York Council tries to bully Critics into Silence

The story of the Abuse of Grandma B was first posted on the “Real Whitby” website, but after a series of e-mails from a certain Andrew Docherty, who first wrote to Real Whitby in this regard on 22 August 2011 (see below), and is the “Head of Civic, Democratic & Legal Services – Assistant Director Governance and ICT” of the City of York Council (CYC), it was taken down and put on this blog instead.

Andrew Docherty joined CYC a year or so ago and has played an active role in the abuse of Grandma B, as can be seen from various items of correspondence posted on this blog and on the Real Whitby website.

He has committed a series of criminal offences in this case and not just this particular instance of harassment. He is also an active participant in the conspiracy to defraud Grandma B of her assets, has withheld evidence of abuse from the safeguarding investigation to pervert its outcome and is the sort of active, habitual criminal that is welcome in the senior management of the corrupt City of York Council.

Of course, the crimes he has committed have been reported to North Yorkshire Police (NYP), but the report has been ignored, despite the fact that the police have a statutory obligation to investigate all allegations of harassment of a vulnerable person, as Grandma B, 82 years old and disabled, indisputably is.

The persistent inaction of NYP in this case to protect Grandma B, when they have made several failed attempts to arrest her carer on the basis of false allegations, is but one indication of how its senior police officers are actively involved in the conspiracy with officers and councillors of CYC to defraud Grandma B (and how many other defenceless old ladies on a wheelchair?).

On receipt of the first threatening e-mail, Nigel of Real Whitby replied to Andrew Docherty pointed out what the law is and asking him to provide the evidence supporting his claims of defamation (well, actually libel, as any good solicitor would know, but obviously Dear Andy has a problem with that) under the terms of the Freedom of Information Act. If there was any such evidence, producing it should not be a problem, right?

There was then a pregnant pause, so Nigel reminded Dear Andy to reply a few days later. Nigel also took the opportunity of pointing out the law to CYC’s Head of Legal Services, who seems to be rather ignorant of it himself. You might ask yourself why taxpayers money is being wasted on the salary of a Head of Legal Services who does not seem to know the basics of law.

The crucial point here is that a local authority would be acting beyond its powers and outside the law if it were to pursue any claims of defamation. Officers and councillors may pursue private claims at their own cost, but a local authority may not. Strange the Head of Legal did not know that already, particularly as chapter and verse had been given on the very website in the very thread he was complaining about. Nigel reminded him of this.

Nigel then concluded by pointing out that Dear Andy’s threats amounted to harassment, a criminal offence. As mentioned above, Dear Andy is an habitual criminal and there is enough evidence to jail him, if the police were to do their job and arrest him…

What sort of local authority employs habitual criminals in senior positions? Corrupt local authorities like the City of York Council.

A person of integrity who had made a genuine error would apologise for his mistake, but course, Dear Andy did not.

And what became of the application for sight of the evidence supporting the defamation allegation?
Did CYC apply the law to this application? Don’t need three guesses here, do we? Is silence really golden?

However, Dear Andy did finally get back with a answer – of sorts. A Refusal Notice. What else, eh? If there was any such evidence, producing it should not be a problem, right?

This Refusal Notice is tantamount of admission to having committed a criminal offence of harassment. Every CYC councillor has been informed of his criminal behaviour. They have not reacted. A known, active, habitual criminal is Head of Legal of CYC and not a single councillor has a problem with this….

Dear Andy’s coup de grâce here was to state, ‘I have no intention of entering a legal debate with you’. No, I bet you don’t. You’ve lost it already.

Instead, Dear Andy passed the buck to his boss Ian Floyd, who has stated he will ‘respond as soon as I am able to.’

Will that be in our lifetimes or will he instead opt to exercise his right of silence? Watch this space for further news.

So Dear Andy, why not save the taxpayer a lot of money and admit you are a blatant liar and a habitual criminal? That would be telling the truth, eh?

