Clifford v The Chief Constable of the Hertfordshire Constabulary

The tort of malicious prosecution is said to have as one goal protecting individuals from harassment by litigation. Likewise, the tort of misfeasance in public office is designed, it is said, to ensure public power is exercised only for the public good. While there may be something to this, both torts can have only a limited impact in achieving these social purposes compared with regulatory and social mechanisms. It goes without saying that the torts have a compensatory purpose. For the person the subject of a malicious prosecution, for example, there may be a significant adverse impact on employment, reputation and health. However, the ambit of the torts is narrow, one aspect being the element of malice demanded by each. Even if malice can be established there are other obstacles to establishing liability under them.

The present claim involves both torts. It relates to the claimant’s prosecution for the making and possession on his computer of indecent images of children. He seeks damages, including aggravated and exemplary damages. The claimant was charged in July 2004, but the charges were dropped nine months later, in April 2005. The defendant is said to be liable through the actions of a police officer who was the officer in the case. The officer was responsible for the laying of charges against him. The malicious prosecution is said to relate to the whole of the period from charge until when proceedings were discontinued. The misfeasance has two prongs. The first is said to date from when the officer received information from a computer examiner but failed to ensure that the prosecution was discontinued. The second prong to misfeasance liability is a disclosure the officer is alleged to have made to a witness in the case. The relevant law governing the claim is largely uncontested. A novel point seems to arise, however, in that once the charges were laid the Crown Prosecution Service assumed responsibility for the prosecution. That being the case the question occurs as to the liability of the police from that point.

On the claimant’s case the chronology begins in October 2003. Indeed Mr Thomas, who appeared for the claimant, urged that there was no great need to explore the factual background before the claimant was charged in July 2004. There was no objection to the first arrest and interview in October 2003, he said, or to the second arrest and interview in July 2004. It is the prosecution and its continuation which generate liability in tort, so that should be my focus. In my view, however, the background to the arrests is crucial to an understanding of liability in this case.

The claimant in this case is Jeremy Clifford (“Mr Clifford”). He married his wife, Faith Clifford, on 21 April 1999. Over a decade and a half prior to this he had filmed weddings and other special occasions on a part time basis and shortly after his marriage he set up in this business full-time with his own company, London Video Productions. The defendant is the Chief Constable of the Hertfordshire Constabulary (“the Chief Constable”). It is accepted that he is vicariously liable for any malicious prosecution or misfeasance in public office of the officer in the case, Brian Hopkins (“Mr Hopkins”). At the time of the relevant events, Mr Hopkins was a detective constable with the Hertfordshire Constabulary. From August 2003 until October 2004 he was with its Child Protection Unit. He has now retired and is an investigator with the Independent Police Complaints Commission.

It also makes sense at this early point to introduce Mr Gerard. Mr Clifford first met him in 1999. Mr Gerard had supplied him video equipment through his company, Video Action. The following year they started working together and the arrangement was formalised in 2002. There is no need to elaborate on the details. In essence Mr Clifford worked from the premises of Video Action, rent free, and in turn undertook work for Mr Gerard. The relationship soured and in April 2003 Mr Hopkins terminated the agreement and began his own business, selling video equipment and filming weddings and other such occasions. By October that year Mr Clifford and Mr Gerard were, as Mr Clifford put it, business and professional enemies and there was litigation between them. Mr Gerard died some time in 2005.

From late 1998 Landslide was a website based in the United States giving access to both adult and child pornography. It was a portal which allowed visitors to access a range of different sites containing this material. Access was charged and lasted for a period. Users needed to provide a credit card number, a credit card billing address, a password and an email address to receive downloads. It was obvious if one was accessing the child pornography sites. United States enforcement authorities closed the Landslide site in September 1999 and its organisers received lengthy sentences of imprisonment. Subsequently, the United States authorities transferred to the United Kingdom enforcement authorities the names and details of those in this country who seemed to have accessed child pornography sites through the Landslide portal. That information was then passed to local enforcement agencies such as the Hertfordshire Constabulary.

One of the names of United Kingdom persons on the Landslide data was that of Mr Clifford. There were six entries covering the period April to July 1999 where his name appeared. The address in three of these cases was his home address, that in the remaining cases his sister’s, another of his credit card billing addresses. A Halifax Visa card No 45564701 was used in five of the cases, a different visa card for the last entry on 4 July 1999. The amounts involved were either $14.95 or $29.95, although in two cases an amount did not appear. In each case the claimant’s email address was listed, jezz1@aol.com. The password used in four of the cases was 745681, Mr Clifford’s pilot’s security code, in two of the cases variations of the word “jezz”. The timing details for the first five cases were within a couple of minutes of 14.45 hours. Various sites accessed were child pornography sites.

The claimant’s Halifax Visa bank statements are available from January 1999 to January 2000. They show the following debits to Landslide. These are stated in pounds although this is converted from US dollars, the figure used here.

There is no evidence of credits on any of these statements. Before me Mr Clifford’s evidence was that he had complained to Halifax Visa but was told to contact the companies named as wrongly charging the items to his card. Fraud had occurred when he was booking over the internet for his honeymoon. One of the dates was that of his wedding. He had not been told to cut up the card; that was not the practice in 1999. Eventually he was re-credited with some amounts but that was to different cards. He was unable to produce any evidence of recredits for the amounts. He shredded his statements and when he contacted Halifax Visa they said they were unable to provide it because the Bank of Scotland had taken them over. There is no need for me to make any finding on Mr Clifford’s credibility. I simply record that I find his account implausible.

Primarily on the basis of the Landslide material Mr Clifford was arrested at his home early on 30th October 2003. Later that morning his business premises were searched and equipment there, including computers, was taken for examination. In his first interview that morning Mr Clifford was immediately told that the police had received information from a government source that he had accessed websites with indecent images of children. He was reminded that he had said, when arrested by Mr Hopkins in relation to indecent images of children, “I don’t have any”. Later Mr Clifford denied saying this and accused Mr Hopkins of “verballing” him. He had been saying he had no computers. In interview Mr Clifford said that everyone in the room had probably looked at a dodgy website but “I’ve never looked at anything that I considered would be illegal or certainly children, I wouldn’t know even how to find child pornography. I’ve never looked at it …” He confirmed that one of his email addresses was jezz999@aol.com. At one point he said that he had used computers a lot, and internet cafés.

