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Poplar Papers

Media letter to Council asking for full access to evidence bundle

November 6, 2019
Mark Baynes

Tick tock says the clock! On 4th December the case of Mark Edmunds for unfair dismissal against the London Borough of Tower Hamlets resumes. Less than a month.
LW and our media chums (yes – we have friends thanks very much) have been busy publishing the witness statement of Mr Edmunds and writing to the Council’s legal department to speedily resolve the issue of media access to the 2,000 page evidence bundle, a key part of the Poplar Papers, before the case starts again.

Speculation about the contents of the Poplar Papers was spreading far beyond Tower Hamlets.

Originally the case at the East London Employment Tribunal should have been done and dusted back in August.
Unfortunately the Council did not want to provide the media with access to the evidence bundle which provides vital context to Mr Edmunds case.
Without the evidence bundle it is almost impossible for any media organisation to do its job properly and explain to its respective audiences (you) the numerous events and allegations that led to his dismissal.

No response from LBTH

On 29th October LW wrote to the Council outlining numerous issues with the suggestion that Tower Hamlets Council should provide, at some considerable cost to the media, an edited (redacted) version of the evidence bundle and suggesting a way forward.
In keeping with LW’s approach of open journalism we publish the contents of this letter below for your information as promised.
At the time of publication (6th November 2019) we have not received any response from the Council’s legal department.
When we do we will publish it here. A principle of public justice is that justice must not only be done but must be seen to be done.

Further delay not an option

What the media does not want to happen is a repeat of the initial employment tribunal hearing where, instead of hearing evidence and doing the whole legal thing, proceedings were delayed as the Council’s barrister, Mr Edmunds barrister Francis Hoar, the employment judge and the media spent a day or so discussing the issue of access to the evidence bundle.
That delayed proceedings to the extent that the case could not be dealt with in the time allotted and so had to be rescheduled for December.
Employment Judge Crosfill has made it clear that he expects all this to be sorted quickly and most certainly before he and his colleagues start hearing the case once more.
Media access to the evidence bundle must be resolved before the hearing restarts. Mr Edmunds hearing being delayed yet again because even more time is lost discussing the evidence bundle is not an option.

Letter from media to Tower Hamlets Council sent on Monday 28 October 2019

Subject: Employment Tribunal Case Nos. 3200529 / 20173201437 / 2018
Mark Edmunds (Claimant) and The Mayor and Burgesses of the London Borough of Tower Hamlets (Respondent)
Date: Monday 28 October 2019
Dear Tola Bello

  1. For the avoidance of doubt the media require full access to the evidence bundle in the case of Mark Edmunds v London Borough of Tower Hamlets in unredacted form.
  2. If we accept anything less than this it should be understood that this is a demonstration of good will on our part in order to speed this process up and better serve our readers, many of whom are Tower Hamlets residents.

Introduction

  1. Your letter makes little reference to proceedings in the tribunal itself. As there was no court recording a colleague and myself made contemporaneous notes (you are welcome to copies of both these documents).
  2. From our notes made at the time we consider these observations by Employment Judge Crosfill to be most relevant to the issue of media access to the evidence bundle.
  3. No party made an application to exclude any documentation from being produced.
  4. If a person [in this case the media] is able to show their request is in the interest of open justice such documents should be provided, unless there is a good and proper reason not to do so.
  5. The purpose of the [confidential] reports being referred to [by Mr Bamber] were relevant only to the limited extent that they showed the depth and gravity of the investigation that the claimant had taken part in or showed the necessity of the investigation up to the point where the claimant was dismissed.
  6. “However, those matters were introduced in open court and save my own objections, nobody made any objection and references were made in open court to a number of individuals.”
  7. The media argues that contrary to paragraph 21 of the Access to Documents decision by Employment Judge Crosfill there is good reason for the press to have access to the investigation reports referred to by Mr Bamber during his evidence.
  8. These reports are key elements in the context of the case as the subject matter of these reports, their thoroughness and veracity reflect directly on the numerous allegations of corruption within Tower Hamlets Council made by Mr Edmunds in his witness statement.

