Appellant’s Reply to Commissioner's Response to the Appellant’s grounds of appeal in accordance with rule 24 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009. Concerns requests for information made to Humberside police to obtain the number of times the phrase "YOU CANT MAKE ME" appeared in police officers witness statements. Humberside Police relied on section 14(1) (vexatious requests) of FOIA.

1. IN THE FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
(INFORMATION RIGHTS)
APPEAL: EA/2017/0161
BETWEEN:
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
APPELLANT’S REPLY TO RESPONDENT’S
RESPONSE TO NOTICE OF APPEAL
Introduction
1. This Reply is served in accordance with rule 24 of the Tribunal Procedure (First-
tier Tribunal) (General Regulatory Chamber) Rules 2009.
Correction (Commissioner’s Response para 30)
2. The matter concerning the statement in the Decision Notice (‘DN’) which was
corrected in para 30 of the Commissioner’s Response was material in persuading
the Appellant who was reluctant to appeal another Commissioner’s decision, to in
fact do so.

2. 1
3. As set out in the Commissioner’s Response, the confirmation that it was the same
officer who used the phrase “You can’t make me” on two separate occasions has
now been unconfirmed. The correction of course means that there is now some
doubt whether or not it was the same Arresting Officer.
4. This doubt weakens to some extent the Appellant’s argument in respect of the
grounds on which he relied to support there being a serious purpose and value to
the request, but only in respect of disclosure that might suggest standard phrases
being used for effect which are officer specific. There is still value in discovering
the possibility of whether the force in general incorporates standard (not
necessarily true) phrases into witness statements to the detriment of the defendant.
It is especially of value to the Appellant as the witness statement produced by the
Arresting officer in relation to his conviction was contrived and he disputes that
the phrase “You can’t make me” was said as the statement records. The statement
also failed to include relevant facts which would have without doubt undermined
the case for the prosecution.
5. The question also remains as to why, after the anomaly has been highlighted, there
has been no statement confirming whether or not it was the same officer involved
in both cases. The Tribunal will no doubt consider establishing this point of some
importance.
Commissioner’s Response
6. The Commissioner considers at para 35 in the Response, that ‘the requests appear
to have been submitted with a view to venting dissatisfaction’. The apparent basis
for that view is that because matters have already been considered by Humberside
police it must be concluded that any further requests are vexatious on the grounds
that they intend to further express dissatisfaction with the outcome (para 41,
Commissioner’s Response). The Commissioner is not at liberty to assert this and
in doing so abuses the FOIA to deny the appellant his legal right to information on
a prejudiced view that the so called proper channels are the only way to address
the injustice and if those channels have been exhausted, even if wrongly, one has
to resign oneself to it. If the Commissioner is not prepared to look into the alleged
findings, or has no jurisdiction to question them, then it is unreasonable that they

3. 2
are exploited in these proceedings to help persuade the Tribunal that the requests
were vexatious.
7. On this point however, the Tribunal has the opportunity to assess whether the
Appellant, who has in the opinion of the Commissioner taken some of his
concerns through the proper channels, had those concerns dealt with appropriately.
The Open Bundle (‘OB2’) File 2, pages 5-113 contains the Appellant’s defence
statement, appeal to the Crown court and papers in connection with a proposed
private prosecution which are referred to in paragraph 41 of the Commissioner’s
Response. The court’s rejection of these is clearly relied on to support ‘the
Commissioner’s analysis that the request has little, if any, serious purpose or
value’.
8. If it is evident that the court did not (or could not) deal with the issues or dealt
with them unfairly, then to consider FOIA has been used as a means of re-opening
matters that had been dealt with by the court, would be taking irrelevant factors
into account to justify vexatiousness (Commissioner’s Response para 29).
Defendant’s Statement - (pages 5-14, OB2)
9. It is plain that the Appellant was given no information about the criminal justice
procedure he became involved in. The duty solicitor involved initially, who had
been up-dated before the court hearing, had not replied leaving the Appellant to
rely on guesswork. It was obvious even at that stage that there was no case to
answer and enough evidence to suspect that the police, court and Crown
Prosecution Service (‘CPS’) had colluded to proceed in circumstances not
permitted by the Director of Public Prosecution’s Guidance on Charging. This was
even before the Appellant had seen the information (witness statements etc.)
contained in the CPS file handed him just minutes before he appeared before the
bench.
10. The statement had clearly been produced by the Appellant and submitted to the
Magistrates’ court, with him not knowing whether it was required or if it would
comply with any relevant procedure rules or if it should have been copied to
anyone other than the court. A letter contained in the CPS papers received by the