In reply to questions about the computers he owned, Mr Clifford answered that he had tended to have a couple of computers at home which he upgraded every year or so. He would not know how to reconfigure or rebuild the hardrives. He was asked about what computers he owned in the period 1998 to 2000. He said he had his editing computer and a Time or Tiny computer. He had sold the latter two or three years previously by advertising it somewhere but he couldn’t remember where. He accessed the internet via AOL accounts, using “jcliff”, “jezz999” and “jezzl” as both user names and email addresses. He used the number 745681, his pilot’s security number, as a password.

Earlier in the interview Mr Clifford was told that the police would have to make inquiries of Mr Gerard. That was because Mr Clifford’s business still seemed to have some connection with Mr Gerard’s. Mr Clifford asked officers not to do that because Mr Gerard hated his guts and would spread the word across the industry. In fact the police visited Mr Gerard that morning and took a Tiny computer, which he had bought from Mr Clifford. When the interview with Mr Clifford continued a couple of hours later on 30^th October, the police asked him about the Tiny Computer. He said his memory was jogged: he had sold it to Mr Gerard. (We now know that this was on 24 June 2001). He had used it at home to get internet access and he had bought it maybe three years ago. (In 2007 Mr Clifford gave disclosure that he had purchased the Tiny computer on 30^th March 2000). The Tiny was the one he used at home at the same time as the editing computer. It might have had pornography on it but not illegal images. He had used a website, Net Verifer, to access adult pornography for which he paid in US dollars by using his name, address, credit card details, email address and a password. He would not download images. He did not recognise the name Landslide nor did he recognise the various child pornography sites which the Landslide information associated with his details. As to the Landslide transactions on his Halifax Visa card, Mr Clifford said he had closed it because he had a lot of queries on it.

Mr Clifford was bailed and told that the case would not proceed further until the equipment had been forensically examined. He was given the standard information to those arrested on suspicion of sexual offences involving children.

Mr Fouhey had been a police officer with the Bedfordshire Police for 30 years before he began with the Hertfordshire Constabulary’s Computer Crime Unit in 2004 on a consultancy basis. He was not an expert in computers but had been trained to examine computers which might contain images of child pornography. His first job with the Hertfordshire Constabulary was the result of a written request with Mr Hopkins named as the investigating officer. Details of Mr Clifford and his arrest were set out in the written report. Under “Full Circumstances of Offence” the request read:

The first report of Mr Fouhey (“the first Fouhey statement”), by means of a statement under section 9 of the Criminal Justice Act 1967, became available in July 2004. There was a considerable backlog of computer examination work in the Hertford Constabulary, which is an explanation for the some nine months delay before a report was completed. The material from Mr Clifford, and the Tiny computer taken from Mr Gerard, were examined. Mr Fouhey appears not to have begun his task until 21^st April 2004. There was nothing of note in much of the material the Computer Crime Unit examined or, as with one hard drive disc, it was faulty so the unit was unable to acquire any images from it. However, when one of the Computer Crime Unit officers examined one of the exhibits, the Tiny computer hard drive disc, relevant images were found. This led Mr Fouhey to report as follows:

The images were transferred to an encrypted CD and Mr Fouhey handed it to Mr Hopkins at a brief meeting on 8^th June 2004. In a statement prepared for this litigation, and in evidence before me, Mr Fouhey said that he told Mr Hopkins verbally at this meeting in June that the images he had found were on temporary internet folders and there was no evidence to change possession. Mr Hopkins says that he cannot recall being told about the images being on temporary internet folders until later that year, in December. My conclusion is that Mr Fouhey’s evidence on this point is mistaken. He is recalling four years after the event what he said to Mr Hopkins in June 2004. As indicated below, Mr Fouhey’s own conduct has been under attack from Mr Clifford since shortly after the charges were dropped in April 2005. In his outline submission to me Mr Thomas, for Mr Clifford, linked the behaviour of Mr Hopkins and Mr Fouhey in the malicious prosecution claim. It was only half way through the hearing that the allegations against Mr Fouhey were dropped. The unsatisfactory aspects of Mr Fouhey’s statements led to changes in practice as a result of a Service Improvement Document. Mr Fouhey’s recollection of what, even on his account, was a brief conversation needs to be seen against this background. Mr Fouhey also concedes that he did not keep a note of the conversation with Mr Hopkins or a copy of his notes. There is no evidence to support his account, not the Service Improvement Document nor Mrs Grundy’s letter, both referred to later.

Over the nine month period when Mr Clifford’s property was being examined, he had contacted Mr Hopkins on several occasions pressing understandably for the return of equipment. He needed it for his business. Mr Hopkins had contacted the Computer Crime Unit to try to have the work prioritised and have the equipment returned. Some was returned and some material viewed at Mr Clifford’s. In February 2004 Mr Clifford’s solicitor wrote to the police to demand an inventory of what had been taken. An inventory was then provided. Mr Clifford’s bail was extended shortly before the return date of 26^th April.

Mr Hopkins took a statement from Mr Gerard early in July 2004. Mr Gerard said that at the end of 2001 Mr Clifford had brought the Tiny computer into the office, which only he, Mr Clifford, had used. However, in early 2002 Mr Clifford had sold him the computer. Before handing it over Mr Clifford had taken it to “clean” it. Mr Clifford denies that he cleaned it. Given Mr Thomas’ successful application on Mr Clifford’s behalf before Wyn Williams J ([2008] EWHC 2549), there is no expert evidence to assist me decide this or some of the other issues arising from Mr Clifford’s use of computers. In any event, the cleaning issue is peripheral to the claims in this case.

Once Mr Hopkins had Mr Fouhey’s 1^st statement and the CD disc, handed to him on 8 June 2004, he decided to interview Mr Clifford again. He had the Landslide evidence from 1999 and only an implausible explanation for it from Mr Clifford; he believed from the first interview, not unreasonably, that Mr Clifford owned the Tiny computer in 1999 which, on Mr Clifford’s evidence, he had used to access adult, but not child, pornography; and he had the 1^st Fouhey statement and the CD which had recovered 12 grade 1 child pornography images. The images had random numbers but “deleted” appeared on at least one recovered image.

