Court was not sitting in this case last Thursday and Friday, so we picked up from where we left off here and here with Mr Patton, counsel for Niall Mellor, cross examining Olivia Davies, the BBC Undercover Reporter who worked as a support worker at Whorlton Hall, covertly filming the video exhibits in this case. A note on my reporting, we’ve been asked not to report the patient’s names, so I have numbered them, it is not intended to dehumanise them but I appreciate it may come across that way. Their names are used in court.
HHJ Smith started by welcoming back the jury and apologising for the delay this morning due to technical problems with the court equipment. The jury were brought into court at 11:20.
Mr Patton started by taking Ms Davies to a BBC document referred to as ‘protocol for an undercover operative’ and quizzing her on it. The questioning went like this:
MrP: The reason you have that is because I was asking you questions
HHJ: The witness doesn’t have a copy of it [I presume she was passed one but I could not see the court room]
Mr P: the reason we’ve got this document for you is when I was asking you questions about why didn’t you say anything to anybody, why didn’t you do anything about this, you said because of the guidelines, you relied on the guidelines, do you agree?
OD: These were the guidelines I was working by and the guidelines signed off by everybody above me. Yes.
MrP: So you agree that’s your response when I ask you why you didn’t or did something, is going to be because you were relying upon the guidelines?
OD: Yes, but in them, if you read, there’s a section in here, I think its p22 or p6 it sets out hypothetical examples of what I might encounter and I believe it is
MrP interrupts: you’re dropping your voice it’s difficult to hear
OD: Sorry. If you turn to page 20, or p4 or 20 on the right side
MrP: with privacy yes
OD: Above privacy. This section sets out the basic principles of what I’m working to, part of it is unless good reason not to our operatives should comply with requests… must not encourage anyone else to cause harm or break law… keep self safe… neither encourage, but can not prevent all ill-doing by others
This relates to question you’re asking when significant risk to individual… needs intervene. I did feel like, I was at all times adhering to what I was being taught to do.
MrP: Right ok. This is something were going to have to look at I’m afraid. Is the BBC’s standard as to how you as undercover operative ought to behave?
MrP: Is it fair to summarise it this way, you must never let on you’re an undercover operative?
OD: yes, that’s fair
MrP: Secondly you must not intervene if that would identify the fact you’re undercover…
OD ask’s him to repeat what he said, he does rephrasing slightly
OD: Yes, that’s correct but also bear in mind everything that happens and unfolds before me is based on hypothetical, you can’t tell what’s going to happen.
MrP: I wonder if you could answer the question, that’s your duty to the BBC because they want to do a programme don’t they?
OD: Yes, but I feel you’re racing past the fact
MrP interrupts: I’m sorry what
OD: Had this programme not been made
MrP interrupts: Can we deal with my questions rather than coming in here with a political statement. Your duty was you’re there as a journalist. You told us you were not there as a support worker.
OD: Yes, but I was also there as a support worker
MrP: You told us you were there as a journalist but not a support worker. We’ve got a note of what you said last week. Are you going back on that now?
HHJ: I don’t think that’s what the witness is doing, I think she’s thinking and if you allow her some thinking time she may be able to answer
MrP: Last week you told us you weren’t there as a support worker but as a journalist, do you stand by that?
OD: I stand by the fact I went in there as a journalist but that didn’t mean that I in any way… I went in there as two things, as a journalist and also as a support worker.
MrP: Do you accept you told us last week you were not there as a support worker?
HHJ: do you have a note of that?
MrP: I do have a note
Ms Richardson interjects [cant hear]
MrP: my learned friend have their notes, we can check the tape if you want.
HHJ: What was your primary aim going into Whorlton Hall?
OD: My primary aim was to, it was to understand what was happening in a hospital where whistle blowers had told us that there were allegations of torment, and my duty was to go there and to expose what was happening, or, yeh.
MrP: So my question in fact was very much more straight forward. You told us last week you were there as a journalist, not as a support worker, when you were being questioned why you did or did not do certain things. One of the things I’d like you to tell us is do you accept you can ask someone you work with to stop doing something without revealing you work for the BBC?
OD: But my understanding of being at Whorlton Hall was to allow things to happen, without encouraging anything, I was simply there to allow
MrP: Do you accept you could ask somebody to stop doing something without revealing you work for the BBC?
