Clifford v The Chief Constable of Hertfordshire Constabulary [2009] EWCA Civ 1259

[2009] EWCA Civ 1259Case No A2/2009/0111IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
MR JUSTICE CRANSTON
HQ06X02809
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/12/2009
Before
LORD JUSTICE DYSONLORD JUSTICE CARNWATHLORD JUSTICE HOOPER
Between
CLIFFORDAppellantTHE CHIEF CONSTABLE OF HERTFORDSHIRE CONSTABULARYRespondent
Patrick O'Connor QC&Leslie Thomas (instructed by Messrs. Tuckers) for AppellantEdward Faulks QC&Colin Challenger (instructed by Legal Services Department Police Headquarters) for RespondentHearing Hearing date : Friday 13th November, 2009
Judgment

Overview

[1]This is an appeal against the judgment of Cranston J dismissing Mr Clifford’s claims for malicious prosecution and misfeasance in public office.[2]The nature of the claims was summarised by the judge:
“The present claim… 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 latter allegation, relating to disclosure to a witness, was rejected by the judge, and is no longer in issue.[3]There was no issue as to the applicable law. For the purpose of malicious prosecution, the issues were whether there had been “reasonable and probable cause” for the prosecution, and if not whether the prosecution was malicious. As the judge said: “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… Absence of reasonable and probable cause may lead to the inference of malice being drawn.” (para 47) The issues raised by the allegation of misfeasance were similar and also required bad faith to be established.[4]The central figures on the police side were Mr Hopkins, the office in charge, and Mr Fouhey, a former officer who had been trained in examining computers in such cases and was consulted by Mr Hopkins on this case in early 2004. Both were relatively new to this type of work; it was Mr Fouhey’s first case for the Hertfordshire police.[5]The point which led to the charges being dropped in April related to the location of the images on a “temporary internet folder”. The significance of this was that such images could have been unsolicited. The location of the images on a temporary file (but not its significance) had been noted in a statement by Mr Fouhey in December 2004, which was supplied to the claimant in January 2005. However, the importance of the point seems to have been picked up on his side only when new solicitors were instructed in about March 2005. As they explained in their letter:
“… 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 deliberately sought. If the page can be shown to be a popup then it is obvious that it was not a page sought by the user. These issues bear on making and possessing charges.”
This view was immediately accepted by the Mr Hopkins and the CPS, on the advice of Mr Fouhey, and led to the dropping of the charges three days later.[6]As the evidence emerged at trial, there was a fundamental conflict between the evidence of Mr Fouhey, who said that he had told Mr Hopkins about this point and its significance as early as June 2004, before charges were laid. Mr Hopkins says he did not become aware of the point or its significance until December 2004.

Factual background

[7]The story, as set out in detail in judgment, goes back to 1999, when a US website “Landslide”, giving access to adult and child pornography, was closed by US authorities. Information then passed to the UK authorities included the name of the claimant as one of those whose names appeared on Landslide data. This eventually led to his arrest in October 2003. On the same day the police visited Mr Gerard, a former business associate of the claimant, from whom he had parted on unfriendly terms in April 2003. They removed a Tiny computer, which Mr Gerard had bought from the claimant in June 2001, and which later became the focus of the police investigations.[8]The events of October 2003 are relevant only as background.

The judge noted the matters not in dispute:

