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WHISTLEBLOWING ABOUT THE SCOTTISH WIDOWS DEMUTUALIZATION

WHAT'S THE POINT OF THIS PAPER? (INCLUDES ADVICE TO WHISTLEBLOWERS)


Index


For the general reader;

'When you know the truth, the truth makes you a soldier' - Gandhi

Ma sh'sanu 'aleykha al ta'ase l'haverkha - Hillel the Elder, 1st century BC.
(That which is hateful to you, do not do to your neighbour. That is the whole Torah; the rest is commentary. Go and study it.)

'Nothing is settled until it is settled right' - Rudyard Kipling

'Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny' - Thomas Jefferson.

On a general level, my paper, 'Whistleblowing about the Scottish Widows demutualization', illustrates a widespread and serious deterioration in standards in public life within the UK. Many people would agree, I think, that this is part of a wider moral decline, but it is not the purpose of this paper to consider this wider issue. I will only say that moral corruption starts at the top and works downwards, and that this process is happening is evidenced by what I believe to be the most serious, persistent and deliberate usurpation of the institutions of democratic government and the rights of the individual that this country has ever seen (I am referring mainly to the Labour governments of Blair and Brown here). We are, in my view, standing on the edge of the abyss of tyranny and may have already fallen into that abyss. So much for my historical analysis.

My perseverance in this case has been driven largely by a belief that people who occupy positions of public trust have an enhanced duty to act with the utmost probity in fulfilling their offices. When they fail to do so they are doubly at fault and deserve censure accordingly. Most of the people I have dealt with seem to be entirely confident that they can escape the consequences of their actions; that is a worrying sign in itself. What is to be done about it? This paper attempts to show them that there are consequences of their actions, even if it amounts to 'no more' than exposure on a website. But you never know, I have always been a great believer in the power of the internet. If this paper makes just one of these people think twice the next time then it has achieved some good. Even if my case gets nowhere, I hope to make a difference for those who follow after me. Perhaps also future whistleblowers can learn something from my experience.

From a personal point of view, this paper amounts to something of a test for the individual reader (that's you!), namely of how tolerant you can be of something you may not immediately sympathize with. In short, are you prepared to judge the case on its merits, or will you, like many of the people named here, shut your mind to someone because they have the temerity to insist on justice and to persevere until they get it? At each step along the way ask yourself what you would have done. Not taken the next step? At what point would you have given up?

For the potential whistleblower:

1. Introduction

'Sunlight is the most powerful of disinfectants' - Brandeis J. (quoted by Cory J. in Phillips v. Nova Scotia (Westray Inquiry) (1995), 98 C.C.C. (3d) 20 (S.C.C.), p. 67 d.)

'It is necessary only for the good man to do nothing for evil to triumph.' - Edmund Burke (1729-1797)

'Thou shalt not be a victim. Thou shalt not be a perpetrator. Above all, thou shalt not be a bystander.' - Holocaust Museum, Washington DC

'It is one of the glories of this country that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry.' - Lord Justice Jacob (The Daily Telegraph, 11 February 2009, Ferguson v British Gas [2009] EWCA Civ 46). He should have added '...but this only applies if you have a lawyer. Come to this court without legal representation and, regardless of the merits of your case, we will kick you in the teeth - metaphorically - we'll actually just take your home to pay the legal fees of your opponents.'

Becoming a whistleblower - think about the reaction of your work colleagues

Before you become a whistleblower you should get an idea of what you are letting yourself in for. It can become very unpleasant - for yourself, your family and your friends. Remember that they will also be affected by your actions and they may not be able to cope with it as well as you. You could lose your job, and you might lose your spouse, your children, your house, your health and many of your friends (or people who you thought were your friends). Many (perhaps most) people are not up to it and it is hard to blame them. There are lots of books available on the web.

If, having read this page and my paper, you are prepared to fight on, then all the best; you are on the side of the angels (or a loony - take your pick). One thing I do promise you; if you follow your conscience then you will have the greatest reward of all - that of knowing that you did the right thing. Apart from being a knight in rusty armour, you will be one of those:

'Who, not content that former worth stand fast,
Looks forward, persevering to the last,
From well to better, daily self-surpast:
Who, whether praise of him must walk the earth
For ever, and to noble deeds give birth,
Or he must fall, to sleep without his fame,
And leave a dead unprofitable name--
Finds comfort in himself and in his cause;
And, while the mortal mist is gathering, draws
His breath in confidence of Heaven's applause'

William Wordsworth 'Character of the Happy Warrior'

A knight in rusty armour

2. Your management

'Do not try to teach a pig to sing. It wastes your time and annoys the pig.'

An annoyed pig.

THE KEY RULES

Whistleblowers are generally advised to report matters of concern to management in the first instance, but management are more likely than anyone else to want to cover up problems within their own organisation, which is why so many whistleblowers are bullied, harassed and eventually sacked by their own management. Unfortunately, you have little option as a whistleblower; you must, on the whole, go through the procedures (the Public Interest Disclosure Act indicates the circumstances in which you will - or rather should(!) - be protected by the law if you report outside your organisation). There are three rules for doing this:

*'rules' means the company's rules but also refers to the law, particularly employment law, the Public Interest Disclosure Act and so on (see here, here and here). I am afraid that unless you hand the whole thing over to a lawyer, you will have to become an expert in these areas. Your trade union may help. But be careful, I know of a case where a lawyer did not check whether conduct which had led to someone's suspension (and the eventual loss of their job) was against company rules; it wasn't. The person concerned did not find this out until some time later.

One could add 'Take advice and be accompanied wherever possible.' This excludes anyone who is a pig-headed rhinoceros, because they never listen to advice and don't need protection.

Don't argue with me!