Mr Clifford was detained on 19^th July 2004 for further interview. With him he had Mr Angus Hamilton of Hamilton’s Solicitors. The police disclosure for Mr Clifford, given to his solicitor, recounted the search warrant, the arrest, and the first interview in October the previous year. The situation involving the Tiny computer was set out, that Mr Clifford had said he had sold it to persons unknown, but that in fact it was seized at his previous business address. The police disclosure then referred to the images found on the Tiny computer, which were created some time prior to Mr Clifford working at Mr Gerard’s business. The credit card transactions were mentioned, that Mr Clifford had disputed credit card transactions at the time but that recredits were to other cards.

After Mr Clifford had a consultation with Mr Hamilton over the police disclosure he was formally interviewed. He was shown the images which had been found on the Tiny computer. Mr Hopkins said in relation to the first, that it was an allocated file from the computer, recovered from folders. The file was created on 21^st January 2001 at 9.06am, although he couldn’t confirm that that time was accurate. It had been deleted. Mr Clifford replied “No comment”, as he did when each of the other images were shown. He was then asked about his Halifax Visa bank statements, with the Landslide entries and whether he remembered them. At this point he asked for a break to speak to his solicitor. He told the court that that was because he wanted to explain matters but he was instructed by his solicitor, as he had been initially, to give a no comment interview. When asked in interview if he had contested any of the transactions, he replied “no comment”.

Almost immediately following the interview Mr Clifford was charged. Sergeant Parker, the custody officer, did this on the basis of the evidence provided by Mr Hopkins. There were four charges: the first and second were that on 21^st January 2001 he made indecent level 1 photographs of children on the Tiny computer; the third was that on the 30^th October 2003 he had in his possession 10 level 1 images on the Tiny computer; and the fourth was that on a day between 6^th March 1999 and 7 August 1999 he incited Landslide, its proprietors and employees to distribute or show indecent photographs or pseudo-photography of a child. The date in the third charge was clearly wrong. It was the date of the arrest the previous year but the police knew that Mr Clifford had sold the Tiny computer to Mr Gerard some considerable time earlier. Mr Clifford made no reply when he was charged. The circumstances of arrest were briefly summarised, that he had been re-interviewed and had given a no comment interview.

Charges having been laid, the Crown Prosecution Service was now involved. The file was reviewed by the CPS and in early August they decided not to proceed with the incitement count. This was not through lack of evidence but because it was concluded not to be in the public interest to proceed on that count. The CPS file note read:

Mr Clifford recorded several malicious telephone calls which he said Mr Gerard made to his business in late 2004. I accept that the voice is that of Mr Gerard. In one of these, on 10^th September 2004, Mr Gerard spoke to Mr Clifford’s bookkeeper, Julie, adopting the alias Geoff Goldie. After a long lead-in about the price of certain video equipment, and whether he would buy it from Mr Clifford’s business, Mr Gerard asked Julie whether she knew that Mr Clifford was in court as a paedophile. He telephoned again that day and told Julie that he had checked with Welwyn Garden City police and the story was true, that Mr Clifford was being investigated as a paedophile. He had been given the information by a company called Top Teks. Later, when Mr Clifford contacted Top Teks, they denied having told Mr Gerard anything. On being told by Julie about the calls Mr Clifford immediately called Mr Hopkins, who said he would deal with it. I accept that Mr Hopkins contacted Mr Gerard and warned him about his behaviour.

Part of Mr Clifford’s case is that Mr Hopkins “spilt the beans” to Mr Gerard about Mr Clifford’s alleged offending, which led to these telephone calls and to a number of patently malicious communications it seems were sent by Mr Gerard to third parties. Mr Clifford contends that without being told by Mr Hopkins, Mr Gerard would not otherwise have known. Mrs Clifford gave evidence that she obtained the local newspaper in St Albans and Watford at the time of her husband’s court appearances but there was never any mention of him. Mr Hopkins denies telling Mr Gerard about the investigation. I accept that evidence. The Tiny computer had been taken from Mr Gerard in October 2003. He was asked for a statement about the computer in July 2003. At that point Mr Clifford had not been charged. Mr Gerard was not under suspicion himself. Possibly it would not be surprising if Mr Hopkins’ questions led him to have suspicions about the nature of Mr Clifford’s involvement with the police. At that point, or later, he drew an inference or obtained information which was approximately correct.

In Mr Fouhey’s 1^st statement he had referred to the examination of the existing and deleted files on the Tiny computer hard disc for which full file information could be recovered. In a second section 9 statement, dated 21 December 2004, Mr Fouhey recorded that he had been asked to comment on the 17 images found in recovered folders (“Mr Fouhey’s 2^nd statement”). In his written statement for this litigation Mr Fouhey explained that his 2^nd statement arose as a result of a request by the CPS, following a court hearing on 20^th December. The statement is indeed dated 21 December. However, it was sent from the Computer Crime Unit by fax and the fax date was 21 November 2004. Mr Fouhey said in evidence that the date of the fax would be the more accurate. It seems to me that Mr Fouhey’s earlier evidence is the more accurate. As explained in a moment Mr Hopkins referred to Mr Fouhey’s 2^nd statement in an email following the Crown Court hearing on the 20^th December. That is also referred to in a CPS file note of 22^nd December 2004. The sequence only makes sense if Mr Fouhey’s 2^nd statement was as a result of the 20^th December Crown Court hearing.

Mr Fouhey’s 2^nd statement was brief. It reads, in full:

The CPS had expected the matter to be dealt with by the Magistrates, but it was transferred to the Crown Court. On 20^th December 2004 the matter came before Her Honour Judge Catterson at St Alban’s Crown Court for a plea and directions hearing. Mr Clifford pleaded not guilty to three of the four counts. (He did not plead to the count with the obviously incorrect date of 30 October 2003). The court was alerted to the legal argument over the admissibility of references made to Landslide in the interviews. Directions were given to the service of additional evidence and the matter adjourned. Mr Clifford’s lawyer indicated that an expert might be instructed.