“52… 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.”
The principal issue was 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.[9]For that purpose the story can begin with Mr Fouhey’s work in April 2004, following a request from Mr Hopkins to examine certain items including the Tiny computer. His first formal statement was made in July 2004. It was expressed to be made under section 9 of the Criminal Justice Act 1967 and extended to six pages. It recorded that he had found “17 images of note”, adding:
“A picture of note is one considered of interest to the investigating officer and is not necessarily an indecent photograph/pseudo photograph of a child under the age of sixteen years.”
It also noted that on 8th June he had handed to Mr Hopkins an encrypted CD to which the images had been transferred. It made no reference to any other information given on that occasion.[10]Mr Clifford was detained on 19th July 2004 for further interview, in the presence of his solicitor. The police disclosure referred to the images found on the Tiny computer. At the formal interview he was shown the images, on which he gave no comment. He was then charged. There were four charges, three relating to the making or possession of indecent photographs of children on the Tiny computer in October 2001 (a reference in one to October 2003 was a mistake), the fourth relating to incitement of Landslide in 1999 to distribute or show indecent photographs of children. The latter charge was dropped in August following review by the CPS. The CPS file note explained:
“… The substantial wrongdoing is the downloading (i.e. making) of indecent photos. In my view the "incitement" adds little to the "making" and "possessing" offences. It is an "indictable only" offence which would have to be "sent" [to the Crown Court]. Although sufficient evidence, not in public interest to prosecute for it, when substantive offences were actually committed as a result of the "incitement".”
On 1st October 2004 the Director of Public Prosecutions gave consent to the prosecution for the making and possession charges. This was done by Mrs Stansfield, head of the CPS Crown Court Unit in Hertfordshire.[11]About this time the claimant recorded several malicious telephone calls made by Mr Gerard, including one in which he spoke to his book-keeper, and asked whether she knew that the claimant was in court as a paedophile. Part of the claimant’s case was that Mr Hopkins was the source of information to Mr Gerard. This was denied by Mr Hopkins, and the judge accepted his evidence. That finding is not now in issue.[12]Mr Fouhey made a second section 9 statement, dated 21 December 2004, which (as the judge found) arose as a result of a request by the CPS, following a court hearing on 20th December. It gave further details of the images recovered, noting that they were created on the hard drive in January or February 2001, and added:
“These images would appear to have originally come from a ‘temporary internet folder’.”
This was the first written indication of the location of the images on a temporary folder. However, the statement contained no explanation of the significance of that statement.[13]The following day Mr Hopkins sent an email to the relevant case-worker at the CPS, referring to the 2nd Fouhey statement, with particular reference to the dates, and raising the question whether further expert evidence would be needed, but not commenting on the location of the images. The 2nd Fouhey statement was served on the defence on 29 January 2005.[14]At a further directions hearing before His Honour Judge Bevan QC on 31st January 2005, prosecuting counsel confirmed in response to questions from the court that the prosecution would proceed:
“…. our expert really is saying that this material was put on to this system or this computer on a certain date. So evidentially the Crown are in the position that indecent material is on a computer that this defendant has accepted as having possession of at the relevant time. Now, that being the case, evidentially, the evidential test is satisfied, and although it's ten images the Crown feel it is in the public interest to proceed.”
The matter was in the warned list for trial on the week commencing 11 April 2005.[15]There was then a change of defence solicitors, which led to the letter of 12th April to which I have already referred. That recorded that Mr Campbell, the defence’s expert had seen Mr Fouhey’s second statement, including the reference to the images having come from a temporary internet folder, and noted that Mr Fouhey had failed to spell out the implications of this. Their letter continued:
“We would suggest that the prosecution are in difficulties as their own expert states that everything found was in the internet cache. Perhaps your expert would also be able to confirm that the images arose as a result of a popup, to which it was obvious from the history that the user was trying to prevent by installing security software and then reinstalling the whole operating system…”
[16]This letter was shown to Mr Fouhey, who responded with a note of 14th April 2005, which was not referred to by

the judge but deserves citation in full:

