Documentation of the decision to pay the Mayor's Employment Tribunal costs

The request was partially successful.

Dear Liverpool City Council,

The Council has said "the decision to pay the legal fees was taken by the council chief executive after discussions with the council solicitor and monitoring officer and was not made by Mayor Anderson. In addition, it was a course of action that had the agreement of the District Auditor."

Please disclose dates and records of all decisions, discussions, telephone calls or meetings, copies of all emails and other written communications between and/or including any or all of the following people in connection with the approval of the payment by the Council of the Mayor's legal costs in connection with his ET and EAT claim against Chesterfield school: the Mayor, council officers and the District Auditor.

The period of interest extends from May 2010 to the present.
Yours faithfully,

John Coyne

Kevin Symm, Liverpool City Council

Information request
Our reference: 407975

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Kevin Symm, Liverpool City Council

Dear Mr Coyne

Thank you for your request for information received on 17 September 2015
concerning

The Council has said "the decision to pay the legal fees was taken by the
council chief executive after discussions with the council solicitor and
monitoring officer and was not made by Mayor Anderson. In addition, it was
a course of action that had the agreement of the District Auditor."

Please disclose dates and records of all decisions, discussions, telephone
calls or meetings, copies of all emails and other written communications
between and/or including any or all of the following people in connection
with the approval of the payment by the Council of the Mayor's legal costs
in connection with his ET and EAT claim against Chesterfield school: the
Mayor, council officers and the District Auditor.

The period of interest extends from May 2010 to the present.

This request is being handled under the Freedom of Information Act 2000.
We consider that the qualified exemption set out in Section 42 (Legal
professional privilege) applies to the information requested. Therefore,
as Section 42 is a qualified exemption it is necessary to carry out a
public interest test. This is where we consider the impact of disclosure
against the public interest in releasing the information requested.

The Freedom of Information Act 2000 obliges us to respond to requests
promptly, and in any case no later than 20 working days after receiving
your request. However, we now need further time in which to consider the
public interest in disclosing the information. The relevant guidance
issued from the Information Commissioner's Office suggests a period of up
to an additional 20 working days in which to make the decision in terms of
where the balance of public interest lies. Therefore we will endeavour to
reply by the 12 November 2015.

Regards,

Kevin Symm I Senior Information Officer
Liverpool City Council I Municipal Buildings I Dale Street I Liverpool I
L2 2DH
T: 0151 233 0418 I E: [1][email address]
Online: [2]www.liverpool.gov.uk

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References

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2. http://www.liverpool.gov.uk/

Dear Kevin Symm,
Your deployment of the qualified exemption might have been foreseeable. To show that this is not prevarication, please disclose the following information about your procedures as applied to this FoI request.

Is it the case that you used the 20 days' elapsed time to retrieve the information and only then began the process of weighing the public interest in disclosing it?

Or, to be more efficient with Council resources, did you start weighing the public interest first before retrieving the information and is it that which is difficult and labour intensive and needing an elapsed time of up to 40 working days?

Please disclose what evidence is being/has been looked at in order to weigh the public interest in fulfilling this FoI request?

And please confirm that the officers making the judgement on the public interest in disclosure are not the same as any officers involved in the original decisions to provide Council funding for the Mayor's tribunal costs.

Yours sincerely,

John Coyne

Symm, Kevin, Liverpool City Council

Dear Mr Coyne

The City Council acts in accordance with the relevant guidance issued by the Information Commissioner's Office

As stated our response will be with you upon completion

Regards,

Kevin Symm I Senior Information Officer
Liverpool City Council I Municipal Buildings I Dale Street I Liverpool I L2 2DH
T: 0151 233 0418 I E: [email address]
Online: www.liverpool.gov.uk

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Dear Symm, Kevin,
With respect, a key principle in the guidance is the prompt release of information. That would not be observed by allowing the maximum initial response time to elapse before deploying the qualified exemption and then allowing the maximum time to elapse before responding on that.

