Wilmot, R (on the application of) v Taunton Deane and West Somerset Magistrates' Court & Ors

This is the judgment of the Court to which we have both contributed.

Although there are before the court four applications by the Claimant, Richard Wilmot, and one on behalf of his wife, three are deferred pending the outcome of the consideration of the two others. Only one of those other applications was actually advanced at the hearing by Mr Nicholas Bowen QC, who, shortly before the hearing, was directly instructed by the Claimant. The application pursued is that, pursuant to CPR 39.3, the judgment ([2013] EWHC 1399 (Admin)) and order of the Divisional Court on 30 April 2013 be set aside and be re-opened. The proceedings were an application for judicial review in respect of the Claimant’s conviction in October 2011 in the Taunton Deane and West Somerset Magistrates’ Court (“the Taunton Deane Magistrates’ Court) following a plea of guilty to eight planning offences. The other application we have to deal with is for permission to commence committal proceedings under CPR 32.14 against the Exmoor National Park Authority (“the ENPA”), the third defendant, for contempt of court. Although four individuals who are or were officers or employers of the ENPA were not explicitly named as Defendants in the application, it is clear that the application to commence committal proceedings is based on their acts. It was unclear whether they were included in the application. Mr Bowen did not pursue that application for reasons we shall explain, but he did not withdraw it, and it has to be dealt with.

The background to these applications is a protracted dispute about works to a listed building, a cottage, 2 The Ball, in Dunster, Somerset, owned by the Claimant and his wife since April 2002. The property is in the Exmoor National Park for which the ENPA is the planning authority. In brief, the ENPA alleged that the Claimant had carried out works to the cottage in 2002 and subsequently without obtaining the necessary listed building consents. Listed Building Enforcement Notices were served in 2005 specifying the breaches of listed building control and requiring remedial steps to be taken. The Notices had plans attached and photographs to illustrate or identify relevant locations. The Claimant appealed; an Inquiry was held before an Inspector. The Claimant says that, when the Inspector started showing an interest in the photographs, two of which the Claimant was already alleging were “doctored”, the ENPA withdrew the notices.

The allegation of tampering with the photographs so as to create a false impression is hotly disputed by the ENPA. In any event, the Notices were withdrawn and new Notices were served in 2007. They were supported by the photographs which the Claimant alleged had been tampered with and “doctored” to make them show something false in the way we describe at [42ff] below. The Claimant did not appeal in time and the Notices became effective, so that non-compliance with them was an offence.

In 2011, the ENPA instituted criminal proceedings against the Claimant in the Taunton Deane Magistrates’ Court. He was charged with 23 offences. The allegations were of various breaches of listed building control through works done, and failures to comply with the now effective enforcement notices. The prosecution witness statements were served. The Claimant was represented by solicitors and a QC. The case was listed for trial on 10 October 2011, but shortly before the trial date, he indicated through his representatives that he would plead guilty to 8 offences, if the prosecution did not proceed with the other charges. On 10 October the Claimant pleaded guilty to the 8 offences. He maintains that he pleaded guilty because, without the original digital files of the photographs and the metadata he was advised that he was unable to show that the photographs had been manipulated in bad faith. As part of the agreement between prosecution and defendant, no evidence was offered on the other 15 charges and the Claimant was formally acquitted. He was fined £22,000 in total, far more than he was expecting. He was also ordered to pay £25,000 costs, as agreed with the ENPA, and a £15 victim surcharge.

The Claimant then represented himself. His application for a short extension of time for an appeal to the Crown Court out of time against the convictions failed because of his guilty pleas. He had contended that his pleas were conditional upon the ENPA providing, albeit after the pleas were tendered and accepted, computer metadata on certain photographs, used in the prosecution evidence, which he continued to contend had been tampered with. He said that the ENPA had not kept to its side of the bargain on the provision of the metadata. His attempt to appeal against sentence, also made out of time, failed because it was out of time.

On 19 March 2012 the Claimant brought judicial review proceedings to challenge those decisions. He was still acting in person at that time. Mitting J granted permission on a renewed application in November 2012 to challenge the refusal of Taunton Crown Court to extend time for the appeal against sentence and costs in view of the amount of the fines, on top of the agreed sum as to costs: [2012] EWHC 4117 (Admin). Much of the background detail can be found in that judgment. He refused permission for a challenge to the refusal of an extension of time for appeals against 6 of the 8 convictions, but gave permission for a challenge to the convictions before the Magistrates’ Court in respect of charges 7 and 8. He did so notwithstanding the pleas of guilty, because of the Claimant’s argument that they had been procured by allegedly false prosecution evidence, in the form of two “doctored” photographs and false witness statements. He refused permission for a challenge to the Claimant’s convictions following his pleas of guilty to charges 1, 2, 3, 20, 21 and 22 because those charges had nothing to do with the allegedly false evidence.

The judgment of the Divisional Court following the substantive hearing before Hallett LJ and Burnett J also contains important material for understanding the applications before us. In the two weeks before that hearing, the Court refused two applications in writing by the Claimant for the hearing to be adjourned on account of his absence from the UK undertaking his employment as a pilot with a Turkish airline and in order to deal with additional evidence received by him on 8 April 2013.

The Court quashed the refusal to extend time for the sentence appeal, and itself extended time for that appeal before the Crown Court. It agreed with the Crown Court’s refusal of an extension of time to appeal the convictions since the pleas of guilty were plainly not equivocal. It rejected the argument that the conviction in the Magistrates’ Court had been procured as a result of false evidence. It concluded that it was by now common ground that the photographs allegedly tampered with, including the two in respect of which permission had been given, did not relate to any of the charges to which the Claimant had pleaded guilty because he had confirmed them before receiving the CD about which he complained. The court noted that no argument that the whole prosecution was tainted by improper behaviour was advanced before the magistrates, as it could have been. The court concluded that there was in any event no evidence of any abuse of process. That was what the allegation that doctored images had been tendered in evidence, in relation to charges to which not guilty pleas were accepted, amounted to. It stated (at [17]) that the material before the court did not “come close to establishing that there was fraud on the part of the prosecution in this case” and ([19]) the prosecution was supported by a considerable body of evidence, some of which the Claimant disputed and could challenge if he chose to do so as, until shortly before the trial, it appeared he intended to do.

Taunton Crown Court dismissed the Claimant’s appeal against sentence in November 2013. It ordered him to pay a further £7,800 towards prosecution costs. Subsequently, action was taken by bailiffs for HM Court Service to enforce the fines and costs orders. The money has now been paid. That has led to one of the further applications which have to be dealt with at the conclusion of the two main applications.