The following day Mr Hopkins, who had been at the hearing, emailed the relevant case-worker at the CPS. He was still the officer in the case but had been transferred to the Watford Area Crime Unit to work on a murder inquiry.

With regard to the dates I am forwarding a copy of a statement from George Fouhey [the 2^nd Fouhey statement] which in very basic terms does cover this, but I am unsure whether a full expert opinion may be required which would need far more time and of course money to cover. If anything further is required please contact me and I will have to speak with George further but am unsure if we could cover this point any further.

I have also submitted a statement and copies of bank card account which was sent to [Hertfordshire Constabulary] following a production order being served, again I am unsure of its value as it does not show actual individual sites accessed by the defendant, and in point of fact we cannot show that.

Another point raised was which site the images were found on, this is a fact of which there is no information, as there is no known database itemising this.

There was a further directions hearing before the Crown Court on 21^st January 2005 before His Honour Judge Cripps. One matter discussed was an expert for the defence. The prosecution were instructed to serve on the defence a copy of the CD, with the images, but de-encrypted. In the course of the hearing the learned judge said that he could not see how the credit card transactions in 1999 could be relevant or admissible in relation to an alleged offence in the United Kingdom in 2001. Prosecuting counsel conceded this. The learned judge asked whether there was to be an application to amend the indictment to take in the 1999 material and prosecuting counsel answered that there would not be an application at that point. There was a further directions hearing before His Honour Bevan QC on 31^st January 2005 about expert evidence. The learned judge inquired of the prosecution whether the CPS had reviewed the case, as His Honour Judge Cripps had suggested. His Honour Judge Bevan QC indicated that only 10 level 1 images were involved. As I understand the comment, the learned judge was rightly indicating that it was not an especially serious case. After an adjournment prosecuting counsel told the court:

There is a CPS file note of the 31^st January 2005 about the Crown Court hearing. The CPS were not aware of any reason to drop the charges against Mr Clifford. Both evidential and public interest tests under the Code for Crown Prosecutions were satisfied. The position was that as far as the CPS was concerned the indecent images were on the computer on the dates in the charges. The matter was in the warned list for trial on the week commencing 11 April 2005.

There was a change of defence solicitors some time after this. In late March and early April there was considerable correspondence between the CPS and the new solicitors about access to the CD. Then on 12^th April the solicitors wrote to the CPS:

Once the letter from Mr Clifford’s solicitors was received there were discussions between the CPS, prosecuting counsel, Mr Hopkins and Mr Fouhey. As a result the CPS decided to offer no evidence on the basis that there was no realistic prospect of a conviction. The case was listed at St Albans Crown Court on 15 April 2005. The prosecution offered no evidence and Mr Clifford was formally acquitted of the charges against him. The police crime information system reads as follows:

Two days after he was formally acquitted, on 17^th April, Mr Clifford prepared an eight page statement complaining about the police investigation, in particular about Mr Hopkins and Mr Fouhey. An investigating officer was appointed to examine his complaint. Eventually Mr Clifford agreed with the officer to proceed under the Hertfordshire Constabulary’s local resolution process. On 14^th June 2005 Mr Clifford’s complaint was reduced to the following succinct terms. These were handwritten on the relevant form.

As a result of Mr Clifford’s complaint, Detective Sergeant Wilcox reported to the Professional Standards Department of the Hertfordshire Constabulary on 18 July 2005 in “Service Improvement Document Number 60” (“the SID”). After outlining Mr Fouhey’s finding of the 17 images of note, the SID continued:

In mid July 2005 Mr Clifford sent letters of claim separately to both the Chief Constable and Mr Fouhey. At the time Mr Clifford did not have a solicitor. In the first he complained about Mr Hopkins. He had warned Mr Hopkins about Mr Gerard at the 1^st interview. One of the serious factors in dishonesty was the omission from the 1^st Fouhey statement of the images being in a temporary internet folder. The prosecution should not have been brought. Mr Hopkins did not have reasonable and probable cause and was motivated throughout by malice. Even when he had the information from Mr Fouhey he “sat on it”, causing the prosecution to continue for an inordinate length of time. In the letter of claim to Mr Fouhey, Mr Clifford said that the vital piece of his evidence – that the images were in temporary internet folders – was not disclosed to Mr Clifford’s solicitor until April 2005, and that the disclosure was held back in order to continue the prosecution against him.

A solicitor with the Hertfordshire Constabulary, Mrs Grundy, replied on 5 October 2005 on behalf of both the Chief Constable and Mr Fouhey. In the course of the letter Mrs Grundy wrote:

Eventually the claim proceeded to litigation. There were hearings before Master Eyre on 6 December 2007 and Tugendhat J in May this year. At a hearing in October 2008 Wyn Williams J held that expert evidence was not relevant to the issues in this trial: [2008] EWHC 2549. Mr Challenger for the Chief Constable had argued that the report of his expert was relevant to the credibility of Mr Clifford. Apparently there was already a report from Mr Campbell, Mr Clifford’s expert. Wyn Williams J said that he was not persuaded that Mr Clifford’s credibility was a central issue in the case: at para [33]. The hearing before me was listed for seven days but in the result was completed in four days.

The law applicable in this case is relatively straightforward. The claim itself is based on two torts, malicious prosecution and misfeasance in public office. The malicious prosecution is attributable to the Chief Constable through, it is said, the conduct of Mr Hopkins during the whole period from his putting forward the charges against Mr Clifford in July 2007 until their discontinuance in April 2008. The misfeasance in public office is based firstly, on the continuation of the prosecution after Mr Hopkins had Mr Fouhey’s 2^nd statement on 21 December 2007 and secondly, on what Mr Hopkins is alleged to have told Mr Gerard about Mr Clifford’s prosecution. Before turning to the nature of these torts, brief mention needs to be made of the offences for which Mr Clifford was prosecuted.

Initially Mr Clifford was charged on four counts. One was incitement, a common law offence, and the offences said to be incited were those alleged to be committed by the organisers of the Landslide website in distributing or showing indecent photographs or pseudo photographs of a child. The prosecution would have had to prove the actus reus of incitement, although that could have been constituted by Mr Clifford giving electronic instructions on which the incitee’s unlawful business had been programmed to act. As we have seen, the incitement charge was dropped early after Mr Clifford was charged.

