February 6 2007

And with a bound . . .

Thanks to a brilliant performance by his London solicitor Tony Child, Brian "Houdini" Hall has again got off scot free.
It is always a delight to see a master craftsman at work, particularly when someone else is paying his fees.
The facts, which were not disputed, are that, in January 2005, Cllr Brian Hall attended a BBC reception in St Davids where he fell into conversation with Glyn Davies AM and BBC executive Huw Roberts.
During that conversation the name of Dragon's Eye presenter Simon Morris, who, nine months earlier, had made a programme about alleged bullying by Cllr Hall, came up.
Cllr Hall, who was angry about the programme, told Messrs Davies and Roberts that if Simon Morris went to Ireland he would ensure he didn't come back, and that he knew people in Manchester who would break his arms and legs.
When news of these threats was reported to Mr Morris he complained to the police and, when they declined to investigate, to the Ombudsman who concluded that " . . . his [Cllr Hall's]conduct in making remarks of this nature, made as they were in public and while he was representing Pembrokeshire County Council were inappropriate and were likely to bring the office of member into disrepute."
The matter came before the council's standards committee last Wednesday when Cllr Hall's solicitor Mr Child disputed the Ombudsman's conclusions; particularly the assertion that Cllr Hall had been representing the county council.
Under the heading "Duty to uphold the law" the Code of Conduct states that:
(a) Must not in their official capacity or otherwise commit a criminal offence or cause one to be committed:
(b) must not in their official capacity or otherwise behave in a manner which could be reasonably regarded as bring the office of member or the authority into disrepute.

In the English version the words "or otherwise" are replaced by "in any other circumstances".
In the Ken Livingstone case, which was decided last summer, the judge, Mr Justice Collins held that the words "in any other circumstances" must be given a narrow meaning in order to bring them within the terms of the parent Act.
As Ken Livingstone had actually left the reception he was hosting as London's mayor, the judge had no difficulty in coming to the conclusion that he was not acting in his official capacity, nor did his conduct fall into the restricted definition of "any other circumstances".
And as Collins J said: "It seems to me that unlawful conduct is not necessarily covered. Thus a councillor who shoplifts or is guilty of drunken driving will not if my construction is followed be caught by the code if the offending had nothing to do with his position as a councillor."
By contrast, Cllr Hall was actually present at the BBC reception in St Davids when he made the remarks
Mr Child also made much of the fact that Livingstone had been harassed by the journalist from the Evening Standard, just as Cllr Hall had been hounded by the BBC's Simon Morris.
The distinction, however, is that, while the mayor's remarks were made during the course of the alleged harassment, those of Cllr Hall were made some nine months after Dragon's Eye was screened, by which time, as the judges are fond of saying: "Reason had had time to regain its seat".
What was crucial to Cllr Hall's defence was that there was no evidence to show that he was representing the county council at the BBC reception in St Davids, where the offending words were uttered.
And, as Mr Child said, it was not up to Cllr Hall to prove that he didn't attend the BBC function in his official capacity; it was up to the Ombudsman to prove that he did.
The Ombudsman's report was written before Mr Justice Collins' judgment in the Livingstone case had cut down the the commonly understood meaning of the words "in any other circumstances" so it seems likely that Cllr Hall's role at the BBC reception was not one of those matters which the Ombudsman felt the need to "delve into" as the standards committee decision puts it (see Findings).
One difficulty for the defence was that Cllr Hall had claimed expenses for travelling to St Davids on an "approved duty".
To ordinary mortals that seems to present two possibilities: that Cllr Hall was entitled to claim travelling expenses because he was acting in his official capacity, or that he claimed travelling expenses to which he was not entitled.
Whichever of the definitions of "approved duty" you care to use (see On approval) there is a requirement that the activity should be "for the discharge of the functions of the authority" and, if you are genuinely discharging the functions of the authority, you are, presumably, acting in your official capacity.
Furthermore, the claim form signed by Cllr Hall contains the words: "I have necessarily incurred expenditure and subsistence for the purpose of enabling me to perform approved duties as a member of Pembrokshire County Council"
Mr Child sidestepped that by saying: "All it [the claim form] is evidence for is that a claim was made" and that there was "no logical link between the claim and an approved duty."
That seems to offend against common sense but, despite the fact that the Welsh Assembly has passed regulations clearly defining the term, nobody seems absolutely sure what it means under the shambolic system that prevails within the restricted confines of Republica Pemska.
In view of the notices of motion submitted by myself and Cllr Rhys Sinnett (see On approval) it is encouraging to note that the standards committee is to write to the council's director of finance asking him " . . . to review the definitions of approved duties and their relationship to the performance of a member's functions under the law . . " (see Findings)
Perhaps, when our NoMs come before full council on 1 March, members of the IPG will be more willing to listen to the arguments than they were at corporate governance committee where, true to form, they simply turned up to vote the party ticket.

Freedom to threaten?

