R.I.P. SBC? – Nigel responds
- - an “In My View” article by Nigel Ward
IN THE PUBLIC INTEREST
Many of my friends and Corruption Busters supporters may be aware that I have been less productive of late; I have been enduring some worrying health issues.
By now, tens of thousand of readers have seen the astonishing letter from Scarborough Borough Council’s Head of Legal & Democratic Services (democratic?) Ms Lisa DIXON, which I received by email on Thursday 28th March 2013 at 4:18pm. It is available to view here.
I have now recovered sufficiently to provide a response which I present here in the public interest. The Comments section, below my response, is open to all – elected members and paid public servants of Scarborough Borough Council not excluded.
—– Original Message —–
Sent: Sunday, March 31, 2013 5:26 PM
Subject: Response to your spurious letter of Claim (28/03/13 – 
Ms Lisa DIXON – Head of Legal & Democratic Services – Scarborough Borough Council
Cc: Mr Jim DILLON – CEO and Head of paid Service – SBC
Mr David KITSON – Senior Solicitor – SBC
IN THE PUBLIC INTEREST
In thanking you for your letter of 28th March 2013, provided as an email attachment – an AdobeImage.pdf document entitled [untitled].pdf – by Kimberly J HUDSON, I place on the record my assertion that it has caused me considerable stress, anxiety and distress by virtue of its overt threat of legal action (civil and criminal) against me, clearly intended to intimidate, bully and harass me in a manner contrary to the terms of the Protection from Harassment Act 1997.
Before completing my first reading of your letter, I experienced angina pectoris pains more extreme than I have ever previously experienced, necessitating immediate use of my prescription drug Nitrolingual, and causing me to fear that a heart attack was imminent. It was some time before I recovered sufficiently to read and digest the full nature of your letter.
The letter bears the signature of Lisa DIXON, whom I may wish to address on this matter in a personal capacity. To that end, please provide your full name, home address and contact details. Please also provide the name(s) of the pary(ies) under whos instruction your email was written, together with his/her/their home addresses and contact details.
May I began by reminding you that I have made a large number of requests that such communications as your letter should be confined to one of two formats: (i) AdobeText.pdf or (ii) within the textual body of the email. I regret to note that you appear unwilling to conform to universally endorsed ‘best practice’ – which recognises that communications of this nature my require the citation or annotation of certain passages. To present your letter, knowing (as you do) that I have made this request on numerous occasions, yet persisting with the less transparent and actively obstructive policy of denying me this ‘best practice’ response methodology and common courtesy, is unhelpful and evasive in the extreme.
I take note, too, of a fact that I mentioned to you in my most recent email to you of 21st March 2013 (to which I still await a response); namely, that you have disregarded my correspondence to you for over a year now – including Formal Complaints, compliant in every way with the Council’s Standards Procedures, old and new. During this period, you have responded to other members of the public, including one or more of the Real Whitby authors – but not to me.
In short, you have discriminated against me, in breach of the terms of the Human Rights Act 1997.
The content of your present letter leaves me shocked, intimidated, frightened and utterly in the dark.
I note that your letter is in no way compliant with the Ministry of Justice Pre-Action Protocol for Defamation, and would appear to evince complete ignorance of the CPR (Civil Procedure Rules).
My belief-system includes a belief in the necessity for openness, transparency and accountability at all levels of government – and in Lord Nolan’s Seven Priciples of Public Life.
You appear to be making an overt threat of legal action based upon a number of unfounded and very serious allegations against me (and others) on behalf of (unspecified) third party(ies) based on my (our) beliefs; this would appear to constitute an offence under the CPS definition of a hate crime.
You do not disclose the identities of those whom you claim to have been the subject of defamation, or by whom. Without the benefit of knowing which of your allegations has application to me, or whom you allege to be the injured party(ies), I remain unclear as to in what way I may be able to assist you.
