You pay, they play

In our posts of 28 April and 03 May, we reported on the difficulties of obtaining a document held by the Department for Transport (DfT) – the joint report of the experts in the 2004 Formal Investigation into the sinking of the trawler Gaul.

On 26 June 2007, in a letter sent to Sandra Gidley MP in response to her similar request, Dr Stephen Ladyman, Minister for Transport at that time, wrote:

“The report referred to in paragraph 8 of the Expert’s Protocol is not in a form that can be easily reproduced or transmitted in its entirety. I would be happy to send you any relevant excerpt if you could submit a more specific request for information.”

One month later, on 26 July 2007, in a letter on the same topic, the DfT takes a different approach:

“The Department has sought advice from the Treasury Solicitor’s office on the status of the Joint Panel of Experts report and has been advised that it is not a public document. It was referred to at the RFI but only the transcripts of the various experts oral evidence were actually placed on the GAUL website.

Furthermore, it is accepted that the material prepared for the RFI was prepared on behalf of the Attorney so strictly the Joint Report is the property of the Attorney.

However, the Department can see no difficulty in providing your naval architect with an opportunity to view the Panel’s report but he should be advised that it is not a public document and it will be provided only on the basis that it remains confidential and the property of the Attorney.“

Questioned further on this subject, the Head of Shipping Policy in the DfT told us that the report in question was so confidential that no copy or reproduction of its contents or of any part of its contents was permitted.

Why cannot the public view a technical document, which was created in the course of a public investigation that cost the taxpayer about £10 mil? Although the public paid for it, the record is now owned by the Attorney General who would not even release copies of parts of the document for research and public interest purposes.

Those who have seen it appear to know why.

Hiding under the blankie

Twenty-three days have passed (i.e. way past the ten-day official deadline) since an email was sent to the Heads of MCA and the Department for Transport (DfT), raising the issue of the cover-up in the Gaul RFI, and there are still no signs of a reply.

The officials concerned are silent as birds at the end of the day. The MCA’s recently appointed CEO continues to be hard to catch, invoking pressing engagements and other similar pretexts. (His gofers have discreetly let the word slip that the implications of any review of the Gaul inquiry could be massive. It is possible, of course, that the implications of this case could be massive; but what may be more unfortunate, however, is that the moral stature of the people called to deal with them might turn out to be rather small. Who can tell?)

The DfT is not available these days either. Ruth Kelly has had to refer the complaint to higher fora, while the Shipping Policy branch in the DfT is quietly awaiting instructions from various ‘groups of lawyers’, who don’t seem to have any deadlines or even disclosable identities.

And no one else in the Establishment is daring enough to even mention the name of the Gaul - the ill-fated name that has covered us all in shame.

La-la-la-Land

On 19 March 2007, just before the complaint of FRAUD, regarding the conduct of the Gaul 2004 RFI, was submitted to the Police, a similar formal claim had been lodged with the Serious Fraud Office (SFO).

It took SFO no more than 24 hours to answer the complaint; and this is how they ‘justified’ their decision not to proceed with the investigation of a serious fraud allegation:

“The matter you report concerns the manner in which the Reopened Formal Investigation of 2002 into the sinking of the trawler 'F.V. Gaul' was conducted and the conclusions that were reached by the investigators. There is no tangible evidence of criminal activity, within the body of offences provided by the criminal law, and therefore this is not a matter the SFO can progress further.”

The justification sounds incredible; of course they were not aware of any tangible evidence of wrongdoing. At that stage, they hadn’t been given any. The complaint had been lodged via their usual on-line form, and, had they been interested (or allowed) to investigate the case, the necessary evidence would have been handed over to them.
In a normal set of circumstances, the SFO would have requested proof in support of the allegation and then decided whether it was sufficient or not.

In reality, they didn’t even bother to ask for it.

In La-la-la-Land, however, anything is possible; anything goes and all wrongs can be accommodated. One just has to stop listening and keep singing.

The Gaul would have completely lost her stability at an angle of heel of 26°

IMCO’s [1] ‘Recommendation on intact stability of fishing vessels’ states:

(10) In cases where the ship would sink due to flooding through any openings, the stability curve should be cut short at the corresponding angle of flooding and the ship should be considered to have entirely lost her stability.

The Gaul sank due to flooding started at the duff chute opening, when this became immersed at a heel angle of only 26º (see RFI final report Para. 17.5, page 245).

This angle of heel, at which the Gaul’s stability disappeared, was in breach of IMCO’s recommended criteria for the stability of fishing vessels which requires that a vessel should have sufficient stability at angles of heel beyond 30º.
----------------------------------------------------------------------------------[1] IMCO – Inter-Governmental Maritime Consultative Organization, now known as IMO

Playing Dead

Following on from our post of 12 July, which reproduced a letter that had been sent to the MCA and DfT on the subject of the flawed Gaul Investigation, we can now inform you that, although the statutory time for a response is 10 working days, the addressees have still delivered no reply.
Consequently, another email had to be sent to remind the Department for Transport of their Policy on the Public Interest Disclosures Act 1998 which is contained in HRAN (2006/1) and under which “employees of the MCA can bring matters of public concern to the attention of the relevant authorities”.The above-mentioned policy is meant to cover the reporting of several types of malpractice:
●A criminal offence that has been, is being or is likely to be committed
●Failure to comply with a legal obligation
●Health and safety risks relating to any individual, including members of the public
●Damage to the environment
●A miscarriage of justice
●Possible fraud and corruption
●Deliberate concealment of information relating to the above matters.

