interpretation of insurance contract law by the ombudsman

Dear Sir or Madam,

Will the Ombudsman confirm or deny it can interpret to a
complainant the contractual obligations legal liability and
indemnity for alleged insurance claims from conflicting information
provided by the Council and the Complainant without seeing the
insurance policy.

Yours faithfully,

fred robinson

Dear Sir or Madam,

I wish to request an internal review

Yours sincerely,

fred robinson

Dear Sir or Madam,

With regard to the information about fraudulent insurance claims
and the Ombudsman;s evident support of them in 2001.

I refer you to the following document to help you determine your
internal review and give you an insight into the breach of
insurance contract fraud the Ombudsman gives assistance and
encouragement to as, Sefton, have never denied I made claim W215732
in August and September 1993 for the demolition of none existent
buildings which,

first became claim RR98XN dated January 17th 1994 and then a claim,
'reopened' on April 18th 2000, and is the claim which the Ombudsman
was informed about by Sefton in March 2001 and, with regard to that
report,

dismissed my complaint of maladministration on Seftons grounds that
Sefton had the right to issue the fraudulent claims:-

Joint Law Commission Review of Insurance Contract Law

Issue Paper 1: Misrepresentation and Non-Disclosure

Currently, at the pre-contractual stage the duty of utmost good
faith comprises two elements. The insured must:

a) ensure that a material fact is not misrepresented when a direct
question is asked; and

b) disclose all other material facts even where no question is
specifically asked.

If a party is found to be in breach of this duty, and the other
party is induced to enter into the policy by the misrepresentation
and/or non-disclosure, the other party may avoid the policy
entirely; regardless of whether the breach was fraudulent,
negligent or entirely innocent.

Whilst the duty of utmost good faith applies to both the insured
and the insurer, the current law is seen as being heavily weighted
in favour of the insurer.

Further, few insureds, particularly consumers, appreciate that this
is an ongoing (or residual) duty which operates throughout the term
of the policy and also on renewal.

The Commissions' aim is to redress the balance and the three
current proposals focus on consumer insurance contracts and mirror
the Financial Ombudsman Service approach to disputes. The most
significant is a new two-part test of materiality under which, in
addition to showing actual inducement, the insurer will have to
show either:

that the insured knew that the facts in question would be relevant
in the risk assessment of the insurer OR

that a reasonable insured in the circumstances would have
appreciated that they would have been relevant.

The second proposal is that the remedies open to the insurer should
be dependent on the conduct or state of mind of the insured. It has
been suggested that if the insured has acted fraudulently the
insurer should still be entitled to avoid the policy; if he has
been negligent the parties should be put in the position they would
have been in had the insurer known the true facts; and if the
insured was wholly innocent, the insurer should have no remedy at
all.

The third proposal is to abolish the ongoing duty of disclosure.

Proposals in relation to business contracts differ slightly. The
Commissions believe that business insureds will be more
sophisticated than consumers. They also believe that businesses are
more likely to receive advice regarding an insurance contract.
However, the Commissions also say that there should be as few
differences as possible between business and consumer contract law.
Therefore, the proposals echo those outlined above for consumer
contracts, save that the Commissions are recommending that the
ongoing duty of disclosure is retained in relation to business
contracts.

Issue Paper 2: Warranties

There are currently two broad types of warranties: those which
relate to past or present facts, given when the insured is entering
into the contract; and those which relate to the conduct of the
insured throughout the contract period. It is the Commissions' view
that few consumers understand the ramifications of a breach of a
warranty, namely that the insurer is automatically discharged from
any further liability under the contract, no matter how minor the
breach or the culpability of the insured.

Under the current proposals statements referring to pre-existing or
current facts made in relation to consumer contracts would be
treated as mere representations. They would therefore be subject to
the proposals for misrepresentation as identified in Issue Paper 1
(as is the case in Australian insurance contract law).

For business contracts, the Commissions propose that the rules
should either follow those for consumer contracts or should be
amended to permit insurers to be discharged from the insurance
contract only where a fact specific warranty is clearly written
into the policy and any breach is material to that policy.

In respect of warranties of future conduct, for insurers to be
discharged from a claim they would have to show that the warranty
was set out in writing (and it was brought to the insured's
attention in relation to consumer contracts) and that the breach
caused or contributed to the loss claimed.

Issue Paper 3: Agency

The Commissions have recently announced that they will shortly be
publishing Issue Paper 3 on the agency aspects of misrepresentation
and non-disclosure. In particular they intend to look at:

1 The consequences where an insurance applicant properly discloses
material information to an agent, but the agent fails to pass on
the information or passes on incorrect information to the insurer;

2 Where an insurance applicant signs a proposal form

incorrectly completed by an agent of the insurer (the Newsholme
rule);

3 and s19 MIA.

On 20 February 2007, the British Insurance Law Association is
hosting a seminar on this topic. For further information please
see: http://www.bila.org.uk/events/forthcomin...

Issue Paper 4: Post-contractual good faith and fraud

It was initially envisaged that there would be four issue papers
published prior to the first consultation. Whilst the Commissions
still hope that post-contractual good faith (with a particular
focus on fraud) can be dealt with in the first stage of their
review, they note that there may not be time to deal with it at
this stage.

Consultation Part 2

Further issue papers on topics to be covered by a Second
Consultation paper are projected to be released in late 2007 and
early 2008.

It is envisaged that the Second Consultation Paper (likely to be
published in late 2008) will deal with all other issues identified
in the scoping paper such as: whether the requirement of an
insurable interest is still necessary; whether a statutory
definition of insurance should be introduced; the post-contractual
duty of good faith and fraudulent claims (if not covered in the
First Consultation).

Further, following suggestions for other areas to be reviewed, the
Commissions have also decided to review conditions precedent,
waiver and estoppel and the categorisation of policy terms.

Final Report and Codification

Although the Commissions have indicated that their Final Report and
draft Bill (which is suggested for 2010) is unlikely to include a
statutory code, they have left the possibility of codification open
with a suggestion that this could be dealt with as a third or
subsequent phase of the project.

Many in the industry believe unless the final recommendations make
it onto the statute books (either by replacing sections of MIA or
by creating a new statute), there is a real danger of the
recommendations coming to nothing.

Conclusion

The review was met with initial cynicism, primarily from those who
remember previous reviews (the earliest of which took place in
1957) which recommended urgent reform, but which fell at the
wayside due to lack of political interest in legislating. Yet the
level of response to the Commissions' Scoping Paper has been high,
with a total of 118 responses from lawyers, insurers, organisations
and individuals.

The review is a great platform for reform of the insurance market.
The aim must be adequately to reflect modern market practices and
to ensure the UK market leads any discussions in Europe on the
harmonisation of insurance contract law.

To view the Commissions' website on Insurance Contact Law please
see: http://www.lawcom.gov.uk/insurance_contr...

I ALSO REFER YOU TO THE FOLLOWING LETTER TO THE LGO DATED JUNE 26TH
2001

"Thank you for your letter dated 21/6/01.

The letter from Mr CCCCCC to Mr OOOOO gives the basis of my
complaint to be that SMBC issued a claim to their insurers without
my knowledge or permission. This is not the case.

My complaint is that SMBC issued a claim to their insurers based on
information they knew to be false. See my letters to Mr OOOOO dated
28/3/01 and 24/4/01.

This false information is that using a letter from my solicitors
dated 26/1/95 they state they issued a claim.

This letter did not provoke a claim. The claim was not made to
their insurance brokers until March 1996 and their brokers give a
letter dated 29/11/95 as the basis of this claim as do SMBC's
insurers. Not the letter of 26/1/95.

The alleged damage to my property referred to in the letters from
my solicitors was caused by demolition of former maisonettes. As
shown by the evidence I have sent to you this was after SMBC had
any legal liability in the matter as ownership and possession had
passed to others. This is admitted by SMBC when they state, Ref:
PAW/RR/rob5 - 8/5/00 that after 14/3/94 they have to be sanctioned
for demolition by the developer. This clearly ends the matter of
damage to my property caused during the demolition of the
maisonette blocks and any claim, real or otherwise, in relation to
that damage.

On 15/3/01, Mr CCCCCC states in his letter to Mr OOOOO that Mr
WWWWWWWW's letter of 4/7/00 informs me that "the matter will now be
placed in the hands of the Councils insurers". (This is the Matter
of the nib wall)

On 30/6/00 SMBC state, Ref: PAW/RR/rob9 "As we cannot pinpoint the
date the nib wall was removed it is not possible to be certain of
ownership at the time of its removal"

On 27/7/00 Councillor MMMMMM wrote to me, Ref: DM/LP/robinson5 in
response to a letter from me dated 2/7/00 informing me the matter
had been passed into the hands of the Councils insurers and that
"With regard to the ownership of the nib wall. This is still under
consideration...".

From the above its clear that SMBC issued their claim for damage to
my property when they did not know if they owned the nib wall who's
removal had caused the damage. SMBC's insurers confirm they
received the claim in July 2000, clearly the exact date needs to be
established.

Turning to the matter of the nib wall.

On 21/4/94 SMBC's demolition contractors left the site at which
time the nib wall was in situ. This SMBC admit when they assert,
Ref: GRB/MC/HSG1188/2 - 2/12/99 that the nib wall was "most
specifically" not demolished by their contractors. SMBC also state
that they had no authority to demolish the nib wall, Ref:
GRB/MC/HSG1188/2 - 2/12/99, and they know it was not demolished on
their instructions, Ref: PAW/PTB - 28/2/00. They also state Ref:
PAW/RR/rob5 that after demolition and clearance of the site,
(during which time the nib wall was in situ) any subsequent work
was with the developers sanction, this means that even if SMBC did
demolish the nib wall the legal liability would not be theirs. Nor
would the need to issue a claim.

SMBC state, Ref: GRB/AMc/HSG/1188/2 there were no other Council
contractors on the site after SMBC's demolition contractors left
the site on 21/4/94, in light of this it appears that SMBC, even if
they wanted to, had no means to conduct any demolition. This letter
Ref: GRB/AMc/HSG/1188/2 was the result of a letter to SMBC in which
I alleged the demolition of the nib wall had occurred after 3/7/94,
this was due to the photographs taken by SMBC being incorrectly
dated 3/7/94 instead of 7/3/94.

I have received a letter from SMBC Ref: AD/VS/13.6/ robinso -
19/6/01 stating "With regard to Kepler Street site, the Council
ceased to have any involvement on 1st April 1994 when it was handed
over to Maritime Housing Association" .

I believe the above proves that SMBC had a very clear picture of
their liability with regard to the nib wall and based on this it is
impossible to say they had any reason to issue a claim for
liability regarding damage to my property.

Turning to my letter of 18/4/00.

SMBC claim my letter of 18/4/00 was in fact a claim and as such was
sent to their insurers I have received a letter from SMBC, Ref:
AD/VS/13.6/ robinso - 19/6/01 stating that Mr WWWWWWWW in an effort
to be helpful asked me to put my complaint in writing, note the use
of the word complaint not claim, as for some inexplicable reason he
seemingly felt the exact nature of my complaints were unidentified.

It also claims, in the same letter, Ref: AD/VS/13.6/ robinso -
19/6/01 at our meeting Mr WWWWWWWW' mentioned the six year time
limitation period "in order to instil in you a sense of urgency,
but as he is not an insurance expert and did not know that only the
courts can suspend this". I would refer you to a letter from me to
Councillor MMMMMM 29/8/00 that was sent to Mr WWWWWWWWW on 1/9/00.
Below is what actually took place and is confirmed by Councillor
MMMMMM.

On 18/4/00 I attended a meeting with Mr WWWWWWW with the purpose of
clarifying the issue of a nib wall formally abutting my gable wall
the removal of which, by persons unknown, I alleged had caused
damage to my property. I had been writing to Mr WWWWWWWWW for
several months and he was fully aware of the nature of my
complaints. Inexplicably he appears to be unaware that the Council
did not have any involvement with Kepler Street after 1/4/94.

Mr WWWWWWWW did not mention the six year limitation period, as
evidence of this I refer you to Councillor MMMMMMM, Leader of the
Council, who remembers in his letter DM/LP/ robinson3, dated
13/6/00, that I raised the point about time limitation. Not Mr
WWWWWWW.

Also evidenced by Councillor MMMMMM is that I told Mr WWWWWWWW I
would write a complaint to the Council and he told me he would
formally register it with the Council. No reference to insurance
was made. Mr WWWWWWWWW was, and is, fully aware that the purpose of
my letter was to suspend time limitation only and was written on
his express advice. After I expressed my concern about time
limitation.

Mr WWWWWWWW then went on to assert in a letter to Councillor
MMMMMMM on 11/8/00, Ref: PAW/RR/nibwall11, that the Councils
insurers would determine time limitation. This assertion was made
after his liaison with the Councils insurance department who are
presumably insurance experts, "to resolve the issue of time
limitation", they it appears overlooked the fact that time
limitation was a matter for the courts. Its not credible that the
Council had not realised by this time that they had no liability in
the matter.

On the evidence of the above it is clear that my letter of 18/4/00
was not a claim but a complaint, if SMBC wished to issue claims to
their insurers they are at liberty to do so, I don't dispute this,
however the following also needs to be taken into account when
judging the actions of SMBC and their random selection of what they
consider to be a claim and what they don't.

My letter of 6/4/94 alleging damage to my property and was
acknowledged by the Council on 15/4/94 Ref: MRB/HSG/1187ar who
stated "I acknowledge receipt of your letter dated 6th April 1994
(received 11th April 1994) and note its contents. I have instructed
my chief clerk of works to contact you with a view to investigating
your alleged damage to the above property".

The fact is my letter was a clear allegation that I was holding the
Council responsible for damage that had occurred during the
demolition in April 1994 of the maisonettes at Kepler Street.

The Council had at that time a contractual obligation to inform
their insurers of my allegations, the correct response would have
been for the Council to put my allegations to their insurers as
part of that contractual obligations. The insurers tell me the
Councils obligation is to inform them of any potential claim
against the Council "irrespective" of ongoing enquires.

I consider your assertion that SMBC have acted correctly to be
wrong and there is compelling evidence that this is the case.
Evidence you ignore. It is my contention that were you to
interrogate all the evidence I have presented to you above, the
only fair conclusion you could reach would be to uphold my
complaint.

Mr OOOOO's decision seems to be based on SMBC's right to issue
claims to their insurers regardless of the merit of these claims or
their contractual obligations, (which I assume don't include the
right to issue false claims) in this instance their actions have
resulted in the loss of my right to claim for damages to my
property and the expenditure of many thousands of pounds of public
money including the commissioning of a survey at my property which
they had no liability to commission which in itself must constitute
maladministration.

In light of the above I ask you again to obtain the answer to the
question at the heart of this matter which is, did SMBC have legal
liability for damage to my property after 14/3/94 and if they
didn't, did they have the right to issue a claim for damage to my
property despite having no legal liability to do so, or give me a
reason for not doing so.

SMBC's insurers tell me SMBC had no legal liability for any (I take
that to include damage caused by the separate events of demolition
of the maisonette blocks and demolition of the nib wall) damage to
my property, they do not tell me how they reach this conclusion,
but the most likely source appears to be from records of the
contractual obligations of SMBC to their insurers and the fact that
SMBC were not the owners of the site at the time of damage.

I await your reply.

Yours sincerely,

fred robinson

Dear Sir or Madam,

IT IS WITHOUT DOUBT THAT SEFTON COUNCIL RELIED ON THE OMBUDSMANS
SUPPORT THAT THE FRAUDULENT INSURANCE CLAIMS IT HAD MADE TO ITS
CLAIMS MANAGERS AND INSURERS WERE NOT ACTS OF MALADMINISTRATION,
WHEN CLEARLY THEY ARE.

WITH REGARD TO THE ABOVE I NOW REFER YOU TO THE BELOW:

THE LAW COMMISSION (LAW COM No 300) INCHOATE LIABILITY FOR
ASSISTING AND ENCOURAGING CRIME REPORT:

"AN OUTLINE OF THE RECOMMENDATIONS CONTAINED IN THIS REPORT"

1.24 The statutory offences that we are recommending

1.25 We are recommending that there should be two new inchoate
offences:

(1) encouraging or assisting the commission of an offence (“the
principal offence”) intending to encourage or assist its commission
(“the clause 1 offence”);

(2) encouraging or assisting the commission of an offence (“the
principal offence”) believing that it will be committed (“the
clause 2(1) offence”).

Each offence targets very culpable conduct. In order to be
convicted of the clause 1 offence, D must not only deliberately
seek to encourage or assist P but also do so with the intention
that P should commit the principal offence or be encouraged or
assisted to commit it.

In order to be convicted of the clause 2(1) offence, D must not
only deliberately do something capable of encouraging or assisting
P but also do so believing that it will encourage or assist P to
commit the principal offence and that P will commit the principal
offence:

Example 1F
D knows that P wishes to murder V. D, who hates V, provides P with
information regarding the whereabouts of V. D’s intention is that P
should murder V. Meanwhile, Z alerts V to the fact that P intends
to kill him. As a result, V goes abroad and P abandons the plan to
murder V. D has committed the clause 1 offence, namely encouraging
or assisting murder intending to encourage or assist its
commission.

Example 1G
D is a key holder at the office where he works. In return for
payment, D makes a copy of the key and gives it to P believing that
P will use the key to commit a burglary at the premises. However, D
hopes that P will change his mind. P is arrested in connection with
another matter before he can even attempt to commit the burglary. P
informs the police of what D has done. In this example, D has
committed the clause 2(1) offence because, although not intending
that P should commit burglary, D believed that P would commit the
offence and that, by giving P a copy of the keys, he would help P
to do so.

1.26 The two offences would replace the existing common law offence
of incitement and fill the existing gap whereby at common law a
person incurs no criminal liability for assisting the commission of
an offence unless and until the offence is committed or attempted.

Each offence may be committed whether or not the principal offence
is committed. Liability for encouraging or assisting more than one
principal offence

1.27 Sometimes D may do an act that is capable of encouraging or
assisting the commission of more than one principal offence:

Example 1H
In return for payment, D drives P to the house of V. D is not sure
whether P will commit burglary, arson or murder. However, D
believes that P will commit at least one of those three offences. D
drops P near the premises and drives off. P’s intention is to
commit all three offences but, suspecting that he is being watched,
P decides to abandon the project. D’s state of mind is such that,
although he or she believes that at least one of three offences
will be committed, in relation to each of the three offences the
belief is no more than that the offence might be committed.

1.28 We are recommending that if D’s act is capable of encouraging
or assisting the commission of one or more of a number of different
principal offences and:

(1) D believes that at least one of them will be committed;

(2) D has no belief as to which particular offence will be
committed; and

(3) D believes that his or her act will encourage or assist the
commission of at least one of those offences, D may be prosecuted
and convicted of encouraging or assisting the commission of any
offence that he or she believed might be committed (“the clause
2(2) offence). However, the prosecution will only be able to
prosecute D for one of the offences that he or she believed might
be committed.

The penalty for each offence
1.29 Subject to one exception, we are recommending that the maximum
penalty on conviction of either the clause 1 offence or a clause 2
offence should be the same as if D had been convicted of the
principal offence. The exception is where the principal offence is
murder. We are recommending that for encouraging or assisting
murder, D should be liable to a maximum sentence of life
imprisonment rather than the mandatory life sentence.

Defences and Exemptions
1.30 We are recommending that it should be a defence to both the
clause 1 and a clause 2 offence if D proves on a balance of
probabilities that he or she acted in order to prevent the
commission of an offence or the occurrence of harm and that it was
reasonable to act as D did:

Example 1J
D is the manager of a public house. P enters the premises with a
view to carrying out an assault on a customer, V, because of an
unpaid debt. D encourages P instead to take V’s briefcase. Before P
can take the case, another customer overpowers him. D has
encouraged P to commit theft. However, it might be thought that D
ought to be able to say that he or she acted in order to prevent
the commission of a more serious offence and that it was reasonable
in all the circumstances to encourage P to commit theft. The harm
that D was seeking to prevent was greater than any harm resulting
from the theft.

1.31 We are also recommending that it should be a defence to a
clause 2 offence, but not the clause 1 offence, if D proves on the
balance of probabilities that he or she acted reasonably in all the
circumstances:

Example 1K
D works as a typist for P. P tells D to type a statement addressed
to the solicitors acting for P’s wife. D knows that the statement
is for the purpose of divorce and ancillary financial relief
proceedings that are currently before the county court. In typing
the statement, D realises that it contains deliberately misleading
information about P’s assets. By typing the letter, D is assisting
P to commit an offence. However, it ought to be possible for D to
say that he or she acted reasonably because he or she was following
her employer’s instructions.

Clause 12(1) and (3) of the draft Bill. 33 Clause 12(2) of the
draft Bill. See further Part 6 below. Clause 4 of the draft Bill.
36 See para 1.32 below. Clause 5 of the draft Bill.

1.32 Acting reasonably in all the circumstances would not be a
defence to the clause 1 offence. If D intends his or her
encouragement or assistance to lead to the commission of an
offence, it ought not to be possible for D to have a defence by
claiming that what he or she did was within the bounds of
reasonableness.

1.33 Our scheme also preserves and refines the common law Tyrrell
exemption.

In Tyrrell
P,*********************************************************** It
was alleged that D had encouraged P to commit the offence. It was
held that D could not be convicted of committing the offence as an
accessory or of inciting the offence because the offence has been
enacted for the purpose of protecting a category of persons and D
fell within the category.

1.34 We are recommending that it should be a defence to the clause
1 offence and a clause 2 offence if:

(1) the principal offence is one that exists for the protection of
a particular category of person;

(2) D falls within that category; and

(3) D is the victim of the principal offence or would have been had
the principal offence been committed.

PART 5 A SCHEME OF INCHOATE LIABILITY FOR ENCOURAGING OR ASSISTING
THE COMMISSION OF OFFENCES

INTRODUCTION

5.1 In this Part and in Part 6 1 we set out the scheme of inchoate
liability that we are recommending. At its core are two offences
distinguished by different fault elements. We begin by briefly
outlining the structure of the scheme that the Commission proposed
in the CP. Then, we set out the general features of the scheme that
we are now recommending. Finally, we consider how the offences that
we are recommending should be defined.

THE STRUCTURE OF THE SCHEME PROPOSED IN THE CP

5.2 In the CP, the Commission provisionally proposed that there
should be two inchoate offences to replace the common law inchoate
offence of incitement and secondary liability. The two offences
were:

(1) encouraging crime, and

(2) assisting crime.

4 5.3 There were two reasons why the Commission distinguished the
two offences in the way that it did.

First, the Commission believed that “encouraging” and “assisting”
were two separate activities.

Secondly, it believed that the fault element for encouraging crime
should be narrower than that for assisting crime:

If D’s conduct can truly be said to assist the commission of crime,
and he is aware that that is so, then there are strong arguments
for imposing legal inhibitions upon it, even though the giving of
such assistance was not D’s purpose. Where, however, D’s conduct is
not of assistance to P, but merely emboldens or fortifies P in
committing a crime, it seems to extend the law too far to make D’s
conduct itself criminal, unless D intended it to have that effect.

In Part 6 we consider defences and exemptions.

Subject to possibly retaining some form of accessorial liability
for collateral offences committed by P in the course of a joint
venture.

3 Para 4.163. 4 Para 4.99. 5 Para 4.10. 6 Para 4.154.

THE GENERAL FEATURES OF THE INCHOATE SCHEME THAT WE ARE
RECOMMENDING

The new offences
5.4 The scheme that we are recommending also comprises two core
offences (“the new offences”). They are set out in clauses 1(1) and
2(1) of the draft Crime (Encouraging and Assisting) Bill (“the
Bill”) that is appended to this report. The offences are:

(1) encouraging or assisting the commission of a criminal act
intending that the criminal act should be committed (“the clause 1
offence”), and

(2) encouraging or assisting the commission of a criminal act
believing that the encouragement or assistance will encourage or
assist the commission of the criminal act and believing that the
criminal act will be committed (“the clause 2(1) offence”).

5.5 We envisage that the new offences would usually be charged in
relation to a substantive offence, for example encouraging or
assisting murder or encouraging or assisting rape.

However, the clause 1 offence, but not the clause 2(1) offence,
could also be charged in relation to:

(1) the clause 1 or the clause 2(1) offence, for example D
encourages or assists P to encourage or assist X to murder V; and

(2) the inchoate offences of conspiracy and attempt, for example D
encourages or assists P1 and P2 to form a conspiracy to murder V. 8

5.6 The following examples illustrate the essential difference
between the clause 1 offence and the clause 2(1) offence:

Example 5A
D believes that P is about to attack V who is D’s worst enemy. D
throws a brick to within P’s reach in order to assist P in what D
believes will be the attack on V. P makes no attempt to attack V.

Example 5B
P goes into D’s hardware shop and chooses a large knife from the
display. P tells D that he is going to use it to attack V. D knows
P well and believes what P says. D nonetheless sells the knife to
P, rationalising his action by telling himself that P is just
another customer. In the event, P does not try to attack V. In
addition, cl 2(2) of the Bill sets out an additional offence which
can be explained more easily when the cl 2(1) offence has been
explained.

See Part 7 below.

In example 5A, D commits the clause 1 offence because D intended
that P should assault V. By contrast, in example 5B, D commits the
clause 2(1) offence because D, without intending that P should
assault V, believes that P will do so.

5.7 The new offences would replace the common law offence of
incitement and would fill the existing gap at common law by
introducing a general inchoate liability for assisting the
commission of an offence provided the requisite fault element is
satisfied.

Potential overlap with secondary liability

5.8 The new offences can be committed whether or not the principal
offence is committed. In Part 2,14 we said that we were persuaded
that secondary liability should be retained to cater for cases
where D encourages or assists P to commit an offence intending that
P should commit the offence.

Accordingly, there is a potential overlap between secondary
liability and the clause 1 offence:

Example 5C
D encourages P to set fire to the local tax office. If P decides
not to set fire to the tax office, D can only be guilty of the
clause 1 offence. D would not be an accessory to arson because P
had not even attempted to commit the offence. On the other hand,
were P to set fire to the premises, D, as well as committing the
clause 1 offence, would be an accessory to arson because it was D’s
intention that P should commit arson. The prosecution could choose
to charge D with the clause 1 offence but we would expect that they
would wish to charge D with arson.

A connected but separate issue concerns the principal offence that
D is guilty of intentionally encouraging or assisting – is it
assault, assault occasioning actual bodily harm, maliciously
inflicting grievous bodily harm or causing grievous bodily harm
with intent?

We consider this in paras 5.106 to 5.121 below.

Again, the issue referred to in n above will arise. Clause 13 of
the Bill abolishes the common law offence of incitement. However,
statutory offences of incitement are unaffected by the Bill.

The fault elements for each of the new offences are contained in cl
1(2) and (3) and cl 2(3) and (4) respectively. 13 Clause 3(1) of
the Bill. 14 Paras 2.22 to 2.23. 15 Contrary to the Criminal Damage
Act 1971, s 1(1) and (3).

5.9 By contrast, under our forthcoming proposals for reform of
secondary liability, there is limited scope for overlap between
secondary liability and the clause 2(1) offence because, subject to
one exception, D will not be secondarily liable in cases where it
was not his or her intention that P should commit the principal
offence or be encouraged or assisted to commit it:

Example 5D D, a shopkeeper, sells petrol to P believing that P will
use it to make a petrol bomb with which to commit arson. D is
indifferent as to what P does with the petrol. P, as D anticipated,
makes a petrol bomb and uses it to set fire to the tax office. D is
guilty of the clause 2(1) offence but is not an accessory to and
guilty of arson.

Unknown mode of participation

5.10 If the principal offence is committed, it may not be possible
for the prosecution to prove whether an accused was the perpetrator
of the offence or, instead, encouraged or assisted its commission.

In order to ensure that D does not escape liability, we believe
that there should be a similar rule to that which is integral to
secondary liability.

5.11 We recommend that If the prosecution can prove that D must
either have perpetrated the clause 1 or the clause 2(1) offence, on
the one hand, or encouraged or assisted its commission, on the
other, D can be convicted of the clause 1 or the clause 2(1)
offence.

The implications of the new offences being inchoate offences

5.12 The new offences are inchoate in that D’s liability is not
dependent on P committing or attempting to commit the principal
offence.

Accordingly, D’s liability can only be fixed by reference to the
offence that D intended or believed that he or she was encouraging
or assisting. Importantly, the same is also true if P (or another
person) does commit an offence with D’s encouragement or
assistance.

The following four sections illustrate the application of this
principle.

Under our proposals, P would incur secondary liability for
collateral offences that he or she foresaw might be committed in
the course of a joint venture.

However, foresight of a possibility that P might commit a
collateral offence will not render D liable for the clause 2(1)
offence. This is because, in order to be guilty of the clause 2(1)
offence, D must believe that P will commit the offence. Therefore,
the overlap between the clause 2(1) offence and secondary liability
will be confined to cases where, in the course of a joint venture,
P commits a collateral offence which D believed P would commit.

See Part 2 paras 2.8 to 2.9 18 Clause 10(1) of the Bill and see
Appendix A paras A.80 to A.85.

D’s liability is for encouraging or assisting an abstract and not a
particular principal offence

5.13 D may not know the details of the prospective principal
offence.

Thus, D may provide P with a baseball bat believing that P will use
it to rob V1. Instead, P uses it to rob V2. Alternatively, D may
provide the baseball bat believing that P will use it to commit
robbery but have no belief as to the identity of the victim. It
matters not that D lacks knowledge or belief as to the details of
the prospective principal offence. D is guilty of encouraging or
assisting P to commit robbery rather than encouraging or assisting
P to rob V.

The offence committed is not the offence that D believed would be
committed

5.14 P may commit a different offence to that which D believed
would be committed:

Example 5E
In return for payment, D provides P with a hunting knife believing
that P is going to use it to commit robbery. Instead, P uses it to
commit murder. D is guilty of encouraging or assisting robbery. Had
P been arrested before being able even to attempt to murder V, D
would have been guilty of encouraging or assisting robbery because
robbery was the offence that D believed P would commit with D’s
assistance. The nature and extent of D’s liability should be and is
unaffected by the fact that P commits an offence which is different
from the offence which D believed P would commit. Conversely, had D
believed that P would use the knife to commit murder, D would be
guilty of encouraging or assisting murder even if, instead, P used
the knife to commit robbery. D’s act of encouragement or assistance
leads to the commission of multiple offences

5.15 In the context of secondary liability, a single act of
encouragement or assistance leading to the commission of multiple
offences gives rise, at least in theory, to a difficulty:

Example 5F
In return for payment, D provides P with a jemmy believing that P
will use it to commit a burglary at V’s premises. P uses the jemmy
to burgle not only V’s premises but also the premises of X, Y and
Z.

Arguably, under the current law D is an accessory to and guilty of
all four burglaries.

In Bainbridge the Court of Criminal Appeal held that, in order to
convict D of an offence as an accessory, it was sufficient to prove
that the offence committed by P was of the same type as that which
D believed P would commit. In example 5F, all four offences
committed by P are the type of offence that D believed P would
commit.

5.16 The issue does not arise in the context of the new offences
that we are recommending. Again, this reflects the nature of
inchoate liability.

In example 5F, D would be liable for encouraging or assisting
burglary even if P did not commit any of the burglaries.
Conversely, the fact that P used the jemmy to commit four
burglaries should not alter the nature and extent of D’s liability.
D is guilty of one offence of encouraging or assisting burglary
because D believed that only one offence would be committed.

5.17 In example 5F, D believed that P would use the jemmy to commit
one burglary. Instead, if D believed that P would use the jemmy to
commit all four burglaries, D could be charged with four offences
of encouraging or assisting burglary irrespective of how many of
them P committed.

Our scheme ensures that D’s liability reflects the nature and
extent of the criminality that D either intended or expected to
materialise from his or her encouragement or assistance.

Accordingly, it would be open to a court to impose a more severe
sentence on D1 who believed that P1 would commit 20 burglaries even
if P1 commits none of them than on D2 who believes that P will
commit a single burglary even if P2 does commit the offence.

A person other than P commits the offence that D has encouraged or
assisted

5.18 Under our scheme, there is no requirement that if the offence
that D has encouraged or assisted is committed, it must be
committed by P:

Example 5G
D, in return for payment, provides P with cutting equipment
believing that P will use it to commit a burglary. P is involved in
a serious motor accident and, consequently, P’s brother, X, uses
the equipment to commit the burglary. D is guilty of encouraging or
assisting burglary. D would be guilty of the offence if no burglary
was committed and it follows that if the offence is committed, it
should be irrelevant who commits it.

DEFINING THE NEW OFFENCES

Introduction

5.19 Inchoate liability has the potential to condemn D even though
no harm actually occurs and there was never any prospect that it
would occur.

Where the focus of potential criminal liability is conduct that
might have led to harm but which cannot be shown to have caused or
contributed to any actual harm, the state of mind required to
ground liability assumes particular significance. Professor
Ashworth has observed:

There is, however, some evidence of a general proposition that the
inchoate offences should be subject to more restrictive principles
than other crimes; thus intention and knowledge are generally
required for the inchoate offence and recklessness is insufficient.
With these cautionary words in mind, we consider what should be the
conduct and fault elements of each of the new offences. The conduct
element

Introduction
5.20 Unlike the offences that the Commission proposed in the CP,
the new offences that we are recommending share a common conduct
element. There are two reasons.

First, we no longer believe that encouraging and assisting are
necessarily separate activities. We think that the concepts can
overlap and that whether conduct is to be described as encouraging
or assisting can sometimes involve drawing fine distinctions. P may
be as likely to commit an offence because of the encouragement he
or she derives from having the backing of D than as a result of the
assistance that evidences that backing.

There will be cases where the prosecution may want to put its case
on the basis that D has done an act that was capable of either
encouraging or of assisting, or both. We believe that it will be
easier for the prosecution to do so if each offence can be
committed by doing an act capable of “encouraging or assisting”.

5.21 Secondly, even if encouraging and assisting were separate
activities, we no longer believe that the fault element for
encouraging crime should be narrower than the fault element for
assisting crime.

5.22 We are recommending that the conduct element of both the
clause 1 offence and the clause 2(1) offence should consist of
“do[ing] an act capable of encouraging or assisting the doing of a
criminal act”. In the sections that follow, we consider the
different components of this conduct element.

Criminal act
5.23 A criminal offence can consist of one or more of three
external elements:

conduct, the circumstances in which the conduct takes place and the
consequences of the conduct. However, although an offence can
comprise all three elements, not all three elements are integral to
the definition of every completed offence. Whether one, two or all
three elements are part of the definition of an offence varies a
great deal.

Criminal damage is an offence that has all three elements: conduct
(for example throwing a stone), consequence (damaging or destroying
property) and circumstance (property belonging to another).

5.24 Under the scheme that we recommend, “criminal act” refers to
an act that falls within the definition of the conduct element of
the principal offence. It does not include the consequence element
of the principal offence. Thus, in relation to murder “criminal
act” is, for example, P’s physical act in stabbing V. If D
encourages P to stab V, D has done an act capable of encouraging D
to do a criminal act.

5.25 In most cases, the requirement that D’s conduct must be
capable of encouraging or assisting the conduct element of the
principal offence will not cause any problems. However,
occasionally, D’s conduct will not be capable of encouraging or
assisting the conduct element:

Example 5H
D and P have applied for a job that requires the holder to possess
a valid driving licence. They attend a party. D surreptitiously
“laces” P’s non-alcoholic drinks with alcohol knowing that P
intends to drive home. D’s intention is that P should commit the
offence of driving with excess alcohol and be disqualified from
holding or obtaining a driving licence. An off-duty policeman at
the party notices what D is doing and advises P not to drive. P
goes home in a taxi. The conduct element of the offence of driving
in excess of the prescribed limit is driving a motor vehicle. D’s
act of “lacing” D’s drinks is not an act capable of encouraging or
assisting P to drive. It is an act, however, that is capable of
bringing about the circumstance element of the offence, namely,
being in excess of the prescribed limit.

R A Duff, Criminal Attempts (1996) p 13 believes that this way of
distinguishing the different elements of the actus reus is
problematic because it is relative to the way that we describe
actions. Thus, if a rapist’s action is described as
“**********************” the victim’s non-consent is a circumstance
of the rapist’s action. If the rapist’s action is described as
“**************************” the victim’s non-consent is part of
the action itself rather than a circumstance.

Criminal Damage Act 1971. 26 Clause 17(2) of the Bill – “an act (or
failure to act) that falls within the definition of the act (or
failure to act) that must be proved in order for a person to be
convicted of the offence”.

If, as a matter of law, P can perpetrate the conduct element of the
principal offence by refraining from doing a positive act, D does
an act capable of encouraging or assisting “the doing” of a
criminal act by encouraging or assisting P to refrain from doing
the positive act, e.g. D urges P to murder P’s child, V, by
starving V - cl 17(2) of the Bill.

Contrary to the Road Traffic Act 1988, s 5(1).The essence of the
wrongdoing targeted by the offence of driving with excess alcohol
is not the driving but driving in excess of the prescribed limit.

In example 5H, it is that circumstance that D is intending to bring
about. D’s conduct is highly culpable and, in principle, he or she
ought to be criminally liable.

Accordingly, on what we anticipate will be rare occasions,
“criminal act” will need to be interpreted to mean a composite act
comprising a combination of conduct and circumstance elements.

“Capable of” encouraging or assisting

5.27 Inchoate liability criminalises culpable conduct not because
it results in actual harm but because it enhances the prospect of
actual harm occurring. It threatens to bring about harm. Consistent
with the rationale of inchoate liability, D’s conduct need not in
fact encourage or assist the doing of a criminal act.

It is for this reason that the Bill merely requires that D does an
act “capable of” encouraging or assisting the doing of a criminal
act.

5.28 The question of whether D’s conduct was capable of encouraging
or assisting the doing of a criminal act is one of fact for juries
and magistrates to determine. We do not believe that it is either
necessary or desirable to construct a sub-structure of detailed
rules for determining the question.

We envisage that in most cases the question will not arise and
that, when it does, juries or magistrates will have little
difficulty in deciding the question:

Example 5J
D, having heard that P intends to commit a burglary, sends P a
package believing that it contains D’s notes on how to break into
buildings. In fact, the package contains his mother’s cookery
recipes. P has no intention of committing burglary and reports the
matter to the police. The recipe notes were clearly not capable of
encouraging or assisting the criminal act of entering a building as
a trespasser and, therefore, D cannot be convicted of either the
clause 1 or the clause 2(1) offence.

5.29 However, one area of potential difficulty is whether an act
can “be capable” of encouraging or assisting the doing of a
criminal act if nobody is aware of the act.

A person can in fact be assisted without being aware of the act of
assistance. It should follow therefore that an act “is capable” of
assisting even if nobody is aware of the act:

However, D could be convicted of attempting to encourage or assist
P to commit burglary. In sending the package, D has done an act
which is “more than merely preparatory” to the commission of the
clause 1 offence or clause 2(1) offence – Criminal Attempts Act
1981, s 1(1). Further, the fact that it was impossible for P to be
encouraged or assisted by the recipe notes will not avail D.
Impossibility is not a defence to the inchoate offence of attempt –

Criminal Attempts Act 1981, s 1(2). 30 State v Tally (1894) 102 Ala
25.

Example 5K D and V live in an area plagued by burglaries. V goes on
holiday. D hears a rumour that unidentified persons are planning to
burgle V’s premises. D, who hates V, leaves a ladder by the side of
V’s premises intending that it should assist a burglary of V’s
premises. W sees P placing the ladder and reports the matter to the
police. The criminal act of burglary is entering a property as a
trespasser. At the moment of placing the ladder, D has done an act
“capable of” assisting the doing of the criminal act.

5.30 By contrast, a person cannot in fact be encouraged unless he
or she is aware of the encouragement.

However, we do not believe that it follows that, because actual
encouragement requires an awareness of the encouragement, an act
cannot be “capable of” encouraging unless and until it comes to
someone’s attention:

Example 5L D posts a letter to P urging P to commit a serious
assault on V. The letter is destroyed in a fire at the post office.
Subsequently, D writes a letter to X in which he tells X of the
contents of the letter to P. X informs the police.