The other three charges against Mr Clifford involved making indecent photographs of a child and having such photographs in his possession. The more serious of them, the making offence, arises under s.1(1)(a) of the Protection of Children Act 1978. The maximum sentence is 10 years for offences committed after 11 January 2001 (previously 6 months). The possession offence is contained in s. 160(1) of the Criminal Justice Act 1988. The maximum sentence is five years for offences committed after 11 January 2001 (previously 6 months). Section 160(2) contains a number of defences. One defence is that the person charged had not seen the photograph and did not know, nor have cause to suspect, that it was indecent. Another is that the photograph was sent to him without prior request and he did not keep it for an unreasonable time: s.160(2)(b),(c). “Indecency” is measured objectively and is a matter for the jury. Images on a computer are photographs for the purposes of these offences. “Making” has its own ordinary meaning, namely to cause to exist, to produce or to bring about: R v Bowden[2001] QB 88. The physical element of possession, as in the other areas of criminal law, means to be in a person’s custody or control. Neither making nor possessing are absolute offences. With the making offence what is necessary is “a deliberate and intentional act, with knowledge that the image made is, or is likely to be, an indecent photograph of a child”: R v Smith[2002] EWCA Crim 683, [34]. The mental element of the possession offence is knowledge on the part of the defendant that he has indecent photographs in his possession or that he once had them: Atkins v Director of Public Prosecutions [2000] 1 WLR 1427, 1440.

In the context of images on the internet, downloading constitutes making that image. This reflects the reality of the internet, that downloading means that a new copy of the image is created. That occurs if the person saves it, and in any event because the computer automatically copies it to the hard drive. In the case of automatic copying to the hard drive the mental element is satisfied if the defendant knows that the images viewed are automatically saved there. Possession occurs when the defendant knowingly downloads and saves an illegal image. He has custody and control because he can readily call it onto the screen. If the defendant has not saved the illegal image, the legislative intention is still that he may have possession of it. That follows because, as we have noted, s.160(2) of the Criminal Justice Act 1988 provides a defence to possession, but only if the defendant had not seen the image or did not know, nor have cause to suspect, that it was indecent, or if the image was sent to him without prior request and he did not keep it for an unreasonable time. In the case of an image not deliberately saved the defendant can still be said to have possession of it if, albeit for a very short time, he knew he had possession, or if he knows it is still on the computer’s hard drive: see Atkins v Director of Public Prosecutions [2000] 1 WLR 1427, 1440.

For liability under the tort of malicious prosecution the burden is on the claimant to establish that he was prosecuted; that the prosecution ended in his favour; that he suffered damage as a result; that there was an absence of reasonable and probable cause to the prosecution; and that it was brought maliciously. There is no dispute in this case in relation to the first three aspects of the tort. The claimant was prosecuted and the charges were dropped. He suffered damage, although the extent of that damage is something to be determined subsequent to this judgment, particularly in relation to psychiatric injury. That leaves the other two aspects, whether there was reasonable and probable cause and whether the prosecution was malicious.

With reasonable and probable cause the claimant must prove a negative, that there was an absence of reasonable and probable cause. The leading authority is Glinski v McIver[1962] AC 726. As Lord Radcliffe put it, mere belief in the truth of the charge does not protect the unsuccessful prosecutor if the circumstances before him “would not have led an ‘ordinarily prudent and cautious man’ to conclude that the person charged was probably guilty of the offence” (at 754). Lord Denning rejected the notion that the prosecutor need believe in the guilt of the defendant. “[I]n truth he only has to be satisfied that there is a proper case to lay before the court …” (at 758). However, it was not sufficient to think that he had probable cause, “[h]e must have probable cause in fact” (at 759). For Lord Devlin reasonable and probable cause meant that there were sufficient grounds for thinking that the accused was probably guilty but not that the prosecutor necessarily believed in the probability of conviction. As Lord Denning had said, the prosecution was only concerned with the question of whether there was a case to be tried. Objectively there must be reasonable and probable cause for the prosecution, and the prosecutor must not disbelieve in his case.

Abbott v Refuge Assurance Co Ltd[1962] 1 QB 432 was decided shortly before Glinski v McIver and in so far as there are inconsistencies between the two the former must be read in the light of the higher authority. Moreover, Abbott was a private prosecution, where the Director of Public Prosecutions had declined to proceed. Ultimately, a majority in the Court of Appeal held that on the evidence the defendant had reasonable and probable grounds to believe that there was sufficient evidence to convict and therefore had reasonable and probable cause for the prosecution. In the course of his judgment Upjohn LJ said:

Mere suspicion is no basis for commencing a prosecution. Moreover, if the prosecutor knows that the defendant has a good defence he has no reasonable and probable cause for the prosecution (James v Phelps (1840) 11 Ad. & El 483). However, in Herniman v Smith[1938] AC 305 the House of Lords held that the prosecutor does not have to test every possible relevant fact before he takes action, nor is it his duty to ascertain whether there is a defence. Lord Atkin, with whom the other law lords agreed, said that “[i]t is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution” (at 319).

Malice in relation to the tort means improper motive. “Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a malicious motive on the part of the person who acts in that way: Steven v Midland Counties Ry.(1854) 10 Ex. 352, 356. Absence of reasonable and probable cause may lead to the inference of malice being drawn.

A nice point arises because even if the police charge the prosecution is then conducted by the Crown Prosecution Service (“the CPS”). (By contrast with 2004 the position at present is that the decision to charge, and for what offence, is in most cases in the hands of the CPS). The CPS exercises independent judgment and applies the Code for Crown Prosecutors. It must be satisfied that the evidence is admissible and reliable, and that it is sufficient to provide a realistic prospect of conviction. The CPS also utilises a public interest test – as in this case, with the incitement offence – although a prosecution will usually take place unless the public interest factors against prosecution clearly outweigh those in favour. If a prosecution has been reviewed by the CPS, and continued, on what basis can tortious liability of the police be grounded?