We have stated that the only application positively advanced before us on behalf of the Claimant is that under CPR 39.3 to set aside the Divisional Court’s decision. That application is advanced on grounds relating to the refusal of the adjournment. The Claimant also relies on further evidence about the allegedly falsified photographs and statements made about them on behalf of the ENPA. That evidence, he maintains, shows that the prosecutions were an abuse of process. The basis for the application for permission to commit various individuals for contempt of court is also based on the same essential allegations, that evidence known to be false was tendered in a variety of court proceedings.

For most of the time since his conviction, it appears that the Claimant has been acting in person. He has raised many issues which are not relevant to the applications before the court. For example, he has disputed that the property was listed, despite the evidence of Elaine Pearce, an official at the Department of Culture, Media and Sport, the department which maintains the list, that it is a listed building. That evidence was before the Magistrates’ Court in the criminal proceedings. It was not disputed in those proceedings or in the judicial review proceedings. Since the Claimant is an airline pilot, now employed by a Turkish airline, and is often abroad, there have also been difficulties, irregularities and delays in the presentation of his case. The application under CPR 39.3, for example, is made because of the circumstances in which the Claimant was unable to be at the hearing before the Divisional Court and its refusal of his application for an adjournment. Mr Bowen has been able to provide a sharper focus to the case in the short time that he has been instructed, and we are grateful to him for his careful submissions and the way he has sought to ensure that the Claimant’s case was fully before us.

To complete the picture at this stage, we list the other applications before the court chronologically.

The application for permission to commence committal proceedings for contempt of court under CPR 32.14 against the employees and former employees of the ENPA was originally made on 27 June 2013. Following an order and directions given by Sir Stephen Silber on 9 September 2014, it was amended and re-lodged on 18 September 2014. The application pursuant to CPR 39.3 for the judgment and the order of the Divisional Court on 30 April 2013 to be set aside and those proceedings re-opened, on the grounds of the Claimant’s absence from the Divisional Court hearing, was also made on 27 June 2013.

The next application in time is that dated 6 April 2014. It was for a stay on all orders in this case on the ground that there are police investigations into the ENPA. This was refused on the papers by Singh J in an order dated 13 June 2014. The Administrative Court Office has treated a letter from the Claimant dated 1 July 2014 as an application to renew the application orally. Sir Stephen Silber, in the order to which I have referred, ordered that this should be considered after the application for permission to bring committal proceedings.

The next application is one, dated 15 August 2014, received by the Administrative Court on 19 August, for all orders in this case, including that of the Magistrates’ Court of October 2011, to be struck out.

There is another application related to the Claimant’s dispute. It was filed on 24 September 2014 by the Claimant’s wife, Mrs Maureen Wilmot. She sought an order striking out the debt orders and distress warrants of the magistrates’ court. She also required the repayment of some £59,124 paid to bailiffs who executed a distress warrant after the dismissal of the Claimant’s appeal against sentence in November 2013 as paid under “extreme duress”. All but the part seeking the recovery of the £59,124 was dismissed by Blake J in an order dated 7 October 2014. Blake J adjourned that part of the application and ordered it to be considered after the Claimant’s application for permission to bring committal proceedings.

At the heart of these various applications is the Claimant’s contention that digital photographic images of a staircase removed from the south-west corner of the cottage and of a wall built in the same part of the cottage were dishonestly manipulated and the manipulated images were deployed and relied on by the ENPA in support of the Listed Building Enforcement Notices issued in February 2005 alleging breaches of listed building control, the local inquiry in January 2006 into the Claimant’s appeal against those notices, replacement Enforcement Notices issued in August 2007, the criminal prosecution for breaches of planning control, at which he was convicted on 10 October 2011, and in the subsequent judicial review proceedings. In the judicial review proceedings, he sought both the quashing of the criminal convictions and a declaration that the ENPA had brought the prosecution on the basis of false and perjured evidence. He also sought an order that the ENPA disclose “the computer file history of all digital images used at [the] public inquiry and prosecution at Taunton Magistrates…”.

The Claimant was served with a number of Listed Building Enforcement Notices; the evidence in support of them, and of the later prosecutions for breaches of listed building control, covered many parts of the house. But the material Notice relates to the removal of the staircase and balustrade in the south-west corner of the house, the creation of a hard floor surface to cover the void created by the removal of the staircase, and the creation of a bathroom in the southwest corner of the house. Its requirements, with which the Claimant had to comply once the Notice became effective, included the removal of the bathroom fixtures and fittings, and of an area of the floor, and the insertion of a balustrade. It is this area to which the allegations concerning false evidence and falsified photographs relate. Another Notice, which has caused some confusion, related to the removal of another staircase in the northern section of the house. No copy of an Enforcement Notice in respect of this matter was before the court.

The charges in the criminal proceedings also included a charge relating to the northern staircase; this was charge 8, to which the Claimant pleaded guilty. Charges 4 – 6 related to the south-west corner of the house, an area shown in the images which the Claimant maintains had been manipulated. The charges concerned removal of the south-western staircase, and of cob walling and of lathe and plaster wall in the same area. Pleas of not guilty were accepted to those charges. We refer to this because Mitting J was under the impression that the allegedly falsified photographs at issue related to charges 7 and 8, but they do not. Eventually this was not at issue. Towards the end of his reply Mr Bowen sought to contend that the photographs bore a relationship to charges 2 and 3 to which the Claimant had pleaded guilty. Those two charges did relate to the south western corner but not directly to the staircase or wall. They concerned the failure to comply with the Enforcement Notice by removing the bathroom fixtures and fittings, and the hard floor, installed over where the staircase had reached the first floor landing. We deal with that later.

Other unauthorised works to which the Claimant pleaded guilty included cutting off roof rafter ends, the removal of two ground floor doorways and their blocking, and the creation of a new door between the kitchen and utility room.

We have stated that the Claimant was represented by leading counsel and solicitors for the criminal proceedings and maintains that he pleaded guilty because he was advised that, without the original digital files of the photographs and the metadata, he would be unable to show the photographs had been manipulated,. He says that he pleaded conditionally, i.e. subject to an agreement by the ENPA to provide the data requested, but Mr Bowen accepted that, in law, the plea was unequivocal. He was right to do so. The circumstances and the fact that the pleas were entered, even though the ENPA had made it clear that finding the material would take some time and that there was no guarantee that the material could be found, are fatal to the contention that the plea was equivocal. It is legally not possible to tender a plea which is conditional upon further information being provided by a prosecutor, and which can then be replaced by another plea if the information is not forthcoming or is not what was anticipated by the ENPA. Such a plea would also not be an equivocal plea: S v Manchester City Recorder [1971] AC 181. Those advising the Claimant at that time would have been well aware that he was pleading guilty without the information which the ENPA agreed to provide. They were obliged to have advised him of the true effect of his pleas.