I look forward to hearing your counter-rebuttal in due course. 🙂

Here are the e-mails:

———- Forwarded message ———-
From: “Docherty, Andrew”
Date: Aug 22, 2011 4:01pm
Subject: Notice to remove material from message board
To: realwhitby@gmail.com

Dear Sir,

I am writing to give you notice that the message thread which appears here:

http://www.real-whitby.co.uk/the-abuse-of-grandma-b-by-peter-hofschroer

contains defamatory material. Legally you are treated as being the publisher of this material and will be liable to have proceedings commenced against you unless you remove the thread immediately.

Please notify me that you have done so. Many thanks.

Yours faithfully,
Andy Docherty
Assistant Director Governance and ICT

City of York Council
01904 551004            01904 551004

—– Original Message —–

From: Nigel

To: andrew.docherty@york.gov.uk

Sent: Tuesday, August 23, 2011 9:13 AM

Subject: Allegations of libel

Mr Andy DOCHERTY – Assistant Director Governance and ICT – City of York Council

Andy,

My attention has been drawn to an email purporting to be from you and now appearing on the Real Whitby news-blog. I have copied it below for your convenience of reference. The email arouses conspicuous public interest.

The content of that email implies that you are in possession of information that you contend is evidential of the fact that the Real Whitby article contains ‘defamatory’ statements. Defamation in written form is known as libel.

As I am sure you are aware, the DirectGov website offers guidance on the application of the Freedom of Information Act 2000:

http://www.direct.gov.uk/en/governmentcitizensandrights/yourrightsandresponsibilities/dg_4003239

In particular, I draw your attention to the following excerpt:

The Freedom of Information Act gives you the right to ask any public body for all the information they have on any subject you choose. Unless there’s a good reason, the organisation must provide the information within 20 working days. You can also ask for all the personal information they hold on you.

Under the auspices of the FOIA, please treat this as a formal request to produce all information held by the City of York Council such as provides evidence that all or any of the remarks reproduced on the Real Whitby article that is the subject of your email are untrue.

You have twenty working days in which to provide that information. Meanwhile, I await your acknowledgement of my request accompanied by a designated FOIA number. Thank you.

For your information, it is my preference to be addressed by my given name – ‘Nigel’ – and I find it deeply offensive to be addressed as ‘Mr Ward’ or ‘Mr Nigel Ward’. You will oblige me by adhering to my stated preference in future correspondence.

It is accepted ‘best practice’, in the interests of transparency, to include all preceding emails of a given ‘thread’ within the textual body of all subsequent emails on that topic, this giving all parties a convenient overview of the correspondence thus far. I would be obliged if you would adhere to that ‘best practice’ in future correspondence.

For clarity, and in the interests of transparency, I reserve the right to include members of the press and public as undisclosed recipients in my correspondence, and to publish that correspondence in the media and on the world wide web.

Yours, with very kind regards,

Nigel.

“For too long those in power made decisions behind closed doors, released information behind a veil of jargon and denied people the power to hold them to account. This coalition is driving a wrecking ball through that culture – and it’s called transparency.” – [David Cameron]

“If councillors and council officers are to be held to account, the press and public need access to the information that will enable them to do it. If town halls want to reduce the amount they spend on responding to freedom of information requests they should consider making the information freely available in the first place. The simple act of throwing open the books, rather than waiting for them to be prised apart by the force of an FOI, might even save a few pounds in the process.” – [Eric Pickles]

—– Original Message —–

From: Nigel

To: andrew.docherty@york.gov.uk

Sent: Friday, August 26, 2011 3:41 PM

Subject: Allegations of libel/FOIA request [OPINION] [2]

Mr Andy DOCHERTY

Head of Civic, Democratic & Legal Services – Assistant Director Governance and ICT – City of York Council

Andy,

I note with disappointment that you have neither acknowledged nor responded to my Freedom of Information request of 23rd August 2011. Please do so.

