Clifford v Hertfordshire Constabulary

On 30 October 2003 the Claimant was arrested by officers of the Defendant’s force on suspicion of making, attempting to make possession of and incitement to distribute child abuse images. It was suspected that he had used a US based website called Landslide in order to achieve this purpose. On the date of his arrest the Claimant was interviewed under caution on two separate occasions. During the course of those interviews he answered the questions which were put to him.

The arresting officer on 30 October 2003 was DC Brian Hopkins and this officer also participated in both interviews under caution which took place on that date.

At the same time as the Claimant was being interviewed under caution police officers were searching his home. Later the same day Officers visited and searched a former workplace of the Claimant and removed a computer (hereinafter referred to as the “Tiny computer”.)

At or about 5.00pm on 30 October 2003 the Claimant was admitted to bail on condition that he returned to the Police Station on a subsequent date. During the interim it was intended that there would be forensic testing of the Tiny computer. As I understand it, the computer was sent for forensic examination on or about 6 April 2004. The computer was sent to Mr George Fouhey. It is accepted by all concerned that Mr Fouhey was competent to examine the computer; he was asked to ascertain whether the computer contained any material of note.

It is common ground that Mr Fouhey found 17 images of note. At least 12 of the images were pornographic images of children under 16. Mr Fouhey reported these findings to the police some time before 19 July 2004.

On 19 July 2004 the Claimant answered to his bail. At the police station he was re-arrested and, thereafter, he was interviewed under caution about the images which had been found on the Tiny computer. In answer to many questions put to him and specifically in answer to questions put to him about the images the Claimant replied “no comment”.

Following the interviews under caution the Claimant was charged with four offences. The first two charges alleged that on 26 January 2001 the Claimant had made an indecent photograph on the Tiny computer; the third charge alleged that on 30 October 2003 he had in his possession indecent photographs of children namely ten images on the tiny computer. The fourth charge made against the Claimant was withdrawn within a comparatively short time of it being made against the Claimant; however, it involved the serious allegation of incitement to distribute child abuse images.

Between 19 July 2004 and 15 April 2005 the Claimant appeared in Courts on a number of occasions. His prosecution, of course, was handled by the CPS. On 15 April 2005 the Claimant was informed that the prosecution against him was to be discontinued and, as I understand it, on that date the Claimant was formally acquitted of the three charges to which I have referred.

Shortly after his acquittal the Claimant intimated a claim for malicious prosecution and misfeasance in public office. In due course these proceedings were instituted. In its original and amended form the Claim was wide-ranging. However, pursuant to an order of Master Eyre dated 13 December 2007 the amended Particulars of Claim were re-amended. The re-amendments had the effect of significantly narrowing the basis upon which the claim of malicious prosecution was being pursued.

The basis of this claim can be summarised in this way. The Claimant accepts that as of 30 October 2003 there was sufficient material available to the police to justify his arrest and interview under caution. He accepts, also, that it was lawful for DC Hopkins to admit the Claimant to bail with a view to his returning to a police station at some specified future date. It is also accepted that it was entirely proper for a forensic examination of the Tiny computer to be undertaken. The nub of the case as now presented by Mr. Thomas on behalf of the Claimant can be understood from paragraph 10 of the Re-Amended Particulars of Claim. The following averments are made in that paragraph.

“(c)

On Tuesday 6 April 2004 Mr Fouhey took possession of the computer equipment for forensic examination to see whether they contained any material of note, namely child pornography.

(d)

Mr Fouhey found 17 images of note. A picture of note is one considered of interest to the investigating officer. Twelve (12) images of note were said to be grade I category child pornography images of children under 16.

(e)

The location of these images were found in “recovered folders” and came from a ‘temporary internet folder’ or cache.