We have already referred to the fines and costs, to the failed attempts to appeal the convictions and sentence to the Taunton Crown Court, and to the limited grant of permission by Mitting J. Much was made by the Claimant, and indeed by Mr Bowen, of what Mitting J said about one of the two allegedly altered photographs at issue in granting permission. He compared it with another photograph of the same area, taken from a different angle, which was accepted by the Claimant not to have been altered. He stated that he thought that one photograph might show a staircase leading, impossibly, up into the ceiling. He said he could not see, at least in the absence of any explanation, how the two photographs could be reconciled if, as was the ENPA’s case, they were taken on the same occasion.

We have referred to the Claimant’s applications in the two weeks before the substantive hearing to adjourn it. An application notice dated 18 April sought the vacation of the hearing listed for 30 April to allow him time to amend his claim. He also sought a stay of the judicial review proceedings generally, pending the outcome of his application for permission to appeal the decision of Mitting J to grant only limited permission to judicially review the decision of the Magistrates’ Court and the Crown Court. The application stated that the appeal was necessary because of a misdirection concerning the relevance of the photographs placed before Mitting J. That application was supported by a statement and the skeleton argument that had been before Mitting J.

In a second statement, dated 26 April 2013 and filed after learning that Hallett LJ had ruled that the hearing must proceed, the Claimant stated that he was receiving some advice from solicitors but was unable to afford counsel and much of the new evidence had not been received by him in Istanbul until 20 April. In this statement, he also stated that he had learnt that his attendance at the hearing would be impossible due to the Syrian refugee crisis and because his scheduled leave had been moved and cancelled by Farouk K Abazli, the Chief Flight Crew Rostering Officer at Turkish Airlines, and explaining the reason for this. He exhibited a document addressed to him and signed “Farouk” which he stated was an email. It stated that due to the number of hours required “I want to move your vacations to another month, whenever you want. Please let me know ASAP.”

The Claimant’s third witness statement is also dated 26 April. Its purpose was to set out his case in full in the event that the hearing proceeded in his absence. He stated that his position would inevitably be severely prejudiced if this the hearing proceeded, but asked the court to consider the matters in the statement if it did. Among the matters raised in that statement was the submission that the disputed images were relevant to the convictions on counts 7 and 8, for which he had permission to proceed by way of judicial review, and that the ENPA should not be exonerated for using digitally altered evidence because the Claimant had refused to offer a guilty plea in relation to the charge relating to the staircase portrayed in the images. He argued that the fact that the prosecutor based its prosecution on images which he claimed were fraudulent tainted the whole prosecution, and asked the court under CPR 54.15 for permission to review the decision of the ENPA to bring a prosecution against him on the basis of digitally altered evidence. The court also received a letter from the solicitors then advising the Claimant, stating that he was unable to supply official confirmation that his leave had been cancelled apart from the email, on the grounds that the airline was very nervous about disclosing confidential information for reasons of security.

In considering the application for the adjournment, Burnett J, with whom Hallett LJ agreed, stated at [6] that the document exhibited to the second witness statement was “for a number of reasons an unsatisfactory document”. He stated that:

“Unlike most emails, it does not identify its sender, nor the date on which it was sent. However generously it might be read from the claimant’s point of view, it does not, in my judgment, support the proposition that the claimant could not be present today at these proceedings”.

Burnett J also stated at [7], in relation to the solicitors’ letter, that he found it difficult to see that confirming the fact that a pilot’s leave had been cancelled could be viewed as confidential, and still less impacting on security. There was, he said, no evidence that the Claimant had made any effort to explain to his employers his need to be in London today, or to seek to work the roster around his need to be in London for a single day. He stated at [8] that “the totality of the unsatisfactory material placed before this court” did not provide “a sound basis for adjourning this hearing at the last minute”. He referred to the inconvenience, the expense, and the pressure on lists in the Divisional Court. But he stated that the Claimant had focused his complaints in his third witness statement, which set the nature of his real complaints out clearly so that the court was in a position to consider them.

The Claimant’s judicial review succeeded in part. But two matters are relevant for the purpose of his application. The first is that the Divisional Court rejected his submission that the prosecution was an abuse of process. The second is that the court rejected his application for judicial review of the conviction, and of the order that he pay costs.

The Divisional Court specifically considered the circumstances in which the Claimant pleaded and his complaints about the photographs. Burnett J referred, at [14], to the witness statement dated 2 April 2013 of Mr Wyborn, the ENPA’s Head of Planning, who stated:

“Mr Wilmot also wished to have copies of the computer files relating to the disputed photographs. I ensured that the relevant photographs were copied to a disk and I handed this disk over to Mr Wilmot's solicitor at the Magistrates' Court hearing. In terms of disputed photographs, the Authority had already submitted as part of the prosecution evidence a sworn statement of Gareth Clifford who had taken the photographs on 1 December 2003. The CD has a folder with the date of 1 December 2003 to reference those photographs taken on that day. Attached to each photograph is the metadata which can be accessed through the properties tab once the photograph is opened. This details the camera which was used to take the photographs, as well as other information such as focal length and aperture. With the photographs taken on 2 July 2009 there is a date and time with the metadata; however, with the earlier photographs this was not programmed into the camera and in combination with the movement of the photographs between servers, the full range of metadata is not available. To the best of my knowledge the combination of witness statements, the dates on the CD and the metadata attached to the photographs, this is the full information that the Authority holds regarding the file history and this all was in the possession of Mr Wilmot's solicitor on the day of the hearing.”

Burnett J stated that, although this was not accepted by the Claimant, “the evidence suggests that the [defendant] provided what it could in relation to that part of the agreement or understanding”. He also stated that “it is now clear on the evidence of Mr Wyborn that none of those photographs relates to the subject matter of charge 8, a staircase at the north of the house, but rather a different staircase. Charges relating to that different staircase were dismissed.”

Burnett J set out the substance of the Claimant’s submissions, which (at [16]) he described as “in substance, if not in form, an abuse of process argument”. We have referred to his observation that no such argument was ever advanced before the magistrates, as it could have been, and there was no basis upon which the court could make a finding in the face of the unequivocal evidence of the ENPA that there had been widespread prosecutorial misbehaviour of the sort suggested by the Claimant. Burnett J had previously noted, in respect of charge 7, the cutting of rafter ends, that although the Claimant accepted that he cut the rafters and said that he did so as a matter of necessity, he had nonetheless entered a guilty plea. The photographs had no bearing on that. Similarly, the photographs had no bearing on count 8, relating to the northern staircase.

The Divisional Court considered that there was no material before it enabling it to quash the convictions on the principles articulated in R v Bolton Justices, ex p. Scally [1991] 1 QB 537. The discovery in that case that alcohol testing had been undertaken using kits themselves containing alcohol could not be more different: see [19]. This prosecution, unlike that in Scally, was supported by a considerable body of evidence, some of which the Claimant disputed but was in a position to challenge if he chose to do so. He had taken the initiative to compromise the criminal proceedings. The pleas were not somehow dependant upon the production of the computer material, because the Claimant confirmed his pleas before receiving the CD about which he complains.