Before addressing your remarks in detail (which I will facilitate by assigning numbers to the paragraphs of your letter, as reproduced below), allow me, please, to seek clarification regarding the party you claim to represent – ‘Scarborough Borough Council’.
To my knowledge, the phrase ‘Scarborough Borough Council’ is commonly applied to two distinct organisations.
Firstly, there is ‘Scarborough Borough Council’, the body democratic – authorised under the Local Government Act 1972 (and implemented on 1st April 1974 and revisions and amendments thereto), comprising (normally) 50 (fifty) elected Members, bearing the title ‘Councillor': ‘Scarborough Borough Council 1′ .
Secondly, there is ‘Scarborough Borough Council’, the body corporate comprising a number of companies with Registered Offices dotted around the Borough, and beyond:P ‘Scarborough Borough Council 2′ .
You will need to make clear on whose behalf you act – and on whose authority. Are you representing ‘Scarborough Borough Council 1′ (the democratic assembly), or ‘Scarborough Borough Council 2′ (the Officers and staff of the body corporate), or are you representing specific individuals of either or both?
In future correspondence (if any, and you should be aware that I may choose not to correspond with you, or your clients, at my own prerogative), please specify which of the two organisations you are representing by conforming to my simple distinction-procedure nomenclature, as outlined above. Thank you.
You will also need to make clear with whom, precisely, you seek to take issue. You have not shown that articles published under my by-line were authored by me. You will need to do so.
Addressing your letter:
Thank you. I was aware of your name and position.
I am an elector of the Parish of Whitby, the Borough of Scarborough and the County of North Yorkshire. I am a pensioner, in declining health, who left school at the age of fifteen. I have made a number of significant contributions to the well-being of my community, not least in the area of voluntary anti-corruption campaigning, in the public interest. I believe that the introductions have now been completed.
Your inspection of the Real Whitby web-site has seemingly led you to the conclusion that articles are published through that organ by a number of authors and that I am one of those authors.
You allege that these articles contain “defamatory and untrue” comments. That may be your opinion, by all means. But no more than that. If false, your allegations may well themselves be defamatory and untrue. I would caution you take care on this point.
You allege that unspecified elements of unspecified articles by unspecified authors are, in some unspecified way, “harmful” to ‘the Council’ and/or other unspecified Claimants. This is not so. Insofar as articles result in the exposure of wrong-doing, they may truly be said to act in the very best interests of ‘the Council’, whose repute and good-standing in the public perception is entirely dependent upon the swift eradication of wrong-doing on the part of elected members and/or paid public servants.
You go on to assert that I am one of the authors of material which you allege to be “offending to Scarborough Borough Council, its Officers and Members (by which, I can only take you to mean both ‘Scarborough Borough Council 1′ and ‘Scarborough Borough Council 2′) and which have or will hinder the ability of the Council to discharge a number of its functions”.
I profoundly disagree. As explained above, any exposure of wrong-doing can only serve in the very best interests of ‘the Council’ and the electorate.
The thrust of my articles (and I cannot speak for “others”) is to highlight wrong-doing on the part of those certain individuals (elected members and/or paid public servants) whose actions fall within that category of act specified in the Transparency International definition of “corruption” – namely, “Corruption is the abuse of entrusted power for private gain. It harms all who depend on the integrity of people in authority”. If you have indeed inspected the Real Whitby web-site, as you assert, you will be already aware of that.
It is unclear to me in what way you are attempting interpret my declared objectives to be “harmful” to ‘Scarborough Borough Council 1′ or ‘Scarborough Borough Council 2′, as these are organisations (ie ‘persons’) – a body democratic and a body corporate – whereas my publications are specifically directed toward addressing the conduct of individual human beings whose conduct is called into question by a careful scrutiny of the public record, augmented by correspondence and/or interviews with individual human beings.
It would appear to me that in your statutory role as Monitoring Officer, you have every reason to be appreciative of the information made available not only to the wider public, but to you yourself for the furtherance of your statutory monitoring duties.