With reference to a related topic, I draw your attention to a posting on the Real Whitby news-blog that may perchance have escaped your notice:

Richard Ineson

August 13, 2011 – 8:43 pm

I do not think that it would be possible for any officers or members of the Council to take action for defamation, unless they did so on their own behalf and at their own expense.

In 1993, after Derbyshire County Council tried to sue the ‘Sunday Times’ over critical articles about the administration of its pension fund, the House of Lords ruled, ‘It is if the highest importance that … any governmental body should be open to uninhibited criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.’

Individual officers or Councillors may bring their own claims for libel but they cannot use taxpayers’ money to do so.

The legislation dealing with this is The Local Authorities (indemnities for members and officers) Order 2004 which states, ‘No indemnity may be provided under this order in relation to the making by the member or officer indemnified of any claim in relation to an alleged defamation of that member or officer.’

Should any governmental body fund any such action, then they would be acting ultra vires and in this case, the Councillors could be surcharged for any expenditure involved in any claim.

In my view, Richard is quite correct:

http://www.legislation.gov.uk/uksi/2004/3082/made

Restrictions on indemnities 6:

(1) No indemnity may be provided under this Order in relation to any action by, or failure to act by, any member or officer which:

(a) constitutes a criminal offence; or

(b) is the result of fraud, or other deliberate wrongdoing or recklessness on the part of that member or officer.

(2) Notwithstanding paragraph (1) (a), an indemnity may be provided in relation to—

(a) subject to article 8 below, the defence of any criminal proceedings brought against the officer or member; and

(b) any civil liability arising as a consequence of any action or failure to act which also constitutes a criminal offence.

(3) No indemnity may be provided under this Order in relation to the making by the member or officer indemnified of any claim in relation to an alleged defamation of that member or officer but may be provided in relation to the defence by that member of officer of any allegation of defamation made against him.

I am sure you will agree that, in lay language, a Councillor or Officer may not draw on the public purse to bring a libel action against the author or publisher of an allegedly libellous statement, though he/she may do so to defend against an accusation of libel brought against him/her by another party. On this occasion, the latter eventuality is not the case.

I am privy to your correspondence with Glenn. You may wish to reflect upon that in relation to the Protection from Harassment Act 1997 and 2007. The reasonable and prudent man would indulge in no hesitation before declaring that it was your intention to intimidate and coerce, by implied threat of legal action, on or in behalf of both Councillors and Officers. You have done so in your capacity as Head of Civic, Democratic & Legal Services; it follows, therefore, that you have done so during salaried time, and therefore at a cost to the public purse.

You are clearly aware that a Council may exercise only such authority as is vested in it by Act of Parliament. To go beyond such authority is to act ‘ultra vires’. That authority, as we have seen, does not include the right or power to intimidate or coerce or to engage in court action on or in behalf of Councillors or Officers in respect of allegations of defamation (libel).

Charles Arnold-Baker, that peerless authority on Council conduct, cites the following sources:

Jones v. Swansea City Council [1989] 3 All ER 162.
AG v. Westminster City Council [1924] 2 Ch 416, CA.
LGA 1988 Part 1 and Ch 20 A above.
Ashbury Railway Carriage Company v. Riche [1875] LR 71 HL 653
Opinion of Cheshire & Fifoot in ‘Law of Contract’ 6th Edn. p 366.

Again in layman’s terms, the long and the short of all that is that if the City of York Council were to instigate legal proceedings against Glenn, on or in behalf of certain Officers and/or Councillors, it would be going beyond its powers, as conferred upon it by Act of Parliament – it would be acting ‘ultra vires’,

And, furthermore (as Charles Arnold-Baker rightly points),

‘…the liability falls PERSONALLY upon the Councillors or Officials who authorised it’.

That would be you, Andy. In my view, the correct way forward would be for you to write to Glenn apologising personally for having overstepped your (and your Council’s) authority, and asking him to consider your previous ‘edicts’ withdrawn. And, of course, to instigate an immediate and thorough-going investigation – a Council has a duty not only to be beyond reproach, but to be seen to be beyond reproach.