4. 3
Appellant in the manner described above on the day of the hearing (30 September
2015) was dated 22 September 2015 [Exhibit A-1] and specified the requirements
of compliance to submit a witness statement:
“If you supply a written defence statement to me and to the court within 14
days, any material which has not been disclosed at this stage will be further
reviewed. The defence statement must comply with the requirements of
section 6A of the CPIA:”
11. The letter’s main purpose however was for the CPS to disclose (as required) to the
Appellant any prosecution material which had not previously been disclosed, and
which might reasonably be considered capable of undermining the case for the
prosecution or of assisting the accused's case. That material up until the present
was thought to be the witness statements which were blatantly inconsistent and
known to the Appellant to be false. However, on producing this Reply for the
Tribunal, a closer look at the CPS file indicates that the prosecution material
which might reasonably be considered capable of undermining the case etc., was
in relation specifically to one of the witnesses having a criminal record.
12. The letter continues to say regarding the statement (and material which has not
already been disclosed) that any information provided would be reviewed by the
CPS. Clearly the Appellant should have been served this and other letters and
because they concerned a criminal matter he should have been alerted to any
implications of not being legally represented.
Crown Court Appeal - (pages 15-21, OB2)
13. The appeal to the Crown Court was submitted on 12 April 2016 which was outside
the 21 day limit for an application to be accepted without permission to apply with
an extension of time. The reasons for the application being made late, which were
clearly stated was because the Appellant had embarked upon a time consuming
process to provide evidence to persuade the Magistrates’ court that it would be
appropriate that the case be reopened under section 142 the Magistrates' court Act
1980. This was continuous from 22 December 2015 when the Deputy District
Judge, Andrew Pascoe passed sentence up until the 12 April 2016 when the
Magistrates’ court made it clear that nothing more could be added and that the

5. 4
Appellant’s option was to appeal to the Crown court. It was also made clear that
none of the mitigating evidence submitted by the Appellant, nor the unreliable
content of the CPS file had been considered by the court in the conviction and
sentence as the decision was based only on oral evidence.
14. New mitigating evidence had been obtained during the period that was taken up
corresponding with the Magistrates’ court which was included in the grounds of
appeal to the crown court. For example there was no CCTV coverage available
even though it was confirmed that a total 7 cameras covered relevant areas. It was
confirmed that HP made no request on the relevant day to retain the video footage
and had therefore been overwritten. The witness statement were further analysed
for inconsistencies which were found and included in the appeal along with the
evidence mentioned about the CPS failure to serve documents which were a
statutory requirement etc. etc.
15. Clearly as the evidence provides (page 22, OB2) the matter was not dealt with,
and in any event the court’s refusal to allow the appeal was without question so
unfair as to amount to an abuse of power as its decision and the reasons for it
failed to take relevant factors into account. Therefore, for the Commissioner to
have considered FOIA had been used as a means of re-opening matters that had
been appropriately dealt with by the court in this instance to justify vexatiousness
would be unfounded.
Private prosecution - (pages 23-111, OB2)
16. The Appellant had taken the step of laying an information under section 1 of the
Magistrates’ court Act for the purpose of bringing before the court the officer
who wrongly stated perjury was not a matter for the police in relation to the
Council employee’s false statement (Commissioner’s Response para 23 and page
35, OB2). He had done so as a last resort, since being met with a lack of will on
the part of public bodies funded by the taxpayer to deal with matters like this on
their behalf. It had been seen as an essential move to get the serious matter out in
the open and hopefully taken seriously.