Yours sincerely,

John Coyne

Kevin Symm, Liverpool City Council

1 Attachment

Please find attached response

Regards,

Kevin Symm I Senior Information Officer
Liverpool City Council I Cunard Building I Liverpool I L3 1DS
T: 0151 233 0418 I E: [1][email address]

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1. mailto:[email address]

Katie M. left an annotation ()

Yet another response which does not follow the ICO guidance, in two respects:
1) it does not even consider the fact that when the Mayor and others disclosed the substance of the "advice" (the CEO et al. decided to pay, the DA agreed, etc.) in public (Council meetings, Echo, etc.), then some if not all of the information requested lost its protection and is no longer covered by LPP. See paragraph 36 of the ICO guidelines on Section 42:
"The fact that an authority or one of its staff did not intend to relinquish its right to claim LPP is irrelevant. For example, an employee of the public authority relies on legal advice the authority has received, and reveals the substance of the advice, when speaking in public. As a result, the information can no longer be regarded as confidential, and the public authority would not be able to claim LPP. This would be the case, even if the officer did not realise the effect that his actions would have";
and,
2) it doesn't even mention a public interest test, which they should have applied. This is particularly relevant here because, although the PI in retaining LPP is strong, the following factors in favour of disclosure should have been considered (the ICO guidance again, paragraph 47):
 large amount of money involved;
 large number of people affected;
 lack of transparency in the public authority's actions;
 misrepresentation of advice that was given;
 selective disclosure of only part of advice that was given.
Four out of five of these definitely apply to this.

Dear Liverpool City Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Liverpool City Council's handling of my FOI request 'Documentation of the decision to pay the Mayor's Employment Tribunal costs'.

Another user has described the error you have made in applying the ICO guidance, pasted in here, as follows.
----->
1) it does not even consider the fact that when the Mayor and others disclosed the substance of the "advice" (the CEO et al. decided to pay, the DA agreed, etc.) in public (Council meetings, Echo, etc.), then some if not all of the information requested lost its protection and is no longer covered by LPP. See paragraph 36 of the ICO guidelines on Section 42:
"The fact that an authority or one of its staff did not intend to relinquish its right to claim LPP is irrelevant. For example, an employee of the public authority relies on legal advice the authority has received, and reveals the substance of the advice, when speaking in public. As a result, the information can no longer be regarded as confidential, and the public authority would not be able to claim LPP. This would be the case, even if the officer did not realise the effect that his actions would have";
and,
2) it doesn't even mention a public interest test, which they should have applied. This is particularly relevant here because, although the PI in retaining LPP is strong, the following factors in favour of disclosure should have been considered (the ICO guidance again, paragraph 47):
 large amount of money involved;
 large number of people affected;
 lack of transparency in the public authority's actions;
 misrepresentation of advice that was given;
 selective disclosure of only part of advice that was given.
Four out of five of these definitely apply to this.
<------ (end of inserted text)

IN ADDITION, I would point out that even if the lawyers' advice could be held to be exempt by dint of LPP, this FoI request asked for details of communications other than the legal advice from lawyers, specifically between the Mayor, council officers and the District Auditor. Further, even if the advice from the lawyers is held to be privileged, the request for advice may not be. There is a public interest in knowing whether Council officers have provided the lawyers and the auditor with a complete and accurate digest of the facts, or otherwise. And an enumeration of the dates and authors and recipients of the relevant communications (the "metadata") cannot reasonably be held to be privileged.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/d...

Yours faithfully,

John Coyne

Katie M. left an annotation ()

If recent ones are anything to go by, the internal review will just confirm the initial rejection, but until they've actually done it the ICO will not normally consider the complaint that I hope you will ultimately make.
The delays in this request are awful, and clearly deliberate. After the deadline for replying to it, they said they needed extra time to consider the public interest - and then took another 3 months, almost, to come up with a response that did not even mention the public interest test they had said they needed time to complete (probably because a proper test would have determined that there really is a strong public interest in releasing this information, even if LPP still applied.... which it doesn't).
Given this, it might be worth ringing the ICO's office and asking them if they would consider telling the Council to get the review completed promptly. They did this for my request for the KPMG report. This hasn't yet produced a review, but because of this further delay, the ICO has now accepted my complaint and will start investigating it without waiting for the internal review.
This short-circuits the procrastination.

