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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Clifford v The Chief Constable of the Hertfordshire Constabulary [2011] EWHC 815 (QB) (01 April 2011) URL: http://www.bailii.org/ew/cases/EWHC/QB/2011/815.html Cite as: [2011] EWHC 815 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/04/2011

Mr Justice Mackay:

1. This is a claim for malicious prosecution and misfeasance in public office bought by the claimant who was charged with child pornography offences in July 2004. He was acquitted in the following April, no evidence being offered against him.

The history of the prosecution

2. Credit cards in the name of Mr Clifford had been used in 1999 on some six occasions to access pornography through a website based in the United States and known as "Landslide". It gave access to both adult and child pornography. Of the six sites accessed one only can been proved to have been a child pornography site showing indecent images of children, or IIOC as the experts in this case call them. Not only were Mr Clifford's credit cards used to access those sites but also his email address and password were used.
3. As part of a large operation known as Operation Ore information was passed by the US police to British police about apparent UK visitors to the Landslide site and in particular visitors to IIOC sites accessible through it. This led to a number of prosecutions in this country.
4. The charge levied for five of these six visits was debited to the claimant's Halifax Visa card between March 1999 and August 1999. The claimant's contention is and has always been that his credit cards were compromised and not used by him for these periods of access. He claims that he thought he had been reimbursed with these amounts by the credit card company. That is a controversial issue I have to address below.
5. Be all that as it may on 30 October 2003 he was arrested on suspicion of making or attempting to make, or possessing, or incitement to distribute IIOC. He was interviewed under caution without a solicitor and was then bailed. In the course of these interviews among other things he lied, as he now admits, about the person to whom he had sold a computer at the heart of this case known as the Tiny computer. He corrected this lie later in the interview process and said that he had in fact transferred it to a former business associate Mr Gerard. He says and I accept that he lied because he feared if Gerard was alerted he would do all he could to damage him, there being bad blood between them.
6. On the day of the arrest the police also searched the claimant's home and Mr Gerard's premises, recovering from the latter address the Tiny computer. There is no complaint about this arrest or any of the events so far described.
7. On 6 April 2004 an imaged copy of the hard drive of the Tiny computer was sent to George Fouhey, a retired police constable with knowledge of computers, who was working on contract to the defendant's computer crime unit. He was asked to examine the disk for evidence of IIOC. Mr Fouhey is accepted on both sides of this litigation as having had sufficient expertise in computers to carry out and report on this task.
8. He found what he described as "17 images of note". I understand this to mean images which the specialist officers of the child protection unit should then examine in order to form an opinion as to whether they constituted IIOC. He copied these images onto an encrypted CD and handed that copy in person to DC Hopkins, who had been the arresting officer and who had interviewed the claimant in the previous October. It is agreed that this meeting and handover of the CD took place on 8 June 2004. There is an acute controversy as to whether Mr Fouhey said anything about what he had found on the disk to Mr Hopkins and whether he also said what the significance of what he had found was.
9. Mr Fouhey made a s.9 witness statement setting out what he had found in some detail. The copy that survives is undated but the probability is that this was made sometime in the course of July 2004 and before 19 July. It concluded with these words;-

"… I found 17 images of note. A picture of note is one considered of interest to the investigating officer and is not necessarily and indecent photograph/pseudo photograph of a child under the age of 16 years. These images were compiled in a report…I transferred to an encrypted CD which I now produce as my exhibit GEF/95/1."

10. He did not in this statement say anything about where on the disc the images had been located.
11. On 9 July 2004 DC Hopkins took a witness statement from Mr Gerard, the claimant's former business associate. The claimant and Mr Gerard had parted company in acrimonious circumstances and it was from his premises that the Tiny computer had been seized it having been sold by the claimant to Mr Gerard in June 2001. The claimant had told Mr Hopkins that he did not want him to interview Mr Gerard because he feared Gerard would publicise to others in the trade the fact of the claimant's arrest and the reasons for it. But nonetheless Mr Hopkins understandably felt it necessary to take a statement from Mr Gerard, because the date of the transfer of the Tiny was of some importance to his investigation. It is suggested by the claimant that either on this occasion or some other occasion Hopkins maliciously told Gerard that the claimant was suspected of accessing child pornography.
12. On 19 July 2004 the claimant was re-arrested, interviewed under caution, with his solicitor present, and exercised his right of silence. At the conclusion of the interview he was charged by the custody officer with four offences. These charges were laid on the basis of evidence provided to the custody officer by Mr Hopkins. Charges 1 and 2 were that he had on 21 January 2001 made indecent photographs of children on the Tiny computer contrary to Section 1(1) (a) of the Protection of Children Act 1978. Charge 3 said that on 30 October 2003 he had in his possession 10 level one images of children which were indecent on the same computer contrary to Section 160 (1) Criminal Justice Act 1988. The fourth charge was that between 6 March and 7 August 1999 he incited Landslide its proprietors and employees to distribute or show IIOC. The date in the third charge was plainly wrong and was later corrected. Nothing turns on this particular mistake. I will call the first three the possession charges. It is not argued that there was anything unlawful about the incitement charge, in respect of which there was plainly a case to go before a court.
13. On 10 September 2004 Mr Gerard, using a false name, telephoned an employee of the claimant on two occasions saying that he had checked with Welwyn Garden City police, naming Mr Hopkins as the source of his information, and telling the employee who took the call (the claimant's book-keeper) that her employer was "in court as a paedophile". I have heard the tape of his calls and accept that it was Mr Gerard (now deceased) who made this call in order to damage the claimant; it evidently shocked the person who received it. The claimant says that he has suffered a substantial loss of business due to similar activities by Mr Gerard, and possibly others.
14. On 9 August 2004 the fourth charge alleging incitement was dropped by the Crown Prosecution Service (who had not advised prior to charge) as being no longer in the public interest. On 1 October 2004 the CPS acting on behalf of the Director of Public Prosecutions gave consent to prefer the first three charges. All that was left of the prosecution was now the possession charges, and the claimant's damage, if the prosecution on those charges is shown to be malicious, starts from this point.
15. Mr Fouhey made a second s. 9 statement dated 21 December 2004. it reads as follows in its relevant parts :-