HHJ: Would it help if Mr Patton gave you an example?
OD: Yes your honour
MrP: let’s say for example, in the canteen, which is a frequent place for filming here isn’t it?
MrP: Place in canteen where sometimes people use quite ripe language?
MrP: They may for example say ‘X is a C-U-N-T’ [he spells out the letters]
OD: Yes, everybody used the canteen, I don’t understand
MrP: Somebody might say X is a c-u-n-t
OD: Possibly yes
MrP: To say that’s a bit strong, or that’s a bit off, doesn’t reveal you’re a member of the BBC does it?
MrP: Did you see it as your job not to discourage or to encourage people to behave like that?
OD: It was not my job to encourage anyone to do anything. I was taught to allow, I was simply there as a person in the room, not to encourage in any way.
MrP: I’ll suggest you were there to facilitate people to talk inappropriately
OD: I don’t think that’s an appropriate comment
MrP: So when you initiate conversation saying ‘what’s the man button all about’, why are you doing that unless you want to encourage talk about the man button?
OD: Because I was following up on something that had happened previously
MrP: That’s recorded?
MrP: So why did you need to to do it?
OD: I’m simply, like getting, collecting
MrP: Can we turn now to
HHJ interrupts: the witness hasn’t answered the question
MrP: I wasn’t being dismissive
HHJ asks Mr Patton to give the witness time to think
OD: it was understanding what happened more previously, you framed it in way that made it sound like I was digging or encouraging people to say something… I didn’t encourage anything, I was simply following up to understand why that event had previously happened
MrP: So when someone spoke in previous occasion in front of Patient 1 about the man button, even though you were present, you were completely baffled were you?
HHJ: the witness hasn’t said that Mr Patton
Mr Patton then turned to a clip that he’d attempted to play to the court last week but hadn’t been able. The clip was played to the court, in it Patient 6 is outside with staff members in the snow. The clip starts with Ryan Fuller throwing a snowball at Patient 6. It was part of Clip 18 that was shown to the jury on 10 March and I reported here.
After showing the clip Mr Patton asked Ms Davies whether she accepted that the clip showed Patient 6 calling the staff names and swearing at them. Ms Davies responds “he does say those things, but Patient 6 is in this situation, is at Whorlton Hall because he has complex needs, Ryan doesn’t have complex needs”.
Mr Patton said that while he accepted, on occasions, out of earshot of the patients his client “swears and uses inappropriate language” on this occasion it was a patient using inappropriate language. He asks Ms Davies who she was saying “I dare” to. The conversation then went like this:
OD: I can’t see from the context of the video where I say you dare, I missed that.
MrP: Were you trying to provoke something? Were you being jovial? What’s going on?
OD: I couldn’t tell you. If we can play the clip again it’s a long clip.
MrP: Well if someone else wants to play it later on, I’m not going to
HHJ: Mr Patton, if you want an answer to the question
MrP: If we’re going to do that, then a little later on, you say ‘your gloves have come off’, can we watch to that part.
The court were played a shorter section of the clip again. After that Mr Patton asks Ms Davies again and she explains that while the camera is filming forward facing, she could turn to the left and right and the audio would pick that up. She believed she was talking to another staff member who had a snowball, but you could not see it on the video footage. With regards to the gloves comment the questioning was as follows:
MrP: What’s that about?
OD: XXX is wearing gloves, one of his gloves have come off, so I say ‘your gloves come off’.
MrP: That’s what that’s about, being playful.
OD: That’s not being playful. I see one of his gloves have come off and I say to XXX one of your gloves has come off.
MrP: OK. Play on.
A little while later Mr Patton asked Ms Davies about something recorded:
MrP: Who are you suggesting hitting?
OD: I’m repeating, it’s not on your transcript and there’s not a question mark after it. I’m repeating him saying, hit him, or punch him, punch him. Do you not see him being so wound up, he’s a 4 to 1
MrP: Who are you talking to?
OD: I’m saying hit him? Hit him? With a question mark because he says hit him and I’m questioning, the context of what you’re implying doesn’t fit and that’s purely because you can see XXX is being wound up. He’s got 4 staff as well as other people in the building, he’s being antagonised, that’s someone with incredibly complex needs.