INVESTIGATING YOU CONCERNS

Whistleblowers are generally advised not to investigate their concerns, only to report their concerns to management. It is then (the theory goes) up to management to investigate those concerns, in the first instance. This advice is wrong. If you follow this advice then management are highly likely to dismiss your concerns on the basis that you have 'provided no evidence', in spite of the fact that it is not your duty to do so. They will stick to this line even after you have made it quite clear to them that your only duty is to report your concerns. I have had exactly this done to me by the Chairman of the Audit Committee of Lloyds TSB, now Lloyds Banking Group (one Ewan Brown), amongst others. So you must gather as much hard evidence as you reasonably and safely can (sufficient to support your concerns, not necessarily prove them in a court of law) before you report the matter to management. How far you go is a matter of judgement but you clearly must try to minimize the risk to yourself in this process. Do not tell anyone what you are doing unless you trust them completely. Do not reveal your evidence to management; you will just be accused of not having reported the matter sooner, of having abused your working time, of having accessed information not relevant to your job and so on. They will do this. No, report your concerns, but only with one or two of the more obvious facts to which you are entitled to have access and which are sufficient to justify your becoming concerned in the first place, and then see what happens. If they carry out a proper investigation, all well and good; you can put your evidence in the shredder. If not, and they start bullying you, then you will have to use your judgement as to when and how to reveal your evidence. If possible, you want to reveal it after they have put a noose round their necks (in writing hopefully) by saying that they have investigated your concerns and found no evidence to support them. On the other hand, you may need to reveal your evidence in order to support your case in, say, an employment tribunal. Either way, you have a problem, which is to explain why you didn't reveal the information before. You may feel brave enough to say that you were not convinced that management would investigate your concerns properly (and you may be in a position to actually prove that they didn't, if they have dismissed your concerns by that stage) or it may be the case that the evidence was sent to you anonymously through the post after your suspension and, as a dutiful employee, you sent it on to management as soon as you received it. Ask politely for an expression of thanks from them for having done this.

MANAGEMENT'S REACTION AND HOW TO DEAL WITH IT

When you blow the whistle you are highly likely to find yourself subject to allegations, investigations and disciplinary procedures. If so, you will probably be suspended; this is designed partly to try and scare you into resigning and partly to prevent you accessing evidence or communicating with your work colleagues. When faced with these sorts of situations you must apply the same three rules listed above - know the rules, stay calm, record everything. If you do then hopefully the case against you will collapse or they will have to conclude that it is baseless. It is likely, however, that in spite of such an outcome management will still sack you (as happened to me), making general assertions of 'unreasonable behaviour', 'irreconcilable differences', 'management style' and so on. Now you are into the courts or employment tribunals (for unfair dismissal, constructive dismissal, harassment, breach of contract, personal injury - all sorts of things) and there are others who are better qualified than I to advise you on these processes. But again, some rules:

The other thing is to make sure you comply with procedures, particularly time limits. These are often very tight and you may need to make an application to an employment tribunal within seven days of your dismissal (e.g. where you have made a protected disclosure and are applying for interim relief under s.128 Employment Rights Act 1996). I did this on-line.

You may get recompense of some sort from the court or tribunal. You may even keep your job, but this is all concerned with your personal remedy. What about the whistleblowing matter? If your management have refused or failed to address the issue, how do you take the matter forward? Well, this usually involves reporting the matter to some sort of official or professional body. Read on.

3. Officialdom

'Bureaucracy is the art of making the possible impossible.' - Javier Pascual Salcedo

My paper illustrates the sort of reaction you can expect from 'officialdom', which I take to include professional bodies, ombudsmen and so on. You may be under the impression (and they certainly give the impression) that they are there to help you, but you will soon learn otherwise. The complaints procedures of professional bodies, for instance, are actually used to protect the members of the professional body, not the public. They will sometimes uphold a complaint arising from a failure to answer a letter within a reasonable period (this is no joke; they think that this proves that they are doing their jobs) but if you were a non-executive director of Enron, and a party to one of the greatest financial scandals in history, you will get off scot free (a real example by the way - see here). You can take my word for it, as supported by the facts described here, or learn the hard way.

There will generally be an initial complaints procedure with several layers of appeal procedures. On the face of it, this looks like a good thing because it appears to give you the right to challenge a decision. In practice, what these appeal procedures do is provide a further buffer of delay, which means that the process can take several years to complete. A very large number of people give up along the way, feeling, justifiably, that they have better things to do with their lives and having reached the conclusion that they aren't going to get anywhere; they are usually right in this.

You have to be very determined to get anywhere and, if you do persevere, then, at quite an early stage (after about 3 minutes if you are on the phone!), your perseverance will be held against you; you will be labelled a 'troublemaker'. When officials have labelled you a troublemaker (i.e. someone who won't go away) they can then dismiss your complaint with lazy generalisations, refuse to correspond ('we see no benefit in continuing this correspondence'), give you incomplete or misleading information, and so on and so on, without feeling any qualms. They have managed, in their own minds, to turn the tables on you so that you have become the bad guy, though many of them are just too stupid to conceptualize this process - being obstructive and unhelpful just comes naturally. In rare cases one of them actually wakes up to the monstrosity of what they are doing and what it says about the organisation they work for and they leave. This has happened in this case. If the issue is very serious and they wake up to the potentially disastrous consequences of their actions (like Andersen, the auditors of ENRON - 'My God! It's all gone!') they may clear off as soon as possible. On the other hand, they are quite likely to decide (depending how arrogant, greedy and callous they are) to 'ride the tiger'* and hang on to the bitter end at whatever cost to others.

*This expression refers to the fact that once you are on the back of a tiger, it is rather dangerous to get off!