The allegation that an employee or employees of the Exmoor National Park Authority dishonestly manipulated digital photographic images of a staircase and surrounding area is at the core of the Claimant’s application to commence committal proceedings and is of fundamental importance to the application that the judgment of the Divisional Court be set aside. Because of the centrality of this allegation, it is necessary to consider the evidence before us and the way the material has been put before us in some detail.

As to committal proceedings, Mr Bowen submitted that the images and the evidence about them show the Claimant has a “strong” prima facie case and satisfies the requirement for permission. The contempt alleged is a criminal contempt relating to conduct by the ENPA which interfered with the due administration of justice in connection with proceedings at the planning inquiry in 2006, the Magistrates’ Court in 2011, and in the witness statement of Mr Wyborn dated 2 April 2013 in response to the application for judicial review. Mr Bowen’s skeleton argument, however, accepted (at § 11) that it might be thought that the committal application “is premature and should await findings in the claimant’s civil action for misfeasance against the ENPA” when “any contempt issues will…be more focused”. This action has not yet started, as we understand it. As we have stated, during the hearing, Mr Bowen made it clear that, while not withdrawing the application, he was not pursuing it and seeking permission to commence committal proceedings.

As to the application under CPR 39.3, Mr Bowen relied on the manipulated photographs and other evidence to show that the Claimant satisfies the requirement in 39.3(5)(c) that he has “a reasonable prospect of success” in the judicial review. Essentially, he submitted that the Claimant had a reasonable prospect of success in showing that the entire prosecution was an abuse of process so that, notwithstanding the guilty pleas, in the light of Scally’s case, all the convictions should be quashed. The other two requirements of CPR 39.3(5), that the Claimant act promptly after finding out about the adverse order, and have a good reason for not attending the hearing, also need to be addressed.

The applications, therefore, involve consideration of three bodies of law: the requirements of contempt where the application is in respect of witness who is alleged to have told lies in a statement and relied on false evidence; the requirements of CPR 39.3(5), to which we have referred, which in turn involve consideration of what it is necessary to show in order to establish that the argument that instituting the prosecutions and pursuing them was an abuse of process.

For present purposes, the requirements of contempt can be summarised as follows. The decision of the Court of Appeal in KJM Superbikes v Hinton [2009] 1 WLR 2406 and of this court in Barnes (TA Pool Motors) v Seabrook [2010] EWHC 1849 (Admin) make it clear that where a private person seeks to pursue proceedings for contempt against a witness who is alleged to have told lies in a witness statement, the court will be concerned to satisfy itself that the case is one in which the public interest requires the committal proceedings to be brought and the applicant is a proper purpose to bring them: KJM Superbikes at [11]. The case against the alleged contemnor must be a strong case because of the need to guard carefully against the risk of allowing vindictive litigants to use contempt proceedings to harass persons against whom they have a grievance: Barnes at [41(ii)(a)]. However, contempt proceedings in such cases may draw the attention of the legal profession and potential witnesses to the dangers of making a false statement, so that serious examples of false evidence should not be treated as of little importance.

We have referred to the three requirements in CPR 39.3(5). Applications under CPR 39.3 must be supported by evidence: CPR 39.3(4). The note at 39.3.6 states that “although the aim of the rules is to provide maximum flexibility, as a matter of practice, if all other things are equal, it would be wise for any application to be heard by the same judge or the same level of judge as the one who made the original order”. Save in an exceptional case, the application is to be determined on the written evidence: see Bank of Scotland Plc v Pereira (Practice Note) [2011] EWCA Civ 241 at [53] and [54].

As to abuse of process, Mr Bowen relied on the second category of case in which a court might exercise its jurisdiction to stay proceedings for abuse of process, namely where it is necessary to protect the integrity of the criminal justice system, rather than the first category of case in which the actions of the prosecutor have made a fair trial impossible. In Warren v Attorney-General for Jersey [2011] UKPC 10, Lord Dyson, gave the leading judgment, with which the other members of the Judicial Committee agreed. He held that in the second category in which a court might stay proceedings, the issue whether a stay should be granted is determined primarily by reference to whether or not a stay is necessary to protect the integrity of the criminal justice system. This is because, in this category, it is necessary to ensure that the misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute.

The important point made by the Judicial Committee in Warren’s case at [36] is that the misconduct is not sufficient. It specifically disagreed with the decision of the CACD in R v Grant [2005] EWCA Crim 1089, [2006] QB 60, which implied that it was. Lord Dyson continued:

“…[T]he particular circumstances of each case must be considered and carefully weighed in the balance. It was obviously right to hold on the facts in R v Grant that the gravity of the misconduct was a factor which militated in favour of a stay. But as against that, the accused was charged with a most serious crime and, crucially, the misconduct caused no prejudice to the accused. This was not even a case where the “but for” factor had a part to play. The misconduct had no influence on the proceedings at all. In these circumstances, surely the trial judge was entitled to decide in the exercise of his discretion to refuse a stay and the Court of Appeal should not have held that his decision was wrong.”

He made the point that it was not the function of the criminal courts to discipline the police, and the same would obviously apply to the prosecutor.

The upshot of this is that, even where prosecutorial misconduct has been established, and in a way which is a serious affront to the integrity of the justice system, other factors have to be brought into account. The gravity of the offending is one, prejudice to the Defendant is another. Whether the conduct caused unfairness is thus relevant, where it is not of itself sufficient to bring the case into the first category of abuse.

The evidence about the digital images that is before us consists of four photographs which the Claimant maintained had been digitally manipulated, and screenshots from a CD showing the metadata. The Claimant, and Mr Bowen, invited the court carefully to examine the images and the screenshots, which have been printed from a CD. They invited us to do so without the aid of either expert evidence on the interpretation of the photographs, or on how the different metadata supports the contention that what the photographs, and one in particular, shows must have been the result of digital manipulation of the image. We therefore turn to that evidence.

There were originally two photographs alleged to be manipulated. Both relate to the south western corner of the house. One, RIMG0058.JPG, photo 58, is of the south western corner staircase taken from the first floor showing where the cob wall and chimney breast had collapsed, but also showing the hole in the floor beneath it through which can be seen part of the staircase up to the first floor, the bottom of which began beyond the small void beneath the chimney breast. The Claimant maintains that this has been manipulated by the inclusion of the staircase itself which he says was damaged by the collapse of the chimney breast, and covered by its debris. He contrasts that with another photograph, RIMG0061.JPG, photo 61, not alleged to be manipulated, taken on the same day and from much the same position which shows rock and rubble but no staircase. The Claimant says that the purpose of the manipulation was to support the false allegation that he had removed the staircase after 8 November 2002, when it had been intact after the collapse of the chimney breast, rather than damaged by the collapse, caused by the defective work of a previous owner, leaving the chimney breast insufficiently supported, and not by his works. The rocks and rubble were the debris of the collapse.