"Further to my previous statement dated 21 July 2004 I have been asked to make comment on the 17 images that were found in "recovered folders". EnCase can do a search that looks for folders that have been deleted and rebuilds them, if the data is there and not overwritten. In this case it has recovered a total of 239. On examining the contents of these folders the 17 images in question where (sic) found. These images where (sic) created on this hard drive on 26 January 2001 with the exception of image "iolita~1.jpg" this being created on 11 February 2001. These images would appear to have originally come from a temporary internet folder".

16. The reference to EnCase is to a specialist computer programme which Mr Fouhey used in the way he described. Without it these images could not have been detected and recovered. The last sentence, it is accepted, has this significance: it means that the images could have been received unsolicited by and even without the knowledge of the operator of the computer, for example as "pop ups". It is accepted for the purposes of this case that on the first three charges the prosecution would have had to have been in a position to prove that the defendant knew of the presence of these images on his computer. The defendant accepts (see Mr Challenger's opening 7(5)) that all bar one of these images is a "pop-up" and as to the 6^th it cannot be said it is not. Therefore, as he put it, "absent any other evidence that a person knows that his machine contains or may contain indecent images the existence of a pop-up is insufficient to support a charge of making or possession". I will consider Mr Hopkins' own understanding of the position later.
17. Mr Hopkins did however react to his receipt of that statement by sending it on immediately that same day to the CPS. By this stage there had been a plea and directions hearing at the Crown Court to which this matter had been sent. By now it concerned only 10 level 1 images, the lowest level of seriousness of the 5 levels conventionally used to categorise IIOC offences; it was plainly not among the more significant categories of cases of this class.
18. Be that as it may the terms in which he did so are important. In his email to the CPS he said this;-

"Several items came up at the hearing [on 20 December] one of them being the creation date of the images found on the Tiny computer which it would appear is where the defence is basing their case around.

1) with regard to the dates I am forwarding a copy of a statement from George Fouhey 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….

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

Any problems please contact me at the office"

The claimant says this is far less than a proper and full account of what Mr Fouhey had told him on 8 June.

19. The second witness statement of Mr Fouhey was served on the defence on 29 January. There had been a further hearing at the Crown Court on 21 January at which the possibility of defence expert evidence was discussed. The judge raised certain queries about the prosecution, particularly the relevance of the Landslide evidence relating to 1999 to the possession charges. There was a further hearing on 31 January at which another judge questioned whether the case was to be pursued, and after an adjournment prosecuting counsel, having discussed the matter with the head of Hertfordshire CPS Mrs Stansfield who in turn had spoken to DC Hopkins, told the court that the matter was going to trial and "evidentially there is no reason to drop this case". He concluded "… the evidential test is satisfied and although it's ten images the Crown feel it is in the public interest to proceed".
20. New solicitors for the defence procured a report from an expert who pointed out what he saw as a fatal flaw in the prosecution case, namely the fact that these images were found in temporary internet files only. His views were summarised in a letter to the prosecution. According to the solicitors' letter of 12 April to the CPS the expert's view was -

"Mr Fouhey fails to spell out the implications of this, images and files in the temporary internet cache are copied without the knowledge of the user. They are stored as a jumble in deeply buried folders with random names like "FX7RA" and so on. They cannot be viewed or recovered by an ordinarily skilled and equipped computer user. Since the images were in cache the burden shifts to the prosecution to show probable reason that the page containing the images were (sic) deliberately sought. If the page can been shown to be a pop up then it is obvious that it is not a page being sought by the user. These issues bear on the making and possessing charges".

The letter referred to the decision in Atkins v DPP [2000] 1 WLR 1427 and expressed the view that the prosecution was now in difficulties.

21. On 14 April having seen a copy of the solicitors' letter Mr Fouhey agreed with the defence expert, and said:-

"I would like to point out that the evidence I found, and which [the defence expert] agrees with was prepared for the officer's review only. It was not prepared to charge the defendant, as it was my opinion insufficient to prove guilty knowledge. Originally I was informed that the defendant was being charged with 'Incitement' and the evidence I recovered was to support that charge, not to stand on its own."

22. Discussions between the CPS, prosecuting counsel, DC Hopkins and Mr Fouhey resulted in the decision to offer no evidence on any of the three remaining charges; no evidence was offered on 15 April 2005 whereupon the claimant was formally acquitted of all charges. There is no evidence that there was any opposition to this decision voiced by Mr Hopkins, nor any suggestion from any quarter that despite the problem posed by the location of the files there was still a valid case which could be presented to the court based on the Landslide or any other evidence.

Complaints by Mr Clifford and their investigation.