You go on to assert that I stand under those duties and obligations of an “investigative journalist”, which you define as:
1. the sources of your information are verified;
2. comment is sought from those being criticised before the article is published; and
3. the article is fair, balanced and even-handed
This may be so; I would not know.
a) as stated, the source of the majority of information disclosed by me (and others) on the Real Whitby web-site comprises information available on the public record and in the public domain (Agendas, Minutes, FOIA responses, SBC/NYCC press releases, etc), augmented by email correspondence and other information from reliable sources, named or anonymous, including elected members and paid public servants. If you wish to challenge the veracity of these sources you will find an arduous and potentially embarrassing path ahead of you.
b) you appear to wish to gloss over the large number of occasions on which a right to reply has been offered, only to go ignored. An example that springs readily to mind is SBC Leader Councillor Tom FOX’s four-month refusal to acknowledge my question regarding his past knowledge of the execrable Sir Jimmy SAVILE, followed by a similar treatment of my question regarding the Council’s intentions in respect of former Mayor Peter JACONELLI – a matter of acute public interest. This evasion has been noted by Police Officers of Operation Yewtree, with whom I hold a continuing dialogue and to whom articles on that particular topic have been submitted ahead of publication.
c) nothing could be more “fair, balanced and even-handed” than the truth. Perhaps you disagree?
But it is clear that you have wittingly withheld such information as might identify precisely who has taken offence, and in relation to which statements in which articles and/or by which authors. With regard to the matter of sources, I am surprised to learn that you have hastened to identify the duties and obligations of an “investigative journalist” without mention of a very significant privilege – the protection of sources, though without reference to the protection afforded regarding the anonymity of sources.
Consequently, you have foregone any claim to pursuing the identity of certain sources – though they may, in the public interest, be published into the public domain, with their respective permissions, of course, at the prerogative of the authors.
You assert that I (and others) have “consistently failed” to comply with certain terms – for which you have cited no source, verified or otherwise. How is it then, that you have failed to cite a single instance – much less, a single instance for each of the Real Whitby authors?
You assert that the web-site contains “malicious, untrue and defamatory material in relation to which the subjects of the statements made have been denied the right to comment until after publication, if at all”. You have cited no example. You have identified no single “subject”. You have made a wild and general assertion – nothing more. I find that wild and general assertion to be malicious, untrue and defamatory. You may find yourself required to account for that in due course.
Again, if you have indeed inspected the Real Whitby web-site, you will be aware that provision has been made by the webmaster for anyone – elected members and paid public servants not excluded – to respond to the articles (positively or negatively, as they are so moved). Indeed, only a few of days ago, an elected member took advantage of that facility, which is available around the clock. Self-evidently, the ‘right to reply’ is inherent within the publication format.
You provide an opinion. I am unclear as to your source for that opinion. I have seen no record of ‘Scarborough Borough Council 1′ adopting an opinion on the matter. Can you point me, please, to the Agenda and/or Minutes which record the adoption of that opinion? On whose behalf do you offer that opinion? What is its provenance? On what credentials is it founded? Are you, in fact, merely offering your own personal opinion?
Similarly, and notwithstanding your caveat “at the very least”, from whence is that opinion derived? To which “actionable breaches of civil law” do you refer? Again, and notwithstanding your claim to have inspected the Real Whitby web-site, you have cited no specific article, no specific author, no specific statement, no specific ‘injured’ party. I find your statement incomprehensible; it is another wild and general allegation, offered without substantiation, evidence, witnesses – nothing.