MrP: XXX is somebody, it’s a fact, has a number of different challenges doesn’t he?
MrP: And it’s a fact that XXX is someone who’s given to violence isn’t it?
MrP: Last week you said he’s not a monster. No one described him as a monster did they?
OD: It was implied, the way you described him.
Mr Patton asks whether Ms Davies considers that someone with ‘such challenges, who is prone to violence’ would understand her humour, and nuanced behaviour. She assures him that there is no humour for her, she was ‘simply repeating’ what the patient had said. She continues:
OD: You’re skating past that clip is showing him being wound up
MrP: By you?
OD: Not by me, I’m not stood in the window antagonising him. He has a very fast fuse point, what you’re describing here is totally out of context.
MrP: Right, let’s see what we can agree. Do you agree Patient 6 was the only one using abusive language, towards people who looked after him?
MrP: You do. Do you accept none of them used abusive language towards him?
OD: I feel as though you’re totally looking past the fact he’s being wound up in that clip.
MrP: You’ve chosen to record all this, so we’re looking at what’s happened
MrP: Do you accept XXX is not sworn at by any of the staff?
OD: Yes, but it doesn’t take swear words to wind somebody up
Mr Patton suggests that Ms Davies has an agenda, for her story, something she strongly refutes. Mr Patton asks Ms Davies if her repeating Patient 6’s words was likely to wind him up, she says not, also suggesting that it would be possible to upset Patient 6 without words, because he was ‘so easily wound up’.
OD: I’m not the one standing in the window antagonising him, you see from that clip. I was just filming what I saw, that is what I saw, I can’t add to that.
MrP: What was said to him?
OD: You don’t need words to wind XXX up, that’s what I’m saying
MrP: Are you saying you can’t point to any words that wind Patient 6 up?
OD: Where Ryan says “I like you though”
MrP: Are you really saying, when he says to a man who calls him a fucking wanker, ‘I like you though’, that’s to wind him up?
OD: It’s difficult to explain but if you knew XXX, he’s really complex and it’s easy to wind somebody like that up. You don’t have to swear at them. You see the way he’s frustrated because of the way he slams the window up.
A discussion then followed about how often Ms Davies had worked with Patient 6, she did not recall how many times but it was not often. Mr Patton told her that she worked at Whorlton Hall for 38 days and when she left her employers didn’t make a complaint to anyone for 67 days. HHJ Smith did point out that this was not a question, and consequently Mr Patton asked Ms Davies whether she made a complaint to the police, to CQC or safeguarding or to a senior at Whorlton Hall, she confirmed she had not.
Mr Patton returned to asking Ms Davies about the circumstances in which she was told she could intervene without saying she was from the BBC. He asked her what guidance she was given about it. Ms Davies read from the protocol document, referring to a section about where there was significant imminent harm to a person’s life or to an individual.
OD: I can give you an example of a time when that happened
MrP: I’m not asking you about that
OD: I’d like to your honour
HHJ: you’ve asked her when she was allowed to intervene, Mr Patton, my note of your question is ‘when she was allowed to intervene’ and the witness is saying where there’s a significant risk of serious harm
MrP: I accept that
HHJ: And you’re saying you could give an example of when you did intervene, that would help me.
OD: Towards the end of my time at Whorlton Hall there was a service user called Patient 10, and XXX moved to the back corridor of the ground floor
MrP interrupts: Can I ask you for a second, was this recorded at all?
OD: It was, yes. Whilst I was looking after Patient 10 with a contracted staff member.
HHJ: an agency worker?
OD: Yes. Patient 10 went into his bathroom and he’d been in there a little while and I went to check and say are you ok, and he, I believe he replied but because I’m a female member of staff I asked the agency worker to go and check.
HHJ: the agency worker, is male or female?
OD: Male your honour. I asked the agency worker to check, didn’t hear anything back and it transpired XXX was self harming, he’d [I’ll not report the details]. There was a lot of blood on the walls, yes, it was everywhere. At that point was a significant risk to life and I got everybody, everybody senior to come along, and I followed the exact protocol as to, if somebody is, if imminent serious harm to an individual and risk to life. I followed exactly what I was told to do which was to get somebody involved much higher than me, working as a senior at Whorlton Hall and yes, if I remember correctly, the staff afterwards
MrP: you didn’t say to anybody I’m from the BBC?