23. Even before he was charged Mr Clifford was expressing increasing anxiety to Mr Hopkins about the length of time he was taking with his investigation, the fact that he had no list of the items seized from his premises (which included four other computers in addition to the Tiny and a large amount of other computer media) and the losses he was sustaining. His solicitors wrote in December reinforcing these complaints and saying that action might need to be taken. No list of documents was forthcoming until 19 February 2004. Some items when returned proved according to Mr Clifford to be damaged.
24. Two days after his acquittal he prepared a lengthy statement complaining about the investigation and the matter was agreed as suitable for investigation under the local resolution process. His complaint was then compressed and summarised in this way:-

"I would like DC Hopkins told that he unnecessarily aggressively and maliciously pursued the investigation. The evidence was poorly prepared and prolonged the investigation and trauma.

He allowed witnesses to talk about the case with other people and consequently damaged my business. As a result of this investigation property was damaged and retained for an excessive length of time.

I do not wish to pursue any of the other complaints against any of officer mentioned in my letter".

25. This form was endorsed by Mr Hopkins in his own hand in these terms:-

"I feel that I carried out this investigation correctly, the evidence that I used came from America and was to the best of my knowledge carried out. I acted in good faith throughout. The evidence was given by an expert in computer forensics and when his evidence was challenged it was he who changed his stance leaving me without evidence in this case". (emphasis added)

26. Thus there was clearly a conflict between what Mr Hopkins was saying and what Mr Fouhey had said in his note of 14 April 2005 referred to at 21 above.
27. An investigation was carried out by Detective Sergeant Wilcox, then the supervisor of the Computer Crime Unit. He gave crucial evidence in the trial before me. This is an important difference from the case presented to Cranston J at the first trial since this evidence was not before him.
28. Mr Wilcox had recruited Mr Fouhey to the unit under contract. The result of his investigation was a form dated 18 July 2005 headed Service Improvement Document No 60 ("the SID"). This was Mr Wilcox's document based on his own enquiries. He said in evidence he could specifically recall speaking to Fouhey but could not directly remember (as at June 2010 when his statement was taken) speaking to Mr Hopkins, but having read the report considers he must have done so. I agree and find as a fact that he did. The relevant parts of this important document read as follows.
29. After having set out the background and Mr Fouhey's findings the report reads as follows:-

"5. Mr Fouhey liaised with …DC Hopkins and explained that the images identified had been found within temporary internet files. These files could not be relied upon as the basis for a charge because the origin of the images could not be detailed. These images can appear as advertisements without the user of the computer requesting them or even being aware that they were on the machine. They were small thumbnail pictures.

6. DC Hopkins agrees that Mr Fouhey said this to him.

7. At this time it was agreed policy that persons who had entered the Landslide site and visited a level one site were to be charged with an incitement charge… following his liaison with CPS DC Hopkins charged Clifford with the incitement offence but also charged him with possession of the indecent images within the temporary internet files. This was to give additional weight to the incitement charge.

8. There then followed a considerable period of time before the matter came to court. In large part this was caused by Clifford himself who changed his defence team just before the case was due to be heard……..

11. At no time did Mr Fouhey change his evidence. He advised against charge. This was overruled in favour in charging with possession of the images in order to support a separate stronger charge. This separate charge was subsequently dropped. The remaining possession charges were then left in an unsupportable position. This was done without Mr Fouhey being consulted or even being made aware. It is not clear who made that decision or by, or whether the CPS were made aware of the information from Mr Fouhey…"

30. The purpose of Mr Wilcox's involvement, he said, was to find out whether Mr Fouhey had indeed changed his evidence, as Mr Hopkins had said, and if so whether there were any recommendations he should make for improvements in procedures. In the event he did make a recommendation in the last paragraph of the SID, in terms which are not relevant to my task. He was a clear and impressive witness. He did not claim any direct recollection of his conversations with Mr Hopkins and he was not responsible in any way for the child protection unit to which Mr Hopkins was then attached. He points to paragraphs 6, 7 and 8 as containing evidence which can only have come from Mr Hopkins and I agree that that is the case. He could not have written in those terms without receiving that information directly from him.
31. Additionally, Mr Wilcox made the telling point that he was able to deal with the investigation in the way he did because it had revealed no disagreement between the two relevant officers as to what had happened. Had that not been the case he would have had to have taken a different course. This is therefore compelling evidence that, whatever he was initially inclined to say when the complaint was first raised, by this time Mr Hopkins was accepting that the conversation of 8 June informed him of the fact that the files were where they were and warned him of the all important negative implication for the prosecution of that fact as set out in paragraph 5 of the SID document. All of this information must have come from Mr Hopkins himself.
32. The next document of relevance came from the police solicitor. On 5 October 2005 Mrs Grundy wrote in response to the claim saying she had now completed enquires into it and could comment on liability. She then gave a detailed account of the police position as to what had happened. It included this paragraph.

"Mr George Fouhey of the computer crime unit examined the Tiny computer. Twelve level one images were recovered on the computer. Mr Fouhey made a statement outlining his findings and told DC Hopkins verbally that the files he had found were in temporary folders. Mr Fouhey was under the impression that you would be charged with incitement to make indecent images and not possession".

33. Then having described how the case came to an end she concluded in these terms.

"It appears that DC Hopkins had not passed on the information given to him by Mr George Fouhey that the images had been found in temporary files. This was an error on the part of Mr Hopkins but it is denied that this error is evidence of negligence or that DC Hopkins acted in any way unlawfully".