(f)

At some point after Mr Fouhey took possession of the computer equipment on 6 April 2004 and before 19 July 2004 (the date the Claimant was charged), Mr Fouhey gave a verbal report to DC Hopkins of his findings. The Claimant will rely on the reply to the letter of claim from the Defendant’s Solicitors dated 5 October 2005, wherein the Defendant’s solicitors wrote stating inter alia:

“Mr George Fouhey of the Computer Crime Unit examined the Tiny Computer. 12 Level I images were recovered from the computer. Mr Fouhey made a statement outlining his findings and told DC Hopkins verbally that the file he had found were in temporary folders.”

It is common ground in these proceedings that the fact that the images were found in recovered folders and came from a temporary internet folder is of relevance to the issue of whether or not the Claimant knew that the images were within the Tiny computer. It is also common ground that an essential element of the charges brought against the Defendant is knowledge of the existence of the images on the computer.

Mr Thomas, on behalf of the Claimant, submits that the case now presented by the Claimant could not be simpler. He asserts that DC Hopkins was told of the location of the images prior to the decision to charge the Claimant. DC Hopkins knew or should have known that such was the location of the images that it would be difficult to prove that the Claimant had the requisite knowledge for the commission of the three offences with which he was charged. Certainly, it would be difficult to prove such knowledge in the absence of an admission by the Claimant and, of course, during the course of the interviews under caution on 19 July 2004 no such admission was made.

Notwithstanding this alleged lacuna in the evidence necessary to support the charges, the Claimant was charged as I have set out above. That, submits Mr Thomas, justifies a claim based upon the tort of malicious prosecution.

There is a crucial and central issue of fact as to whether or not DC Hopkins was told of the location of the images within the computer prior to the decision to charge. He asserts that he was not so informed and, indeed, was not informed of their location until comparatively shortly before the decision was taken to discontinue proceedings against the Claimant.

I am not, of course, attempting to determine this case in advance of the trial. It does seem to me, however, that unless the Claimant establishes that DC Hopkins was informed by Mr. Fouhey of the location of the images before the decision was made to prosecute him or that DC Hopkins failed to act timeously to bring the prosecution to an end once he had been informed of the location or perhaps that Mr. Fouhey deliberately withheld the information as to the location of the images until the point was raised by Mr. Campbell this claim is likely to fail..

It is against this background that I need to judge the issues for my determination relating to expert evidence and disclosure.

Before turning to those issues, however, I should record the following. The hearing before me on 1 October 2008 was scheduled to last 2 hours. It became clear to me early in the hearing that this was likely to be far less time than was actually required if every point was developed in detail. Accordingly, during the course of argument on the issues relating to expert evidence I expressed provisional conclusions which were adverse to the Defendant’s position. I also felt it appropriate, however, to allow the Defendant (if so advised) to put in material which was not included in the bundles before me and advance further submissions upon such material in an attempt to shift me from my provisional view. I also permitted written submissions to be made upon the disclosure issues.

As a consequence of the indulgence which I afforded to the parties I have been sent substantial further material and detailed submissions. That is unfortunate in terms of costs, time and effort, not least because, as I have said, the issues between the parties as encapsulated by the pleadings as they now stand are comparatively narrow.

During the course of the criminal proceedings the Claimant’s Solicitors commissioned expert evidence from a Mr. Campbell. Although a formal report was not disclosed, certain of his opinions were disclosed (see letter dated 12 April 2005 from the Claimant’s then solicitors to CPS). In due course that letter was considered by Mr. Fouhey and he agreed with its contents.

If a formal report was obtained in the criminal proceedings it has not been disclosed by the Claimant in these proceedings.

By his order of 13 December 2007 Master Eyre made provision for expert evidence. In particular he gave the parties permission to adduce evidence of witnesses who were expert in the field of computer science. He ordered that the reports of each expert be disclosed by no later than 30 June 2008 and he made provision for the experts to meet and produce a memorandum of agreement/disagreement.

There is no suggestion before me that this part of the Master’s order was in any way controversial at the time that he made it. Indeed, as I understand it the order for expert evidence was made with the consent of both parties and the Defendant would have agreed to the appointment of a joint expert.

The Defendant has obtained an expert report from Mr Fellows. He was instructed on 24 April 2008 and he was required to express an opinion on 6 specified questions. He provided his answers to those questions in a report dated 16 May 2008. That report has been disclosed.