Had the standards committee restricted itself to finding that there had been no breach of the Code because of the lack of certainty about Cllr Hall's role at the BBC reception, nobody could have any complaints.
But Mr Child argued, not very persuasively to my mind, that to to censure Cllr Hall for his remarks would be an unwarranted interference with his right to freedom of speech under Article 10 of the European Convention on Human Rights.
Free speech, the solicitor said, was the "lifeblood of democracy".
The committee agreed, and decided that, even had it been satisfied that he was acting in his official capacity, they would still have had to consider whether his "very reprehensible remarks were such as to justify an interference with his right to freedom of speech", and decided that: "on balance we are inclined to the view that such interference could not be justified in this case." (see Findings)
Old Grumpy finds it a bit rich that one of the leading lights in the council that has twice had my website removed from the Internet, and has himself threatened to sue me and my employers for drawing attention to his unorthodox expense claiming practices, should turn out to be such a passionate defender of the right to free speech (see Freenetname).
However, putting that to one side, no one can deny that Cllr Hall is entitled to freedom of speech, though it is well settled law that such a right is not absolute and it is difficult to believe that the protection of free speech extends to threats to have someone's arms and legs broken.
Had Cllr Hall expressed his opinion that the Dragon's Eye programme was a shoddy piece of biased journalism and that Simon Morris was a disgrace to his profession that would be a different matter.
But he didn't.
In what the standards committee describes as a "tirade of threatening remarks" (see Findings) he claimed to have friends in Manchester who would do Simon Morris serious physical damage.
The distinction between what is protected free speech and what is not, is to be found in the judgment of Mr JusticeWilkie in the not dissimilar case of Sanders v Kingston.
Sanders, in his role as Leader of Peterborough council, had, in a letter to a council in Northern Ireland and a BBC interview, expressed himself in abusive and offensive terms.
He was suspended for two years by the Adjudication Panel and sought judicial review on the grounds that this was an interference with his right to free speech under Article 10.
Wilkie J gave that idea short shrift.
In his judgment, he said: "It [Sanders' letter] does not contain anything which could be dignified with the description of a political opinion or the importation of information.”
Similarly, the judge concluded that Cllr Sanders’ comments to the BBC amounted to “no more than a personal attack upon the family of Paul Cochrane and the people of Northern Ireland. It was little more than vulgar abuse”.
Having concluded that Sanders' comments amounted to no more than expressions of personal anger and personal abuse, rather than political expression, Wilkie J found that they were not protected by Article 10.
In this context, it might also be mentioned that a free press is also part of democracy's lifeblood, and that investigative reporters should be allowed to go about their business free from threats of violence from thugs like Hall.

Voter power

Cllr Hall's solicitor was also keen to draw the committee's attention to the distinction between the office and the man.
In the Livingstone case the judge said that, by his conduct, the mayor had brought himself, but not the office, into disrepute.
Similarly, the standards committee concluded that ". . . whilst we consider that that this tirade of threatening remarks could do nothing but bring Cllr Hall into disrepute, we are not satisfied there was a sufficient connection to his office for it to be said that he brought the office, as opposed to the man, into disrepute."
As Mr Child said, the conduct of a councillor in his private life should be judged by the electorate, not the standards committee.
That argument is, I think, seriously flawed.
The problem is that elections only come round every four years, so, if your elected representative is arrested for shoplifting on the day after the votes are counted, you have rather a long wait before you can register your disapproval of his conduct.
And if he is arrested for shoplifting and is given a police caution rather than being prosecuted, you are likely to never hear about it even though he will have admitted the offence before the caution can be administered.
That is why it is vital in a democracy that newspapers provide their readers with as much information as possible about what is going on.
It is also important to draw the distinction between the bog-standard member, who owes his position entirely to the voters, and the holder of a special responsibility allowance granted by the Leader.
While it is the voters of Pembroke Dock Market ward who decided that Cllr Hall was a suitable person to represent them on the county council, it was the Leader of the council, Cllr John Davies, who decided that Cllr Hall was a fit and proper person to represent the whole of the Pembrokeshire electorate in his Cabinet.
Cllr Davies is keen on telling us that he holds power because "the ballot box has spoken" though I doubt if the county-wide ballot box was consulted it would raise more than the faintest whisper in favour of Cllr Hall.
The fact is that Cllr Hall owes his position in the Cabinet to the Leader, who can hire and fire Cabinet members at will.
In turn, the Leader owes his position to the 39 so-called Independent members of the council.
And, of course, though they probably didn't realise it at the time, this pyramid of power rests, ultimately, on the votes of those who elected the 39 members of the Independent Political Group.
"A vote for the IPG is a vote for Brian Hall!" seems like suitable slogan on which to fight the next election.

Double standards

Mr Child also made much of the fact that Cllr Hall's threats against Simon Morris had been reported to the police but, he told the committee: "The police decided it was a waste of time and didn't even interview Brian Hall".
My understanding is that the police decision not to investigate was based on the fact that Hall's threats had been made to third parties and not to Mr Morris, directly.
It seems that, where Cllr Hall is concerned, our local police have developed a habit of inventing novel legal principles (See Untouchables).
Contrast that with the case of St Florence farmer Mr Andrew Sadler who was sentenced last March to 140 hours community service by Swansea Crown Court for making threats to kill a county council animal welfare officer.
According to a report in the Western Telegraph, "Mr Sadler, aged 23, made the threats to psychologist Dr Khin San Linn, who reported them to the police."
So it would seem that, unless you're a member of the nomenklatura, the fact that the threats are made to a third party is no bar to a prosecution.
Following Mr Sadler's conviction, a county council spokesman told the Telegraph: "It is important that our officers are able to carry out their duties without threats of violence or intimidation".
No reasonable person could disagree with that.
But the argument is difficult to sustain if one of the the council's own elected members can, with impunity, make similar threats against a BBC journalist.

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