4. Politicians

'A politician is an animal which can sit on a fence and yet keep both ears to the ground.' - Henry Louis Mencken (1880-1956)

A word about politicians. Most politicians, regardless of party, realize that they are part of a very privileged club (not a physical club but a club of those who exercise power - what Mrs. Blair famously referred to as the 'movers and shakers') and that, as members of that club, they have more in common with politicians of opposing parties than with the people who voted them into office. There are the occasional mavericks; these are known as 'honest men', an archaic term little understood by modern politicians.

Most politicians have very little experience of real life (most have never run a business or fought in a war for instance - a vast number are lawyers) but because they realise that this is an easy accusation to make against themselves, they generally avoid making it against other politicians; it's one of the unspoken rules. Politicians will therefore avoid getting involved in anything that remotely threatens their place in this club, their comfortable sinecure. Every 'issue' (including your complaint, if you refer it to them) will be judged and acted upon not according its merits but according to the degree to which it threatens them or provides opportunity for advancement. Some issues, even some apparently risky ones (of the right type), are safe to 'adopt' and may even earn the politician some credit as a man of moral integrity (curiously, they all want to leave a reputation for moral integrity behind them), others they steer clear of like the plague - and one person with serious allegations is the sort of thing they hate, since to carry the matter forward requires both moral courage and a willingness to expose oneself to all sorts of risks.

You will soon learn where you stand by their reaction. In the first place, it is quite likely that they will not respond at all or, if they do, dismiss your complaint with some excuse (e.g. they are too busy). If they are actually your MP then it is difficult for them not to respond. In this case, if they want to avoid involvement they will generally just forward your complaint to someone else, a Parliamentary Committee for instance. They are quite used to doing this and the Committee will be quite used to receiving such letters. The fact that they have forwarded your letter without comment gives the recipient an important message, namely that the MP will not actually get involved but will simply forward letters back and forth; in other words, he will just sit on the fence. This process of corresponding with some body or person via your MP can go on for years without getting you anywhere. You will eventually feel like strangling your MP for the gutless, time-serving coward that he is but they count on you being able to do very little about it (and most of them have the gall of a mule anyway). Your MP may even agree to submit a petition to Parliament on your behalf. This sounds wonderful until you realise that all it means is that he will just drop your petition into a small bag (designed as a receptacle for such things), where it will be ignored.

5. Would-be politicians and political hangers-on

Behind the politicians are the would-be politicians and political hangers-on (leaders of student unions, certain 'approved' pressure groups and so on, including many of the people who you think might help you); their main aim in life is to batten on to the public purse in some way. These people are on the fringes of real political power but they desperately want to be part of the club, often as an MP or a peer in the House of Lords (you would be amazed at how many apparently sensible people want a peerage, but for people on the make it is the ultimate symbol of 'having arrived'), so they play the game by the same rules. This means that they are also likely to avoid your issue like the plague. You see, it is alright to make a noise but it has to be about the right sort of issue and it must be done in the right way; they know that they will rapidly become isolated if they pick the wrong issue and handle it in the wrong way, such as by adopting an anti-establishment issue (e.g. MPs' expenses - or MPs' pensions - or cash for honours - or, well, you get the picture) and attacking the establishment (e.g. accusing MPs of being corrupt, hypocritical liars). This is not the way to earn a peerage, so the first thing that would-be politicians do is to develop a keen 'nose' for spotting issues they should steer clear of. This instinct is usually already well-developed in people who are both avaricious and cowardly, which probably explains why so many avaricious cowards do well in politics. Self-preservation is all.

What I have said about politicians and would-be politicians applies to many outside politics as well.

6. The Police

Policeman to small boy: 'What are you pointing at son?'
Small boy: 'I don't know officer, follow my finger and see for yourself. That's why they call it pointing.'

'Those that can, do.
Those that can't, teach.
Those that can't teach, teach PE.
Those that can't teach PE, join the plods.
Those that can't plod, join the traffic plods.
Those that can't traffic plod, are on sale
in the vegetable rack in Tesco's.'

PS I have nothing against teachers.

What needs to be said about the Police? I am one of the 'Dixon of Dock Green generation', which, for those who do not know of it, was an old black and white TV series about a white-haired, fatherly policeman based in 'Dock Green', a fictional place in East London; he always got his man and the programme always ended with the dejected crook being led away with a hand on his shoulder ('It's a fair cop, guv.'). Even the crooks were nice in a funny kind of way. I loved it. This was what I grew up believing policemen to be like - protective, fair-minded and authoritative. I admired them and they made me feel safe. Now, I regard policeman with fear and loathing, as do very many people I know - ordinary, respectable, middle-class people. They even look like thugs and the sight of one a hundred yards away fills me with anxiety; this is literally like seeing a snake in your path, your instinct is to freeze until it goes away. I regard them as terminally corrupt and have direct personal experience of their corruption, including perjury (lying in court) which was so obvious that it resulted in the immediate suspension of a trial (literally, the judges interrupted proceedings to confer and then stopped the trial). I speak as someone whose great-grandfather was a Police Inspector. If you are under any illusions (do you read the newspapers?), reading my paper will shatter them. If you have to approach them, treat them like your management and follow the same rules (know the rules/law, stay calm, record everything); but beware, they are much more dangerous than your management and they are just as likely to turn on you as they are to investigate your complaint. They will do their absolute best to put you off; this is the only thing they will put any effort into (unless they turn on you). They will often use the excuse of insufficient evidence, which means that they will refuse to carry out an investigation to obtain the evidence they would have obtained by carrying out that investigation - if you see what I mean ('We can't get the evidence until we investigate it and we won't investigate it until we get the evidence.'). Seriously! They do this! Enough said.

PS If you are a policeman reading this, don't get angry with me, get angry with the people who did this to the police force.

Dixon of Dock Green - the way it used to be.

7. The law - judicial review

'It is not desirable to cultivate a respect for law, so much as a respect for right.' - Henry David Thoreau (1817-1862)

'The power that puts the jury above the law can never safely be entrusted to a single person [including a judge] or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt.' Lord Devlin, The Conscience of the Jury, Law Quarterly Review, July 1991, Vol.107, p.404.