Information Governance, Liverpool City Council

Information request
Our reference: 407975

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John Coyne left an annotation ()

I have obtained some of the information by other means. I wrote separately citing this legislation
http://www.legislation.gov.uk/uksi/2012/...

And I was given the record of the CEX executive decision of 29th November 2012, authorising the payment of the legal fees.
I've stored it here
https://drive.google.com/file/d/0B3pT2BP...

Katie M. left an annotation ()

Interesting. Among other things, it makes crystal clear (at the end) that the Chief Exec and City Solicitor did NOT consult anyone whatsoever outside the council - not the District Auditor, not Joe Anderson's trade union, and no external legal advice either. So why on earth have they (repeatedly) said that they did?
It also quite wrongly states that "the grounds for dismissal were on the basis of Mr. Anderson being elected to office of Elected Mayor." and "The council is facing a situation whereby having adopted new governance arrangements, the newly elected Mayor has been dismissed as a direct result of election to office".
This is quite simply untrue. As your blog linking to the actual Employment Tribunal makes clear, the dismissal happened a few months after the election, but occurred because the school did not want to continue Sefton's arrangement to pay Joe for doing bugger all, when it became an academy.
And the CEO and City Solicitor must have been fully aware of this, not least because of the unwarranted involvement of Liverpool City Council officers in Anderson's dealings with the school, which went back to 2010, and appear to have been instigated by David McElhinney. Surely they checked their files, didn't they?
Last but not least, when the Employment Tribunal had made clear that the dismissal itself was eminently reasonable, and basically accused Joe of being greedy, why on earth did they authorise further massive expenditure in the form of an Appeal, not against the dismissal itself, but against the deductions? To get a couple of thousand pounds for Joe Anderson?

Audrey O'Keefe left an annotation ()

Well Done John.....

Jenny Griffin left an annotation ()

It states that HR and Finance were consulted, but contains no information regarding their advice. Would a follow-up FOI focusing on these two pieces of advice prove helpful?

Dear Information Governance,
I am hoping for a timely response to my request for an internal review.

Since lodging the request, the identity of some of the necessary documents has become known. Please ensure that the following information is included within the general category outlined in this FoI request when you complete the review.
(1) The report of the executive decision taken by the Council's Chief Executive on 29th November 2012 - this has been disclosed through other channels, but I mention it here for reference.
(2) The above report mentions "Advice Sought" on the decision from Finance, from Legal/Monitoring Officer and from Human Resources. Please disclose the text of any such advice and/or any note taken of oral advice and the date on which the advice was sought and received.
(3) In the summer of 2015 the Council sought retrospective legal advice on the above decision. That advice has been shown to selected councillors privately, but has not been disclosed more widely. I understand it has also been shown to or discussed with the External Auditor and it therefore comes within the scope of my original FoI request. Please disclose the advice and any record of the request for the advice.

One of the councillors who has read the advice has judged it to be seriously flawed and inconsistent with evidence available in the public domain, particularly the tribunal judgements. The origin of such errors may or may not lie in the briefing given to the external lawyers. Disclosure is needed to resolve suspicion of possible wrongdoing and/or irrationality.

Yours sincerely,

John Coyne

Katie M. left an annotation ()

Yes, the last paragraph nails it. This is one of the ways the Council seems to "manage" wiggling out of things and/or justifying the unjustifiable. There are a number of high profile examples (the Cherie Blair advice on McElhinney's appointment as CEO, the refresh agreement and the existence or otherwise of a massive potential liability, etc. etc.) in which the Council's briefs to external advisors appear to have been either economical with the truth and/or downright misleading. Apart from the moral/professional problems with this kind of spin, it is particularly stupid when dealing with lawyers (and accountants), because professional advice is a bit like insurance - if you tell fibs or otherwise misrepresent the situation, the advice is utterly worthless.

