Over the past few weeks I have been trying (unsuccessfully) to extract information from Dyfed-Powys police about the Pembroke Dock grants business.
Two years have now elapsed since my investigations forced Pembrokeshire County Council (PCC) to provide the police with a thick dossier of evidence and Old Grumpy was concerned to know what, if any, progress had been made.
Of particular interest was the position under the Contempt of Court Act 1981 (sub judice rules) which forbids the publication of anything that might seriously prejudice “active” criminal proceedings.
Schedule 1 of the Act lists the circumstances in which proceedings become active including someone being arrested or charged.
Not wishing to fall foul of the law, I have several times asked the police whether any of these triggers had been pulled.
They have point blank refused to answer.
Anticipating this possibility, in July 2014 I submitted a formal police complaint of my own – so that I would have a dog in the fight.
After all, neither PCC or the Wales European Funding Office (WEFO), who are supposed to have audited these grant claims on multiple occasions, have any interest in seeing their incompetence exposed in open court.
Last summer, fifteen months into the investigation, I was told via PCC that the police intended to appoint an independent quantity surveyor to help them navigate their way through the bills of quantities and other documents.
I wrote to the police asking for the name of this consultant in order that I could satisfy myself that it was not one of the many quantity surveyors with connections to the interested parties whose names I had come across during my investigations.
Recently I received an email from the council informing me that the police were liaising with WEFO in this “complex” investigation.
As WEFO are supposed to have audited these projects on at least three occasions, it might be said it is marking its own homework.
And what was not explained was why, in October 2014, this “complex” matter had been taken out of the hands of the fraud squad and passed to the already overstretched CID department at Pembroke Dock.
The latest email from the police wouldn’t be out of place in a Monty Python sketch:
“Whilst I appreciate you contacted Dyfed Powys Police in July 2014 to report this matter, I feel I should clarify that the police’s only obligation is to provide an update to the victim, which in this case has been identified as Pembrokeshire County Council.
I know you hold the view that the victim in this matter is the taxpaying public, but in terms of categorisation the victim is a person/organisation that has suffered economic loss, which was directly caused by criminal conduct.
In this instance taxpayers have not suffered any economic loss as they would have paid the same amount of tax regardless of whether this crime had occurred or not.
It is also worth bearing in mind that any suspects in this case could potentially be members of the “taxpaying public” that you refer to as victims.”
So, if PCC (the victim) says it hasn’t suffered any loss, there is no crime to investigate.
Regular readers will recall that this victim path has been trodden before in the case of Cllr Brian Hall’s expense claims.
Then I was told, during a telephone conversation with a Chief Inspector in Haverfordwest, that a senior officer of PCC (the victim, remember) had told the police that the council had not suffered any loss and that “without a complaint from the victim the police were powerless to investigate”.
“Must make murder inquiries rather tricky” I replied.
My correspondence with the police can be found here.
As it happens, I still have the criminal law textbook – a left-over from my student days – in which Professors J C Smith and Brian Hogan demolish the doctrine that the victim is the final arbiter of whether a crime has been committed.:
“Crime is crime because it consists in wrongdoing which directly and in serious degree threatens the security or well being of society, and because it is not safe to leave it redressable only by compensation of the party injured.”
“Any citizen can, as a general rule and in the absence of some provision to the contrary, bring a criminal prosecution, whether or not he has suffered any special harm over and above other members of the public.
As a member of the public he has an interest in the enforcement of the criminal law.
D steals P’s watch.
P may prosecute him – so may Q, R, S, T or any other citizen.”
Of course there are cases, especially where domestic violence is concerned, when the victim refuses to make a complaint.
And, if the victim is the only witness, the police have little chance of securing a conviction.
But that is a matter of evidence, not legal principle.
However, the Hall doctrine doesn’t apply to the present case because I managed to arrange things so that the victim (PCC) made the original complaint.
Nobody doubts that there have been some serious flaws in the way these grants have been administered.
There is even evidence which seems to suggest the main beneficiary of the questionable grants, Mr Cathal McCosker, acknowledges this.
Why, otherwise, would he offer to pay back £180,000 in respect of 10 Meyrick Street and 25, 27 and 29 Dimond Street and forgo altogether the £120,000 he was due to be paid for 50 Dimond Street?
However, the fact that Mr McCosker has been overpaid doesn’t necessarily mean there has been any criminal activity.
It is perfectly possible that, in respect of 29 Dimond Street, the 45 grant payments for ineligible items, and the nine for work that was never actually done, were the result of incompetence on the part of the officer who signed them off for payment.
Or, as the Director of Development told the audit committee, it could be because the department was short-staffed because one of its key members was on maternity leave, though, as the officer supervising the contract was a fifty-something male who has since taken early retirement on health grounds, that seems unlikely.
And you can’t rule out the possibility that, when he specified 95 sq metres of slates on a flat roof, Mr McCosker’s architect was unaware that it is not practicable to fix slates to a roof with less than 25 degree pitch because the wind will blow water over the top of the headlap.
And, when the same architect put in a grant claim of over £3,000 for these slates, it was all down to his poor eyesight that he failed to notice that they hadn’t been fixed.
Ditto the supervising officer who signed off the grant for payment.
After all, we mustn’t forget that, before anyone can be convicted of a crime, it has to be proved beyond reasonable doubt that they intended to commit it.