Although this manipulation issue had been around since the start of the Inquiry in 2006, as a contention relevant here, it related to charges 4 and 5, which were not proceeded with. These were offences under ss7 and 9 of the Planning (Listed Buildings and Conservation Area) Act 1990, of executing unauthorised works to a listed building which affected its character and appearance, rather than to breaches of a listed building enforcement notice, which required the ENPA to prove that works had caused the collapse and damage. The enforcement notice which contended that there had been a breach of listed building control in the removal of that staircase did not require that it be reinstated.

After the conclusion of the hearing before us, at which it had not been an issue that the allegedly manipulated photo 58 did not relate to the charges to which the Claimant had pleaded guilty, the Claimant himself wrote to us making further submissions, and Mr Bowen put in written explanatory comments on that material, and providing references to points that had already been mentioned. We have referred to the late contention that there was a relationship between charges 2 and 3 to which the Claimant pleaded guilty and the manipulated images. The Claimant additionally contended that a further photograph of the south-western corner from the first floor landing RIMG0062JPG, photo 62, had also been manipulated in the same way as photo 58. The Claimant said that this was supported by discrepancies between the appearance of the stair case in the allegedly manipulated photographs and that of the remains of the stair case photographed lying outside the house. The allegedly manipulated photographs did not show the contrast between the bare wooden central part of the tread, and its darker sides, which were visible on the remains outside.

The other image which the Claimant alleged was manipulated was referred to as the “moving wall”. This showed a new concrete block wall on the first floor landing in the south west corner. It was exhibited, as DJW 47, to the section 9 statement of Mr Wyborn dated 26 January 2011, made for the purposes of the Magistrates’ Court prosecution. Mr Wyborn said that it had been taken during a visit on 1 December 2003 to show the area of cob wall lost since the visit of Mr Stow on 8 November 2002, when Mr Stow took photo 58 of the cob wall. Mr Wyborn compared the areas of cob wall shown in the two photographs. Mr Clifford, who at the relevant time had been a planning officer with ENPA, made a section 9 statement dated 13 April 2011 for the purposes of the prosecution which covered the moving wall, among others. He had taken a number of photographs on a visit on 1 December 2003, including that one. (His reference to photographs taken during a visit on 1 December 2011 is clearly a mistake for 1 December 2003). He had used an ENPA camera and downloaded the data on to the ENPA’s server, from which Mr Wyborn had printed it off. The Claimant’s contention was that the position of the concrete block wall was shown in the photograph 3 feet nearer the camera than it actually was, thereby falsely increasing the apparent loss of cob wall. This was the subject matter of charge 5 to which the Claimant pleaded not guilty and was acquitted.

We have already quoted (at [29] above) the evidence which Mr Wyborn in his statement dated 2 April 2013 provided for the purpose of the judicial review, which is set out in [14] of the Divisional Court’s judgment. The Claimant maintains that this evidence is wrong. He also maintains that the CD given to him at the Magistrates’ Court on 10 October 2011, after his pleas of guilty, which the ENPA stated had fully disclosed the material it had about the images, did not in fact do so because it did not contain the metadata. After the Divisional Court proceedings, under cover of a letter dated 21 June 2013, the ENPA furnished the Claimant with a CD containing the digital photographs about the property that he had requested under the Freedom of Information Act and Data Protection Act. This contained the metadata, and it was this which prompted the applications of 27 June 2013. The CD with the metadata is essential to the Claimant’s allegations. Mr Bowen stated that the Claimant had sent this CD to the Avon and Somerset Police with a request for a criminal investigation, and that it was only on 12 March 2015, after intervention by him, that the CD was recovered from the police. The production of this metadata, in the light of what Mr Wyborn had said in his evidence, is relied on by the Claimant to reinforce his contention of manipulation on the ground that the ENPA had been concealing this evidence from the Claimant since 2006, and then from the Courts. The Claimant maintains all of the evidence supported his allegation that the photographs were dishonestly manipulated to show something false, and that there had thus been an abuse of the process of the courts.

The “properties” files of the metadata for photo 61 states that it was taken on 8 November 2002 at 17.56, for which the JPG file was created, ie downloaded from camera to computer, on 12 November 2002 at 11:09 and modified at that time. The folder path for this photo is “Patrick Stow Photos\8…” and the location is “D:\Patrick Stow Photos\8 Nove 2002”. This photo is said by the Claimant not to have been digitally altered. The metadata for “photo 58” states that it was created on 6 August 2003 at 16:59 and modified on that date and at that time. The location and folder path refer also to Patrick Stow in the same terms as for photo 61. Other parts of the metadata for photo 58, however and unlike photo 61, do not have information for the date taken, the camera, camera maker and camera model. The Claimant maintains that, on a careful examination of the two photographs and the screenshots that follow from the underlying computer files, it is clear that photo 58 was altered and that the evidence contained in it was manufactured. After the hearing, we were presented with the metadata for photo 62. This states that it was created and modified on 6 August 2003 at 16.59. The folder path was “Patrick Stow Photos\8”, and the location “Patrick Stow Photos\ 8 Nove 2002,” just as with both photos 61 and 58.

The Claimant also relies on a letter to the Claimant from Mr Whitcutt, then the ENPA’s solicitor and monitoring officer, dated 9 June 2008, exhibited to the witness statement of Mr Wyborn of 2 April 2013 for the judicial review proceedings. That letter stated that there is no inconsistency between photos 58 and 61. Mr Whitcutt stated that photos 61 and 58 “were taken on the same day and from different angles to gain maximum information from the site”. The letter asserts that photo 61 showed the staircase still to be in place after the partial collapse of the chimney breast. It also contains a detailed answer to points raised in January 2006 by Manches, the solicitors then acting for the Claimant. The points were raised for the purposes of the Inquiry, but were overtaken by the withdrawal of the Enforcement Notices. Mr Bowen submitted that even a cursory examination of the two pictures demonstrates that they are taken from exactly the same angle with different focal lengths, but one shows stairs and the other shows only rubble.

What of the other evidence about the digital images? ENPA’s Chief Executive, Dr Stone sought advice from the ENPA’s ICT systems manager about the Claimant’s allegations. He then wrote to the Claimant on 31 October 2008, explaining that he found no significant changes in pixilation or other characteristics of tampering with the images. He also met the Claimant in 2008 in order to try to explain the position to him.