OD: No, I didn’t
When asked by Mr Patton whether she ever intervened when a staff member was mistreating someone, Ms Davies responded saying that she had not because she was allowing things to happen without intervening or encouraging. Mr Patton suggested that Ms Davies had no guidelines to follow other than she could intervene if someone’s life was in danger. She responded:
OD: I don’t think that’s fair, you’re looking past all the checks, this was thoroughly, the most thorough investigation I’ve ever done, and it was constantly being checked.
MrP: These are your checks with people you work with, I’m talking about the real lives of the patients because they are in front of you.
MrP: This is nothing to do with what people in the BBC think, these people are there because they’re sectioned.
OD: And would still be there now if this investigation hadn’t happened.
Mr Patton told the court that all the patients were there because they were sectioned under the Mental Health Act, that they were NHS patients in a private facility, not a psychiatric facility with trained mental health nurses. He continued that Whorlton Hall were paid £1 million a year to look after Patient 6, and he was contained with four people looking after him, with no activities. He then suggested that the staff were as vulnerable as the patients “because if they were attacked they had no recourse, did they?”. He moved on to discuss agency staff not wishing to return to Whorlton Hall.
MrP: And many of the people from this private healthcare agency, they didn’t want to come back after a short period there did they?
OD: No they didn’t
MrP: Because it was a fact of life that looking after these people, with all their problems, that none of the people had appropriate training did they?
OD: No, but it doesn’t take appropriate training to be human and see how somebody feels, when somebody is feeling
MrP interrupts: You’re doing this again. You have no experience or expertise in psychology or mental health nursing do you?
MrP: You had a lot less experience than many of the people working there?
OD: That’s fair, yes
MrP: Many of the people working there were trying to do their modest best for the people they’re looking after.
Ms Richardson interjected to point out that was not a question
HHJ: Some of this will be for your speech Mr Patton, I’m sure, it’s about getting parts from witness that will assist your client.
Court was then adjourned for a short break.
On the jury’s return a piece of paper had been given out to them, which listed two former employees that Mr Patton would refer to as X and Y [they are not defendants or witnesses in this case]. He said he had taken this precaution because his client had whisteblown about these former employees. He also told the court that some of the defendants in this case had had bricks put through their windows.
Ms Davies confirmed that she didn’t know the people listed and had never met them. She said she was vaguely aware of the names, because she had been told about people with those names, but she didn’t know surnames. Mr Patton suggested that they had both been dismissed from Whorlton Hall in 2018 because, he suggested, of a complaint made by his client, Niall Mellor. Ms Davies reiterated that she did not know them, and was not involved in gathering information beyond her role. Asked by Mr Patton if she knew them as disgruntled former employees she confirmed that she did not know them in that context, she was just familiar with their names. She was not aware that they’d been dismissed from Whorlton Hall and she was unaware of any involvement with CQC, “I honestly couldn’t, I’d just heard their names mentioned, I never knew surnames, I didn’t know anything in relation to the CQC or them being dismissed or anything”. HHJ Smith suggested to Mr Patton that he might be better off raising this issue with the next witness.
Mr Patton then moved on to ask Ms Davies about the occasion that she sounded her alarm and no-one responded. She couldn’t recall exactly who she was working with, but it was an agency worker.
MrP: you summoned emergency assistance did you?
OD: Urgh, because, this is from how I remember it, um, we were sat outside Patient 1’s room and she had become quite, like she was distressed.
MrP: She was?
MrP: What had caused her to become distressed?
OD: I cant remember
MrP: Was it something you did?
MrP: Presumably you reassured her?
OD: Yes, this was 4yrs ago and if there’s a clip maybe I could see?
MrP: You just tell us, she became distressed and what happened?
OD: We were sat outside, it could have been Debbie, was Tamara or Debbie and she came out of the room and I believe we pulled the alarm, and yeh, that’s all I can remember.
MrP: And you said nobody came?
OD: Yes that’s what I think happened
MrP: Is that what happened or not?
OD: This is 4yrs ago
HHJ: The witness is saying it’s her recollection, is there a clip?
Mr Patton continued to explore the alarm system with Ms Davies, before she asked again to see the clip.