34. It is inconceivable that Mrs Grundy wrote this letter without taking express and detailed instructions from Mr Hopkins. The Court of Appeal regarded this and the SID as important pieces of evidence in the case, and so do I. Mrs Grundy has sat through both these trials as Mr Challenger's instructing solicitor and has not been called to give evidence to the contrary. I am driven therefore to find that the first of the paragraphs I have set out above, consistent as it is with paragraph 5 and 6 of the SID, have the same source namely Mr Hopkins himself.
35. This finding is further supported by the evidence of Mr Fouhey, which is consistent with the documents and which I accept. He seemed to me a straightforward and honest witness with no axe to grind in the matter. It is also the case that apart from the one brief note in which he positively asserted that Mr Fouhey had changed his stance, when it came to this litigation, both in his witness statements and in his evidence, Mr Hopkins has never gone further than to say that he had no recollection of being told by Mr Fouhey on 8 June of the two important matters. In his cross examination in the first trial Mr Thomas must have given Mr Hopkins a dozen chances to firm this up to a denial, but he did not take them. As Mr Fouhey said in evidence he based his opinion that there was no evidence to support charges of possession or making on what was in the computer alone though for all he knew Hopkins could have had evidence from another source. He would have had to tell the officer in the case about the location of these files and the fact that they were of no use to support a possession charge. All this is, of course, consistent with his own contemporaneous memo of 14 April referred to above.

Did Mr Hopkins have reasonable and probable cause to charge possession?

36. Mr Challenger for the defendant argues that there was other evidence capable of supporting such charges. There was evidence that on some six occasions Mr Clifford purchased infringing materials from Landslide in 1999; that he had told lies to the police in his 2003 interview; that he had told lies, or at least failed to make good his claim in the first interview, that the credit card payments relating to Landslide had been credited back; and he admitted using the Tiny computer to surf the net for adult pornography. At the time of charging the police did not know that the Tiny computer had not been purchased until April 2000 that is after Landslide had ceased to function.
37. The claimant says that none of this was in the mind of Mr Hopkins at the time of charge. In his witness statement in these proceedings taken 29 August 2008 he said (paragraph 35):-

"If I had known the files were in temporary folders and that there was no evidence suggesting that the user of the computer would know that images were there then I would not have asked for Mr Clifford to be charged with these offences".

But later in the same statement (paragraph 70) he contradicted this and said he honestly believed there was other material to support the charge, in effect the matter that I have outlined above now advanced by Mr Challenger.

38. At the first trial he was extensively cross examined and invited to agree with paragraph 35, and he did so. When asked about Mr Fouhey's second section 9 statement, and specifically if he had seen that and been told what it meant (essentially that which I have found as a fact he was told orally on 8 June) he was asked "You would have known then that you did not have a case bearing in mind what Mr Fouhey was saying?" He replied "Yes".
39. In his hand written response to the original complaint form he said that Mr Fouhey's position (which he wrongly in my judgment described as a change of position), left him "without evidence in this case".
40. For all these reasons I am satisfied that Mr Hopkins did not at the date of charge have in his mind any honest belief that there was any supporting evidence for the possession charges other than the mere presence of the pop ups on the Tiny computer. In the words of the question that he was asked in cross examination he only had half the offence and no evidence going to knowledge. His position had been exposed by the dropping of the incitement charge, up to which point I find he thought, as he said to Wilcox, that the possession charges were serving the purpose of adding weight to it.
41. The question that has to be asked and to be derived from Glinski v McIver [1962] AC 305 in is that posed by Lord Radcliffe at 753-4:-

"… the ultimate question is not so much whether there is reasonable or probable cause as whether the prosecutor, in launching his charge, was motivated by what presented itself to him as a reasonable and probable cause. Hence if he did not believe that there was one he must have been in the wrong. On the other hand I take it to be equally well settled that mere belief in the truth of his charge does not protect an unsuccessful prosecutor, given of course malice, 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."

Others of their Lordships put the case lower than that – Lord Denning at 758 said he only had to be satisfied that there was "a proper case to lay before the court"; be that as it may Lord Denning agreed that it was not sufficient for the intending prosecutor to think that he had probable cause, but he must have probable cause in fact.