The section 9 statements served on the Claimant by the ENPA for the purpose of the prosecution in 2011 included one from Mr Clifford, as we have already mentioned, and one from Mr Wyborn, which explained that Mr Stow, “Mr Wilmot’s then surveyor” had visited the property with Mr Wilmot in March 2002 in connection with its purchase. It explained what photo 58 (then referred to as PJ5), taken on a visit by Mr Stow on 8 November 2002, showed. There were other photographs taken by others on a later visit in December 2003, and on other dates which related to the many charges which the Claimant faced. Mr Stow, a qualified chartered engineer, instructed, he said, by the Claimant to carry out a survey of the property in March 2002, provided a section 9 statement of 25 January 2011. He had visited the property in March 2002 and again on 8 November 2002, when he had taken photo 58, which he exhibited. He stated that this and other photographs “were stored by me on my computer hard drive where they remain.” He made a further section 9 statement on 21 September 2011. He said that he had taken on his digital camera all the photographs in the sequence of 6 which included PJ5 or photo 58. He also said they had been downloaded onto his computer hard drive “where they have been stored ever since”. He denied that they had been altered or edited at any time, and the photographs which he produced were all unedited copies of the original images he had taken. He confirmed that photos 61 and 62 had also been taken by him on 8 November 2002, and stored on his computer hard drive.

The Claimant did not include Mr Stow among those whose committal he sought to prison for contempt. He had not asked Mr Stow for the metadata for any of the photographs, though, if he had instructed Mr Stow to take them, it is difficult to see why he had not. In answer to these points, Mr Bowen, whose Skeleton Argument stated that Mr Stow had been instructed on the Claimant’s behalf, was instructed by the Claimant to tell the Court that Mr Stow had originally been employed by the mortgagee, and that Mr Clitherow had been responsible for what Mr Stow had done later, implying that Mr Stow had neither acted for the Claimant nor independently of Mr Clitherow. He suggested that Mr Stow’s omission from those whose committal was sought did not imply acceptance that he had not also lied about the photographs.

Mr Clitherow was an expert on historic buildings who was engaged by the ENPA to give expert evidence at the Magistrates’ Court about the effect on the character and appearance of the cottage as a listed building of the works which the Claimant was alleged to have carried out. His report clearly implies that he had not visited the cottage on 8 November 2002 with Mr Stow, and stated that he had done so on 13 November 2002. He said that on this visit, he had climbed over the rubble shown on photo 61, and had gone up the south western staircase, which was intact. He thought that the masonry on the stairs had been placed there since it was stone and not cob and would not have fallen from any collapse of cob. The Claimant roundly rejected the suggestion by Mr Clitherow that he had placed the stone or rubble on the staircase. He stated that he had no reason to do so. The Claimant’s long-standing allegation had been that Mr Clitherow had visited the cottage in November 2002 with Mr Stow, and had taken photo58. He stated that Mr Stow had visited on only one occasion and not two as Mr Clitherow stated. The Claimant was sure that this was what was said at the 2006 Inquiry.

The argument that the photographic evidence has been dishonestly manipulated is central to all of the Claimant’s contentions. It is argued that, until he received the original digital files on 21 June 2013, he could not prove his case, and that he has only recently received those files back from the police. It is the metadata for the photographs taken or said to have been taken on 8 November 2002, which, with the other evidence, is now said to create the reasonable prospect of success of showing that the convictions were obtained as a result of prosecutorial behaviour which so abused the processes of the Magistrates Court that the Divisional Court decision not to quash the Crown Court’s refusal to extend time, for appealing against convictions based on unequivocal pleas of guilty, should itself be set aside.

The CPR 39.3 application

In our judgment, for the reasons in the following paragraphs, assuming that the Claimant can satisfy the requirements of CPR 39.3(5)(a) and (b), he has not shown that he has a reasonable prospect of success if the order of the Divisional Court is set aside and the proceedings are re-opened. Nor has he begun to establish a case, let alone a strong prima facie case, that the photographs were digitally manipulated for the purposes of his application for permission to commit various people to prison for contempt.

First, the allegation that the image of photo 58 has been manipulated, though raised by the Claimant a long time ago, is not said by him or his advisers to be sufficiently clear from the photographs alone to support a contention before the Magistrates’ Court that they had been manipulated, since that would have founded the very abuse submission which the Claimant now seeks to press. Mr Bowen was forced to rely on the observations made by Mitting J during the permission hearing. Mitting J referred to the fact that the ENPA might be able to provide a simple explanation of the difference in the photographs and the apparent inconsistencies between them.

Mr Upton, who appeared for the ENPA, showed that the photographs were part of a sequence taken as the photographer moved along the first floor landing, facing forwards and then back. He submitted that, when the sequence is considered, the photographs are not inconsistent. In the absence of expert evidence, we have had to proceed on the basis of the Claimant’s submission that such evidence is not necessary and to take up his invitation to examine the pictures.

Photo 62 is taken further back from the hole through which it is said that part of the staircase can be seen than either 58 or 61. The photographs do not show the staircase impossibly ending in the ceiling; but a lower part of the staircase which extends upwards out of sight beyond the photograph to the first floor. Photo 58 may have been taken from the same place as 62, with a zoomed or closer up image, or a little further forward. But it too shows the same part of the staircase, and it may also show a bit of rubble or rock where the lower treads were. The floor cannot be seen in it. Photo 61, which is not alleged to have been altered, is clearly taken a little further on still, with a much closer up view of the cob around the further edges of the hole. But what that photo shows through the hole differs from the other photos. What they showed of the further part of the tread is now obscured in photo 61 because the further edge of the hole, now being closer, obscures the further views underneath it, and brings into shot what was nearer to being directly underneath it: i.e. the rubble to which Mr Clitherow referred. The result is that we do not accept that the photographs assist the Claimant at all. This is not a surprising conclusion. Had there been any manipulation, it would have been intended to create consistency rather than the reverse. We repeat that the Claimant himself did not present this asserted manipulation as an abuse of process defence arguably available on the pictures by themselves in the Magistrates’ Court.

Our second reason is the absence of any expert evidence about these photographs. As long ago as 27 June 2013, when making his initial application for committal and to re-open the judicial review proceedings, the Claimant sought a direction for leave to instruct a forensic computer expert to establish the truth of his allegation. Mr Bowen observed that this application for permission to adduce expert evidence has yet to be dealt with. There is, however, no explanation of why, in the almost two years since the Claimant first obtained the original digital files, he did not himself instruct an expert. The leave of the court may be necessary to adduce the evidence, but it is not necessary in order to obtain the evidence. As it is, this application comes before the court without any expert evidence to support the fundamental foundation of all the allegations by the Claimant and which Mr Bowen accepts is central to each stage of this dispute. There is no expert evidence dealing with the metadata and how it could be like it is with or without manipulation. The Claimant has made comments but that is not remotely sufficient to support an allegation of this significance. There is no expert evidence either dealing with the alleged inconsistencies between the photographs as viewed. There is no evidence from any analysis of pixilation of the pictures to show that they may have been manipulated. We note that Dr Stone, Chief Executive of the ENPA, as long ago as 2008 said that the ENPA’s ICT staff member said that there was no evidence of pixilation to support the allegation of manipulation, and the Claimant has not taken that issue further with any expert of his own. This is, in our judgment, no way to put technical forensic material before the court in an application for the committal of defendants or for the setting aside of a judgment where that evidence is fundamental to the application.

