Mr E Cairns
72 Hillhouse Street
GLASGOW G21 4HP
1 April 2010
Mr J Martin
The Scottish Public Services Ombudsman
4 Melville Street
EDINBURGH EH3 7NS
Dear Mr Martin,
COMPLAINTS AGAINST SCOTTISH ENTERPRISE, AUDIT SCOTLAND AND THE SCOTTISH GOVERNMENT’S JUSTICE DIRECTORATE
I refer to your letter dated 31 March 2010.
Although your letter is headed Complaint against Scottish Enterprise you actually refer to the three complaints identified above, not only to my complaint against Scottish Enterprise.
You have not addressed even one of the points I raised in any of these complaints.
Several statements in your letter are simply disingenuous and would tend to raise a reasonable suspicion of impropriety in the mind of an independent observer.
The statements are listed below in their contexts and examined:
1. ‘I am writing further to Ms Cockburn’s letter to you dated 23 March 2010. As Ombudsman, I have taken the opportunity to review your complaint personally and this is why I am writing instead of Mr Carney.’
‘I have read your letters dated 16 March 2010 and 26 March 2010. I note that you are unhappy with Mr Law’s decision on your complaint against Scottish Enterprise.’
‘I have noted all the points you have raised and reviewed the file. Having done so, I have concluded that Mr Law’s decision on your complaint was correct and based on a full and fair assessment of all relevant information. Consequently, I will not be re-opening your complaint.’
You are referring to the Scottish Enterprise complaint in this section.
My letters and very substantial documentary evidence provided to you in respect of this complaint went into considerable detail to specify how Mr Law’s decision was not at all correct nor was it based on a full and fair assessment of all relevant information, contrary to your assertion which is completely devoid of any reference to the available documentary evidence.
This undoubtedly adds considerable weight to the suspicion of impropriety. It appears that in view of the overwhelming evidence proving my position and disproving Scottish Enterprise’s position you have deliberately disregarded the evidence in order to maintain your own personally biased and unfair approach towards me.
No matter what the facts show it would appear that you have decided that my complaint must be rejected and a reasonable suspicion arises that you want to cover for the wrongdoing of several public bodies that otherwise would be plainly revealed by acknowledgment of the facts.
Your effective misrepresentations of the facts in the context of my complaints are in breach of my rights under the terms of the Data Protection Act 1998.
Separately, I am legally entitled to the same rights and treatment as any other complainant, including the right to have the evidence that has been provided properly and impartially assessed, and the right to be given valid reasons for your decisions.
These are fundamental rights under the terms of the Human Rights Act 1998 and in particular under the terms of the European Convention on Human Rights, Article 6.
Section 6 of the Human Rights Act 1998 provides, to the extent relevant:
‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’
‘(6) ’An act’ includes a failure to act....’
According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 106:
‘The fact that the Convention imposes positive as well as negative obligations is reflected in the terms of the Human Rights Act 1998. (Section 6(6))’
At page 253 the following points are relevant:
‘Fair administration of justice’
‘Procedural propriety and the prohibition of the retroactive imposition of criminal liability lie at the heart of any legal system grounded in the rule of law. The European Convention on Human Rights, Articles 6 and 7 codify those crucial principles of the fair administration of justice which form the bedrock of European legal tradition.......’
‘The central importance of Article 6 is reflected in the volume and scope of applications claiming violation of its guarantees. This provision has been employed by applicants to challenge aspects of criminal, civil and administrative procedures of European legal systems, and the European Court of Human Rights has been at pains to protect the fundamental notion of the effective delivery of fair justice.........’
Article 6 of the European Convention on Human Rights provides, to the extent relevant:
‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 280:
‘Practical and effective access implies the right to have a legal issue brought before a court or tribunal without improper or impractical difficulties.’
A relevant extract from the Scottish Government’s policy statement on fraud is reproduced below:
‘SCOTTISH GOVERNMENT FRAUD POLICY STATEMENT’
‘1. The Scottish Government (SG) requires all staff at all times to act honestly and with integrity........... The SG will not accept any level of fraud or corruption; consequently, any case will be thoroughly investigated and dealt with appropriately. The SG is committed to ensuring that opportunities for fraud - both internal and external - are reduced to the lowest possible level of risk.’
‘Definition of Fraud’
‘2. The term "fraud" is commonly used to describe a wide variety of dishonest behaviour such as deception, forgery, false representation, and concealment of material facts. It is usually used to describe the act of depriving a person of something by deceit, which may involve the misuse of funds or other resources, or the supply of false information.’
2. ‘While reviewing your complaint, I have noted that since May 2009 you have brought four complaints to my office which relate to your allegations of fraud at Ayrshire Enterprise in 1993 and to subsequent investigations of these allegations by public bodies. You have made two complaints against Audit Scotland, one against the Scottish Government’s Justice Directorate and one against Scottish Enterprise.’
‘I have reviewed all these complaints in detail and it has become apparent to me that none of the issues you have raised are suitable for consideration by my office.’
Your complete failure to refer to any of the details or to address any of the points of these complaints renders your review lacking in credibility.