The Claimant has, as yet, not obtained a report from an expert in these proceedings. Indeed the stance of the Claimant, now, is that no expert evidence is necessary in this case.

The issue of whether or not expert evidence is necessary became the subject of debate in correspondence between the solicitors. The issue was not resolved consensually. Accordingly, the parties resorted to applications to this court. There are two applications before me. The Defendant’s application is dated 7 August 2008 and proceeds on the basis that the Claimant will, in reality, wish to rely upon expert evidence. It seeks disclosure of expert evidence including any evidence obtained from Mr. Campbell in the criminal proceedings. There is also an application made by the Claimant dated the 21^st August 2008. In that application, inter alia, the Claimant seeks an order to the effect that expert evidence shall not be adduced at the trial.

It is incontrovertible that expert evidence should be adduced at trial only if such evidence is relevant to the issues between the parties. Even if such evidence may have a peripheral relevance, in the exercise of its case management powers a court may prevent such evidence being adduced if the costs of so doing and the time spent on the evidence would be disproportionate to the benefit to be obtained by the court in receiving such evidence.

The primary case for the Claimant is that there is no issue between the parties upon which opinion evidence is relevant. Mr Thomas makes that submission since he asserts that all the issues now encapsulated in the pleadings are factual and relate to the state of mind of Detective Constable Hopkins and/or other officers and/or Mr. Fouhey. Their states of mind fall to be considered when/immediately after Mr. Fouhey examined the Tiny computer and thereafter at the time when the decision was made to charge the Claimant and/or during the time between the decision to charge and the decision to discontinue proceedings. Mr Thomas points out that the Defendant does not now assert that the Claimant actually downloaded the prohibited material; rather the Defendant asserts that the relevant officers reasonably believed that the Claimant had done so at all the times which are material to these proceedings. In these circumstances, submits Mr Thomas, it is impossible to see how expert evidence obtained years after the relevant events can assist.

In his Witness Statement DC Hopkins has summarised the basis upon which he considered it was proper to charge the Claimant with the three offences. I refer to paragraph 70 of the Witness Statement. In many of the paragraphs preceding he expands upon those reasons.

In his Skeleton Argument prepared for the purposes of the hearing before me Mr Challenger asserts that the expert opinion evidence of Mr Fellowes is relevant to the issue of whether or not Mr Hopkins and/or any other implicated officers and/or Mr Fouhey had a reasonable suspicion that the Claimant had committed the offences with which he was charged.

I can understand how, in some circumstances, expert opinion may be relevant in determining whether or not a belief is a reasonable one. In this case, however, the only basis upon which the Claimant alleges that the belief of any relevant person was unreasonable relates to the discovery by Mr Fouhey of the location of the images in question. To repeat, the Claimant’s primary case is that Mr Fouhey informed DC Hopkins of the location of the images before the decision was taken to prosecute and yet armed with this information DC Hopkins nonetheless instituted a prosecution. The other ways of formulating the case, set out above, are all variants on this theme.

I simply do not see how expert evidence can assist in resolving the true state of affairs on this issue. The issue is a pure issue of fact to be determined on factual evidence.

In the supplementary submission put in by Mr Challenger he invites me to conclude that the expert evidence of Mr Fellows is relevant on the issue of the Claimant’s credibility.

I am not persuaded that the Claimant’s credibility is a central issue in this case. The Defendant is at pains not to allege that the Claimant actually downloaded the pornographic material. To repeat, the Defendant’s case is that the relevant officers reasonably suspected that he had done so. I have scrutinised the Claimant’s Witness Statement with care. Save, of course, for his assertion that he did not download the material there is scarcely anything in it which will be controversial in the context of the claim as it is now formulated.

I should also say that I have read the transcripts of the Claimant’s interviews under caution. I fail to see how anything which he said in those interviews makes it desirable let alone necessary for there to be expert evidence in this case.

