Ex Gratia payment to Mr. Roy Boschat

STATES OF JERSEY

EX GRATIA PAYMENT TO MR. ROY BOSCHAT

Lodged au Greffe on 24th July 2015 by Deputy T.A. McDonald of St. Saviour

STATES GREFFE

2015   Price code: D  P.82

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to  approve  the  making  of  an  ex gratia  payment  of  £360,000  to  Mr. Roy Boschat as compensation for loss of business and reputation arising from the actions of the former Deputy Chief Officer of the States of Jersey Police and to request the Minister for Treasury and Resources to make the payment from central contingencies or, if insufficient funds are available for 2015, to request the  Council  of  Ministers  to  make  provision  in  the  draft  Medium  Term Financial Plan 2016 – 2019 for this payment to be funded.

DEPUTY T.A. McDONALD OF ST. SAVIOUR

REPORT

The original version of this proposition (P.58/2015) was withdrawn at the request of the Minister for Home Affairs before the debate scheduled to take place on 23rd June 2015. The Minister requested a delay to provide the States of Jersey Police with an opportunity to revisit the case and review the matter completely. This was agreed, but on the strict understanding that this would be done quickly over the course of a week to 10 days.

Over a month has now passed and I have not received any communication of any sort. As a consequence I have decided to re-lodge the proposition for debate at the earliest opportunity.

In mid-2005, complaints were made to the States of Jersey Police ("SoJP"), by two of the vehicle recovery businesses, that the bulk of police towing and recovery work was being undertaken by Roy Boschat's company and that the work was allegedly being influenced by "grace and favours" being given to a number of police officers by Mr. Boschat. The Chief Inspector, Operations instigated a review and restatement of the policy.

In fact, according to an e-mail of 12th February 2006 from the Force Control Room to the Inspector drafting the new policy, it was noted that the original policy stated that all tows of vehicles owned by the SoJP would be undertaken by Mr. Boschat.

The new Deputy Chief Officer of the States of Jersey Police ("DCO") followed this up and appears to have convinced himself that the fact that the bulk of the work was being undertaken by Mr. Boschat's company was due to favours being granted by Mr. Boschat.

In  actual  fact,  Mr. Boschat's  prices  were  lower  than  the  other  companies. Additionally,  Mr. Boschat  had  been in  business  for  some  20 years  and  had  been undertaking night calls for the other businesses where the owner/operator was getting on in years, the last of whom had retired in August 2005. He also had contracts with 9 of the Parishes, with States Departments, with hire car and insurance companies and other commercial companies. As a result he was well known by the Public.

Late in 2005, on 30th November, the DCO wrote to Mr. Boschat confirming that there would be specific standards for his company if he wanted to be included on the proposed  rota  (see  Figure 1).  It  also  stated  that  there  were  no  specific  criminal allegations made against him by the 2 complainants regarding unfair allocations of police recovery work. In view of subsequent actions, this appears to be a shading of the truth.

On the same day, 30th November, the DCO sent another letter to Mr. Boschat saying that he had 14 days from receipt of the letter to ensure that all his vehicles complied with PAS43 2002 accreditation, or at any rate by 31st December (see Figure 2). It should be noted that the PAS43 was not, at the time, a Jersey standard. In fact there was no copy of the PAS43 regulations in the Island. It is questionable as to whether it was lawful for the SoJP to insist on compliance with a United Kingdom standard without local consultation.

In May and June 2006, 2 circulars were sent round to all officers on the instructions of the officer in charge of the Professional Standards Department, the DCO, requiring them to report any "favours" accepted from Mr. Boschat (see Figures 3 and 4). The statements given by officers reveal social contacts only with Mr. Boschat, from the copies of the statements supplied by the SoJP.

Mr. Boschat was arrested on 5th September 2006 on the basis of the complaint and the allegations. At the same time as the arrest, a police team searched Mr. Boschat's house and removed his computer for forensic analysis. On the same day, instructions were issued by the Head of Operations that Mr. Boschat's recovery firm should not be used until further notice. A further memorandum was sent to the DCO on the same day, 5th September, by the Head of Operations, confirming that Mr. Boschat had been informed that in light of the evidence that had been gathered on the corruption and bribery charges, he would no longer be on the rota of towing companies called out by SoJP.  This  action  was  confirmed  in  writing  by  the  DCO  in  a  letter  dated 6th September. Copies of these documents are attached as Figures 5, 6 and 7.