MrP: You’re the one who told us you summoned help and no-one came, that cannot be right, your alarm would still be ringing if no one come wouldn’t it?
MrP: So shall we agree you’ve misremembered that episode?
OD: If we could watch a clip?
HHJ: Is there a clip Mr Patton?
MrP: I’m suggesting it never happened.
HHJ: the witness is asking
MrP: I’m suggesting it’s made up
HHJ: Mr Patton is suggesting you made it up?
OD: No, it was in video diaries as well
MrP: I’m saying it can’t have happened… someone must have come along.
He then moved on to discuss Patient 4 with Ms Davies.
MrP: Just people doing their best, is just people doing their best in difficult circumstances.
Ms Richardson interjected to point out that’s not a question
MrP: We’ve heard so many opinions its rich to hear that from my learned friend
HHJ: No Mr Patton, the ladies and gentlemen of the jury will have a time where you’ll draw all your threads together and give a speech to them, now is not the time.
MrP: Do you accept for someone working there, it’s not an easy job?
OD: Yes I do
MrP: And do you accept on any day they’re working there they’ll learn things about patients which they didn’t know the day before?
OD: Yes that’s fair
MrP: Do you accept in an environment like that people sometimes make errors?
OD: I mean everybody makes errors, but in what, I feel like in what capacity more specifically?
MrP: How to treat people, how to react to a situation.
OD: How to treat people? I don’t think how to treat people, you just are human, like you just know how to treat people, it doesn’t take training, techniques, you just know if you’re treating somebody nicely or not.
MrP: Right, so what’s the way that you tell somebody, you’ve given us an opinion so many times, what’s the way you tell somebody with autism who’s occasionally violent that you need to turn their music down, from your expert opinion.
Mr Patton continued to ask Ms Davies about how she’d have handled the situation with Patient 4’s music, before moving on to ask her about getting him into his pyjamas. [It was known that Patient 4 was triggered by discussion of pyjamas, and you can see reference to it and the charges against Mr Patton’s client in this report here].
MrP: So when it comes to night time changeover and it’s time for people to get ready to go to bed, he doesn’t like talking about wearing jim jams, so how would you with your training manage telling him it’s time to put his jim jams on?
OD: I would try and talk him through what he was doing, but distract him
MrP: How do you distract somebody from telling them it’s time to put their pyjamas on?
OD: You can talk about anything under the sun, not just his pyjamas
MrP: But unless you put his pyjamas on, the mechanical action…
OD: If there’s footage of it, I would love to see it, because I don’t know what I’d say, I don’t remember
MrP: But now with your experience can you tell us how you’d approach that problem, of explaining to a man who doesn’t like to talk about his pyjamas or put them on, how you would achieve the task of getting his pyjamas on?
OD: I’d try my best to distract him, if he had a member of staff he had preference to, I’d do what I could to distract him and encourage him
MrP: Distract him from putting his pyjamas on?
OD: Distract him from thinking about what he was doing
MrP: You do need to think about the act don’t you,
OD: I don’t understand
HHJ: Mr Patton, I think we’ve got the point, it’s a mechanical act to put your pyjamas on but it’s entirely sensible a conversation could be going on about something else at the same time
MrP: sorry I missed the first bit, what did you say your honour?
HHJ: Shall we move on
MrP: So do you accept sometimes staff there need to do their job and need to talk about things it may not be easy to talk about?
OD: Yes I do
MrP: I’ve no other questions.
The court then adjourned for a shortened lunch break as HHJ Smith needed to be elsewhere this afternoon so wished to finish for the day early at 15:45.
We returned from lunch and Ms Brown, counsel for Darren Lawton was about to start her cross examination, when there were technical difficulties with her microphone, so it was agreed that she would move forward in the court room. Difficulties followed in showing a video clip to the court, that she’d checked and was working in the lunch break. HHJ Smith apologised for the ‘deeply temperamental system’ and the court account left the video link shortly before 2pm. Half an hour later we still had no audio or video on the remote CVP link, the clerk apologised for technical difficulties in the chat, but it wasn’t clear whether that was in court too, or just for press attending remotely. I left to try and re-enter at 3pm and was outside the link, not let into court and gave up at 15:45, so I’m unsure whether the trial was adjourned, or whether it continued in the court in person. Hopefully it will become clear tomorrow morning.