The plain fact is that the Defendant has considerable expertise at its disposal about the use of computers in any event. The investigating officers clearly have considerable expertise; (I make that judgment on the basis of the questions which they put in interview under caution); Mr Fouhey is obviously a relevant and necessary witness and, on any view, he has considerable expertise in the use of computers. In the event that I am underestimating how an expert might assist the Defendant in the event of these proceedings I am confident that the evidence available to the Defendant from the investigating officers and Mr Fouhey will more than compensate for the absence of Mr Fellows.

I should also say for completeness that Mr Challenger invites me to conclude that it was for the trial judge to rule upon the admissibility of this evidence. I disagree. I have been provided with all the material which each party considers relevant to the issue of whether or not expert evidence is necessary. The issue of the admissibility of expert evidence has been raised, squarely, for determination in an interlocutory hearing. I can think of no good reason why I should postpone that decision to the trial judge with the attendant increased in costs which that would entail.

Accordingly at the handing down of this judgment I propose to make an order in suitable form which will preclude the Defendant from relying upon the expert opinion of Mr Fellows. I use those words advisedly. If Mr Fellows can give evidence of facts which are relevant to the issues I have identified there can be no objection to that evidence being elicited. In the event, however, that the Defendant does wish to rely upon the factual evidence from Mr Fellows he should, of course, identify what that is. I will deal with this issue in detail, if necessary, when this judgment is handed down.

At the same time as the Claimant made its application relating to expert evidence it also sought specific disclosure of a number of documents. Following the hearing on 1 October 2008 Mr Thomas produced a substantial document which outlined the specific documents said to be in the possession of the Defendant and which the Claimant requires to be disclosed or made available for inspection.

The Defendant’s current response is to assert, in effect, that everything which is relevant to the issue identified above and the other issues in the pleadings (including the issue of damages) has been disclosed save for such documentation that attracts legal professional privilege or public interest immunity. The Defendant is apparently willing for the Court to examine such documentation as it has withheld with a view to the Court determining (if necessary after argument) whether or not legal professional privilege and/or public interest immunity is properly claimed.

There are distinct signs that the dispute over disclosure is becoming wholly disproportionate. I remind the parties of the narrow issue which are now for determination. However, I see no alternative to this Court exercising a supervisory role in a further oral hearing.

I direct that the parties seek a hearing before me in the week commencing 20 October 2008 on Monday, Tuesday or Wednesday of that week. During that week I am the Judge in Court 37 and I propose that the parties produce this part of my judgment to the Listing Officer with a view to securing an appointment. I direct that the time estimate should be 2 hours and I have no intention of spending more time than that in Court in dealing with this issue. I make it clear that I do not include within that time period such time as may be necessary for me to read files which are disclosed only to me in the first instance. All such files should be delivered to my Clerk by 12.00 noon on the working day before the day the hearing is listed so that I can read the relevant files in advance of a hearing. The delivery to my Clerk must take place by 12.00 noon on the working day preceding the hearing.

At the reconvened hearing I will hand down this judgment and I will also deal with the issue of disclosure and the issue of the costs which have been occasioned by this latest bout of interlocutory warfare.

In the event that it is simply impossible to obtain a date on those dates next week which is suitable for Counsel and me I direct that the issue of disclosure be remitted to a Master to be heard on the first available date after 20 October 2008. If that step has to be taken I will deal only with the costs as they relate to the issue of expert evidence when I hand down this judgment. The time estimate for such a hearing is a maximum of 30 minutes.

Finally, each party, no doubt for their own purposes, makes reference to the possibility that the trial date is endangered. I should make it clear that is not my view. I take the view that the disclosure issues can be settled in the course of the next few weeks and that there will be no bar to the case proceeding to a hearing in early December. If further disclosure is ordered the Claimant will have a number of weeks to digest its ramifications.

Once the parties have obtained an appointment to be heard before me next week (assuming they do so) each of them, independently, should immediately notify my Clerk. I say that since I will not otherwise be aware of the listing date and I wish to ensure that the files which are to be delivered to me arrive on time.