It would seem to me that there is much to recommend this course of action. After all, the material that you allege to be defamatory has now been propagated even more widely – not only on the internet, but in thousands (perhaps by now tens, or even hundreds, of thousands) of emails.

Thus far, you have succeeded only in creating the popular perception that City of York Council wishes to be known as a Kafkaesque organisation more closely resembling the STASI than the caring Local Authority mythologized on its web-site.

In fact, I would (and do) go further. I contend that your actions have achieved nothing less than bringing the Council into disrepute. Instead of exercising a duty of care to examine the evidence of these profoundly disturbing and very grave allegations, you have sought to sweep them away from the glare of public scrutiny. Shame on you.

So I will conclude this email by instructing you to record it as a formal Corporate Complaint against you, personally, Andy Docherty, under the provisions of the Officers and Employees Code of Conduct – which I have not been able to locate on the CYC web-site, but which (I have no doubt) includes the matters of failing to evince respect, and of acting in such a way as to risk bringing the Council into disrepute. Thank you.

This may be a timely moment to remind you, Andy, that you and I stand in two distinct and separate relationships to one another.

I am a member of the public; twenty-four hours a day, every day.

You have two personae:

1) The position defined by the grandiose sequence of titles listed at the head of this email, and

2) A human being, a member of the public, Andy Docherty – son, husband, father.

I have been addressing the former – a paid public servant, who might, perhaps, benefit from the amicable reminder that he is also the latter – a human being. Now, addressing the latter, again in layman’s terms, it’s time to get off your high horse, kiddo.

Kindest regards,
Nigel

—– Original Message —–

From: Nigel

To: foi@york.gov.uk

Sent: Wednesday, August 31, 2011 9:18 PM
Subject: FOIA request [3] 23rd August 2011.

FOIA Officer – City of York Council

Hi,

On Tuesday 23rd August 2011, in correspondence with CYC’s Mr Andy Docherty (Head of Civic, Democratic & Legal Services), I lodged a request for information under the provisions of the Freedom of Information Act 2000. Mr Docherty has neither acknowledged nor responded to my request; nor has he offered me a designated FOIA number, as the provisions of the Act require.

Would you turn your attention to rectifying that omission at your very earliest convenience, please?

Thank you.

May I remind you that it is considered ‘best practice’ to retain all emails of a given ‘thread’ within the textual body of each subsequent email, thus offering all parties a convenient overview of the matter thus far. I would be grateful if you would adhere to that ‘best practice’ in any future correspondence.

I have inserted my request here; it reads:

“Under the auspices of the FOIA, please treat this as a formal request to produce all information held by the City of York Council such as provides evidence that all or any of the remarks reproduced on the Real Whitby article that is the subject of your email are untrue.”

You will find the original towards the bottom of my first email to Mr Docherty, reproduced below for your convenience of reference.

The article to which my request refers can be located here:

http://www.real-whitby.co.uk/the-abuse-of-grandma-b-by-peter-hofschroer

and, more directly, here:

https://grandmabarbara.wordpress.com/

For clarity, Mr Docherty has suggested that the article on the Real Whitby web-site contains defamatory remarks. As you must be aware, true statements of fact cannot constitute defamation. I am seeking any information held by the Council that indicates that any one (or more) of the statements contained within the RW article is untrue, ie: false.

If it is the case that the Council holds no information that is evidential of the falsity of any one (or more) of the statements contained within the RW article, than the Council is at liberty to so state.

That would be most helpful.

Conversely, if the Council does indeed hold information that indicates the falsity of any one (or more) of the of the statements contained within the RW article, then, under the provisions of the Act, I am requesting sight of that information, and the Council has twenty working days in which to provide it; i.e: not later than 21st September 2011.

I trust that is clear. By all means ask if you are unsure exactly which information I am seeking.

Please be aware that it is my preference to be addressed by my given name – ‘Nigel’ – in formal correspondence. I find the appellation ‘Mr Ward’ offensive and I would be most grateful if you would refrain from addressing me in that manner. Thank you.