It would be a question of fact for the jury whether D had done an
act capable of encouraging or assisting the commission of murder
or, instead, had merely attempted to do an act capable of
encouraging or assisting P to commit the offence.

5.31 We recognise that in some cases there may be an uncertain
boundary between, on the one hand, doing an act capable of
encouraging or assisting and, on the other, doing an act that is
more than merely preparatory to doing so, that is attempting to do
so.

However, taking into account that the maximum sentence for each
would be the same, we think that this is preferable to constructing
an edifice of detailed and complicated rules to distinguish a
completed act from an attempt, particularly as the issue will arise
infrequently.

ENCOURAGING RATHER THAN INCITING

5.32 In the commentary on the draft Criminal Code Bill, the
Commission said that it had been persuaded that incite was
preferable to encourage because encourage might be read as
requiring the prosecution to prove actual encouragement.

Similarly, if P received the letter but did not open it or, having
opened and read it, did not appreciate that D was encouraging him
to assault V. A Criminal Code for England and Wales vol 2,
Commentary on Draft Criminal Code Bill (1976) Law Com No 177. 33
Above, para 13.6.

5.33 However, if, as we believe, it ought to be possible to commit
the new offences without proof of P being in fact encouraged (or
assisted), this can be achieved without having to resort to
“inciting”. If the new offences can be committed by doing an act
“capable of” encouraging or assisting, this precludes any argument
that there has to be actual encouragement.

5.34 We prefer encouraging to inciting because, as the Commission
pointed out in the CP, incite “has somewhat instigatory
connotations”. As we explain below, we believe that the new
offences should capture conduct that is capable of emboldening or
fortifying a person who has already made up his or her mind to
commit an offence.
5.35 We do not think that the choice of encouraging will lead to
uncertainty. In Marlow the Court of Appeal, in considering the
meaning of “incites”, stated that:

“ ‘encourages’ represents as well as any modern word can the
concept involved.”

THE MEANING OF ENCOURAGING
5.36 There are two issues.

One is identifying what conduct ought to be capable of amounting to
encouraging.

The other is whether it is necessary or desirable to provide a
statutory definition of encouraging

5.37 We believe that encouraging should have the same broad meaning
that inciting has acquired at common law. In particular, we agree
with the provisional view expressed in the CP that encouraging
should encompass not only instigating and persuading but also
conduct that simply emboldens a person who has already decided to
commit an offence. We do so because, as the Commission said in the
CP, to embolden P in his or her intention to commit an offence may
not only inhibit repentance but is undesirable conduct that
conflicts with the citizen’s duty to uphold the law.

We also agree that to make D’s liability depend on whether he or
she sought to instigate the commission of an offence would result
in infinite room for argument. On which, see paras 5.27 to 5.31
above. 35 Para 4.160.

The CP was published before the decision in Goldman [2001] Criminal
Law Review 822.

See para 5.37 below. [1997] Criminal Law Review 897. Above. 39 In
Goldman [2001] Criminal Law Review 822 it was held that
“incitement” covered a suggestion, proposal, persuasion or
inducement.

In Giannetto [1997] 1 Cr App R 1, a case of secondary liability,
the trial judge directed the jury that D would be liable as an
accessory to the murder of V if P had suggested murdering V and D
had replied “Oh goody”. The Court of Appeal did not criticise the
direction and said that “mere encouragement ... would suffice”. 40
Para 4.148. 41 Para 4.150. 42 Para 4.149.

If encouragement should include conduct that emboldens or fortifies
a person who has already decided to commit an offence, we do not
believe that it should matter that P initiated the dialogue that
led to D’s encouragement.

In Goldman 43 it was held that D had attempted to incite P to
distribute ******************** by responding to an advertisement
placed by P which invited readers to purchase the photographs. The
decision has been criticised. It is said to extend the natural
meaning of incitement and, thereby, to enable a purchaser of
controlled drugs to be liable for inciting his or her supplier at a
point well in advance of incurring any liability for possession or
attempted possession of the drugs.

5.39 We sympathise with the criticism to the extent that Goldman
may have extended the natural meaning of incitement. It is for this
reason that we prefer encouraging to inciting because D can clearly
encourage P even though P has already made up his or her mind to
commit an offence.

5.40 However, we disagree with the other aspect of the criticism.
The law should seek to deter not only the possession of controlled
drugs (***********************) but also its supply. Without
purchasers there would be no suppliers of controlled drugs or
******************. The purchaser, by emboldening and fortifying
the supplier, is contributing to the evils and misery caused by the
supply and consumption of controlled drugs and *******************.
As a matter of policy, it is desirable and necessary that consumers
of controlled drugs and child pornography can be punished not only
for possessing such merchandise but also for encouraging others to
supply it.

5.41 Further, there would be no disparity between the liability of
the supplier, P, and the liability of the purchaser, D. By
responding positively to the supplier’s offer to supply drugs, D is
liable for encouraging or assisting P to commit the offence of
supplying controlled drugs. In turn, P is liable for encouraging or
assisting D to encourage or assist P to supply controlled drugs.

5.42 It is clear that at common law incitement can consist of
threats and pressure. Although it might be thought to be
linguistically inappropriate to describe threatening or coercing as
“encouraging”, such conduct ought to be and is caught by the
offences that we are recommending.

As Simester and Sullivan point out there is no reason why an
employer who persuades an employee to commit an offence by
threatening redundancy should be in a better position than an
employer whose persuasive technique is to offer a pay rise. [2001]
Crim LR 822. Simester and Sullivan, Criminal Law Theory and
Doctrine (2nd ed 2003) p 265.

Contrary to the Misuse of Drugs Act 1971, s 4(1)(b). In addition, P
would be liable for offering to supply a controlled drug – Misuse
of Drugs Act 1971, s 4(1)(b). Race Relations Board v Applin [1973]
QB 815. 48 See cl 15(1) of the Bill. Criminal Law Theory and
Doctrine (2nd ed 2003) pp 265-266.

We recommend that the doing of an act capable of encouraging or
assisting the doing of a criminal act should include doing so by
threatening or pressurising another person to do a criminal act.

5.44 The draft Criminal Code did not expand on the meaning of
“incite”. Likewise, we believe that it is unnecessary to expand on
the meaning of encourage. It is a word in common usage and, if
anything, is more familiar to juries and magistrates than “incite”.

5.45 We are strengthened in our view by the fact that the meaning
of incite has rarely troubled the courts. It is true that in the CP
the Commission suggested that there was uncertainty as to whether
there had to be an element of persuasion or pressure. If there was
any uncertainty, it is now clear that there is no such requirement.

THE MEANING OF ASSISTING
5.46 Unlike “encouraging”, in the CP the Commission had no common
law inchoate offence to draw upon when considering the meaning of
“assisting”.

It said that assisting in its normal sense “extends to any conduct
on the part of D that, as a matter of fact, makes it easier for P
to commit the principal offence”. Having concluded that assisting
is a “sufficient and satisfactory concept”, it suggested that
assistance should include the giving of advice as to how to commit
an offence and advice as to how P might avoid detection or
apprehension. The Commission invited comment on whether acts of
insubstantial assistance should be excluded from the scope of the
offence. 57 50 Para 2.133. 51 The Commission itself said that
specific authority for the view that there had to be persuasion or
pressure was “notably sparse” - para 2.132.

Marlow [1997] Criminal Law Review 897; Goldman [2001] Criminal Law
Review. Owing to the fact that at common law there is no inchoate
offence of assisting crime, the authorities on what constitutes
“assisting” are cases, usually of complicity, in which the issue
has been whether D has “aided” P to commit an offence.

54 Para 4.71. 55 Para 4.48. 56 Para 4.99(2). 57 Para 5.2.6(2).

ADVICE AS ASSISTANCE
5.47 In A-G v Able the High Court held that the giving of advice
was conduct capable of “aiding and abetting” for the purposes of
secondary liability. In the CP the Commission noted that the law
had been strongly criticised because it “gives too great an
extension to criminal complicity. If the writer of the letter was
guilty the first time his information was used, he would be guilty
the nth time, which is absurd”.”

5.48 Despite the criticism of A-G v Able, in the CP the Commission
proposed that providing advice should be conduct capable of
amounting to assisting. It emphasised that insofar as there was a
problem, it is associated with secondary rather than inchoate
liability.

5.49 No respondent to the CP disagreed with the proposal that
providing advice should be conduct that is capable of assisting. We
continue to believe that it should be so regarded.

ACTS OF INSUBSTANTIAL ASSISTANCE

5.50 In the CP, the Commission said that if it was D’s purpose to
facilitate the commission of an offence, D should be liable whether
or not the assistance was substantial. We invited comment on
whether liability should be limited to substantial assistance if
the fault elements of the inchoate offence of assisting crime were
to be extended beyond purpose or intention. 63 58 [1984] QB 795.

The case involved the distribution of a leaflet describing ways of
committing suicide. It was a civil case in which the
Attorney-General sought a declaration that publication of the
booklet would constitute an offence because it would “aid and abet”
suicide contrary to s 2(1) of the Suicide Act 1961. 59 Para 4.53.
60 Glanville Williams, Criminal Law: The General Part (2nd ed 1960)
p 381 criticising the New Zealand case of Baker (1909) 28 NZLR 536
where D was held liable as a party to an offence because he had
written a letter describing in general terms techniques for
safebreaking. It should be noted that the problem that Professor
Williams adverted to is not confined to advice. A jemmy can be used
to commit numerous burglaries. 61 Para 4.154. 62 Para 4.66. 63 Para
4.67.

5.51 The majority of respondents thought that it should be
irrelevant whether the assistance was substantial. We agree.
Inchoate liability is not dependent on the commission of a
substantive offence. D’s liability turns not on what P does but on
what D intends or believes will be the impact of his or her
conduct. We think that to introduce such a requirement would lead
to uncertainty and difficulty. It would require juries and
magistrates to “seek to assess how extensive a contribution the
assistance would have been (or was) in bringing about the principal
offence”. Accordingly, D should be liable if his or her act is
capable of assisting (or encouraging) another person to any extent.
The marginal nature of any assistance or encouragement can be
reflected in the sentence. Must D’s encouragement or assistance be
directed at a particular person or persons?

5.52 The issue is most likely to arise in relation to
encouragement. There should be no requirement that D has any
particular individual(s) or group(s) as the target of his or her
encouragement. If D posts a message on a web-site urging the
assassination of all immigrants, he or she ought to be liable
regardless of whether the encouragement is aimed at a particular
individual, a group of individuals or the world at large.

Omissions as acts capable of encouraging or assisting

5.53 Determining the circumstances in which a person should incur
criminal liability for an omission involves difficult policy
issues. In the context of secondary liability, Professor Ashworth
says the key issue is simple to state: “can a person be convicted
as an accomplice merely for standing by and doing nothing when an
offence is being committed”?

5.54 The general rule at common law is that a person incurs no
criminal liability for standing by and doing nothing. The
reluctance of the law to impose criminal liability for omissions is
attributable to a number of reasons of which perhaps the most
significant is that:

The prohibition of omissions is far more intrusive upon the
individuals’ autonomy and freedom than is the prohibition of acts,
which is why the systematic imposition of (criminal or civil)
liability for failures to act is to be resisted. Professor K J M
Smith, “The Law Commission Consultation Paper on Complicity (1): A
Blueprint for Rationalism” [1994] Criminal Law Review 239, 243.

With one exception, we are recommending that D should be liable to
any penalty for which for which he or she would be liable if
convicted of the principal offence. The exception is if D is
convicted or encouraging or assisting murder. D would be liable to
a maximum sentence of imprisonment for life but would not attract
the mandatory life sentence –

cl 12(2) of the Bill. 66 Principles of Criminal Law (4th ed 2003) p
418. 67 Simester and Brookbanks, Principles of Criminal Law (2nd ed
2002) p 46.

5.55 However, the general rule of common law is subject to an
important exception.

Provided an offence is capable of being committed by inaction, a
person may commit the offence if he or she is under a duty to act
but refrains from doing so. In the context of secondary liability,
the law has focused on three issues:

(1) the extent to which and the circumstances in which D can incur
secondary liability by virtue of mere presence when P commits an
offence;

(2) whether D can incur secondary liability by failing to take
steps to discharge a duty; and

(3) whether D can incur secondary liability by failing to exercise
an entitlement to prevent or control the actions of P.

5.56 The law in relation to (1) is reasonably clear:

Example 5M
D is on a bus when a passenger P starts to assault another
passenger V. D remains in his seat and continues to read his
newspaper. D, provided that he takes no positive action to
encourage or assist P, is not an accessory to the assault because
he under no legal obligation to act in order to prevent P
assaulting V.

Example 5N D comes across P who is about to rape V. V pleads for D
to help her but D passes by. P rapes V. Again, D incurs no criminal
liability for declining to go to V’s aid. By contrast, if D takes
the positive step of stopping in order to watch P rape V, a jury is
entitled, but not bound, to find that D intended to encourage P and
that D in fact encouraged P.

5.57 The law in relation to (2) is also reasonably clear. If D is
under a duty to act, then D can incur secondary liability for an
offence committed by P as a result of D failing to take steps to
discharge the duty, provided that P is thereby encouraged or
assisted to commit the offence.

Gibbins and Proctor (1918) 13 Cr App R 134; Pittwood (1902) 19 TLR
37. A parent is under a legal duty to act in order to ensure the
health and safety of his or child. A police officer is under a
similar duty towards those whom he or she has arrested or who are
in his or her custody. A legal duty to act may arise because of a
contractual relationship, eg employer and employee. The owner of a
motor car is entitled to control the actions of those whom he or
she allows to drive the car – Du Cros v Lambourne [1907] 1 KB 40.
An owner of premises or land is entitled to control the actions of
those who are on the premises or land.

The relevant authorities are Coney (1882) 8 QBD 534; Wilcox v
Jeffery [1951] 1 All ER 464; Allen [1965] 1 QB 130; Smith v Baker
[1971] 1 RTR 350; Clarkson [1971] 1 WLR 1402; Allen v Ireland
[1984] 1 WLR 903; Bland [1988] Criminal Law Review 41.

5.58 The law in relation to (3) is far less clear. There have been
specific instances where the courts have held D to be secondarily
liable for failing to control the actions of others. However, it is
open to question whether any general principle can be derived from
those cases.

THE PROPOSALS IN THE CP

5.59 In the CP, the Commission distinguished encouraging, on the
one hand, and assisting, on the other. It provisionally concluded
that it ought not to be possible to assist crime by failing to
discharge a duty or by failing to exercise an entitlement right of
authority to prevent or control the actions of P. The justification
for this limitation was threefold.

First, it would bring certainty.

Secondly, it would prevent the defence being unreasonably wide.

Finally, it would mean that the offence would be in line with the
general principles of the criminal law.

5.60 By contrast, the Commission provisionally concluded that the
proposed inchoate offence of encouraging crime could be committed
by inaction. The Commission thought that it would not be
unreasonable, or make the law dangerously wide, if encouraging
encompassed omissions.

RESPONSES TO THE PROPOSALS IN THE CP

5.61 The majority of respondents who addressed this issue did not
accept the proposition that failing to discharge a duty to prevent
or control P’s actions should never be regarded as “assisting”.

CONCLUSIONS AND RECOMMENDATIONS

Failure to discharge a duty
5.62 In principle, we believe that the new offences should be
capable of being committed by virtue of inaction on the part of D
that consists of refraining from taking steps to discharge a duty.

Confining liability to positive acts would result in D incurring no
criminal liability in situations where he or she ought to, for
example D, a disgruntled security guard, who fails to turn on a
burglar alarm with the intention of assisting P to burgle the
premises of D’s employer.

Du Cros v Lambourne [1907] 1 KB 40; Tuck v Robson [1970] 1 WLR 741
where a publican permitted customers to consume alcohol on the
licensed premises outside the permitted hours; JF Alford Transport
[1997] 2 Cr App R 326 where a company did nothing to prevent its
employees falsifying their tachograph records; Gaunt [2003] EWCA
Crim 3925.

It is true that previously the Commission has taken the view that
there is such a general principle – clause 27(3) of the Draft
Criminal Code Bill and commentary in A Criminal Code for England
and Wales, vol 2 Commentary on Draft Criminal Code Bill (1989) Law
Com No 177 para 9.22.

See Professor Glanville Williams, “Which of you did it?” (1989) 52
Modern Law Review 179 and, by the same author, “What should the
Code do about Omissions?” (1987) 7 Legal Studies 92. 74 Paras 4.69
to 4.74. 75 Para 4.158.

5.63 It would be for the trial judge to rule whether D was under a
duty. The question whether D had failed to discharge his or her
duty would be one of fact. However, we would not wish to see D
being criminally liable for any failure to take steps to discharge
the duty. We believe that such a strict rule could operate harshly
and lead to injustice. Instead, the test should be whether D failed
to take reasonable steps to discharge the duty.

Example 5P D lives in her own property with her two children P aged
16 and V aged 15. P has never been violent towards V but on the
night in question suddenly starts to assault V. P is of muscular
build while D is diminutive in stature. D goes to the phone to call
the police but P tears the phone from her and hits her with it. P
continues to assault V. 77 D has a duty to protect V. It would be
for the prosecution to prove that she had failed to take reasonable
steps to discharge that duty.

5.64 In cases where it was D’s intention that the principal offence
should be committed, it is difficult to envisage that D might
nevertheless have taken reasonable steps to discharge his or her
duty.

However, we think that an exceptional case might arise where D,
despite intending the commission of the principal offence, might
legitimately claim that he or she had taken reasonable steps.

5.65 We recommend that doing an act capable of encouraging or
assisting a person to do a criminal act should include doing so by
failing to take reasonable steps to discharge a duty. Failure to
assist a constable to prevent a breach of the peace

5.66 At common law every citizen is under a duty to respond to a
constable’s request for assistance to prevent a breach of the
peace.

We would not wish, and we do not believe that it would be thought
to be either desirable or acceptable, for citizens to incur
inchoate liability for merely failing to respond to such a request.

5.67 We recommend that a person failing to respond to a constable’s
request for assistance in preventing a breach of the peace should
not be regarded as the doing of an act capable of encouraging or
assisting a person to do a criminal act.

Clause 15(2) of the Bill. 77 Since P’s assault on V was sudden and
out of character, D cannot be liable for failing to prevent the
initial assault. However, under our scheme the “doing of a criminal
act” includes the continuation of a criminal act that has already
began – cl 17(3)(a). Accordingly, the issue is whether D has failed
to take reasonable steps to prevent the continuation of the
assault. 78 Brown (1841) Car & M 314, 174 ER 522.

Failure to exercise an entitlement to prevent or control the
actions of P
5.68 We believe that it would be an over-extension of the criminal
law if D could be inchoately liable on the basis that he or she had
refrained from exercising an entitlement to prevent or control P’s
actions. Again, we emphasise that the new offences are inchoate
offences capable of being committed even if the principal offence
is not committed.

5.69 Every citizen is entitled to use reasonable force to control
the actions of P in order to prevent P committing an offence. We do
not think it would be thought acceptable if D could be criminally
liable for encouraging or assisting P to commit a crime merely
because D failed to take action to prevent P committing the crime.

5.70 The entitlement that everyone has to control the actions of
others in order to prevent the commission of an offence is an
illustration of a general power. In addition, D may have a specific
entitlement to control P’s activities regardless of whether P is
committing or is about to commit an offence, for example the owner
of land is entitled to control the actions of others on the land:

Example 5Q D, who has a telephone and a guard dog, is awoken by a
noise coming from his garden. Opening the window, D asks P what he
is doing. P replies “go back to bed”. D, although believing that P
is about to commit an assault on V, goes back to bed. P, encouraged
by D’s non-intervention, proceeds to assault V. It might be thought
that D’s conduct is callous and displays a lack of empathy for V.
In itself, this is not to justify the imposition of criminal
liability. In this kind of example, if D could be made criminally
liable for his failure to intervene, it would be a case of imposing
liability because D was not being a good samaritan or “busy body”.
That is potentially far too harsh a consequence in such cases of
non-intervention.

The fault element Introduction
5.71 We now consider what the fault element of the new offences
should be. In addressing this issue, we emphasise that those who
commit inchoate offences are punished because their conduct
enhances the prospect of a principal offence being committed.
Whether the principal offence is subsequently committed is
irrelevant. Further, there is no correlation between the likelihood
of the offence being committed and the strength of D’s conviction
that it will be committed:

Criminal Law Act 1967, s 3. 80 See the discussion in Simester and
Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) pp 73 to
74.

Example 5R D lends his car to P, knowing that P is disqualified
from driving. D is sure that P will drive the car. However, it was
always P’s intention that X, P’s wife who is not disqualified,
should drive the car. In the event, X drives D’s car. On one view,
it would be unduly intrusive and wasteful of resources for the
criminal law to intervene where P had no intention of committing an
offence. On the other view, the fact that P has not committed the
offence of driving while disqualified, and never intended to, ought
to make no difference to whether D is criminally liable. This is
because when lending the car, D believed that P would use the car
and, by doing so, would commit an offence. Assuming that there is
merit in the latter view, does it follow that D should also be
criminally liable if, for example, he or she merely suspected that
P might use the car to commit an offence?

5.72 We have explained that the conduct element of the new offences
is doing an act capable of encouraging or assisting the doing of a
criminal act and that, in most cases, “criminal act” will have a
restricted meaning, namely the conduct element of the principal
offence. However, the principal offence may also consist of a
circumstance or consequence element, or both. So, we need to
consider what the fault elements of the new offences should be in
relation to not only the criminal act but also the circumstance and
consequence elements, if any, of the principal offence. D’s fault
in relation to the commission of the criminal act

5.73 The Supreme Court of Canada has recently considered this issue
in the context of section 464(a) of the Canadian Criminal Code. The
provision makes it an offence to “counsel another person to commit
an indictable offence”. The majority held that D must either intend
that the principal offence be committed or knowingly counsel its
commission while aware of the unjustified risk that it was likely
to be committed. According to the majority, D can intend that the
principal offence be committed even if the motive for counselling P
to commit the offence is to make a financial profit. 81 Paras 5.23
to 5.26 above.

5.74 The view of the minority was that nothing less than an
intention to persuade P to commit the offence should suffice. The
minority felt that there was no distinction between intending to
persuade P to commit the offence and intending that it should be
committed.
Charron J, delivering the reasons of the minority, said, “It is
logical to infer that the counsellor who intends to persuade the
person counselled to commit an offence intends that the offence be
committed.” According to Charron J, the motive of D was “a piece of
circumstantial evidence that may assist in determining an accused’s
state of mind”.

Underlying the opinion of the minority was a desire to ensure that
the scope of the offence remained within the justifiable limits of
the criminal law. The minority thought it essential to limit the
scope of the offence in order to protect freedom of expression.

THE PROPOSALS IN THE CP

5.75 In the CP, the Commission provisionally proposed that D should
incur liability for the offence of encouraging crime only if it was
D’s purpose that another person should commit the principal
offence.

The Commission thought that a narrow fault element was necessary
because in many cases D’s encouragement would do no more than
embolden or fortify a person who had already decided to commit the
principal offence. The Commission expressed concern that, unless
purpose was required, D would incur liability for “the unlooked-for
outcome of his comments on a matter of public interest”.

5.76 With regard to the offence of assisting crime, the Commission
invited comment on whether the offence should be restricted to
cases where it was D’s purpose that the principal offence should be
committed or whether the basis of liability should be broadened
and, if so, how.

5.77 The Commission said that if the fault element of assisting
crime were to be broader than purpose that the principal offence be
committed, the test would need to be defined with care. It thought
that were the test to be formulated in terms of “awareness”, D
should have to know or believe that “is using or will use the
assistance in the commission of a crime”. The Commission said:

In the overwhelming majority of cases, this will be true. However,
for an example of where D intends that P should be encouraged to
commit an offence while being indifferent as to whether the offence
is ultimately committed, see Appendix A para A.27. 83 In the CP,
the Commission employed “purpose” rather than “intention”.

By “purpose” the Commission meant acting with the aim and object of
bringing about the commission of the principal offence. The Bill
that accompanies this report uses intention rather than purpose.
Para 4.154. Above. The Commission provided examples, one of which
was D publishing an article criticising the use of animal
experiments. The article inspires P to cause criminal damage to a
laboratory. 86 Para 4.95. 87 Para 4.82. 88 Para 4.83.

We consider that the law would be too broad if it were formulated
in terms of ... suspicion as to the principal’s intentions. That
consideration is particularly relevant to supply of assistance “in
the ordinary course of business”: for instance, the sale of a
screwdriver or the provision of a taxi ride to a person known or
thought to be a professional burglar. In such a case, D may well
legitimately suspect that P will use the assistance given to him in
one of his burglaries; but it seems too restrictive of ordinary
activities to make supply criminal on the basis simply of suspicion
of the use to which the supply is put.

RESPONSES TO THE PROPOSALS IN THE CP

5.78 Only three respondents favoured restricting liability for
assisting crime to cases where it was D’s purpose that the
principal offence be committed. The other respondents who addressed
the issue favoured a test of knowledge or belief on D’s part that
another person is doing or will do acts that involve the commission
of the principal offence.

IDENTIFYING THE APPROPRIATE FAULT ELEMENT

5.79 We no longer believe that there should be a different fault
element for encouraging, on the one hand, and assisting, on the
other. As we indicated above, we no longer believe that encouraging
and assisting are necessarily separate activities. In some cases
they will overlap.

If there were to be different fault elements, a potentially
troublesome and unnecessary distinction would arise which would
give rise to problems of charging and would be a recipe for legal
argument at trial.

5.80 In addition, we no longer believe that liability for
encouraging should be restricted to cases where it was D’s purpose
that the principal offence be committed.

In the CP, the Commission thought that a narrow purpose test was
necessary in order to ensure that D would not be liable for “the
unlooked-for outcome” of comments on matters of public interest. We
think that the word expression “unlooked-for” is not free from
ambiguity. If it means “uncontemplated”, we agree that D should not
be liable. If it means “undesired”, we do not agree that the mere
fact that D does not desire the commission of the principal offence
should be a reason for exonerating D:

Example 5RR D publishes a leaflet that contains the name and
address of V, a convicted paedophile. D’s intention is to encourage
V to leave the neighbourhood. D also believes that the leaflet will
encourage someone to assault V. We see no reason why, in example
5RR, D should avoid liability merely because D’s intention was not
that V should be attacked but that V should be frightened into
leaving the neighbourhood. 89 Para 4.82. 90 Para 5.20 above. 91
Para 4.154.

5.81 We recognise that extending liability beyond cases where it is
D’s intention that the conduct element of the principal offence
should be committed, raises the spectre of D incurring criminal
liability for ostensibly lawful acts.

A protestor may believe that his or her lawful protest will
encourage the commission of retaliatory criminal conduct by others.
Authors, journalists and publishers may believe that material which
highlights what some would consider to be cruel or barbaric
practices will encourage others to commit offences against those
carrying out the practices:

Example 5S D publishes an article that identifies a laboratory that
uses animals in scientific experiments. D’s intention is to
persuade the laboratory to cease its activities. D believes that
the article will encourage others to cause damage to the
laboratory. Example 5S D is part of a television crew reporting at
the scene of a riot. D’s presence encourages the rioters to
intensify their riotous behaviour. D is fully aware of the effect
that the presence of the crew is having on the rioters. We would
not wish defendants in the position of D in examples 5S and 5SS to
be convicted simply because they believe that their conduct will
encourage others to commit offences. However, we believe that the
answer is not by way of the inflexible and narrow test of liability
proposed in the CP but by recourse to more context sensitive
mechanisms.

5.82 Activities such as reporting, writing, publishing and
protesting engage Articles 9, 10 and 11 of the European Convention
on Human Rights and Fundamental Freedoms. The rights contained in
those Articles are not absolute and may be restricted to the extent
necessary for, amongst other things, the prevention of crime and
disorder. We envisage that some prosecutions for the new offences
will engage the relevant Articles.

5.83 The Bill accompanying this report does not contain any
provisions in relation to Convention issues. This is because the
Human Rights Act 1998 already brings the Convention rights into
play. Since the rights under Articles 9, 10 and 11 are not
absolute, Cases will turn on their individual facts.

The issue will be whether charging D with encouraging or assisting
the commission of an offence engages D’s rights under Articles 9,
10 and 11 and, if so, whether, on the facts, convicting D would be
a disproportionate response in all the circumstances of the case.

5.84 In addition, in Part 6 we explain that, in cases where D’s
potential liability is based not on an intention but on a belief
that a criminal act will be done, there should be a defence of
acting reasonably in the circumstances.

In example 5S and 5SS, it would be open to D to claim that he or
she had acted reasonably in the circumstances. See Part 6 paras
6.18 to 6.26 below.

5.85 As with encouraging, we do not believe that liability for
assisting should be restricted to cases where it was D’s intention
that the criminal act be committed. If D’s liability were so
limited, it would necessarily exclude cases where D believes that a
criminal act will be done with his or her assistance. It would mean
that those who, purely for financial gain, supply articles,
services or information believing that they will be used to commit
a criminal act would incur no criminal liability.

As the Commission stated in the CP: It is far from obvious that
that outcome is correct, either from the point of view of justice
or from the point of view of social protection. It might well be
thought that those who willingly and knowingly assist in crime
should be liable to punishment, not least as some means of impeding
the commission of crimes that they would otherwise assist in; and
that they act for profit should hardly be a reason for excusing
them.

5.86 However, as we noted above, inchoate liability for encouraging
or assisting the commission of an offence has the potential to cast
a very wide net of criminal liability, not least because liability
is not dependent on the commission of any offence. Accordingly,
there is a need for caution in determining the appropriate fault
element.

Referring to inchoate offences, Professor Ashworth has observed:
... as the form of criminal liability moves further away from the
infliction of harm, so the grounds of liability should become more
narrow.

5.87 If the fault element for encouraging or assisting crime is too
broadly defined, consisting of no more than belief that a criminal
act might be committed, there is a danger of deterring and unduly
restricting ordinary trading, employment and social activities:

Example 5T D owns a chemist’s shop. P comes in and buys some
*************. D’s understanding from (mistaken) local gossip is
that P *************. D believes that ***********************. D
shares his belief with the next customer who reports what D has
done to the police. They investigate and discover that
*********************. Local gossip has *************************.
We do not believe that traders, such as D, ought to be liable
merely because they believe that in selling their products they
might be assisting the commission of a criminal act, particularly
when, as in example 5T, there was never any possibility that the
criminal act would be committed.

Para 4.86. 94 Principles of Criminal Law (4th ed 2003) p 425.

CONCLUSIONS AND RECOMMENDATIONS

5.88 We conclude, therefore, that to confine inchoate liability for
encouraging or assisting to cases where it was D’s intention that a
criminal act should be committed would be unduly restrictive.
Equally, it would be inappropriate to extend liability to include
cases where D’s belief was no more than that a criminal act might
be committed.

5.89 Accordingly, we recommend that in relation to the criminal act
of the principal offence, D:

(1) in order to be guilty of the clause 1 offence, must intend that
the criminal act should be done or that a person be encouraged or
assisted to do it;

(2) in order to be guilty of the clause 2(1) offence, D, although
not having to intend that the criminal act should be done, must
believe that the criminal act will be done and that his or her own
act will encourage or assist the doing of the criminal act.

D’s state of mind where his or her conduct is capable of
encouraging or assisting more than one criminal act

5.90 In Part 4, 100 we said that some respondents to the CP had
concerns about the desirability of an inchoate offence of assisting
crime because of a perceived danger that it would result in an
offence characterised by vagueness and uncertainty.

5.91 The danger that they were referring to is apparent in cases
where D’s conduct has the capacity to provide P with encouragement
or assistance in relation to a range of possible criminal acts:

Example 5TT D provides P with V’s name and address. D correctly
believes that P, using the information, will murder V or commit
robbery against V or burgle V’s premises. However, D is not sure
which of those offences P will commit. P is arrested before being
able to commit any of the offences. As D believes that P will
commit at least one of three criminal acts but is unsure which
one(s) it will be, P’s state of mind in relation to each criminal
act within the range is something less than a belief that it will
be committed. In the sense of what is usually referred to as
“direct” intention.

See clause 18 of the Bill and Appendix A paras A.26 to A.30 and
para A.100. Clause 1(1)(b) of the Bill. 97 Clause 2(1)(b)(i) of the
Bill. Clause 3(5) of the Bill provides that it is sufficient that D
believes that the criminal act will be done if certain conditions
are met. Clause 2(1)(b)(ii) of the Bill. The relevant provisions in
the Bill are clauses 2(2) and clause 3(2) to (7). For explanation,
see Appendix A paras A.52 to A.55. 100 See paras 4.15 to 4.16
above.

5.92 We have recommended that in order to be liable for the clause
2(1) offence, D must believe that his or her conduct will encourage
or assist the commission of the criminal act of the principal
offence and that P will do the criminal act. We believe that it
would not be inconsistent to also recommend that, if D’s conduct is
capable of encouraging or assisting the doing of a number of
criminal acts, it should suffice if D believes that at least one of
them will be committed. If D believes that one or more of a range
of criminal acts will be committed, D’s belief is more than merely
a belief that P might commit a criminal act. In example 5TT, D
believes that:

(1) if P does not commit murder or robbery, P will commit burglary;

(2) if P does not commit murder or burglary, P will commit robbery;
and

(3) if P does not commit burglary or robbery, P will commit murder.

5.93 We believe that our approach is a principled one. If D does an
act capable of encouraging or assisting P to commit criminal acts
x, y and z, believing that P will commit at least one of them, D
has no cause for complaint if he or she is prosecuted for
encouraging or assisting one of those criminal acts.

5.94 We recommend that, if D does an act capable of encouraging or
assisting the doing of one or more of a number of criminal acts, D
must believe:

(1) that at least one of those acts will be done but without having
any belief as to which it will be; and

(2) that his or her conduct will encourage or assist the doing of
at least one of those acts.

5.95 However, since D’s state of mind in relation to each criminal
act is something less than a belief that it will be committed, we
think that it ought to be possible to prosecute D for only one
offence.

It will be for the Crown Prosecution Service to decide the criminal
act on which to base the prosecution of D. They may be minded to
choose the one which they believe provides the best chance of
securing a conviction, even if it is not the most serious.

5.96 We recommend that if D does an act capable of encouraging or
assisting the doing of one or more of a number of criminal acts and
D believes:

(1) that at least one of a number of criminal acts will be done but
has no belief as to which it will be; and

(2) that his or her act will encourage or assist the doing of at
least one of those criminal acts D may be prosecuted for only one
offence. Para 5.89(2) above. Clause 2(2)(b)(i) of the Bill. Clause
3(6) of the Bill provides that it is sufficient if D believes that
one or more of the criminal acts will be done if certain conditions
are met. Clause 2(2)(b)(ii) of the Bill.

5.97 In example 5TT, D believed that P would commit a criminal act
but could not identify which one it would be. By contrast: Example
5U D wants to intimidate V who owes D money. D says to his
henchman, P, “Go round to V’s house and smash the place up and when
you have done that either steal something valuable or rough V up a
bit. Make sure he gets the message”.

Before he can go to V’s house, the police arrest P. P tells the
police what D told him to do. In this example, D believes that P
will commit a criminal act, smashing up V’s property and, in
addition, believes that P will commit another criminal act but does
not know whether it will be appropriating property or physically
attacking V.

5.98 We believe that it ought to be possible to prosecute D both in
relation to the criminal act of smashing up V’s furniture and
either for the criminal act of appropriating property or for the
criminal act of physically attacking V.

5.99 A more problematic situation is where D believes that P will
commit a particular criminal act (x) and also might commit an
additional criminal act (y):

Example 5UU D is annoyed by the alarm on V’s car going off. D gives
P a hammer and tells P to go and silence the vehicle. D, realising
that P might also use the hammer to assault V, tells P not to
approach the car if V is there. An off-duty policeman hears the
conversation.

We think that to permit the prosecution of D for an inchoate
offence of encouraging or assisting assault when D’s state of mind
is a mere belief that P might assault V would represent a
significant and unwarranted departure from our general position. It
would constitute an over-extension of criminal liability. It would
be different if, similar to example 5U, D believed that, in
addition to committing criminal damage, P will either assault V or
rob V but is unsure which offence P will commit. D’s state of mind
as to the mens rea of P in doing the criminal act

5.100 D ought not to incur liability merely because D intends or
believes that P should or will commit an “act” that is criminal.
The “act” that is criminal in theft is the appropriation of
property.

It would be absurd if D could be criminally liable for doing
nothing more than encouraging P to do that act: Clause 3(4) of the
Bill. If, however, D intends that a number of criminal acts should
be committed, it will be possible to prosecute D for the clause 1
offence in relation to each criminal act even if D did not believe
that all of them would be committed – clause 3(1) of the Bill.
Clause 3(3) of the Bill and Appendix A para A.53.

Example 5V At P’s request, D keeps watch outside a house belonging
to V. P tells D that he is going to enter the house to retrieve
goods which P says belong to him. In fact, the goods belong to V.
It was P’s intention to take them and sell them to fund his drug
habit. P abandons the project when, on arriving at the house, it
appears that V is at home. D should not be liable for encouraging
or assisting burglary or theft even though it was P’s intention,
unknown to D, to sell the goods.

5.101 However, conversely, in some cases it is D, not P, who would
satisfy the fault element of the principal offence were the
criminal act to be done:

Example 5VV D, at P’s request, keeps watch on V’s house. D believes
that P is going to steal property from the house. In fact, P
intends to take property that he believes belongs to him. Before P
can even attempt to enter the house, V returns. P abandons the
enterprise.

Example 5X D encourages P, aged 8, to punch V.

Example 5XX D encourages P to steal some books from the library and
says that, if P does not do so, D will inflict serious harm on P’s
child. In example 5VV, were P to enter V’s house and take the
goods, P would not commit burglary because he honestly believed
that he was the owner of the goods.

In example 5X, P is under the age of criminal responsibility.In
example 5XX, P will be able to plead duress as a complete defence.
However, in each example, D has encouraged or assisted the
commission of a criminal act which, were he to do it, he would do
so with the state of mind to be convicted of the principal offence.

Contrary to the Theft Act 1968, s 9(1)(b). 107 Theft Act 1968, s
2(1)(a). 108 Children and Young Persons Act 1933, s 50. 109 Bourne
(1952) 36 Cr App R 125.

5.102 In Part 3, 110 we explained that under the present law it is
uncertain whether D can be convicted of incitement if D incites P
to do an act which, if done by P, would result in P not committing
any offence.

Under our recommendations there will be no uncertainty.

5.103 We do not believe D ought to be exonerated merely because it
would not be possible to convict P of the principal offence were he
or she to do the criminal act. Instead, the focus should be on D’s
state of mind. In principle, it ought to be possible to convict D
if D’s state of mind is such that, were he or she to do the
criminal act, he or she would do it with the fault required for
conviction of the principal offence.

5.104 In some cases, D will be incapable of doing the criminal act,
for example a woman cannot do the criminal act of rape –
penetration “with the penis”. However, D ought not to escape
liability merely by virtue of being incapable of doing the criminal
act. If D, a woman, encourages P to penetrate V with his penis
believing that, were P to do so, it would be without the consent of
V, it ought to be possible to convict D encouraging or assisting
rape even if P would not be guilty of rape because of a reasonable
belief that V would consent.

5.105 We recommend that, in order for D to be convicted of the
clause 1 or a clause 2 offence:

(1) D must believe that, were another person to do the criminal
act, that person would do it with the fault required for conviction
of the principal offence; or

(2) D’s state of mind must be such that, were he or she to do the
criminal act, he or she would do it with that fault. D is to be
assumed to be able to do the criminal act in question.

The circumstance and consequence elements, if any, of the principal
offence
106 In the previous section, we said that, in order to be liable, D
must have one of two states of mind. D must either believe that
were another person to do the criminal act, that person would do it
with the fault required for conviction of the principal offence or
D’s own state of mind is such that, were he to do it, he would do
it with that fault.

However, some offences can be committed without the principal
offender having to be at fault in relation to the consequence or
circumstance element.

