Mr E Cairns
10 September 2010
Mr John McNeill
Your refs: PCCS/00448/08 and
Dear Mr McNeill,
I refer to your report on the handling of my complaints by Strathclyde Police dated August 2010 and your letter dated 8 September 2010.
Your report contains significant falsehoods, evidence of unfair treatment and misleading statements in breach of my rights under the Human Rights Act 1998 and the Data Protection Act 1998.
I regard your recommendation to Strathclyde Police that they no longer consider or respond to any directly related complaint from me as completely unjustified. This constitutes a statement of your intention towards me that has been based upon inaccuracies, again in breach of my legal and civil rights.
Separately, you have made several defamatory statements that are insulting and damaging to my professional reputation. Your effective portrayal of me as a frivolous timewaster whose ‘letters are often confusing and difficult to understand’ is unfair and untrue.
Since many of my letters are in the public domain your derogatory comments about them can easily be assessed by any interested person. A reasonable suspicion could arise in the mind of an independent observer that your derogatory comments merely reflect your own inadequacy and bias.
Similarly, the extracts that are reproduced in this letter are plain and direct, not at all confusing and difficult to understand.
As detailed herein, several failures seriously undermine the following introductory statements about your role:
’The Commissioner is independent of the police service and performs his functions in a fair and impartial manner.’
‘Before considering a complaint, the Commissioner’s office obtains all papers held by the policing body against which the complaint has been made.’
‘These papers are considered alongside information provided by the applicant.’
‘Among the factors which the Commissioner takes into account are the following:’
· ‘whether the policing body’s response to the complaint is supported by all material information available;’
Contrary to these undertakings, your report appears to be biased and misrepresentative of the facts.
I intend taking appropriate action since in the context of a review of the handling by Strathclyde Police of my formal complaints your unfair treatment of me and your inaccuracies in respect of my personal data are unlawful and such conduct by a regulator is most certainly not in the public interest.
Your misconduct is such as would tend to bring your office into disrepute.
It is scandalous especially in this time of heightened public concern about financial irregularities and ineffective regulators that you should treat in this insulting manner a qualified accountant who acted honestly in the public interest by objecting to blatant fraud in Scottish Enterprise, a public agency.
Before you disparaged me in your report you knew that my professional body the Chartered Institute of Management Accountants had written to the government soon after this case arose in the following terms:
‘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.’
You also knew, because I had provided copies, that the police report and the Scottish Enterprise report had both concluded the following in respect of this money:
‘The receipt of ERDF money was brought into the July financial ledger on 18 August. The money was received in June 1993 and should therefore have been accounted for in this month.’
You knew that I had written to my supervisors on 17 August 1993 the following very important memorandum:
‘For the record, as I said to you both today, I am not comfortable with your instruction to exclude from Enterprise Ayrshire’s balance sheet funds received from the EC’
‘Your comment that the management accounts do not matter so much, being produced only for internal use, seems to underplay the potentially serious consequences of circulating figures that are incorrect.’
‘I stated to you both that I know this aspect of Scottish Enterprise’s finances is under investigation by the National Audit Office therefore you must accept my concern as genuine.’
‘I have been advised that such omissions from management accounts are in breach of the Institute’s ethical guidelines.’
You knew that I had been swiftly removed from the premises on the day that the correction was made, 18 August 1993, before any investigation had been carried out at all. The persons who had agreed to the omission of the £187,069 and quickly moved to cover their illegal conduct were clearly well aware of the fact that the omission was wrong.
You knew that agreeing to falsify the bank account in a public agency was a criminal conspiracy and that inviting me to enter into that conspiracy was also a criminal offence, being incitement to commit fraud
All these details were contained in the documents available for your review. Your angle that there was no evidence of fraud is false.
In my letter to the PCCS dated 8 January 2010 I highlighted an obvious fundamental requirement for your review in respect of this significant irregularity in the following terms:
‘By way of an update, I request clarification on just one point.’
‘Have you established whether or not anyone from Strathclyde Police has ever attempted to obtain a plausible explanation for the omission of £187,069 of cash received from the European Regional Development Fund, which was the reimbursement of taxpayers’ funds that had already been spent by Enterprise Ayrshire, from the accounts of Enterprise Ayrshire from 25 June 1993 until the morning after I put my formal objection to that omission into writing to my supervisors on 17 August 1993, and for the almost exactly simultaneous deposit of £187,000 into a Royal Bank of Scotland high interest account in the name of one of those supervisors?’
Your report entirely omits any direct response in respect of this very important issue and rejects all twelve heads of complaint.
For the sake of brevity I will focus in this letter on your performance only in respect of the first of these heads of complaint.
In response to that head of complaint, which was that Strathclyde Police had not carried out an adequate independent investigation into allegations of financial irregularities in Enterprise Ayrshire in 1993, you have produced a section in your report amounting to less than two sides of A4 size paper. (Your report on the handling of all twelve heads of complaint is contained in seven sheets of A4 paper, on average just over one side of A4 size paper and about two months of publicly funded effort by the PCCS for each head of complaint.)
In the light of the overwhelming documentary evidence supporting my version of events it is almost unbelievable that the publicly funded PCCS should spend almost two years producing such a paltry and unconvincing review and such an inadequate assessment of the handling of the first and main head of complaint.
In particular, your assertion that ‘At the time the applicant made his complaint the police file relating to the applicant’s original fraud allegation had been destroyed in accordance with the Strathclyde Police’s document retention policy’ is not the whole truth.
You knew when you made this statement that the officer in charge of the original police investigation, DS William Watters, had copied the police report to the Scottish Office and later to solicitors Maclay Murray and Spens.