“Clifford Case Experts Report On Thursday 14th April 2005 I received a fax copy of the attached letter from Smith Brown & Sprawson Solicitors. The letter outlined the report of Mr Campbell the defence expert. I would like to say that I agree with the comments of Mr Campbell in relation to the picture evidence in this case and that the onus is on the prosecution to prove that the defendant had knowledge of the files. I would like to point out that the evidence I found, and which Mr Campbell agrees with, was prepared for the Officers 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 this charge, not to stand on its own. I submit this report for your review and disposal.”
I submit this report for your review and disposal.”[17]There was then an urgent meeting between prosecuting counsel, the CPS, Mr Hopkins and Mr Fouhey, following which it was decided not to pursue the case. At a hearing on 15th April the prosecution offered no evidence, and the claimant was formally acquitted.[18]Following his acquittal the claimant lodged a formal complaint against Mr Hopkins and Mr Fouhey. It was later agreed that it should proceed under the “local resolution process”. The claimant alleged that Mr Hopkins had “unnecessarily aggressively and maliciously” pursued the investigation, and that “the evidence was poorly prepared and prolonged the investigation”. Mr Hopkins responded, in a short handwritten note on the form:
“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.”
[19]It seems that following this complaint, Detective Sergeant Wilcox reported to the Professional Standards Department of the Hertfordshire Constabulary on 18 July 2005 in a document headed “Service Improvement Document Number 60” (“the SID document”). Unfortunately there appears to have been no direct evidence before the judge about the precise status of this document, or of its outcome. After outlining Mr Fouhey's finding of the 17 images of note, the SID document continued:
“5. Mr Fouhey liaised with the Officer in the Case, DC 1343 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 (1) site were to be charged with an incitement charge. This relates to the incitement of the persons running the Landslide organisation to commit a criminal offence of supplying paedophilia. Following his liaison with CPS, Dc Hopkins charged Clifford with the Incitement offence but also charged 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. 9. At some time during this period the CPS dropped the charge of Incitement. This meant that Clifford only then stood charged with the possession charges relating to the images found in the temporary internet files. Mr Fouhey was not told of this decision. 10. Just before the matter was finally due in court Mr Fouhey was shown a report from the defence team which highlighted the fact Clifford now stood charged only with the possession charges and that the images subject of the charges were temporary internet file images. It gave the opinion that these were insufficient to substantiate the charges. Mr Fouhey was asked to comment. When he did so he completely agreed with the defence expert because this was exactly what he had been saying from the beginning. As a result the case folded. 11. At no time did Mr Fouhey change his evidence. He advised against charge. This was overruled in favour of charging the 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 why, or whether the CPS were made aware of the information from Mr Fouhey. If it is required to know this information then it must be the subject of a different report. 12. The error could have been prevented if Mr Fouhey had documented the relevance of the temporary internet files within his statement. This would have had the effect of preventing them being used as support for other matters despite the fact that they were not sufficient in themselves. To this end the examiners within the Computer Crime Unit have now been instructed to ensure that such reservations will be included within the statements or reports that they produce and they will no longer rely on verbal information to the officer in the case. This is not as straightforward as it sounds because, when there are many hundreds of these temporary internet files, they may reach the standard required for evidence. Judgement will be required in individual cases.”
[20]In mid July 2005 the claimant sent letters of claim separately to both the Chief Constable and Mr Fouhey, drafted by himself. He claimed that Mr Hopkins had been motivated throughout by malice. He referred to the significance of the location of the images on the temporary internet folder and commented:
“Although Fouhey’s statement is dated in July, DC Hopkins had this information in June 2004 because he told me (he) had been in touch with the computer forensics expert. This is when the investigation should have ended as there was no evidence to answer. It appears that DC Hopkins chose to interpret this information differently in order to charge me on 19th July 2004. Either DC Hopkins asked for this to be kept out of the initial report by George Fouhey or Fouhey was extremely negligent….”
[21]A solicitor with the Hertfordshire Constabulary, Mrs Grundy, replied on 5 October 2005 on behalf of both the Chief Constable and Mr Fouhey, having “completed our enquiries into your claim” (“the Grundy letter”). In the course of the letter Mrs Grundy wrote:
“Mr George Fouhey of the Computer Crime Unit examined the Tiny computer. 12 level 1 images were recovered from 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 possession.”
She referred to the claimant’s complaints about his treatment by Mr Hopkins and said:
“Mr Hopkins remembers that his relationship with you at this time was quite amicable.”
Later in the letter she wrote:
“Mr George Fouhey made a second statement on the 21st December 2004 clarifying the images had been found in temporary files. The statement was faxed to the CPS on the 21st December 2004. It is not known why the criminal proceedings then continued until April 2005, however, we are aware that no evidence was offered at your April appearance and the criminal proceedings were concluded. It appeared 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 DC Hopkins but it is denied that this error is evidence of negligence or that DC Hopkins acted in any way unlawfully. We understand that the CPS could have relied upon the existence of the Level 1 images on the Tiny Computer even though they were contained in temporary files, technically you could be said to have been in possession of the images even though you did not physically download the files. The existence of temporary files shows that visits were made to the website in question and the computer picked up the temporary files to accommodate easier access should the site be revisited.”
At the time of writing this letter Mrs Grundy was unaware of the SID document.[22]The most significant issue in the appeal has been the judge’s treatment of Mr Hopkins’ state of knowledge, at the time of laying the charges in July 2004. There was a direct conflict between Mr Fouhey who said that he had passed on the relevant information verbally at the meeting in June, and Mr Hopkins who said he did not know about it until December. There was a subsidiary issue as to the judge’s treatment of Mr Hopkins handling of this information in December.[23]The judge dealt with both issues relatively shortly. Of the position in June he said:
“16. The images were transferred to an encrypted CD and Mr Fouhey handed it to Mr Hopkins at a brief meeting on 8th 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.”
As indicated there, he returned to the significance of the two latter documents much later in this judgment: “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 1st 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.” (para 57, emphasis added)[24]Having referred to the factors which justified Mr Hopkins’ suspicions at the time of charge, he returned to two “incidental matters” connected with the later documents: “59. 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.”(para 59)[25]As to what happened in December, the judge accepted that Mr Hopkins was told at that time by Mr Fouhey, not only that the images were in temporary internet folders, but also “the implications of this”. This in fact had been the effect of Mr Hopkins’ own evidence in chief. In his witness statement he said: “I was not aware until December 2004 that the files were contained in temporary internet folders and that meant that the user of the computer at the time the folders were created would not be aware of their existence.” (para 65) He had added that, even if he had known the location in June, that knowledge would not without expert assistance have helped him to assess the prospects for conviction.

