‘Hopefully I’ve eased the path for other reporters investigating suspected wrongdoing or miscarriages of justice’
Charles Thomson from the Archant Investigations Unit has won the Local Hero Award at the AOP Digital Publishing Awards for “creating precedent for other journalists” with a landmark Freedom of Information victory against the police. He explains here how he won a three-year legal battle to unearth shocking secrets about an alleged child abuse cover-up…
“A police investigation into an Essex paedophile ring was mysteriously shut down just as key intelligence was coming in, secret files suggest.”
That’s the sort of intro you don’t get to write very often — but it was the intro to a story I published in December 2021, based on more than 1,000 pages of police files. It was the latest instalment in a seven-year investigation into the alleged cover-up of a 1980s child trafficking operation in Shoebury, Essex. The case is the subject of the Archant Investigations Unit’s hit true crime podcast “Unfinished: Shoebury’s Lost Boys”.
The files showed that the two ringleaders received an extraordinary plea deal, facilitating their abuse of more children. An investigation into the wider ring was closed within weeks of opening, just days after shocking new intelligence was received. Police then lost or destroyed files, meaning complainants who sought justice later on would be hampered by “abuse of process” rules.
It is hard to imagine a matter of greater public interest than police thwarting abuse victims and enabling their abusers. Yet in order to obtain these documents I had to wage a three-year legal battle against two police bodies. In doing so, I eventually secured a landmark Freedom of Information Act (FOIA) decision. But it took a lot of patience and a bit of outside-the-box thinking.
In 2016, as a result of my early work investigating this case, Essex Police launched two investigations. One was to review the original 1980s case. The other was to investigate fresh allegations. Both cases closed in 2017. By 2018, sources involved in them were raising concerns about their thoroughness. I submitted a FOIA request for all emails and attachments sent between investigating officers, to track everything they had (or hadn’t) done. That decision fired the starting pistol on a three-year skirmish that would only be resolved by the intervention of the Information Commissioner’s Office (ICO).
These are some of the main exemptions they advanced and how I responded.
Section 40 — ‘Personal Data’
Essex Police took a year to respond to my FOIA request — a flagrant breach of the law, which says requests must be answered within 20 working days. It redacted all material which mentioned the two ringleaders, Dennis King and Brian Tanner, on Section 40 personal data grounds. But both men were dead. The personal data exemption does not apply to dead subjects.
I challenged this through an internal review. Essex Police took another year and maintained those redactions, but this time for “operational reasons”. It was difficult to imagine what those might be, given the case was closed and both men were dead. Tanner had been dead for almost 15 years.
Section 30 — ‘Investigations’
Essex Police also invoked Section 30, claiming the documents detailed policing tactics which could teach criminals how to evade capture. “The safety of individuals and victims would be compromised,” it asserted.
Section 30 is a qualified exemption, meaning a public interest test is required. The law therefore accepts that disclosure will sometimes be appropriate. Yet Essex Police had only argued that details of investigations in general could not be disclosed. It made no case-specific arguments.
Had officers used some innovative new technology, for example, Essex might reasonably argue that alerting criminals to its existence could help them evade it. But this was a closed case involving historic abuse. My understanding from sources was that officers had relied on the basics: consulting records, knocking on doors, interviewing people, taking statements. What criminal doesn’t already know the police do those things? If these sort of tactics were exempt, practically all documents in all cases were exempt. The public interest test might as well not exist.
Moreover, in 2016 — the same year Essex Police reopened this case — it had participated in a Sky One reality show called The Force: Essex, for which TV crews were embedded with officers. I argued to the ICO that Essex Police was suppressing information about a case with overwhelming public interest value, supposedly to conceal basic investigative tactics which it was simultaneously broadcasting to millions of people.
When the files were eventually released, they contained no evidence that police had used anything besides basic investigative tactics that any criminal would already know about.
Section 38 — ‘Mental Health’
Public bodies tend to go through collective phases of flogging a particular exemption to death until the ICO clamps down on it, then moving on to another. In the mid-2010s, Section 40 was constantly cynically abused. I was once told by a council that releasing the number of complaints received by a department was a breach of data protection, as that number was personal data collectively owned by each of the complainants. Obvious nonsense — but precisely the sort of nonsense public bodies will get away with for as long as they can.
The latest fad — and the most malign FOIA exemption I’ve ever encountered — is Section 38, which says information can be suppressed if it would “endanger the physical or mental health of any individual”. This includes personal data longer exempt under Section 40 because the subject is deceased, but whose release “might endanger the mental health of surviving relatives”.
Public bodies are routinely choosing to interpret this as meaning that if the information could theoretically upset a hypothetical person, it’s exempt. In such circumstances, they can not only suppress the information but refuse to even confirm or deny it exists. Such a nebulous and potentially far-reaching exemption plainly should not exist in any functioning democracy — but it does, and it is now wielded against journalists constantly. Public bodies have fallen head-over-heels in love with it.
I had never encountered Section 38 until 2019, when the National Police Chiefs Council (NPCC) used it to withhold files on Dennis King. I discovered the NPCC applied Section 38 in all requests for offenders’ files. I tried arguing the overwhelming public interest in transparency, but to no avail. Then Essex Police invoked Section 38 as well, after the ICO had already begun investigating my complaints about the other exemptions.
But, I argued to the ICO, the ringleaders had already been reported on by local and national papers throughout their lives, because they were remorseless serial offenders who never stopped abusing children until they died. Their offending was no secret. Moreover, how could Essex Police argue with a straight face or a clear conscience that the public interest in transparency over dozens, perhaps hundreds, of abused children allegedly being failed was outweighed by potential upset to their abusers’ hypothetical loved ones?
After the ICO’s intervention, Essex Police released large amounts of information it had withheld under Section 40, Section 30 and Section 38. But I suspected the NPCC had even more. Essex Police’s Section 38 argument, in relation to the same offenders, had not withstood ICO intervention — so I decided to re-litigate my 2019 NPCC request for King’s files. I took it to a review and won, becoming the first person to ever win a deceased offender’s criminal records under FOIA. Then I won Tanner’s too. Hopefully, that precedent has eased the path for other reporters investigating suspected wrongdoing or miscarriages of justice.
Essex Police says it “places a great deal of importance on being transparent” and receives a “high level” of FOIA requests daily, which a “small team” has to handle.
It said in December, when we reported our findings: “We have to ensure we strike the balance between transparency, operational sensitivity, protecting the anonymity and rights of victims, ensuring compliance around information relating to suspects as appropriate, and of course the cost to our force in time and resource of collating sometimes extremely large volumes of information (such as was the case in this instance).
“To date we have provided documents running to over 1,000 pages in relation to this matter and every disclosure made has had to be considered in intricate detail to ensure compliance with not just FOIA but various other pieces of legislation, which has understandably taken some time.”
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