In this section, we consider D’s liability for encouraging or
assisting the commission of such offences. 110 Paras 3.26 to 3.32.
111 Sexual Offences Act 2003, s 1(1)(a). 112 Sexual Offences Act
2003, s 1(1)(b). 113 Sexual Offences Act 2003, s 1(1)(c). 114
Clauses 1(2)(a) and 2(3)(a) of the Bill. 115 Clauses 1(2)(b) and
2(3)(b) of the Bill. 116 Clause 11 of the Bill.

CONSEQUENCES

The correspondence principle
5.107 In relation to principal offenders, Ashworth and Campbell
have highlighted the importance of what they refer to as the
correspondence principle: If the offence is defined in terms of
certain consequences and certain circumstances, the mental element
ought to correspond with that by referring to those consequences or
circumstances. If a mental element as to a lesser consequence were
acceptable, this would amount to constructive criminal liability.

5.108 The correspondence principle is not in fact an accurate
descriptive generalisation of offences. This is because many
offences that have a consequence element do not require that a
principal offender be at fault in relation to the defined
consequence. The law of offences against the person is replete with
examples.

Section 20 of the Offences against the Person Act 1861 makes it an
offence to maliciously wound or to inflict grievous bodily harm.
However, the offence can be committed if the accused merely foresaw
that his or her conduct might result in some physical harm. A
person can be convicted of murder even though he or she did not
intend to kill but merely intended to cause really serious harm. If
a person commits an offence that creates a reasonably foreseeable
risk of causing some, albeit minor, harm to V, he or she is guilty
of manslaughter if in fact V dies. The risk of death does not even
have to be reasonably foreseeable.

These are all constructive liability offences - the requisite fault
element does not have to correspond to the consequence defined by
the offence but only to a lesser consequence.

CIRCUMSTANCES

Strict Liability

5.109 A principal offender can also be guilty of some offences that
have a circumstance element without being at fault in relation to
the circumstance. The circumstance element of the offence of
driving while disqualified is being disqualified from holding or
obtaining a driving licence.

The offence is committed irrespective of whether the accused is
aware that he or she is so disqualified.

Section 5 of the ****************************. A person can be
convicted of the offence even if he or she reasonably believes
******************************.

These are strict liability offences because whether or not the
principal offender is at fault in relation to the circumstance
element is irrelevant to the issue of liability.

“Recklessness in Assault – And in General?” (1991) 107 Law
Quarterly Review 187, 192. 118 Mowatt [1968] 1 QB 421. Church
[1966] 1 QB 59; DPP v Newbury [1977] AC 500 120 Contrary to Road
Traffic Act 1988, s 103. Bowsher [1973] RTR 202; Miller [1975] 2
All ER 974.

A court may in certain circumstances disqualify a person from
holding or obtaining a driving licence even though that person is
not physically before the court. As confirmed in R v G [2006] EWCA
Crim 819.

IMPLICATIONS FOR THE NEW OFFENCES THAT WE ARE RECOMMENDING

5.110 It might be thought that if the principal offence that D is
encouraging or assisting is a constructive or strict liability
offence, D’s fault should merely have to mirror that of the
principal offender. However, it has to be remembered that D’s
liability is inchoate. D is liable not for committing a principal
offence but for encouraging or assisting the commission of a
principal offence which in fact may never be committed:

Example 5Y D asks P to drive D’s wife, who is in labour, to the
local hospital. P says that he is too busy, However, D offers to
pay P £100 and P agrees to do so. P is unaware that the previous
day, a court had disqualified him from holding or obtaining a
driving licence. Likewise, D is unaware that P has been
disqualified. Just as P is about to leave to drive D’s wife to the
hospital, an ambulance arrives and takes D’s wife to hospital. If P
had driven D’s wife to hospital, he, despite being unaware that he
was disqualified, would have committed the offence of driving while
disqualified because it is a strict liability offence.

5.111 We believe that the law would be too severe if, in example
5Y, D could be convicted of encouraging or assisting the offence of
driving while disqualified. We acknowledge that it might be thought
that this treats D more favourably than the prospective principal
offender, P. However, as a general rule, P is in a better position
to appreciate the nature of the risk that he is taking in
committing the conduct element.

5.112 Accordingly, we believe that for all offences that include a
circumstance or consequence element, or both, D must be at fault in
relation to the consequence or circumstance even if the offence is
a constructive or strict liability offence. However, to say that D
must be at fault in relation to those elements leaves unanswered
the question: what is meant by “fault”?

In example 5Y, P can hardly complain. He would have been notified
by the court that the court was considering disqualifying him and
he would have had the opportunity to attend court to make
representations as to why he should not be disqualified –
Magistrates’ Courts Act 1980, s 11(4).

THE MEANING OF FAULT IN RELATION TO CIRCUMSTANCES AND CONSEQUENCES

Substantive offences

5.113 The criminal law recognises numerous fault elements. They
include intention, recklessness, maliciousness, negligence,
knowledge, belief and suspicion. Different principal offences have
different fault elements. Most offences require that the principal
offender must deliberately, as opposed to inadvertently, commit the
proscribed conduct. However, there is a great deal of variation
when it comes to the circumstance and consequence elements. In
order to be convicted of some offences, the principal offender must
intend to bring about the proscribed consequence. However, for
other offences it suffices if he or she foresaw a risk that the
consequence would occur. Some offences require that the principal
offender perpetrates the proscribed conduct knowing or believing
that he or she is doing so in the circumstances defined by the
offence. For other offences, it suffices if the principal offender
perpetrates the proscribed conduct while aware of a risk that he or
she is doing so in those circumstances.

Inchoate offences

5.114 Until comparatively recently, the inchoate offences of
attempt, conspiracy and incitement have required a high degree of
fault on the part of an accused in relation to all the elements of
the principal offence.

If D and P conspire to commit a principal offence that has a
circumstance element, they must each “intend or know that that ...
circumstance shall or will exist at the time when the conduct
constituting the principal offence is to take place”.

The House of Lords has confirmed that D and P must intend or know
that the circumstance shall or will exist even though each could be
convicted of committing the principal offence if they merely
suspected that the circumstance element of the offence was
satisfied.

5.115 By contrast, in the context of attempt, the courts have
diluted the requisite fault element.

In Khan the Court of Appeal held that recklessness as to the
circumstance element sufficed.

In Attorney-General’s Reference (No 3 of 1992) the Court of Appeal
by implication held that that recklessness as to the consequence
element can ground liability in certain cases. Eg, causing grievous
bodily harm with intent contrary to Offences against the Person
Act, s 18. Eg, the offence of criminal damage contrary to Criminal
Damage Act 1971, s 1(1) - G [2003] UKHL 50; [2004] 1 AC 1034 126
Eg, the offence of dishonest handling contrary to the Theft Act, s
22 (1). 127 Eg, the offence of criminal damage contrary to the
Criminal Damage Act 1971, s 1(1). 128 Criminal Law Act 1977, s
1(2). Saik [2006] UKHL 18; [2006] 2 WLR 993. 130 [1990] 2 All ER
783. In so holding, the Court of Appeal reflected cl 49(2) of the
Law Commission’s Draft Criminal Code. 131 (1993) 98 Cr App R 383.

5.116 Whatever the merits of the current law in relation to
conspiracy and attempt, we believe that there are important
differences between attempt and conspiracy, on the one hand, and
encouraging or assisting crime, on the other.

When D1 and D2 conspire to commit an offence, they agree on a joint
criminal enterprise. Together, they engage in conduct that is, as
in the case of an attempt to commit a crime, designed to lead
eventually to the commission of an offence.

By way of contrast, in the case of encouraging or assisting crime,
D’s own conduct relates to the separate conduct of another person
who is to commit the offence.

That conduct is not agreed upon and does not necessarily involve
D’s future participation.

5.117 Therefore, there is a sense in which liability for
encouraging or assisting crime is at least “twice removed” from the
commission of the crime itself. It is inchoate liability in that
the principal offence need not be committed but, by way of contrast
with conspiracy and attempt, it also necessarily relates to the
separate conduct of another person. The fact that offences of
encouraging or assisting crime are “twice removed” from the
commission of the principal offence is what makes an
uncompromisingly narrow fault element essential.

CONCLUSIONS AND RECOMMENDATIONS

5.118 We recommend that if, in addition to a criminal act, a
circumstance element or a consequence element, or both, must be
proved for conviction of the principal offence, D, in order to be
convicted of the clause 1 or a clause 2 offence:

(1) must intend that the criminal act be done in those
circumstances or with those consequences; or

(2) must believe that, were the criminal act to be done, it would
be done in those circumstances or with those consequences.

5.119 The following example illustrates how the recommendations
would apply:

Example 5YY In return for payment, D lends P a baseball bat
believing that P is going to use it to inflict minor bodily harm on
V. P uses the bat to attack V and intentionally kills V. D is
guilty of encouraging or assisting the commission of assault
occasion actual bodily harm. D is not guilty of encouraging or
assisting murder because D did not believe that the criminal act of
hitting V with the bat would result in the death of V.

Clause 1(3)(a) of the Bill. For explanation, see Appendix A paras
A.31 to A.44. 133 Clauses 1(3)(b) and 2(4) of the Bill. For
explanation, see Appendix A paras A.45 to A.51. 134 Contrary to the
Offences against the Person Act 1861, s 47.

5.120 If, in example 5YY, D believed that the criminal act would
result in serious but not lethal harm to V, D would not be guilty
of encouraging or assisting murder. Instead, D would be guilty
either of encouraging or assisting the offence of causing grievous
bodily harm with intent or of encouraging or assisting the offence
of unlawfully and maliciously inflicting grievous bodily harm.
Which of the two offences D would be guilty of encouraging or
assisting would depend on whether or not D believed that P would
attack V intending to cause grievous bodily harm.

5.121 It is important to note that, although in order to be
convicted of the clause 1 offence, D must intend that the criminal
act be done, D does not have to intend that it be done in the
circumstances or with the consequences defined by the principal
offence. D has merely to believe that it will be done in the
circumstances or with the consequences:

Example 5Z
D, knowing that his son P is in debt to Z, urges P to commit a
burglary in order to clear the debt. D advises P to take a cosh and
to hit the security guard at the premises, V, over the head. D’s
intention is that V should be incapacitated but not that V should
suffer any harm. However, D believes that V will suffer injury,
albeit not serious. While on way to commit the burglary, P is
stopped by the police and searched. P tells the police what D had
told him to do. D’s intention was that the criminal act should be
done. In addition, D believed that, as a result of the criminal act
being done, V would suffer bodily harm. D has committed the offence
of intentionally encouraging or assisting the commission of the
offence of assault occasioning actual bodily harm.

Conditional intents and beliefs with regard to circumstances
5.122 At this point, we must address a possible complication:

Example 5ZZ
D gives P some money to give to V to persuade V to loan his car to
D and P for the afternoon. D says to P “if V is prepared to loan
the car, all well and good. If V will not lend it to you, just take
it”. In this example, D’s preference is for the car to be obtained
legally but, if that is not possible, D wishes P to take it anyway.
135 Contrary to the Offences against the Person Act 1861, s 18.
Contrary to the Offences against the Person Act 1861, s 20. 137 In
example 5ZZ, the principal offence is taking a motor vehicle
without the consent of the owner contrary to the Theft Act 1968, s
12(1). The circumstance element of the offence is the lack of the
owner’s consent.

5.123 In example 5ZZ, D would prefer the vehicle to be obtained
with V’s consent but has told P that, if consent is not
forthcoming, P should take it anyway. D’s attitude is that of a
person who is determined to have the use of V’s car come what may.
In as much as D envisages V’s car being taken without V’s consent,
D could not care whether the circumstance element of the offence is
or is not present.

5.124 We believe that D ought to be criminally liable if he or she
is prepared for a criminal act to be done not caring whether or not
the circumstances element of the offence is present. We believe
that clauses 1(2)(a) and 2(3)(a) as drafted capture such cases.

They require D to believe that if P were to do the criminal act P
would do it with the necessary fault. This covers not only the
situation where D believes that P will do the criminal act with the
necessary fault but also the case where D believes that P will do
the act with the necessary fault if P cannot do it fault free.

The wording of clauses 1(2)(a) and 2(3)(a) includes the implicit
conditional. The same analysis applies to clauses 1(3)(b) and 2(4).

5.125 We also believe that such cases are covered by clauses
1(2)(b) and 2(3)(b). Each clause is based upon the hypothetical
situation of D doing that which he or she intended to encourage or
assist P to do.

If D encourages P ************************ V and to do so even if V
does not consent, we believe that a jury would have little
difficulty in concluding that D’s state of mind was such that that
he would have raped V if he were in P’s shoes and V
******************************.

5.126 As it is based on a hypothetical doing by D of that which he
intended to encourage P to do, it matters not that D claims that he
would never himself actually have done the criminal act in
question. D encourages P ********************************** V
****************************. He stands in the hypothetical shoes
of P in the same way as he would if he had used an innocent P to
commit the offence.

PENALTIES

5.127 We recommend that for committing the clause 1 or a clause 2,
D should be liable:

(1) if the principal offence is murder, to imprisonment for life;
and

(2) in any other case, unless an enactment provides otherwise, to
any penalty for which D would be liable on conviction of the
principal offence.

(3) MODE OF TRIAL 5.128 We recommend that the mode of trial in the
case of the clause 1 or a clause 2 offence should be determined as
if D had been charged with the principal offence. Clause 12 of the
Bill.

PART 6 DEFENCES AND EXEMPTIONS

INTRODUCTION
6.1 In this Part we consider defences and exemptions from
liability. In the CP, the Commission’s approach to defences and
exemptions reflected the different fault elements of the two
inchoate offences that it was proposing. The fault element for
encouraging crime was intention that an offence should be committed
whereas that for assisting crime was knowledge or belief that an
offence would be committed.

6.2 Broadly, the Commission proposed that there should be no
defences and exemptions available to persons whose intention was
that the principal offence should be committed. It followed,
therefore, that defences and exemptions were to be denied to those
who encouraged the commission of an offence. By contrast, the
Commission proposed that some defences and exemptions should be
available to those who indifferently assisted the commission of an
offence.

6.3 As will become apparent, we are no longer of the view that the
availability of defences should depend on whether D provides
encouragement as opposed to assistance. We begin by setting out
those defences and exemptions that we recommend should be
available. We then go on to set out our reasons for rejecting other
defences that were highlighted for consideration in the CP.

DEFENCES AND EXEMPTIONS THAT WE ARE RECOMMENDING

Acting to prevent the commission of offences or to prevent or limit
harm

6.4 In Part 3 we said that there is uncertainty as to whether
acting for the purposes of law enforcement can be a defence to
preliminary offences such as incitement and conspiracy. Frustrating
the commission of crime can take one of three forms:

(1) encouraging or assisting the commission of an offence but with
the purpose of preventing its commission. An example would be where
a police informer or undercover officer does something to encourage
or assist the commission of a robbery but the purpose is to ensure
that it is not committed;

(2) encouraging or assisting the commission of an offence not in
order to prevent its commission but in order to reduce its harmful
effects; 141 139 Clause 9 of the Bill. 140 Paras 3.50 to 3.54. 141
Clarke (1984) 80 Cr App R 344 is an illustration. D participated in
a burglary but claimed to have done so in order to prevent the
other participants escaping and to ensure that the property would
be recovered.

(3) encouraging the commission or attempted commission of an
offence in order to prevent the commission of future offences, for
example an undercover officer who acts in a way designed to
encourage a hitherto undetected serial rapist to attack her.

The proposals in the CP 6.5 In the CP, the Commission proposed that
there should be a defence of law enforcement to its proposed
offence of assisting crime. It proposed that the defence should be
available to any individual whose “overall course of conduct” was
directed towards frustrating the commission of the principal
offence.

The Commission invited comment on whether the defence should extend
to incidental offences, for example a theft committed in order to
obtain property to be used in a robbery.

Responses to the proposals in the CP
6.6 The majority of respondents who addressed the issue thought
that there should be a defence of acting in order to prevent crime.
Of the majority, some felt that the assister should be exonerated
only for the offence that he or she intended to frustrate but not
for an incidental offence. Some respondents expressed misgivings
about the defence being available to private citizens.

6.7 One respondent, while accepting that the defence should be wide
enough to exonerate those involved in undercover “sting”
operations, such as test purchases and “manna from heaven”
operations, thought that a criterion of “reasonableness” should be
built into the defence. Most respondents believed that D should
bear the burden of proving the defence.

Conclusions

6.8 We believe that in principle there should be a defence of
acting in order to prevent the commission of an offence or in order
to prevent or limit harm. We do so for two reasons:

(1) it is in the public interest that acts be done in order to
prevent crime or to prevent or limit the occurrence of harm.
Accordingly, an act of encouragement or assistance, the overall
purpose of which is to prevent crime or to prevent or limit harm,
is justified because of its value to society;

(2) those whose overall purpose in encouraging or assisting the
commission of an offence is to prevent crime or to prevent or limit
harm are acting as good citizens and should not be punished for
doing so; 142 Para 4.125.

An example of a test purchase is a child under the age of 16, and
under the control of the local authority trading standards
department, going into a shop and buying a lottery ticket. A “manna
from heaven” operation is one where police, in the course of an
investigation into suspected criminal behaviour, provide an
opportunity for anybody to commit the criminal behaviour that they
are investigating, eg the police expose cartons of cigarettes,
apparently unguarded, in the back of a van parked in the street –
Williams v DPP (1993) 98 Cr App R 209.

SHOULD THOSE TO WHOM THE DEFENCE IS AVAILABLE BE RESTRICTED?

6.9 At one stage, we thought that the defence should only be
available to formal and informal agents of the state - police and
customs officers, local authority trading standards officers,
agents working under their control and civilian informers subject
to regulation and supervision by the relevant law enforcement
authority. We thought that the arguments in favour of such a
restriction were:

(1) law enforcement is primarily the responsibility of the state.
Private citizens and the media should be discouraged from
participating in offences on their own initiative even if the
motive is to prevent crime. Important considerations are the safety
of the citizen, the dangers of private vendettas being pursued and
private acts hindering the activities of the state’s law
enforcement agencies.

(2) there should be external controls in order to ensure that D’s
involvement is proportionate to the overall aim of an operation to
prevent crime;

(3) to obviate the possibility of the defence being raised by
criminals who might prepare the necessary groundwork for a false
defence of crime prevention prior to and during their involvement
in a criminal enterprise.

6.10 At the same time, we recognised that the defence would be open
to abuse even if restricted to agents of the state. Test purchases
can be made when there are no reasonable grounds for suspecting or
believing that a trader is flouting the law. Police informers
sometimes have their own agenda and it may sometimes be unclear
whether their actions have been properly supervised and controlled.

6.11 In addition, we now believe that it would be exceedingly
difficult to define exhaustively the persons who would be eligible
to plead the defence. It is vital that the question of who can rely
on the defence does not turn on technicalities. Accordingly, we are
not recommending that the defence should be limited to particular
individuals or categories.

SHOULD INCIDENTAL OFFENCES BE EXCLUDED FROM THE SCOPE OF THE
DEFENCE?

6.12 We believe that the defence should exonerate D for encouraging
or assisting any offence provided D’s overall purpose was to
prevent the commission of crime or to prevent harm and provided
that D acted reasonably in the circumstances:

Example 6A P is a member of a gang planning an armed robbery. D,
who has infiltrated the gang, tells P where to steal a lorry which
can be used in the robbery. D does so in order to maintain
credibility with members of the gang. D’s aim is to prevent the
commission of the robbery.

Admittedly, D’s assistance was not for the purpose of preventing P
to commit theft. However, that ought not to preclude D pleading the
defence to a charge of encouraging or assisting theft. D ought to
be able to say that what he or she did was in order to frustrate
the commission of another offence. The critical issue is the
reasonableness of D’s conduct. Was it reasonable in the
circumstances to assist the commission of offence x in order to
prevent the commission of offence y?

A REQUIREMENT OF ACTING REASONABLY

6.13 In the CP, the Commission said: ... it should be enough that
[D] believes that his act of assistance is necessary as part of the
implementation of his purpose of preventing the commission of the
principal crime. However, we now believe that in order to rely on
the defence, it must have been reasonable in the circumstances for
D to have acted as he or she did.

6.14 This is to ensure that D can only successfully plead the
defence if what D did was proportionate to the seriousness of the
offence or harm that D was trying to prevent or limit. It is not in
the public interest for D to encourage or assist the commission of
an offence if the offence in question is more serious than the
offence that D is seeking to prevent.

In this regard, the requirement of reasonableness is a restraining
principle and will operate as a curb on those who might think that
any conduct is justifiable in the public interest.

For example, the defence should not be available if D encourages P
to shoot V when V is stealing some vegetables from P’s allotment,
even if D believes that it is necessary to shoot V in order to
prevent V stealing the vegetables.

6.15 D should bear the legal burden of proving the defence on a
balance of probabilities. We do not believe that placing the legal
burden on D is incompatible with the presumption of innocence
contained in Article 6(2) of the European Convention on Human
Rights and Fundamental Freedoms. This is because the prosecution
will still have had to prove the elements of the offence and if D
raises the defence he or she is likely to be the only or the
primary source of information as to his or her purpose.

Recommendation
6.16 We recommend that it should be a defence to a charge under
clause 1 or clause 2 if D proves that:

(1) he or she acted for the purpose of:

(a) preventing the commission of either the offence that he or she
was encouraging or assisting or another offence; or

(b) to prevent or limit the occurrence of harm; 145 and 144 Para
4.126 (emphasis added). 145 Clause 4(1)(a) of the Bill. For
explanation, see Appendix A paras A.57 to A.60.

(2) it was reasonable to act as D did in the circumstances.

Implications for conspiracy

6.17 It is beyond the scope of this report to make formal
recommendations in relation to the inchoate offence of conspiracy.
However, we think that it would be anomalous if there were a
defence of crime prevention to encouraging or assisting the
commission of an offence but not to conspiring to commit an
offence.

Accordingly, we suggest that consideration be given to reversing
the decision of the Privy Council in Yip Chiu-Cheung v R by way of
a statutory defence of crime prevention in cases of conspiracy.

A defence of acting reasonably
6.18 We acknowledge that the clause 2(1) offence raises the spectre
of D being liable for conduct consisting of normal and commonplace
activities or, more broadly, activities that might be thought to be
within D’s rights to engage in:

Example 6B
D is driving at 70 miles per hour in the outside lane of a
motorway. P, driving faster, comes up behind D. D pulls over to let
P overtake. D, although not intending that P should continue
speeding, knows that pulling over will assist P to continue
speeding.

6.19 We believe that there should be a defence which will prevent D
being held liable for acts which, in the circumstances, D could
reasonably have expected to be able to engage in free from the
taint of criminality.

In other words, it ought to be open to D to say that his or her
conduct was reasonable in the circumstances.

6.20 We are reinforced in this view by the fact that the criminal
law has in other contexts recognised defences based on acceptable
conduct, that is conduct that would, by virtue of its very
ordinariness, not be regarded by most people as criminal.

Thus, in the context of assault and battery, there is a defence of
acceptable conduct that prevents D being criminally liable for
assaulting P by clapping P on the back as a congratulatory gesture.
D is not criminally liable because his or her conduct takes the
form of “physical conduct which is generally acceptable in the
ordinary conduct of daily life”. Clause 4(1)(b) of the Bill. [1995]
1 AC.

For a further example, see example 1K in Part 1 para 1.31. Another
example would be a person who locks his or her door to prevent V
seeking refuge in D’s house from a gang intent on assaulting V. 149
Collins v Wilcock [1984] 1 WLR, 1172, 1174 by Lord Goff.

6.21 Another context is the Protection from Harassment Act 1997
(“the 1997 Act”). While harassment can be very serious, it may also
take place in a context in which it is acceptable conduct, for
example D continually asking his or her neighbour to turn down the
volume of the music that the neighbour is constantly playing
loudly.

Accordingly, section 1(3)(c) of the 1997 Act provides that D is not
guilty of harassment if “in the particular circumstances the
pursuit of the conduct was reasonable”.

6.22 A defence of acting reasonably in the circumstances would
operate as a substantive and independent basis for acquittal. It
would enable a jury to balance D’s claim that he should be regarded
as within his rights to act as he did against, amongst other
things, the seriousness of the offence that D believes will occur
as a result of providing the encouragement or assistance. It is
true that the responses of different courts and juries on the issue
of reasonableness may be unpredictable. However, we are not aware
that similar defences have caused undue difficulties for juries and
magistrates.

6.23 We acknowledge that a reasonableness defence has the potential
for operating in an unfettered way. We would not wish the defence
to result in unmeritorious acquittals.

Accordingly, it should be a requirement of the defence that D acted
reasonably in the circumstances that he or she knew or reasonably
believed existed:

Example 6C
D and P, who are acquaintances, are at an inn in an area where
there is no public transport. D has driven there and plans to stay
overnight. P, who D knows is disqualified from driving, was driven
there by X. After a row, X drives off. P approaches D and says that
the inn has received a phone call from P’s wife who is distraught
because their child has been seriously injured in an accident. D
asks P if D will drive P home. D says that he has had too much to
drink, as P well knows, but reluctantly agrees to give P the keys
to his car. Before P can drive off, he is spotted by policemen and
arrested on another matter. P’s wife had not rung the inn.

Under our recommendations, D must reasonably believe that P’s child
has been seriously injured and that P had no effective lawful means
of getting home. In deciding whether the beliefs were reasonably
held, a court would be entitled to take into account the measures
that were available to D for verifying P’s account and for
concluding that there were no effective lawful means open to P for
getting home.

If the court found that D’s beliefs were reasonably held, it would
then have to consider whether, in the light of those beliefs, D
acted reasonably in providing P with the means to drive while
disqualified.

6.24 Unlike the defence of acting to prevent the commission of an
offence or to prevent harm, we are not recommending that this
defence should be available to if it was D’s intention that P
should commit an offence with D’s encouragement or assistance.

6.25 As with the defence of acting to prevent the commission of an
offence or to prevent harm, the burden of proof should be on D to
prove all the elements of the defence on a balance of
probabilities.

Recommendation

6.26 We recommend that it should be a defence to a charge under
clause 2 if D proves that his or her conduct was reasonable in the
circumstances as he knew or reasonably believed them to be.

An exemption from liability in cases of protective offences The
common law
6.27 In Part 1, 152 we referred to the common law Tyrrell
exemption.

In Tyrrell P, ****************************************** It was
alleged that D had encouraged P to commit the offence. It was held
that D could not be convicted of committing the offence as an
accessory or of inciting the offence because the offence had been
enacted for the purpose of protecting a category of persons and D
fell within the category.

This was because the relevant statutory provision was “passed
****************************************”. According to Lord
Coleridge CJ, Parliament could not “have intended that
*****************************************************”. Para 6.15
above. 151 The defence is set out in cl 5 of the Bill. For
explanation, see Appendix A paras A.61 to A.63. 152 Para 1.33 above
153 [1894] 1 QB 710.

Contrary to the Criminal Law Amendment Act 1885, s 5. [1894] 1 QB
710, 712. 156 Above.

6.28 This suggests that the underlying principle is that where the
purpose of a statutory offence is to protect a category of persons,
no member of that category can be convicted of committing the
offence as a secondary party or of inciting its commission.

The principle has been applied in the context of incest, although
it is arguable that the basis of the offence was eugenic rather
than protectionist. The principle has also been applied where D, a
prostitute, was charged with being an accessory to her husband’s
offence of ************************. The offence existed in part
*************************** but that was not its only function. An
additional reason for the offence was to prevent fortunes being
made by those who ********************************** Act 2003

6.29 The ******************Act 2003 is largely silent on the
Tyrrell.
***********************************************************************************

Each offence *****************************.

Example 6D
D,****************************************************[1977] QB
868; Pickford [1995] 1 Cr App R 420. 158 Thus, the offence applied
to ***************************. See V. Bailey and S. Blackburn,
“The Punishment of Incest Act 1908: A Case Study in Law Creation”
[1979] Criminal Law Review 708; S. Wolfram “Eugenics and the
Punishment of Incest Act 1908” [1983] Criminal Law Review
*******************************************************************************
Act 2003. Instead, ************************ offences (ss 25-29) and
offen (ss 64-65). 159 Contrary to*************************** Act
1956, s 30. 160 Section 5. The offence
**************************************. The offence is punishable
by a maximum term of imprisonment for life.
*************************** .

6.30 P,******************************* P is not an accessory to
that offence because he can rely on the Tyrrell principle.

Example 6E
D, *************************************

6.31 Again, P is guilty ******************************* On the
other hand, there is no case where the courts have expressly held
that the exemption is only available to a person who is or would be
the victim of the principal offence.

6.32 It seems that Parliament’s understanding was that the Tyrrell
exemption is only available to those who are victims of the
principal offence. Section 8
**************************************:

Example 6F D, ******************************* .

Example 6G D, **************************************************.

6.33 ******************************* In both example 6F and example
6G D falls within that category. In the absence of any express
provision to the contrary, the offence under section 8 is subject
to the Tyrrell exemption. On the other hand, it is significant that
in enacting section 8, Parliament did not confine
*********************************. This suggests that Parliament
envisaged ************************* could be guilty of the offence.
This, in turn, suggests that Parliament assumed that the
availability of the Tyrrell exemption is dependent on whether D is
a victim or potential victim of the principal offence. 166 In other
words, Parliament’s intention was that, in example 6F, D should be
able to avail herself of the Tyrrell exemption, but not in example
6G. The proposals in the CP

6.34 In the CP, the Commission described the Tyrrell exemption as
being “of uncertain content, and uncertain effect”. In setting out
its provisional proposals for an inchoate offence of assisting
crime, the Commission said provisionally that the exemption should
be “stated much more widely than at present”. The Commission
believed that D ought not to be liable for assisting the commission
of a statutory offence if “his conduct is inevitably incidental to
its commission and that conduct is not made criminal by that
offence".

6.35 The fault element that the Commission was proposing for the
offence of assisting crime was “knowledge or belief” on the part of
D that P “is doing ... or will do ... acts that do or will involve
the commission of an offence by [P]; ...”.

Some assisters would not only satisfy the “knowledge or belief”
test but would also have the more culpable fault element of
intending that P should commit the offence with their assistance.

The Commission inclined to the view that the wider exemption of
“incidental involvement” should either not be available in such
cases or at least should be available only in a very limited number
of cases. It invited comment on what those cases might be.

If Parliament had legislated on the basis that the Tyrrell
exemption applied irrespective of whether D was a victim or
prospective victim of the principal offence, it would have
stipulated that the offence could only be committed by those aged
13 or over.

Para 2.88. Professor Glanville Williams had previously expressed
similar sentiments – “Victims and other exempt parties in crime”
(1990) 10 Legal Studies 245. Para 4.102. 169 Para 4.103. 170 Para
4.99(1)(a). 171 Para 4.139

6.36 The fault element that the Commission proposed for encouraging
crime was intention on D’s part that P should commit the principal
offence.

It proposed that as a general rule it would be “inappropriate to
extend the defence to an encourager”. However, it thought that
there might be cases, conspicuously *********************** , where
the victim “should be exculpated even though she has encouraged
rather than assisted in the commission of the offence”.

174 The Commission invited comment on what those offences might be.
Responses to the proposals in the CP. Amongst those respondents who
addressed the issue, the majority, with little or no elaboration,
agreed with the Commission’s proposal for a “more widely” stated
exemption. However, Professor Sir John Smith strongly disagreed,
describing the Commission’s proposal as “dangerously wide”:

If a licensee sells liquor to a constable on duty, I see every
reason why the constable should be guilty of [assisting] whether he
incited the offence or not. His conduct is inevitably incidental to
the commission of the offence, but the offence exists for the
protection of the public, not the constable ... .

The conduct of the recipient of controlled drugs is inevitably
incidental to the offence of supplying drugs to another; but if the
recipient is buying a ton of the stuff he must surely be guilty of
[assisting].

Conclusions
6.38 We now believe that the fact that D’s assistance is or will be
incidental to the commission of the principal offence should not in
itself be a reason for exonerating D. The correct approach is one
that is based on statutory interpretation. D should be exempt from
liability only if, in enacting the principal offence, it was
Parliament’s intention to afford protection to a particular
category of persons and D falls within that category.

6.39 However, we recognise that, when enacting an offence,
Parliament may have more than one objective. We do not think that
the exemption should be confined to encouraging or assisting the
commission of principal offences the only purpose of which is the
protection of a particular category of persons.

It should suffice that one reason for enacting the offence was to
protect a particular category of persons.

6.40 A more difficult issue is whether the exemption should be
confined to cases where D would be a “victim” were the principal
offence to be committed. Parliament when enacting an offence for
the protection of a category of persons does not usually
distinguish between different individuals within the category.
Instead, each person within the category is considered worthy of
protection irrespective of his or her individual traits: Para
4.163(1)(b). 173 Para 4.167. 174 Above.

Example 6H D, ********************* . D is not guilty
**********************.

6.41 In example 6H, it might be thought that there are two reasons
for concluding that D is a “victim”. First, if the offence were
committed, it would be committed against her. Secondly, she is a
“victim” because she is within the protected category and is
considered to be in need of protection from others and,
************************, from herself:

Example 6J D,***************************** By contrast, D is a
“victim” only because she is a person within the protected
category.

6.42 In example 6J, it might be thought that as V’s need for
protection is no greater than D’s, if V is able to rely on the
exemption, so too should D. However, by contrast:

Example 6K D, ********************************** D is to be
exonerated, it can only be because she is a member of the protected
category.

On balance, we do not believe that it would be right that she
should be exempt from liability merely on that basis. D is prepared
to encourage or assist the commission of an offence against a
vulnerable person.

We accept that V will not always be as vulnerable as V is in
example 6K. However, we believe that it would be very
unsatisfactory for D’s liability to depend on the extent of V’s
vulnerability, not least because the trial process would then
involve scrutiny of V’s character and previous behaviour. Contrary
to *************************** Act 2003, s 9.

6.43 There is no justification for confining the exemption to
***********. Parliament has created offences other than
************ for the protection of a particular category of
persons.

Thus, the Care Standards Act 2000 includes offences designed to
protect vulnerable adults residing in care homes. The Asylum and
Immigration (Treatment of Claimants, etc) Act 2004 contains
offences which are in part designed to protect people who are
trafficked for exploitation. The Gangmasters (Licensing) Act 2004
contains offences which are in part designed to protect certain
categories of workers.

Recommendation
6.44 We recommend that it should be a defence to a charge under
clause 1 or clause 2 if:

(1) the offence encouraged or assisted is one that exists wholly or
in part for the protection of a particular category of persons;

(2) D falls within the protected category;

(3) D is the person in respect of whom the offence encouraged or
assisted was committed or would have been had it had been
committed.

DEFENCES THAT WE ARE NOT RECOMMENDING

6.45 In the CP, the Commission identified a number of other
potential defences. It concluded that, apart from a defence of
withdrawal, none of them were appropriate if D’s intention was that
P should commit an offence.

However, the Commission did consider what defences, if any, should
be available to an indifferent assister.

Indifferent assistance in the course of employment

The proposals in the CP

6.46 The Commission provisionally rejected a blanket rule exempting
all assistance rendered in the course of employment. It thought
that such a rule would, for example, inappropriately exempt from
criminal liability the employed bodyguards of a violent
professional criminal.

6.47 Instead, the Commission distinguished indictable and summary
offences. It provisionally proposed that an employee, D, should not
be criminally liable for assisting his or her employer, or a third
party, to commit a summary offence provided that the assistance
took the form of acts done in the course of D’s employment.

Clause 6 of the Bill. For explanation, see Appendix A paras A.64 to
A.66. 177 Paras 4.138 and 4.166. 178 Para 4.107. 179 Para 4.108.

Responses to the proposal in the CP

6.48 The majority of those who considered the issue agreed that
there should be a defence limited to summary offences.

Conclusion
6.49 On balance, we believe that such a defence is neither
desirable nor necessary. First, there is no general principle that
obeying a superior’s unlawful orders is a defence to a crime.

We see no justification for creating an exception in the particular
case of employees.

Secondly, a distinction between indictable and summary offences
pays insufficient attention to the fact that some summary offences
involve wrongdoing that can lead to very serious consequences and
are punishable with imprisonment.

Thirdly, we are recommending an offence of acting reasonably in the
circumstances. The availability of that defence, irrespective of
whether the principal offence is indictable or summary, obviates
the need for a defence tailor-made for employees acting in the
course of their employment.

Indifferent assistance in the course of a business
6.50 In the CP, the Commission said that there were no legitimate
policy reasons for creating a special defence for an indifferent
assister whose facilitative act was done in the ordinary course of
a business.

Indeed the Commission thought that, above all others, business
suppliers should be deterred from providing the means by which an
offence could be committed.

The overwhelming number of respondents who commented on the issue
agreed with the Commission.

Conclusion
6.51 We remain convinced that such a defence is not justified.
Again, our view is reinforced by the availability of the defence of
acting reasonably in the circumstances.

The defence would be available to a trader who can prove that he or
she acted reasonably in the circumstances. Examples are driving
with excess alcohol or while unfit to drive through drink or drugs,
contrary to the Road Traffic Act 1988, s 5; assaulting a police
officer in the execution of his duty, contrary to the Police Act
1996, s 89 and threatening behaviour with intent to cause fear of
immediate unlawful violence, contrary to the Public Order Act 1986,
s 4. 181 Para 4.116.

Withdrawal
6.52 Withdrawal has long been recognised as a defence to secondary
liability. The main rationale for the defence is that an accessory
who voluntarily changes his or her mind before the principal
offence is committed or attempted is significantly less culpable
that an accessory who continues to support the commission of the
offence. An additional rationale for the defence is that
accessories should be provided with an incentive to withdraw.

6.53 By contrast, withdrawal has never been a defence to
incitement. Indeed, it might be thought to be anomalous if it were
a defence because incitement, being an inchoate offence,
crystallises at the moment the encouragement comes to the attention
of another person. In principle, any subsequent conduct on the part
of D is legally irrelevant.

6.54 However Professor Spencer has suggested that withdrawal should
be a defence because if D, prior to the principal offence being
committed or attempted, is in a position to try to prevent the
commission of the offence, he or she should be encouraged to do so.
185

The proposals in the CP

6.55 In the CP, the Commission proposed that withdrawal should be a
defence to both of the inchoate offences that it was proposing. In
the case of assisting crime, it said that the defence should be
available only if D took all reasonable steps to prevent the
commission of the principal offence.

In the case of encouraging, the Commission proposed that the
defence should be available if D, with a view to preventing the
commission of the principal offence, took all reasonable steps or
countermanded his or her previous encouragement.

Responses to the proposals in the CP
6.56 The majority of respondents who address the issue thought that
there should be a defence of withdrawal. Those who expressed
disagreement said that, given the nature of inchoate liability,
withdrawal should be relevant only to sentence.

Saunders and Archer (1576) 2 Plowd 473, 476. 183 Andrew Ashworth,
Commentary on O’Flaherty [2004] EWCA Crim 526 [2004] Criminal Law
Review 751, 752.

The fact that the withdrawal is voluntary does not necessarily mean
that the motive for withdrawing is honourable. This rationale
assumes that accessories are generally aware that withdrawal is a
defence.

“Trying to help another person commit an offence” in P Smith (ed)
Essays in Honour of JC Smith (1987) 148, 160. 186 Para 4.135. 187
Para 4.169.

Conclusion
6.57 We are not persuaded that there should be a defence of
withdrawal to the offences that we are recommending. The
availability of the defence would be logically indefensible. The
arguments that have been advanced in support of the defence focus
on D doing something to nullify the effect of his or her previous
encouragement or assistance.

However, inchoate liability is not dependent on D’s conduct having
any effect on P. D is liable even if his or her conduct has no
effect on P and there was never any prospect of P committing the
principal offence.

6.58 If it is logically indefensible to extend the defence to
inchoate offences, are there other considerations that outweigh the
objection founded upon logic?

In the CP, the Commission referred to the “the social value of
encouraging the reversal of [D’s] acts of assistance”. However
Professor K J M Smith has questioned the Commission’s assumption
that D will be aware of the defence and would, therefore, be
capable of being influenced by its availability. 1

More recently, Profesor Ashworth has observed that “... the
language of incentives is only apposite if people ... are aware of
the legal rule”. We believe that providing a providing a defence of
withdrawal would have at best a marginal effect in encouraging
people to reverse their acts of encouragement or assistance.