Kevin Symm, Liverpool City Council

1 Attachment

Please find attached response

Regards,

Kevin Symm I Senior Information Officer
Liverpool City Council I Cunard Building I Liverpool I L3 1DS
T: 0151 233 0418 I E: [1][email address]

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Katie M. left an annotation ()

Wow, even by their recent abysmal standards, they have really excelled themselves in awfulness on this one.
After copying the original question, the full original response, and the request for a review, there is a single paragraph that is, presumably, the review itself. And all it says is this:
"After liaising with the relevant department after having asked them to review their original response I am now in a position to provide the following –
The City Council, as a Local Authority, is legally bound to operate within the Data Protection Act 1998 and Freedom of Information Act 2000. Whether (sic) the Mayor has chosen to disclose certain information, irrespective of its subject matter, the City Council can only operate within the prevailing legislation and, as such, our response is, in the opinion of the City Council, appropriate.
As such the City Council upholds its original response."

So their "review" consists of a statement to the effect that the Council abides by the law but the Information Commissioner's guidance doesn't.
And it doesn't need to review anything, because it's always right.

The Information Commissioner's Office will love that one, I would think. Please complain to them immediately.

Josie Mullen left an annotation ()

Just as I said - 'they' have so little respect for the public, the rule of law, or anyone outside their little clique. They have dug up the moral highway and make their way in life wading through a cesspit of lies

John Coyne left an annotation ()

I have complained to the Information Commissioner. Watch this space.

Katie M. left an annotation ()

Great. As I stated before, this one looks sure to succeed, although it will take a while. My complaint about the KPMG report was formally accepted after a couple of weeks, and it then took two months for the investigation to start, but it will get there eventually, as yours will.
And there are other complaints about Liverpool in the pipeline, equally poorly handled, so it wouldn't be surprising if the Information Commissioner's Office decided to take a closer look at Liverpool City Council and its increasingly bizarre and unlawful handling of perfectly legitimate FOIA requests.
I really really hope they do.

Chris Walsh, Liverpool City Council

1 Attachment

Dear John Coyne please see attached response to your recent request

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John Coyne left an annotation ()

The ICO reached a decision on my complaint on 29th November 2016.
The decision notice is here
https://ico.org.uk/media/action-weve-tak...

Although the Commissioner upholds the Legal and Professional Privilege exemption, it does contain some useful analysis of the Council's performance.

I am appealing the decision notice to a Tribunal which is expected to go to hearing in April or May 2017.
More details here soon.

John Coyne left an annotation ()

I am publishing here the text of my grounds to appeal.
I would appreciate any help with the legal issues, not having had any experience of a Tribunal hearing for a FoI matter.
Also if there are any relevant matters of fact that would help,please let me know.
Please email me using the whatdotheyknow link, below.
https://www.whatdotheyknow.com/user/cont...
------------------------------
(To follow the narrative, please consult the text of the Commissioner's decision https://ico.org.uk/media/action-weve-tak...
and also the text of the Employment Appeal Tribunal judgement http://www.bailii.org/uk/cases/UKEAT/201...
Abbreviations "ET" is Employment Tribunal, "EAT" is Employment Appeal Tribunal.
"Engaging" an exemption is jargon for deciding that an exemption to disclosure applies, which is separable from deciding how much weight to give to it. )

GROUNDS FOR APPEAL
There are two aspects to my disagreement with the Commissioner’s decision:
the exemption for Legal and Professional Privilege (LPP) – whether it should have been engaged; and whether it should have carried so much weight; and
the public interest in disclosure – whether it should have been given more weight.

LEGAL AND PROFESSIONAL PRIVILEGE

In paragraph 48, the Commissioner is satisfied that the LPP exemption is engaged, even though the council has not provided any submissions in regard of potential litigation. If the council had been considering whether to support a further appeal of the EAT judgement, then there could have been a case for engaging litigation privilege. (The Commissioner will know and the Tribunal can find out if the withheld legal advice engages with the legal issues of a possible further appeal, or not.)

Given that the decision to apply the indemnity was taken in November 2012 (see paragraph 18) any potential action for a judicial review would have been out of time when the retrospective advice was requested. I submit that there was and is no plausible litigation threat or opportunity for which the withheld advice would have been relevant.

If the advice was not sought in contemplation of litigation, was it sought in order to inform some current or future decision by the council?  Not so. Paragraph 33 of the Commissioner’s decision notice records that only one delegated decision was recorded (the decision already taken in November 2012). 