Again, I am legally entitled to the same rights and treatment as any other complainant, including the right to have the evidence that has been provided properly and impartially assessed, and the right to be given valid reasons for your decisions.
Your apparent sudden realisation after months of handling these complaints that none of the issues I have raised are suitable for consideration by your office is simply not credible.
A much more probable reason is that you want to avoid such consideration in the light of the considerable evidence recently provided to you in support of my position because that evidence proves what you do not want it to prove.
3. ‘This is because I consider that the complaints you have brought to us fundamentally relate to a historic matter, which has already been the subject of multiple investigations by public bodies over a number of years.’
Historic? That’s a clever ploy. Why don’t you try offering that one to the Roman Catholic priests, some of whom are currently facing allegations of child abuse going back thirty or forty years. See how the victims react.
In truth only a fundamentally unjust person would suggest that serious wrongdoers ought to be exonerated with the passage of time alone. You ought to be ashamed of yourself for perpetrating this puerile nonsense.
In any event my specific complaints have all been based upon relatively recent performances by the public bodies that are the subjects of the complaints.
In all these cases, the grounds of complaint arose in 2009 and 2010 because that is when the evidence became available to me.
Your desperate attempt to disparage me has no valid basis in fact and would rather tend to reinforce any reasonable suspicion of impropriety on your part in the mind of an independent observer.
You also imply here that previous investigations by public bodies were unfavourable towards me in this case, which is not true at all.
For example in 2006 the Faculty of Advocates advised me that I have grounds for a complaint against the Scottish Government.
The Legal Services Ombudsman concurred with that view in 2007.
The Information Commissioner provided assessments in my favour in 2009 and 2010.
Any prolongation of the issues has in reality been caused by the stonewalling, the intransigence and the fundamental dishonesty of the public bodies in question. It has not been caused by any lack of effort or delay on my part.
Your decision effectively to reward certain public bodies for their stonewalling, intransigence and fundamental dishonesty in this case is perverse and shameful.
4. ‘I am also aware that you have sought to raise similar issues in the courts over a prolonged period of time, to the extent that you have been declared a Vexatious Litigant under the Vexatious Actions) Scotland Act 1898. Consequently, l have decided that it is not proportionate for my office to consider – or to ask public bodies to respond to – any complaints that are about, or which relate in any way to, the events of 1993 or their subsequent investigation. I have, therefore, instructed my staff not to accept any further complaints from you about these issues.’
These statements reveal an immoderate and hostile attitude towards me which is entirely inappropriate and unlawful.
In any event I have not sought to raise similar issues in the courts over a prolonged period of time.
Only after several years of being stonewalled did I resort to legal action against Scottish Enterprise and their crooked colleagues, in 2003.
That litigation was hampered firstly by my status as an undischarged bankrupt, which was attributable to the financial difficulties that were caused by the unfair conduct of Scottish Enterprise and other public bodies towards me.
Secondly the Lord Advocate’s corrupt conduct against me in secret opposition to my claims began very shortly afterwards therefore your reference to a prolonged period of litigation is fictional.
Evidence that I have submitted to the authorities includes a letter sent by Ms Claire Cullen at the Office of the Solicitor to the Scottish Executive to solicitors Anderson Fyfe who were at that time acting for Scottish Enterprise Ayrshire, Scottish Enterprise and Scottish Enterprise director Mr Andrew Downie, my opponents in separate live civil actions and, simultaneously, suspects in the review of the criminal investigation based upon the same allegations relating to the £187,069 fraud.
The text of that letter, dated 18 August 2004, is reproduced below:
‘PETITION UNDER SECTION 1 OF THE VEXATIOUS ACTIONS (SCOTLAND) ACT 1898’
‘I refer to previous correspondence, and in particular to my colleague’s letter to you dated 7 July 2004.’
‘The Lord Advocate has now instructed that the Petition be presented in terms of section 1 of the Vexatious Actions (Scotland) Act 1898. Counsel has been instructed and has been asked to deal with this Petition promptly.’
‘Claire F Cullen’
The live civil actions and the criminal investigation were not concluded until several months later, in 2005.
This shows that during the time that he was meant to be independently directing a criminal investigation by Strathclyde Police into allegations of fraud and conspiracy to pervert the course of justice the Lord Advocate was in reality secretly colluding with the suspects to nullify my related civil claims against them.
Outrageously, the suspects were being informed that the Lord Advocate was taking urgent action against me, the whistleblower at the centre of the allegations of criminality, even before the criminal investigation had been concluded and before important evidence that the police had undertaken in writing to collect from me had in fact been collected for consideration. That evidence was actually never collected by the police, providing additional grounds for grave concern about the conduct of the Lord Advocate and the other conspirators.
The letter proves that the Lord Advocate was not acting independently at all, nor was he acting in the public interest or in the interests of justice, and that several individuals were involved in a conspiracy to pervert the course of justice. The letter also reveals that this corrupt correspondence with the solicitors acting for my opponents had been going on for some time, since it refers to previous correspondence on the matter.
The Lord Advocate’s supposed independent direction of the police and prosecutors had actually been biased against me from an early stage, contrary to the most fundamental requirements of justice, completely at odds with the Human Rights Act 1998 and the European Convention on Human Rights.