Impossibility The proposals in the CP
6.59 In the CP, the Commission provisionally concluded that the
defence should not be available to either of the offences that it
was proposing. It thought that D’s moral culpability was unaffected
by the impossibility, unknown to D, of P committing the principal
offence.

Responses to the proposals in the CP
6.60 The overwhelming majority of respondents who commented on the
issue thought that impossibility should not be a defence to
inchoate offences of encouraging or assisting crime.

Conclusion
6.61 We believe that impossibility should not be a defence to the
new offences that we are recommending. D’s state of mind and,
therefore his or her culpability, is unaffected by the unknown
impossibility of the principal offence being committed. Further, if
D can be liable notwithstanding that, contrary to D’s belief, P
never intends to commit the principal offence, it would be
illogical if D was able to plead that it would have been impossible
to commit the principal offence.

Para 4.133. 189 “The Law Commission Consultation Paper on
Complicity: (1) A Blueprint for Rationalism” [1994] Criminal Law
Review 239, 248. 190 Commentary on O’Flaherty [2004] EWCA Crim 526
in [2004] Criminal Law Review 751, 752. 191 Paras 4.174 to 4.176.

6.62 We do not believe that it is necessary for the Bill to include
a clause expressly addressing the issue. In Part 5, we explained
that D’s liability is in relation to an abstract and not a
particular principal offence.

In order to be convicted of the new offences, D must do an act that
is capable of encouraging or assisting the doing of a criminal act.
“Criminal act” refers to no more than the conduct element of the
principal offence.

If D gives P a weapon, D has done an act capable of assisting the
doing of the criminal act of a number of different offences against
the person. D’s liability will turn on whether he or she intended
or expected that P would use the weapon to attack another human
being and, if so, with what consequences.

6.63 Accordingly, if D, in return for payment, provides P with a
weapon believing that P will use it to attack V1 (intending to kill
V1), D is guilty of assisting murder irrespective of whether P uses
the weapon to attack anyone.

Were P to attack and murder V2, instead of V1, D would be equally
guilty of encouraging or assisting murder. If P attacked V2 because
V1 was already dead at the time that D provided the weapon, D would
still be guilty of encouraging or assisting murder.

It may have been impossible for V1 to be murdered but, nonetheless,
D had done an act capable of encouraging or assisting the conduct
element of murder, namely an attack on any human being.

Para 5.13 above.

PART 7 INFINITE INCHOATE LIABILITY AND RELATED ISSUES

INTRODUCTION

7.1 In this Part, we consider a particular aspect of an issue
which, while not unique to inchoate offences, has a heightened
significance in the context of inchoate liability. The issue is the
over-extension of criminal liability.

Hitherto, we have described our scheme of inchoate liability by
reference to the paradigm case: D encouraging or assisting P to
commit an offence (“the principal offence”). In the paradigm case,
D’s conduct is only one step removed from the principal offence.
However, that will not always be the case:

Example 7A D, knowing that P is planning to act as X’s getaway
driver in a robbery, lends a car to P so that P can provide the
assistance to X. Example 7B D, knowing that P intends to distribute
a leaflet encouraging X to commit a racially motivated assault,
provides P with the means of producing the leaflets.

Example 7C D encourages P to encourage X to rape V. At common law,
if X commits the robbery, the assault and the *********
respectively, both D and P will be accessories to and guilty of the
principal offence. The doctrine of secondary liability does not
exonerate D merely because his or her conduct was more than one
step removed from the commission of the principal offence.

7.2 However, in each of the three examples, X may not commit the
principal offence. If so, at common law the issue of D’s liability
only arises in example 7C. In examples 7A and 7B, D would not be
liable because D’s contribution consists of assistance and at
common law there is no inchoate liability for assisting the
commission of an offence.

1 By contrast, in example 7C, D’s contribution consists of
encouragement. D would be criminally liable because the common law
recognises not only an offence of incitement but also an offence of
incitement to incite.

2 D is guilty of inciting P to incite *********. As with secondary
liability, D is not exonerated merely because his or her
encouragement is more than one step removed from the principal
offence.

7.3 The approach of the common law in recognising an offence of
incitement to incite is defensible. The inchoate offences of
attempt, conspiracy and incitement punish conduct not because it is
harmful in itself but because, by seeking to encourage or assist
the commission of an offence, it enhances the prospects of harmful
consequences occurring. They are offences which necessarily involve
conduct that is one step removed from the commission of the
principal offence. Logically, there is no reason why inchoate
liability should not attach to conduct that is two steps removed.
If D can be liable for encouraging P to commit an offence, why
should D not be liable for encouraging P to encourage X to commit
an offence? Further, if D can be liable for conduct that is two
steps removed, why should D not be liable for conduct that is three
or more steps removed? In logic and in principle, there is no
impediment to an endless chain and almost infinite inchoate
liability.

7.4 Likewise, in logic and in principle, it ought to be permissible
to base criminal liability on a combination of different inchoate
offences:

Example 7D
D1 and D2 are rival drug dealers who are increasingly concerned
about the activities of another rival, V. They wish to eliminate V
but are anxious to distance themselves from the murder. They agree
that they will encourage P, who they know has his or her own
reasons for eliminating V, to murder V. They meet with P and
encourage P to murder V. If P murders V, D1 and D2 will be
accessories to and guilty of murder. Should P not even attempt to
murder V, D1 and D2 are nevertheless guilty of conspiracy to incite
murder. 3 1 However, under the scheme that we are recommending, the
issue of D’s liability in examples 7A and 7B would arise. 2 Sirat
(1985) 83 Cr App R 41. 3 Criminal Law Act 1977, s 1(1) which
preserved the common law.

7.5 However, there is a strong argument against both infinite
inchoate liability and liability based on combining different
inchoate offences. It is that such liability represents an
unlimited and unwarranted extension of the criminal law. It allows
D, because of potentially harmful consequences that may flow if P
does commit the principal offence, to be criminally liable on the
basis of conduct that is very remote from the prospective principal
offence and consequent harm. On this view, the further removed and,
therefore, the more remote D’s conduct is from the prospective
principal offence, the more cautious the law should be before
imposing criminal liability. Further, encouraging or assisting the
commission of an offence is by its very nature more remote from the
prospective principal offence than simply conspiring or attempting
to commit it. This is because whether or not the principal offence
is ultimately committed depends on the actions of the person
encouraged or assisted. In contrast, in cases of conspiracy and
attempt, it is the actions of the conspirators and the person
trying to commit the principal offence which determine whether the
prospective principal offence is committed.

THE CURRENT LAW

7.6 The current law, a mixture of common law and sporadic statutory
provisions, is an incoherent and confusing muddle: (1) it is not an
offence for D to assist P to assist or encourage X to murder V or
for D to incite P to assist X to murder V 4 but it is an offence
for D to incite P to incite X to murder V; 5 (2) it is not an
offence for D to incite X and P to conspire to murder V. 6 It is,
however an offence for D and P to conspire to incite X to murder V;
7 (3) it is an offence for D to incite P to attempt to murder V and
for D to attempt to incite P to murder V. 8 However, it is not an
offence for D to attempt to conspire with P to murder V; 9 (4) it
is not an offence for D to attempt to commit an offence as an
accessory. 10 It is unclear whether it is an offence for D to
incite P to commit an offence as an accessory. 11 4 Unless, in each
case, X murders or attempts to murder V in which case D and P are
accessories to and guilty of murder or attempted murder. 5 Sirat
(1985) 83 Cr App R 41. 6 Criminal Law Act 1977, s 5(7). 7 Criminal
Law Act, s 1(1). In its Report on Conspiracy and Criminal Law
Reform (1976) Law Com No 76, the Commission had expressly said
(para 1.44) that an offence of conspiracy to incite was justified.
8 Banks and Banks (1873) 12 Cox CC 393; Ransford (1874) 13 Cox CC
9, 16 to 17. 9 Criminal Attempts Act 1981, s 1(4)(a). Again, it is
right to say that in Inchoate Offences:

Conspiracy, Attempt and Incitement (1973) Law Commission Working
Paper No 50, the Commission expressed (para 44) the provisional
view that an offence of attempt to commit conspiracy could not be
justified. The Commission confirmed its view in Attempt, and
Impossibility in relation to Attempt, Conspiracy and Incitement
(1980) Law Com No 102 para 2.122.

THE PROPOSALS IN THE CP

7.7 In the CP, the Commission’s provisional conclusion was that
each of the two new inchoate offences that it was proposing,
encouraging crime and assisting crime, should not be able to be
committed in respect of any inchoate offence, including the new
offences themselves. Its reason was that D’s conduct would be “too
remote from the commission of the principal crime for it to be
justified to pursue him”. The Commission drew no distinction
between encouraging crime and assisting crime despite the fact that
the fault element it was proposing for the former was narrower than
that for the latter.

7.8 Conversely, the Commission thought that, if the law of
secondary liability was put on an inchoate basis, there was no
obvious reason of policy to prevent D being liable for conspiring
to encourage crime or conspiring to assist crime and for attempting
to encourage crime or attempting to assist crime.

Responses to the proposals in the CP

7.9 The overwhelming majority of respondents who considered the
issue agreed with the Commission that it should not be possible to
encourage or assist any inchoate offence. Respondents were
concerned that criminal liability should not be extended too far
and that there had to be limits to the scope of inchoate liability.
A smaller but significant majority agreed that there should be
liability for conspiring and attempting to encourage or assist the
commission of an offence.

CONCLUSIONS

Committing the clause 1 offence or a clause 2 offence by
encouraging or assisting another person to commit those offences

7.10 It has to be borne in mind that D satisfies the conduct
element of both the clause 1 offence and the clause 2 offence by
merely doing an act that is capable of encouraging or assisting.
Further, even in cases where D’s encouragement or assistance is
only two steps removed from the prospective principal offence, P
may never act upon D’s encouragement or assistance and, in turn, X
may never act upon P’s encouragement or assistance. We think that
these are important considerations for the purposes of determining
the circumstances in which D should incur liability for encouraging
or assisting P to encourage or assist X to commit an offence.

Criminal Attempts Act 1981, s 1(4)(d). An example would be D
attempting, but failing, to hire a getaway car for use in a robbery
that P goes on to commit without any assistance from D. The
Commission in Attempt, and Impossibility in relation to Attempt,
Conspiracy and Incitement (1976) Law Com No 76 recommended (para
2.123) that an attempt to aid, abet, counsel or procure the
commission of an offence should not be an offence. See Part 3 paras
3.39 to 3.43 above. 12 Para 4.184. 13 Para 4.183. 14 Para 4.186.
7.11

Our recommendations build on the common law in relation to
incitement. The common law recognises an offence of incitement to
incite. In our view, it is right to do so. Although it is not
entirely free from doubt, the preferred view is that in order to be
guilty of incitement, D must intend that the principal offence is
committed (or, at least, that P should be encouraged to commit it).
Accordingly, D can only be guilty of inciting P to incite X to
murder V if it was D’s intention that P should incite X (or that P
should be encouraged to incite X). We believe that is a
sufficiently stringent requirement to justify D incurring criminal
liability for conduct that is more than one step removed from the
principal offence.

7.12 The new offences that we are recommending, like those proposed
by the Commission in the CP, have different fault elements. The
clause 1 offence requires that D must intend to encourage or assist
the doing of a criminal act. In line with the common law of
incitement, we believe that in cases where D encourages or assists
P intending that P should encourage or assist X to commit an
offence, D ought to be liable. The fact that D’s act is a step
further removed from the principal offence should not, given D’s
highly culpable state of mind, be a bar to liability in such cases.
Further, given D’s culpable state of mind, D ought to be liable
irrespective of how many steps his or her conduct is removed from
the principal offence.

7.13 On the other hand, the clause 2(1) and 2(2) offences only
require D to believe that P will commit a criminal act and that D’s
act will encourage or assist P to commit a criminal act. In the
light of the considerations to which we have just referred, we
believe that it would be an over-extension of criminal liability if
D were to be criminally liable for the clause 2 offences in cases
where he or she has encouraged or assisted P to encourage or assist
X.

7.14 In cases where D does encourage or assist P intending that P
should encourage or assist X, P may or may not intend that X should
commit the principal offence:

Example 7E
D encourages P to hire X to murder V who has been having an affair
with P’s wife. Example 7F P tells D that, in return for a
substantial payment, he is contemplating selling a firearm to X
although he believes that X intends to use it to kill V. D, who
hates V, urges P to provide the firearm to X. In example 7E, if P
were to encourage X, he would do so with the intention that X
should murder V. By contrast, in example 7F, were P to sell the
firearm to X, he would do so for the purpose of making a profit but
without intending that X should murder V. Sirat (1985) 83 Cr App R
41. See para 3.45 above.

7.15 We believe that in each example D ought to be liable. It is
D’s state of mind that is critical. If it is D’s intention that P
should encourage or assist X, his or her conduct should not be
considered too remote from the principal offence merely because,
were P to encourage or assist X, P would not intend X to commit the
principal offence.

Recommendation

7.16 We recommend that D may commit the clause 1 offence but not a
clause 2 offence by: (1) doing an act capable of encouraging or
assisting P to do an act capable of encouraging or assisting X to
do a criminal act , and (2) intending that P should do, or be
encouraged to do, the act. 17

7.17 If D encourages or assists P to encourage or assist X to
commit an offence, D is encouraging or assisting P to do an act
which, were P to do it and were X to commit the offence, would
render P an accessory to the offence. In Part 3, we referred to the
uncertainty that exists at common law as to whether D can be
convicted in such circumstances of not merely incitement to incite
but of incitement to commit the principal offence:

Example 7G
D encourages P to encourage X to rape V. X ignores P’s
encouragement. Although D is guilty of incitement to incite
**********, according to Bodin, D is not guilty of inciting *******
because had X raped V, P would have been guilty of the offence but
as an accessory and not as a principal offender.

7.18 Simester and Sullivan have criticised Bodin and we recognise
the force of the criticism. The effect of Bodin was to prevent D
incurring liability for incitement if D encouraged P to assist X to
commit an offence but X did not commit or attempt to commit the
offence. By contrast, however, under our recommendations it will be
possible to convict D of the clause 1 offence if he or she
encourages or assists P to commit the clause 1 offence or a clause
2 offence. There is no longer the gap which existed at common law.

17 Clause 2(5)(a) of the Bill gives effect to our recommendation by
providing that D cannot commit a clause 2 offence by doing an act
capable of encouraging X to do an act capable of encouraging or
assisting P to commit an offence.

Paras 3.39 to 3.43. 19 [1979] Criminal Law Review 176. 20 Para 3.43
above There was no problem if D encouraged P to encourage X. D was
guilty of incitement to incite - Sirat (1985) 83 Cr App R 41. 22 We
acknowledge that there is a gap if D encourages or assists P to
procure X to commit an offence which X does not commit. We will be
addressing this issue in our report on secondary liability.

Committing the clause 1 offence or a clause 2 offence by
encouraging or assisting others to conspire to commit an offence

7.19 Parliament’s decision in 1977 to abolish the offence of
incitement to commit conspiracy was not based on any Law Commission
recommendation. In abolishing the offence, Parliament may have
thought that at common law there was no offence of incitement to
incite an offence. In 1983, the Court of Appeal confirmed that
there was such an offence.

This led the Law Commission in 1989 to say that the law had
“reached the point of absurdity”: If the evidence shows that D
incited [X] to agree with [P] to wound G, section 5(7) of the
Criminal Law Act 1977 apparently prevents a charge against D of
incitement to conspire or of incitement to incite. But if D incites
[P] to incite [X] ... to wound G, D can be charged with incitement
to incite. Such an absurd distinction cannot be restated in a code.

The Commission recommended that conspiracy should cease to be
excluded from the scope of incitement.

7.20 Again, we believe that D should only be liable for encouraging
or assisting X and P to conspire to commit an offence if D intends
that X and P should form the conspiracy or that X and P should be
encouraged to do so:

Example 7H
D knows that X and P, normally rival drug dealers, are concerned
about the activities of V another drug dealer. D, who hates V,
makes a room available to X and P so that they can hatch a plot to
murder V. The meeting breaks up in acrimony without any agreement
having been reached. Under our recommendations, D has committed the
clause 1 offence because D has done an act capable of encouraging
or assisting X and P to conspire to murder intending that they
should commit the offence of conspiracy to murder. However, D would
not commit the clause 2(1) offence if, purely for financial gain, D
hired the room to X and P believing that D and P wanted the room in
order to negotiate an agreement to murder V.

Recommendation 7.21 We recommend that D may commit the clause 1
offence but not a clause 2 offence by: 23 Criminal Law Act 1977, s
5(7). 24 It is true that in Inchoate Offences: Conspiracy, Attempt
and Incitement (1973) Law Commission Working Paper No 50, the
Commission expressed (para 44) the provisional view that an offence
of incitement to commit conspiracy could not be justified. However,
in its Report on Conspiracy and Criminal Law Reform (1976) Law Com
No 76, the Commission made no recommendation.

Sirat (1985) 83 Cr App R 41. 26 Criminal Law: A Criminal Code for
England and Wales, vol 2 Commentary on Draft Criminal Code Bill
(1989) Law Com No 177, para 13.13. 27 Para 13.15.

(1) doing an act capable of encouraging or assisting X and P to
conspire to commit an offence; and

(2) intending that X and P should conspire, or be encouraged to
conspire, to commit the offence. Committing the clause 1 offence or
a clause 2 offence by encouraging or assisting another person to
attempt to commit an offence

7.22 At common law a charge of incitement to commit attempt is very
uncommon because D will nearly always be encouraging P to commit
the full offence. However, we provided an example in Part 3. 29
Although Parliament abolished the offence of incitement to commit
conspiracy, it left untouched the offence of incitement to commit
attempt.

7.23 The need for consistency of approach requires that D should be
liable for doing an act capable of encouraging or assisting P to
attempt to commit an offence only if it was his or her intention
that P should attempt to commit the offence. In practise, we find
it difficult to envisage a case where D would not have that
intention.

Recommendation

7.24 We recommend that D may commit the clause 1 offence but not a
clause 2 offence by: (1) doing an act capable of encouraging or
assisting P to attempt to commit an offence; and (2) intending that
P should attempt, or be encouraged to attempt, to commit the
offence. Para 10 of sch 1 Part 1 and para 18 of sch 1 Part 2 to the
Bill give effect to our recommendation by providing that D cannot
commit the clause 2 offences by doing an act capable of encouraging
or assisting conspiracy, whether a statutory conspiracy or a common
law conspiracy.

Example 3H

at para 3.38. 30 Para 11 of sch 1 Part 1 and para 19(1) of sch 1
Part 2 to the Bill give effect to our recommendation by providing
that D cannot commit a clause 2 offence by doing an act capable of
encouraging or assisting P to attempt to commit an offence.

Yours sincerely,

fred robinson

Dear Hilary Pook,

FIRST:

I refer you to a letter to Mrs Thomas the Ombudsman dated November
18th 2000

Re: Complaint against Sefton MBC

Thank you for your letter dated 14th December 2000 in which you
assert "You appear to want that information to enable you to take
legal action against either the Council or a third party", this is
not the case. My complaint is that the Council have consistently
lied to me over a prolonged period and in doing so seem to be
protecting the interest of others, this I believe to be
maladministration.

On the evidence I have obtained it is clear that the Council cannot
be responsible for any damage caused to my property, therefore your
assertion that I need to establish who demolished the nib wall to
take legal action against the Council, is not an issue that the
Council are liable for, and cannot legally be pursued for.

There is now another issue that I wish to make a complaint about,
this is that the Council have issued a 'claim' or 'potential claim'
to their insurers in regard to my property, based on information
known by then to be false. Again this complaint is one of
maladministration and even though it arises from events that
occurred in 1994 it is only since September 2000 I have been aware
of this issue. The facts are as follows.

On 7th February 2000 I wrote to Mr D Martin Leader of Sefton
Council to ask him for assistance with the problems I was
experiencing with Mr Barr of Sefton Council.... .He replied:-

8th March 2000 Ref: DM/LP/robinson ."Thank you for your letter
dated 7th February,2000. I apologise for the delay in responding. I
am currently investigating this matter and will respond more fully
in due course."

During the same time period and due to correspondence with my MP,
Mr Joe Benton, a meeting was suggested and eventually arranged by
Mr Martin Leader of the Council. As I wished for a record of the
proposed meeting I wrote to Mr P Williams Director of Technical
Services Sefton MBC. ...He replied:-

6th March 2000 Ref: PAW/RR/robinson5. "On the assumption that you
wish to resolve the matters and are prepared to attend a meeting
(with a representative if you wish) which will be accurately
minuted, I enclose a suggested agenda.

Mr Martin wrote to me that he had investigated my complaint about
Mr Barr but did not tell me of the results.... He wrote to me:-

5th April 2000 Ref: DM/LP/robinson1."I have now investigated this
matter and after discussion with officers of the Council we feel
that the best way forward would be for a meeting to take place with
myself,..."

18th April 2000. A meeting was held with myself, Mr P Williams.
Director of Technical Services Sefton MBC and Mr D Martin. Leader
of the Council, at Bootle Town Hall. At the outset of the meeting
Mr Martin told me there would be no minutes taken because he "did
not operate that way". As I was dealing with senior members of the
Council I decided to trust their integrity and continue with the
meeting. Very little of the written agenda received attention and
as Mr Martin had allocated only 1 hour to the meeting it ended
before any of my questions received satisfactory answers and the
major part of the written agenda was ignored. There was no attempt
to explain the conduct of Mr Barr. One thing that was agreed was
the Council would arrange for an independent structural survey of
my property to ascertain what damage, if any, may have been caused
by the removal of the nib wall which was the basis of my concerns.
I expressed concern to both Mr Williams and Mr Martin about time
limitation on any legal action I may take in the future. Mr
Williams advised me that to suspend time limitation I should write
a complaint to the Council and this would automatically stop time
limitation. On returning home I wrote a letter of complaint to the
Council as advised by Mr Williams .... In response I received the
following in a letter headed." Demolition of Nib Wall and alleged
Damage to Your Property"

26th April 2000 Ref:PAW/RR/rob2 ."I acknowledge the receipt of your
letter of 18th April 2000 which formally lodges your claim against
Sefton Council and Maritime Housing Association and their
contractors for damage , as yet unspecified, to your property at 19
Lime Grove Seaforth, arising from redevelopment work on the
adjacent land"

2nd May 2000 Ref: PAW/RR/rob3 Mr Williams wrote to me:-"...I have
held a meeting with Mr Quayle of Maritime Housing to discuss the
way forward proposed on the 18th April. Mr Quayle is agreeable to
the proposal to jointly fund with Sefton an independent survey and
evaluation of the nib walls contribution, if any, to the structural
integrity of your property".

Over the next few weeks the independent structural survey was
arranged. The proposed brief for the engineer was.

3rd May 2000 Ref: PAW/RR/rob4 -"to provide a report on whether the
nib wall formally adjacent to your gable provided significant
structural support to the building". --- "In order to do this the
appointed consultant will need to gain access to the enclosed strip
of land adjacent to your gable in order to examine the situation
and to carry out hand excavation to expose the foundations of the
nib wall".

On 8th May 2000, Ref:PAW/RR/rob5, Mr Williams replied to a letter
from me asking for confirmation to questions I had raised at our
meeting.

On 9th May 2000 Ref: PAW/RR/rob6, Mr Williams confirmed that the
consultant I had selected (from a list of four provided by the
Council) was acceptable.

On May 11th 2000,Paw/RR/rob7. Mr Williams sent me a copy of the
background and brief to the incident issued to the engineer, the
background states "At some time probably between 3rd March1994 and
September of that year" the nib wall was removed. The brief is
given as:-

"To determine from the information available and from site
inspection and investigation. Whether the wall could have provided
significant structural support to the gable wall of 19, Lime
Grove."

On May 19th 2000 a survey was conducted at my home by Mr Spencer of
JSA Consulting Engineers. This concluded that the removal of the
nib wall could have caused damage to my gable and recommended
monitoring to ascertain if movement was still occurring.

Since the report both the Council and their insurers have expressed
the view that the date of the demolition of the nib wall is
unknown. (Mr Williams gives "probably between 3rd March 1994" the
insurers give "17th January 1994 - 14th or 31st March 1994" [the
demolition contract date] )
As a result of contacting a free legal advice line provided by my
insurance company I had discovered that what Mr Williams had told
me at our meeting about the 6 year time limitation period being
suspended by me writing a ' complaint' to the Council, was a lie.
On May 20th 2000 I wrote to Mr D Martin Leader of the Council. On
13th June 2000 Ref: DM/LP/robinson3. He replied:- ---
"With regards to the points you raised about six the year
limitation period, my recollection of this was that Mr Williams
advised you to register your claim against the Council and other
parties in writing and by doing so, you would avoid the expiry of
the six year limitation period". ---
"My further recollections of the meeting was that you said you
would write to the Council with your complaints and that Mr
Williams would take the case up for you and the case would be
formally registered with the Council". ---
I wrote several times to Mr Martin for confirmation and
acknowledgement that what Mr Williams had told me, in regard to
time limitation being suspended by my complaining to the Council at
our meeting, was untrue.---
In the absence of Mr Martin to respond to a further letter from me
dated 14th August 2000, Councillor Dowd his deputy responded. He
advised I should seek legal advice. (I had already done so as was
known to their office) On 29th August 2000 I replied in detail to
Councillor Dowd who on 1st September 2000 'faxed' my letter to Mr
Williams at Technical Services asking him to "resolve" the issue of
time limitation. In a Letter dated 11th August (sent on 11th
September 2000) Mr Williams told Councillor Dowd. "I can confirm
that Mr Robinson's claim has been passed into the hands of our
insurers Royal Sun Alliance who are in correspondence with Mr
Robinson and it is they who will determine time limitation".---
On 8th September 2000 I received a letter of enquiry from Royal Sun
Alliance in regard to a claim I had made about an incident dated
17th January 1994 and asking me if I was going to represent myself
in this claim. As I had no knowledge of any incident or any claim
dated 17th January 1994 I wrote back to them asking for details. I
received no reply----0.
The one letter of inquiry received by me from the insurers can
hardly be described as 'correspondence' and I can only conclude
this was written to mislead Mr Dowd. ---
The Councils insurers have no more power to determine time
limitation than do the Council and therefore Mr Williams is
lying.---
On 12th September 2000 I wrote to GTB Demolition Ltd to ask for any
information they could provide about their demolition on the Kepler
Street site adjacent to my property.---
13th September 2000.. Letter from J T Law, GTB Demolition Co Ltd.
"In response to your letter of today, we can inform you that we did
not leave the site until Thursday 21st April 1994. Also there is no
way that we could have demolished the maisonettes and cleared the
site in two days".---
"We can tell you however that there were special instructions to
protect your property during the demolition, This included the nib
wall that abutted the gable wall. We most certainly did not
demolish it. I have spoken to our foreman today and he remembers
that the nib was still in place when we left".
N.B. This information has been passed to the Council and their
insurers.---
15th September 2000 letter from Mr Martin Ref:DM/LP/robinson7
asserting that my claim had been passed to the Councils insurers
who would, "...determine whether your claim is affected by time
limitation or not".---
On 24th September 2000 I wrote to E Smith at the Council's
insurance department to try to find out about the claim referrer to
by their insurers I specifically asked. "What was the claim about",
"When was it sent to your insurers" and "Do you have any other
current claims against the Council by me as of 25th September 2000"
--
On 25th September 2000 I wrote to Mr Williams for clarification of
his letter and assertions to Mr Dowd.---
26th September 2000 PAW/RR/ robinson10. Mr Williams wrote to me
asserting that my letter of 'complaint' dated 18th April 2000,
"Which clearly identifies that a claim has been lodged by you
against the Council and others, in relation to removal of a nib
wall and consequential damage to your property." Was in fact a
claim. He goes on to state he would "...ask the Director of
Finance, Insurance Section, to enquire as to the nature of any
pre-existing claim of 17 January 1994 and whether it has a bearing
on your claim of 18th April 2000".---
On 28th September 2000 I made a formal complaint to Mr Heywood,
Chief Executive of the Council.---
On 30th September 2000 I wrote to Mr Williams with a full
explanation of why I had written the letter of 18th April 2000 and
that he knew it was not, nor intended by me to be a claim .---
On 3rd October 2000 I wrote to The Land Registry and obtained the
following details on 6th October 2000.---
Property: Land at Kepler Street---
According to our records Maritime Housing Association Limited were
registered as proprietors of the above land on 21st January 1994.
---
4th October 2000 Ref: PAW/RR/robinson11 "...I am now leaving this
entire matter in the hands of our insurers.... I intend therefore
not to enter into any further direct correspondence with you which
may interfere with their handling of this matter" ---
On 6th October 2000 I wrote a response to Mr Williams outlining the
facts as I saw them and asking that he convey certain points to the
insurers.---
On 10th October 2000 REF: ARM/MC. A letter from Mr Moore, Director
of Development and Environmental Services, in respect of my
complaint against Mr Williams. "It is not my intention to invoke
any procedures against this officer..."---
I wrote to Mr Moore stating I didn't understand his assertion that
the matter of the insurance claim was complex, I also asked him to
have full details of the claim sent to me.---
12th October 2000 Ref: PAW/RR/robinson12 Letter from Mr Williams.
"As I am the subject of an investigation into my conduct arising
from your complaint, I cannot enter into correspondence with you on
this matter.---
13th October 2000 Ref: ARM/ES/MC. A letter from Mr Moore. He cites
a letter making a claim for damage to my property from my
solicitors, dated 26th January 1995, was related to problems with
damage to "your NIB wall" . ( the nib wall has never been my
property, this the Council are fully aware of) He also states a
further letter from my solicitors dated 29th November 1995 was a
claim.
Mr Moore then states "the case was re-opened in April 2000, when
you met with Mr Williams. He attempted to be helpful by asking you
to write in, so that we would be able to re-open the case with the
Councils insurance advisors. This is standard practice because it
is the responsibility of the claimant to pursue the claim. Your
letter of 18th April 2000 clearly states that you hold Sefton
Council, Maritime Housing Association and Fawley Construction
responsible for the damage"
.................................................................................................................................
I feel that the distortions of fact in this letter are such that I
have copied my reply dated, 16th October 2000, to Mr Moore below
..................................................................................................................................
On 21st January 1994 Maritime Housing became the owners of the site
at Kepler Street Seaforth, Title Number MS 351603.---
On 14th March 1994 Maritime Housing took possession of the site.---
On 8th May 2000. Mr Williams, Technical Services wrote to me. ---
"I indicated that the responsibility for the land would pass to
Maritime Housing upon transfer of the land, from 14th March 1994,
however in the light of the above any work of demolition which may
still have been underway will have been with their consent "---
Clearly the responsibility for the site was with Maritime Housing
who were the owners and in
possession of the site from 14th March 1994. The Council clearly
were acting with their consent.---
From the evidence I have it would appear that the Council took on a
duty of care in regard the nib wall during the demolition and from
14th March 1994. They had no responsibility to forward any claim to
their insurers as the nib wall was intact after demolition.---
13th September 2000.. Letter from J T Law, GTB Demolition Co
Ltd.---
In response to your letter of today, we can inform you that we did
not leave the site until Thursday 21st April 1994. Also there is no
way that we could have demolished the maisonettes and cleared the
site in two days.---
We can tell you however that there were special instructions to
protect your property during the demolition, This included the nib
wall that abutted the gable wall. We most certainly did not
demolish it. I have spoken to our foreman today and he remembers
that the nib was still in place when we left.---
In light of the above, and a more detailed letter to Mr Heywood at
Southport, it is still my belief that Mr Williams has issued a
claim to the insurers based on information known by the Council to
be false.---
If the claim by my solicitors was dated 26th January 1995, why was
the enquiry from the Councils insurers of 9th September 2000 in
regard to an incident dated 19th January 1994 sent to me?---
The claim of 29th November 1995 is and was no more valid then than
it is now and should have been returned to my solicitors with the
above information. I can see no reason why this was not carried
out.---
Your assertion that " The case was re-opened in April 2000, when
you met with Mr Williams" and that "He attempted to be helpful by
asking you to write in, so we would be able to re-open the case
with the Councils insurance advisors" is totally at odds with the
facts. There was no valid case or claim to re-open. ---
13th June 2000..Extract from a letter from Councillor Martin,
Leader of the Labour Group of Councillors.---
With regards to the points you raised about the six year limitation
period, my recollection of this was that Mr Williams advised you to
register your claim against the Council and other parties in
writing and by doing so, you would avoid the expire of the six year
limitation period. ---
My further recollections of the meeting was that you said you would
write to the Council with your complaints and that Mr Williams
would take the case up for you and the case would be formally
registered with the Council.---
As you can see the reason I wrote to the Council was to suspend
time limitation, What I wrote was a complaint not a claim. I have
since found that time limitation can not be suspended by the
Council.---
As a result of this complaint, I received from the Councils
insurers on 9th September 2000 notification of a claim dated 17th
January 1994. ---
Are you now telling me this claim is the claim sent to the Council
on 26th January 1995 and was re-opened by my letter of complaint to
Mr Williams, that was only written to suspend time limitation???---
I am constantly told this issue is complicated, is it your
intention to further complicate matters by introducing yet more
details which are not only inaccurate but untrue---
I await your reply and explanation of why, in light of the above,
you are not invoking any procedures against Mr Williams.
..................................................................................................................................
I then obtained copies of the letters written by my solicitors and
on 18th October wrote the following to Mr Moore.
........................................................................................................................
I have now seen the letters you stated as being the basis for the
claim re-opened by the Council and dated 17th January 1994.

The one dated 26th January is a 'without prejudice' letter which to
my understanding of the term means that it cannot be used to
influence further proceedings.---
26TH JANUARY 1995 .. Without prejudice letter to the Chief planning
Officer Sefton Council from Canter Levin & Berg my solicitors.---
The letter notes that I have been in touch with the Council. It
notes that there is further evidence of cracks and fractures in my
property which have worsened. It asks the Council if it is prepared
to come to an agreement with me to fund repair work.---
It ends. "We write without prejudice for the time being and look
forward to hearing from you. We would be happy to consider the
matter in conjunction with a discussion between your representative
and our surveyor".
It does not contain the word claim nor imply the threat of a claim
it is merely an invitation to have discussions to take matters
further in a non prejudicial manner.---
29th November 1995.. Letter to the Chief Planning Officer Sefton
Council from Canter Levin & Berg.---
The letter refers to correspondence from the Council on 17th
February 1995 to my solicitors Canter Levin & Berg.---
The gist of the letter is that the Council have passed the matter
back and forth between the Technical Department and the Planning
Department and the matter is not progressing. It then asks which
department of the Council is going to deal with this claim and
threatens legal action.---
This would indicate to me that there is no department of the
Council dealing with an unspecified claim which definitely did not
happen on 17th January 1994. Nor does it have anything to do with
the removal of the nib wall which did not become an issue until
1999.---
I trust the reference to the Councils Insurance Brokers is to
Rollins Hudig Hall who write to Canter Levin & Berg on 20th March
1996.---
"We are not clear what is being alleged....." ---
"If however it is your intention to pursue a claim against Sefton
MBC ........" ---
I see no evidence of a claim being made here.
..................................................................................................................................
18th October 2000 Ref: CT/IW/KT A letter of acknowledgement from
Chief Executives office for correspondence sent on 15th October
2000. This letter is sent to Mr Moore. I have copied it below.---
In 1984/5 Sefton M B C proposed to redevelop the maisonette blocks
that stood next to my house, part of their proposal was to demolish
a wall that ran from my gable to the gable of the maisonettes about
5 metres distant. See below.

circa 1984

maisonette
blocks L
I
M
wall E

19 G
17 R
V not to scale
On seeing the proposals I contacted the Council and expressed
concern that the removal of the wall could be detrimental to my
gable. As a result a section of the wall about 1.5 metres long was
not demolished and a pier was added to the end, this 'NIB' I was
told, was to give my gable wall support.

circa 1983/4
maisonette
blocks L
I
nib M
wall E

19 G
17 R
V not to scale

In June 1993 the Councils planning department notified me of a
proposal to demolish the maisonettes and develop houses in their
place. On seeing the plans I wrote to ask what would happen about
my nib wall and footings.(the footings had been exposed when the
maisonettes were built they are about 900mm wide by 700mm high and
ran from the nib to beyond the rear of my house)---
On 1st October 1993 Mr G Barr Principal Architect and General
Manager - Property Consultancy for the Council wrote to me in
regard the nib and footing. "May I reassure you that when the site
is redeveloped adjacent to your property, there should be no
interference with these features". He also noted my concern.
On seeing the method used to demolish maisonettes on another part
of the development I wrote expressing my concerns that these
methods if applied next to my gable may cause damage, subsequently
part of the wall adjacent to my house was taken down by hand.---
The Council then asked could they survey my house before the
demolition was carried out, I agreed and on 7th March 1994 Mr M
Jones Chief Clerk of Works for the Council and Mr T'sang attended
and carried out a written and photographic dilapidation report.
During his visit I asked Mr Jones about the possibility of creating
a side passage along my gable to give access to my rear yard, he
said he would have to ask his boss Mr Boardman.---
On 9th March 1994 Mr Jones returned with Mr Boardman and after
inspecting the area concerned and hearing my reasons for the
passage, said he would try to arrange a metre strip of land along
my gable to provide a foot path. I asked about the nib and footings
and he replied he would have a feasibility study carried out to
determine if they could be removed to accommodate the passage and
would contact me to let me know what the outcome was.---
On 6th April 1994 Mr Boardman wrote to me and told me he and Mr
Quayle (who is Director of Development and Property Services for
Maritime) had met on site on 29th March 1994 and Maritime would
look sympathetically into providing a metre strip of land along my
gable "to provide side access to your yard and maintenance
purposes". He then stated "these proposals will be relayed to the
Contractor for incorporation, if possible, into the amended layout
in due course". He ends the letter with "I trust that this will
relieve any anxiety you may have had and I will contact you again
when the proposals are progressed further".---
I took the phrase if possible to indicate that the feasibility
study was yet to be carried out. I can see no other reason for its
inclusion.---
I received no more notification of the matter. On 29th April 1994 a
footpath was amended to the plans for the proposal.---
28th February 2000. Mr Williams The proposals by Mr Quayle and Mr
Boardman (29/ 3/ 94) were for the erection of a fence "distant from
your gable" to allow access "along the gable end of your property"
. There were no proposals to create a paved footpath as there was
concern "that doing so may interfere with the damp proof course of
your house" He alleges the plans had been amended to show a fence
line which "may have created the impression of a foot path in this
area ". (sic)

Sometime during the development the nib was demolished and a metre
strip of land was fenced off along my gable.---
Sefton MBC were fully aware of the condition of my property.---
At the time of Mr Boardmans visit on Wednesday 9th March 1994 the
maisonettes were still intact.---
The following are quotes from Maritimes letters. Italics are
mine.---
1st February 1999.. The scheme this Association constructed was
designed by Sefton MBC and I am therefore passing a note of your
question to them in order to ascertain the reason for the enclosure
of the strip of land along your gable". ---
10th February 1999.. "The reason for the strip of land along your
gable end to be fenced in were contained within the original
development proposals for the site following demolition of the
maisonette flat blocks.---
15th February 1999.. In regard the strip of land. "the main reason
for this land being fenced off was as I have previously stated, to
give you access to your property and allow you to maintain your
gable wall. Clearly, as the land was in our ownership------" ---
28th September 1999.. "Up until September 1994, so far as we are
aware the site was under the control of Sefton Council, who at the
time between July and September 1994 were not acting on behalf of
this Association ". ---
The following are quotes from the Council's letters to me Italics
are mine.---
The following comes from Mr G Barr (retired) General Manager
-Property Constancy, Sefton MBC.---
5th October 1999.. "You refer to a comment by Mr Quayle in his
letter to you dated 2nd March 1999 that "the demolition was carried
out by Sefton Council". The demolition referred to was that of the
former maisonette blocks only and the scope of this work was
certainly not extended to include the demolition anywhere else on
the site and most specifically the "nib wall" that was adjacent to
your gable end". ---
The following are quotes from Maritimes letters. Italics are
mine---
4th March 1999.. "I have now had the opportunity to make extensive
enquiries, both with my staff and with the Associations building
contractor who were responsible for our development at Kepler
Street. (Kepler Street is the name given to the site in question)
We are all convinced that the "nib" wall was not in existence when
we took possession of the site,- --"
"This Association took possession of a cleared site, following
demolition by Sefton Council" ---
"On the evidence I have it would appear, therefore, that the "nib”
wall was removed during the demolition contract. "---
5th March 1999.. "Given that the nib wall was demolished prior to
us (Maritime) taking possession of the site,-----" ---
10th March 1999.. "I have previously confirmed that this
Association took possession of a cleared site"
"The evidence to which Mr Quayle alludes to was gathered by way of
discussions with the parties involved (Sefton, Fawley Construction
and Maritime Housing) and by reference to their records " ( Mrs
Titterington Chief Executive Maritime Housing Association )---
".....the Association has no information relating to the demolition
save for that, confirmed in the correspondence previously submitted
to you by the Association's Director of Development and property
Services namely Mr P J Quayle. Maritimes Solicitors, 4th November
1999. ( Mrs Titterington Chief Executive Maritime Housing
Association )---
13th September 2000.. Letter from J T Law, GTB Demolition Co
Ltd.---
In response to your letter of today, we can inform you that we did
not leave the site until Thursday 21st April 1994. Also there is no
way that we could have demolished the maisonettes and cleared the
site in two days.