6. 5
17. The Appellant was mindful of the technical difficulties pursuing a private
prosecution and so had intended making all evidence he held available to the
justices' clerk for the case to be referred to the CPS under s.7(4) of the Prosecution
of Offences Act 1985.
18. In this case again, as the evidence provides (page 113, OB2) the matter was not
dealt with, and in any event the court’s decision against issuing a summons was
made without any consideration of the evidence provided, which proved beyond
doubt that the council had submitted perjured evidence to the court in order to
defraud the Appellant. Whatever reasons the judge gave for his decision, they do
not alter the fact that HP was negligent and at fault for considering perjury to be a
civil matter which removes any doubt whatsoever that powers exercised by the
police were to the detriment of the Appellant.
19. Also, the complaint made subsequent to the force asserting that perjury was a civil
matter (page 36, OB2) was improperly dealt with as it had been wrongly assessed
by the Professional Standards Department (‘PSD’) as being a complaint that could
be dealt with under the Local Resolution (‘LR’) process (page 63, OB2). The
complaint patently concerned the improper exercise of police powers (offence
under s.26 of the Criminal Justice and Courts Act 2015) and any alleged conduct
that could arguably fall within the definition of this offence must be referred to the
Independent Police Complaints Commission (IPCC). This is confirmed in an
IPCC Operational advice note (Mandatory referral criteria update, April 2017) on
page 6 [Exhibit A-2].
20. The complaint outcome letter also stated that the advice obtained from the Force
Solicitors was that the issues MAY BE points that could be raised in an appeal and
that ‘Humberside Police do not investigate allegations of perjury unless a request
to do so comes from the court themselves’.
21. The Appeal against the outcome of LR (page 66, OB2) contested the decision that
the complaint was suitable for LR and various other points. In reference to the
advice obtained from the Force Solicitors regarding appeal points it was explained
that any such appeal would involve civil proceedings and concern a challenge to
the relevant legislation governing Council Tax administration and/or enforcement,

7. 6
therefore, representations involving criminal law would not be considered appeal
points that could be raised in civil proceedings.
22. It was set out in the appeal that an officer commits an offence under s.26 of the
Criminal Justice and Courts Act 2015 by failing to exercise a power for the
purpose of achieving the detriment of another person1
. The criteria for whether the
complaint could be dealt with by Local Resolution was therefore not met on this
basis which was explained in the appeal. The Mandatory referral criteria update
(see above para 19) has confirmed that in the circumstances of the complaint HP
had erred in law by not referring the complaint to the IPCC and instead attempted
to locally resolve the matter.
23. Representations supplementing the appeal were submitted to inform the PSD that
the police do not have to be instructed by the court to investigate perjury, contrary
to what the Force Solicitors had stated. The CPS explains the following on its
website under the heading "Cases Involving Allegations of Perjury":
"Where a judge or magistrate believes that some evidence adduced at trial is
perjured s/he can recommend that there should be a police investigation.
The absence of such recommendation does not mean that there is no
justification for an investigation."
24. The assessment of the appeal to the LR outcome dated 8 June 2016 [Exhibit A-3]
provides no evidence that the additional representations had been considered
which is consistent with other assessments. For that matter there was no evidence
of any of the representations being given careful consideration. Where appeal
grounds had been taken into account, only elements which the force wished to
focus on were considered. For example, the assessment centred on the Appellant’s
assertion that it would be unreasonable to expect the victim to have resorted to
appealing to the high court. This was rendered purely academic anyway because
the matter, which was a relevant factor, concerned a criminal allegation which
required police involvement (as opposed a civil appeal) but this failed to be
considered in the decision. Therefore, HP had as well as unlawfully determining
1
Advising that the crime did not concern the Police has caused, and is still causing the Appellant injustice

8. 7
the complaint suitable to be dealt by way of LR also erred in law by failing to take
account of relevant factors.
Playing the system
25. The 8 June 2016 assessment outcome demonstrates perfectly how the force
manages to exploit for its own ends the statutory complaints process governed by
the Police Reform Act 2002. Item 1 of the report (Was the complaint suitable for
local resolution?) states the following (emphasis added):
“The person who passed the advice to the complainant would not be subject
to disciplinary or criminal proceedings as a result and therefore the
appropriate authority was correct in deciding that the complaint was suitable
for local resolution.”
26. The above implies that the force engineered a technicality to exploit in order to
determine the complaint suitable for LR. The Appellant specified that he wished
‘to submit a complaint about whoever within the force made [the] decision’.
However, the recording (page 61, OB2) puts the complaint to be about an officer
wrongly informing the Appellant that the matter which he wanted to report was a
civil matter when he believed it to be criminal. The force allowed the complaint to
proceed on the false premise that the person complained about was the messenger
(not the person who would be subject to disciplinary or criminal proceedings) and
failed to identify which officer had made the decision.
27. Although it is more than obvious from the Appellant’s defence statement, Crown
court appeal etc. (pages 5–113, OB2) that the court did not deal with the issues or
dealt with them unfairly it would be irrational even if it was not obvious from
those papers for the Commissioner to make her decision on the say so of the court.
It would be completely unreasonable for someone who has been wrongly
convicted of an offence to be denied the right to consider in those circumstances
that the matter was not closed. It is the case in any event that the Appellant would
not consider the matter closed even if a judge had presided with the confidence to
resist pressures of the state and be objective and whose experience was such that
he would be considered immune to attempts to prejudice him.