The SoJP then set in train a complicated process to require companies to tender to be on the rota for the towing contract.

On 12th September 2006, the DCO sent a letter to all the Connétable s and all States businesses (see  Figure 8). This letter stated that Mr. Boschat was involved with a significant number of cases of misuse of police computers, and was also likely to be charged with offences of bribery, corruption and conspiracy to defraud. It also accused Mr. Boschat of dishonestly obtaining business from the SoJP, falsifying records, lying to  the  Public  and  making  gifts  to  members  of  the  SoJP.  There  were  further insinuations of complete dishonesty. The DCO maintained that it was his duty to bring these matters to the attention of all interested parties.

At the same time, as soon as Mr. Boschat was arrested, word was circulated to his other customers, it is not known by whom. As well as losing him clients, this caused problems with his business insurance.

No action was brought on the basis of the allegations of corruption and bribery and no evidence was ever produced to substantiate this accusation. On 20th November 2006, a letter was sent to Mr. Boschat confirming that no action would be taken on these matters (see Figure 9).

After the collapse of the corruption case at the end of 2006, Mr. Boschat lodged a complaint against the DCO over the way he had been treated. Initially, this caused problems as there was no provision in the Law for complaints against the DCO.

At the same time, SoJP commissioned a report from Sussex Police on the contracting arrangements for vehicle recovery. This review was undertaken by the Head of Road Policing. The Head of Road Policing prepared a comprehensive report, the findings and recommendations of which are attached as Appendix 1 to this Report.

The Head of Road Policing considered that the discrepancy in the volume of work undertaken reflected the deep-rooted belief that Mr. Boschat was the best to facilitate operations. There was also the evidence that Mr. Boschat's charges were lower than other operators and, as already stated, Mr. Boschat had been in operation for some 20 years and was well-known.

The report found that the current system was poorly organised. It noted that vehicle recovery costs were concealed within Court and Case costs, and noted that tighter budget setting needed to be in place. There was a lack of clearly defined policy. The report also criticised the double standard being applied (to Mr. Boschat) which was not considered ethical. This  point was emphasized in the final recommendations, where the Head of Road Policing recommended –

"3.5.12  Recommend that SoJP invites Roy Boschat back on to the recovery

operators scheme. The ethical issues of double standards demean the  professionalism  of  the  Force.  The  review  considers  the appointment of three contractors totally suitable for all operational needs of the Force. The serious operational deficiencies found with THIRD  PARTY  INFORMATION  operating  practices  and  their impact on front line policing cannot be underestimated.".

Despite the fact that there was no evidence that the allegations of "grace and favour" transactions were correct, SoJP kept Mr. Boschat's firm off the rota, contrary to the Head of Road Policing's recommendation that he should be reinstated. It should also be noted that strenuous efforts were made by the then senior officers to prevent circulation of the Sussex Police report to Mr. Boschat. In fact it was not until 2014 that the report was released.

Following  the  letter  by  the  DCO  to  the   Connétable s  and  States  Departments (see Figure 8), Mr. Boschat lost Parish and States work, and it should also be noted that, as a result of the arrest, Mr. Boschat lost most of his other contracts. At the same time, the immediate loss of the SoJP and States work in 2006 had an instant effect on the profitability of Mr. Boschat's business. Mr. Boschat's business was based on a high  turnover  and  economic  price.  Appendix 2  demonstrates  the  effect  on  his turnover.

In 2007 the cost of vehicle recovery to SoJP soared. This was questioned in the Assembly,  see  Figure 10.  The  reply  identified  the  significant  increase  in  towing charges from the 2 companies that were then on the rota, plus the fact that the SoJP were not ensuring that, where appropriate, charges were passed onto the owners of cars which had been towed.

Concurrently,  a  case  was  being  brought  against  a  third  party  on  the  basis  of inappropriate access to the Police Computer to find the owners of various number- plates.

It should be noted that it was normal practice for the vehicle recovery firms to contact either SoJP or DVS in order to obtain ownership details of vehicles who were due to be charged for towing, as allowed in Article 31 of the Data Protection (Jersey) Law 2005. In fact, SoJP and DVS were used to receiving these requests.