We can tell you however that there were special instructions to
protect your property during the demolition, This included the nib
wall that abutted the gable wall. We most certainly did not
demolish it. I have spoken to our foreman today and he remembers
that the nib was still in place when we left.---
The following are quotes from the Council's letters to me Italics
are mine.---
Mr Barr 12th October 1999.. "My records indicate that the date of
contract completion of demolition work was 31st March 1994". ---
Mr Barr 26th October 1999.. "The information I have provided for
you has been extracted from my project file records and "does not
enable me to assist you in interpreting information provided to you
by Mr Quayle". My file records do not indicate the presence of
another contractor on the site at that time. (sic)
However it is possible that a contractor was engaged by another
department to carry out some work on adjacent land/properties of
which I have no record ".---
Mr Barr 3rd November 1999.. I do not have any information on file
relating to your " nib wall" ---
8th May 2000...Mr Williams Technical services. "In view of the
conflicting dates quoted by Mr Barr of Sefton And Mr Quayle of
Maritime Housing, 31/ 3/ 04 and 12/ 9/ 94 respectively, for the
completion of demolition works I would suggest this could be
explained by phased completion of the demolition contract...." ---
8th May 2000...Mr Williams Technical services. "I indicated that
the responsibility for the land would pass to Maritime Housing upon
transfer of the land, from 14th March 1994, however in the light of
the above any work of demolition which may still have been underway
will have been with their consent "
.................................................................................................................................

25th October 2000 Ref:CAM/VS/rober/24.10/FC. Letter from Ms V Swale
Finance Department Sefton MBC. In her letter Ms Swale explains how
and why a claim comes about, after doing so she then tries to
justify the conduct of others without acknowledgement of the fact
that the Council were not liable for any damage caused after 14th
March 1994. I again reproduce the reply in full below and sent to
Mr Yates Financial Director Sefton MBC.
..................................................................................................................................
I refer you to a letter dated 25th October 2000 sent to me by Ms
Swale.---
She tells me my letter of complaint written to Mr Williams to,
allegedly suspend time limitation on any potential claim I might
make, as he advised at our meeting on April 18th 2000. Was a claim,
please note that I wrote to suspend time limitation only.---
13th June 2000..Extract from a letter from Councillor Martin,
Leader of the Labour Group of Councillors.---
With regards to the points you raised about six the year limitation
period, my recollection of this was that Mr Williams advised you to
register your claim against the Council and other parties in
writing and by doing so, you would avoid the expiry of the six year
limitation period.---
My further recollections of the meeting was that you said you would
write to the Council with your complaints and that Mr Williams
would take the case up for you and the case would be formally
registered with the Council.---
Mr Williams knew the reason for the letter was to suspend time
limitation and also knew in detail the nature of my complaint, as
we had discussed it in detail on April 18th 2000 and in
correspondence for several months prior to the meeting.---
On 13th October 2000 Mr Moore stated the "without prejudice" letter
from my solicitors dated 26th January 1995 and a further letter of
29th November 1995 had become a claim. He also states "The alleged
damage relates to problems with your nib wall dating back to 1994.
(Hence the date of claim)". my response was.

26th January 1995 .. Without prejudice letter to the Chief planning
Officer Sefton Council from Canter Levin & Berg my solicitors.---
The letter notes that I have been in touch with the Council. It
notes that there is further evidence of cracks and fractures in my
property which have worsened. It asks the Council if it is prepared
to come to an agreement with me to fund repair work.---
It ends. "We write without prejudice for the time being and look
forward to hearing from you. We would be happy to consider the
matter in conjunction with a discussion between your representative
and our surveyor".
It does not contain the word claim nor imply the threat of a claim
it is merely an invitation to have discussions to take matters
further in a non prejudicial manner.---
29th November 1995.. Letter to the Chief Planning Officer Sefton
Council from Canter Levin & Berg.---
The letter refers to correspondence from the Council on 17th
February 1995 to my solicitors Canter Levin & Berg.---
The gist of the letter is that the Council have passed the matter
back and forth between the Technical Department and the Planning
Department and the matter is not progressing. It then asks which
department of the Council is going to deal with this claim and
threatens legal action.---
This would indicate to me that there is no department of the
Council dealing with an unspecified claim which definitely did not
happen on 17th January 1994. Nor does it have anything to do with
the removal of the nib wall which did not become an issue until
1999.
Mr Moore states "Despite correspondence between the Councils
Insurance Brokers and your solicitors, your solicitors did not
pursue the matter, and the brokers therefore filed away their
papers". I responded.
I trust the reference to the Councils Insurance Brokers is to
Rollins Hudig Hall who write to Canter Levin & Berg on 20th March
1996.---
"We are not clear what is being alleged....." ---
"If however it is your intention to pursue a claim against Sefton
MBC ..."---
Mr Moore then states. "The case was re-opened in April 2000,when
you met with Mr Williams. He attempted to be helpful by asking you
to write in, so that we would be able to re -open the case with the
Councils Insurance Advisors".---
I categorically deny this was said at the meeting and refer you to
Mr Martins letter ..13th June 2000 ".. the case would be formally
registered with the Council" not to re-open a claim.---
Mr Moore states it was "standard practice" to re-open the case
("...Because it is the responsibility of the claimant to pursue the
claim") as I was holding Sefton Council, Maritime Housing
Association and Fawley Construction responsible for the alleged
damage.---
(This is not true. I didn't know then and don't know now, who
demolished the nib wall, but on the information I had at that time
believed it to have been one of the above named, my letter does not
accuse all three parties of being responsible jointly as Mr Moore
is suggesting, but states I am holding one of them responsible.)
---
I fail to see why Mr Williams took it on himself to issue a claim
in my name based on the specific date 17th January 1994 as neither
he nor the Council are the claimants. (The letter I received from
your insurers on 9th September 2000 states. "I refer to your recent
letter dated 7th September 2000") I did not send a letter to the
insurers on 7th September 2000.---
I believe that this letter attributed to me was sent to your
insurers by Mr Williams on 7th September 2000 ( I have since been
told by the insurers it was sent "in July" 2000) in response to a
letter sent to him by 'fax' on 29th August 2000 from Councillor
Dowd. The letter from Mr Dowd was to clarify if what Mr Williams
had told me as our meeting in regard to time limitation was true.
Mr Williams I believe then sent my letter of 'complaint to your
insurers and wrote back to Mr Dowd on 8th September 2000 with,
confirmation that "Mr Robinsons claim has been passed into the
hands of our Insurers, Who are in correspondence with Mr Robinson
and it is they who will determine whether his claim is affected by
time limitation or not". ---
Note, the insurers did not write to me until after Mr Williams had
told Mr Dowd (not the case) that the insurers and I were in
correspondence.

Clearly not what he had told me on 18th April 2000 in regard to
time limitation and as there was no correspondence, is untrue on
both counts.---
Your insurers on receipt of this claim from Mr Williams, could not
have re-opened the claim from 26th January /29th November 1995 (as
claimed in Mr Moores letter of 13th October 2000, and which was not
a claim according to your brokers) as that would have been their
reference, not 17th January 1994.---
Nor can it have been the claim allegedly re-opened in April 2000,
( "the case was re-opened in April 2000.- Mr Moore, 13th October
2000) as that would have been their reference, not 17th January
1994.---
Your insurers clearly state they have had a letter from me dated
7th September 2000 (not the case) in regard to an incident, not in
1994, not in "January 1994" (as stated by Ms Swail), but
specifically 17th January 1994.---
In a telephone conversation with the insurers Mrs Martin, she
agreed there was no incident to claim for dated 17th January 1994.
Which means there is no claim at all and any claim in regard to the
nib wall, if at all, lies in the future and must be addressed to
the owners of the land at the time of demolition.---
I am not in nor have I been in 'correspondence' with your insurers,
I have had one letter of enquiry to which I responded but despite
several requests to do so they have not responded back. In regard
to the insurers, Mr Moore stated in his letter 13th October 2000.
"I am told the Insurers are preparing a letter which is to be sent
out to you next week", 13 days later there is no sign of it.---
On 18th October I clearly state the nib wall did not become an
issue until 1999 and it therefore follows that a claim dated 17th
January 1994 can not be re- opened to include the nib wall, also
note, the letters 26th January and 29th November 1995, contain no
reference to the nib wall as falsely stated by Mr Moore. ---
It is clear there are contradictions in Mr Moores letter of 13th
October 2000, contradictions that attempt to justify Mr Williams's
false insurance claim by trying to link the alleged claim of 26th
January /29th November 1995, to an incident dated 17th January
1994, which was supposed to re -open the issue of the demolition of
the nib wall, which did not become an issue until 1999 and was not
demolished until at the earliest the end of April 1994.---
It is also clear the Councils Insurance Brokers do not in their
letter to my solicitors dated 20th March 1996, acknowledge there is
a claim or specific allegation being made.---
On the evidence I have it would appear the Council.---
Exercised a duty of care in regards the nib wall during the
demolition contract.---
13th September 2000.. Extracts from a letter from J T Law, GTB
Demolition Co Ltd, The Councils demolition contractors.---
In response to your letter of today, we can inform you that we did
not leave the site until Thursday 21st April 1994---
We can tell you however that there were special instructions to
protect your property during the demolition, This included the nib
wall that abutted the gable wall. We most certainly did not
demolish it. I have spoken to our foreman today and he remembers
that the nib was still in place when we left. ---
There is photographic evidence to confirm the above.---
Were not in possession of, nor responsible for, the Kepler Street
site at the time of the alleged damage to my property.---
Mr Williams 8th May 2000..
"I indicated that the responsibility for the land would pass to
Maritime Housing upon transfer of the land, from 14th March 1994,
however in the light of the above any work of demolition which may
still have been underway will have been with their consent ".---
Mr Quayle Maritime Housing Association 1st July 1999.---
"I would confirm this Association took possession of the site at
Kepler Street on the 14th March 1994 ".

Were not the owners of the of the Kepler Street site during the
demolition of the former maisonettes.

6th October 2000..From The Land Registry.
Property: Land at Kepler Street
According to our records Maritime Housing Association Limited were
registered as proprietors of the above land on 21st January
1994.---
Had no grounds to issue any alleged claims no matter what I or my
solicitors may have said but should have referred the matter to
Maritime, the owners of the site.---
To be clear, it is now my belief that the Council have, during the
time I have been trying to establish who demolished the nib wall
that formally abutted my gable wall, acted with duplicity to
prevent me obtaining information. This has resulted in the
expenditure of time and money by myself, my solicitors and the
Council, most of it from the public purse.---
It occurs to me that, if most of the Council officials I have
corresponded with would have tried the truth, this time and money
could have been put to better use than seemingly protecting the
interest of others.
..................................................................................................................

30th October 2000 Ref:CEO/IW/KT. Letter from the Chief Executive's
office. "I have asked my Director of Development and Environmental
Services to look again at the facts and he will contact you again
shortly.

3rd November 2000. Letter to Mr Moore ...Unanswered

3rd November 2000. Letter to Mr Williams...Unanswered

30th November 2000. Letter to Mr Heywood... Unanswered.
The Council seem determined to continue to lie to me and withhold
information which, as far as I can see, is maladministration. I
again say, on the legal information I have obtained Sefton MBC have
no liability in regard to damage to my property as they were not
the owners of the land, nor in possession of the site as the time
of the damage. The land records and Mr Williams, Director of
Technical Services, Sefton MBC, prove this to be true. The
information I have also proves that there are no grounds for the
Council to issue a 'claim' or 'potential claim' to their insurers
as the damage to my property occurred after the Councils demolition
contract. The information that determines legal action, if any,
will be addressed to those responsible, not Sefton MBC.-
If it is still your assertion that there is not a case of
maladministration against the Council will you please explain why?
I require acknowledgement of this information held by the Council
to remove them from the issue and move on.

c.c. Joe Benton

I refer you to a letter I wrote to Mr Harrison Ombudsmans at the
office on January 23rd 2001

Thank you for your acknowledgement of my letter of 18th and 28th
December 2000, you do not make it clear if you will respond to my
further complaint against Sefton MBC in regard to the improper
insurance claim they allege I have made.

Will you please inform me if you are treating my complaint to you
that Sefton MBC have acted incorrectly by issuing an improper
insurance claim, allegedly from me, based on information they know
to be untrue, as a matter of maladministration.

If you not cannot help in this further complaint will you please
give me a clear explanation for your decision. Until Sefton MBC
formally admit they are not responsible for any damage to my
property I cannot proceed with investigations to find out, if it
may be necessary to take action against another party, the evidence
that Sefton MBC are clearly not responsible for any damage may, of
itself, resolve the matter.

In regard to my former complaint, the assertion that I have a legal
remedy seems, according to both the facts and legal advice, to be
incorrect.

If you will not take up this further complaint and give me no
reason why, I am issuing you with a formal complaint that this
matter, despite clear evidence, is not being treated in a
reasonable way and seems to ignore the fact that Sefton MBC have
acted in a manner that clearly constitutes maladministration. I
reiterate that my legal advisors, including that of a barrister,
informs me that there is no legal action I can take against Sefton
MBC.

N. B. The issue of the false insurance claim by Sefton MBC has only
arisen since September 2000 and despite a formal complaint to the
Chief Executive of Sefton MBC, has not been resolved.

c.c. Sharan Bhogal, Department of The Environment, London.

AND

I refer you to a letter I wrote to Mr Harrison at the Ombudsmans
office on February 6th 2001

I refer to your acknowledgement postmarked 30th January 2001 and my
letter to you of 24th January 2001.

My letter to you of 24th January 2001 you required more than an
acknowledgement, in it I asked it you were accepting that Sefton
MBC had committed an act of maladministration by issuing an
insurance claim to their insurers based on information they knew to
be incorrect.

A letter Ref: 94/0195/S/RJW/MNG written by Mr R J Waddelow of
SMBC's planning department on 17th February 1995, states "In our
opinion, damage if attributable to development is essentially a
matter between householders and the developers concerned..." This
clear and unequivocal statement of the position of SMBC precludes
the need for SMBC to have any further involvement with the issue
owing to the fact that the damage clearly occurred, not during the
demolition phase, not during SMBC's ownership, not during the
possession of the site by SMBC or their contractors, but during the
development phase of the project. Evidence proves this to be true.

As requested on 24th January 2001, will you answer the question of
whether you are accepting the complaint of maladministration in
regard to the insurance claim based on false information submitted
by SMBC to their insurers in regard to my enquiries about the nib
wall that formally abutted my gable. If you are not, will you
accept that I am making a formal complaint that this matter is not
being dealt with in a fair and impartial manner by the Ombudsman's
office. I make this accusation on the grounds that;-

According to evidence they have provided, SMBC had no liability for
damage caused to my property after 14/3/94 however caused. Evidence
proves this to be true.
SMBC have stated damage during development is a matter between the
developer and the householder and indicate no difference in my
case. Evidence proves this to be true.
The basis of the false claim is that the nib wall was demolished at
the same time as the maisonette blocks, formally adjacent to my
house. Evidence proves this to be untrue.
SMBC have falsely asserted that the demolition of the nib wall was
part of a claim for damage during the demolition contract. Evidence
proves this to be untrue.
According to written and photographic evidence the nib wall
remained in situ after SMBC's demolition contract was completed.
Evidence proves this to be true.
According to SMBC the false claim in regard to the nib wall was a
re-opening of an existing claim, there is no evidence to support
this assertion in fact there is evidence that proves that apart
from the initial queries by my solicitors no action was taken by
them. Evidence proves this to be true.
SMBC claim not to know when the nib wall was demolished, they do
know it was not demolished by their contractors who were given
'special instruction' to protect it. Evidence proves this to be
true.

Over the past months I have provided you time and again with the
evidence and references that confirms the above. The overwhelming
evidence is that SMBC have without a doubt acted in a manner
calculated to pervert the facts and conceal their misdeeds at my
expense. This has been done by the calculated use of
misinformation, lies and failure to provide answers to my
legitimate and justifiable questions.

c.c. Sharan Bhogal DETR London

AND THEN TO THE FOLLOWING:

I refer you to a letter I wrote to Mr Harison on February 20th 2001

I wish to offer more information in regard to my complaint against
Sefton MBC, I also have included in my heading of this letter the
complaint against yourselves, this, as you know is based on my
assertion that my complaint is not being dealt with fairly.

On 26/1/95 my solicitors wrote to SMBC a "without prejudice" letter
asking them to confirm if they would be prepared to discuss with
their surveyor the possibility of funding repairs to my property.
On 17/2/95 Mr Waddelow of SMBC's Planning Department wrote in
reply.

"In our opinion, Damage if attributable to development is
essentially a matter between householders and the developers
concerned..."

The result of this "opinion" seems to be that SMBC referred the
matter to the developer who sent Mr D Fawley, a director of their
building contractor, to see me.

Sometime between 24/2/95 and 3/3/95 Mr Fawley arrived at my house,
he stated the purpose of his visit to be to discuss with me the
fencing of a strip of land adjacent to my gable. He gave me no
indication of who he was but rather introduced himself as "someone"
who had come to discuss fencing, this is borne out by the following
quote on 10/2/99 from Mr Quayle of Maritime Housing on the matter
of the fencing of the land, although he represents Mr Fawley as a
member of Maritimes staff.

"I am advised that a member of this Associations staff spoke to you
over this issue and whilst no written agreement was reached, you
verbally confirmed you would have no objection to this course of
action" (fencing).

Mr Fawley states, on 26/10/00 the purpose of his visit was to set
up a meeting between myself, Fawley, Maritime and SMBC, he states
he told me this at the time of his visit. He states the visit was
prompted by my solicitors letter of 26/1/95. During his visit Mr
Fawley appeared to be asking inappropriate questions for one who
had come to discuss fencing and as a result I referred him to my
solicitors for further information. This again is borne out by
another letter from Mr Quayle on 15/2/99 who wrote in regard to
this referral.

"I cannot understand, therefore, why it would be necessary for us
(Maritime) to discuss the matter with your Solicitor as he would
have no interest in the matter as what we were creating would have
no detriment to your property". (fencing)

On 5/3/99 Mr Quayle alleges I made a statement to Mr Fawley during
a "meeting" which concerned cracks in my gable wall; it was due to
this enquiry regarding matters that I considered out of place, that
made me advise Mr Fawley to consult my solicitors. There is no
mention of a meeting being set up. This letter is copied to Mr Barr
who seems to use it as the basis of his letter to my solicitors on
7/3/95

"I referred the matter to the redevelopment contractor who has now
written to me confirming that He recently visited Mr Robinson with
a view to arranging a meeting so that the property could be
inspected by all relevant parties. apparently Mr Robinson pointed
out that such a meeting could not take place until he had consulted
with you, and the Council would be contacted in due course".

He then referred them back to the Planning Department.

On 29/11/95 my solicitors contacted the Planning department stating
the matter had not progressed since 7/3/95, they cite damage to my
property and state that if no suitable response is received they
will have no option but to instigate legal action.

On 14/12/95 Mr Waddelow responded with an acknowledgement of my
solicitors letter of 19/11/95 and stated they would respond after
liaison with the Director of Legal and Administration Services. On
31/1/96 Mr Waddelow wrote to my solicitors stating the matter had
been referred to Miss Smith their Senior Claims Officer at SMBC's
Finance department.

On 20/3/96 my solicitors were contacted by Rollins Hudug Hall
SMBC's claims handlers. They state that I had made an admission to
Mr Fawley about the condition of my property during his visit in
February/ March 1995.

SMBC's Brokers then issued a notice of a potential claim to the
Councils Insurers Royal & SunAlliance, this potential claim was
never pursued and was in respect of damage caused at a time when
SMBC had no liability as I have detailed to you previously.

It therefore follows that the demolition of the nib wall, the
property of Maritime Housing, which happened after the demolition
contractors had withdrawn from the site, and the damage to my
property caused during the demolition of the maisonette blocks
cannot be linked. As SMBC state it as a matter between the
developers and myself, especially in light of the statement of Mr
Williams; that from 14/3/94, before demolition of the maisonette
blocks had occurred, and the end of demolition. Maritime would
authorise any demolition.

On 7/3/95 Mr Barr cites SMBC's survey information indicates damage
to my property prior to redevelopment. The same survey indicates no
damage to my gable except at its junction with the front elevation
and records no cracking elsewhere, either inside or outside.

It wasn't until 5/3/99 that in a letter from Mr Quayle, copied to
Mr Barr, I became aware of the misinformation that I had allegedly
stated there had been cracking to my gable prior to demolition.
This letter claims I stated that "...Considerable worsening had
occurred during the demolition of the maisonette blocks" and goes
on to state, "Given that the nib wall was demolished prior to us
taking possession of the site,...."

This letter could not be clearer in its blatant assertion that I
had made a statement during a "meeting" with Mr Fawley, who had
visited me (which he only did once) with a view to arrange a survey
with, (according to Mr Fawley) amongst others, SMBC.
If it were true that the nib wall had been removed prior to
possession by Maritime it would make no difference to the fact that
as owners they were, failing some special arrangement with SMBC,
liable for damage; as pointed out by Mr Waddelow on 17/2/95. Fawley
who state they have "no Knowledge" of what might have occurred on
the site as they did not "enter the site" to commence their work
until 12/9/94. Why would they have a reason to take part in or
arrange a survey, and what could they contribute

From the above it is clear that SMBC are in no way responsible for
any damage to my property. It seems remarkable that an alleged
claimant (myself) goes to the trouble to exonerate from blame the
party (SMBC) who are being claimed against, only to be met with the
refusal by them to accept they are not liable. 20/3/96"

ON MARCH 2ND 2001 SEFTON'S TECHNICAL SERVICES DIRECTOR WROTE A
COVERT LETTER TO THE OMBUDSMAN'S INVESTIGATOR STATING I HAD MADE A
FORMAL CLAIM AGAINST THE COUNCIL IN A LETTER TO HIM DATE APRIL 18TH
2000.

AND, with regard to the following letter from the Ombudsman,s
investigator dated April 11th 2001 (which was copied to their
insurers by Sefton) stating:

"THE COUNCIL LETTER OF 15 MARCH STATES THAT YOUR CLAIM WAS
FORWARDED TO ITS INSURERS...IT IS A MATTER FOR THE INSURERS TO
CONSIDER WHETHER OR NOT THERE IS A CLAIM TO CONSIDER...IN MY VIEW
THE COUNCIL HAS ACTED TO NORMAL PROCEDURE CONCERNING THIS TYPE OF
CLAIM."

I refer you to my letter to the Ombudsman's’s Investigator dated
April 24th 2001

"For Your Information

I refer to a letter written to me by Mr Williams on 30/6/00, Ref:
PAW/RR/ rob9, in which he states the nib wall was the property of
SMBC up until the sale of the land it stood on to Maritime Housing,
at which point it became Maritimes property.

Maritime became the owners of the land on 21/1/94.

Mr Williams goes on to state "As we cannot pinpoint the date when
the wall was removed it is not possible to be certain of ownership
at the time of removal".

On 10/10/00, I notified SMBC's insurers of the date Maritime became
owners of the land in question.

On 16/10/00, I sent SMBC information I had obtained from the land
registry, reproduced below, this made them fully aware they were
not liable for damage to my property.

"On 21st January 1994 Maritime Housing became the owners of the
site at Kepler Street Seaforth, Title Number MS 351603".

A letter from Councillor Martin. Leader of the Council on 27/7/00,
Ref: DM/LP/ robinson 5, states "With regards to the ownership of
the nib wall. This is still under consideration...." He states he
understands the matter of the nib wall "has now been referred to
the Councils insurers".

On 6/11/00, SMBC's insurers state, The claim for alleged damage to
my property was sent to them in July 2000. they further state. "we
do not know the date your property was damaged and therefore cannot
use the correct incident date". It appears the information in
regard to land ownership, and therefore liability, was being
ignored by SMBC and their insurers.

On 11/12/00 SMBC state the land in question was legally transferred
to Maritime on 24/12/93. From the above it would appear the claim
for damage to my property was sent to SMBC's insurers before the
issue of ownership, and therefore, liability had been resolved,
even after the details of ownership were clarified SMBC did not
withdraw their claim in regard to my property.

SMBC, through the structural engineer they had commissioned to
survey my property, made an offer to my solicitors to pay me £1000
in compensation for the alleged damage to my property. Clearly as
they were not liable to do so, and therefore, were not indemnified
by their insurers, the logical source of this money would be the
public purse, which had already paid for the above mentioned
survey.

cc JOE BENTON MP"

AND

I refer you to my letter to the Ombudsman’s investigator on May 2nd
2001

"I further refer to my letter to you dated 12/ 17/ 21/ 26 of April
2001, these letter seem to have been ignored in your consideration
of the validity of my claim against SMBC.

The matter is a very simple one, if Sefton had liability to issue a
claim to their insurers in regard to the damage caused by the
removal of the nib wall at some time after 21st April 1994, and the
right to link this claim to alleged damage to my property caused by
the demolition which occurred at some time prior to 21st April
1994, they must have had insurance cover to do so. If they were not
liable for damage on either occasion they had no liability to issue
a claim.

This will be clarified by the release of the date their insurance
cover ended in relationship to the demolition period as this is the
period that is being used for their claims. The revealing of the
date of SMBC’s insurance liability can at a stroke resolve this
issue.

SMBC cannot issue a claim if they are not liable to do so. – I
believe I have provided evidence SMBC were not liable, if you
ignore this you are being unfair.

SMBC cannot alter the law on statute barring. SMBC’s insurers
cannot alter the law on statute barring therefore Mr Williams lied
to me and as a result I have lost the right to make a claim against
anyone in regard to damage to my property. – the evidence this is
true is freely available to you, for some reason you ignore it and
seem unwilling to consider it.

You state I have not suffered loss, I disagree. SMBC had no
liability to offer me £1000 in settlement for damage to my
property.

Why was this done and on what authority. If you are not prepared to
consider this complaint and my evidence further and investigate to
clarify the allegations I am making, please regard this letter as a
formal complaint that you are dealing with the matter impartially
and fairly and forward information of how I must now proceed.

cc Joe Benton MP"

AND

I refer you to my letter to the Ombudsman accompanying evidence
dated May 7th 2001

EVIDENCE - CLAIMS

On 4/7/98 I wrote to my solicitors [1] stating my concern about the
development of a problem with my gable wall, at this time I had
been told by SMBC that the nib wall and old footings could not be
removed as they were giving support to my gable wall, this became
the basis of my future correspondence with both Maritime and SMBC.
- This letter was sent after I had noticed internal cracks
appearing in positions which suggested to me that the gable may
have been moving.

SMBC in their letter of 13/10/00 from Mr Moore [2] attempt to link
the damage to my property caused by the removal of the nib wall and
damage caused in 1994 by demolition of the maisonette blocks - the
topic of the letter they had received from my solicitors. The
damage to my property in 1994 was never specified and definitely
did not include the nib wall [1] at that time the alleged damage to
my property caused by the removal of the nib wall was not evident
i.e. I had not yet discovered it. There is no continuation between
the claims.

The letter of 26/1/95 from my solicitors is an invitation to SMBC
to meet with my surveyor to discuss the possibility of SMBC
agreeing to fund repairs to my property. The suggested funding was
to be the provision of a grant (by agreement), not only to repair
the damage my surveyor had noted as being caused by the demolition
of the maisonette blocks, but also to use the opportunity to
rebuild the gable wall. My surveyor had written in his report to my
solicitors. "There might be something gained by discussions - and I
say Without Prejudice - by aborting any possible claim related to
the current evidence of damage ..." - This was the motivation for
the letter and ironically it was written with the aim of avoiding a
claim. It clearly asks if SMBC are willing to come to some
arrangement with me to fund repair work and makes no mention of a
claim being pursued. In response to this letter SMBC wrote back
stating the matter was essentially between the developer and
myself. Note that no claim was submitted on the basis of this
letter and that SMBC's insurance brokers were not contacted until
March 1996.

On 6/4/94 I wrote to SMBC [3] with the clear allegation that the
demolition of the maisonette blocks had damaged my property. SMBC
acknowledged this letter and my allegation of damage.[4] They did
not issue a claim to their insurers. A short time after this letter
SMBC's representative visited my property to arrange a survey, I
declined his offer and referred him to my solicitors who have a
record of my telephone call notifying them of this referral. It was
a further 2 years before the first claim. (false I believe) Note,
my letter of 18/4/00 makes reference to unspecified damage.

On 25/10/00 SMBC wrote to me [5] that my solicitors letter of
26/1/95 stating they wanted SMBC to fund repair work to my
property. The letter invited discussion, it was a without prejudice
invitation that was not taken up by SMBC and did not result in a
claim to SMBC's insurers, the claim to SMBC's insurers was made
over a year later.

The work which this letter refers to was the Demolition of the
maisonette blocks and the alleged damage was caused by this work.
The work itself was carried out after 14/3/94 and as such was at
the sanction and liability of Maritime. (see [4] Knowledge)

The letter I had received from SMBC's insurers on 7/9/00 had stated
the claim was for "an incident" occurring on 17/1/94 - the
commencement of SMBC's insurance cover for demolition of the
Maisonette blocks. Its clear that the claim for the damage caused
by the removal of the nib wall was not caused during the demolition
period which ended, according to SMBC, on 31/3/94.

Despite their admissions (see [4,5 and 6] Knowledge] SMBC clearly
assert, by linkage, that the nib wall was demolished during their
period of liability. The date of insurance cover will confirm or
refute this.

The assertion that I possibly held SMBC or others responsible for
damage caused by the demolition of the nib wall is clearly stated
in my letter of 18/4/00. (clearly obtained by deception on the
basis it was to suspend time limitation) This damage was not caused
during the demolition period and can not be linked with any claim,
either real or proposed for damage at that time as the damage
caused by the removal of the nib wall was later than, and not part
of, the damage caused by the demolition. (see Knowledge [2])

SMBC were aware that I was alleging damage caused by the removal of
the nib wall. [6] Though this damage occurred during the
development period it happened (according to Knowledge [4 and 5]
when SMBC had to be sanctioned by Maritime for any demolition.
Unless for some reason the nib wall which was in situ at that time
, was excluded from this sanction.

Note that at the time I wrote the letter of 18/4/94 I was (as SMBC
also claim they were) unaware of the owners of the land and the nib
wall. It is also clear that SMBC did not require this letter
(clearly obtained by deception on the basis it was to suspend time
limitation) to issue a claim in regard to damage caused during the
demolition period, they had received earlier letters which would
have served that purpose.

Observations

It appears that SMBC have never had any liability for damage to my
property caused during the development at Kepler Street, this is
confirmed by their insurers.

Despite me attributing damage to my property caused by SMBC in
April 1994 SMBC did not issue a claim to their insurers as it
appears at the time they were not liable.

SMBC continue to withhold the date their insurance cover and
liability for damage to my property ended, it appears to have ended
on 14/3/94 which was prior to any damage occurring to my property,
due to the development, making any claim to their insurers false.

SMBC were fully aware of my concerns about the nib wall and were
put on notice of its condition during their ownership and assured
me of its retention after the development, in light of this notice
they apparently issued "special instructions" to their contractors
to protect the nib wall which were enforced until the contractors
withdrew from the site on 21/4/94 leaving the nib wall intact.

SMBC have at all times been unhelpful and have only given the
minimum of information to me. they have never admitted many things
to me despite being asked repeatedly to do so.

Due to SMBC withholding facts from me much of the information that
I have obtained has been severely delayed resulting in time limits
set by yourselves and others expiring. It is clear that had
"Knowledge [2 and 4]" or "Transfer and Ownership [4,5, and 6]" been
made available to me in1998/9, which SMBC should have provided (if
they were, as you put it, making a genuine attempt to resolve the
matter). The present situation would not have been possible, nor
would the expenditure of at least £6,000 of public money, which has
been wasted.

SMBC's offer of £1,000 to settle my claim still remains
unexplained.

It may be SMBC's prerogative to issue claims, false or not, to
their insurers but If the claims have no basis in reality there
seems little point in them doing so, expect by using these false
claims to avoid answering awkward questions which they have done in
my case. (see Time Limitation [1,2 and 3])

The main complication in my complaint appear to be your inability
or reluctance to provide one date. That will resolve the matter of
liability and prove or disprove my allegations that SMBC acted
correctly."

AND, I REFER YOU TO A LETTER FROM THE OMBUDSMAN DATED MAY 30TH 2001
STATING:

"Your complaint was examined by a member of the Commission's staff
and has been reviewed by the Assistant Director...I have reviewed
your complaint again. from the information which you and the
Council have provided I can see no evidence of maladministration.

I ALSO REFER YOU TO A LETTER WRITTEN TO ME BY THE OMBUDSMAN DATED
JUNE 21ST 2001 STATING:

"THE INFORMATION FROM SEFTON MBC WHICH LED TO MR OXLEY'S DECISION
WAS...THE COUNCILS LETTER OF 15 MARCH."

WHICH WAS FROM SEFTON'S LEGAL DIRECTOR AND STATED"

"This matter commenced in January 1995 with a letter from Mr
Robinsons solicitors...it is clear from that letter...and from a
letter...dated 29th November1995that Mr robinson was seeking to
make a claim against the Council. Furthermore, in his letter dated
18th April 2000, Mr robinson stated that he holds the Council
(together with Maritime Housing Association and Fawley
construction) "responsible for the demolition and any resulting
damage. Thus it is abundantly clear that Mr Robinson is pursuing a
claim against the Council. Mr Robinsons claim was forwarded to the
Council's Public Liability insurers because it is a condition of
such insurance that any such correspondence be sent to them. It is
therefore right and proper for the Council to do so...I would in
particular refer you to the letter from Mr Paul Williams (Technical
Services Director) to Mr Robinson dated 4th July 2000 in which it
is specifically stated that "the matter will now be placed in the
hands of our insurers."...I am sure that you will appreciate that,
as a matter of law...it is entirely a matter for the Council to
decide whether or not it should refer a claim that has been made
against it, to its insurers."

DESPITE NUMEROUS LETTERS AND FURTHER EVIDENCE TO THE OMBUDSMAN IT
WASN'T UNTIL I WROTE THE FOLLOWING ON AUGUST 26TH 2001"

Re: Failure to Address my Complaints - Unanswered Correspondence -
Ignored Evidence

It is now over a month since you have acknowledged my
correspondence or the evidence that I have sent to you, if you do
not intend to respond to my correspondence and evidence will you
please write and inform me of this as I am spending money that I
can ill afford to throw away. Will you also return to me, as
requested, the evidence and photographs I have sent to you.

I enclose copies of draft letters sent to the Council for your
perusal, these letters should be read in conjunction with the
assertion by the Council.

Enclosed: Copies of 6 letters to the Council. All clearly state
either the information from Maritime with regard to the Councils
involvement with the site after 1/4/94, or reference to ownership
of the land and nib wall.

4 letters to Mr Barr dated - 16/10/99 - 30/10/99 - 9/11/99 -
6/12/99

1 letter to Graham Heywood dated 18/1/00

1 letter to Ms Warham dated 3/3/00

All these letters were responded to and the reference numbers are
provided, if you require copies please let me know and I will
provide them. The points about Maritimes assertions were not
answered nor were the facts on ownership.
RSVP

ON SEPTEMBER 6TH 2001 MR OXLEY WROTE TO ME STATING, WITH REGARD TO
THE ABOVE LETTER AND THE OMBUDSMAN'S LETTER TO ME DATED MAY 30TH:

"Any further correspondence on this matter would be acknowledged
only...it is not possible for the Ombudsman to continuously
reconsider matters concerning a subject on which a decision has
been made."

I.E. THE DECISION THAT THE OMBUDSMAN SUPPORTED THE CONTENTION THAT
THE COUNCIL HAD THE LEGAL RIGHT TO PUT MY "CLAIM" TO THEIR
INSURERS.

Yours sincerely,

fred robinson

Dear Hilary Pook,

MY FOI REQUEST:

I now refer you to the following information and evidence regarding
yours of January 6th 2009 about a "complaint" I should make
regarding my FOI request below, which is:

"Will the Ombudsman confirm or deny it can interpret to a
complainant the contractual obligations legal liability and
indemnity for alleged insurance claims from conflicting information
provided by the Council and the Complainant without seeing the
insurance policy."

THIS IS AN FOI REQUEST REGARDING THE POWERS OF THE OMBUDSMAN TO
INTERPRET AN INSURANCE POLICY AND IS NOT A "COMPLAINT", A
"COMPLAINT" HAS ALREADY BEEN MADE AND ALL THE EVIDENCE I PROVIDED
AT THE RELATIVE TIMES HAS SIMPLY BEEN IGNORED TO UPHOLD SEFTONS
FRAUDULENT INSURANCE CLAIM(S) W215732 DATED 1993, 1994, 1995, 1996
AN APRIL 18TH 2000 WHICH, IS KNOWN TO THE OMBUDSMANS AS A CLAIM FOR
THE DEMOLITION OF NONE EXISTENT BUILDINGS WHEN 19 LIME GROVE WAS
ALLEGEDLY IN A "MID TERRACE LOCATION" IN LIME GROVE AND ATTACHED OR
ADJOINED TO 21 LIME GROVE:

IT IS CLEAR THAT THE OMBUDSMANS POSITION FITS INTO A SERIES OF
EVENTS INVOLVING OTHER AUTHORITIES REFUSAL TO INVESTIGATE CLAIM
W215732 WHICH HAS, AND DOES, CONTINUE EVEN NOW.

WITH REGARD TO THE ABOVE I HAVE INCLUDED SOME, BUT NOT ALL, EVENTS
REGARDING CLAIM W215732 THAT OCCURRED UNTIL JANUARY 2004.

I FIRST REFER YOU TO THE LETTER BELOW I WROTE TO MRS THOMAS, THE
LGO ON JULY 9TH 2001

YOUR REF: 00/c/17558/pat 3/am

I refer you to a letter from Mr Oxley to myself dated 23/2/01 in
which he summarised my complaint against SMBC as

"that the Council issued a claim to its insurers without your
knowledge or permission"

I refer you to my reply dated 27/3/01 which corrects this
summarisation and states the complaint to be that the Council
issued a claim to their insurers based on information they knew to
be false.

The information that I had issued a complaint to the Council as
summarised by Mr Oxley on 23/2/01 was forwarded to the Council. The
Council responded to that complaint , not my actual complaint.

It appears that the complaint I am really pursuing has not been
addressed despite the many references to it in the correspondence
to your office reproduced below.

10/11/00 + 18/12/00
There is now another issue that I wish to make a complaint about,
this is that the Council have issued a 'claim' or 'potential claim'
to their insurers in regard to my property, based on information
known by then to be false.