If the advice was procured neither for litigation purposes nor to inform a council decision, what was the purpose of the advice? I submit that the implied legal authority of the advice and its friendly conclusion have been deployed to bolster the council’s position in the public relations and political space. (I will show examples in due course.)

If the Tribunal is satisfied that the procurement of the withheld advice was wholly or partly motivated by public relations considerations then it may agree with me that the Commissioner was mistaken to agree that the LPP exemption should have been engaged. Short of that, the Tribunal may agree with me that the presumed public interest against disclosure of legal advice is diminished in this case because of the public relations aspect.

In paragraph 49 the Commissioner finds that LPP has not been lost or waived because of the disclosure of the substance of the advice. I do not have any new evidence to bring on that point, however I would ask the Tribunal to consider that the council itself chose to disclose the existence of the (support from) this legal advice. It was under no pressure to take advice; it was under no pressure to reveal its existence. The council’s position has been underpinned by the presumed authority of a legal expert, yet the arguments are not open to scrutiny and rebuttal.   

PUBLIC INTEREST IN DISCLOSURE

in paragraph 69, the Commissioner finds that the public interest in disclosing the information does not outweigh the public interest in maintaining the LPP exemption. She specifically refers to “no evidence of wrong doing”.

That is the main area where I would expect to bring evidence to the Tribunal.

The Commissioner has already noted in paragraph 59, the adverse observation from the EAT judge about the city solicitor’s letter of 3rd July and the willingness of the council’s legal department to act on behalf of the Mayor “in his private capacity”. That alone is sufficient evidence to give me a plausible suspicion of wrong doing. Paragraph 26 in the EAT judgment (attached) gives much more context.

Beyond the fact of writing that letter on behalf of the Mayor, there is also the matter of its actual content.
“… This was found by the Employment Tribunal to be implicitly a request for the Claimant to be paid more by the Respondent than he was getting at the time,...”

The city solicitor is a senior public servant and would have understood that the school governors had a fiduciary duty to expend school funds only for purposes in the interests of the pupils at the school. Yet here she is (as the ET finds) assisting the Mayor in his request to divert additional school funds to further his own interests. In my opinion that would amount to wrong doing.

I intend to bring evidence to the Tribunal to show that I had grounds for plausible suspicion of wrong doing in that I perceive a systemic failure to maintain sufficient separation between officers' independent judgement and the wishes and interests of the Leader/Mayor over a number of years.

A second example of what I suspect to be wrong doing is revealed in paragraph 18 of the EAT judgement which refers to an email of 11 May 2011 from Joe Anderson to the Chief Executive of Sefton saying
“… he had asked Liverpool City Council to go down the route of putting in a grievance or look at unfair dismissal on his behalf, which they were willing to do."
Joe Anderson appears to be expressing his entitlement to be supported by the officers in the city council in pursuit of his personal interests. They should not have been “willing to do” that.

In paragraph 30 and again in paragraph 61 of the Commissioner’s decision notice, she accepts at face value the council’s assertion that the Mayor’s dismissal from Chesterfield High School was a direct result of taking up the post of Elected Mayor. That assertion has been sustained and propagated powerfully and its repetition has led many people to believe it is true. However, a reading of the ET judgment and of the EAT judgment leads to a different conclusion.

Returning to paragraph 26 of the EAT judgment and the letter of 3rd July, we read that it was the Mayor’s apparent appetite for the school to increase its investment in his pay and/or pension that precipitated moves to end his employment. His actual election as mayor two months earlier had not done so.

Further, the school’s intention to end Joe Anderson’s employment was recorded well before the post of Elected Mayor was even created – see paragraph 19 of the EAT judgment.

Paragraph 30 of the EAT judgment records the reasons for the dismissal which the ET had established. The principal, and unassailable, reason was that the arrangement was “inequitable”. The position of mayor is mentioned only in connection with the obervation that the post attracts sufficient payment for the mayor not to have been financially dependent on his pay from the school. And that observation would have applied equally validly to the previous (full time) post of leader of the council.