So where does that leave you as a whistleblower? If professional bodies, ombudsmen, politicians and so on will not give you a remedy, what do you do? One option is the law. What I am talking about here is not legal action which you may be able to take against the party against whom you have blown the whistle, such as your employers, for unfair dismissal, harassment and so on (there's lots of advice about this on the web); I am talking about legal action against the public and professional bodies, ombudsmen and others who don't deal properly with your complaint.

Public bodies (including courts of law below the High Court), or private bodies which exercise a regulatory or supervisory function which, if it were not carried out by them, would be carried out by a public body, are subject to judicial review. Thus the Jockey Club, the Law Society, the Institute of Chartered Accountants and so on are all subject to judicial review; basically any governing body which makes rules covering a particular type of activity, professional, sporting or other. A judicial review is a review by the High Court of the manner in which a decision was made (the process) and not the decision itself, so the court is not concerned with the outcome, merely the way the outcome was arrived at ('Why's that?' you ask. 'No-one knows.' is the answer, but see Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, 1174, per Brightman LJ*). This means that the High Court can find in your favour by ruling, for instance, that a planning decision was made without proper public consultation, but all that does is force the authority to go through the process again with proper public consultation. The authority can still make the same planning decision once they have gone through that process. On the other hand, it is possible to effectively challenge a decision (as opposed to the process) on the grounds that it is so manifestly unfair that no reasonable* person would have arrived at that decision (this is called Wednesbury unreasonableness); that is, the outcome is such that proper processes (inherent fairness in administrative decisions) cannot have been followed. In this case the court does look at the reasonableness of the outcome but its decision is still based on a failure to follow proper procedure (if you follow the logic).

*"Where Parliament has entrusted to an administrative authority the duty of making a decision which affects the rights of an individual, the court's supervisory function on a judicial review of that decision is limited. The court cannot be expected to possess knowledge of the reasons of policy which lie behind the administrative decision nor is it desirable that evidence should be called before the court of the implications of such policy. It follows that the court ought not to attempt to weigh the merits of the particular decision but should confine its function to a consideration of the manner in which the decision was reached." The theory is therefore that the courts should not substitute their own views for those of the decision-makers, who are best qualified to make decisions - but courts regularly make decisions on matters outside their competence, such as in medical negligence cases for instance. So, if courts are prepared to decide in medical negligence cases why are they not prepared to decide in relation to 'administrative decisions'?

The normalisation of evil (look at the faces of the audience and the guards). Helmuth Graf (Count) von Moltke on trial for his life in 1945 for his moral and passive resistance to Hitler (as a committed Christian - remember them?). This resulted in his execution by hanging. Don't worry, I am not comparing the judicial system in this country to the Nazis. No, the Nazis murdered people; the judiciary in this country would never do anything so unsubtle; they have no need. They will just ruin you or put you in prison; it is quieter and just as effective. (Funnily enough, Helmuth Graf von Moltke had a connection to my grand-father's first cousin, D'Arcy Osborne, 12th Duke of Leeds, who was Envoy Plenipotentiary to the Vatican during World War II. This connection centred on a plot in 1940 to overthrow Hilter, involving Pope Pius II and key German generals, led by General Ludwig Beck, who would have become German Head of State. The plot was ruined by the over-cautious attitude of the British government and General Beck was later murdered by the Nazis. A film about Von Moltke's life called 'Restless Conscience' was made in 1992. It was nominated for an Oscar.)

*Beware though, a judge's idea of what is reasonable is very different from yours. The key to understanding judges is to realize that they are not satisfied with merely interpreting the law, they like to feel that they make the law as well ('Parliament may make the law but we decide what it means.') and they like to feel that they decide on matters of public policy as well. In short, they have got above themselves and have been allowed to get away with it for far too long; their job is to interpret the law, not make it, as stated by Lord Halsbury when he said 'Our duty is to the best of our ability to ascertain what the law is, and, having ascertained it, to give effect to it; to alter it or even modify it is the function of the Legislature, and not of your Lordships’ House' (Earldom of Norfolk case). They will therefore decide what is reasonable by reference to what they think public policy ought to be, not on the basis of 'Was it reasonable for policeman A to punch pregnant woman B in the stomach?' You think you know the answer; they know they know better. So, in the process of applying what the judge perceives to be public policy, a sense of needing to do justice to you (though not absent - unless you are a litigant in person, in which case they will send you away with a flea in your ear, or rather a very large bill for costs) will always be over-ridden. 'Public policy', by the way, includes denying you justice if you are not legally represented. In the twisted minds of judges they are ensuring justice to the public by forcing them to have legal representation - and if that means denying you justice as an individual then so be it; they call this 'the protection of legal representation' (a judge used this exact phrase in refusing my application when I tried to act as a litigant in person) but it has the convenient side-effect of ensuring that their colleagues in the legal system (i.e. other lawyers) get their fees. This process by which a judge's mind becomes 'establishmentarianised' (i.e. he develops a tendency to support the establishment, or 'public interest' as he sees it, against the individual) is of course a form of corruption (and it is not limited to judges - try talking to any town hall bureaucrat or petty official and in more cases than not you will find yourself dealing with a bully). It is not corruption as we in the UK tend to think of corruption (brown envelopes under the table); no, it is far more insidious and dangerous than that. Brown envelope corruption is at least tangible, in the sense that it can be identified and fought against. The corruption in the minds of the judiciary cannot be fought in this way but 'corruption' is the right word for it; firstly, because judges know that they are denying you justice (and they do it consciously - they just think it is justified in the 'public interest' as they see it - and protecting the judiciary is the most important thing of all) and, secondly, because the effect on the individuals concerned can be, and often is, to destroy their lives (not so funny when you are on the receiving end of the judicial system). This corruption is so insidious that it has not even occurred to most people (who have no experience of the court system) that it exists and they will be sceptical about it when you tell them - but many thousands of people can testify from personal experience that it is true (even people who have found themselves in a magistrates court as a result of a parking ticket) but many of them think they just had a bad judge or bad luck - it has not occurred to them that the problem is not restricted to their case). And remember the words of Lord Devlin quoted above. He was a senior British judge talking about this country; he was not talking about some banana republic.

