Monday 29 August 2016

Cadno asks for answers - this week's Carmarthenshire Herald

Another excellent opinion piece from Cadno, in this week's Carmarthenshire Herald;

Cadno asks for answers 
Time is a great healer, or so the well-meaning lie goes. However, there are some things that the passage of time cannot heal. It is certain that once severed a leg will not regrow, while quite how UKIP and Labour will stitch themselves back together remains beyond Cadno’s confused vulpine mind. 
Even worse, readers, is the perception of injustice. 
Once something appears to be unjust, then there is very little that can be done to dispel the idea that injustice has taken place. It does not matter whether or not the act is unjust in and of itself, it is the appearance that matters. 
‘Justice must not only be done, it must be seen to be done’ runs the well-known dictum, dating from an otherwise obscure case from 1924. In that case, the Clerk to the Justices did not disclose that he worked for a firm of solicitors involved in a civil suit arising from a road accident for which the Defendant, a Mr McCarthy, stood trial in the criminal courts 
The then Lord Chief Justice said that he accepted that: "the justices came to a conclusion without consulting the clerk, and that the clerk had scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". 
It was the perception of potential injustice which resulted in Mr McCarthy's conviction being overturned. 
So, readers, the appearance of fairness is of fundamental importance. 
Pop quiz time, then, readers. Let’s exercise the old little grey cells. 
Imagine you are an ever so humble council employee. You rather foolishly publish come indiscreet comments and find yourself being sued for libel. You make an offer to settle the claim against when, spontaneously, your employer decides to indemnify you for defending the suit and funds a counterclaim. 
If your employer had not bankrolled either course of action, you would have apologised and coughed up costs and – in all probability – very modest damages. 
With the backing of your employer’s open cheque book and a very friendly judge, you win the case. 
You have received an award of damages, with the costs incurred the responsibility of your employer to recover. 
Now, readers, Cadno does not want to revisit the dead past. The judge made a decision, an appeal did not succeed. Whether or not one agrees with whether or not the decision was right, it is now final. 
In addition, the question of recovery of damages is, for Cadno, a dead letter. All Cadno can say is that a litigant who is aware, or who should be aware from previous correspondence that has passed between his solicitor and the losing party in litigation, that his opponent has no means to speak of is doing little more than racking up otiose costs by pursuing the matter in the effort to get blood from a stone. And one would hope, of course, that the costs for so doing are being borne by the successful litigant and not by his employer. 
And the same goes for costs, whether they are sought to be recovered by the litigant or the impecunious and unprincipled employer that acted unlawfully in bankrolling its employee, especially when he had offered to settle the case. Those offers to settle would have been done on the basis of what is called ‘the litigation risk’. That calculation is not only based on the likelihood of success in a particular action, but also the costs of proceeding to either prosecute or defend a suit. 
So, readers, we have laid the ground work, with which most of you will be familiar. 
Now, it is one thing for the defendant to feel aggrieved at the outcome of litigation. It is quite another for a successful litigant in a civil case to go running to the Police and make a complaint of harassment when the unsuccessful party draws attention to the way in which he conducts his employer’s business. 
Cadno eschews the suggestion that such a person is motivated by little more than petty vindictiveness and spite. That would unfair, as it would require the almost metaphysical step of peering into the soul of the person concerned. 
But what does it look like, readers? 
Does it look like the use of public authority to pursue a private complain? Does it look like bullying? In fact, readers: does it look like harassment? 
It isn’t, of course. It can’t be. But a reasonable person in possession of all the facts in the public domain could consider (but are not bound to conclude) that is what it looks like.
That is quite bad enough, but when one factors in a version of Lieutenant Columbo’s ‘just one more thing’, it looks far worse. 
Way back when Dyfed Powys Police was charged with investigating allegations of criminality involving direct payments made in lieu of employer’s pension contributions, it recused itself on the basis that it had a close working relationship with the local authority. Another police force investigated. 
How then, in light of that close working relationship, did it feel able to investigate a complaint made by the Chief Executive of that authority against a third party with whom he had been engaged in litigation? 
When that same question has been put – on more than one occasion – to Dyfed Powys Police it has refused to answer. So, Cadno has a challenge for Police Commissioner Dafydd Llywelyn: answer the question. And respond to the question below, as well, if you can: 
1. How can the public have confidence in the independence of the Police to act impartially if on the one hand they cannot act when an allegation is made against a public authority and a senior employee, and on the other hand are able to investigate a complaint made by the same senior employee against a third party, the same complaint arising from the third party’s criticism of the performance of that employee’s public duties? 
2. Do you think scarce public resources should have been committed to pursuing what - it could reasonably be suggested - is a private matter? 
Those questions are at the very centre of what it means when it is suggested that justice needs not only to be done but to be seen to be done. 
Over to you, Commissioner.
(Article republished with permission - Carmarthenshire Herald)

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...And in case you missed it last week, here's the latest instalment from the occasional series, 'Council of Despair', by fellow blogger Cneifiwr.

And, from the 18th August, on this blog, The police visit Caebrwyn


Martin Milan said...

All very pertinent points. As someone who asked the same questions, I'll be interested to see if he responds...

Anonymous said...

The wily fox is in the County Hall hen-house again and Farmer James must be spitting feathers. Every step he takes gets him and his hapless cohorts deeper in the manure. And Cadno is there to make sure we all hear about it. Surely, the "best hen-house in Wales" is in need of a new farmer!

Wavell said...

A new field would be a better option.

Redhead said...

More foxes ...