Third, the Claimant did not provide any independent measured or other survey evidence to the Magistrates Court of the true position of the wall as he said it was, though it would have been open to him to do so, and relatively straight forward to do so. He could readily have done so for no metadata was required for this. And it is obvious that proof that one photograph had been falsely manipulated would be a powerful start in persuading magistrates that other supposedly suspicious photographs were underlain by similar misconduct. More surprisingly, he has not subsequently obtained such evidence. Nor has he sought to back his contention by expert photographic or computer evidence to show that the true location of the wall and its location shown in the photograph, as he inferred it to be from the relationship of the wall to the roof stringers, perspective issues notwithstanding, were incompatible.

Fourth, the other evidence points against or does not support the Claimant. It is telling that, although at the time of the criminal proceedings in 2011 the Claimant was maintaining that the images had been fraudulently manipulated to manufacture evidence, he has never asked Mr Stow for an electronic copy of them. Nor has he made allegations against Mr Stow, subsequently. Yet it is Mr Stow’s section 9 statement which gives the date of the photographs, and the subsequent handling, and states that they show what he photographed. And it is clear from the metadata that they come from his files. If there is a reasonable prospect of showing that Mr Stow is dishonest or unreliable, the Claimant has a case. But the Claimant has never sought to put that to the test. The Magistrates’ Court was the place to try that, backing his point up with the Claimant’s own recollection that Mr Stow did not take photo 58, contrary to what Mr Stow’s section 9 statement said. That would not have depended on the metadata, but only on showing that Mr Clitherow had claimed at the 2006 Inquiry that he had taken it, contrary to Mr Clitherow’s own section 9 statement.

The Claimant and Mr Bowen asserted that there was an inconsistency in the explanation for the photographs given by Mr Wyborn, in his 2 April 2013 statement and letter from Mr Whitcutt, when considered alongside the images and a supposedly different account given by another officer of the ENPA’s, Mr Clitherow. His evidence was that he took his image on 13 November and that the stones on the staircase must have been placed on the stairs and would not have landed on them by falling through the hole, as Mr Wilmot had claimed. The inconsistency, says the Claimant, cannot be explained by the fact that, at the time, there were two staircases at the property: the two pictures are of the same staircase.

There is nothing in this at all, in our judgment. The Claimant’s contention starts from the premise that it is accepted that Mr Clitherow took the photo 58 on 8 November 2002, and did not climb the south western staircase to reach the first floor. That is what the Claimant says was said at the 2006 Inquiry, but that is not accepted. There is no evidence to support the Claimant’s assertion and it is denied by both Mr Stow who says that he took the photograph, and by Mr Clitherow, who says that Mr Stow took it, and that he, Mr Clitherow, who did not go to the cottage on 8 November 2002, went on 13 November 2002, and did climb over rubble or rocks to go up the south western stair case, which was still then intact. It was found largely intact later in the garden because the Claimant had removed it, largely undamaged if damaged at all, and put it there. This is a point which did not require the metadata, and which if true could have been ventilated in support of an abuse argument before the Magistrates.

The Claimant produced two witness statements to support his contentions about when the stair case was damaged. One, which is undated, is from Mr Caddy, who lived at another cottage in The Ball, Dunster. The other, dated 31 May 2011, is from Mr Bale, who had lived in the cottage in question and now lived next door. The date is not correct, as when asked about it by us, the Claimant said it was in fact made after the conclusion of the criminal proceedings in the Magistrates’ Court. Mr Caddy’s statement says that Mr Clitherow could not have climbed the south-western staircase because it was no longer there and offers an interpretation of the pictures. Mr Bale’s statement criticises the ENPA for its false and persecutory prosecution, and concludes that photo 58 must have been altered. We cannot attach any weight to this evidence. There is no reason why they could not have been obtained for the Magistrates’ Court hearing if there were anything in the contention that the photographs had been altered. If that were the case, they could have supported the point without any need for the metadata. All the arguments based on the manipulation of the images except those specifically based on the metadata could have been raised before the Magistrates and were before the Divisional Court.

In his judgment in the Divisional Court at [17-19], Burnett J explained the fundamental differences between the situation in Scally’s case and in the present proceedings. In that case the evidence generated by the tainted testing kits was the only evidence against the applicants. That is not so in this case. The question of whether the Claimant did what he was said to have done, or whether it was the result of defective work by a predecessor, in relation to the collapse of the chimney breast was the subject of evidence, served for the Magistrates’ Court proceedings, from Mr Stow, which dealt with dates of his visit and what photographs he took, and how they had not been altered; from Mr Clitherow, who explained what he had seen on his various visits, which the Claimant could have challenged, damaging as this was to him, and from Mr Wyborn. This was all supported by the photographs but they were far from the only evidence of what happened and when; the photographers would also have seen what they photographed.

Mr Bowen also submitted that the images disclosed under cover of the letter dated 21 June 2013 showed that Mr Wyborn’s assurance was untrue. He submitted that the ENPA had failed to disclose the metadata for the best part of 8 years, and that they had misled the Claimant and the court throughout this prolonged judicial process. It is true that the fullness of the data was not disclosed in the data which was supplied shortly after the Magistrates’ Court hearing. There has been no explanation as to why it was not disclosed until the FOIA request. But we are not prepared, especially in light of the other evidence, to infer that there may have been some malign effort to prevent its disclosure, to keep the lid on manipulated evidence to support the prosecution.

Mr Bowen also submitted that the material now available explained better the basis for the application for the adjournment refused twice before the Divisional Court hearing, and meant that its decision should be set aside. We reject that. The Divisional Court had not just letters from the Claimant but also representations from solicitors then acting in some capacity for the Claimant. It was entitled to form the view it did of the application, and of the material which it had been provided with by the Claimant. The carefully considered decision on the adjournment, see [8], cannot be set aside on the modest amount of further explanation we have had, mostly about the email. The power to set aside such a decision refusing an adjournment could only be exercised in a very much stronger case.

That is not to say that we reject the set-aside application on the ground that the Claimant had no good reason for not attending; CPR 39.3(5)(b). It was just that the Court was entitled to refuse the adjournment on the material which it had, which has not been significantly changed by what the Claimant has put before us. Insofar as that was pursued as a separate ground for setting aside the order of the Divisional Court, it fails.