28/12/00
Thank you for your acknowledgement of my letter of 18th December
2000, you do not make it clear if you will respond to my further
complaint against Sefton MBC in regard to the improper insurance
claim they allege I have made.---Will you please inform me if you
are treating my complaint to you that Sefton MBC have acted
incorrectly by issuing an improper insurance claim, allegedly from
me, based on information they know to be untrue.

6/2/01
Thank you for your acknowledgement of my letter of 18th and 28th
December 2000, you do not make it clear if you will respond to my
further complaint against Sefton MBC in regard to the improper
insurance claim they allege I have made.---

Will you please inform me if you are treating my complaint to you
that Sefton MBC have acted incorrectly by issuing an improper
insurance claim, allegedly from me, based on information they know
to be untrue, as a matter of maladministration.---

My letter to you of 24th January 2001 you required more than an
acknowledgement, in it I asked it you were accepting that Sefton
MBC had committed an act of maladministration by issuing an
insurance claim to their insurers based on information they knew to
be incorrect.
As requested on 24th January 2001, will you answer the question of
whether you are accepting the complaint of maladministration in
regard to the insurance claim based on false information submitted
by SMBC to their insurers

Over the past months I have provided you time and again with the
evidence and references that confirms the above. The overwhelming
evidence is that SMBC have without a doubt acted in a manner
calculated to pervert the facts and conceal their misdeeds at my
expense. This has been done by the calculated use of
misinformation, lies and failure to provide answers to my
legitimate and justifiable questions.

23/2/01
The Council as far as I can establish have no liability in regard
to any damage to my property at any time after 14/3/94. If this is
the case it follows that they have issued false information to
myself and their insurers.

1/3/01
The Council as far as I can establish, based on ownership and
possession by others, have no liability or indemnity in regard to
any damage to my property at any time after 14/3/94. If this is the
case it follows that they have issued false information to myself
and their insurers the purpose of which appears to constitute
maladministration and an attempt to cover up wrongdoing. It also
means that indemnity would not be provided to me (if claimed) by
their insurers.

Will you please keep me informed of what the Councils response to
my complaint is and give me the opportunity to check their response
with evidence I possess?

28/3/01
I do feel there are things in SMBC's letter to you that are
incorrect and require clarification but they may become academic if
the period of SMBC's legal liability and indemnity does not extend
beyond 14/3/94 when the developer who was also the site owner, took
possession.
My complaint is that SMBC issued claims to their insurers about
damage to my property which contained information known to SMBC, at
the time they issued these claims, to be untrue and that they did
this with the knowledge that they had no legal liability to do so
on either one or both of the occasions they did so.

Clearly my complaint that the Council issued a claim based on
information known to them to be false at the time they issued the
claim has not been addressed. Do you intend to do so ?

I also refer you to Mr Oxleys statement in his letter to me dated
11/4/01 that "It is also a matter for the insurers to decide
whether any time limitation applies to your claim".

This statement is factually and legally incorrect on the basis that
the claim referred to was issued on the false information that it
was for damage caused to my property for which the Council had no
liability for and was allegedly linked to a previously false claim
for unspecified damage to my property.

You are of course aware that status barring is statute law and as
such cannot be affected by an insurance company, this is in fact
confirmed by the insurers themselves.

The fact that the Council assert they had no involvement with the
site concerned after 1/4/94 means that the alleged claim made by
myself for damage occurring after 21/4/94 was a false claim.

The assertion that ownership of the land was stated by the Council
to be unknown to the Council on 30th June 2000 is unlikely, the
ensuing claim by the Council to their insurers could not have been
made if the ownership on the land was not theirs as liability goes
with the ownership of the land. As you and the Council know.

It appears that the claim was issued either with the knowledge that
the land was not owned by the Council or that the claim was made
without the ownership of the land being established or that the
Council did in fact own the land.

The matter of ownership of the land, with regard to compensation,
was first raised on 31st May 2000 by the surveyor who conducted a
survey at my property on 19th May 2000. The Council then wrote to
me on 30th June 2000 to assert the ownership of the land was not
known to them. The Council had at that time, had a month to
ascertain the ownership of the land and yet had not done so,
implying they did not know that the land had been owned by Maritime
Housing since 21st January 1994. The knowledge of ownership would
have also made a claim to their insurers impossible as liability
goes with ownership.

On 3rd October 2000 I wrote to the Land Registry requesting details
of ownership of the land concerned. On 6th October 2001 I received
the information that since 21st January 1994 the land had been in
the ownership of Maritime Housing.

The tactic employed by the Council is to ignore facts and
information supplied by myself, this tactic, it appears, is being
employed by your office as there seems to be no credibility given
to my complaint that the Council have and still are lying to me.
Nor is the fact that you clearly avoid revealing that the Council
have not provided the information that they were not liable or
insured for any damage to my property occurring after 14th March
1994 which is proven to be the period when damage occurred. To do
this you are ignoring the law, which I assert is irrational.

The Council asserted that I was told to write my letter of
complaint to them to re-open an insurance claim and this would
suspend time limitation. If this were true time limitation would
have been suspended. After consultation with the insurance section
of the Council Mr Williams stated that time limitation would be
decided by the insurers. The insurers state time limitation is a
matter for the courts. Is it credible that Mr Oxley and yourself do
not know about time limitation ? With respect, I think not.

I refute the assertion that the letter I wrote to the Council
on18th April 2000 was a claim, it was written as a complaint as the
result of being told by Mr Williams it would stop lime limitation.

I ask you to respond to all the above facts and explain why you
have not taken them into consideration before rejecting my
complaint.

THEN:

In March 2003 I obtained my personal data from Sefton Council which
revealed to me the basis of the fraudulent "Insurance Claim" I had
supposedly made against the Council in 1993 referenced W215732 and
its alleged "reopening of claim RR98XN dated April 18th 2000 which,
has been the subject of Sefton Council's letter to the Ombudsman on
March 15th 2001, Clearly the situation had changed and I wanted the
Ombudsmans decision reversed. I had enlisted my MP's help in this
matter and he had contacted the Ombudsman on my behalf:

ON JUNE 24TH 2003, MRS BELLWOOD OF YOUR OFFICE WROTE TO ME
REGARDING A "FURTHER COMPLAINT AGAINST SEFTON METROPOLITAN
COUNCIL"...and stating ...WE NEED INFORMATION TO HELP US ACHIEVE
THIS."

I NOW REFER YOU TO A FURTHER LETTERS TO MR BARHAM AT YOUR OFFICE
REGARDING THE OMBUDSMANS DECISION ABOUT SEFTON COUNCIL'S "INSURANCE
CLAIMS":

Letter to Mr Barham dated June 26th 2003:

Your Ref:03/C/04380/PIB

Probably in 1993 or 1994 Sefton MBC (SMBC) invented a claim against
themselves and credited it to myself. This claim was referenced
W215732.

In October 1999 I became aware of this claim when Maritime Housing
Association told me that SMBC had informed them that I had made
this claim in 1993. This claim was declared by SMBC to have been
for damage to my gable wall. When I challenged this assertion SMBC
refuted it by declaring that it was legitimate information supplied
to Maritime under a contractual agreement and that it had been
supplied to them in "good faith."

On obtaining my data via the IC in March this year I discovered
that this claim is declared to be for damage to my property -
especially the gable wall - caused by the demolition of 21 Lime
Grove which SMBC declare was adjoined to my property at the time it
was demolished in the 1960's.

As you see from the OS map I have sent you 21 Lime Grove was a
detached house and never adjoined number 19. My wife and I
purchased 19 Lime Grove in 1972 when 21 Lime Grove had been
demolished and maisonettes built in its place.

I ask that you have claim W215732 investigated and inform me of the
result as a matter of urgency, given the clear evidence that it
could not exist.

Letter to Mr Barham June 26th 2003

I refer to your telephone call on July 7th 2002.

Due to the long standing and serious nature of my compliant I do
not consider it appropriate to discuss it by telephone.

This matter requires that all the parties understand what has been
said to whom and, I must stress to you that part of the problem is
that in the past the lack of written confirmation has allowed this
matter to be manipulated by Sefton Council and others.

I regret this situation has arisen but had the matter been fully
investigated in the past, this would not be the case.

ON JULY 11TH 2003 MR BARHAM WROTE THE FOLLOWING TO ME:

"YOUR COMPLAINT AGAINST SEFTON...HAS BEEN PASSED TO ME...I HAVE
SEEN A COPY OF A LETTER FROM THE OMBUDSMAN TO MR J BENTON MP DATED
29 JANUARY 2002IN WHICH SHE SAID THAT IT HAD BEEN DECIDED NOT TO
INVESTIGATE YOUR COMPLAINT BECAUSE OF THE LENGTH OF TIME THAT HAD
PASSED...AND BECAUSE THERE WAS A LEGAL REMEDY AVAILABLE TO YOU...AS
FAR AS I CAN SEE, THE ISSUES YOU ARE NOW BRINGING TO THE OMBUDSMANS
ATTENTION APPEARS TO BE TO BE ABOUT THE SAME CONCERNS WHICH THE
OMBUDSMAN CONSIDERED TWO YEARS AGO...YOUR RECENT LETTER DOES NOT
GIVE THE OMBUDSMAN ANY REASON TO BEGIN AN INVESTIGATION INTO A
FURTHER COMPLAINT...I APPRECIATE THE INFORMATION YOU HAVE SENT MAY
ONLY RECENTLY HAVE COME TO LIGHT BUT THAT DOES NOT ALTER THE FACT
THAT YOU COULD HAVE MADE A COMPLAINT TO THE OMBUDSMAN WITHIN THE
NORMAL TWELVE MONTHS REQUIRED BY THE LOCAL GOVERNMENT ACT 1974. NOR
DOES IT ALTER THE FACT THAT THERE WAS A LEGAL REMEDY AVAILABLE TO
YOU. IT DOES NOT APPEAR THEREFORE THAT THE OMBUDSMAN HAS REASON TO
OPEN A NEW INVESTIGATION.

AND

July12th 2003:

Thank you for your letter dated 11th July 2003.

SMBC declared that by the demolition of an adjoining building in
the 1960's the former party wall between 19 and 21 Lime Grove
became the gable wall of 19 Lime Grove. This is untrue.

In October 1999 SMBC declared to Maritime Housing Association that
I had made a claim against SMBC with regard to the damage in 1993,
i.e. damage to my gable wall caused primarily by this demolition in
the 1960's. This claim is referenced W215732 and is declared by
SMBC to Maritime to be for "cracking and deterioration to my gable
wall." This is untrue.

With regard to claim W215732, SMBC's insurance brokers wrote to me
on August 19th 2002 and declared that claim W215732 was with regard
to an incident on January 1st 1994. This is untrue.

The misinformation regarding this alleged claim - W215732 - which
was supplied to Maritime by SMBC became the basis of my compliant
to SMBC on November 4th 1999 and to yourselves on January 30th
2000.

Clearly the determination of that complaint by yourselves was based
on deceitful information provided to Maritime and myself by SMBC.
Dated January 1994 - not 1993.

I would also point out to you that as no damage to my property was
caused by claim W215732 dated 1st January 1994, no legal remedy
could have been in existence regarding it.

I request that you copy all the evidence - including that sent
today - I have sent to you since June this year and return the
originals to me.

Enclosed.
Maritimes Letter dated October 22nd 1999.
Aon's Letter dated August 19th 2002.

ON JULY 23RD 2003 MR BARHAM WROTE THE FOLLOWING TO ME:

"I NOTE WHAT YOU SAY ABOUT THE DISPUTE AS TO WHETHER YOU HAD MADE
AN INSURANCE CLAIM...THE ONLY SUBSTANTIVE COMPLAINT I CAN SEE, IS
THAT WHICH THE OMBUDSMAN HAS ALREADY CONSIDERED AND HAS DECLINED TO
PURSUE FURTHER...I AM SENDING A COPY OF THIS LETTER TO THE CHIEF
EXECUTIVE OF SEFTON METROPOLITAN BOROUGH COUNCIL TO LET HIM KNOW
THE POSITION."

AND

Mr Barham July 24th 2003

Thank you for your letter dated July 23rd 2003.

I wish to point out to you that your assertion that my complaint
has been dealt with and that the means to resolve it was to take
legal action is incorrect.

My complaint has never been dealt with as I had no knowledge of
claim W215732 until March this year.

SMBC clearly state that this claim was made by myself in 1993.

This is prior to any other alleged claim made by myself regarding
damage to my property on 1994.

Claim W215732 is in no way linked to any further claim as it
regarding alleged demolition in the 1960's which is proven could
have not damaged my property in the manner SMBC declare.

There is no legal action I can take regarding claim W215732 for
there is no damage to my property to claim for, nor any reason for
SMBC to deal with it.

My former solicitors confirm this and therefore your assertion that
my current complaint is "whether you had made an insurance claim"
is in error.

The fact is that I did not , nor could have made a claim regarding
W215732 as W215732 is an invention of SMBC which was then reported
to Maritime Housing Association in February 1999.

I enclose Mr Barrs assertion that primary damage was caused to my
property and is clearly false as is his assertion that my property
was formally mid terrace.

To be clear. I wish to make a complaint that this false claim
W215732 has nothing to support it in fact, and its invention is a
deliberate act of maladminisration, which despite my best efforts
was withheld from me for many years in the furtherance of claim
W215732 to my disadvantage.

Enclosed:
Letter to MHA from Barr. Dated February 1999
Letter from SMBC's CEO date May 1st 2002
Letter to SMBC's Legal Department. Dated 26 November 2002
RSVP"

ON AUGUST 7TH 2003 MR HOBBS THE ASSISTANT DIRECTOR WROTE THE
FOLLOWING TO ME:

"MR BARHAMS LETTER OF 23 JULY GAVE THE REASON WHY THE OMBUDSMANS
DECIDED NOT TO PERUSE YOUR COMPLAINT. I HAVE READ THE PAPERS, AND
SEE NOTHING TO SUGGEST THE DECISION WAS WRONG...THE OMBUDSMAN
REMAINS UNABLE TO HELP YOU AND MR BARHAMS DECISION MUST STAND."

On August 7th 2003 Aon, Sefton's Claims Managers wrote the
following to me in a letter headed "Our Ref: W215732

Our Client: Sefton Council

Re: Public Liability Claim:

Incident: 01 January 1994,

We would respectfully reiterate that you refer this matter to your
legal advisor."

I WROTE THE FOLLOWING TO MR HOBBS ON AUGUST 8TH 2003

Thank you for your letter dated August 7th 2003.

I note your position regarding the false claim W215732 and your
evident support of it, will you affirm this is the case.

I regard this as irrational and point out to you that claim W215732
is still being dealt with by SMBC as if it exists, it does not ,
nor ever has.

I request that you return to me all the copies of documents I have
sent to you over the past months and copies of my own letters to
yourselves.

On August 18th 2003 Aon, Sefton's Claims Managers wrote the
following to me in a letter headed Our Ref: W215732:

"Our Client: Sefton Council

Re: Public Liability Claim:

Incident: 01 January 1994,

We can merely reiterate that you refer this matter to your legal
advisor."

ON AUGUST 26TH 2003 SEFTON COUNCILS FINANCE DIRECTOR (with
constructive knowledge of my letters to the Ombudsman), WROTE (pp
Ms Swale), THE FOLLOWING TO ME:

"Further your letter dated 14th August 2003 regarding clarification
of claim W215732. I attach photocopies of the letters from your
solicitors dated 26th January 1995 and 29th November 1995 which
clearly state they are making a claim on your behalf."

On September 1st 2003 Aon, Sefton's Claims Managers wrote the
following to me in a letter headed Our Ref: W215732:

"Our Client: Sefton Council

Re: Public Liability Claim:

Incident: 01 January 1994,

We can only reiterate that you refer this matter to your legal
advisors as before."

ON AUGUST 21ST 2003 MERSEYSIDE POLICE WROTE THE FOLLOWING TO ME IN
A LETTER HEADED, ALLEGATIONS AGAINST SEFTON MBC EMPLOYEES:

"THE ABOVE MATTER HAS BEEN EXAMINED BY A SENIOR DETECTIVE FROM THIS
AREA...AND OUR FORCE SOLICITOR. IT IS AND WILL REMAIN A CIVIL
MATTER. I WILL NOT ENTER INTO ANY MORE CORRESPONDENCE WITH YOU IN
RESPECT OF THIS CASE. THE COUNCIL IN THE FORM OF MR WILLIAMS
(TECHNICAL SERVICES DIRECTOR) CONFIRMS THAT HE HAS BEEN DEALING
WITH YOUR CASE AND ACCEPTS THERE HAS NEVER BEEN A FORMAL CLAIM IN
YOUR NAME. I SUGGEST THAT YOU REFER THE MATTER TO A SOLICITOR AND
THE DOCUMENTATION WE HAVE WILL BE KEPT FOR SIX YEARS PENDING ANY
CIVIL ACTION YOU MAY TAKE."

ON SEPTEMBER 2ND 2003 I WROTE THE FOLLOWING TO MR HOPE AT AON:

As you know from 2 unanswered letters to yourselves dated May 19th
and July 12th 2002, (both copied to Merseyside Police as this
letter will be) several senior members of SMBC, have affirmed to me
that claim W215732 is a claim made by my solicitors in relation to
a letter from my solicitors dated January 26th 1995 regarding
damage to my property. The damage my solicitors refer to was that
caused by the demolition of the maisonettes at Kepler Street,
Seaforth, Liverpool between March 14th and April 6th 1994 and
notified by me to SMBC on April 6th 1994. This alleged damage was
acknowledged pp by Mr Barr on April 15th 1994 and is affirmed by
both SMBC and Royal & SunAlliance to be the responsibility of
Fawley.

On February 27th 1996 Ms E Smith Senior Claims Officer SMBC
contacted you by Fax regarding claim W215732. She sent you a memo
referenced W215732 sent to her by Mr Barr dated February 27th 1996.

In his memo Mr Barrs affirms that.

"Mr Robinson did not claim that his problems had been caused by
either the demolition or redevelopment contract," and that. "The
problem occurred sometime before either the demolition or
redevelopment contract" and that the problem was related to. "Work
carried out on what was presumably a former party wall and is now
the gable wall of the dwelling."

You formulated a series of questions from and, based on Mr Barrs
memo to be sent to my solicitors

On March 8th 1996 you wrote to Ms Smith in a letter headed, Claim
No W215732 Robinson, and enclosing your proposed reply to my
solicitors - W215732/TSH/BN/lt7 March 20th 1996 - your letter
clearly refers to the alleged damage to my property caused when the
party wall was transformed into a gable wall -

"the work carried out on what is now the gable wall of 19 Lime
Grove"

- and therefore, claim W215732 is with regard to the alleged
transformation of the party wall between 19 and 21 Lime Grove into
a gable wall - which neither Fawley or GTB Demolition Ltd were
involved in as it never occurred - and not the damage caused by the
demolition of the maisonettes

I formally ask that you confirm claim W215732 was not with regard
to damage to my property caused by the demolition of the
maisonettes at Kepler Street in March 1994 but damage allegedly
caused by the transformation of the party wall between 19 and 21
into a gable wall at some earlier time and, evidently was made in
1993 based on letters I wrote to SMBC at that time. I also request
that you inform me if claim W215732 was a formal claim against
SMBC.

I enclose an OS map of 19 and 21 Lime Grove from the 1960's proving
unequivocally that no such transformation of a party wall into a
gable wall could have occurred, and Mr Barrs affirmation to my
Solicitors dated March 7th 1995 declaring survey information about
this damage (which was, and never could have been taken) indicated
this damage had occurred prior to 1994.

ON SEPTEMBER 3RD 2003 MR BARHAM WROTE THE FOLLOWING TO ME:

"THANK YOU FOR YOUR LETTER RECEIVED ON 11 AUGUST. WHEN I WROTE TO
YOU ON 23 JULY I SENT YOU COPIES OF ALL THE PAPERS YOU HAD SENT US
SINCE JUNE WHICH WAS YOUR FIRST CONTACT WITH US THIS YEAR. I AM NOW
ENCLOSING COPIES OF ALL THE LETTERS AND OTHER PAPERS YOU HAVE SENT
US SINCE 23 JULY 2003."

ON SEPTEMBER 4TH 2003 IN A LETTER REFERENCED W215732, AON'S MR HOPE
WROTE THE FOLLOWING TO ME FROM AON,S MANCHESTER ADDRESS:

"I UNDERSTAND THAT THIS MATTER IS NOW BEING DEALT WITH BY OUR
OFFICE IN SHEFFIELD AND THEY WROTE TO YOU ON 1ST SEPTEMBER 2003."

ON SEPTEMBER 5TH 2003 MERSEYSIDE POLICE WROTE THE FOLLOWING TO ME:

"I HAVE FULLY INVESTIGATED YOUR ALLEGATIONS OF POSSIBLE CRIMINAL
CONDUCT BY SEFTON MBC'S EMPLOYEES AFTER OUR MEETING ON 22 JULY.
YOUR ALLEGATIONS SURROUND THE FACT THAT REFERENCE HAS BEEN MADE BY
THEN TO A 'CLAIM' THAT THEY ALLEGE YOU HAVE MADE AGAINST THEM. YOU
DISPUTE EVER HAVING MADE ANY CLAIM. AS A RESULT OF OUR MEETING I
CONTACTED MR WILLIAMS FROM SEFTON MBC. HE INFORMED ME THAT LETTERS
THAT YOU HAD WRITTEN TO THEM HAVE BEEN TREATED AS A CLAIM AGAINST
THEM. I AM SATISFIED THAT THERE IS NO CRIMINAL CONDUCT IN THIS
MATTER AND I TELEPHONED YOU THE FOLLOWING DAY AND LEFT A MESSAGE ON
YOUR ANSAPHONE, AS YOU REQUESTED, TO THAT EFFECT. THIS IS THE END
OF THE POLICE INVESTIGATION. I WILL NOT ENTER INTO ANY FURTHER
COMMUNICATION WITH YOU IN REGARD TO THIS MATTER AND I SUGGEST YOU
CONTACT A SOLICITOR IF YOU REQUIRE FURTHER ADVICE:

ON SEPTEMBER 25TH 2003 I WROTE THE FOLLOWING TO MRS THOMAS THE LGO:

On December 18th 2000 I wrote the following to you:-

"There is now another issue that I wish to make a complaint about,
this is that the Council have issued a 'claim' or 'potential claim'
to their insurers in regard to my property, based on information
known by then to be false."

This was acknowledged on December 21st 2000.

This became formal complaint: 00/C/17558/PAT/pmc - then
00/C/17558/CSO/pmc, which was rejected by your office.

The only reason for this rejection - that I was ever informed of -
was contained in a letter, written to Mr Oxley by Sefton Councils
Legal Director, Mr Bownes on March 15th 2001, which I contested,
but was evidently not considered by yourselves, i.e. on March 27th
2001 I wrote the following to Mr Oxley:-

"My complaint is that SMBC issued claims to their insurers about
damage to my property which contained information known to SMBC, at
the time they issued these claims, to be untrue."

Will you please confirm, as a matter of urgency, that this letter
from Mr Bownes to Mr Oxley of March 15th 2001, confirming that
these claims had been made, was the only reason for the rejection
of complaint 00/C/17558/CSO/pmc - 00/C/17558/PAT/pmc.

The matter of false claims is now in the hands of the court and I
need to confirm that I have had complaint 00/C/17558/CSO/pmc
rejected on the basis of Mr Bownes letter.

ON OCTOBER 6TH 2003 MRS THOMAS WROTE THE FOLLOWING TO ME:

"I CANNOT SEND YOU ANY INFORMATION IN ADDITION TO THAT WHICH HAS
ALREADY BEEN SENT TO YOU. NOR CAN I ALLOW ANY MORE OF MY OFFICERS
TIME TO BE SPENT ON THIS MATTER. FURTHER CORRESPONDENCE FROM YOU
MAY NOT RECEIVE A REPLY."

ON OCTOBER 15TH 2003 ROYAL & SUN ALLIANCE WROTE THE FOLLOWING TO
'STEVE', AND COPIED TO SEFTON'S MS SMITH UNDER THE REFERENCE'S
W215732 (JANUARY 1ST 1994) AND RR98XN (JANUARY 17TH 1994)."

"I ENCLOSE A COPY OF MR ROBINSONS LATEST LETTER WHICH WE RECENTLY
RECEIVED TOGETHER WITH OUR RESPONSE ON 10 OCTOBER. IN VIEW OF THE
LONG STANDING CIRCUMSTANCES WE WILL NOT ACKNOWLEDGE ANY FURTHER
CORRESPONDENCE FROM MR ROBINSON,"

ON OCTOBER 30TH 2003 MY SOLICITORS WROTE THE FOLLOWING TO ROYAL &
SUNALLIANCE N MY BEHALF:

"WE WOULD BE MOST GRATEFUL IF YOU WOULD CLARIFY WHETHER YOUR
REFERENCE RR98XN, IS IN FACT A REFERENCE TO A CLAIM WHICH ALSO HAS
THE CLAIM NUMBER RR98XN."

ON NOVEMBER 25TH 2003 ROYAL & SUNALLIANCE WROTE THE FOLLOWING TO MY
SOLICITORS:

"in response to your query "W215732" is the reference used by our
insureds brokers, Aon to identify this particular matter. our
reference for the same matter is "RR98XN". there was a previous
reference or claim number that was used in connection with this
matter by ourselves and that was "31/AT01939/96".

ON NOVEMBER 25TH 2003 SEFTONS DATA PROTECTION OFFICER RECEIVED THE
FOLLOWING IN A LETTER TO HER FROM THE INFORMATION COMMISSION
REGARDING MY DATA SUBJECT APPLICATION FOR MY PERSONAL INFORMATION
FROM1994 REFERENCED 03_36590/06/AD, WHICH HAS NOT BEEN PROVIDED TO
ME IN MARCH 2003,

AD STATED:

"MR ROBINSON HAS ALLEGED THAT HE HAS NOT RECEIVED A COMPLETE
RESPONSE TO HIS SUBJECT ACCESS REQUEST///MR ROBINSON CONTENDS THAT
HE HAS NOT BEEN PROVIDED WITH ANY INFORMATION FROM 1994...MR
HUFF'S...RESPONSE TO MR ROBINSON CONCERNS THAT MISSING INFORMATION
FROM 1994...A NUMBER OF INFERENCES COULD BE TAKEN FROM MR HUFF'S
RESPONSE. THESE INCLUDE:

THE COUNCIL HOLDS NO PERSONAL DATA ABOUT MR ROBINSON RELATING TO
1994.

THE PERSONAL DATA ABOUT MR ROBINSON RELATING TO 1994 IS COVERED BY
AN EXEMPTION GRANTED BY THE DPA.

ANY PERSONAL DATA HELD RELATED TO 1994 IS NOT HELD AS PART OF A
RELEVANT FILING SYSTEM."

I WOULD BE GRATEFUL, THEREFORE, FOR YOUR CLARIFICATION AS TO WHY MR
ROBINSON HAS NOT BEEN PROVIDED WITH ANY PERSONAL DATA HELD ABOUT
HIM FROM 1994..I WOULD BE HELPFUL IF YOU COULD PROVIDED ME WITH
CLARIFICATION...HE IS ENTITLED TO A RESPONSE WITHIN THE NEXT 28
DAYS."

ON NOVEMBER 26TH 2003 MR BENTON MP WROTE THE FOLLOWING TO ME:

"Correspondence that I have copied to Council Officers was in an
effort to work with them to try to resolve your ongoing
problems...it-is only by copying your letters to the Council that
the gist of your complaints and queries could be adaquatly relayed
to them."

ON DECEMBER 8TH 2003, WITH REGARD TO A COMPLAINT I HAD MADE TO MY
SOLICITORS REGARDING THE CONDUCT OF THE POLICE INVESTIGATION, THEY
WROTE THE FOLLOWING TO ME REGARDING AN HOUR LONG TELEPHONE
CONVERSATION I HAD HAD WITH THEM:

"YOU WILL RECALL...I ADVISED YOU TO WRITE TO ROYAL & SUN ALLIANCE
AND SEFTON REQUESTING CONFIRMATION AS TO WHETHER THEY ARE PREPARED
TO PROVIDED YOU WITH DETAILS OF ANY CLAIM WHICH MAY HAVE BEEN
BROUGHT BY YOURSELF AND DOCUMENTARY EVIDENCE IN SUPPORT OF
THIS...IF YOU DID NOT RECEIVE A RESPONSE WITHIN 14 DAYS THEN YOU
WOULD ASSUME THAT NO SUCH ACTION EXISTED AND FURTHERMORE YOU WOULD
RELY UPON THOSE LETTERS WHEN ATTENDING BEFORE A DISTRICT JUDGE."

THESE LETTERS WERE WRITTEN AND NO EVIDENCE OF WAS, OR EVER HAS BEEN
PROVIDED BY SEFTON TO JUSTIFY CLAIM W215732 DATED 1993, JANUARY 1ST
AND 17TH 1994 (RR98XN).

ON JANUARY 28TH 2004 ROYAL & SUNALLIANCE WROTE TO ME, WITH REGARD
TO CLAIM RR98XN DATED JANUARY 17TH 1994, STATING:

"WE HAVE SENT YOU ALL OF YOUR PERSONAL INFORMATION DATA IN NOVEMBER
2003 IT IS THEREFORE THERE IS NO WITHHELD 'DATA' TO SEND TO YOU."

SUBSEQUENTLY BOTH SEFTON (ON MAY 1ST 2002) AND ROYAL & SUNALLIANCE
(ON AUGUST 7TH 2001) VERIFIED SEFTON CEASED TO BE INDEMNIFIED BY
THEM ON DECEMBER 14TH 1993 WHEN THEY "LOST CONTROL OF THE LAND TO
MARITIME HOUSING ASSOCIATION."

ALL THESE FACTS ARE WELL KNOWN TO THE OMBUDSMAN.

Yours sincerely,

fred robinson

Dear Sir or Madam,

FOR YOUR INFORMATION REGARDING WHAT SEFTON KNEW IN FEBRUARY 2003:

LETTER TO SEFTONS LEGAL DIRECTOR JANUARY 24TH 2003

Will you please send me ALL information held by yourselves to which
I am entitled to request under the Freedom of Information
legislation now in force. I request copies of ALL my correspondence
to the Council to check what you have and have not received to
compare it with the information you send. I request ALL information
you hold on any claims and settlement of claims held by your
Finance Department and allegedly made by myself.

LETTER TO SEFTON COUNCIL 1ST FEBRUARY 2003

Will you please send me ALL information held by yourselves to which
I am entitled to request under the Data Protection legislation now
in force. I request copies of all my correspondence with regard to
claims and settlement of claims held by your Finance Department,
also information of how the alleged settlement of a claim,
regarding my gable wall in 1997, referred to by Mr Barr on January
2000, (Ref: GRB/JBJ/HSG1187) was made and to whom ? I have none of
this correspondence. I also request a copy of a letter from the
Council to Maritime Housing stating I had made a claim for damage
to my gable wall in 1993.

LETTER TO MS ELWOOD SEFTONS FEBRUARY 8TH 2003

With regard to my request for ALL information I am entitled to
under the DATA PROTECTION ACT I enclose a cheque for £10 which I
believe is the correct fee. I especially request that ALL
information regarding claims against the Council and their
settlement be forwarded to me with any correspondence regarding
these claims that was sent to third parties and any notes which
were added to files or computer records.

LETTER TO SEFTON FEBRUARY 14TH 2003

Will you write to me and confirm that you have received both my
application and payment of £10 for information under the DATA
PROTECTION ACT, dated February 8th 2003.

LETTER TO SEFTONS LEGAL DIRECTOR FEBRUARY 20TH 2003

I asked not only for information held by the finance department. I
asked for ALL information I was entitled to under the data
protection act to be provided. This means All information not only
that held with regard to claims held by the Finance Department as
you appear to believe. I have been told by the Finance department a
summons was issued against me regarding Council Tax;- Summons No
2340104 at - The Law Court, Albert Road, Southport. I have written
to the court and they state "the summons No you have quoted does
not relate to one of our cases". Consequently I will not be
attending court.

LETTER TO SEFTONS LEGAL DIRECTOR FEBRUARY 22ND 2003

I formally request that SMBC's letter to MHA, dated between 1st and
10th February 1999, be provided to me as part of my request, and
payment, for information under the Data Protection Act. I believe
that the Council has committed breaches of The Data Protection Act
and ask that you give a reasoned respond to the following to
explicate the matter.

Background

1. In about June 1993 I visited Sefton Councils (SMBC) Planning
department and saw plans for a proposed development of a new
housing estate on land adjacent to my property. This was proposed
to occur after the demolition of buildings adjoining my property
then in situ on the land. These plans show the gardens of the
proposed houses extending to my gable wall - evidently after the
removal of a nib wall and footings.

2. In August and September 1993 I expressed concern in writing to
SMBC I stated it appeared, from the plans, a nib wall and old
footings abutting my gable wall were to be removed during the
forthcoming development. On October 1st 1993, SMBC (Mr Barr) told
me the nib wall and footings abutting my gable wall should not be
interfered with during the development. This fully resolved the
matter.

3. On March 7th 1994 SMBC (Mr Barr) arranged to survey and
photographed my property. The nib wall is shown on some of these
photographs. This survey does not record any damage, cracking or
deterioration to my gable wall. At the outset of demolition of
buildings adjoining my property - [which occurred between March
14th and April 6th 1994] - the nib wall and footings were
photographed in situ.

4. On April 6th and 21st 1994 I reported to SMBC that my property
had been damaged during the demolition of the adjoining buildings -
[It was acknowledged on April 15th 1994 (pp Mr Barr), the one dated
April 21st 1994 was not.] There was no mention of demolition of a
nib wall in this correspondence. - [The nib wall was witnessed by
SMBC's contractors in situ on April 21st 1994.]

5. On July 4th 1998 I wrote to my solicitors reporting latent
damage to my property due to the demolition of the nib wall. This
damage was located at the point where the nib wall had been.

6. On January 27th 1999 I wrote to Maritime Housing Association
(MHA) regarding my property.

7. On February 1st 1999: MHA's Director of Development and Property
Services. (Mr Quayle) wrote to me that MHA's records showed the
land had been transferred to them in "mid 1995" and, citing SMBC as
their consultants, stated he would write to SMBC regarding the nib
wall. - [Between February 1st and 10th 1999 SMBC had clearly
responded to MHA.]

8. On February 10th 1999 MHA (Mr Quayle,) after receiving
correspondence from SMBC, wrote to me with regard to the nib wall,
that. "Matters surrounding this particular wall began as early as
1993."

9. On March 4th 1999 MHA (Mr Quayle) wrote to me that ;- It was
Fawley Construction Ltd - MHA's building contractor. - "Who was
responsible for our development at Kepler Street."

We (MHA and Fawley) are "all convinced that the "nib" wall was not
in existence when we took possession of the site." - [Possession
has been given by MHA, Fawley and SMBC as March 14th 1994.]

That I should be aware that MHA. "Were not responsible for the
demolition of the maisonette blocks which previously occupied the
site, following demolition by Sefton Council."

That "On the evidence I have it would appear, therefore, that the
"nib" wall was removed during the demolition contract." - [This
evidence would appear to be, based on SMBC\s letter of February
1999 to MHA attesting that SMBC were responsible for the damage to
my property caused by the demolition of the nib wall and, had
demolished it and the adjoining buildings in 1993 and, had owned it
until "mid 1995."]

That "I am taking the opportunity of copying this letter to Mr G
Barr at Sefton Council, so that he is fully aware of the
correspondence that has passed between us."

10. On March 10th 1999 MHA (Mr Quayle) confirms that; "The
demolition of the maisonette blocks was carried out, under contract
by Metropolitan Borough of Sefton. I have previously confirmed that
this Association took possession of a cleared site."

"I am aware now of the nature of your enquiry, in that you are
alleging the "nib" wall was demolished after the site was cleared."

"Once again I am taking the opportunity of copying both your letter
and my response to George Barr at Sefton and also to Fawley
Construction." - [Thus SMBC (Mr Barr) knew in March 1999 that I was
alleging the nib wall was not demolished during the demolition of
buildings adjoining my Property in 1993 and, MHA were holding SMBC
responsible for its demolition prior to their possession.]

11.On October 22nd 1999 MHA (Mr Quayle) wrote stating he had.
"Found a letter from Sefton, written to me in February 1999 in
which it is stated;" - [From the above it was apparently written by
Mr Barr.]

"The whole issue of damage to your gable wall appears to go back to
1993."

"That you had a claim against Sefton Council at that time." [i.e.
In 1993.]

That this claim was due to. "Cracking and deterioration of your
gable wall" which had occurred due to. "Demolition of adjoining
buildings".

This letter from MHS to myself quotes verbatim from my
correspondence with SMBC dated August and September 1993. This
correspondence was written solely regarding SMBC's apparent
proposal to demolish the nib wall and remove the footings. - [There
was no demolition adjoining my property in 1993. No mention of the
nib wall is made between 1994 and 1998.]

12. On November 24th 1999 SMBC's Director of Technical Services (Mr
Williams, Mr Barrs superior) states, regarding SMBC's
correspondence to MHA of February 1999 that;

"As the appointed agents of Maritime Housing in respect of the
redevelopment scheme we have a contractual obligation to provide
information to them in respect of work carried out on their behalf;
and also in respect of any matter material to their interest in the
land being developed."

"Mr Barr had, on behalf of Sefton merely complied with his
contractual obligations."

That this information was supplied by SMBC to MHA in "good faith."
- [I also refer you to correspondence to Messrs Barr, Williams and
Heywood, SMBC's CEO, dated respectively; Barr
16/10/99-30/10/99-6/12/99. Williams 29/11/99. Heywood 18/1/00.]

Conclusions

With regard to the above it appears that the Council have breached
the following Principles of "The Data Protection Act 1998." The
reference numbers I use in brackets below are from the December
2001 issue of the "Legal Guide to the Data Protection Act". I
presume you are is au fait with the above1998 Legal Guide.

First Principle: (3.1) (i) SMBC did not obtain my consent (3.1.5)
to disclose to MHA the personal date (2.2) contained in my letters
of 1993 to them.

(ii) That it was known to SMBC that the provision of this personal
data to MHA was regarded by myself as being prejudicial to me.

(iii) The data was not provided to MHA in a fair and lawful manner
(3.1 and 3.1.4) and, did not protect my vital interests, in fact it
worked against them. This I stated to SMBC in November 1999.

(iv) That the data provided to a third party (MHA) was not provided
within a reasonable timescale (3.1.7.7)

Second Principle: (3.2) (i) SMBC had obtained the data in 1993 for
the sole purpose of resolving the matter of their apparent proposed
demolition of the buildings adjoining my property. This matter was
fully resolved by Mr Barrs letter to me dated October 1st 1993.

(ii) The data was used for a different, incompatible, unfair and
unlawfully purpose (3.1. 4) when it was stated by SMBC to MHA in
February 1999 to have been the basis of a claim for damage to my
property in 1993 which had not occurred in 1993.

Third Principle: (3.3) That the data supplied to MHA by SMBC was
irrelevant and excessive in relation to the purpose it was provided
to MHA for.

Forth Principle: (3.4) The data supplied to MHA by SMBC was
incorrect and misleading with regard to the reason stated by SMBC.
i.e. that it was a claim. This incorrect and misleading assertion
was not withdrawn by Mr Williams in November 1999 (3.4 [b].)

Fifth Principle: (3.5) The data was kept for longer that it was
necessary for the purpose it was provided for. - i.e. 6 years.

Sixth Principal: (3.6) The data was not processed with regard to my
rights (3.6.b[ii]) and has caused damage and distress to me.

Seventh Principle: (3.7) The data which was passed to MHA by SMBC
was done so in an unauthorised and unlawful manner.

LETTER TO MS ELWOOD SEFTONS LEGAL DIRECTOR FEBRUARY 26TH 2003

I write with regard to my letters to you dated 1st, 8th and 22nd
February 2003 concerning my request for ALL data I am entitled to
under the Data Protection Act. This letter should be read in
conjunction with my previous letters on the matter and deals with
SMBC's insurance managers AON.