In advancing the claimant’s case Mr Thomas contended that the police remained liable in tort for the prosecution. Having launched the prosecution they had a duty to inform the CPS of matters such as the implication of the images being found in temporary internet folders because that undermined the prosecution case. No authority on the point was cited. A standard treatise opines that when the CPS are involved, if the police are still to be regarded as prosecutor proof of the absence of reasonable and probable cause may be exceptionally difficult when the evidence has been reviewed by CPS lawyers. Effectively, it continues, the claimant will normally need to establish that the information supplied to the CPS was a tissue of lies: Clerk & Lindsell on Torts, 19^th ed, 2006, 993.

In my view Mr Thomas is correct in his submissions. The police may still be regarded as prosecuting an offence for the purposes of tort liability even if, after charge, they transfer the prosecution to an independent prosecutor, or even if it is the prosecutor who lays the charges. That is because the independent prosecutor is reliant on the police for the collection of the evidence which grounds the charge. If the police fail to forward evidence to the independent prosecutor then he or she may well charge incorrectly, or may continue with a prosecution which has subsequently become baseless. None of this turns on whether what the police have told the independent prosecutor is a tissue of lies; the police are potentially liable for failure to forward information if this is instrumental in a prosecution. The crucial issue is whether the conduct of the police, in terms of what they have done or failed to do in relation to the independent prosecutor, satisfies the components of the tort.

The ingredients of misfeasance in public office were clarified by the House of Lords in Three Rivers District Council v Bank of England (No 3)[2003] 2 AC 1: the conduct must be that of a public officer, exercising power in that capacity; the officer must either intend to injure the claimant by his or her acts or knowingly or recklessly act beyond his or her powers; damage must thereby be caused to the claimant; and the damage must be caused in circumstances where he or she knew the act would probably cause damage of this kind. In relation to the first limb of the test in Three Rivers, police officers carrying out their functions in investigating and prosecuting crime are clearly public officers exercising power in that capacity. Misfeasance in public office is usually divided into targeted and untargeted malice: both require bad faith. There is a considerable overlap in the context of prosecution between the torts of malicious prosecution and misfeasance in public office.

In advancing the claimant’s case, Mr Thomas helpfully identified matters which were not in dispute. First, the claimant accepted that the police had reasonable suspicion because of the Landslide material, which was why both of his arrests were not challenged. This was clearly material which gave the police an honest belief that the claimant may have committed offences relating to child pornography in 1999 and gave them reasonable grounds to arrest him. On his first arrest on 30 October 2003 it was accepted that the police were entitled to ask questions of the claimant. The discovery of the images on the Tiny computer, about June 2004, gave further grounds for the police to arrest the claimant on 19 July 2004. Again that arrest was not challenged as unlawful. The police were entitled to ask questions in interview and their conduct was not challenged. Conversely, the claimant was entitled to rely on his right to silence, as he did.

In Mr Thomas’ submission the issue for the court is whether at the time of charges on 19 July 2004 there was sufficient evidence to give rise to reasonable and probable cause to prosecute the claimant. Mr Thomas underlined that a general suspicion that he may have been involved in some unspecified behaviour relating to child pornography was an inadequate basis to charge him. The police had to have reasonable and probable cause that the claimant was involved in the specific offences for which he was charged. In this regard the Landslide evidence was not relevant once the incitement count was dropped in August. It related to 1999. Indeed the Landslide site was closed in 1999, before the dates of the making and possession offences with which the claimant was charged. While it certainly gave the police reasonable suspicion to investigate and arrest, the Landslide material did not give reasonable and probable cause to charge. It was irrelevant to the matters with which the claimant was charged. In any event it was inadmissible evidence at any subsequent criminal trial. It related to different material because there was never any suggestion or evidence that the images found on the Tiny computer came from Landslide at a different time some two years earlier. The prosecution effectively conceded this to His Honour Judge Cripps during the course of the criminal prosecution.

In Mr Thomas’s submission the police did not have reasonable and probable cause to charge the making or possession of the indecent images. The police charged without consulting the Crown Prosecution Services, despite what the SID document said. Mr Thomas referred to the stages which a reasonable prosecutor should consider, as identified in Abbott v Refuge Assurance Co[1962] 1 QB 432. Failure to take any of the steps set out would be evidence from which the court might infer an absence of reasonable and probable cause. Knowledge was an essential element in both offences so that an accused could not be convicted where he could not be shown to be aware of the existence of a cache of photographs in the first place. Once Mr Hopkins knew the location of the images in temporary internet folders, and the significance of that location – that the user could be unaware the files were there – there was no evidence of an essential element of the offence. The Chief Constable could not rely on Mr Clifford’s no comment interview as providing grounds that he knew the images were there. All the police had was suspicion, and mere suspicion did not assist them on the question of reasonable and probable cause to prosecute.

So Mr Thomas contended that the decision to charge Mr Clifford with the three counts of making and possession was done without reasonable and probable cause and also maliciously. Mr Hopkins knew that there was no evidence that Mr Clifford had knowledge of the images for which he was charged because they were found in the temporary cache on the hard drive of the Tiny computer. This was a malicious prosecution. Moreover, Mr Hopkins deliberately withheld the evidence of Mr Fouhey and prolonged Mr Clifford’s prosecution longer than needed. Mr Hopkins knew that there was no evidence to pursue the three charges but did nothing to discontinue the prosecution. This was misfeasance in public office. The further allegation of misfeasance related to Mr Hopkins’ conduct after Mr Clifford was charged, of informing Mr Gerard of the case against him. That was done knowing that Mr Gerard would seek to cause damage to Mr Clifford’s reputation. Mr Hopkins had been told by Mr Clifford that this was what Mr Gerard would do if he knew the nature of the investigation. As Mr Thomas put the case, Mr Hopkins had told lie after lie about these various matters in his evidence. Mr Thomas submitted that there was ample evidence that Mr Hopkins knew about the images being in the temporary internet folders and the significance of this, but sought to conceal it from Mr Clifford and his lawyers. The CPS was kept in the dark until the end of 2004 or early 2005.

The claimant’s case in this respect is that Mr Fouhey, the computer examiner, told the officer in the case, Mr Hopkins, that the location of the images which formed the subject of the making and possession charges was in the temporary cache. That was done before Mr Clifford was charged on 19 July 2004. Despite having this knowledge and knowing the significance of it, Mr Hopkins pursued these charges regardless. In the light of this, whatever other evidence there was, Mr Hopkins did not have reasonable and probable cause to prosecute. Malice can be inferred.