42. As later events prove he did not have a case which was sufficient either to lead to the conclusion that there would probably be a conviction or even that this was a proper charge to put before a court. As early as 21 January 2005 at the Crown court the judge took up with the prosecution the relevance of the Landslide material to the remaining charges and therefore its admissibility saying he could not see how these transactions were either relevant or admissible. Prosecuting counsel blandly replied "I've served what I have been required to serve". Mrs Stansfield, the CPS representative, makes clear in the transcript of her evidence that this was intended to mean that it had merely been served as unused material. Once the CPS and prosecuting counsel appreciated the full import of Mr Fouhey's evidence they were quick to offer no evidence, having consulted with Mr Hopkins. There is, as I have said, no evidence that he in any way opposed their proposed course of action or said that he believed there was other evidence which meant that there still remained a case for the defendant to answer. He therefore in my judgment had no reasonable and probable cause, either on the basis of his own honest belief or judged objectively by the standards of a reasonable prosecutor in his position, to charge the claimant with the possession offences in July 2004.
43. As for malice, this can be inferred from the absence of reasonable and probable cause if the evidence warrants it. It is trite law that malice in this context covers not only ill will but also an improper motive for prosecution. Mr Clifford had been critical of the investigation and was threatening legal action. Not only did Mr Hopkins have no honest belief in the possession charges when he caused them to be brought against the claimant, but I find he did so for an improper reason, namely the one which he gave to Mr Willcox, as an attempt to bolster the case on the incitement charge and protect his own position. The lies he then told in the investigative stage, as to Mr Fouhey's change of stance, and as to consulting the CPS before charge, fortify me in this view.
44. Before he was asked to surrender to his bail and then interviewed and charged the claimant, as I have said, had been complaining about Mr Hopkins' conduct of the investigation, the first letter being on 1 November 2003. His principle concern was to recover the property he needed for his business that had been taken from him which included four computers additional to the Tiny computer in question. He instructed solicitors to write a letter about these matters which hinted at the possibility of action against the police should satisfaction not be obtained. In the event there was very considerable delay in producing the list of items seized which was not forthcoming until 19 February 2004. Mr Hopkins was under pressure at work at the time but was vulnerable to criticism and possibly more than criticism because of the dilatory way he dealt with these matters.
45. I am driven to find that what he said in his hand written answer to the original complaint, seeking to blame Mr Fouhey for not giving him all necessary information about the images, was false to his knowledge when he said it. This was very close in time to the matters in issue and before any supposed difficulties in recollection could have set in. It was almost immediately contradicted by him when he was spoken to by DS Wilcox. He was trying to cover up a position which he knew was a difficult one for him.
46. When he received Mr Fouhey's second witness statement in December 2004 the way in which he dealt with it was not satisfactory. Though he passed it on with some speed, as I have found he must have known at that date not only that these images were found in temporary files but also what that meant in terms of proof of knowledge on the part of the defendant. He knew that, but the CPS could not be supposed to have done so. In his evidence at the first trial; he was cross examined extensively on this and agreed that he was the one with the information that there was in effect no case. Asked why he did not tell the CPS lawyers in clear terms he said he had no idea. He was given several opportunities to explain this and repeatedly failed to provide any answer. Again I have to conclude therefore, given my findings of fact as to what happened on 8 June, that he must have made a decision to conceal that which he knew at the time of charging from the CPS.
47. He told Mr Wilcox, as I have found, that he had consulted the CPS before charge. This was untrue and he must have known that it was. He then went on in the same context to say that he also charged the defendant with possession "to give additional weight to the incitement charge". There is no reason why Wilcox should have got this wrong and I find that it or words to its effect were said. Therefore this provides some insight into the probable thinking of Mr Hopkins leading up to charge and it is not disputed that if this was the case that was an improper motive to have inspired the bringing of these charges.
48. There is also the whole question of Mr Hopkins' own evidence. In the first trial in December 2008 he was claiming lack of memory on the key factual issues but was driven to make certain concessions in the course of a vigorous but entirely proper cross examination. He did not suggest that he was suffering any psychiatric injury at this time.
49. In the weeks leading up to this trial, which had been fixed for some months, and in respect of which Mr Hopkins had been served with a witness summons by the defendant, he consulted a psychiatrist with the result that on the Friday before the trial an application was made to defer the start of the trial on the grounds that he was unfit to give evidence. On the very day that that application was being made enquiries made by the claimant's solicitor revealed that Mr Hopkins was a full time employee working for the Environment Agency. The court now knows that he retired from the police service in 2007, worked for a while for the Independent Police Complaints Commission and then joined the Environment Agency where he co-ordinates the investigation and prosecution of environmental offences.
50. The application was unsuccessful and the trial started. In the course of the trial a fuller medical report dated 14 January 2011 from a Consultant Psychiatrist stated that he was suffering from PTSD and that if he had to give evidence his mental health could deteriorate and he could become so anxious that he would not be able to continue to give evidence. This is apparently attributed by the doctor to flashbacks of images that he witnessed while working in the paedophile unit, as it is called in the report, which caused him distress and sleep interruptions and give him suicidal thoughts. He additionally reported that he found the 2008 proceedings extremely distressing and the thought of giving evidence again made him anxious and gave him palpitations. Asked to answer why Mr Hopkins had been able to give evidence two years ago without any apparent adverse effect and was now not fit to give evidence the answer was that he had found the trial very distressing and its memory made him anxious. Asked why he has developed PTSD allegedly as a result of the images he had to see in his time with the child protection unit the psychiatrist opined that this is a condition which "can develop more than six months after the traumatic event". My calculation is that Mr Hopkins left the unit some time in early 2005 so the first manifestations of this condition seem now to be more nearly 6 years after the event.
51. The psychiatric evidence is entirely based on self-report by Mr Hopkins. I admitted the report in evidence though it is not agreed. The report raises as many questions as it answers.
52. In the event Mr Hopkins did appear in court for the last day of the hearing. I was told that he would feel uncomfortable if Mrs Grundy remained in court while he did so, which struck me as a curious stipulation but one which was complied with. It was thought sensible to give him time to read through the transcript of his previous evidence of which he had been given a copy. He purported to do so but said that he had only read 10% of it and after that "I just got muddled". It should be stressed that none of the evidence in this case focuses on any of the images, which I accept can be highly distressing to those who have in the course of their profession to look at them. He had no recollection of talking to Mrs Grundy or talking to Mr Wilcox. He could not remember why he said he was left without any evidence by Mr Fouhey's change of stance or why he had told Mr Wilcox he had consulted the CPS pre charge. He could not really remember anything or give any evidence of significance but said that his evidence on the last occasion was the truth.
53. I am not persuaded by the medical evidence of Doctor Bhushan, given I accept in good faith by him, that Mr Hopkins' reluctance to come to court and his almost total absence of recollection of any of the events of significance in this case when he did is generated by any psychiatric condition. I believe he was frightened to come to court because of the questions he knew he would face. He has held down responsible jobs in the criminal justice system since his retirement from the police. The rather pathetic figure he cut in the witness box, requiring his wife to be with him in close proximity while he gave evidence, excluding the person who had heard one of the damaging admissions he had made, was, I am prepared to find, not a charade but generated by understandable anxiety about the difficulties he faced in this case.