Taken in its entirety, this paragraph of your letter: “At the very least, Scarborough Borough Council is satisfied that many of the articles and comments published amount to actionable breaches of civil law” is worded in such a way is to evade comprehensibility. I have published, on average, only two or three articles a month – often less. Your assertion that “many of the articles and comments published amount to actionable breaches of civil law” indicates that the much of the material with which you now claim to take issue have been in the public domain for a considerable period of time – perhaps years. Is it your intention that the material contained within “many” of them has always amounted to “actionable breaches of civil law” since first publication? If so, how is that you take issue on that point only now, months or years after publication? Or is it that the material has only recently acquired, in your mind, the character of material actionable at law in the light of newly available information, for which no responsibility may be attributed to me? Or is it that only now have you arrived at a novel interpretation of material which hitherto caused no offence? I can foresee no way in which an accommodation can be reached without a clear indication of which material (and since when) forms the subject matter of your claim or in what particular way in which it only now is perceived by you as being actionable at law.
Your reiteration of “the Council’s” position (again, which “Council”?), is unhelpful. Which articles? Which statements? Which Officers? Which Councillors? These details are vital, yet you pass over them without identifying any one of them.
You are, I trust, aware that there exists a prohibition against elected members drawing upon the legal resources of the public purse to address alleged instances of defamation; they must pay for their own solicitors. Is it not your duty, in the spirit of even-handedness, to have informed me of that fact?
Your opinion as to the likelihood of me (or others) mounting a successful defence of any putative claim on the basis of “justification, honest comment or qualified privilege” due to my alleged failure to verify information, seek comment or present a balanced story, is erroneous and disregards the public interest test, the duty of every citizen to expose wrong-doing, and the right of the electorate to representation subject to accountability.
It also places ‘the Council’ in the extraordinary position of seeking to take action against those who, having compliantly pursued the designated procedures of justice in respect of wrong-doing, are patently performing with greater integrity than certain paid public servants whose statutory duty it is to uphold high ethical standards. The correspondence record alone suffices to prove the point. To cite a single example, you may wish to recall your year-long refusal to process my legitimate complaint against two appointed members of the (pilot) Whitby Harbour Board whose breach of the Code of Conduct is a matter of record, appearing as it does manifested in writing, on Scarborough Borough Council (whichever) letterheads.
‘Scarborough Borough Council’ (whichever) may entertain whatever expectations it pleases, so long is it does so lawfully. Similarly, ‘Scarborough Borough Council’ (whichever) may choose to initiate court proceedings against me, where the law provides an opportunity to do so. I can assure you that to do so would be imprudent in the extreme, for two reasons:
Firstly, I have caused to be published a series of article (as you will know if you have personally inspected the Real Whitby web-site, as you assert) under the umbrella rubric “In My View”. As such, the articles form an expression of my opinion, as protected under Article 19 of the Universal Declaration of Human Rights 1948, to which this country is a co-signatory:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Secondly, I find no difficulty in providing compelling evidence to support any and all allegations that I may have made, few though they may be. ‘The Council’ may wish to recall the Greek mythological story of Pandora’s Box.
Again, if you have truly inspected the Real Whitby web-site, you must be aware that I make allegations very seldom indeed, and only when I am fully equipped with compelling evidence to support them. I ask questions – though it is true that they seldom receive answers, transparent or opaque. They are, though, frequently supported by the testimony of elected members and paid public servants, many of whom (like myself – “and others”) find the disingenuousness of certain (other) elected members and/or paid public servants totally unacceptable. My information, when not accrued from a diligent examination of the public record, is invariably supported by individual human beings within one or other of the organisations known as ‘Scarborough Borough Council’.
Your statement “Scarborough Borough Council expect [why the use of the third person plural, if not to signify both 'Scarborough Borough Council 1' and 'Scarborough Borough Council 2'] that you are able to evidence the truthfulness of any articles or comments that you write and Scarborough Borough Council may chose to test your ability to evidence such truthfulness by initiating proceedings at court if it is felt that you have failed to comply with the terms of this letter” implies that you seek to agree terms with me, yet I find no instance, here or elsewhere in your letter, where you outline the nature of such terms. What are the terms to which you solicit my agreement or compliance? I am happy to discuss this matter, in Whitby, at your earliest convenience.
