It will come as no surprise to anyone who has been taking a close interest in the protracted police investigation into PCC’s complaint about alleged fraud in the Pembroke and Pembroke Dock Commercial Property Grant Scheme (CPGS) that the Crown Prosecution Service has decided not to lay charges.
Five-and-a-half years after PCC presented a detailed dossier of evidence to Dyfed-Powys Police, the matter has been brought to a conclusion by a letter from the CPS rejecting PCC’s appeal against their initial decision not to prosecute which was conveyed to the council’s July meeting in a letter from Det Chief Supt Steve Cockwell of Dyfed-Powys Police.
While the reasons given by DCS Cockwell and the CPS’s Senior Specialist Prosecutor J Graham contain the same feeble rationalisations concerning the case officer’s lost computer, conflicting witness statements by PCC officers, questions of evidence tampering, confusion over what constituted proof of defrayment, etc, etc, there are some significant departures.
So, whereas the letter from the CPS make reference to “articles published by a councillor [me] on his blog” which “could lead to difficulties as material is now in the public domain which should not be and this could lead to an argument that a fair trial is not possible” there is no sign of DCS Cockwell’s false claim that this unnamed blogger had persisted in publishing these articles “despite been warned on numerous occasions not to do so because the investigation was live”.
You may remember that, when Cllr Jacob Williams and I challenged him at the July meeting of council, all the DCS could come up with was a single instance when a police officer had issued a general warning.
So it is difficult to see this false reference to “numerous” warnings as anything other than a desperate attempt by the police to deflect criticism of their own incompetence.
DCS Cockwell’s letter also stated that: “It is also worth noting that whilst the grant money (£189,224.26) has been repaid to Pembrokeshire County Council in full this has not informed the decision making process”, while this latest CPS letter makes no mention of the repayment issue.
Perhaps the CPS is concerned that someone might ask why, if this was not a material consideration, it twice made enquiries of PCC regarding Mr McCosker’s repayments – the second just a few days before reaching the decision not to prosecute.
But the details of that will have have to wait for another post.
And there is one fascinating piece of information in the CPS letter that didn’t make it into the earlier police version:
“As mentioned above the case worker [PCC’s quantity surveyor (QS) in charge of the CPGS in Pembroke Dock] was interviewed under caution. During that interview he stated that there was relevant material on his computer. In interviews that took place with suspects they stated that the case worker was aware of what they were doing.[my emphasis]
“This was an issue that was specifically raised by the defence as a matter which would need to be considered and is therefore a reasonable line of enquiry. It would be difficult to deal with this claim without the computer.”
Can it be true that the case worker turning a blind eye, or worse, to the irregular practices identified in PCC’s complaint constitutes a defence?
More likely in my view it is grounds for charging him with misconduct in public office.
This is the same case officer who accompanied councillors Jamie Adams and David Pugh on their ill fated expedition to Pembroke Dock a couple of weeks before Christmas 2013.
This trip was inspired by photographs of the inside of the roof at Coronation School shown to the Cabinet on 2 December 2013 by Jon Haswell, then head of finance and assurance, which purported to falsify the claims on my website – backed up by the clearest possible photographic evidence (see: Night on the tiles) – that only a small part of the grant-funded work to reslate the roof on new felt and battens had been carried out.
According to the report before cabinet:
“The whole [my emphasis] roof was stripped off and recovered in a mixture of new and recycled natural slate on new felt and battens.”
So eager were Pugh and Adams to believe the case officer that he was able to fill their heads with all sort of nonsense about “a third side elevation” at No 25 Dimond Street; a large space at the back of the shop that accounted for the high cost of refurbishing the retail space at No 29 Dimond Street which turned out to be four bedsits that weren’t eligible for grant aid; and, crucially, that the “entire roof” at Coronation School had been reslated on new felt and battens.
So convinced were our two intrepid roof-space explorers that they both claimed to have been up in the attic and seen it for themselves.
This “knowledge” gave Pugh the courage to call me a liar when my NoM calling for documents connected with these grants be made available to all elected members was debated at council on 12 December 2013 – coincidentally PCC’s first ever meeting webcast.
Unluckily for them, Old Grumpy knows a bit about roof construction and when I investigated further I discovered that it was impossible to inspect the whole of the roof from the two available access hatches.
Anyway, even Jon Haswell had to eventually accept that I was right about the roof at Coronation School.
In a rather sheepishly worded email dated 16 April 2016, he told me:
“In regard to whether the “whole” of the roof had been reslated on new felt and battens, I would no longer state the word “whole”. I did not work for the Authority when the project was undertaken so I had to rely on available photographs of the work and confirmation from the Quantity Surveyor. I definitely saw photographs which satisfied myself that reslating had been undertaken on the roof and believe I saw photographs of new felt and battens (albeit I can’t remember if this was on a different property). I was advised by the Quantity Surveyor that the “whole” of the roof had been reslated on new felt and battens, hence its inclusion in the report. I have since had to question a number of things I was advised by the Quantity Surveyor, hence the reason I would no longer state the word “whole”.”
It goes without saying that, shortly after I first brought these matters to the public’s attention, this case officer [QS] slipped off into early retirement on health grounds.
I am told that certain influential figures in the council wanted him to face disciplinary proceedings, but were overruled from on high.
They will have to tell their own story, courage willing.
Of course, my difficulty is that I have no idea what constitutes this “insufficient evidence” that the police have handed to the CPS.
I do know that the dossier submitted to the police contained details of payments for some £80,000-worth of work that was either ineligible for grant aid, or simply not done, but I have no idea how this might have been finessed by the police before it was handed over to the CPS.