You also knew when you wrote the statements quoted above that I had obtained a copy of that police report in 2003 and had immediately submitted it to Strathclyde Police along with several items of documentary evidence highlighting its many serious failures.
The copy that I obtained from the Scottish Office had been sent by DS Watters to the Scottish Office along with a compliments slip containing the words ‘With the Compliments of the Chief Constable of Strathclyde Police’, signed ‘W. Watters D/S Fraud Squad’.
Consequently, your assertions that ‘any investigation into the independence of the investigating officers would have been hampered by the destruction of the police file’ and that ’any enquiries conducted in relation to this complaint would not have been likely to yield reliable evidence’ are simply disingenuous.
Why have you completely disregarded the existence of this copy of the police report and all the evidence I submitted exposing its inadequacies?
In my letter to the PCCS dated 12 March 2009 I included the following relevant point in relation to the police report:
‘I have another question. How can Strathclyde Police maintain that all the evidence that I provided was available for the original investigation yet their report omits so much of it?’
‘Even if they had all the evidence the report’s omission of several key issues and most importantly all of my witness statements indicates that it was fundamentally defective.’
On 17 November 2008 I wrote to the PCCS including the following relevant points:
‘I received a letter from Strathclyde Police’s Detective Chief Superintendent Ruaraidh Nicolson dated 19 September 2008 including the following:’
‘‘My officers have assessed your correspondence and I can now confirm that a full investigation was undertaken in relation to your complaint in 1993 ......... Strathclyde Police has conducted a full and thorough investigation into your allegations when reported in 1993 and also when the enquiry was reviewed at your instigation in 2004 ........ all the evidential factors you identified were known to the Police and Procurator Fiscal in 1994 ........... and Strathclyde Police will not instigate any investigation unless new information comes to light.’’
But according to your report the police file had already been destroyed at the time my complaint was submitted so how could you effectively accept as valid all these fake references by Strathclyde Police to a supposedly full and thorough original investigation in 1993 when apparently they had nothing on file to support such statements? This was clearly incongruous but you have dishonestly persisted in supporting Strathclyde Police’s obvious lies on the point.
The truth is that the 1993 police report and all the available evidence support the head of complaint that Strathclyde Police failed to carry out an adequate independent investigation in 1993.
The following statements in this section of your report are also misleading and dishonest:
‘In the Commissioner’s view Strathclyde Police’s review of the applicant’s criminal allegation represents a far more comprehensive and reliable response to this complaint than would have been achieved through a complaint investigation.’
‘Having considered the report in relation to the allegations the Procurator Fiscal found no evidence to justify criminal proceedings.’
‘In addition no evidence was uncovered during Strathclyde Police’s review that raises doubt over the findings of the police investigation carried out in 1993.’
But you knew that, on the contrary, in 2006 Ms Valerie Stacey QC, now Lady Stacey, a judge at the Court of Session, had advised me, on behalf of the Faculty of Advocates, that I had grounds for a formal complaint to the Scottish Government about the Lord Advocate’s conduct in respect of this review by Strathclyde Police.
You also knew that in 2007 the Legal Services Ombudsman had issued an Opinion which concurred with that advice and agreed that the Lord Advocate’s alleged collusion and misconduct ought to be formally investigated.
Why have you omitted to mention that a complaint about the Lord Advocate’s misdirection of Strathclyde Police in respect of this review is currently being investigated by the Scottish Government?
Significantly, your report omits to mention that Strathclyde Police indicated their intention to have me categorised as a vexatious litigant in 2003, shortly after receiving new evidence from me that they were meant to be reviewing impartially.
Your report also omits to mention that the petition was raised in 2004, during several related live civil actions and during the lengthy criminal review in question, directed at that time by the Lord Advocate Mr Colin Boyd QC, now Lord Boyd of Duncansby, all of which were founded upon the same allegations that the Lord Advocate was then presenting to the Court as vexatious, clearly inconsistently.
How could the Lord Advocate’s own department spend a considerable time, about two years, investigating allegations that the Lord Advocate apparently belatedly regarded as vexatious? This was without doubt utter nonsense but you have dishonestly referred to the Procurator Fiscal’s involvement with Strathclyde Police’s review as if it was entirely reliable.
You knew that relevant evidence that I had already submitted to the authorities objecting to the vexatious actions petition raised by the Lord Advocate included 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 the review upon which you rely in this section of your report 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.
You knew all these relevant facts but you have completely disregarded them in your report and produced a disgraceful whitewash that bears little resemblance to the truth. Thereby you have betrayed the public’s trust in you to perform your functions in a fair and impartial manner with due regard for all material information available.
Consequently your report is gravely defective and overtly biased against me, which is a matter of very serious concern.
Since it has been based upon verifiable inaccuracies in respect of my personal data I will be reporting the matter in due course initially to the Information Commissioner for an assessment of your compliance, or non-compliance, with the Data Protection Act 1998 if you fail to respond appropriately to my section 10 notice recorded below.
The Information Commissioner has already confirmed that information relating to my complaints is regarded as personal data for the purposes of the Data Protection Act 1998.
I am naturally very concerned about the inaccurate and damaging personal data held in the files of the PCCS. 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 PCCS 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 PCCS on this point within 21 days.
In view of the very serious nature of the above and its relevance to wider issues in this case I have copied this letter to Strathclyde Police, to Scottish Enterprise, to the Scottish Government’s Ms Stella Manzie, Director General Justice and Communities, to Audit Scotland, to Mr Bob Doris MSP and to 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.