However, I have found that Mr Hopkins was only told of the location of the images and its significance in December 2004, well after the charges were laid. There was nothing in Mr Fouhey’s 1^st statement giving any hint that the location of the images was a problem if charges were to be preferred. Mr Thomas refers for support to the SID document and to Mrs Grundy’s letter of 5 October 2005, sent in reply to Mr Clifford’s letter of claim. It will be recalled that they said both that Mr Fouhey told Mr Hopkins of the location of the images on the Tiny computer and the significance of this. Crucially, however, neither says that this was done before the charges. So this way of putting the claim fails.

The fact is that after the July interview Mr Hopkins was entitled to charge. Mr Fouhey’s 1st statement provided evidence of images similar to those which Mr Hopkins believed from the Landslide evidence and credit card statements that Mr Clifford had accessed in 1999. It appeared that the images had been accessed about the time when Mr Clifford had re-installed Windows 98 into the Tiny computer. Because of what Mr Clifford had said at the first interview Mr Hopkins thought he had had the Tiny computer in 1999. There was Mr Clifford’s failure to give a true account of where the Tiny computer was. It is not surprising if Mr Hopkins suspected that there had been erasure of material from the Tiny computer by the re-installation of Windows 98 in January 2001 with the pornographic images of children either surviving or being re-installed on the machine. There was also the recently obtained statement from Mr Gerard, that the computer had been “cleaned” before Mr Clifford transferred it to him. At the second interview in July 2004 Mr Clifford answered no comment to all questions. That was his right but it meant that Mr Hopkins had no explanation as to why the Tiny computer contained indecent images of children and why Mr Clifford had reinstalled Windows 98. There was no explanation for the Halifax Visa credit card entries which were then available. The period during which Mr Clifford owned the Tiny computer was not clarified. The fact that Mr Clifford declined to answer questions not unnaturally led Mr Hopkins to suspect that he might have no innocent explanation for the existence of the indecent images and or the credit card entries.

There are two incidental matters worth mentioning in relation to the laying of charges in July 2004. First, the SID document records that Mr Hopkins had charged Mr Clifford “[f]ollowing his liaison with the CPS”. The CPS have no evidence of Mr Hopkins contacting them before charge, and indeed there was an agreement that the police could charge incitement without reference to them. Mr Hopkins could shed no light on this aspect of the SID document. It is impossible for me to conclude that Mr Hopkins made any such assertion. I accept his evidence that he had a limited input into both the SID document and Mrs Grundy’s letter. Secondly, the SID document of July 2005 referred to the making and possession charges being added to “give weight to” the incitement charge. There is no evidence that Mr Hopkins said this to Detective Sergeant Willcox, the author of the SID document. It may well have been this was an inference which Detective Sergeant Willcox himself drew. In any event it is a rather curious phrase, when the incitement offence is indictable only but the making and possession offences are capable of being prosecuted in the magistrate’s court. It almost goes without saying that prosecutors must consider each charge independently and whether there is a reasonable prospect of success in terms of the evidence on each.

I have found Mr Hopkins was told by Mr Fouhey in December 2004 that the images were in temporary internet folders and the implications of this. That does not in my judgment support the claimant’s case in malicious prosecution. Primarily that is because the matter of reasonable and probable cause must turn on the prosecutor’s assessment of the whole of the evidence, although there must of course be prima facie admissible evidence to support each count. Here I am at a disadvantage because although two expert reports have been prepared on the matter I am unable to see them. However, Mr Fouhey said in his evidence that while what he had found on examination of the Tiny computer did not support the making or possession charges, there might be other evidence in the case which would. If there had been other evidence suggesting that Mr Clifford had deliberately accessed child pornography sites in the past then it might be that a prosecutor would take the step of employing someone more expert that he to rebuild the pages which he had found in the temporary internet cache so as to support the making and possession charges. Since the expert reports are not available to me, it seems to me that Mr Fouhey’s evidence in this regard is determinative. In any event, what he said in his evidence seems to be what was going through Mr Hopkins’ mind in December 2004. Following Mr Fouhey’s 2^nd statement, Mr Hopkins had emailed the CPS on 22^nd December, referring to the statement and commenting that he was unsure whether a full expert opinion may be required. That email is quoted earlier in this judgment. Consistent with the email in December, when Mr Hopkins was contacted in April and told the opinion of Mr Clifford’s expert, also referred to earlier, he agreed with the CPS decision to discontinue with the charges. In my judgment, therefore, in December 2004 Mr Hopkins still had reasonable and probable cause to continue the prosecution, or to put it another way, he had cause not to recommend to the CPS that the charges be dropped.

There are three footnotes to my analysis of the events in December 2004 and the following months. The first relates to the role of the CPS. Although after the charges in July 2004 the CPS had responsibility for prosecuting the case, in my judgment, as explained earlier, that does not absolve the police from liability in relation to this prosecution in either malicious prosecution or misfeasance in public office. Depending on the circumstances, the withholding of information from the CPS after charge could give rise to liability of the police in tort. That the CPS were content with the prosecution proceeding cannot, however, be ignored. That the CPS did not see problems with the prosecution was stated most explicitly by the counsel representing the CPS at the January hearing before His Honour Judge Bevan QC, by which time the prosecution had Mr Fouhey’s second statement. That passage was quoted earlier. But there were other occasions when the CPS reviewed the prosecution independently of Mr Hopkins. There was the review by a CPS lawyer in August of the making and possession charges, at the time the incitement charge was dropped. In October there was the consent to these charges by Mrs Stansfield, standing in the shoes of the Director of Public Prosecutions. None of this of itself absolves the police from liability. But it does meet the point, raised by Mr Thomas, that location of the images was one of the first points that anyone like Mr Hopkins would inquire about in relation to these possession and making charges. Experienced prosecutors and counsel did not do this.