Background 1. I have been notified by AON. (Mr Pearson, Claims
Adjuster) that, with regard to an "incident" dated January 1st
1994, a "public liability claim" (My Ref: W215732) was issued to
AON by SMBC. It is evident that this claim contained data which
caused AON to write to me advising me that I "seek legal advice in
connection with the same". This claim would appear to be connected
with damage to my property.

2. As January 1st 1994 was a bank holiday it is extremely unlikely
that any work was carried out on that day by SMBC - or anybody else
on its behalf - that would have given SMBC the legitimate reason to
send data, which identified me to AON, regarding the "incident"
alluded to and on which I should take - "legal advice."

3. Regarding the date of January 1st 1994, again, as it was a bank
holiday, there would have been no post that day and, therefore, it
may be that the claim for the "incident" had been delayed in the
Christmas post and, was the alleged claim notified to MHA in
February 1999 by SMBC as damage to my "gable wall," caused by the
"demolition of building adjoining my property in 1993".

4. If the "incident" reported to AON occurred on the land adjoining
my property, i.e. the Kepler Street site, and was that which
damaged my "gable wall" and was caused by the demolition of
"adjoining building in 1993" by SMBC. It is abundantly clear that,
that "incident" occurred prior to December 24th 1993 because, for
SMBC to make a legitimate public liability claim. This claim would
have had to have been made prior to SMBC's public liability
indemnity and any contractual obligation to AON - e.g. for any
claims regarding the land, a nib wall or my gable wall - ceasing on
December 24th 1993 and liability passing from SMBC to MHA on
[allegedly] December 24th 1993. [See letters to me from; MHA dated
February 1st 1999, Mr Williams dated September 26th 2000, Ms Swale
dated June 19th and August 8th 2001 and Mr Heywood dated May 1st
2002.]

I request that the data supplied to AON, which established January
1st 1994 being applied to the above claim, is sent to me as part of
my request and payment for information under the Data Protection
Act.

Conclusion With regard to data supplied by SMBC to AON, which
clearly allowed AON to identify me, SMBC appear to have breached
The Date Protection Act as follows. References to the Act are again
in brackets.

First Principle: (3.1) (i) SMBC did not obtain my consent
(3.1.1-3.1.5) to disclose to AON the personal data (2.2) [whether
true or false] to them.

(ii) This personal data SMBC provided to AON [whether true or
false] was prejudicial to me.

(iii) The data [whether true or false] was not provided to AON by
SMBC in a fair and lawful manner (3.1 and 3.1.4) and, did not
protect my vital interests, in fact it worked against them.

(iv) the data supplied to AON by SMBC [whether true or false,] was
not fair (3.1.7-3.1.7.1-3.1.7.2-3.1.7.3)

Second Principle: (3.2) (i) If SMBC had obtained the data in 1993
for the sole purpose of resolving the matter of their apparent
proposed demolition of the buildings adjoining my property. This
matter was fully resolved by Mr Barrs letter to me dated October
1st 1993.

(ii) If (i) above is true. The data was used for a different,
incompatible, unfair and unlawfully purpose (3.1.4) when it was
stated by SMBC to AON to have been the basis of a public liability
claim, which may have been for damage to my property in 1993. NB,
SMBC have not given me a reason for this claim.

Third Principle: (3.3) That the data supplied to AON by SMBC was
irrelevant and excessive in relation to the purpose it was provided
to SMBC for, i.e. the resolution of SMBC's intentions regarding the
nib wall and footings.

Forth Principle: (3.4) The data supplied to AON by SMBC was
incorrect and misleading with regard to the reason stated by SMBC.
i.e. that it was a public liability claim.

Sixth Principal: (3.6) The data was not processed with regard to my
rights (3.6.b[ii]) and has caused damage and distress to me
(4.2-4.2.1)

LETTER TO MS ELWOOD SEFTON’S LEGAL DIRECTOR MARCH 1ST 2003

I write with regard to my letters to you dated 1st, 8th 22nd and
26th February 2003 concerning my request for ALL data I am entitled
to under the Data Protection Act. This letter should be read in
conjunction with previous letters on the matter and deals with
SMBC's insurers Royal SunAlliance (RSA.)

Background

1. I have been notified by RSA of a "public liability claim" (Claim
Number RR98XN,) with regard to an "incident" dated January 17th
1994 and told it was being handled by RSA on behalf of SMBC. RSA
gave me no indication what this claim was for. It is evident that
this claim contained data which allowed RSA to write to me asking
me to advise them if I was "represented in this claim". This
"incident", i.e. event or occurrence, would appear to be connected
with damage to my property on January 17th 1994.

2. As January 17th 1994 was, and still is, given by RSA as the
"incident" date regarding a public liability claim against SMBC, it
would appear the data that was supplied to RSA came from SMBC and
allowed RSA to identify me from it.

3. The reason for this public liability claim to RSA is not known
to me, however, It is abundantly clear that, the "incident" - which
occurred on January 17th 1994 - could not be the subject of a
legitimate public liability claim by SMBC because, for SMBC to make
a legitimate public liability claim. The "incident" which caused
the claim would have had to have been made prior to SMBC's public
liability indemnity ceasing on December 24th 1993 and, as you know,
liability passing from SMBC to MHA on December 24th 1993. [See
SMBC's (Mr Heywood, CEO) letter to me dated May 1st 2002.]

I request that the data supplied to RSA, identifying me and,
causing January 17th 1994 being applied to the above claim, is sent
to me as part of my request and payment for information under the
Data Protection Act.

Conclusion

With regard to data supplied by SMBC to RSA, which clearly allowed
RSA to identify me, SMBC appear to have breached The Date
Protection Act as follows. References to the Act are again in
brackets.

First Principle: (3.1) (i) SMBC did not obtain my consent
(3.1.1-3.1.5) to disclose to RSA my alleged personal data (2.2)
[whether true or false] to them, i.e. that I had made a claim.

(ii) This personal data SMBC provided to RSA [whether true or
false] was prejudicial to me.

(iii) The data [whether true or false] was not provided to RSA by
SMBC in a fair and lawful manner (3.1 and 3.1.4) and, did not
protect my vital interests, in fact it worked against them.

(iv) The data supplied to RSA by SMBC [whether true or false] was
not fair (3.1.7-3.1.7.1-3.1.7.2-3.1.7.3)

Second Principle: (3.2) (i) SMBC had not obtained the data
regarding an incident dated January 17th 1994 from myself or
anybody representing me, therefore by that virtue it could not be
used in a compatible, fair and lawfully manner (3.1.4) when it was
stated by SMBC to RSA to have been the basis of a public liability
claim.

Third Principle: (3.3) That the data supplied to RSA by SMBC was
irrelevant and excessive.

Forth Principle: (3.4) The data supplied to RSA by SMBC was
incorrect and misleading.

Sixth Principal: (3.6) The data was not processed with regard to my
rights (3.6.b[ii]) and has caused damage and distress to me
(4.2-4.2.1.)

LETTER TO MS ELWOOD SEFTONS LEGAL DIRECTOR MARCH 5TH 2003

I write with regard to false and misleading and damaging
information supplied by the Council (SMBC) to Fawley Construction
Ltd and my former solicitors Canter Levin & Berg (CLB) between
January and March 1995 and Mr Benton MP on January 12th 2000.

1. In November 1991 a survey was conducted on my property by a
structural surveyor. This survey found no damage whatsoever to my
gable wall. He noted the gables structural fragility due to it
being free standing.

2. On February 7th and 16th 1994 I wrote to SMBC noting that
"demolition has now started on the development" and warning SMBC -
with regard to 1 above - of the problems demolition of adjoining
building may cause to my property especially my gable wall. This
demolition was the commencement of the first phase of the
development of the Kepler Street site. SMBC acknowledged my letters
on February 28th 1994.

3.On March 7th 1994 SMBC - as a result of 2 - above conducted a
survey of my property. This survey found no damage whatsoever to my
gable wall. - The above proves incontestably that SMBC knew the
development of the Kepler Street site had commenced prior to March
7th 1994 and at that time their own survey proved that there was no
damage to my gable wall.

4. Between March 14th and April 6th 1994 my property was damaged by
the demolition of buildings adjoining my property. On April 6th and
21st 1994 I notified and described this damage to SMBC's Technical
Services. - The above proves incontestably that SMBC's Technical
Services knew that my property was damaged by the demolition of
adjoining buildings between March 14th and April 6th 1994.

5. On April 15th 1994 SMBC's Technical Services acknowledged the
damage in 4 above. On October 24th 1994 I had this damage
quantified by a structural surveyor. Using SMBC's survey, taken on
March 7th 1994 during the development, he found some 30 changes for
the worse in my property. He recommended, in order to prevent a
claim, SMBC be contacted to ask them to provide a grant to repair
my property.

6. On January 26th 1995 my solicitors wrote to SMBC solely
regarding my structural surveyors report and my correspondence of
April 1994. Both regarding damage caused by the demolition of
buildings adjoining my property between March 14th and April 6th
1994. They suggested meeting to discuss the matter.

7. On February 17th 1995 SMBC (Mr Waddelow) wrote to CLB stating
that "damage if attributable to development is essentially a matter
between Householders and the developer concerned" The matter was
then passed to Technical Services. At this time Technical Services
had constructive knowledge my property had been damaged during
development due to my letters of April 1994.

8. Technical Services referred the matter to Fawley, MHA's
builders. Mr Fawley visited me on March 1st 1995 and states that
his visit was prompted by "a letter Sefton Council had received
from your solicitors dated 26th January 1995 regarding the
condition of your gable wall." He also states that I had told him
regarding my gable wall that "considerable worsening had occurred
during the demolition of the adjoining buildings." - There is no
mention of cracks to my gable wall in CLB's letter to SMBC of
January 26th 1995.

9. On March 7th 1995 Mr Barr stated to CLB that survey information
was taken of the property before redevelopment. In effect Mr Barr
is stating the survey by SMBC - taken on March 7th 1994 - had
occurred prior to development. - Mr Barr states that a claim for
damage to my gable wall was "settled off" in 1997.

11. On March 4th 1999, in a letter copied to Mr Barr, MHA (Mr
Quayle) states they have evidence that the demolition of buildings
adjoining my property occurred prior to their possession of the
site. - This evidence, which is clearly untrue, is confirmed by
MHA's CEO as being obtained by discussions with SMBC and Fawley and
from MHA's, SMBC's and Fawleys records. It will not be confirmed by
SMBC or Fawley.

Under 4.2 and 4.2.1 of the Data Protection Act - Date Subject
Notice. I request that SMBC ceases to process any information you
have obtained from Fawley Construction Ltd regarding myself as it
is untrue and misleading and has, and is likely to, cause me damage
and distress. I request that you notify all the other parties it
has been passed to that it is misleading and untrue. I also request
that SMBC ceases to process the information that a claim by me
regarding my gable wall was settled off in 1997 as it is untrue and
misleading, and inform my MP Mr Benton and any other parties it has
been passed to of this fact.

I request that you send me details of any further rights of access
to information under the Freedom of Information Act which may have
come into effect in March 2003, or where I may obtain a copy of
them.

LETTER TO MS ELWOOD SEFTONS LEGAL DIRECTOR MARCH 6TH 2003

I write regarding correspondence between Fawley Construction Ltd
and the Council (SMBC) between January and March 1995. This
correspondence resulted in SMBC making false unjustified and
unsupported assertion to their insurance representatives regarding
a claim against SMBC. I refer you to my letters of February this
year to yourself related to the matter.

Background

1. On January 26th 1995 SMBC received a letter from my solicitors,
Canter Levin & Berg (CLB). This letter requested that SMBC indicate
- by reference to my previous correspondence with SMBC dated April
6th and 21st 1994 - whether they would consider funding repairs to
my property solely for alleged damage caused during the demolition
of building adjoining my property. What this alleged damage was,
and its cause, was known to SMBC from my correspondence to
Technical Services of April 1994. To resolve the matter CLB
suggested a meeting between my surveyor and SMBC. SMBC did not, as
requested, indicate if they would be prepared to fund repair to my
property or not but, state that this letter was a claim holding
SMBC responsible for "crack fractures" to my property which
allegedly only became known on receipt of this letter. [See above]

2. After telling my solicitors that the matter of damage to my
property was not essentially SMBC's responsibility but that of the
developers. SMBC contacted Fawley Construction Ltd. Fawley,
Maritime Housing Associations (MHA - the developers) building
contractors who, are said by SMBC's insurers, to be the ones
responsible for the alleged damage to my property between March
14th and April 6th 1994. In a letter copied to Mr Barr from MHA
dated March 4th 1999 it is clearly stated by MHA that. "The
Associations building contractor who was responsible for our
development at Kepler Street." This responsibility was stated by
MHA to have begun on possession by Fawley. Possession is given by
MHA, Fawley and SMBC as March 14th 1994. MHA have also stated to me
that. In March 1994 "Fawley took possession of the site." SMBC
assert the site was "handed back" to MHA on April 1st 1994. By whom
this handing back was done they will not say, however, it is
abundantly clear it was not "handed back" by SMBC as SMBC were
neither the owners or in possession of the site on April 1st 1994.
[See 2 above and SMBC's (Mr Heywood CEO) letter to me of May 1st
2003.]

3. On March 1st 1995 I was visited by Mr D Fawley, he did not
identify himself or give his name to me. He did however refer to my
solicitors letter to SMBC of January 26th 1995. Based on this
reference to SMBC I assumed he was a representative of SMBC. When
Mr Fawley - with regard to a "report" he stated he was to make -
began to ask me what I considered inappropriate questions about my
property I referred him, under my solicitors advice not to answer
verbal questions, to my solicitors for the answers. He then left.

4. On the day of the above visit by Mr Fawley, March 1st 1995, I
telephoned my solicitors and reported to them that a member of SMBC
had visited me and I had referred him to them. This message clearly
records that I did not wish SMBC to make the "report" referred to
by Mr Fawley. There is no mention of me arranging a meeting and,
given SMBC had already been asked to attend a meeting in my
solicitors letter, no logical reason why SMBC would ask Fawley to
arrange one to include SMBC.

5. On March 7th 1995 SMBC (Mr Barr) wrote to my solicitors
confirming that Mr Fawley had visited me "with a view to arranging
a meeting so the property could be inspected by all relevant
parties." Mr Barr states that (undated and unknown to me) survey
information was taken "before the redevelopment works" i.e. prior
to January 17th 1994, and it indicates that the "primary cause" of
damage to my property occurred "before the redevelopment works
commenced" i.e. prior to January 17th 1994. What this damage was or
what caused it is not mentioned. It appears to be damage SMBC state
to MHA, occurred in 1993.

6. In a letter to myself dated May 25th 1999 MHA state that,
"particular issues" over the matter of the nib wall, had been
"resolved." Clearly this is in line with Mr Barrs assertion of
January 12th 2000 when he refers to "damage to your gable wall
arising from the removal of the nibwall." And, confirms that SMBC's
Finance Department has a record of the "settling off" of a claim
for damage to my gable wall in August1997.

To better understand the reason why SMBC would refer my solicitors
letter (said by SMBC to be a claim against SMBC,) to Fawley. I
request that all correspondence regarding this matter and causing
Mr Fawley to visit me in 1995 are included in my request for
information under The Data Protection Act. It may transpire that
SMBC have breached The Data Protection Act by providing data to
Fawley regarding a claim against SMBC which identified me.

Letter to Ms Elwood Seftons legal Director March 6th 2003

I write regarding correspondence between Fawley Construction Ltd
and the Council (SMBC) between January and March 1995. This
correspondence resulted in SMBC making false unjustified and
unsupported assertion to their insurance representatives regarding
a claim against SMBC. I refer you to my letters of February this
year to yourself related to the matter.

Background

1. On January 26th 1995 SMBC received a letter from my solicitors,
Canter Levin & Berg (CLB). This letter requested that SMBC indicate
- by reference to my previous correspondence with SMBC dated April
6th and 21st 1994 - whether they would consider funding repairs to
my property solely for alleged damage caused during the demolition
of building adjoining my property. What this alleged damage was,
and its cause, was known to SMBC from my correspondence to
Technical Services of April 1994. To resolve the matter CLB
suggested a meeting between my surveyor and SMBC. SMBC did not, as
requested, indicate if they would be prepared to fund repair to my
property or not but, state that this letter was a claim holding
SMBC responsible for "crack fractures" to my property which
allegedly only became known on receipt of this letter. [See above]

2. After telling my solicitors that the matter of damage to my
property was not essentially SMBC's responsibility but that of the
developers. SMBC contacted Fawley Construction Ltd. Fawley,
Maritime Housing Associations (MHA - the developers) building
contractors who, are said by SMBC's insurers, to be the ones
responsible for the alleged damage to my property between March
14th and April 6th 1994. In a letter copied to Mr Barr from MHA
dated March 4th 1999 it is clearly stated by MHA that. "The
Associations building contractor who was responsible for our
development at Kepler Street." This responsibility was stated by
MHA to have begun on possession by Fawley. Possession is given by
MHA, Fawley and SMBC as March 14th 1994. MHA have also stated to me
that. In March 1994 "Fawley took possession of the site." SMBC
assert the site was "handed back" to MHA on April 1st 1994. By whom
this handing back was done they will not say, however, it is
abundantly clear it was not "handed back" by SMBC as SMBC were
neither the owners or in possession of the site on April 1st 1994.
[See 2 above and SMBC's (Mr Heywood CEO) letter to me of May 1st
2003.]

3. On March 1st 1995 I was visited by Mr D Fawley, he did not
identify himself or give his name to me. He did however refer to my
solicitors letter to SMBC of January 26th 1995. Based on this
reference to SMBC I assumed he was a representative of SMBC. When
Mr Fawley - with regard to a "report" he stated he was to make -
began to ask me what I considered inappropriate questions about my
property I referred him, under my solicitors advice not to answer
verbal questions, to my solicitors for the answers. He then left.

4. On the day of the above visit by Mr Fawley, March 1st 1995, I
telephoned my solicitors and reported to them that a member of SMBC
had visited me and I had referred him to them. This message clearly
records that I did not wish SMBC to make the "report" referred to
by Mr Fawley. There is no mention of me arranging a meeting and,
given SMBC had already been asked to attend a meeting in my
solicitors letter, no logical reason why SMBC would ask Fawley to
arrange one to include SMBC.

5. On March 7th 1995 SMBC (Mr Barr) wrote to my solicitors
confirming that Mr Fawley had visited me "with a view to arranging
a meeting so the property could be inspected by all relevant
parties." Mr Barr states that (undated and unknown to me) survey
information was taken "before the redevelopment works" i.e. prior
to January 17th 1994, and it indicates that the "primary cause" of
damage to my property occurred "before the redevelopment works
commenced" i.e. prior to January 17th 1994. What this damage was or
what caused it is not mentioned. It appears to be damage SMBC state
to MHA, occurred in 1993.

6. In a letter to myself dated May 25th 1999 MHA state that,
"particular issues" over the matter of the nib wall, had been
"resolved." Clearly this is in line with Mr Barrs assertion of
January 12th 2000 when he refers to "damage to your gable wall
arising from the removal of the nibwall." And, confirms that SMBC's
Finance Department has a record of the "settling off" of a claim
for damage to my gable wall in August1997.

To better understand the reason why SMBC would refer my solicitors
letter (said by SMBC to be a claim against SMBC,) to Fawley. I
request that all correspondence regarding this matter and causing
Mr Fawley to visit me in 1995 are included in my request for
information under The Data Protection Act. It may transpire that
SMBC have breached The Data Protection Act by providing data to
Fawley regarding a claim against SMBC which identified me.

Yours sincerely,

fred robinson

Dear Hilary Pook,

FOR YOUR INFORMATION:

ALMOST EVERYTHING I HAVE ATTEMPTED TO EXTRACT FROM THE MANY
AUTHORITIES OVER THE PAST 20 YEARS OR SO IS ROOTED IN A FALSE
INSURANCE CLAIM REFERENCED W215732 DATED 1993, A CLAIM ALLEGEDLY
MADE BY ME AGAINST SEFTON COUNCIL FOR THE DEMOLITION OF NONE
EXISTENT BUILDINGS, AND BECAUSE OF THAT FALSE CLAIM, MANY
"AUTHORITIES" HAVE BEEN DRAWN IN AND BECOME INSTRUMENTAL IN
ASSISTING SEFTON IN THE CONCEALMENT OF, OR THE UPHOLDING OF THIS
INANE UNFOUNDED CLAIM, AND THE OTHER FRAUDULENT CLAIMS THAT FLOWED
FROM IT.

THIS IS INEVITABLY DONE BY "AUTHORITIES" EITHER PROVIDING ME WITH
FALLACIOUS INFORMATION WHICH, WILL NOT, EVEN WHEN THE "AUTHORITIES"
ARE CONFRONTED WITH THE EVIDENCE OF ITS UNTENABILITY ADMIT ITS
FALLACIOUS, AND CENSURE ME FOR ATTEMPTING TO HAVE IT DISCLOSED OR
PASS IT AROUND LIKE THE BAD SMELL IT IS IN THE HOPE IT WILL NOT
COME BACK, OR LIKE THE IC AND SEFTON, ACT AS IF IT IS I WHO AM IN
THE WRONG AND VEXATIOUS FOR DARING TO ASK FOR THE INFORMATION AGAIN
AND AGAIN AND AGAIN WITH NO CONSTRUCTIVE RESPONSE BEING GIVEN OR,
BEING TOLD THAT I HAVE BEEN GIVENTHE INFORMATION.

AUTHORISES LIKE THE IC, WHO DENIED ME OF MY RIGHT TO INFORMATION ON
SEFTON'S BEHALF, CULMINATING WITH THE PROVISION OF THE CONTENTION
THAT IT WAS NOT HELD IN A 'RELEVANT FILING SYSTEM' WHEN, SEFTON -
IF NOT THE COMMISSION - KNEW, IT WAS NOT HELD AT ALL AS IT WAS ,
APART FROM A HANDFUL OF MY PERSONAL INFORMATION FROM 1994, NONE
EXISTENT.

THE COVERT INFORMATION PROVIDED TO SEFTON BY THE COMMISSION,
ALLOWED SEFTON TO UPHOLD THE FALLACIOUS CONTENTION THAT I MADE AN
INSURANCE CLAIM AGAINST SEFTON IN 1993 TO REMAIN THE PRIME CAUSE OF
WHY MY HOUSE HAS A CHARGE ON IT BY ROYAL & SUNALLIANCE AND I OWE
TENS OF THOUSANDS OF POUNDS TO SEFTON COUNCIL AND OTHER PARTIES WHO
HAVE AIDED THEM, AGAIN, ALL DUE TO CLAIM W215732 DATED 1993.

IF THE REAL BILL TO THE PUBLIC FOR EVERTHING THAT HAS FLOWED FROM
THAT FALSE CLAIM, POSSIBLE FRAUDULENT SALE OF LAND AND TIME WASTED,
WAS ADDED UP. IT MUST BE IN THE HUNDREDS OF THOUSANDS OF POUNDS BY
NOW WITH NO END IN SIGHT WITHOUT DISCLOSURE OF INFORMATION.

MY PERSONAL INFORMATION HAS BEEN CYNICALLY PASSED FROM ONE
AUTHORITY TO ANOTHER FOR YEARS, INCLUDING PASSING BETWEEN THE IC
AND SEFTON MBC TO MY HUGE DISADVANTAGE AND COST.

THE ONLY WEAPON A CITIZEN HAS IS ACCURATE INFORMATION TO DEFEAT
AUTHORITIES WHO HAVE A HORRIBLE EFFECTS ON HIS HIS LIFE.

IT IS THEREFORE A GRIM IRONY THAT THE BODY CHARGED WITH THE
PROVISION OF INFORMATION, SEEKS TO DENY ITS ACCESS ON THE SAME
BASIS AS SEFTON AND THE COURTS - VEXATION.

NOTWITHSTANDING THE VEXATION I HAVE BEEN PUT TO BY THE ACTIVITIES
OF BOTH "AUTHORITIES NONE DISCLOSURE OF MY PERSONAL DATA AT THE
RELEVANT TIME.

I KNOW ITS HARD FOR A PERSON TO CONTEMPLATE DISMISSLE FROM YOUR JOB
AND PERHAPS CRIMINAL CHARGES, BUT THATS NOT MY FAULT AS THAT PERSON
CHOSE TO DO AS HE, OR SHE DID.

NOR SHOULD IT BE SEEN TO BE BY THE CONSTANT DENIAL OF ONE SIMPLE
TRUTH THAT WILL UNDO THE MATTER.

THAT SIMPLE TRUTH LIES AT THE HEART OF THE MATTER AND IS:

HOW COULD I HAVE MADE A LEGITIMATE CLAIM FOR THE DEMOLITION OF NONE
EXISTENT BUILDINGS WHEN I LIVED IN A MID TERRACE LOCATION IN LIME
GROVE ?

WHICH LEADS TO, THE INVOLVEMENT OF THE LAND REGISTRY PROVIDING ME
WITH FALSE TITLE PLANS AND SUPPORT THAT 19 AND 21 LIME GROVE WERE
ADJOINED AND THE OS DENYING THEIR OWN MAPPING.

TURNING TO YOUR E-MAIL BELOW FEIGNING IGNORANCE OF THE CONSTANT
CORRESPONDENCE WITH THE COMMISSION FOR YEARS:

Thank you for your correspondence dated 24 December, however it is
not clear what further information you are seeking. In your email
you ask how we can conclude that a request can be deemed to be
vexatious under the FOIA without knowing the identity of “an
authority.” In your email of 19 December you had asked us to
“please confirm or deny that a first time request, that has never
been asked before and, therefore, never been answered within the
confines of the Act, can be vexatious under any section of the
Act.” This is a general question about the Act itself and not about
the decision of a particular public authority and thus in answering
it we would not need to know the identity of any authority as the
Act applies the same to all public authorities.

TO ANSWER PART OF THAT QUESTION IN TERMS OF THE FOIA AND DPA:

Two of he "authority" were the "IC's" Mr Andrew Damm's who engaged
in correspondence with the other "authority" Sefton Council
regarding two boxes of my data allegedly from 1994 held by Sefton.

Ultimately Sefton used and passed onto Royal & SunAlliance, the
contention - given to them by Mr Damms - that my information from
1994 fell under the 'Durant' ruling as it was not held in a
relevant filing system and consisting of some 700 documents held by
Sefton's Technical Services and Insurance Sections.

The evidence provided by Mr Damns was referred to by myself in
claim W215732 on April 16th 2005 preventing Sefton from using it
with regard to 'Durant' it in the same manner as Royal &
SunAlliance had done in February 2005 to deny me access to my
personal data held by them regarding another fraudulent claim
RR98XN dated January 17th 1994 and, appear to have persuaded two
District Judge's, to strike out my claims against both Sefton and
Royal & SunAlliance on the basis of 'Durant" and deny me access to
my personal information to the font of my January 1994 'claims'.

I HAVE RECENTLY MADE FIRST TIME FOI REQUESTS TO THE IC, AND SEFTON
REGARDING THE TIME WHEN THE PROPER DISCLOSURE TO ME SHOULD HAVE
BEEN MADE REGARDING THEIR "COVERT CORRESPONDENCE" AND MEETINGS THEM
REGARDING MY DPA APPLICATION - ALLEGEDLY REGARDING 700 DOCUMENTS
DATED 1994.

BOTH THE COUNCIL AND THE IC NOW RELY ON EACH OTHER NOT TO CONFIRM
OR DENY WHAT IN FACT THEY KNOW AND IT WILL COME TO TRANSPIRE THAT
ANY ACTION SEFTON TAKE IN NOT RESPONDING TO MY FOI REQUESTS, NOT
ONLY WILL, BUT MUST, BE SUPPORTED BY THE IC AS IT HAS BEEN IN THE
PAST AND WHO KNOWS - EVEN NOW THERE MAY BE COVERT INFORMATION
FLOWING BETWEEN THE IC AND THE COUNCIL AGAIN IN PREPARATION.

FOR YOUR FURTHER INFORMATION - SOME CORRESPONDENCE FROM 2003 TO
2005 REGARDING THESE 700 DOCUMENTS NOT HELD IN A "RELATIVE FILING
SYSTEM" AND THE PERNICIOUS EFFECT OF THE CONCEALMENT OF WHAT THE IC
AND SEFTON KNEW, AND COLLUDED ABOUT DURING THAT TIME.

As you see below I am reliant on the information being fed to me by
the being true.

LETTER TO SEFTONS MR HUFF APRIL 10TH 2003

I still await a response to my allegations of breaches of the act
which was promised to me by the Councils Legal Director on March
4th 2003. I would point out that there are many letters to and from
the Housing and Environmental Departments missing from my data.
Will you send them? I most especially request a copy of my letter
to the Council dated 17/12/98 and responded to by DSOM/402/98/CG on
22/12/98. RSVP

LETTER TO SEFTONS MR HUFF MAY 25TH 2003

I refer you to past correspondence regarding the assertion by the
Council I am not entitled to data you hold on me. I have been
informed by the information commission today that you are in breach
of the act. I have requested ALL of the information I am entitled
to and this has not been provided. I have also been told my
assertions, you have breached the act, would be addressed, this has
not occurred. I have requested an explanation of this and have
received none. I contend that the information I seek is being
withheld against my right to obtain it with the purpose of avoiding
censure. I formally request you address these matters and inform me
why you believe I am not entitled to the information I have
requested and, to address the matter of breaches of the act.

LETTER TO MR HUFF JUNE 13TH 2003

With regard to my recent application under The Data Protection Act,
I formally request that you provide me with ALL copies of my
correspondence with the following Council Departments between the
dates I now provide. I am told by The Information Commission that
you cannot assume I have my own copies. I request copies of my
correspondence with:

The Planning Department between September 1999 and the present.

The Environmental Protection Department (Mr Cannon) between May
2001 and December 2002.

The Housing Department between December 2001 and December 2002.

Building Control Services (Mr Woods and Mr Edgerton and Mr Heywood
CEO - related to this correspondence) between September and
November 2000 also that to Ms Gillard, Housing Maintenance, Pendle
Drive, Litherland.

I still await a copy of my letter to the Council dated 17/12/98
which was answered by Mr Mc Lennan on December 22nd 1998, ref:
DSMO/402/98/CG.

I look forward to the provision of these copies and a response to
my correspondence with you dated 10/4/03 - 25/5/03 - 15/5/03.

I REMIND YOU THAT THE DATA (MUCH OF IT FALSE) YOU HOLD WITH REGARD
TO MYSELF IS PART OF A 'SET' AND PARTS OF IT CANNOT BE WITHHELD, I
THEREFORE REQUEST ALL OF MY CORRESPONDENCE FROM 1994 TO MR BOARDMAN
AND MR BARR BE COPIES TO ME. [6 items]

NB I would also request any 'fax' messages and memos associated
with the above on the basis that these are also part of a 'set' of
data. I also request ALL documents to and from third parties with
regard to the above.

I wish to complain that some documents sent to me already have been
'cropped', this appears to have been done to remove information
from them. The normal copying process does not reduce the size of
the copy paper.

LETTER TO MR HUFF NOVEMBER 1ST 2003: DATA PROTECTION FORMAL REQUEST
FOR DATA

With regard to my letter to you dated June 31st 2003 I request you
send me the data I requested, and am entitled to. BY LAW.

WITH REGARD TO THE DATA FROM 1994 I REQUEST THAT YOU SEND ME COPIES
OF MY LETTERS TO SMBC WHICH WERE ACKNOWLEDGED ON FEBRUARY 28TH 1994
BY MRB/HMB/HSG1197AR. AND FROM APRIL 6TH 1994 ACKNOWLEDGED BY
MRB/HSG/1197AR DATED APRIL 15TH 1994.

WITH REGARD TO A CLAIM - I ALLEGEDLY MADE IN 1993 AGAINST SMBC
UNDER POLICY: SEFPPL93 WITH AON CLAIMS MANAGERS - AND WHICH IS ALSO
KNOWN BY THE REFERENCE W215732 - ROBINSON. I REQUEST COPIES OF ANY
CORRESPONDENCE WITH AON* BETWEEN AUGUST 1993 AND MARCH 1996 WHICH
REFERS TO CLAIM REFERENCE W215732 - ROBINSON.

I also request details of a claim said - by Mr Barr, ref:
GRB/JBJ/HSG1187 and dated 12th January 2000 - to have been "settled
off" in August 1997, which was made by me against SMBC with regard
to my gable wall related to demolition of a "nib wall."

* Aon/Rollin Hudig Hall.

LETTER FILED AT COURT IN CLAIM LV360271 ROBINSON V SEFTON MBC ON
APRIL 15TH 2005

RELEVANT FILING SYSTEM - INFORMATION COMMISSION

WITH REGARD TO THE DATA REFERRED TO IN THE LETTER WRITTEN TO THE
COURT ON OCTOBER 11TH 2004 BY MR GIBSON. THE DATA THAT THE
INFORMATION COMMISSION AFFIRM IS NOT HELD IN A RELEVANT FILING
SYSTEM IS SOLELY THAT FROM 1994. IT APPEARS THAT THIS DATA HAS
ALLEGEDLY BEEN 'LOST' BY THE COUNCIL IN ANY CASE. THE INFORMATION
COMMISSION CONFIRMS TO ME THAT MY OWN CORRESPONDENCE CANNOT BE
WITHHELD FROM ME - WHICH IS THE CASE REGARDING MY CORRESPONDENCE
WITH THE COUNCIL OF 1994. SEFTON HAVE NOT CONFIRMED TO THE COURT
THEY HAVE THIS CORRESPONDENCE FROM 1994.

THE INFORMATION COMMISSION HAS NOT MADE ANY ASSESSMENT REGARDING
DATA AFTER 1994. THEIR VIEW, WITH REGARD TO THE NUMBERED
DOCUMENTATION I CLAIMED I HAD NOT HAD, IS THAT THE COUNCIL MAY HAVE
PROVIDED IT TO ME IN AN UN-NUMBERED FORM. THIS VIEW IS STATED TO ME
BY THE INFORMATION COMMISSION IN A LETTER DATED NOVEMBER 25TH 2003
AND SEEMINGLY CONFIRMED BY MYSELF, AS DURING THE BUILDING OF THE
FILE FOR THE COURT CASE, I STRIPPED ALL THE HUNDRED OF DOCUMENTS
THAT COMPRISE MY OWN FILES, COMPLAINT FILES AND VARIOUS
CORRESPONDENCES, DURING THE COURSE OF WHICH I DISCOVERED MANY MORE
COPY DOCUMENTS THAT INDEED I DO HAVE IN NUMBERED, TWICE NUMBERED
WITH DIFFERENT NUMBERS, AND UN - NUMBERED FORM. FROM WHAT I NOW
HAVE, IT IS POSSIBLE TO EXTRAPOLATE SOME OF THE NUMBERED DOCUMENTS
I DO NOT HAVE.

THE COUNCIL STATE A LIST OF NUMBERED DOCUMENTS HAD BEEN SENT TO THE
INFORMATION COMMISSION. THIS MAY HAVE CONFIRMED THE COMMISSIONERS
VIEW I HAD COPIES OF THEM. THE DOCUMENTS BETWEEN OCTOBER 1993 AND
JANUARY 1995 ARE NOT NUMBERED.

14 UNDISCLOSED TO ME, DOCUMENTS PRIOR TO AUGUST 1993 ARE NUMBERED.

THE INFORMATION COMMISSIONS LETTER TO ME OF NOVEMBER 25TH 2003, MAY
WELL HAVE BEEN COPIED TO SEFTON MBC AS, ON THAT DATE MR GIBSON
WROTE TO ME STATING THAT, WITH REGARD TO "MY FILE" HE WANTED TO
MEET ME REGARDING LETTERS I HAD WRITTEN TO THE LEGAL AND TECHNICAL
SERVICES DIRECTORS ON NOVEMBER 20TH 2003 - COPIES OF WHICH I
ATTACH.

WITH REGARD TO DATA PROVIDED TO ME BY ROYAL & SUNALLIANCES
HOXWORTH,

COUNCIL DOCUMENTATION REGARDING THE KEPLER STREET DEVELOPMENT,
WHICH I AM NOT ENTITLED TO UNDER THE DATA PROTECTION ACT EMERGED.
IT MAY WELL BE THAT THIS IS THE DATA THAT THE COUNCIL REFER TO AS
THAT OF 1994.

IN SHORT, MY UNDERSTANDING FROM MY CORRESPONDENCE WITH THE
INFORMATION COMMISSION, IS THAT.

NO DATA REGARDING FALSE CLAIMS ALLEGEDLY MADE BY MYSELF ARE
ASSESSED BY THE INFORMATION COMMISSION TO BE EXEMPT UNDER THE ACT.
THIS IS CONFIRMED IN THEIR LETTER TO ME DATED AUGUST 6TH 2002 WHICH
I SUBMITTED TO THE COURT ON DECEMBER 17TH 2003 TO PROVE THE COURT
HAD JURISDICTION IN MY CLAIM.

WITH REGARD TO THE DATA SEFTON HOLD IN THEIR CARDBOARD BOXES IT
APPEARS - AS WITH THE DATA FROM 1994 - THAT THIS DATA FORMS NO PART
OF THE DATA SUPPLIED TO ME UNDER THE ACT BECAUSE IT IS PRIVILEGED
AND NOT NUMBERED.

IT ALSO APPEARS THAT THE COUNCILS MISLEADING ASSERTION THAT THE
INFORMATION COMMISSION ALLEGEDLY ENDORSED THE VIEW THAT 'NO DATA'
WAS HELD IN A RELEVANT FILING SYSTEM - PROVIDED TO THE COURT ON
OCTOBER 11TH 2004 AFTER THE SEFTON AND ROYAL & SUNALLIANCE CASES
HAD BEEN COMBINED - IS THE 'EVIDENCE' ROYAL & SUNALLIANCE RELIED ON
WITH REGARD TO THE 'DURANT CASE' IN MY CLAIM AGAINST THEM.

CLEARLY THIS ALLEGED EVIDENCE WAS NOT, NOR COULD BE, EVIDENCE
RELIED ON IN ANY APPLICATION TO THE COURT PRIOR TO OCTOBER 11TH
2004 BY EITHER DEFENDANT.

SEFTON, BY NEVER MAKING AN APPLICATION OR DEFENCE, HAVE NEVER
STATED ANYTHING THEY RELY ON AS EVIDENCE.

I WILL HAND DELIVER A COPY OF THIS LETTER TO SEFTON MBC.

Yours sincerely,

fred robinson

Dear Hilary Pook,

Thanks

Yours sincerely,

fred robinson

Dear Hilary Pook,

FOR YOUR INFORMATION:

Alleged “Complaints” about titles LA45086, LA45343 and MS351603

ON JULY 5TH 2006 I SENT A DETAILED LETTER AND ‘CUT AND PASTED’
EVIDENCE OF FORGED LAND REGISTRY MAPPING OF TITLES LA45086, LA43343
AND MS350603 TO THE OFFICE OF THE DEPUTY PRIME MINISTER AND FILED
IT AT THE LIVERPOOL COUNTY COURT STATING:

“It is my belief that this matter should be now be properly
investigated by either the Police or the Serious Fraud Office as
the Land Register is now unreliable.”

ON JULY 10TH 2006 THIS LETTER WAS RESPONDED TO ON BEHALF OF THE
DEPUTY PRIME MINISTERS OFFICE BY THE DEPARTMENT OF COMMUNITIES AND
LOCAL GOVERNMENT STATING:

“Thank you for your letter regarding the report of falsified land
records…the Department…has considered your letter but unfortunately
it does not have responsibility for the issue raised in your
letter…we have forwarded your letter today to the Department of
Community Affairs.”

I FILED THIS LETTER AT LIVERPOOL COUNTY COURT FAO THE DISTRICT
JUDGE ON JULY 12TH 2006.

ON JULY 24TH 2006 THE LAND REGISTRIES ASSISTANT TO THE LAWYERS
WROTE THE FOLLOWING TO ME ALTERING MY REPORT OF ALLEGED CRIME, TO A
COMPLAINT BY STATING:

“Your complaint has been forwarded to the Land Registry by the
office of the Deputy Prime Minister as the matter falls within its
remit. One of the teams lawyers will consider your complaint.”