The judge commented:

[26]“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 than 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 2nd statement, Mr Hopkins had emailed the CPS on 22nd 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.” (para 60)[27]As I understand it, the judge was saying that, even if the images in the temporary files could not themselves support the charges, Mr Hopkins was entitled, on the basis of Mr Fouhey’s evidence, and against the background of evidence of deliberate access in the past, to seek the CPS’ view whether more expert advice might reveal something on the computer which could support the charges.

The submissions

[28]Dealing first with the position in June, the submissions before us can be summarised briefly. Mr O’Connor submits that that the judge’s reasons for rejecting Mr Fouhey’s account were clearly flawed. He accepts of course that the judge, having heard the evidence, was in the best position to assess the general credibility of the two key witnesses, but this had to be informed by a proper evaluation of all the relevant material. He makes a number of criticisms of the reasoning in the paragraphs quoted above: i) It was wrong to dismiss Mr Fouhey’s evidence on the grounds that he was “recalling four years after the event” or that there was “no evidence to support his account”. The SID document and the Grundy letter should have been treated as providing significant support for his account, dating from less than a year after the event. ii) The judge’s only reason for dismissing those documents – that they did not clearly relate to events before the charges – was not borne out by a fair reading of them. iii) The judge failed to give adequate weight to the clear statement in the SID document that the possession charges had been included “to give added weight to the incitement charge”. This was indicative of an improper and collateral purpose for bringing the charges, which was consistent with Mr Fouhey’s statement in April 2005. iv) The judge failed to take into account as weighing against Mr Hopkins’ credibility, the fact that, even when he became aware of the significance of the location in December, he failed to pass it on to the CPS or his superiors. The judge’s suggested explanation was not consistent with the note sent by Mr Hopkins at that time. v) Under cross-examination (as show by the transcript) Mr Hopkins’ account of events was unconvincing and contradictory.[29]In response Mr Faulks relies on the claimant’s failure to identify any understandable motive for the alleged deliberate withholding of this information by an experienced officer. There is no dispute that the original arrest and investigation were justified, and the charges were reviewed and approved by the CPS. Mr Fouhey’s evidence that he passed on the information and its significance in June is difficult to reconcile with the fact that he made no written mention of it until December. The SID document and the Grundy letter were largely based on Mr Fouhey’s account, and were not reliable as primary evidence against Mr Hopkins. Although there were mistakes in the police handling of the case, the judge was entitled to attribute these to the workload at the time, and the relative inexperience in such cases of both Mr Hopkins and Mr Fouhey, rather than to malice.