One thing to bear in mind. Judges hate clever dick litigants who actually know the court rules better than they do (though this is not difficult because many judges become lazy about such things - and why wouldn't they, given that they are almost entirely unaccountable?). Proving that a lower court judge was wrong (even that he acted unlawfully) will do you no good whatsoever in an appeal; in fact, it will ensure that the appeal court will find against you. They will not tolerate being proved wrong by a litigant in person and that's that.

So what are the drawbacks to judicial review? Well, they are the same drawbacks as for taking matters to court generally. We all know that the law is ridiculously complex, criminally slow, ruinously expensive and almost laughably uncertain. This means that you can quickly be beggared by the legal fees of your own lawyers without ever having had any reasonable certainty that the court would decide in your favour. Lawyers are actually trained never to give a positive answer to any question; they say 'on the one hand this, on the other hand that', so they will never say 'you will win this case', and with good reason; given the way the legal system works they actually have no idea. There is a very strong chance that your case will never get to a hearing on the substantive issues (i.e. what you say was done wrong), and that you will be defeated on technical grounds, limitation periods, costs and so on.

Having said that, the procedure for judicial review is quite simple. You need to go through the pre-action protocol but, once you have done that, all you do is fill in the form (N461) and send it off (with the fee and other supporting documents, which are specified in the rules). Your application will be assessed on the papers (i.e. there is no hearing). If your application is refused you can then request a hearing. Remember, at this stage you are merely applying for permission to seek a judicial review. Appearing at a hearing is also theoretically simple; just tell the truth and have the evidence to back it up. The court is actually under a legal obligation to deal with your case justly under the Civil Procedure Rules (CPR 1.1 - The Overriding Objective). Quote that at the judge; that'll annoy him!

Note that there is a 3 month time limit for applying for a judicial review (don't ask anyone to justify this limit; they can't and won't, but the real reason is to prevent people holding officialdom to account - or at least to make it as difficult as possible).

8. The law - representing yourself in court

'Only too often the litigant in person is regarded as a problem for judges and for the court system rather than the person for whom the system of civil justice exists.' (Lord Woolf, Lord Chief Justice (1995), Chapter 17, para. 2.)

If you act as a litigant in person (i.e. represent yourself in court - and, remember, you will still have to pay the other side's costs if you lose), you will find that many judges have very little sympathy for you, if any (see this article in the Daily Telegraph of 1 Oct 2005). They seem to regard them as presumptuous, stubborn, misguided and obsessive fools (no matter that you have been a qualified expert in your own field for 30 years - they will quite happily dismiss your professional views even though they are less well qualified in the subject than you are - or even not qualified at all), who waste the court's time, require much more effort on the part of the judge (they like to have two sets of lawyers putting all the arguments to them on a plate), and deprive an honest lawyer of his fee (this is not a joke - this is the way they think, even though paying the lawyer his fee will involve you in selling your house). The court staff can also be incredibly unhelpful (often positively obstructive and sometimes deliberately misleading i.e. they will lie to you); their stock answer to any question is 'We cannot give legal advice' and they will tend to say this even when you ask about a procedural matter.

Those judges who regard litigiants in person as misguided and obsessive (without having heard the evidence) should not need to be reminded of the words of one judge who said: 'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.' (John v. Rees [1970] Ch 345 Per Megarry J at 402). You are entitled to have your case heard and judged on its merits, no matter how hopeless it might look to others - not that this will do you any good.

Academic research has, in fact, established that only a 'very small minority' of litigants in person are obsessive (see Moorhead, Professor R., and Sefton, M., 'Litigants in person', Dept. for Constitutional Affairs, 2005, p. i). This same research indicates that litigants in person are treated by judges and court staff as 'mad, dangerous and stupid' although the authors shied away from investigating this matter properly (they were employed by the government - Dept. for Constitutional Affairs - to produce the report and clearly did not want to bite the hand that fed them). See p. 89 which says 'A third possibility is a more uncomfortable one for those administering the justice system. As we noted at the outset, many of those we engaged with about unrepresented litigants shaped their immediate reactions around notions that unrepresented litigants were ‘bad or mad’. The judges we spoke to were a notable exception and many staff were sympathetic and constructive in their attitude to unrepresented litigants [or said they were when talking to the authors of the report!]Many however also displayed a less flattering undercurrent. It could simply be that the ‘mad, dangerous and stupid’ litigants were what occupied their thoughts because they posed the greatest challenge to their resources and skills, or that they provided better stories, but a notable effect of this tendency was the stereotypical portrayal of unrepresented litigants which in fact is not borne out by a more considered analysis of how often unrepresented litigants become obsessive.' Non-academic shorthand? They treat you like scum. This clear warning sign was not properly followed up and the report's authors ducked the issue by saying in the Executive Summary (p. ii) 'Some courts and local advice providers may be more welcoming to, or encouraging of, unrepresented litigants than others.' I'll say! They should have said'There is clear evidence that many court staff consider litigants in person to be 'mad, dangerous and stupid', without justification - AND OBSTRUCT THEIR CASES ACCORDINGLY'. It is clearly a serious problem, is it not, where the system of justice actually obstructs those seeking justice?