In July 2007, Mr. Boschat gave evidence for the defence at the trial of the third party who was charged with a number of offences under the Computer Misuse (Jersey) Law 1995. During his evidence, Mr. Boschat admitted asking the accused to check on one registration number on the police computer.

Under normal practice, if he had asked DVS for the information it is probable that no charge would have been raised.

This self-incriminating admission was then used as a basis for bringing a case against Mr. Boschat.

A number of hearings were held in the Magistrate's Court. At the time, representation by an advocate was becoming a significant cost and Mr. Boschat therefore resorted to representing himself.

Eventually, the final hearing was held on 28th August 2008, when the Magistrate dismissed the charges on the grounds that there had been no warning against self- incrimination. In addition, it was noted that Mr. Boschat had been appearing as a defence witness. The Advocate had not rehearsed the evidence that Mr. Boschat would give which actually supported the prosecution. If the evidence had been rehearsed before the case, it is certain that Mr. Boschat would not have been called as a witness.

It should be noted that the DCO had already retired at the end of July. Timeline of events

This is attached to this report as Appendix 3.

ADDITIONAL CONSIDERATIONS

Grounds for complaint by other operators

The original complaint by the other towing operators was not considered rationally. Mr. Boschat obtained the business because his charges were significantly lower than their charges. He had also been in business for some 20 years and had a wealth of experience.

The SoJP had jumped to the conclusions that the jobs were awarded because of favouritism.  This  was  incorrect.  The  charges  were  lower  and  the  firm  had  the equipment to undertake all types of towing. Mr. Boschat had extensive experience and performed efficiently and effectively, and was known to be available at all hours of the day and night.

This was pointed out by the Collision Investigator from DVS. He wrote to the Senior Officers on 12th December 2005 complaining about the inappropriateness of keeping blindly to the rota in certain circumstances requiring a specialised approach. He had required a vehicle to be moved, after a Serious Road Collision, in such a manner as to maintain the integrity of the vehicle prior to forensic examination. He considered that he  was  able  to  rely  on  Mr. Boschat  to  provide  this  service  with  high-quality equipment. The operator called had handled the vehicle in an unsatisfactory manner.

Despite the searches, there was no evidence to substantiate the "grace and favour" claims  and  no  case  was  brought.  However,  the  letter  to  Parishes  and  States Departments libelling Mr. Boschat had an immediate effect of causing him to lose a substantial slice of business.

Subsequent events

In November 2005, a new policy was issued which required all requests for towing to be effected by the Control Room, who would work to a rota.

At the same time, Mr. Boschat was given 2 weeks from 30th November 2005 to bring his vehicles up to PAS 43 standard, with an extension to 31st December to allow for Christmas. This he achieved, but at considerable expense.

The actions undertaken by the SoJP were totally unreasonable in view of the fact that, despite examining Mr. Boschat's computer and searching his house, no evidence was found on which to charge Mr. Boschat on the grounds of corruption or fraud or of any of the accusations made by the DCO in his letter to the Connétable s, nor indeed by Superintendent Pearson in his letters to Mr. Boschat.

It is notable that the recommendations in the Sussex Police Report on the towing operations in Jersey were quite emphatic that Mr. Boschat should be reinstated on the rota. Given this recommendation and the contents of the letter to the Connétable s, it is not  surprising  that  copies  of  the  particular  letter  and  the  report  did  not  reach Mr. Boschat until 2014.

Tender for inclusion on the SoJP Rota

During the selection of the 3 operators, there was considerable discussion about one operator not being up to the standard of the other two. It was decided, in e-mails of 5th February 2008, that that third operator would have 6 months to get up to standard, but it appears that operator did not get up to standard until 21st October 2008, some 9 months  or  so  later.  This  is  contrasted  with  the  short  time  period  given  to Mr. Boschat.

The Police Rota

1. 2005/6

Initially an informal rota was established, which consisted of Mr. Boschat and the other 2 recovery firms in existence in September 2005.

The original policy advised strongly that the owner should make the choice of recovery vehicle, unless it was covered by a contract.

The  performance  was  analysed  by  Sussex  Police  to  evaluate  the  latest performance of the rota. It was noted that if either of the other 2 companies was called and was unable to fulfil the recovery, then they would contact the other, not Mr. Boschat. Given that the SoJP realised this and that they were committed to a fair and honest procedure, it is surprising that they allowed this practice to continue.