Mr Gerard

54. When he was interviewed in 2003 I accept Mr Hopkins was told by the claimant that he was anxious that Mr Gerard should not be told about his arrest because there was bad feeling between them and Mr Gerard would be quick to damage his interests if he could. That indeed was why he had initially lied about selling the Tiny computer to a third party through Loot Magazine. I have accepted that part of his evidence.
55. Police, not including Mr Hopkins, seized the Tiny computer from Mr Gerard's address. Later, on 9 July 2004, Mr Hopkins took a Section 9 statement from him dealing with the date on which he had acquired the Tiny computer. I heard Mr Gerard on the tape of his later call to the claimant's office and from that was able to form the impression that he was a malicious and venomous opponent of the claimant. He must have seen these events as an opportunity to injure his old enemy and would have been speculating in his own mind as to exactly what the police were investigating.
56. There were magistrates' court appearances by the claimant on 22 July and 9 August. The claimant's evidence is that there was no publicity in the local press about these hearings. There are however many ways in which a maliciously inclined person could find information about what was happening. I am not satisfied to the necessary standard that Mr Hopkins was the source of Mr Gerard's knowledge that the claimant was "in court as a paedophile". That would have required malice in the lay sense on the part of Mr Hopkins which I do not consider was his motivation in this matter.
57. The late addition to the claimant's case, that Mr Hopkins also told DS Siggery, who had been a past client of the claimant, was based on the appearance of that officer's name on the CIS document on 30 June 2005. I accept the evidence of Inspector Girling that Siggery was at the relevant time supervising Mr Hopkins. He therefore had a legitimate interest in accessing this document after the case had come to a close. I therefore dismiss this particular allegation of misfeasance.

Quantum of Damage

58. The direction is that so far as medical evidence is concerned the psychiatric evidence given at the first trial is admissible and the doctors have therefore not been called. They agreed that the claimant was psychiatrically vulnerable by virtue of his history and that he suffered a major depressive episode following his arrest in October 2003, which was still present when Dr Turner saw him in 2006. By the time they each examined him in 2008 it had gone, though there were residual sub-clinical symptoms of anxiety. Dr Turner's view was that if there had only been the arrest and the incitement charge (both accepted as proper by the claimant) which was then dropped in the August he would have made his recovery in early 2005. Dr Van Velsen was hampered by the claimant's refusal to discuss his symptoms in any detail with her but found no clinical evidence of any deterioration of his state of mind between charge and acquittal.
59. The claimant's own evidence, supported by his wife, is that while he was on bail though he was devastated by his arrest, which caused difficulties for his business and a strain on his relationship with his wife he always had the hope that the matter would not end in charges. When he was charged he found that period particularly difficult with numerous court appearances (four in the magistrates court and seven in the crown court) which caused him particular distress and fear of publicity and the like.
60. Dr Turner expressed the opinion that if he had been cleared of all charges by August 2004 he would have been alright within six months, but because he was not cleared until the following April it took a further two and a half years or so for the symptoms to clear. It is difficult to resolve this issue between the doctors save to say that the difference between the two recovery periods is a very marked one and the reason for the difference not at all clear to me, nor is it explained in any detail by Dr Turner.
61. If however the whole period over which he was depressed fell for consideration and assessment in terms purely of damages for personal injury the appropriate damages would have been of the order of £17,500. In order to allow for the fact that the defendant is on no basis responsible for the first ten months of that period, doing the best I can I would have reduced the damages to £10,000 representing the psychiatric damage referable to the tort.
62. I have been referred to the leading case of Thompson v Commissioner of Police of the Metropolis [1998] QB 498 which suggests that where malicious prosecution is proved the range of the basic compensatory element of the damages is, in today's figures, approximately £3,000 - £15,000. Mr Thomas invites me to assess damage for each of the three charges and add them up. He cites no authority for this proposition which is one I reject. The damages are due to the claimant to compensate him in respect of a single prosecution process. He did not suffer discrete damage referable to each charge.
63. He is however right to emphasis the special nature of the particular offences with which this claimant was charged, their destructive effect on his own feelings of self worth, his relationships with his own wife and family and his business associates. Inevitably there must have been as I find rumours and leaks of information (see the instance of Mr Gerard) and an element of social stigma. Though these charges were never going to attract a custodial sentence they would have required him to register on the sex offenders' register. Therefore the damages for distress and non-psychiatric hurt and injury to his feelings I would assess in this case as £10,000.
64. Whether these should be aggravated is another issue to consider. At 512E in Thompson the Court of Appeal said that additional compensation could be awarded for injury to the proper pride and dignity and humiliation suffered by the claimant. I have provided for these elements in the basic compensation. In this case fortunately there was no ordeal in the form of a criminal trial which had to be gone through, merely a series of procedural hearings. Mr Thomas argues that the defendant's conduct of this civil trial could be a factor aggravating the damages. It is true that in defamation proceedings where a defendant unsuccessfully attempts to justify a defamatory statement that is usually seen as a factor aggravating the award. The defendant argued that the claimant was an habitual user of child pornography and therefore I should reduce the general damages accordingly in the light of his proven habits, as I understood it on the basis that his distress as such a person would be less even if in respect of these charges he was innocent, and secondly on the basis that as such he was at risk of such a prosecution in any event. For the reasons stated separately below I reject this argument. Nevertheless I do not propose to take it as a matter aggravating the award. Though I have found it not to have been made out, and though it added at least a day to the length of the hearing, it was a point the defendant was entitled to test. If it goes to any issue in this case it may go to the question of costs which I have yet to decide.
65. As for the claim for exemplary damages I do not think this is a case for this exceptional remedy. It is appropriate in cases where the police can be said to have behaved in an arbitrary or oppressive manner deserving punishment rather than attracting the payment of compensation. Further, it is accepted that no separate or further compensation is appropriate for the misfeasance, for such I consider it was, on 21 December 2004.
66. Therefore my overall award for damages in this case is one of £20,000.