In any event vexatious litigants are not at all precluded from making formal complaints.
Your actions against me and statements of your intentions in respect of my complaints are therefore unlawful and frankly disgraceful. Your conduct is such as would tend to bring your office into disrepute.
These statements of intent are based upon inaccurate personal data in breach of the Data Protection Act 1998.
5. ‘If you do submit further complaints about these matters, they will be destroyed without acknowledgement. I have also written to Audit Scotland, Scottish Enterprise, and the Scottish Government’s Justice Directorate in order to confirm my position on your complaints. I can confirm that my decision is final and that I will not enter into further correspondence with you about this matter.’
Again, this reveals an immoderate and hostile attitude towards me which is entirely inappropriate and unlawful.
You are trying to deny me several basic legal rights as already detailed above.
Your stated intentions here, apparently in concert with these other public bodies, could reasonably be regarded as evidence of the operation of a conspiracy for which you will all have to answer in due course.
You appear to be labouring under a delusion that you are above the law.
I am assured that those who persist in trying to cover for the corrupt conduct of their colleagues and co-conspirators will get what they deserve given time, as has been shown to be the case in numerous other instances of corruption.
The public will be very unforgiving towards those who effectively condone and whitewash the theft of a substantial amount of taxpayers’ money, in this case £187,069.
Fundamentally, your decision is contrary to the public interest because it does nothing to counter the theft of £187,069 of taxpayers’ money by employees of Enterprise Ayrshire and the destruction of the reputation and career of an independent financial expert who acted in the public interest to resist that criminality.
Further, your decision does nothing to counter the devious and dishonest conduct of managers in Scottish Enterprise and Audit Scotland in particular who conspired to cover up the wrongdoing.
No matter how much effort you put into trying to attribute wrongdoing to me unfairly the truth will inevitably come to light for all to see and that will justify my honest actions while condemning your dishonest actions.
As my professional body wrote to the government in 1994:
‘‘Mr Cairns is a qualified management accountant and a member of this Institute, and we thought it might be helpful if the Institute clearly set out its position in this matter to you in the event of the case being re-opened.’
‘The Institute believes that the action taken by Mr Cairns in reporting to his superiors the apparent discrepancy of £187,069 in the main account of Ayrshire Enterprise was entirely correct, and that in doing so he was acting completely in accordance with the Ethical Guidelines of this Institute.’
Similarly, in the same year my MP Michael Martin’s letter to the Secretary of State for Scotland stated:
‘Enclosed is a letter from my constituent Mr Eddie Cairns regarding his dismissal from Enterprise Ayrshire.’
‘It would appear to me that Mr Cairns was punished for acting in a very honest and professional manner’.
‘I am at a loss to understand why the sum of £187,069 was omitted from the accounts of this public body for so long’
‘I would be obliged if this matter could be fully investigated’.
Very significantly, disclosures obtained from Audit Scotland in May 2009 revealed that responses from Scottish Enterprise and Scottish Office Ministers in this case were ‘disingenuous’.
DATA PROTECTION ACT 1998
Separately, I have reason to believe that documents have been produced and are held on SPSO files containing personal data about me since I made my previous data subject access request.
In these circumstances I formally request data subject access disclosures relating to such information.
I am also concerned about inaccurate and damaging personal data held in SPSO files as detailed above. The inaccuracies require to be rectified.
The data in question do not comply with the fourth data protection principle:
‘Personal data shall be accurate and, where necessary, kept up to date.’
Part I of the Data Protection Act 1998 includes the following:
‘In this Act, unless the context otherwise requires - .......... ‘’personal data’’ means data which relate to a living individual who can be identified from those data or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.’
Part V of the Act notes the following:
‘The fourth data protection principle requires a data controller to keep personal data accurate, and where necessary, up to date. A data controller will be required to rectify, block, erase or destroy any inaccurate data, including any expressions of opinion based on inaccurate data.’
In Part II of the Act the following is noted with reference to the fourth principle:
‘The steps that the data controller must take in ensuring the accuracy of the data depend on the individual circumstances of the case. It is clear that the greater the chance of risking the rights and freedoms of the individual, the greater the steps must be in ensuring that the data are accurate.’
In accordance with section 10 of the Data Protection Act I want the SPSO to stop processing information about me based upon these inaccuracies within a reasonable time in the circumstances. If such processing continues without the inaccuracies being corrected this is likely to cause me unwarranted or substantial damage or distress.
I am legally entitled to a formal response from the SPSO on this point within 21 days and disclosures within 40 days.
Thereafter if you fail to provide adequate and lawful responses I will report the SPSO’s breaches of the Data Protection Act 1998 to the Information Commissioner.
I have copied this letter to Scottish Enterprise, Audit Scotland, the Scottish Government’s Justice Directorate, Mr Bob Doris MSP, Strathclyde Police, the Police Complaints Commissioner for Scotland and the Crown Office.
This is clearly a matter of public interest that would tend to undermine the public’s confidence in the administration of justice, justice not having been seen to be done.
This letter has therefore been put into the public domain as is entirely appropriate in these circumstances.