The technique they use to get rid of you as a litigant in person is to rule that your case is 'totally without merit' and award costs against you; they do this in a very high proportion of the cases where people represent themselves (about 90% according to the Lord Chief Justice). Legal textbooks openly state (and seem to accept - they are, after all, written by lawyers) that costs are used to punish people; it is a very powerful and almost entirely unaccountable weapon to keep you in order. You may think that your case is invincible but it isn't, I can tell you. I have seen a case within the last year (i.e. 2008) where a High Court judge, in a situation where two original letters signed by a senior officer of the defendant public body positively contradicted an assertion, on the critical point, made by that defendant public body (in fact, by the Vice-Chancellor of Northumbria University no less) in its defence, said 'I see no evidence of lying' and then dismissed the claimant's case as being, you guessed it, 'totally without merit'. Judges appear to make this ruling in full confidence that an appeal will also be dismissed as being 'totally without merit'. In this particular case the Appeal Court Judge dismissed the appeal on the basis that the case was 'totally without merit' without giving any reasons, which is unlawful*. He also appeared to be confident that he would escape the consequences of his actions (see below re complaints against judges). Once an appeal has been dismissed by the Court of Appeal on such grounds (i.e. as being totally without merit) there is no further right of appeal (normally you can apply for a hearing). European Court of Human Rights? Nope. You can apply to the European Court of Human Rights as a litigant in person but, once your case has been accepted (this can take years on its own) you have to be legally represented, so it will cost you the earth and take years. Now you know why judges are not too worried about you taking the matter to the European Court of Human Rights. It happens but they will probably be drawing their pensions by the time your case gets in front of the court.

*Lord Brown in South Bucks District Council and another v Porter [2004] 4 All ER 775 at para 36: 'The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved.' Note that failure to give reasons for a decision is grounds for seeking a judicial review (R v. Civil Service Appeal Board ex p Cunningham [1991] 4 All ER 310), so it makes a slight ass of the law if the court you apply to then does exactly the same! Note that the Court of Appeal acts in this way as well (in fact, Lord Justice Carnwath told me on 8/7/2010 that it was quite normal for the Court of Appeal not to give reasons for its decisions - and I have an authenticated verbatim record of his exact words - but he was, of course, referring only to appeals by litigants in person; they wouldn't dream of treating barristers in such a manner. He also told me that I had no right of appeal against his decision - again, on record - which was a direct lie given that, as he well knows, appeal can be made to the European Court of Human Rights. What a lying scumbag!).

Another tactic they use against litigants in person is a Civil Restraint Order. I have had one of these slapped on me unannounced (and therefore unlawfully) by a judge. In Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB) an Approved Supplemental Judgment was made which stated that 'The purpose of this short supplemental judgment is, therefore, simply to make it clear that no civil restraint order was in fact made. That is because it would not be right to make such an order without giving Mr. Smith's counsel the opportunity to make such representations as he wishes.' This decision was legally binding on the judge but he just ignored that.

Act as a litigant in person by all means, but be aware of your likely reception. You may find a sympathetic judge but the chances are against it (ever looked for a needle in a haystack?). You will go into court expecting justice and to be given some leeway as a litigant in person; the legal team opposing you, the judge and the court staff know otherwise, but no-one will tell you (you will find them curiously unwilling to look you in the eye). Lord Woolf, Lord Chief Justice, said it and he knew what he was talking about. My experience merely confirms what he said.

9. The law - complaints against judges

Q: 'What do you call a lawyer with an IQ of 50?'
A: 'Your honour.'

Note that if you complain to the Office for Judicial Complaints (OJC) that a judge has, for instance, made a decision and given no reasons for it (a clearly unlawful act*), and provide clear evidence of it, they will reject your complaint on the basis that they can only investigate complaints relating to personal misconduct and not the judge's decision. In doing this, they ignore The Judicial Discipline Regulations (Prescribed Procedures) 2006 (SI 2006/676), section 14(1)(b), which makes it quite clear that the OJC cannot reject complaints relating to a judge's decision where the complaint also raises a question of misconduct (so if a complaint does raise a question of misconduct the OJC should consider it even if it relates to the judge's decision, which you would have thought was fairly obvious - misconduct is misconduct). Also, there is no mention of 'personal misconduct' in these regulations. If you then complain about the OJC to the Judicial Appointments and Conduct Ombudsman (Sir John Brigstocke KCB) on the basis that the information on the OJC's website is misleading (misleading information is a specific ground for complaint allowed by the ombudsman), he will reject your complaint on the basis that the use of the phrase 'personal misconduct' is 'designed to facilitate complainants' understanding' (well, it gives them an understanding I suppose, but it is a wrong understanding which is deliberately misleading - so, an understanding but not the correct one. This is like saying that a lie is designed to give you a clear understanding. Well, yes, a clear understanding but a wrong understanding). What all this means is that unless a judge calls you a bastard or pokes you in the eye, they will do nothing about it. So, if you boil this all down to a simple question like 'So if a judge acts unlawfully and does not give reasons for a decision, does that amount to misconduct that you will investigate?' The answer is 'No', which means that acting unlawfully is not viewed as misconduct! Now you know why judges couldn't give a stuff about you complaining about them.

*See Lloyd v McMahon [1987] A.C. 625; R v. Civil Service Appeal Board ex p Cunningham [1991] 4 All ER 310; Doody v. S of S for the Home Department [1993] 3 All ER 92

10. The law - misconduct/malfeasance in public office

I do not want to go too far into this subject but you should be aware of the criminal offence of misconduct in public office and the tort (civil wrong) of malfeasance in public office, which is essentially the same thing. The main point is that, as a tort, a victim has a right of action against the person who committed the tort (but not against judges, who are exempt from suit i.e. you can't sue them). So, a person holding a public office can be held PERSONALLY liable for their actions. Sounds good (too good to be true perhaps - consider why actions in this tort are rare). The claimant has to establish that they have suffered a loss or harm as a result of the conduct and that the defendant intended to and did cause the loss/harm or, in spite of being aware that there was a risk of the loss/harm, acted in such a way as to cause the loss/harm.