I look forward to hearing from you, by return.

Kind regards,
Nigel

—– Original Message —–

From: Docherty, Andrew

To: Nigel

Sent: Monday, September 05, 2011 10:59 AM

Subject: RE: Allegations of libel

Dear Nigel

REFUSAL NOTICE

Thank you for your request for information dated 23 August 2011 concerning Allegations of Libel.

In accordance with the provisions of Section 14 of the Freedom of Information Act 2000 (FOIA 2000), your request is refused.

Section 14 (1) FOIA 2000 provides that a public authority is not obliged to comply with a request for information if the request is vexatious. In my opinion your request is manifestly unreasonable and obsessive and a vexatious request. Your request is harassing to the authority and appears to be designed to cause distress to staff who have been the victims of serious defamation.  Your request also lacks any serious purpose or value.

If you are unhappy with the way your request for information has been handled, you can request a review by writing to:

Ian Floyd
Director of Customer & Business Support Services
9 St Leonard’s Place
York YO1 7ET

If you remain dissatisfied with the handling of your request or complaint, you have a right to appeal to the Information Commissioner at:

The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Telephone: 0303 123 1113            0303 123 1113       Website: http://www.ico.gov.uk

There is no charge for making an appeal.

In relation to your further e-mail dated 26th August I have no intention of entering a legal debate with you. I would only say that, like much material available on the internet, the advice you quote is inaccurate. Many of the larger solicitors firms have local government practices and I suggest that you approach one of them if you require accurate advice on this matter.

Yours sincerely
Andy Docherty
Assistant Director Governance and ICT
City of York Council

From: Nigel
Sent: 05 September 2011 18:04
To: Floyd, Ian
Subject: Re: Refusal Notice – FOIA request [3] 23rd August 2011.

Mr Ian FLOYD – Director of Customer & Business Support Services – CYC

Ian,

Pursuant to the Refusal Notice issued by Mr Andy Docherty, copied below for your convenience of reference, I write to request a review.

Incidentally, my Freedom of Information request of 23rd August 2011 has yet to be recognised by a formal acknowledgement; nor has it been assigned a designated FOIA number. Each of these facts constitutes a breach of the terms of the FOIA 2000.

As you will readily understand (when you have perused the accompanying emails), it is the case that Mr Docherty has issued threats, widely publicised on the blogosphere, of legal action for libel against a popular blogger.

Implicit in those threats is the claim that certain allegations published on the blogger’s newsblog are libellous. You will be aware that the onus for proving libel in this case rests with Mr Docherty. If it is the case that Mr Docherty is unable to prove libel, then it follows that his draconian (Mr Docherty’s own terminology) threats of legal action are utterly without foundation.

In my view, it is also the case that Mr Docherty’s threats contravene the terms of The Local Authorities (indemnities for members and officers) Order 2004, which prohibits Councils from mobilising publicly funded resources for the purposes of pursuing libel actions on or in behalf of elected members or paid public servants. I have informed him to that effect, as you will see from the correspondence copied below.

To continue:

The huge number of comments posted by members of the public in response to the various stories on the internet demonstrates the extent of the public interest in this matter. You will no doubt be aware of the overweening importance of the public interest element in respect of attempts to invoke Section 14 (1) of the FOIA.

In his Refusal Notice, Mr Docherty has stated:

1) In my opinion your request is manifestly unreasonable and obsessive and a vexatious request

and

2) Your request is harassing to the authority and appears to be designed to cause distress to staff who have been the victims of serious defamation.

and

3) Your request also lacks any serious purpose or value.

In numerical sequence, I refute these remarks, thus:

1) There is clearly nothing unreasonable about asking CYC to produce the information – if it exists – that substantiates Mr Docherty’s contention that the internet stories were/are libellous. If that information does not exist, the public will be interested to learn that Mr Docherty has been somewhat cavalier with the truth.