The same guidelines also provide for the manner in which such matters are to be handled by the MCA and implicitly the DfT:

8.2. Within 10 working days of you raising a concern, you will be advised either by the person you approached or one of the named contacts at steps 2 and 3 that,
●Your concern has been received and is being actioned. If action is not appropriate, this will be explained to you
●How we propose to deal with the matter
●The name of the person responsible for carrying out any investigation and how you can contact them
●Whether we need more help from you
●An estimate of how long we expect it to take to provide a final response
●Provide you with information on staff support services
●Let you know whether any further investigations will take place, and if not, why not.

However, in practice, the DfT do not appear to follow these rules; they seem instead to be guided by that old piece of popular wisdom, which says: when all else fails, play dead - and hope that we will abandon them for livelier prey.

Simple, comfortable and hygienic…

Pensée du jour

"If you want to steal, steal a little in a nice way. But if you steal too much to become rich overnight, you'll be caught" Mobutu Sese Seko

The sin of omission

Section 269 to the Merchant Shipping Act 1995 states:

“Where a formal investigation has been held under section 268 the Secretary of State may order the whole or part of the case to be re-heard, and shall do so —

(a) If new and important evidence which could not be produced at the investigation has been discovered; or

(b) If there appear to the Secretary of State to be other grounds for suspecting that a miscarriage of justice may have occurred.”

Apart from the more common or the vulgaris types of fraud: i.e. fraud by false representation and failure to disclose information, the Fraud Act quoted earlier on these pages (see our post of 17 March 2007) also defines a more genteel, standoffish, whiter-collar type of offence, which is the ‘fraud by abuse of position’: i.e. "the offence committed by somebody who occupies a position in which he is expected to safeguard the financial interests of another person, but who intentionally fails to do so, thus exposing that person to a loss or to a risk of a loss."

Further on, the Act explains: “a person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.”

Update

Our post of June 30, 2007 has been updated.

'The unwilling party'

The naval architect who was involved in the 2004 Re-opened Formal Investigation into the sinking of the FV Gaul, and is the author of the technical documents that have been published on these pages, has sent a formal email/letter to his employers: Mr Peter Cardy, the new CEO of the Maritime and Coastguard Agency (MCA), Mrs Ruth Kelly (the new Secretary of State for Transport), Mr Laurance O’Dea (Treasury Solicitor) and two other managers within the MCA.

The text of the communication is reproduced below:
“To: "Peter Cardy" <Peter.Cardy@mcga.gov.uk>
Cc: <ruth.kelly@dft.gsi.gov.uk>; <P.S@mcga.gov.uk>; <T.B@mcga.gov.uk>; <Laurance.ODea@tsol.gsi.gov.uk>
Subject: Trawler Gaul

Dear Mr Cardy,
I would like to present you with a problem, the solution for which appears to lie within the gift of both the MCA and the Department for Transport.

The problem stems from the outcome, in December 2004, of the Re-opened Formal Investigation (RFI) into the loss of the Trawler Gaul, the principal issue here being that the results of this public inquiry do not correspond with the evidence that was made available before it.

Although in the normal course of events, the MCA should not and would not be questioning the conclusions of a legal process that has been conducted by the Attorney General's office, in this case, however, there is clear evidence that a miscarriage of justice has occurred.

As you may be aware, this issue is not new, having previously been raised with the MCA, the DfT, the Minister for Transport (via parliamentary questions), the Admiralty Judge who ruled in the RFI and the Treasury Solicitor/Attorney General's office. However, their collective response to date has been either unsatisfactory or to ignore it, probably in the hope that the objections will eventually go away.

I am a Corporate Member of the Royal Institution of Naval Architects and a Chartered Engineer. This Institution's byelaws state that:

Every Corporate Member shall at all times so order his/her conduct as to uphold the dignity and reputation of his/her profession and to safeguard the public interest in matters of safety and health and otherwise.

I consider it unacceptable that being in the Government's employment has brought me into conflict with the standards that are demanded from members of my profession. Furthermore, I find it ethically reprehensible that despite the serious failings in the conduct of this formal investigation, which are apparent, the government has not, as yet, thought fit to remedy this.

To conclude, I do not wish to remain an unwilling party to this miscarriage of justice and I would, therefore, be grateful if you could formally raise this matter with the DfT. with a view to bringing about an appropriate resolution to the case."

When contacted on the phone (several times), Ruth Kelly’s office refused to make any comments on this subject.

THE ABOVE MESSAGE WAS ALSO COPIED TO THE PRIME MINISTER’S OFFICE.