such submissions should be sent to the Tribunal and the other party by 15 July 2010. Also by that date the Parties should indicate whether they propose to attend any hearing and if so whether there are dates in the week commencing 15 August when they are not available to attend a hearing.
3. The Tribunal is not anticipating that any oral evidence will need to be heard, save possibly from the Respondent. If both parties are proposing to attend then the Tribunal will allocate two days for the hearing.

David Laverick

Judge

15 June 2011