2. Formal tendering for Rota 2007

The tender was advertised in November 2007. Mr. Boschat was told that, because of the information on record held by SoJP, he would not be allowed to tender for the rota. This was on the instructions of the DCO.

It should perhaps be noted that the process of setting up a rota and obtaining tenders for the rota, together with setting up service level agreements, turned out to be considerably more complicated than the SoJP envisaged originally. At the end of 2008 there were still ongoing discussions as to the charging policy that should be adopted. The 3 companies on the rota charged clients different sums for the same work. The SoJP were concerned that the Public should  not  criticise  them  for  any  high  or  differential  charging  and  were anxious that the States should take responsibility.

The Sussex Police also pointed out in their report that imposing a recovery company on a vehicle owner when they have no statutory duty to insist on a vehicle being towed away is probably not legal.

Miscellaneous Police Comments on requirement to institute a rota

In an e-mail of 25th December 2005, the question was raised as to why the SoJP needed to have 3 recovery companies on the rota. It was pointed out that they merely had a list for taxis and they only used one carpenter. The calculations by Sussex Police suggested that it would have been quite reasonable for the SoJP actually to have only one Recovery Company working for them, but that it was perhaps more appropriate for the only 3 operators to be included in a small jurisdiction.

Complaint against DCO

Mr. Boschat  complained  formally  about  his  treatment  by  the  DCO  after  the accusations of corruption were withdrawn. This caused some confusion, as there was no provision in the Law or Regulations to deal with a complaint about the Deputy Chief Officer. Eventually it was arranged that Devon and Cornwall Police would deal with  the  investigation.  This  was  convenient,  as  they  were  already  involved  with Operation Rectangle as their officers were assisting SoJP with their (SoJP) access to Holmes.  Whilst  it  was  convenient,  there  could  be  a  perception  of  a  lack  of independence.

At  the  trial  of  a  third  party  under  the  Computer  Misuse  (Jersey)  Law  1995, Mr. Boschat's  self-incrimination  on  a  single  count  meant  that  SoJP  immediately reopened the possibility of charging Mr. Boschat under that same Law, against legal advice. Once Mr. Boschat had been charged, the investigation of the complaint was suspended.

The investigation was reopened as soon as the case was dismissed. It should be noted that the Chief Officer was confirming to the Chief Executive of the States that there was nothing substantive in the complaint well before the investigation was reopened. This is perhaps an exaggeration, as the report did not rule out misconduct.

Devon and Cornwall Report

The  report  of  the  complaint  runs  to  a  33 page  summary,  126 pages  of  written statements and 429 pages of exhibits. The redacted copy supplied to me was 6 pages long and is included as Appendix 4 to this report.

The significant results are listed here from paragraphs 1, 3 and 5 of the redacted report.

1. Mr. Boschat  was  prevented  from  tendering  from  the  SoJP  Vehicle Recovery rota.

The investigating officer ("IO") considered that there was no evidence that Mr. Harper  committed  any  criminal  offence.  It  was  suggested  that  SoJP "review their actions concerning Mr. Boschat's application to be included in the  tendering  process  as  breaches  in  legislation  or  policy  could  provide vulnerability for civil action".

2. The DCO communicated with the 12 Parishes, telling them not to employ Mr. Boschat and raising concerns regarding his integrity.

The  report  states  that  the  IO  contacted  representatives  of the  Parishes  to establish whether such communications had been received. This implies that copies were not kept on record; however, copies have been provided and are with the evidence collected. The IO stated that " the replies do differ in tone ..on  the  balance  of  probabilities  Mr. Harper  did  send  out  such  a communication."  and  "The  SoJP  may  wish  to  review  the  actions  of Mr. Harper in terms of how this can have restricted Mr. Boschat's trade and income.".

3. The DCO Restraint on Mr. Boschat's trade by the DCO directing that the SoJP should not call Boschat Recovery Service for members of the Public or Public Bodies who elect to use his service at the scene of RTCs or to remove obstructions, etc.