The Expert Issue

67. As a postscript to the above I should give my reasons for the finding that I do not accept the argument that the claimant was an habitual seeker out of IIOC from 1999-2005. This was based on expert evidence and their evidence was limited to this issue.
68. As to the Tiny computer itself there was no evidence that it had ever been used for such a purpose. The agreed evidence of the computer experts (Mr Fellows for the defendant and Mr Campbell for the claimant) included these statements

"We found no evidence on the computer which indicated that the user searched the web for IIOC on any occasion… the computer was not "cleaned" or wiped so as to remove deleted records or information…the presence on the computer of a significant number of current and deleted sexually explicit adult images is consistent with the user or users of the computer having browsed adult websites prior to 11 February 2001. If the user or users had at these times browsed sites offering or supplying IIOC, or sites of ambiguous or similar character and which would be likely to launch pop ups containing IIOC, it would be very likely that some of these images would have survived and have been recovered".

69. Mr Fellows' opinion supporting the defence proposition was not based on data found in this or any other of the claimant's computers but primarily on his general experience. He said that broadly speaking users of the internet remained untroubled by advertising material of this nature if they are not interested in such material, and even if the user visited adult sites generally speaking they would remain untroubled by such pop ups. There was ample evidence of adult pornography being sought out by this computer but there were no IIOC images.
70. Mr Campbell says that adult site users, as this claimant admittedly was, might indeed suffer or attract pop ups of this nature. He had very considerable experience of such cases and Landslide cases in particular, albeit acting exclusively for the defence. His opinion is that the IIOCs found on the computer were the result the malware launched from adult pornography website pages. He has possession of the entire Landslide database which he has perused and finds evidence of massive and widespread credit card fraud on it, which indeed marked the beginning of the end for Landslide causing it to be closed down in 1999, and it was his opinion that such fraudulent use cards and/or personal information was potentially responsible for the Landslide entries in 1999 incriminating the claimant.
71. In cross examination Mr Fellows modified his position to this extent. It had never been his evidence that the claimant habitually trawled the net for IIOC. There is evidence, he thought, that the claimant used to visit child pornographic sites "albeit not deliberately". There are indications of visits to "Lolita" and "Pre-Teen" which "may or may not have been deliberate" and his accessing of Lolita.2000 may not have been deliberate.
72. I prefer Mr Campbell's position on this issue particularly in the light of Mr Fellows concessions recorded above.
73. Secondly Mr Fellows pointed to an email from [email protected] (the claimants email account) to world-bill.com (a payment processing site) concerning a site "Lolita.2000" (which no longer exists and the content of which nobody knows) and the password needed to access it. Mr Campbell showed me the full picture here. This email was part of a series of ten which began with a bizarre email from world-bill to the claimant on 7 December telling him and 23 other alleged "subscribers" that their "subscription" had been renewed. It did not say to what sites or for what charge. The claimant replied that he did not understand as he had not requested any account to be renewed. The third, fourth and fifth emails are all from world-bill.com and are incomprehensible. They make no reference to any particular website. The sixth told him that his subscription to Lolita.2000 was now active (this is the first time the site has been named) and it gave details including his username and password. The seventh is the only other email the claimant sent in this series and it said "password is not working please advise". The eighth is some form of automatic response from world-bill to the claimant. The ninth sent him a different username and password and the tenth cancelled his subscription.
74. Apart from his response, perhaps out of curiosity, indicating the password was not working, the claimant seems to have been the passive recipient of this strange series of emails. More to the point there is no evidence what Lolita 2000 contained as a site. I am unable to find that the claimant did anything to provoke this correspondence. It does nothing to support the proposition advanced by the defendant.
75. As to the Landslide transactions of 1999, only one is now capable of being shown to have been a subscription to a child pornography site namely "Nympho". The claimant's assertion in his 2003 interview that there had been fraudulent use of his card and details was one which curiously he himself did nothing to support by way of investigation or complaint, at least that he can now recall. It is however supported to a significant extent by material within the Landslide database which the expert Mr Campbell possesses and has searched. His searches show that three payments of the six were in fact refunded on 26 August 1999 which includes that in respect of the subscription to the site "Nympho". The claimant says that that evidence is also in the hands of the prosecution albeit in the huge file that constitutes the Landslide database but which is evidence capable of being searched electronically, as Mr Campbell has done.
76. Therefore there is no evidence to support the proposition advanced as a matter of fact by the defendant in this case.
JUDGMENT ON COSTS
77. The time has come to conclude this litigation, which continues to generate disproportionate activity, use of court time and costs. I have therefore decided to make this ruling, having circulated the above judgment, on the basis of the Claimant's 65 paragraph costs argument (with 126 pages of exhibited material), the Defendant's full but in relative terms more concise response and the short reply from the Claimant. It is neither necessary or proportionate to accede to Mr Thomas' demand for a further oral hearing. The parties then wished to introduce yet more written material and were in dispute as to whether this should be exchanged simultaneously or sequentially. I thought I had sufficient material before me to decide the issues on costs on the basis of their original submissions.
78. I have to consider the costs of two trials, that before Cranston J and the retrial which I tried. The CA costs are separately catered for.
79. The Defendant has at no stage made a Part 36 offer. The nearest he has come to making any other form of offer was at the ADR hearing when his counsel, without express authority, suggested a payment of £5,000 to a charity, an apology and no costs.
80. The claimant made a range of offers, the closest and most relevant being a non-Part 36 offer at the ADR hearing to accept £20,000 plus 70% of his costs, and a Part 36 offer on 15.10.2010 to accept £45,000 plus costs discounted to 85%, 80% and 75% over various specified periods of time.
81. So far as the first trial is concerned I start from the position that the Claimant having succeeded in the second trial he should have the costs of the first as well as the "successful party" under CPR 44 (2) (a), unless there is a reason to deprive him of any part of them.
82. The defendant argues he should not have all these costs because he –