The second footnote relates to the evidence of Detective Sergeant Patel, Mr Hopkins’ superior officer in the Child Protection Unit when he was there for the relatively short period in 2003 and 2004. Detective Sergeant Patel was definite that she came to the view independently of what Mr Hopkins told her that the evidence against Mr Clifford supported the charges. However, in cross-examination she said she was surprised that she had not been made aware of the problems with the expert evidence which Mr Hopkins had been told about in December 2004. The answer to that is that Mr Hopkins was now away on the murder inquiry and no longer working with Detective Sergeant Patel. In December he had emailed the CPS, which was now responsible for the prosecution, about the problems. That, in those circumstances, Detective Sergeant Patel had not been told does not support the claimant’s case.

The third footnote is what Mr Hopkins said in 2005, when Mr Clifford complained, that Mr Fouhey had changed his mind. Of course this was not strictly true; Mr Fouhey had added to his previous statement. It must be remembered that by this time Mr Hopkins was elsewhere in the Hertfordshire Constabulary, on a murder inquiry. He was asked to respond to Mr Clifford’s complaint and he did so in a brief handwritten comment. In all, it is my judgment that nothing should be made of the way Mr Hopkins at that point described what had happened.

It was agreed that the issue of damages was to be considered following judgment. However, one aspect of this topic on which I heard evidence related to how the prosecution caused Mr Clifford’s psychiatric injury. The evidence was from two equally eminent psychiatrists, Dr Stuart Turner and Dr Cleo Van Velsen. The experts broadly agreed regarding diagnosis. In 2006, Dr Tuner made a diagnosis of major depressive episode, with prominent anxiety, and Dr Van Velsen accepted this. In 2007, Dr Turner found that the depression had improved but there was still a phobic anxiety of children. In 2008, neither expert found evidence of a current psychiatric disorder, although both identified residual depressive symptoms. Both experts agreed that there was no personality disorder. Dr Van Velsen, but not Dr Turner, highlighted aspects of Mr Clifford’s personality, including grandiosity, and regarded these as potential vulnerability factors. Both experts agreed that there is a constitutional vulnerability. There was evidence of prior psychiatric symptoms, including at least one (Dr Turner) or two (Dr Van Velsen) prior major depressive episodes. There was also some evidence of a positive family history. Both experts agreed that there was no current indication for psychiatric treatment.

The main area of disagreement between the experts was causation. The differences related primarily to the facts of the case. Both experts agreed that the arrest in October 2003, and the subsequent investigation, caused Mr Clifford to develop a major depressive mode. Both also agreed that, even if he had not been re-arrested and charged in July 2004, had his business failed, perhaps as a result of the initial arrest, he would have been vulnerable to a deterioration in his mood. Neither expert attached great importance to the spinal condition, which emerged as his psychiatric condition was improving.

For his assessment Dr Turner was assisted by talking to Mr Clifford’s wife. He was told by Mr and Mrs Clifford that, following the arrest in October 2003, there was an initial substantial deterioration in his mood. Over the subsequent months there was a gradual improvement. He was able to return to his business, although with difficulties. In Dr Turner’s opinion, had the allegations been dropped in July 2004, he would probably have continued to improve and would have fallen below the threshold of psychiatric disorder by January 2005. If all the charges had been dropped in August, not just the incitement charge, his depression would have lengthened to March 2005 (not January 2005, as would have been the case had all the charges been dropped in July 2004). Dr Turner attributes the subsequent fall in mood and the prolongation of Mr Clifford’s psychiatric disorder to the decision to charge him in July 2004. Mr Clifford then faced a number of court attendances from August 2004 to April 2005, associated with feelings of isolation. Dr Turner attributes about two and a half years of psychiatric disturbance to this decision, although during that time with gradual recovery.

By contrast Dr Van Velsen found no evidence in the medical notes or other reports that there was a worsening of his state of mind between July 2004 and April 2005. She was not able to interview Mrs Clifford, although in any event she did not regard her as an independent witness. She heard Mrs Clifford in court. Moreover, Mr Clifford was not prepared to discuss matters fully with Dr Van Velsen. She concludes that, although it was possible that the prolongation of the proceedings led to a certain sustenance of his symptoms, there was little clinical evidence of this.

It is clear on this evidence that the principal cause of Mr Clifford’s illness was the arrest in October 2003, the consequent taking for inspection of his computer equipment, and the effect of this on his business. Since it is conceded on his behalf that the arrests were lawful, there can be no claim for any psychiatric injury caused by events prior to his charge in July 2004. Since in my judgment the charging in July was lawful, Dr Turner’s evidence about the effect of this is not especially pertinent. December 2004 is the crucial point; indeed it is interesting that in the course of conversation with Dr Turner in 2006 Mr Clifford indicated that in his view the prosecution should have been dropped by December 2004. If I am wrong and Mr Hopkins should have ensured discontinuation of the prosecution at that point, it would appear that on Dr Turner’s evidence there was some prolongation of his depressed state. But that is not causation.

Mr Clifford can feel justifiably aggrieved about the time taken to investigate his case. The Hertfordshire Constabulary were investigating some 100 cases involving the Landslide material. There was a backlog in the Computer Crime Unit in examining equipment taken in relation to these cases. This had a more pronounced impact on Mr Clifford than others since the video and computer equipment was the basis of his business. Mr Clifford may also have been disadvantaged because the Hertfordshire Constabulary had to gear up to the work of investigating such cases. This was Mr Fouhey’s first case, which may explain why his statements did not spell out in greater detail the implications of his findings. Mr Hopkins too, was new to the work and, after a brief period, was moved on to murder inquiries. But none of this founds any liability of the chief constable in malicious prosecution or misfeasance in public office. The evidence available justified the charges laid against Mr Clifford in July 2004, subject to the incorrect date in one of the counts.

After the charges, the CPS was responsible for the prosecution. On my interpretation of the law Mr Thomas is correct in his submission that that does not necessarily remove liability for these torts from the police. However, in the present case the continuation of the prosecution after charge was justified even though Mr Fouhey’s 2^nd statement in December 2004 reported that the illegal images were found in temporary internet folders. Notwithstanding that there was a prospect that further expert examination of the computer may have produced other evidence to support the making and possession charges. There has been further expert evidence in this case but I am not privy to it. What eventually happened, in April 2005, was that the charges against Mr Clifford were dropped when Mr Fouhey agreed with the analysis of Mr Clifford’s expert. In my judgment no civil liability arises on the back of that in either malicious prosecution or misfeasance in public office.