The IO noted that the Sussex review of Recovery procedures said the "rota system at present is considered unlawful, the overriding principles are that owners  have their  vehicles  recovered at their  own expense and have  the choice of recovery operators. Where necessary for public safety or reasons of incapacitation of the owner the police need to use their powers and at that point a rota system should be activated."

The  IO  concluded  that  "the  SoJP  may  wish  to  review  the  actions  of Mr. Harper in terms of how this could have restricted Mr. Boschat's trade and income".

It was also noted that there was no evidence of criminality, but that since the DCO had retired there was no potential for misconduct proceedings.

CONCLUSION

Over the past few years, Mr. Boschat has made strenuous efforts to obtain restitution for the injustice which has been visited on him. With the assistance of a number of politicians, notably Senator Sir Philip Bailhache , he has obtained legal aid in order to assess whether there are any legal avenues open to him. The Police, in their turn, are willing to admit that Mr. Boschat has been treated extremely badly.

As a result of the actions taken against Mr. Boschat, he has lost both his business and his house, and his marriage has been destroyed.

Unfortunately, direct legal action against the Police is not possible, since any action is now time-barred. Advice has been obtained from 2 firms of lawyers and their opinion is that the only avenue left is the States Assembly.

Mr. Boschat appeals to the States Assembly on the grounds that –

1. The  accusations  of  obtaining  work  by  grace  and  favour were  untrue.  He undertook the bulk of SoJP work because he was prepared to work all hours, was the most experienced, with 20 years working in the Island, and was the cheapest.
2. The letter written by the DCO to the Parishes and States Departments, whilst not criminal, was not based on evidence or a conviction in court and was libellous.
3. The action preventing Mr. Boschat applying to tender for the rota was based on allegations which had not been evidenced.
4. Prevention  of  any  member  of  the  SoJP  calling  Mr. Boschat  on  behalf  of members of the Public in all circumstances was a restraint of trade.
5. The Police were aware that the other 2 firms on the rota were skewing the callouts on the rota and took no action.

Financial and manpower implications These are set out in the attached Appendix 2.

FIGURE 1

FIGURE 3

WRITTEN QUESTION TO THE MINISTER FOR HOME AFFAIRS BY DEPUTY S.C. FERGUSON OF ST. BRELADE

ANSWER TO BE TABLED ON TUESDAY 13TH MAY 2008

Question

Will the Minister give:

1. the total costs of the towing away of vehicles for 2005, 2006 and 2007 as instructed by the police and on their account, by year,
2. the total reimbursements payable by owners of those vehicles for the same periods
3. the amount still outstanding for collection from the owners of those vehicles.
4. The number of vehicles towed away under police instructions and orders per year for 2005, 2006 and 2007.

Answer

1. The total costs of the towing away of vehicles for 2005, 2006 and 2007 as instructed by the police and on their account, by year follows:

2005  £22,405

2006  £27,212

2007  £38,840

2. The total reimbursements payable by owners of those vehicles for the same periods.

Where a vehicle is involved in a minor traffic accident and the States Police send a recovery vehicle to the scene, the Police are not liable for the cost. The recovery company bills the owner direct.

Vehicles that have been recovered by police after being stolen or sent to DVS for examination are those in respect of which cost recovery has, in the past, not been made from owners. However, following a review of the States of Jersey Police's vehicle recovery policy, it has been identified that current legislation was not being used to its full extent to recover the cost in this category of vehicle recoveries. It was also established that whilst the audit trail under the current system identified and verified each request by police for a vehicle to be recovered, it sometimes did not distinguish the category of recovery and therefore those liable for the cost. As a result, the States of Jersey Police do not have figures available for cost recovery from vehicle owners for the years in question. A new draft police vehicle recovery policy has been developed which will address these issues.

3. The amount still outstanding for collection from the owners of those vehicles. Not available for the reasons previously stated.
4. The number of vehicles towed away under police instructions and orders per year for 2005, 2006 and 2007 follows:

2005 – 373 2006 – 453 2007 – 647

APPENDIX 1

Financial and manpower statement

The immediate effect of the changes in rota was that the contribution to turnover fell by at least two-thirds. In effect, it was slightly more according to police records. If either of the other 2 companies on the rota was called and was unable to attend, they would immediately call each other to attend. Eventually the effect of moving to a rota was such that the cost of vehicle recovery increased by 41%. This underlines the fact that Mr. Boschat was offering very good value for money, and explains why originally he was given the bulk of the business.