To claim that a single information request is ‘obsessive’ is to use the word with no regard for its meaning. The Free Dictionary ( http://www.thefreedictionary.com/obsessive ) defines ‘obsessive’ thus:

ob·ses·sive (b-ssv, b-)

adj.

1. Of, relating to, characteristic of, or causing an obsession.

2. Excessive in degree or nature.

My request does not conform to [1], above. Nor does it conform to [2], since a single request cannot be said to be excessive either in degree or nature.

Similarly, ‘vexatious’:

vex·a·tious(vk-sshs)

adj.

1. Causing or creating vexation; annoying.

2. Full of annoyance or distress; harassed.

3. Intended to vex or annoy.

If Mr Docherty feels himself to be annoyed or distressed by my request for information that, when provided under the FOIA (and, therefore, into the public domain), may demonstrate that he has acted beyond his authority, then he should look to his own performance and his own conscience. It has not been my intention to vex or annoy; Mr Docherty is not (I presume) possessed of a crystal ball, by means of which he can discern the intentions of others.

2) A single request cannot reasonably be said to harass the authority. Before Mr Docherty can credibly claim that a single request has caused distress to members of staff who are ‘victims of serious defamation’, he will need to show that the members of staff to whom he has referred (without having identified) are even aware of my request. In any case, he qualifies his claim with the words ‘appears to be designed’; he may rest assured that the purpose of my request was as stated above. It is (and was) never my intention to cause distress – only to establish if Mr Docherty was in possession of any evidence to support his contention that the stories are/were libellous. If Mr Docherty has interpreted my request otherwise, he has done so in error.

3) To suggest that my request lacks serious purpose or value is patently absurd. If transparency and accountability are to be regarded by Mr Docherty as something other than objects of serious purpose, then he is at odds with both David Cameron and Eric Pickles who have emphatically declared otherwise.

Furthermore, it is self-evident that there is an unacceptable conflict of interests in the circumstance of Mr Docherty being the one who arbitrarily dismisses my legitimate request, in the public interest, for information that is likely to impact negatively on Mr Docherty himself; when a Judge stands accused, he may not preside over his own trial.

In summation, I look to the complete fulfilment of my FOIA request not later than 22nd September, in accordance with the terms of the Act. Thank you.

Regarding the final paragraph of Mr Docherty’s email to me of today’s date, you may convey to Mr Docherty the information that his patronising and condescending remarks are disrespectful and most certainly not appreciated; when I want his advice, I will ask for it.

For your information, it is my preference to be addressed by my given name – ‘Nigel’ – and I find it deeply offensive to be addressed as ‘Mr Ward’ or ‘Mr Nigel Ward’. You will oblige me by adhering to my stated preference in future correspondence.

It is accepted ‘best practice’, in the interests of transparency, to include all preceding emails of a given ‘thread’ within the textual body of all subsequent emails on that topic, this giving all parties a convenient overview of the correspondence thus far. I would be obliged if you would adhere to that ‘best practice’ in future correspondence.

For clarity, and in the interests of transparency, I reserve the right to include members of the press and public as undisclosed recipients in my correspondence, and to publish that correspondence in the media and on the world wide web.

Yours, with very kind regards,
Nigel.

—– Original Message —–
From: Floyd, Ian
To: Nigel
Sent: Tuesday, September 06, 2011 1:42 PM
Subject: RE: Refusal Notice – FOIA request [3] 23rd August 2011.

Nigel

I can confirm receipt of your email, and I will review the matters raised in it and respond as soon as I am able to.

Ian

——– Original Message ——–
Subject: Re: Refusal Notice – FOIA request [3] 23rd August 2011.
Date: Tue, 6 Sep 2011 14:34:49 +0100
From: Nigel
To: Floyd, Ian

Mr Ian FLOYD – Director of Customer & Business Support Services – CYC

Ian,

Thank you for your very prompt and courteous email.

I look forward to hearing your counter-rebuttal in due course. 🙂

Kind regards,
Nigel

*****

You guessed. Right to silence.