I still have vast files of evidence tucked away in the shed and my next decision is whether to try to launch a private prosecution, or turn it into a book, or both.
Finally, it occurs to me that none of the stuff about lost computers, conflicting evidence etc is inconsistent with a continuation of the PCC cover-up exercise that started at the audit committee in September 2013.
Then you will recall there was an investigation by PCC’s internal audit department following which my concerns were brushed under the carpet:
“It has been concluded that there are adequate and effective compliance arrangements in place for both grant schemes, which have been complied with.”
“Internal Audit has shared its findings with the Council’s Monitoring Officer who is satisfied that there is no evidence of maladministration or non-compliance with the governance arrangements relevant to the specific schemes or of any lack of competence in officers concerned with the administration of the schemes.”
It will be interesting to see how the audit committee, which is now due to continue its examination of the matter that was suspended for the duration of the police investigation, manages to reconcile this with the statement in the CPS letter that:
“By way of example there are admissions made about the inadequacy of staff training, the competence of the case worker and an opinion was expressed that in relation to some of the grant applications there was no fraud.
In particular there was disagreement about what amounted to acceptable proof of defrayment.
In addition to this the PCC did not adhere to its own procedures and practises.”
Of course, considering that the prosecuting authorities have now concluded that Mr McCosker has done nothing wrong, we must wonder whether the council is obliged to return the £189,000 repayment (plus the £120,000 he was due for 50 Dimond Street but never claimed).
The full letter from the CPS is reproduced below:
I write in response to your letter to the CPS of 18th July 2019 in which you have requested that the CPS review the decision not to prosecute individuals in relation to an allegation of fraud relating to Welsh European Funding Office (WEFO) payments made under the Commercial Property Grant Scheme (CPGS).
I note that the Council resolved to reserve the right to provide further information to support the review and request that the review process take this offer into account. I can advise you that I have taken this into account in conducting my review and that further information was not required in order for me to complete it.
I have seen the letter of 10th July 2019 in which DCS Cockwell advised you of the CPS charging decision.
In conducting the review, I have considered the evidence afresh.
When considering whether or not charges should be authorised in any criminal proceedings Prosecutors must apply the full code test set out in the Code for Crown Prosecutors (the Code).
This comprises of two tests, the evidential stage and the Public Interest stage.
Prosecutors must only consider the Public Interest stage if the evidential stage is met.
In considering the evidential stage a Prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the suspects in relation to each charge that they face.
The Prosecutor must consider what the defence case may be, and how it is likely to affect the prospects of conviction.
I attach a copy of the Code for ease of reference.
As mentioned above the first stage of this test is whether there is sufficient evidence to provide a realistic prospect of conviction.
This is based upon my objective assessment of the evidence including the impact of any defence and any other information that the suspect has put forward or on which they might rely.
The reliability and credibility of the evidence are two of the factors, which I must consider as well as any other material, which might affect the sufficiency of the evidence.
After having reviewed the case I am of the view that there is insufficient evidence for there to be a realistic prospect of conviction.
Reasons for decision:
The PCC witness statements contain conflicting evidence. In addition some of these statements contain information which does not assist the case. I referred above to the reliability and credibility considerations which are set out in the Code and I am of the view that these inconsistencies are such that they would undermine a prosecution.
By way of example there are admissions made about the inadequacy of staff training, the competence of the case worker and an opinion was expressed that in relation to some of the grant applications there was no fraud.
In particular there was disagreement about what amounted to acceptable proof of defrayment. In addition to this the PCC did not adhere to its own procedures and practises.
I have weighed this up against the constituents which are required to prove fraud as set out in the Fraud Act 2006.
Taking all these inconsistencies into account, and in accordance with the Code, I cannot be satisfied that an objective, impartial and reasonable jury, or judge hearing the case alone, being properly directed and acting in accordance with the law would be more likely than not to convict the suspect (s) of the charges alleged.
As I am not satisfied with the sufficiency of the evidence I have not considered the public interest stage of the Full Code Test, as in my view the evidence is insufficient in this case.
In addition to the above I have concerns in relation to the fact that the hard drive from the computer of the case worker has not been retained.
The caseworker is one of the most important individuals in this case, and was interviewed under caution.
The Criminal Procedure and Investigations Act 1996 (CPIA) provides that any information which undermines the prosecution case or assists the defence must be disclosed to a defendant and I must, at all stages, keep in mind CPIA and any potential impact this would have upon the prosecution of this case.
As mentioned above, the caseworker was interviewed under caution. During this interview he stated that there was relevant material on his computer.
In interviews which took place with the suspects they stated that the case worker was aware of what the suspects were doing.
This was an issue which was specifically raised by the defence as a matter which would need to be considered and is therefore a reasonable line of enquiry.
It would be difficult to deal with this claim without the computer.
As the computer has not been retained, and the contents cannot therefore be considered it is not possible to determine whether there is any relevant material which should be disclosed. The prosecution cannot therefore comply with its statutory obligations under CPIA and the prosecution cannot ensure that the defendants would receive a fair trial under Article 6 of the European Convention of Human Rights.
I also have concerns about the continuity of the evidence given the allegations that documents contained in the data room were interfered with.
Furthermore, the articles published by a Councillor on his blog could lead to difficulties as material is now in the public domain which should not be and this could lead to an argument that a fair trial is not possible.
The combination of all these matters had led me to conclude that the original decision that there is insufficient evidence for there to be a realistic prospect of conviction under the Code was correct and should stand.
I understand that you may be disappointed with my decision but I would like to assure you that I have fully considered the evidence afresh and applied the full code test.