See the Crown Prosecution Service guidance (here also) and Attorney General's Reference No. 3 of 2003 [2004] EWCA 868 for more information. Wherever you think someone holding a public office* has done wrong (including officials who fail to investigate your complaint properly), consider reporting the matter to the police as a criminal offence of misconduct in public office (bearing in mind what I have said about the police).

Misconduct in public office (the criminal offence) carries a maximum life sentence.

The above is subject to my notes in the previous section on judges' attitudes to litigants in person and other matters.

*This could arguably include officials of private organisations exercising a public function. If the organisation is subject to judicial review as an organisation exercising a regulatory or supervisory function (see above), then individual officers within that organisation are surely also exercising a regulatory or supervisory function and are therefore liable to criminal sanction (or an action in tort) in the same way as a person holding a public office. My view is that the court will find a way round this one because of 'potential unfairness' to officeholders, but what about the 'potential unfairness' to victims in a situation where a public body avoids sanctions against officers by handing over functions to a private organisation? What judges are actually more concened with is preventing a flood of litigation, regardless of the merits of the individual cases which might come forward.

Note s.2 Fraud Act 2006 which relates to fraud by false representation.

(1) A person is in breach of this section if he -

(a) dishonestly makes a false representation, and
(b) intends, by making the representation -

(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if -

(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.

(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of -

(a) the person making the representation, or
(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

Note s.3 Fraud Act 2006 which relates to fraud by failing to disclose information.

A person is in breach of this section if he -

(a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
(b) intends, by failing to disclose the information -

(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss

Note s.4 Fraud Act 2006 which relates to fraud by abuse of position.

(1) A person is in breach of this section if he -

(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,
(b) dishonestly abuses that position, and
(c) intends, by means of the abuse of that position -

(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.

(2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

11. The law - private prosecution

Note also the right to bring a private prosecution for a criminal offence. The time limit for summary offences* is 6 months; there is no time limit for indictable offences (those which carry a right to trial by jury) or either way offences. Note that the Crown Prosecution Service (CPS) can take over and discontinue a private prosecution, but you can also start a private prosecution and then ask the CPS to take it over. The procedure for starting a private prosecution is simple; all you have to do is lay information before a Magistrate (you need to provide sufficient reasons, plus evidence, to persuade the Magistrate that there is a case). So, theoretically, you could bring a private prosecution relating to a criminal offence of misconduct in public office against an official in a private organisation where that private organisation is carrying out a regulatory or supervisory function which, if it were not carried out by them, would be carried out by a public body. An example of a private prosecution (including where the private prosecutor represented himself in the proceedings) is Ian Cook v. Environment Agency and May Gurney Ltd (2006).

*Summary offences are those not triable by a jury (i.e. they can be handled in a Magistrate's Court). These are generally those where the maximum sentence is 6 months imprisonment.

12. The law - The Protection from Harassment Act 1997

Although more relevant to obtaining a remedy in respect of unfair treatment by employers, I include this here because there is a lot of confusion on the subject of harassment. Hopefully this will make things a little clearer.

*Definition of harassment according to case law (see Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233 at 30 and Green v DB Group Services(UK)Ltd [2006] EWHC 1898 (QB) at 14)

IMPORTANT NOTE

Note that the Act does not actually include any requirement that conduct be 'calculated [...] to cause distress' which makes sense when you consider that a stalker may not want to cause his victim distress - he might be in love (seriously). It appears to me that if the conduct amounts to harassment under the Act then the harasser has committed both the criminal offence and the tort. In law, he has committed the tort and is therefore liable for harm resulting from that tort regardless of intention. The courts seem to have introduced a requirement that is not in the Act. Look at the Act and see for yourself.

Green v DB Group Services(UK)Ltd [2006] EWHC 1898 (QB) (at 70) involved very low level unpleasantness by fellow members of staff, much of it trivial on its own, but the Judge stated that the totality had to be looked at (staring venomously, ostracising the claimant from greetings, excluding from conversations, excluding from departmental lunches, removing from circulation lists for memoranda, hiding the post from the claimant and suggesting the claimant stank) - 'Many of the incidents that she describes when viewed individually would amount to no more than minor slights. But it is their cumulative effect that has to be considered.' (71)

See here for more case law and this case list:

Banks v Ablex Ltd (2005) IRLR 357, Court of Appeal;
Bazley v Curry (1999) 174 DLR (4th) 45, Canadian Supreme Court;
Bernard v Attorney General of Jamaica (2004) UKPC 47; (2005) IRLR 398; (2004) 148 SJ 1281;
Dubai Aluminium Co Ltd v Salaam (2003) IRLR 608;
Dunnachie v Kingston-upon-Hull City Council (2004) UKHL 36, HL;
Fadipe v Reed Nursing Personnel (2001) EWCA 1885, CA;
Harrison v NCB (1951) AC 639;
Harvest Press Ltd v McCaffrey (1999) IRLR 778, EAT;
Hudson v Ridge Manufacturing Co (1957) 2 QB, 348;
Jacobi v Griffiths (1999) 174 DLR (4th) 71, Canadian Supreme Court;
Johnson v Unisys Ltd (2001) ICR 480, HL;
Lister & ors v Hesley Hall Ltd (2001) IRLR 472, HL;
Majrowski v Guy's and St. Thomas's NHS Trust (2005) EWCA Civ 251, CA;
Norton Tool Co Ltd v Tewson (1972) ICR 501, NIRC;
Tedeschi v Hosiden Besson Ltd, EAT 959/95;
Trotman v North Yorkshire County Council (1999) LGR 584, CA.

13. Conclusion

'Where there are too many policemen, there is no liberty. Where there are too many soldiers, there is no peace. Where there are too many lawyers, there is no justice.' - Lyn Yutang (1895-1976)

Q: 'What is the difference between a lawyer and a flounder?'
A: 'One is a bottom-sucking scavenger, the other is a fish.'