Discussion

[30]I am reluctantly driven to the conclusion that the judge’s reasoning cannot be upheld, substantially for the reasons given by Mr O’Connor. I see the force of Mr Faulks’ submission as to the inherent unlikelihood of an experienced officer suppressing this information, without any apparent motive; particularly where his actions were supervised by the CPS and his superior officers, whose good faith and competence were not impugned. He can also point to a number of inconsistencies in Mr Fouhey’s statements at different times.[31]However, the claimant was entitled to a judgment on the crucial issues based on all the relevant evidence. At the heart of the case was a direct conflict between two witnesses, one an officer and the other an ex-officer, both of whom would normally have been expected to give reliable evidence. The conflict could not, as the judge thought, be avoided simply as a failure of recollection by Mr Fouhey, given the independent evidence of what he was saying as early as April and May 2005. The judge had to grapple with that issue.[32]Nor was it possible, in my view, to dismiss the SID document and the Grundy letter on the basis that they were dealing with events after the charges were laid. The April note from Mr Fouhey is also relevant in this context. I take the three in turn.[33]The April note was not referred to by the judge. It is potentially important, because it shows Mr Fouhey’s immediate reaction to the defence’s claim about the location of the images. It is consistent with his later position that he had been aware of this point from the outset, although it does not say that he had told Mr Hopkins in June; nor does it explain why he did not put this in his first report, or why he thought that formal CJA statement was simply for “Officers review” (whatever that means). It also provides the first suggestion that the possession charges had from the first (“originally”) been intended simply to “support” the incitement charge. It is clear from the context that he is referring to exchanges before the charges were laid.[34]As I have said, the precise genesis or purpose of the SID document is not clear from its contents or other evidence, and there are discrepancies in it, as the judge pointed out. Nor is it clear precisely what part Mr Hopkins played in its preparation. The judge found that he had “a limited input”, but on the critical point he is cited as “agreeing” that Mr Fouhey had told him about the location of the images and its significance. It is true that this conversation is described (in paras 5-6) without a date. It is possible therefore that, whatever Mr Fouhey was saying, Mr Hopkins intended to agree only in relation to what happened in December. However, the context makes that an unlikely reading, since the following paragraph implies that the laying of the charges came later. Although the judge discounted the suggestion that the possession charges were “supportive” only, he ignores the previous statement by Mr Fouhey to the same effect in the April note.[35]The status of the Grundy letter is much clearer. It was a formal response by the defendants’ solicitor to a pre-action letter, written after more than two months, and after enquiries had been “completed”. One is entitled to assume therefore that it was intended as a carefully considered statement of the position viewed from the police point of view. Again the precise extent of Mr Hopkins’s participation is unclear, but it is apparent (if only, from the reference to his “remembering” his relations with Mr Clifford) that he was consulted on at least some issues. The letter must also be read in the context of the complaint, which in respect of Mr Hopkins was not confined to what happened after the charges, but included the suggestion that he had asked for the reference to location to be kept out of the initial report.[36]The passages I have cited record Mr Fouhey’s evidence that he had told Mr Hopkins “verbally” of the location of the files. Although no date is given, the implication is that it preceded the charges, since the following sentence refers to his impression as to what “would be” the charges against Mr Clifford. In the later passage there is a reference to the December statement, but no mention of Mr Hopkins. The following paragraph refers to Mr Hopkins not having passed on “the information given to him by Mr George Fouhey…” Although no date is given, the most natural reading is a reference back to the earlier part of the letter in which the giving of information to Mr Hopkins was described.[37]It is of course dangerous to place too much reliance on a close analysis of raw documents, without the opportunity which the judge had to put them in the context of the evidence as a whole, oral and written. The criticism, however, is that he failed to do this. The analysis I have made is enough, in my view, to show that it was not sufficient to dismiss the documents simply on the basis that “neither says that this was done before the charges”. The natural reading of both is that they were referring to the time before the charges. Furthermore, the Grundy letter, in particular, was a clear indication by the legal adviser acting for both then defendants, following detailed enquiries made within a relatively short time after the events in question, that Mr Fouhey’s account was reliable. The writer of the letter, Mrs Grundy, was in fact in court, and could have been called to explain the letter, if this interpretation was in some way mistaken.[38]We were taken by Mr O’Connor to various parts of the transcript, which in his submission demonstrated that Mr Hopkins’ answers were sometimes confused and contradictory. Certainly they show that, under some strong cross-examination, he was unable to provide a very clear or consistent explanation of the critical events. On the other hand, I can understand why the judge did not regard this as symptomatic of dishonesty. I would be very hesitant to differ from the judge on the basis purely of the extracts we have been shown. It is also noteworthy that, perhaps partly because of the unusual way in which the case developed, the apparent inconsistencies in Mr Fouhey’s evidence do not seem to have been examined with the same rigour.[39]Accordingly I would not wish to draw any firm conclusions from this oral evidence, or indeed to express any view on the likely ultimate outcome of the case. I base my conclusions solely on the failure of the judge to deal adequately with the three documents I have mentioned. This conclusion is sufficient in my view to require the appeal to be allowed.[40]In those circumstances I can deal briefly with the subsidiary allegation about what happened in December. Given the admission that by then Mr Hopkins knew the significance of the location of the images, it is surprising that he did not pass it this on expressly. Even if he thought, as the judge suggested, that there might be reasons for further expert investigation, that is no reason for not immediately drawing attention to the collapse of the evidence on which (on his story) he had so far based his case. It also sits uneasily with the fact that, when the weakness of that evidence was pointed out in April, the decision was immediately made to discontinue the prosecution. However, it is unnecessary to reach a view as to whether the allegations relating to December would have been enough in themselves to support any part of the claim.

Conclusion

[41]For these reasons I would allow the appeal. The point on which the appeal has turned goes to the heart of the issues in the case, including the credibility of the key witnesses. I am therefore driven to the reluctant conclusion that there is no alternative to a retrial, unless the parties as I sincerely hope (through mediation or otherwise) can reach an accommodation out of court.[42]I agree.[43]I also agree.