(a) amended and re-amended his claim, and

(b) Included a claim based on the misfeasance of Mr Fouhey, which he abandoned part way through Trial 1.

(c) His allegation of misfeasance in relation to the Gerard matter failed.

83. It is therefore argued on his behalf that there should be no order as to the costs of trial 1, for the above reasons and because the claimant "at least in part" brought matters on himself, by the Landslide evidence, the initial lie about the Tiny computer and his failure pre-trial to disclose that the Tiny could not have been used by him could not have been the Tiny.
84. The claimant in my judgment should have his costs of trial 1 on a standard basis. The Fouhey allegation was an alternative to the main case he was running which was Hopkins's conduct, and added little or nothing to the length of the case. Fouhey was a necessary witness at both trials, indeed I was helped considerably by his evidence. The Gerard issue took no more than half an hour at most in trial 2 and I doubt if it took more at the first hearing. As to bringing matters on himself, that would apply to his initial arrest and the period up to charge, which is of course excluded from my award of damages. The other matters are mere makeweights in my view.
85. The existing interlocutory orders relating to trial 1, i.e. those of 3.4.2007, 12.11.2007 13.12.2007, 23.5.2008, 23.10.2008 and20.11.08 should be preserved.
86. As to trial 2 the Defendant again refers to the Gerard issue which I resolved in his favour and "the pre trial conduct" of the claimant. Again I am unimpressed by these arguments. The claimant should have his costs of this trial, again with all interlocutory orders preserved.
87. I have considered the question of the basis on which these costs should be assessed. It was at the insistence of the Defendant that I heard expert evidence on the issue of quantum, which in the end I found unhelpful and which failed to support the defence case that damages should be reduced because the claimant was an habitual "trawler" for IIOC. At least one day of the trial was spent on this issue, the utility of which I took up with Mr Challenger before it started but he stuck to his guns and persuaded me that potentially it could serve that purpose, despite the apparent agreement of the experts on all matters which seemed to me to be germane. In the event the defence argument failed for reasons given in my judgment.
88. I said in that judgment that this was a line of defence, or at least mitigation, which Mr Challenger was entitled to run, and I have no doubt he would only have done so on express instructions from his lay client. It added to the length of the trial, and to the strain of it so far as the claimant was concerned.
89. I was also deeply unimpressed by Mr Hopkins's reasons for non-attendance and his feeble approach to giving evidence when he eventually did do so. I was not persuaded that his lack of memory was psychiatrically justifiable. The finding at the centre of my judgment is that there was bad faith on Mr Hopkins's part.
90. The conduct of this litigation was overly aggressive on both sides, but the Defendant on balance showed more intransigence towards the notion of settlement than the claimant.
91. For these reasons the claimant should have all his costs of the second trial, to be assessed on an indemnity basis if not agreed. These should include all existing interlocutory costs orders in his favour or costs in case i.e. 5.3.2010, 3.12.2010 and 10.1.2011, and the costs reserved on9.7.2010 shall be the claimant's
92. There is no arguable case for a "show cause" order against those representing the defendant. The first limb of Ridehalgh is not made out, even arguably, in my judgment, let alone the other two. The order should therefore be:-

(1) There be judgment for the claimant for £20,000, payable in 21 days from the service of this order;

(2) The defendant shall pay the claimant's costs of and relating to the original trial of this matter, to be subject to a detailed assessment on the standard basis if not agreed;

(3) The defendant shall pay the claimant's costs of the retrial of this matter, to be subject to a detailed assessment on the indemnity basis if not agreed;

(4) All interlocutory costs orders to be dealt with as above.

93. An agreed minute of order should be sent for my approval within 14 days. If the Claimant at any stage requires the usual LSC funding order that should be added.