As soon as the arrest was made, the news was apparently conveyed to recovery organisations such as the RAC, insurance companies and hire car companies, and that work  was  also  removed  by  those  organisations.  By  2007,  turnover  had  halved (see Appendix 2(1)).  The  change  in  volume  of  Police  work  can  be  seen  in Appendix 2(2).

At the same time, every effort was being made by the Police to take Mr. Boschat to court over the minor computer incident which occurred in court. It arose from poor legal advice to  Mr. Boschat and  it  took  up  time  and  also  necessitated  additional expense.

As a result of these machinations, it eventually became impossible for Mr. Boschat to keep up the mortgage payments on his house, and led to the break-up of his marriage. The  house  was  sold  recently  and  cleared  the  outstanding  mortgage  and  other indebtedness.

Any claim therefore must take into account loss of profits and compensation for the complete destruction of his life. It should enable Mr. Boschat to purchase a modest unit of accommodation and give him a foundation on which to rebuild his life. His profits had enabled him to meet annual mortgage expenditure of £38,406 on a house worth in the region of £600,000 and to maintain a reasonable standard of living.

The  changes  in  charges  arising  from  the  changes  proposed  by  the  Police  were considerable. Mr. Boschat charged £240 for a total crane-lift of a family car after a fatal accident, whilst for a standard tow he charged between £45 and £55 depending on the distance. The standard charges being considered by the Police for the rota for towing a family car were between £150 and £300.

As a result of these charges, the towing costs increased substantially in 2007, as shown by the answer to this written question in the States (see Figure 10).

Appendix 2(2) includes part of an analysis by Sussex Police into the recovery system. This particular piece of work was investigating the current rota and whether it was unbiased. What was discovered was that the close association of the other 2 companies on the rota was such that if either of them could not undertake work on the callout, then they would pass it on to the other. This ignored the rota and effectively cut Mr. Boschat off the rota. The result of the analysis was that it was emphasized that if one contractor was unavailable, it was the duty of the Police to revert to the rota or to hold the contractor called responsible for the arranging of further recovery capacity, thus allowing the Police to remain commercially unbiased.

Appendix 2(1) shows the destruction of Mr. Boschat's business. The adoption of the rota in 2006 caused an immediate drop in turnover from Police business by two-thirds. This was exacerbated by the letter by the Deputy Chief Officer (see  Figure 8) in autumn 2006, which cut his States and Parish work. At that time, Mr. Boschat had contracts with 9 of the 12 Parishes and most of the States work. This was therefore reduced. The arrest in 2006 started a reduction in hire car and insurance work, as can be seen by the drop in turnover, and this was reduced again by the charging in early 2008.

At the same time as his business was being reduced by about 59%, Mr. Boschat had to cope with the requirement to get his equipment checked for compliance with PAS43, the UK standard, in a very short time over Christmas 2005. This was expensive, and the  validity  of  its  legality  in  Jersey  is  doubtful,  particularly  as  no  copy  of  the documentation existed in Jersey.

Following this, Mr. Boschat had to cope with the financial pressures occasioned by the Court case, which were so significant that finally he represented himself.

Mr. Boschat could be expected to have had at least 20 years' expectancy of working, and the actions of the States of Jersey Police have deprived him of the proceeds from that work. Added to that, there is the emotional strain of the past 11 years as he watched his life being destroyed, his business ruined, his house sold. Consequently, a sum of £360,000 is asked for to compensate for the loss of his business and house, and to redress the wrongdoing done by the Police against Mr. Boschat.

It should be noted that Mr. Boschat was prevented from bringing a case against the Police insurers within the time limits. This delay resulted from a combination of a very short  time  for  time-barring  under  Jersey  law  and  the  difficulty  of  obtaining  the relevant documents from the Police, plus the costs of legal action.

In these circumstances the claim would be against central contingency funds. Should insufficient funds be available for 2015, then I am requesting the Council of Ministers to make provision in the draft Medium Term Financial Plan 2016 – 2019 for this payment to be funded.

There are no manpower implications.

APPENDIX 2(2)

EXTRACTS FROM THE SUSSEX REPORT ON SOJP RECOVERY AND TOWING PRACTICE

TIMELINE