9. 8
Abusing complaint process under the Police Reform Act 2002
28. Because HP’s preferred way of dealing with reported crime is to process it
through the complaints and appeal process rather than taking appropriate action
the Appellant has a catalogue of evidence of the force routinely abusing the
system. The Appellant’s grounds of appeal has provided some examples but in
respect of how the force avoids recording matters, it might be helpful if the
Tribunal were made aware of HP’s tactics to highlight the Appellants continuing
struggle.
Dealing with a reported crime as though it were a complaint
29. The Appellant had submitted a complaint about civilian members of police staff
impersonating police officers on a prescribed complaint form. HP successfully
applied legislation under the Police Reform Act 2002 and avoided dealing with the
matter on the grounds that the complaint was outside the permitted time limits. As
a consequence, the Appellant reported the matter as a crime on the facility to
report a crime on the force’s website [Exhibit A-4].
30. As can be seen from correspondence that follows (Ex A-4), the force processed
the matter as if it were a complaint and refused to record it on the grounds that it
was repetitious. The decision could have been contested as there was an appeal
right to the IPCC but there was no basis for appealing because the Appellant had
reported a crime as opposed to making a complaint.
31. There was however a valid reason to complain about the officer who wrongly
treated the reported crime as a complaint submitted under the Police Reform Act
2002. HP replied in a letter of 2 June 2017 to the new complaint about the matter
which was submitted by the Appellant on 16 May 2016. The PSD managed to
twist the facts in order to justify making the decision against recording the matter
on the same basis, i.e., that the complaint was repetitious. There was an appeal
right, again to the IPCC which this time the Appellant exercised because there
were valid grounds to appeal. The appeal was submitted to the IPCC on 3 June
2016 which was upheld (7 July 2017); the reasons for upholding the complaint
were the following:

10. 9
“It appears that the allegation made in your new complaint dated 16 May
2017 (1X/578/17) is regarding the handling of your crime report as a
complaint (CO/1 /17). As such the allegations are concerning different
officers and thus cannot be considered to be repetitive. Therefore, your
appeal is upheld on this basis.”
32. The PSD was directed to record the complaint dated 16 May 2017 and contact the
Appellant within 28 days. The force wrote on 1 August informing the Appellant
that the process (i.e., assigning an investigating officer) would normally be
completed within 28 days but if there was any delay he would be updated
accordingly. A copy of the complaint as it had been recorded was enclosed:
“The complainant states he contacted the Police wishing to report a Crime
committed by Police Staff Warrant Officers purporting to be Police Officers
who had arrested him, but the Police wrongly recorded a Complaint Against
Police instead of raising a Crime Report in respect of persons impersonating
police officers.”
33. The PSD’s next correspondence was received by the Appellant on 5 September
informing him that the matter was still being progressed with the caseworker and
would be informed within 28 days as to who the investigating officer would be or
if there would be a further delay. The letter was undated, presumably because if it
had been, it would have indicated that the PSD had breached legislation under the
Police Reform Act 2002 or failed to correctly follow IPCC guidance.
34. The PSD’s most recent letter is dated 5 September and informs the Appellant that
the complaint is considered to be vexatious and an abuse of process. The PSD
again managed to twist the facts in order to justify its decision which in this case
was to consider seeking authority to disapply the complaint. The force explains
what this means which is that ‘the complaint can be dealt with in any manner
deemed appropriate, which on this occasion would mean that no investigation
would take place and the file would be closed’.
35. The Appellant has been given the opportunity to make representations as to why
he believes that the complaint should be investigated, prior to the PSD making a
final decision whether or not to disapply the complaint. However, this is just a
formality and it is anticipated that the complaint will be dissaplied regardless of

11. 10
whether or not representations are made. If as predicted the force does disapply
the complaint the Appellant will have an appeal right either to HP’s Appeal Body
or the IPCC if the matter complained about would justified criminal or misconduct
proceedings if proved.
36. As stated, the PSB has twisted the facts. It has relied on IPCC guidance which is
irrelevant in the circumstances. The passage it quotes from the IPCC concerns
when a complaint may amount to an abuse of procedure or constitute a vexatious
complaint in the context of "complaints about the decision not to record a matter
as a crime”. The Appellant’s complainant specifically concerned the force
handling his crime report as a complaint.
Citing repetition and abuse of process to justify non-recording of crime
37. HP exploits the complaints and appeal system in this example [Exhibit A-5] to
justify its decision against recording the complaint by asserting that the matter
raised is fundamentally the same as those alleged previously (Ex A-5, July 5
letter), when in fact the issues are entirely unrelated. After the usual hoops through
which the Appellant had to jump the mater eventually reached the IPCC who
upheld the appeal on both grounds relied on by the PSD. The complaint was
therefore deemed neither repetitious nor an abuse of process by the IPCC.
38. The example should be of particular interest to the Tribunal because it raises a
question about whether the various allegations which HP claims to have
investigated had been, and if so, on what basis and to what standard 2
. Where
allegations had not been investigated, the question also arises as to whether a
decision against doing so had been properly justified.
39. For example, it is not credible with all the evidence that the police were provided,
that its Head of Crime could have been anywhere near satisfied that all of the
alleged crimes referred to in her letter of 19 November 2016 were unfounded
[Exhibit A-6]. A similar improper decision making process could have accounted
for the 19 November decisions as had justified why the allegations of the
2
The police are required by law to pursue all reasonable lines of enquiry when investigating a crime