Spot the difference:

Flounder Lawyer

It is, of course, the corruption in the legal system (what else do you call it when a judge consciously denies you justice?) and the fact that so few people dare to go to law (because of the delay, expense and uncertainty - uncertainty as to everything except the high risk of bankruptcy!) which is at the heart of the problem. If legal remedies or sanctions were easier to obtain, this would act as a powerful deterrent to would-be wrong-doers. As it is they know that the chances of them ever being called to account are very slim. This situation is allowed to continue partly because governments (which consist largely of lawyers) realize that it is in their interest to make it difficult for individuals to hold officialdom to account and partly because the legal profession is quite simply extracting as much money from the system for as long as possible; like Robert Mugabe, they are onto a good thing and aren't going to let go - regardless of the cost to you. Quick and simple justice is most definitely not something they want. And because the legal profession in the UK is deliberately defending the status quo and preventing access to quick and simple justice, it is indirectly responsible for encouraging crime - a sort of self-perpetuating business I suppose. If you are beginning to get the idea that the legal profession is a cancer in society then you are thinking along the right lines.

Spot the difference:

Mugabe Lawyer

So it seems that the odds are stacked against you and that the list of those who will dismiss or ignore you is practically endless. Given this, do you want to continue? The answer to that question is of course 'Yes'. The reason for this will become clear as you read further.

For officialdom

'After the first blush of sin comes its indifference.' - Henry David Thoreau (1817-1862)

On the one hand you are likely to feel reassured by this site. You are not alone. Look at all the people who have refused to deal with his complaint! Practically everyone you can think of - regulators, ombudsmen, civil servants, professional bodies, the police, politicians, business leaders, lawyers! They have treated him with contempt and got away with it! He's tried everything and got nowhere! We might as well join the happy throng!

But then there is the downside, which is what happens when you make that choice. Read on.

For the bad guys

'Do not believe that possibly you can escape the reward of your action.' - Ralph Waldo Emerson (1803-1882)

'The Moving Finger writes; and, having writ,
Moves on; nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it.' -
The Rubáiyát of Omar Khayyam, 1859

So what's the message to the bad guys? Well, it is this. I believe in personal responsibility (it is not organisations who bully people, it is people who bully people) and I believe that people should be held to account for their actions. So how does that work? The answer is this. Whether or not you have been held to account in any other way (quite probably not), you may regard the internet as a court of law - the greatest there ever was or ever shall be; the court of all the people who have access to the Internet, now and forever; your trial is eternal, thanks to internet archives, things like the 'Wayback Machine' and so on. Internet users are judge and jury. They will make their own minds up; I am quite prepared for that. I am sure that, in the interests of justice, you are too. After all, you will argue, will you not, that not only have you done nothing wrong but that you have acted with the utmost probity throughout; in which case you will be grateful that this site gives you the recognition you deserve. Not at all, my pleasure.

You are, nonetheless, free to answer the charges against you. If you point out a factual error then I will correct it. If you disagree with my interpretation of the facts then I will listen to your arguments. If you can persuade me that you are right (and I promise to be fair - which is more than you did for me) then I will change my mind and alter this site accordingly. I will even publish your arguments and opinions. Of course, you also have the right to publish anything you like on your own website. Feel free. These are the rules of the court; they are simple and just. Like any other court (he says!), anyone can make an accusation and anyone accused can defend themselves.

But know this also. What you have done (and, in reality, there is no doubt as to the facts) is now in the public domain. Try searching for yourself on the Internet and you will find this site - quite near the top of the list with any luck (search for 'Martyn Scrivens', the man who sacked me). Images as well. And you know how things are these days. We Google people practically the moment we meet them, if not before. 'Oh yes! You work/worked for XYZ!' someone will say. And you will ask yourself 'Do they know?' This uncertainty will never go away. You will put on a mask of honesty, respectability and generosity but you know that it can all be swept away in a moment. A reputation can be lost in a fraction of a second, the instant people realize. It only takes one incident to reveal what lies underneath and that incident is on this site; that moment in your life (one of many?) when you were offered a free choice between right and wrong - and you chose to do wrong, knowing that you were doing a great injustice to another person or other people, which would affect them for the rest of their lives; knowing, in some cases, that you had reached a position of responsibility which brought with it a corresponding duty to help the weak, the isolated and the oppressed - and that you failed in that duty.

But does it really matter? How many people are really going to find this site? How many people are actually going to look you up? 'Not many' is the answer, 'just the important ones - family, friends, neighbours, colleagues, customers, employers and so on'. Of course, at first they may react against what they read, but they will read on. And gradually they will recognise the truth of what I say (it's funny how people can tell). And then they will know you for what you are.

Every person wishes to leave behind them a reputation for integrity. I deny this to you. This is your sentence.


If you are a whistleblower and have managed to read this far, then congratulations. Here is a blessing to take with you on your road:

'Let the winds of dawn that blow
Softly round your dreaming head
Such a day of welcome show
Eye and knocking heart may bless,
Find our mortal world enough;
Noons of dryness find you fed
By the involuntary powers,
Nights of insult let you pass
Watched by every human love.'

Here are the closing lines of Cyrano de Bergerac:

'What say you? It is useless? Ay, I know
But who fights ever hoping for success?
I fought for lost cause, and for fruitless quest!
You there, who are you!--You are thousands!
Ah!
I know you now, old enemies of mine!
Falsehood!
(He strikes in air with his sword):
Have at you! Ha! and Compromise!
Prejudice, Treachery!. . .
(He strikes):
Surrender, I?
Parley? No, never! You too, Folly,--you?
I know that you will lay me low at last;
Let be! Yet I fall fighting, fighting still!'

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