Paul Whitehouse and the Courts. Good News and very Bad news - the net closes a little bit more. James Ashley's family get a result

Paul Whitehouse, Ex Chief Constable of the Sussex Police will be a happy man. The Gangmaster Licensing Authority which he chairs ,is bringing two gangmasters to court in the Sheriff Court of Tayside, Central and Fife at Forfar at 10am on Tuesday April 29. They are charged with the unlicensed supply of temporary labour in the agricultural sector following the requirement for all labour providers (gangmasters) to be licensed by the Gangmasters Licensing Authority to provide such labour after 1 October 2006.

This is the first prosecution the GLA has brought in it's 2 1/2 year life.

Paul Whitehouse won't be happy that in the House of Lords , Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell and Lord Neuberger of Abbotsbury considered interlocutory appeal to decide whether a civil case of assault and battery brought by the relatives (father and son) of James Ashley should be permitted to progress to a trial.

James Ashley 39 was in bed , naked, asleep, with his girlfriend and during an armed raid by Sussex Police on his flat at 4.20 am at Flat 6 Western Road, St Leonards, Hastings, on January 15 1998 PC Chris Sherwood of the Sussex Police Special Operations Unit (“SOU”) shot him dead. No arms or drugs were found on the premises, contrary to the information on which authorisation for the raid rested.

Sherwood, was later tried for murder and after 10 days hearig the prosecution case, Judge Rafferty directed the jury that Ashley should be acquitted of murder and manslaughter. She told the jury that “there is not evidence to negative the assertion of self-defence in all the circumstances...” . Sherwood claimed that he had, mistakenly, believed that James Ashley was pointing a gun at him and was about to shoot him.

Barbara Wilding, then assistant chief constable of Kent constabulary, was asked to investigate, and the late Sir John Hoddinott, then the chief constable of Hampshire police, was asked to produce a report into the chief constable's involvement in what happened. Neither report has ever been published but they have been leaked - which the Guradian published and was later read into the record of the House of Commons by James Ashley's MP Louise Ellman. inter alia the raid was "authorised on intelligence that was not merely exaggerated, it was determinably false . . . there was a plan to deceive and the evidence concocted." ....Paul Whitehouse, the then chief constable, "wilfully failed to tell the truth as he knew it, he did so without reasonable excuse or justification and what he published and said was misleading."

Sir John found evidence against Deputy Chief Constable Mark Jordan. That included criminal misfeasance and neglect of duty, discreditable conduct and aiding and abetting the chief constable's false statements.

Deputy Chief Constable Mark Jordan was suspended on full pay for nearly three years before being retired permanently on ill-health grounds with a full retirement pension at the age of 43. That enabled him to escape disciplinary procedures.

The Chief Constable of Sussex, (now) Martin Richards, who is the nominal defendant in the case, has admitted negligence and agreed to pay damages, but strongly denies misconduct by the force and took the case to the Law Lords specifically to block the assault and battery allegation.

The background to the Ashley family's claims is best laid out by Lord Neuberger (Para 122) ..." There has been a criminal trial, where the prosecution case, with full argument and evidence, was aired in public over more than 10 days, and a verdict obtained, although, as the prosecution did not make out a prima facie case, PC Sherwood and other defence witnesses have never given evidence in public about Mr Ashleys death. The coroner decided not to proceed with the inquest after the acquittal of PC Sherwood, pursuant to section 16(3) of the Coroners Act 1989. The Ashleys’ request for a public inquiry was refused by the Home Office in 2001 and in 2004, and an application by the Ashleys for leave to challenge the 2004 decision by way of judicial review has been refused." and at Para 125 "The Ashleys’ reason for proceeding with the battery claim is simply to establish that Mr Ashley was unlawfully shot by PC Sherwood. ".

Lords Scott and Rodger agreed with Lord Bingham that "the claimants have an arguable claim for battery of the deceased " and Lords Carswell and Nueburger dissented.

Lord Scott notes in his judgement (Para 27) ..."The deceased Mr Ashley, while naked and unarmed, was shot by PC Sherwood within seconds of the latter’s entry at 4.20am or thereabouts into the bedroom. The question whether in all the circumstances it was reasonable for PC Sherwood to have believed that the figure facing him was armed and was presenting a deadly danger is, to me at least, an open one on the facts."

As Lord Carswell outlines (Para 74) "His death was a tragic error which should not have happened, as the appellant Chief Constable has explicitly admitted. He has accepted responsibility for the deficiencies in the planning of the operation and the briefing of the police personnel, which led up to the fatal shooting and without which the raid would probably have taken place without incident. He has agreed to pay damages for the admitted negligence of his force, and if it is adjudged that aggravated damages should be payable, to pay them on that basis."

He then gets to the nub of the claims of the father and son ..."It is patent that the respondents’ wish to pursue the cause of action in assault and battery stems from a desire to publicise Mr Ashley’s death and to attempt to obtain a finding which will hold PC Sherwood at fault in civil law."

Lord Bingham (Para 4 ) said ,"The claimants’ reasons for wishing to pursue their claim in battery are readily understandable, as are the Chief Constable’s reasons for wishing to resist it, but it is not the business of the court to monitor the motives of the parties in bringing and resisting what is, on the face of it, a well-recognised claim in tort."

Jane Deighton, solicitor for the family, said: "It is a defeat for the [now retired] chief constable of Sussex who spent the last 10 years trying to manoeuvre the Ashleys out of court." BBC

One has also to take note of Lord Neuberger who makes the forcible point (Para 133) that .."The immediate perpetrator (PC Sherwood) was prosecuted and acquitted seven years ago, and his reasonable interest, as an acquitted person whose actions 10 years ago would again be challenged in court, militates against the claim proceeding merely for the purpose of establishing in a civil court that he had committed the wrong of which he had been acquitted. Further, substantial costs and court time, as well as police effort, might very well have to be devoted to the claim if it proceeds, and a reliable assessment of a split second decision and action in very fraught circumstances would be difficult, especially more than 10 years after the event "

In a sense therefore PC Sherwood is yet another victim of the resolute determination of the Sussex Police (and others) to obstruct at every stage a public examination of exactly what happened at 4.20 am in Flat 6 Western Road, St Leonards, Hastings, on January 15 1998 and why an armed policem was there to shoot him.

As Lord Neuberger says (Para 132) "..there is an obvious and substantial public interest in any death for which the police are responsible being publicly investigated, especially where there is an arguable case that the killing was unlawful".

Let's hope it isn't another ten years before we get the answers that the Ashley family demand and deserve.

FOOTNOTE : Another dead Chief Constable: Sir John Hoddinott 56 had travelled to Middlesbrough with DS Keith Ackerman late on Sunday night 12th August 2001 for preliminary meetings on Monday in Operation Lancet relating to enquiries into "supercop" Ray Mallon who had resigned on the Friday before Sir John was found dead in his bed.

Sir John had been appointed in May 2001 to investigate the £7m Operation Lancet inquiry.

Police say there are no suspicious circumstances. BBC A post-mortem confirmed he died from natural causes.