Press application for documents

  1. Judge Crosfill made these comments with reference to the press application for documents:
  2. “It seems to us that where documentation is relevant and is placed before the employment tribunal and where that document described a state of affairs that would involve matters of corruption, open justice requires the observer of the proceedings to understand and be able to see the material placed before the tribunal. That is subject to strict rules of relevance.”
  3. “To a great degree the cat is out of the bag. The one we have already made… would not interfere with the perfectly legitimate interests of the press and perhaps the councillors in pursuing their own proper investigations as to whether the respondent has properly dealt with historic allegations of corruption or whether as the defendant suggests some veil is being drawn over some aspects of the investigation. Their ability to conduct independent investigations could be curtailed. The same considerations of confidentiality apply but in this particular case we consider that the interests of the press outweigh the interests of the individuals and the respondent.”
  4. “They [the press] need to show that the provision of docs to them is for public justice – that justice must not only be done but must be seen to be done.”
  5. “We agree with much of what was said by Mr Gillard regarding reporting allegations of corruption even when they form a background to events.”
  6. “It seems to us that there is at least prima facie evidence in the gravity of the allegations – specifically as to were the investigations expanding or contracting? Not at the dates discussed by Andy Bamber but at the date the Claimant was dismissed.”
  7. Judge Crosfill referred to the judgement by Lady Hale (Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 http://bit.ly/2NcmWKT) where she observed that a casual observer at the back of the [court] room would be “left in the dark” about the content of proceedings without access to documents being referred to.
  8. We are in total agreement with this observation as members of the press, even those with several years experience of reporting of corruption in Tower Hamlets, found it extremely difficult to follow proceedings, as no bundle was available in court.
  9. We argue that without full access to the evidence bundle we will not be able to accurately report on this case and that denial of access or overly burdensome redaction of the evidence bundle would not be in lines with the principle of open justice.

Proposed process

  1. The process outlined in your letter of the 6th October seems to be making a mountain out of a molehill and I think all parties should attempt to make any redaction process more efficient.
  2. For future reference the members of the media require a searchable PDF of the evidence bundle as the key deliverable. Not images (which cannot be searched or indexed). This should reduce costs considerably. We see no reason to supply us with several thousand pages of A4 paper as we are all trying to reduce waste.
  3. When you suggest we ask for specific documents to keep costs down we consider this is unreasonable, as we do not know what is in the evidence bundle – of course if you would like to show us the evidence bundle then maybe we could provide a list? However investigative journalism is a funny business and often a simple phrase in an unrelated document can prove vital.
  4. So, to reiterate, we require the entire evidence bundle.

Costs Practicalities

  1. There is another issue relating to the costs that none of us have considered until now. If for the sake of argument, an arrangement is agreed between those members of the media who have asked for access to the evidence bundle (Love Wapping, Private Eye, East London Advertiser) and the Council and a sum of money is paid. The evidence bundle is then provided by the Council to the media who have paid for it – what happens when other media organisations also want access to the bundle? Do they get access at no costs to themselves? Do those media organisations that have already paid for access then ask the ‘newcomers’ to pay their fair share? Would this be legal? How would it be calculated? What if the newcomers refuse to pay any costs? I have already been approached by one of the national newspapers about the case in general but have not raised this issue at the moment.
  2. Whatever the specifics of the Council providing the evidence bundle we see no reason why costs should cover employing a junior barrister, someone to supervise the junior, or hiring in an outside firm of solicitors to do this task. A council officer would be better qualified to do this task as they would have the knowledge of the subject matter and they would require less supervision. If a junior barrister or paralegal is employed they would still need the assistance of a council officer. Also this would reduce the amount of time LBTH intends to charge members of the press for ‘managing the process / agreeing job titles / checking redactions etc.’
  3. Any party cannot start work until an accurate estimate of the amount of work and the costs is agreed by the members of the media.
  4. Members of the press will not agree to any work starting without knowing precise costs involved, so we require a fixed fee cost, not an open ended day-rate estimate.
  5. Tower Hamlets Council might like to consider that if, as has been proposed, the press have to crowd-fund the redaction costs in this case many of those contributing will be residents of the borough, the poorest in the country. So these residents, who already pay community charge and income tax, will be paying to gain access to the workings of their own local authority. This does not seem right and goes against the principle of open justice, the spirit of the Freedom of Information Act and the stated commitment to ‘open and transparent’ local government made by Mayor John Biggs.
  6. Members of the press also have no intention of allowing either Tower Hamlets Council officers or any legal representatives hired by the Council to carry out any redaction process – other than simple obscuring of names and job titles – unsupervised without the presence of either an independent witness or a member of the press.
  7. We are sure you can understand why, with the extensive historic record of corruption in Tower Hamlets Council, the allegations of corruption with the current council made by M. Edmunds including specific cases of responses to Freedom of Information requests being interfered with as stated in Mark Edmunds witness statement (paras 24.6 80–81) there is little belief that any redaction procedure will be carried out in good faith. Sorry to be so blunt but this is the nature of this case.
  8. We will also need full disclosure of any personnel involved in the redaction process for possible future reference.

We look forward to your response.
Yours sincerely,
Mark Baynes (Love Wapping) for and on behalf of Michael Gillard (Private Eye magazine), Hannah Sommerville (East London Advertiser), Rachel Wright (freelance TV producer).
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