The other requirement of CPR 39.3 (5)(c ) is that the applicant act promptly after finding out about the order, that is with all reasonable speed. Time does not run from the date at which the Claimant believed that he had a reasonable case; that is to say it did not start upon his receipt of the metadata. The date of receipt of the judgment is not known precisely but the delay could not have exceeded the period between 30 April and 27 June 2013. The Claimant would have been abroad for part of this period. We repeat the cautionary words of Maurice Kay LJ in Tinkler v Elliott [2012] EWCA Civ 1289, [32], that the circumstances of a litigant in person may go to the assessment of promptness, but

“…they will only operate close to the margins. An opponent to a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person ‘did not really understand’ or ‘did not appreciate’ the procedural courses open to him for months does not entitle him to extra indulgence.”

We regard this case as on the margins for promptness. It could and should have been brought earlier, but not by a great deal, and we are not prepared to refuse the application in the circumstances on that ground.

However, we are satisfied that the Claimant has not shown that he would have a reasonable prospect of success were the judicial review decision set aside so that it could be reheard, and so the application is refused.

We would point out that Mitting J, at the oral renewal hearing, did not grant permission for a challenge on the grounds of abuse of process to the convictions generally, but only to those on charges 7 and 8. The Divisional Court would not have had power to hear an appeal from that decision, nor was it asked to, nor did it purport to do so. Setting the Divisional Court decision aside could not lead to success for the Claimant in relation to 6 out of the 8 pleas of guilty.

We also observe that Mitting J only granted permission in relation to charges 7 and 8 because he was given to understand, mistakenly, that the photographs related to those charges. His reasoning shows that, had he understood the position as we now know it to be, he would not have granted permission to challenge any of the convictions. As we have explained, in the absence of a causal link between the alleged abuse and the charges to which a plea of guilty is said thereby to have been procured, it would only be a very strong case in which prosecutorial misconduct in the production of evidence meant that no prosecution for unaffected offences should take place, even where admitted by the ENPA. Even if photos 58 and 62 were manipulated, that would not persuade us that there was a reasonable prospect that the convictions for the 2 offences to which the Claimant pleaded guilty would be quashed on the grounds of abuse of process if the decision of the Divisional Court were set aside.

We are not remotely persuaded that any link between photos 58 and 62, and charges 2 and 3, is sufficient for it to be said that the pleas of guilty could have been affected by the presence of otherwise of the staircase on any particular date. The staircase was one which was at some point and in whatever condition undoubtedly removed. A floor for the bathroom was undoubtedly created above where the staircase had reached on the first floor. Charges 2 and 3 concerned bathroom fixtures and fittings, and the hard floor. It does not appear to be disputed that they were there, and were put in place by the Claimant.

In our judgment, the application to set aside the judgment must be dismissed.

Permission to commence committal proceedings

For essentially the same reasons, the application for permission to commit the ENPA and four individuals, Mr Russell, Mr Clitherow, Mr Wyborn and Dr Stone, for contempt fails. We need to identify where Mr Russell fits into the picture. Mr Russell provided no sworn evidence for the prosecution; he gave evidence at the 2006 Inquiry to the effect that the building was listed, relying on a letter for the Department for Culture Media and Sport. He also gave evidence to the Inquiry about the photographs, including about when they were taken. The Claimant says that that was false evidence, with Mr Clitherow, designed to cover up an unlawful entry to take photographs on a different date. Such an application requires a far stronger case than presented here. It could not possibly succeed without expert evidence which the Claimant has failed to obtain. These are stressful proceedings for any individual to have to face, and to face over quite a prolonged period, with potentially very serious consequences. Those who institute them, even if they are litigants in person, need to present the court with an evidentially based case. The Claimant has not been a litigant in person from the outset. But his approach since he has been, in particular in relation to the photographs, to make his assertions and expect others, first the police and now the court, to proceed on the basis that there is an evidential basis for those assertions.

In both his written and oral submissions, Mr Bowen has suggested that it may be a difficulty with this application that it is premature. On several occasions he referred to the possibility of an action in tort for misfeasance against the ENPA. No such proceedings have yet been filed, and it is not clear how much real consideration has been given to this. Mr Bowen suggested that the reference in the “other relief” section of the claim form in the judicial review proceedings meant such a claim is within their ambit. We consider this a misconceived submission. The reference is in the context of a prosecution of the ENPA for criminal offences. Perverting the course of justice and misfeasance in public office are mentioned in that context, and costs and compensation “if found guilty”. No indication was given at the hearing as to when such proceedings might be filed.

Essentially, the Claimant is trying to use the civil courts to pursue what is essentially a complaint about the evidence used in criminal proceedings. He has referred the matter to the police, who have investigated it and have, after questioning those who are or were at the material time members of the ENPA’s staff, decided to take no further action: see the witness statements of Mr Wyborn, [5 and 6], dealing with earlier stages, and Mr Gill, an associate with the solicitors acting for the ENPA, [29 – 31], and the exhibited correspondence from the police. This latter statement is dated 21 October 2014, and the email from the police is dated 8 September 2014; that is well after the Claimant received the metadata. Mr Gill makes the point that the Claimant has referred matters to the police for investigation on a number of occasions. The Claimant had referred the metadata to the police, as we understand it, or ought to have done, as it is the police who should investigate allegations which amount to perjury and perverting the course of justice. The police confirmed that there were no ongoing investigations in to the ENPA’s dealings with the Claimant in this matter. He had already launched contempt proceedings seeking the committal of officers and employees of the ENPA without any real evidential basis, and relodged them on 18 September 2014 after the order made by Sir Stephen Silber.

In our judgment, the correct analysis of the material to date is not that the application is “premature”, but that, on the evidence before the court, it is wholly unfounded and misconceived. Although Mr Bowen did not pursue the application for permission to commence committal proceedings, it was not formally withdrawn. We are of the view that it must also be dismissed and that it should be designated “totally without merit”. It is clear that the Claimant, and indeed his wife who has also filed a statement in these proceedings, feels extremely strongly about this long dispute with the ENPA and the conduct of its officers and employees. That, however, does not justify the institution of proceedings in which very serious allegations are made without a proper evidential foundation. We emphasise what was said in Barnes (see [36] above) about the misuse of committal proceedings by those aggrieved at the outcome of proceedings.

For the reasons we have given at [55] – [75] above the application to set aside the Order and judgment of the Divisional Court dated 30 April 2013 is dismissed.

For the reasons we have given at [76] – [79] above the application for permission to commence committal proceedings against the ENPA and the named individuals is dismissed and designated to be “totally without merit”. We are grateful to and commend Mr Upton for the clear, restrained and fair submissions he made on all aspects of this case.

The Claimant’s approach to this matter since the conclusion of the Divisional Court proceedings means that an Extended Civil Restraint Order may be made against him in relation to these matters. This would require him to seek the permission of the Court to take any further proceedings in relation to these matters. The ENPA has warned the Claimant that it will seek such an order at the conclusion of these proceedings. We will listen to any reasons which the Claimant may put forward as to why such an order should not be made, upon the handing down of this judgment.

At the hand down of this judgment, we will also consider the outstanding applications, including that from Mrs Wilmot.