Chesterfield High School do appear to have confused themselves over the relevance of Section 10 of the Local Government and Housing Act 1989. The apparent omission of the office of elected mayor in the list of public offices covered by the Section appears to have led them to believe that Joe Anderson’s entitlement to paid leave ended when he took up his new office. Of course that is a mistake: Section 10 of the LGHA provides no entitlement to paid leave, but instead imposes a constraint on that leave.

The school did not appear to appreciate that they had the right to end Joe Anderson’s employment fairly, using proper process. Instead they appear to have acted as if they had discovered a loophole in the legislation protecting his presumed “entitlement” to 208 hours’ paid leave. They acted precipitately without proper process and the ET therefore found the dismissal to be unfair.

None of this has any relevance to the new governance arrangements for Liverpool City Council, despite claims to the contrary. The resolution of the School’s legal confusion on the status of the mayorality, through the ET case, is to be welcomed, but it is not something which could justify public expenditure by Liverpool City Council.

Paragraph 30 in the EAT judgment is also important where it states
“The Employment Tribunal set out the facts as I have briefly summarised them and gave a self-direction as to the law.  There is no issue raised as to any part of this self-direction.” (my emphasis added)

The council should have considered carefully whether and why it should support the Mayor’s application for an appeal to the EAT. The Commissioner (paragraph 33) reports that no written records were made of any such consideration. The appeal appears to centre on the question of the “Polkey” deduction, i.e. that the Mayor was not entitled to compensation because the School had a substantial reason to dismiss him fairly, if only they had used a proper procedure. I submit that the Polkey deduction and the Mayor’s compensation is not a matter that has any relevance to governance arrangements at Liverpool City Council.

The council has never made clear what legal principles it thought were being tested in taking this case to ET and then to EAT. And paragraph 30 in the EAT judgment shows there were no legal issues raised with the ET’s legal self-direction. I submit that the council is mistaken in holding that the EAT case was needed to test some legal principle of importance. I suspect that the support for the appeal was simply a continuation of a pattern where the Leader/Mayor’s interests and preferences were indulged.

I make the above arguments to support the need for public disclosure of the retrospective legal advice which is claimed to endorse the council’s position.

If the withheld legal advice is sound then it should contain reasons why the council should have supported the appeal in particular, as well as the original ET case. The legal arguments would, if convincing and well founded, resolve concerns and suspicions and that outcome would be in the public interest.

If the advice is flawed – when tested against known facts already in the public domain – then it provides important evidence of failure. Further questions and further accountability should follow, in particular what facts were provided to the external lawyers. That outcome, too, would be in the public interest.

John Coyne left an annotation ()

I have submitted further evidence and argument in reply to the Information Commissioner's response to my notice of appeal.
It contains links to other documents and it should therefore be self-contained.
https://drive.google.com/open?id=0B3pT2B...

John Coyne left an annotation ()

Final, additional documentation for the Tribunal Hearing on 11 May. (Links to full documentation can be followed by starting at the first link below.)
My reply to the response from Liverpool City Council is here:

https://drive.google.com/file/d/0B3pT2BP...

Witness statements here
https://drive.google.com/file/d/0B3pT2BP...
and here
https://drive.google.com/file/d/0B3pT2BP...

Location of the (public) hearing is Tribunals, 3rd Floor, Civil & Family Court, 35 Vernon Street, Liverpool, L2 2BX, 10am Thursday 11 May 2017

John Coyne left an annotation ()

HEARING DEFERRED
The Hearing has been postponed to a date TBC after 8th June

John Coyne left an annotation ()

DATE OF HEARING 14 SEPT 2017
10 a.m.
Liverpool Civil and Family Court
3rd Floor
35 Vernon Street
Liverpool
L2 2BX

Details of the venue are here
https://drive.google.com/open?id=0B3pT2B...

The appeal reference is
EA/2016/0315; John Coyne vs The Information Commissioner and Liverpool City Council
The hearing is open to members of the public to observe.

Arthur Smith left an annotation ()

What was the outcome of the hearing?

John Coyne left an annotation ()

We'll know the Tribunal's decision some time in October.

Arthur Smith left an annotation ()

Thanks. Good luck.

Julian Spencer (Account suspended) left an annotation ()

It's a pity you were not warned who the judge would be and that he is a renowned establishment sympathiser