ON AUGUST 4TH 2006 IN A LETTER (ACRT/MS 351603.A.081/DW) HEADED
MARITIME HOUSING ASSOCIATION, TITLE MS351603, LAND AT KEPLER STREET
AND MAPLE CLOSE SEAFORTH: THE AGENCY CASE REVIEW TEAM IN COVENTRY
WROTE THE FOLLOWING TO ME REGARDING MY LETTER TO THE DEPUTY PRIME
MINISTER AND PRESUMABLY THE FILED FORGED CUT AND PASTED MAPS THAT
ACCOMPANIED IT:

“Your letter is considered to be a complaint…[the] Land Registry
cannot look at a matter or overturn legal decisions made by Land
Registry…my understanding from your letter is that your complaint
is that there has been some fraudulent alteration of one or more of
the title plans and that Land Registry has conspired to make these
alterations…some background to the current situation may prove
useful…. The boundary you are querying is between your property…and
what was formally 21 Lime Grove…the land nor the boundary in
question has never been affected by title LA45343…in creating a
title plan we are concerned with showing the general boundaries to
the extent of the area within the title…the boundary shown on
MS351603…is exactly the same as that which was shown on LA45086,
that, in turn remains the same from the time of its first
registration…title plans may be replaced and updated over the years
for various reasons and, because title plans are always prepared on
the latest Ordnance Survey detail…Ordnance Survey features will
change from time to time depending on when the last edition of the
title plan is prepared…I can say that nothing unusual has occurred
with regard to either of these registered titles and their
mapping…you will appreciate I find no basis for your complaint.
This is the Land Registries definitive response to your complaint.”

FROM THE ABOVE IT IS CLEAR THAT THE REGISTRY DENIED THE MAPPING
THEY HAD PREPARED WAS FORGED.

ON AUGUST 14TH 2006 THE DEPARTMENT OF COMMUNITIES AND LOCAL
GOVERNMENT WROTE THE FOLLOWING TO ME:

“Thank you for your letter of 21 July with enclosures copied to
this Department about structural defects regarding your
property…the Department cannot get involved with individual cases
or question a possible court decision.”

ON AUGUST 21ST 2006 THE DEPARTMENT OF COMMUNITIES AND LOCAL
GOVERNMENT WROTE THE FOLLOWING TO ME:

“Thank you for your letter, received on 15 August, about
difficulties encountered with the boundary wall of your house. This
has been passed to this department because of our responsibility
for housing. Your remarks have been noted…I should point out that
local authorities are elected autonomous bodies…if you are unhappy
with the conduct of the local authority. You may wish to complain
via their own complaints procedure…you may wish to take your case
to the Local Government Ombudsman.”

ON AUGUST 21ST 2006 THE LAND REGISTRIES CUSTOMER SERVICES AT HEAD
OFFICE, LONDON, WROTE THE FOLLOWING TO ME:

“The Department of Constitutional Affairs (DCA) has referred your
copy letter dated 17 July 2006 to this office. However. I regret
that the issues you have raised do not fall within the jurisdiction
of Land Registry.”

ON AUGUST 16TH 2006 SEFTON COUNCILS TECHNICAL SERVICES DIRECTOR. IN
A LETTER COPIED TO THE COUNCILS LEGAL DEPARTMENT (PAW/RR) WROTE THE
FOLLOWING TO ME:

“I refer to your letter of 3rd August to the Chief Planning
Officer…[I] can confirm that the Council will not have provided any
information which contributed to the production of the Ordnance
Survey plan referred to.”

ON AUGUST 17TH 2006 THE SEFTONS LEGAL DIRECTOR WROTE THE FOLLOWING
TO ME. CAPITALISATION ADDED:

“The Council is unable to confirm any details in relation to THE
PARTY BOUNDARY STRUCTURE “THE NIB” as requested…I would refer you
to the letter of 12th February, 2001 from the Chief Executive
Officer confirming that point. As you are aware, Mr George Barr,
the Property Manager referred to in Maritime Housing Associations
letter of 4th March 1999, is now deceased and therefore I am unable
to take this matter forward.”

ON THE FORGED TRANSFER MAP COMPOSED OF TWO VERSIONS OF OS SJ 3396,
DATED 1969/1978 (BOTH OF WHICH SHOWED THE PARTY BOUNDARY STRUCTURE
“THE NIB”), THAT WAS PROVIDED TO THE LAND REGISTRY BY MARITIME
HOUSING ASSOCIATION’S SOLICITORS IN 1994, SHOWED THE PARTY BOUNDARY
STRUCTURE “THE NIB” HAD BEEN ERASED FROM THEM BOTH TO CREATE THEIR
TRANSFER MAP WHICH, AFTER TAXATION WAS SENT TO THE REGISTRY.

THE “LATEST” OFFICIAL COPY OF OS SJ3396 WAS DATED DECEMBER 13TH
1993 AND SHOWED NO NIB WALL ON IT, NOR DID THE 1987 EDITION. THUS,
IN LAW, MARITIME DID NOT BUY A PARTY BOUNDARY STRUCTURE FROM SEFTON
COUNCIL AS THE PARTY BOUNDARY STRUCTURE “THE NIB” DID NOT FORM PART
OF THEIR AGGREED CONTRACT TO DO SO.

ON AUGUST 31ST 1994 THE LAND REGISTRY DREW A TITLE MAP COMPRISING
OF OS SJ 1969/1984, SHOWING THE PARTY BOUNDARY STRUCTURE IN SITU.
THAT TITLE NUMBER IS MS351603

THERE ARE TWO LETTTERS COPIED TO MR BARR FROM MARITIME DATED MARCH
4TH 1999, ONE TO ME AND, ONE REGARDING FAWLEY CONSTRUCTION. I
REPRODUCE COMMENTS FROM BOTH BELOW NUMBERED ONE AND 2:

THE RELEVANT SECTIONS OF THE TWO LETTERS TO MR BARR FROM MARITIME
AND THE COUNCILS CEO’S LETTER TO ME REFERRED TO ABOVE BY THE
COUNCILS LEGAL DIRECTOR STATE:

1. MARITIME TO ME “You should be aware…this Association took
possession of a cleared site, following demolition by Sefton
Council. On the evidence I have it would appear…the “nib” wall was
removed during the demolition contract”

2. MARITIME TO MR BARR: “I have spoken to Bill Fawley who cannot
even recall the nib wall, and therefore, we must assume that it was
not in existence when we took possession.”

THE LETTTER FROM SEFTONS CEO’S LETTER TO ME DATED FEBRUARY 12TH
2001 AROSE FROM A COMPLAINT BY ME TO THE LOCAL GOVERNMENT OMBUDSMAN
on February 6th 2001, AND A LETTER TO HIM DATED JANUARY 31ST 2001
FROM ME WHICH WAS WRITTEN ON THE BASIS OF FURTHER INFORMATION
PROVIDED TO ME BY MARITIME REGARDING INDEPENDENT DEMOLITION BY
SEFTON COUNCIL AFTER POSSESSION OF THE KEPLER STREET SITE BY
MARITIME - THAT ALLEGEDLY OCCURRED BETWEEN JULY AND SEPTEMBER 1994
- I ASKED THE CEO on January 31st 2001. CAPITALISATION ADDED:

“Did Sefton Council have any legal liability for alleged damage
caused to my property during demolition by their contractors which
occurred after possession by Maritime housing Association Did the
Council carry out any independent demolition…SEFTON COUNCIL AND
THEIR INSURERS have told me the demolition contract…ran from
17/1/94.

ON FEBRUARY 9TH 2001 SETONS SENIOR CLAIMS MANAGER SENT A TEN PAGE
‘FAX’ TO THE COUNCILS INSURERS STATING:

“Further your phone call – letter for you. The 31/ I received the
rest copies Tech Svs have. They are still trying to clarify
internally when the actual hand over was as requested in Finance
memo to Tech Svs on 8/11 (you have copy faxed on 8/11):

ANNOTATION ON THIS ‘FAX’ CONTINUES.

I need also 8/11 letter from Tech Svs….I think is TS had sent the
letter we asked them to this would be over from our point of view
and we didn’t need to ??? to Mr R.”

ON FEBRUARY 12TH 2001 THE COUNCIL’S CEO RESPONDED AS FOLLOWS:

“It is not possible to answer your first question, as Legal
liability for alleged damage is assessed and dealt with by claim to
the Council’s insurers, a path that was offered to you but you have
declined to take…the land transfer by deed to Maritime Housing
Association took place on 24 December 1993…demolition work is
recorded as commencing 24 January 1994, with Practical Completion
on 31 March 1994. This is the date beyond which my Technical
Services Department say our responsibility ends…and contractor on
site between the dates July and September 1994 were not employed by
the Council. The site at Kepler Street was cleared before 14th
March 1994.”

ACCORDING TO MARITIME, THIS “CLEARANCE” INCLUDED THE NIB WALL AND,
THEREFORE BY VIRTUE OF THE ABOVE AND, THE TRANSFER MAP. OS SJ3396
DATED 1987 AND 1993, IT IS CLEAR THAT THE REGISTRY, AND MARITIME
HOUSING ASSOCIATION BOTH HAD COMPELLING EVIDENCE AND KNOWLEDGE THAT
THE PARTY BOUNDARY STRUCTURE, THE NIB WALL, WAS NOT IN EXISTENCE ON
AUGUST 31ST 1994 WHEN, THE REGISTRY CREATED THEIR FORGERY OF TITLE
MS351603 BASED ON OS SJ3396 SHOWING THE PARTY BOUNDARY STRUCTURE,
THE SCREEN WALL’ BETWEEN 19 AND 21 LIME GROVE, WHICH BY ALL
ACCOUNTS HAD BY THAT TIME BEEN DEMOLISHED.

SECTION 67 OF THE LAND REGISTRATION ACT STATES THAT AN OFFICIAL
DOCUMENT OR ANY PART OF – THE REGISTER OF TITLE…ANY DOCUMENT WHICH
IS REFERRRED TO IN THE REGISTRATION OF TITLE…IS ADMISSIBLE AS
EVIDENCE TO THE SAME EXTENT AS THE ORIGINAL.

I HAVE A TITLE MAP SHOWING THE PARTY BOUNDARY STRUCTURE IN SITU
PREPARED BY THE REGITRY ON AUGUST 31ST 1994, AFTER IT WAS
DEMOLISHED AND REGISTERED TO MARITIME HOUSING ASSOCIATION.

I HAVE A LETTER FROM THE LAND REGISTRY STATING THAT 19 AND 21 LIME
GROVE WERE ONCE ATTACHED, WHEN THEIR OWN MAPPING ON TITLE LA45343
DATED 1966 SHOWS THAT IT NEVER WAS .

IT IS NOT POSSIBLE TO RELY ON THE ABOVE DOCUMENTATION AND
THEREFORE, NOT POSSIBLE FOR A COMPLAINT BY MYSELF TO RESOLVE THE
MATTERS ARISING FROM TITLE MS 351603.

SEFTON COUNCIL HAVE ALSO PROVIDED ME WITH A TERRIER MAP INDICATING
THEY OWN THE LAND UNDER TITLE MS351603.

CLEARLY IF SEFTON DID, OR DO, OWN THE LAND, THEY ARE, OR WERE
LIABLE TO PAY ME FOR THE ALLEGED DAMAGE CAUSED BY THE "ABUNDANTLY
CLEAR CLAIM(S)" MADE BY MY SOLICITORS IN 1995 AND MYSELF IN 2000.

WHICH, ARE CLAIMS AVERRED TO THE LGO BY SEFTONS LEGAL DIRECTOR AS
ABUNDANTLY CLEAR IN MARCH 2001.

AND NOT CLAIMS THE COUNCILS CEO HAD ON FEBRUARY 12TH 2001, CLAIMS I
HAD NOT TAKEN THE OPPORTUNITY TO MAKE.

Yours sincerely,

fred robinson

Dear Hilary Pook,

For your information

FRAUDULENT INSURANCE CLAIMS AND THE OMBUDSMAN 2001

ON FEBRUARY 23RD 2004 SEFTON’S LEGAL DIRECTOR FILED A DOCUMENT AT
COURT in claim LV306271, ROBINSON V SEFTON MBC: IT STATED:

“The defendant is not prepared to satisfy the Claimant that he has
a valid and bona fide claim number W215732, RR98XN and AT01939 as
these claims are now statute barred having been raised in 1995 and
again in 1996.”

THE OMBUDSMAN:

ON FEBRUARY 23RD 2001 MR OXLEY AN OMBUDSMAN INVESTIGATOR WROTE THE
FOLLOWING TO ME:

“I write following your letter of 6 February…your complaint can be
summarised in the following statement:- that the Council issued a
claim to its insurers on your behalf without your knowledge or
permission…I have sent a copy of the above statement with your
complaint to the Council’s Chief Executive…I will not be
investigating any of the matter relating to your complaints about
the matters relating to the removal of the nib wall.”

IN A LETTER TO THE LOCAL GOVERNMENT OMBUDSMAN ON MARCH 15TH 2001,
SEFTON'S LEGAL DIRECTOR, MR BOWNES ALTERED AND ELABORATED THE
WORDING OF A LETTER DATED APRIL 18TH 2000 REGARDING AN ALLEGED
CLAIM(S) REFERENCED W215732 AND RR98XN AGAINST THE COUNCIL FOR
LATENT DAMAGE TO MY PROPERTY CAUSED BY THE DEMOLITION OF A ‘NIB
WALL’ BETWEEN MARCH 14TH AND APRIL 6TH 1994 -

FROM:

”It is my belief that during the development of the Kepler Street
site carried out by Sefton MBC, Maritime Housing Association and
Fawley Construction, a nib wall that abutted my gable end was
demolished and has caused damage to my property…I hold any one or
all three of the above named responsible for the demolition and any
resulting damage.”

INTO:

“This matter…as you will observe commenced in January 1995 with a
letter from Mr Robinsons solicitors…it is clear from that letter
and from the letter from [them] dated 29th November 1995 that Mr
Robinson was seeking to make a claim against the Council.
Furthermore, in his letter dated 18th April 2000, Mr Robinson
specifically states that he holds the Council (together with
Maritime Housing Association and Fawley Construction) “responsible
for the demolition and any resulting damage.” Thus it is abundantly
clear that Mr Robinson is pursuing a claim against the Council. Mr
Robinson’s claim was forwarded to the Council’s Public Liability
Insurers…Mr Robinson appears to believe that his permission is
required before the matter could be referred to the Council’s
insurers…I am sure that you will appreciate that, as a matter of
law…it is entirely a matter for the Council to decide whether or
not it should refer a claim that has been made against it, to its
insurers.”

ON APRIL 11TH 2004 MR OXLEY WROTE THE FOLLOWING TO ME:

“The Council’s letter of 15 March states that your claim was
forwarded to its insurers because it is a condition of its policy.
It is also a matter for the insurers to decide whether any time
limitation applies to your claim… it is my view the Council has
acted according to normal procedure concerning this type of claim…I
have not considered your claim from 1995-6…it is out of time and
you had put the matter in the hands of your solicitors at that
time.”

ON MARCH 2ND 2001 MR WILLIAMS, A STRUCTURAL ENGINEER AND SEFTON’S
TECHNICAL SERVICES DIRECTOR - WHO WITH COUNCILLOR DAVE MARTIN, THE
LABOUR LEADER OF SEFTON COUNCIL, HAD ATTENDED A MEETING WITH ME ON
APRIL 18TH 2000 AND ASKED ME TO WRITE A COMPLAINT TO THE COUNCIL
REGARDING THE DEMOLITION OF THE ‘NIB WALL’ -WROTE THE FOLLOWING
COVERT LETTER TO MR OXLEY:

“Mr Robinson contends that “the Council issued a claim to its
insurers on Mr Robinsons behalf without his knowledge or
permission”…Mr Robinsons allegations that the Council caused the
removal of the ‘nib wall’ adjacent to the gable of his
property…came to my personal attention in October 1998 some months
before the retirement of the General Manager (Property) [Mr Barr]
who had been dealing with the issue…Mr Robinson who was concerned
that liability for removal of the said nib-wall and the potential
effects on his property had not been resolved and was concerned
that his ability to claim against the Council would become time
expired…a meeting was arranged between the Leader [Mr Martin],
myself and Mr Robinson…on 18th April 2000 during which Mr Robinson
asked how we may ‘stop the clock’ on this issue before expiry of
the six year period…given it was almost six years since the date of
the alleged removal of the nib-wall, he would be best advised to
submit a claim setting out his allegations…Mr Robinson wrote on
18th April 2000, copy enclosed, clearly alleging that the Council,
Maritime Housing Association demolished a nib-wall and caused
damage to his property…the Council naturally referred the matter to
its Insurers with a view to meeting Mr Robinson’s objective of
avoiding the expiry of the period of limitation…the Council were
treating Mr Robinsons letter as a formal submission of a claim and
taking the matter forward, as agreed with Mr Robinson, via
Independent Structural Survey. You will appreciate that it is the
council’s right to refer matters of this nature to its insurers…I
note with interest from Mr Robinsons letter to you of 6th February
2001…that he accepts that the Council had no liability for removal
of the nib wall and alleges consequential damage.”

THE LETTER REFERRED TO ABOVE BY MR OXLEY AND MR WILLIAMS MR
WILLIAMS DATED FEBRUARY 6TH 2001 WAS WRITTEN TO MR RA HARRISON
DEPUTY OMBUDSMAN STATING:

I refer to your acknowledgement postmarked 30th January 2001 and my
letter to you of 24th January 2001.

My letter to you of 24th January 2001 you required more than an
acknowledgement, in it I asked it you were accepting that Sefton
MBC had committed an act of maladministration by issuing an
insurance claim to their insurers based on information they knew to
be incorrect.

A letter Ref: 94/0195/S/RJW/MNG written by Mr R J Waddelow of
SMBC's planning department on 17th February 1995, states "In our
opinion, damage if attributable to development is essentially a
matter between householders and the developers concerned..."

This clear and unequivocal statement of the position of SMBC
precludes the need for SMBC to have any further involvement with
the issue owing to the fact that the damage clearly occurred, not
during the demolition phase, not during SMBC's ownership, not
during the possession of the site by SMBC or their contractors, but
during the development phase of the project. Evidence proves this
to be true.

As requested on 24th January 2001, will you answer the question of
whether you are accepting the complaint of maladministration in
regard to the insurance claim based on false information submitted
by SMBC to their insurers in regard to my enquiries about the nib
wall that formally abutted my gable. If you are not, will you
accept that I am making a formal complaint that this matter is not
being dealt with in a fair and impartial manner by the Ombudsman's
office. I make this accusation on the grounds that;-

According to evidence they have provided, SMBC had no liability for
damage caused to my property after 14/3/94 however caused. Evidence
proves this to be true.

SMBC have stated damage during development is a matter between the
developer and the householder and indicate no difference in my
case. Evidence proves this to be true.

The basis of the false claim is that the nib wall was demolished at
the same time as the maisonette blocks, formally adjacent to my
house. Evidence proves this to be untrue.

SMBC have falsely asserted that the demolition of the nib wall was
part of a claim for damage during the demolition contract. Evidence
proves this to be untrue.

According to written and photographic evidence the nib wall
remained in situ after SMBC's demolition contract was completed.
Evidence proves this to be true.

According to SMBC the false claim in regard to the nib wall was a
re-opening of an existing claim, there is no evidence to support
this assertion in fact there is evidence that proves that apart
from the initial queries by my solicitors no action was taken by
them. Evidence proves this to be true.

SMBC claim not to know when the nib wall was demolished, they do
know it was not demolished by their contractors who were given
'special instruction' to protect it. Evidence proves this to be
true.

Over the past months I have provided you time and again with the
evidence and references that confirms the above. The overwhelming
evidence is that SMBC have without a doubt acted in a manner
calculated to pervert the facts and conceal their misdeeds at my
expense. This has been done by the calculated use of
misinformation, lies and failure to provide answers to my
legitimate and justifiable questions.

c.c. Sharan Bhogal DETR London

On MARCH 2ND 2001 IN A LETTER HEADED, “SEFTON MBC RR98XN” - A CLAIM
REFERENCE FOR AN ALLEGED INCIDENT ON JANUARY 17TH 1994 AGAINST
SEFTON BY MYSELF - RSA WROTE THE FOLLOWING TO ME:

“We have not seen any evidence to suggest that Sefton MBC had any
involvement with the removal of the nib wall…and we cannot see that
a legal liability rests with them in respect to any damage which
may have occurred to your property…it may be that any claim you
wish to make is statute barred.”

ON APRIL 12TH 2001 MY SOLICITORS OBTAINED COUNSELS ADVICE FROM
JOHNATHAN DALE FOR A ‘PROPOSED CLAIM’ AGAINST SEFTON COUNCIL: MR
DALE STATES:

“The position is no clearer in terms of who did what and when in
relation to the removal of the nib wall.”

ON MAY 2ND 2001 I WROTE THE FOLLOWING LETTER TO MRS THOMAS

I further refer to my letter to you dated 12/ 17/ 21/ 26 of April
2001, these letter seem to have been ignored in your consideration
of the validity of my claim against SMBC.

The matter is a very simple one, if Sefton had liability to issue a
claim to their insurers in regard to the damage caused by the
removal of the nib wall at some time after 21st April 1994, and the
right to link this claim to alleged damage to my property caused by
the demolition which occurred at some time prior to 21st April
1994, they must have had insurance cover to do so.

If they were not liable for damage on either occasion they had no
liability to issue a claim. This will be clarified by the release
of the date their insurance cover ended in relationship to the
demolition period as this is the period that is being used for
their claims.

The revealing of the date of SMBC’s insurance liability can at a
stroke resolve this issue.

SMBC cannot issue a claim if they are not liable to do so. – I
believe I have provided evidence SMBC were not liable, if you
ignore this you are being unfair.

SMBC cannot alter the law on statute barring.

SMBC’s insurers cannot alter the law on statute barring therefore
Mr Williams lied to me and as a result I have lost the right to
make a claim against anyone in regard to damage to my property. –
the evidence this is true is freely available to you, for some
reason you ignore it and seem unwilling to consider it.

You state I have not suffered loss, I disagree.

SMBC had no liability to offer me £1000 in settlement for damage to
my property.

Why was this done and on what authority.

If you are not prepared to consider this complaint and my evidence
further and investigate to clarify the allegations I am making,
please regard this letter as a formal complaint that you are not
dealing with the matter impartially and fairly and forward
information of how I must now proceed.

cc Joe Benton MP

ON MAY 30TH 2001 MRS THOMAS, WROTE THE FOLLOWING TO ME:

“From the information which you and the Council have provided I can
see no evidence of maladministration…whether or not the Council
should refer a matter to its insurers is a matter for the
Council…the correspondence which you have sent makes it clear that
this is to a degree a continuation of your original allegation of
neglect on the part of either the council or other parties which
dates back to the early 1990’s…you had the opportunity of taking
legal action at the time… the only rout now available to you is to
seek a Judicial review.”

LETTER TO MRS THOMAS JUNE 7TH 2001

Thank you for your letter of 30th May 2001.

You say that the only route now available to me is to seek a
judicial review, can you tell me how to go about this ? Is it
possible that to aid me in that course you can provide me with the
information you have from Sefton MBC that leads you to your
conclusions ?

Will you please respond to the above question with an answer or
write and tell me that you will not give me this information.

SMBC by the act of constructing the nib wall from the remains if
the former screen wall that ran from my gable to the gable of the
former maisonette blocks, also created a right of support for my
property.

During their demolition contract they issued special instructions
to their contractors to protect the nib wall, this I am reliably
informed created a duty of care in respect of the right of support,
in the light of this it seems highly unlikely they would then
demolish the nib wall.

I can find no evidence that either SMBC or their insurers can
affect time limitation in any way, therefore I am convinced Mr
Williams lied to me to deceive me into thinking time limitation had
been suspended.

This conviction is the result of obtaining several legal opinions.

If SMBC had a legitimate responsibility to issue a notice to their
insurers for a potential claim by myself it is only common sense
that to do so they would have to be insured for the period that the
alleged damage occurred. - SMBC's insurers tell me that SMBC have
no legal liability for any damage to my property this is,
presumably, based on the fact that they did not insure SMBC for
damage to my property at the time the damage occurred.

SMBC have strenuously denied responsibility for demolition of the
nib wall.

SMBC had received accusations from myself of them damaging my
property on other occasions which did not regard as claims worthy
of their insurers attentions.

It is not credible that SMBC's insurance section, as a matter of
course, would not check their liability to answer a claim for
damage made to them, nor is it credible Mr Williams would be
unaware that there was no mechanism to suspend time limitation by
the writing of a letter to SMBC - no matter what the letter said.

As I have stated. the disclosure of the date SMBC's insurance cover
in regard to their demolition contract is the one item that will
resolve the matter of SMBC's liability at a stroke. Both they and
their insurers have given me the date when this cover commenced
(17/1/94) but both have, despite many requests to do so, not given
me the date it ended.

It seems counter to common sense that this date is being withheld
as it is at the heart of the matter and would prove SMBC right and
me wrong. I enclose copies of documentation which I consider prove
my complaint to be valid. I would be grateful for the return of
these documents.

ON JUNE 19TH 2001 SEFTONS MS SWALE WROTE THE FOLLOWING TO ME:

“In January 1995 your solicitors made a claim on your behalf for
alleged damage to your property in 1994. This claim was therefore
forwarded to Royal & SunAlliance the Councils insurers…in April
2000 you attended a meeting with Mr Williams where the mater was
reopened. In order to be helpful and to ensure the exact nature of
your complaint were identified, Mr Williams asked you to put these
in writing. He mentioned the six year limitation period in order to
instil a sense of urgency, but he is not an insurance expert and
did not know that only the court can suspend this. The insurance
cover for Sefton Council has been with Royal & SunAlliance since
September 1992 and remains with them to date. The cover is for the
Council’s legal liabilities. With regard to the Kepler Street site,
the Council ceased to have any involvement on April 1st 1994 when
it was handed over to Maritime Housing Association.”

ON JUNE 21ST 2001 MRS THOMAS WROTE THE FOLOWING TO ME:

“The Information from Sefton MBC which led to Mr Oxley’s decision
was sent to you with his letter of 23 March. In case you do not now
have a copy of the Council’s letter of 15 March, I enclose a
further copy.”

LETTER TO MRS THOMAS JUNE 26TH 2001:

I write to query the basis of the information your office have used
to reject my complaint that "Sefton MBC have used information which
they knew to be false, some of which was obtained by deception, to
issue an insurance claim".

Before I consider a Judicial Review I need the decision clarified
in light of what follows.

The reason that Mr Cowley's letter gives as the basis of my
complaint is incorrect.

1. The letter of 29/11/9 not that of 26/1/95 is the basis of the
claim to SMBC's insurance brokers see the enclosed letter to my
solicitors. There is no link with a previous claim. DO YOU ACCEPT
THIS ?

On 6/11/00 in a letter from the Councils insurers I was told that
it is a condition of the Councils insurance policy with them that
they "advise the insurers of any potential claim against them,
irrespective of any ongoing enquiries".

2. This clearly is not an optional condition. DO YOU ACCEPT THIS ?

3. In Mr Cowleys words, "It is entirely a matter for the Council to
decide whether or not it should refer a claim that has been made
against it", DO YOU ACCEPT THIS ?

4. While this is essentially true, in terms of their contract of
insurance it would clearly be difficult if not impossible to
justify that the insurers met such a claim. DO YOU ACCEPT THIS ?

5. If I did believe that SMBC required my permission to issue a
claim against them it seems that their letter to me ARM/ES/MC
on13/10/00 stating "...it is the responsibility of the claimant to
pursue the claim", would fully justify this belief. DO YOU ACCEPT
THIS ?

At an early stage in my correspondence with Maritime Housing
Association they told me that their records showed that the land at
Kepler Street was transferred to them in "mid 1995", (see
enclosure) on the basis of this information it was my belief that
the Council were the owners of the land, and therefore liable for
damage to my property occurring until "mid 1995".

In a letter to Mr Barr at SMBC on 30/10/99 in answer to his comment
that he had "no authority to carry out work on privately owned
property" and that " the demolition of your nib wall is not
something that I would have been capable of authorising" I
responded:-

6. "…as far as I am aware the property the nib wall was on was
Council owned land - according to Maritime up until ' mid 1995'
when it was transferred to them". This was not refuted and
confirmed my belief that the Council were liable. DO YOU ACCEPT
THIS ?

To clarify the matter I wrote to Mr Williams, in a letter dated
18/1/00 I stated that based on the information that Maritime had
provided that the land was not transferred to them until "mid
1995", the nib wall and the land it stood on were Council owned.
This was not refuted. SMBC did not provide a date for transfer of
the land until 11th December 2000. They have never acknowledged the
ownership of the land being Maritimes.

Clearly from the above any claims I or those informed by me, made
against the Council, were based on the belief that the land and the
nib wall were in the ownership of the Council, making them liable.
It was not until Mr Williams claimed in a letter to me dated
30/6/00 Ref: PAW/RR/rob9 that the ownership of the nib wall was
unknown at the time of its demolition that I took steps to clarify
the matter, the result, as you know was that I discovered Maritime
to have been the owners from 21/1/94.

In the same letter of 30/6/00 Mr Williams states "If the wall was
still standing at the time of the disposal of the land to Maritime
Housing, it would have become their property". Clearly it would be
as easy for SMBC to establish ownership as it was for me.

7. Prior to the claim to SMBC's insurers in July 2000 and since
October 1999 Mr Barr and Mr Williams were aware of my assertion
that Maritime were not the owners the nib wall and the land it
stood on, my belief is the Council were the owners and that they
deliberately withheld this information DO YOU ACCEPT THIS ?

8. The Council always knew they had no liability to issue a claim
for demolition which had occurred after the land and nib wall were
transferred to Maritime on 24/12/93. DO YOU ACCEPT THIS ?

9. The Council were not insured with regard to my property at the
time the nib wall was demolished, nor when the maisonette blocks
were demolished after 14/3/94. DO YOU ACCEPT THIS ?

10. From the above it follows that a claim for damage caused by the
demolition of the nib wall could not be linked with that caused by
the demolition of the maisonettes as is alleged by the Council
unless the Council were liable at the time of both events. DO YOU
ACCEPT THIS ?

SMBC's insurers state in a letter to me dated 2/3/01 that SMBC have
had no involvement in the removal of the nib wall and see no
liability by the Council for any damage to my property, they do not
make it clear if this covers damage caused both by the alleged
linked demolition of the maisonette blocks and the demolition of
the nib wall or only that caused by the demolition of the nib wall.

If the demolition of the nib wall and the demolition of the
maisonette blocks are linked together there is liability by the
Council only if the link exists and is valid.

11. On 18/4/00 there was no evidence of damage to my property
caused by the removal of the nib wall, which was at that time in
situ, this is proven beyond doubt. DO YOU ACCEPT THIS ?

On Friday 30/6/00 Ref: PAW/RR/rob9 the Council claimed not to know
who owned the nib wall or the land it stood on at the time of its
demolition and he would write to me 2 working days later on Tuesday
4/7/00 Mr Williams wrote to me stating the matter was to be placed
in the Councils insurers hands.

On 27/7/00 Councillor Martin, informed by Mr Williams, wrote to me
stating the ownership of the nib wall was still under
consideration.

12. The facts of this matter are still in need of clarification by
the provision of exact dates, but it appears that SMBC issued the
alleged claim to their insurers before the ownership of the land
the nib wall stood on was established, or that on Monday or Tuesday
3-4/7/00 when Mr Williams stated the matter of the alleged claim
had been passed to SMBC's insurers, the ownership of the land and
nib wall had been established and due to this SMBC felt it was
their liability because the nib wall had been demolished causing
damage to my property during their ownership.. DO YOU ACCEPT THIS ?

13. It is the ownership of the land and nib wall which establishes
legal liability, not the conditions of SMBC's insurance policy. DO
YOU ACCEPT THIS ?

I wish to correct an error in the assertion that the Councils
insurers have the power to determine time limitation which Mr Oxley
stated on 11/4/01.

14. The insurers refute their power to effect time limitation and
state the matter is one that a court will decide, this is also the
opinion of several solicitors and a barrister. DO YOU ACCEPT THIS ?

15. Mr Oxley states, apparently based on the obligation they place
on SMBC. "It is a matter for the insurers to consider whether or
not there is any claim to consider". This appears to remove SMBC
from the consideration of any claim against them on the basis that
they are obliged, as a means to obtain indemnity, to fulfil that
obligation. DO YOU ACCEPT THIS ?

According to legal opinion I have obtained the Council established
a duty of care toward my property by issuing the "special
instructions" to their demolition contractors, during the
demolition period, at the end of which the duty had been observed
in relation to the nib wall which remained in situ on 21/4/94 and
according to SMBC passed from their ownership on 24/12/93 and from
their possession on 14/3/94 and from 1/4/94 they claim, Ref:
AD/VS/cb/13.6/robinso, "With regard Kepler Street site, the Council
ceased to have any involvement on 1st April 1994 when it was handed
over to Maritime Housing Association".

I have numbered my questions and am prepared to accept a simple yes
or no response to them. As I am in receipt of benefit and cannot
easily afford to send you copies of the letters from the Council
that I refer to, if you feel it is necessary for you to obtain them
from the Council I have given you their reference numbers. You will
find the Council have deliberately, apparently to justify the lies
of Mr Williams, linked the demolition of the nib wall to the
demolition of the maisonette blocks. The facts refute this.

I asked you to find the date that SMBC's insurance liability ended
in regard to damage to my property, the stated date of 1/4/94 as
the end of their involvement with the site proves that SMBC
knowingly issued a claim to their insurers with regard to damage
caused by the removal of the nib wall, based on false information
as they "most specifically" deny the nib wall was demolished by
their contractors Ref: GBR/AMc/KEPLER 5/10/99, as do their
contractors, GTB demolition Ltd, who cite their foreman as a
witness.

ON JULY 17TH 2001 MR WILLIAMS WROTE THE FOLLOWING TO THE LABOUR
LEADER OF THE COUNCIL, MR MARTIN:

“Mr Robinsons claim is being dealt with by the Council’s insurers
and Ms Viv Swale, the Claims and Administration Manager in the
Finance Department…as you are aware, Mr Robinson has previously
complained to the Ombudsman…the Ombudsman concluded there was no
evidence that Mr Robinson had been caused any injustice by
maladministration on the Council’s part. The Ombudsman decided that
the Council has acted reasonably in terms of the way in which his
claim had been dealt with.”

LETTER TO MRS THOMAS JULY 7TH 2001

“Please find enclosed some of the correspondence with regard to the
complaints I have sent to you against SMBC. My observations are on
the reverse

You must see that my complaint to the Council as well as to
yourself has not been addressed and I ask you to treat the enclosed
evidence to close scrutiny and if you find no reason to reconsider
your dismissal of my complaint please write and tell me why. The
one letter to you from the Council you offer as the reason for your
conviction that the Council have acted correctly, as the basis of
you decision, is clearly wrong as it does not address my complaint.
Both you and the Council have had my correct complaint and it is
not that I am complaining that the Council issued a claim, but that
they did so based on information that they knew was false at the
time they issued it and had been obtained by deception.

As you see from the most recent correspondence from the Council
they are now asking me questions that they already have the answer
to.

I keep stressing the point that my complaint, which I consider has
not been addressed, is that the Council have used information they
know to be false to issue 2 insurance claims, the matter can be
resolved by revealing the date that the Councils legal liability
ceased in relation to the Kepler Street site. This will prove at a
stroke who is right and who is wrong.

Clearly the contents of the letters from the Council to myself
don't stand up to scrutiny, especially when compared with those of
Maritime Housing.

Throughout this matter I have been stonewalled by your office when
I point out the above, is there no way you can obtain this
information or no will to do so.

As you see from the enclosed letters I have written to the Council
and their insurers to obtain information, my efforts have been met
with the same tactics your office uses. Silence.

I am providing a stamp addressed envelope for the return of my
documents, you may copy them and send me the originals back.”

ON JULY 18TH 2001 MR YATES, THE COUNCIL’S FINANCE DIRECTOR, SENT A
‘MEMO’ TO MR WILLIAMS STATING:

“Mr Robinson…claims we were still on site to September 1994,
whereas I say (based on your memo of 1 March 2001) we ceased to be
involved from 1st April 1994 when we handed over to
Maritime…Maritime Housing have told him we had control of the site
until September 1994, please let me know if in fact we did do
anything, and the details. I am aware that Peter Cowley [Sefton’s
Senior Solicitor] is involved with this matter so I am not sure if
you want me to respond or if it should come from the insurers or
even Peter.”

ON JULY 19TH 2001 MR WILLIAMS SENT A ‘MEMO’ TO MR YATES STATING:

“[I] will endeavour for the last time to research the papers…as
there appears to be conflicting evidence from our own records,
those of our demolition contractors, and those of Maritime Housing
in relation to the completion of demolition works on the Kepler
Street site. In terms of response to Mr Robinson’s latest letter…it
should merely be acknowledged…but that in future correspondence on
the matter should be dealt with through our Insurers.”

ON JULY 19TH 2001 MR WILLIAMS WROTE TO COUNCILLOR MARTIN STATING:

“Thank you for your fax of 2nd July enclosing correspondence from
Joe Benton MP…Mr Robinson is again raking over old coals…and is
embellishing and distorting statements made in our meeting with
him. His central allegation is that his allegations of damage to
his property have been referred to our insurers…the Ombudsman was
of the opinion that the Council had acted properly in dealing with
Mr Robinson…you may wish to enclose a copy of his report in your
response to Mr Benton. Mr Robinson has recently written to the
Council’s Insurance Section and raised queries about the dates when
Sefton were undertaking work adjacent to his property during 1994.
I have arranged for a thorough examination of our archive
records…once I have this information I will pass it to the insurers
and leave it in their hands…all my future dealings with him will be
through our insurers.”

ON JULY 24TH 2001 MS SMITH, SEFTON’S SENIOR CLAIMS MANAGER SENT A
‘MEMO’ TO RSA’S M LOADER HEADED, SUBJECT:- MR ROBINSON W215732 –
RR98XN, STATING:

“I attach the latest letter from Mr Robinson. I note that his of
21.6.01 was copied to G Phillips [RSA]. Given his latest of 20.7.01
and his question of legal liability and compensation I feel that
you ????? matter for yourselves to answer. Please advise.”

ON JULY 26TH 2001 MR BOWNES, SEFTON’S LEGAL DIRECTOR WROTE THE
FOLLOWING TO ME:

“The Ombudsman has fully investigated your compliant…the Council’s
response to your complaint was contained in my letter dated 15th
March 2001.”

ON AUGUST 7TH 2001 GTB, SEFTON’S DEMOLITION CONTRACTOR WROTE THE
FOLLOWING TO ME:

“We started on site at Kepler Street on 17th January 1994…I have no
special instructions in respect of your nib wall…we were not aware
that Maritime Housing Association became owners of the land on 21st
January 1994.”

ON AUGUST 7TH 2001 RSA’S MRS CONNER WROTE THE FOLLOWING TO ME IN A
LETTER HEADED RR98XN:

“It appears to be accepted by both yourself, ourselves and Sefton
MBC that they ceased to have control of the land at Kepler Street
prior to the alleged damage to your property occurring. As such it
would be logical to assume that Sefton Council were not involved in
the removal of the nib wall and consequently cannot be the party
responsible for any alleged damage to your property that resulted
from its removal. Furthermore as no formal claim has been made
against Sefton MBC in respect of the alleged damage and the claim
would now appear to be statute barred I intend taking no further
action in this matter

ON AUGUST 8TH 2001 MS SWALE WROTE THE FOLLOWING TO ME:

“It is my belief that the final day the Council was responsible for
the site was 31st March 1994 and therefore with effect from 1st
April 1994 we ceased to be liable for anything that happened on the
land.”

ON AUGUST 16TH 2001 GTB WROTE TO ME STATING:

“Our Certificate of completion received from Sefton Council on May
3rd 1994 states that the works were completed on the 21st April
1994. If any further demolition was carried out at Kepler Street
after this time it was not done by GTB Demolition Company.”

Yours sincerely,

fred robinson