12. 11
dishonest postal claim by the court service3
should not be investigated (i.e., that
the allegations were repetitive).
Considering LR appropriate and delaying outcome (paras 9 & 11-16 Appellant’s
Grounds of Appeal)
40. The Appellant’s Grounds of Appeal explained that a police conduct complaint was
wrongly considered suitable to be dealt with by way of LR and took 510 days to
complete. An appeal was submitted to HP about its decision which it referred to
the IPCC. The IPCC upheld the appeal [Exhibit A-7].
The Commissioner’s Response (Applicable law)
41. The Commissioner refers in paragraph 13 of the Response to the judgment (para
38) of the Upper Tribunal (Information Commissioner v Devon CC & Dransfield)
in respect of ‘the value or serious purpose of the request’. The Tribunal may wish
to note the advice which warns against jumping to conclusions about the lack of
value or serious purpose also contained within that paragraph:
“In any case, given that the legislative policy is one of openness, public
authorities should be wary of jumping to conclusions about there being a
lack of any value or serious purpose behind a request simply because it is not
immediately self-evident.”
42. In paragraph 11 of the Commissioner’s Response in respect of ‘the burden
imposed on the public authority by the request’ the Upper Tribunal judgment (para
29) is quoted which sets out clues that might give away whether a request can be
properly characterised as vexatious. The subsequent paragraphs (30-33) however
expand on the telling factors which it lists as the number, breadth, pattern and
duration of previous requests.
3
10 items of post were claimed to have been sent by the court service to the Appellant, spanning the
period from 19 December 2013 to 22 July 2016 (none were delivered but copies have been obtained
since). The force associated the matter, for the purposes of invalidating the allegations, with matters
raised in 2011 and 2014 which concerned allegations of fraud by Council bailiffs and Council Tax
summonses issued en masse without proper monitoring. There was no connection whatsoever linking
either of the previous issues with the allegations relating to the letters.

13. 12
43. It can be taken from this that the number, breadth, pattern etc., of requests may
only point to a finding that a request is vexatious and can only assist the
Commissioner come to a decision. What the Commissioner has to bear in mind
above all else is whether a particular request is vexatious. This means an
individual with a history of making numerous requests in quick succession that
were all very wide-ranging over a protracted period (i.e., ticked all boxes) would
be caused an injustice if a particular request was made which clearly had a serious
purpose was found to be vexatious.
Conclusion
44. Notwithstanding all the obvious reasons as to why the request has been made for a
serious purpose, a simple test might determine if the Appellant’s motivation was
vexatious rather than genuine. Assessing the likelihood that the Appellant would
choose to deliberately annoy the force if the burden placed upon himself was
much greater, it would be evident (if it was) that on the balance of probabilities the
requests would not have been vexatious.
45. Conversely, a clue is given from the amount of work the force has dedicated to
obstructing the requests as to why it has. It is clear that substantially more
resources have been expended in the time and effort gone into withholding
information. Engaging the Commissioner and Tribunal rather than simply
providing what has been asked for suggests a cover-up, which is likely to be for
the purposes of being saved the potential embarrassment of releasing the
information.
46. It is evident that none of the arguments on which the Commissioner seeks to rely
are of any assistance in justifying that the request is vexatious. A fundamental
error has been made in judging that the Appellant’s request has been submitted
with a view to venting dissatisfaction and seeking Humberside Police’s further
engagement in matters that it has already considered. For what it's worth, the
reason for asking for the information is as far away from being vexatious as it
could possibly be.

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47. For the reasons set out above and Appellant’s Grounds of appeal the Tribunal is
invited to find that the request did have a serious purpose and was therefore not
vexatious.
12 September 2017