I have not, and do not, publish “untrue and defamatory statements (whether on the website referred to above or elsewhere)” – nor do I intend to do so in the future.
Indeed, why should I contemplate doing so, when the bare truth is damning enough? You have not shown that I have ever done so; nor can you. So the likelihood of ‘Scarborough Borough Council’ (whichever) taking legal action against me would appear to approach zero. What, then, is the underlying purpose of your communication other than to threaten, intimidate or bully me (and others) into silence?
This paragraph is speculative, subjunctive and merits no comment.
The contents of your letter admit no course of compliance, since neither you (personally) nor either of the organisations known as ‘Scarborough Borough Council’ hold authority over me (or others) to compel me (or others) to comply with your requests or demands, implicit or explicit, in any circumstances or in any way. You are a paid public servant. You do not compel; you serve. I have this on the assurance of your predecessor, Mr Ian George ANDERSON, former Head of Legal & Democratic Services and Monitoring Officer, in the presence of witnesses.
If you contend otherwise, you will need to show proof of authority, proof of evidence and proof of claim.
I am already aware of my right to seek independent legal advice. Thank you.
Lord Keith of Kinkel in the Derbyshire case (and with whom the other four law lords unanimously agreed) could not be clearer:
- “It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.”
You have not identified the “others” to whom you refer, nor have you indicated that ‘the Council’ has taken the same measures against them (whoever they may be). Have you, for example, issued the same (or substantively similar) letters to other individual human beings and/or publishers who have published articles critical of ‘the Council’ that you may contend contain “malicious, untrue and defamatory material” of a closely related nature, eg The Sunday Express, Private Eye, divers newspapers, web-sites and/or blogs?
If not, that would appear to confirm that you have singled out, for special treatment, only members of the electorate whom you are duty-bound to serve. That would be discriminatory in the extreme.
I summation, you have presented to me, in terms redolent of hostility towards me (and others), an overt threat patently intended to intimidate, bully and harass.
You have caused me considerable physical pain and placed me in fear for my health and indeed my life. Yet you have cited no single instance of actions on my part giving grounds for such threats.
You have discriminated against me over a protracted period of time. You have evinced a marked enmity towards my efforts to enhance the lamentable ethical standards of certain elected members and paid public servants. You have sought to curtail the freedom of speech and the freedom of the press.
The correspondence record confirms my contention that you stand derelict in your duty to uphold the complaints procedure of ‘the Council’. You will oblige me by recording a formal corporate complaint against yourself and against the party(ies) who so instructed you.
Furthermore, there is, in my view, a clear implication that the party or parties in whose service you have written and signed your letter may be politically motivated in a partisan way, with the objective of silencing legitimate criticism of candidates about to face the electorate at the County Council elections on 2nd May 2013. That will be a matter for the Electoral Commission. “I was only obeying orders” offers no defence.
Over the past years during which I have been engaged in my voluntary work in the public interest, exposing wrong-doing and corruption in ‘Scarborough Borough Council’, I have been the recipient of vilification in the press, apparently instigated by those whom I seek to expose. I have received ‘poison-pen’ letters, threats of violence (including a threat on my life), and had one of my cats killed. I refuse to submit to such unlawful actions as these.
Understand this; the publication stops when the corruption stops.
The responsibility for discharging the task of monitoring the conduct of elected members and paid public servants lies with you, Lisa DIXON, Monitoring Officer.
I remind ‘the Council’, as I have reminded it before, that I reserve the right to publish all or any part of my correspondence, including (but not limited to) this present exchange, into the public domain, at my own discretion.
Finally, I offer ‘the Council’ the so-called ‘right of reply’ on the widely-circulating rumour, originating from within the Town Hall, that arrangements are being made to allow the Leader to take leave of absence from his post for a suggested period of (but not limited to) one month. You may respond on this point at any time up until the close-of-play on Wednesday 3rd April 2013.
Yours, with kind regards,