Stankovic v Chief Constable of the Ministry of Defence Police [2007] EWHC 2608 (QB)

[2007] EWHC 2608 (QB)

Case No HQ0006034

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 09/11/2007

Before

THE HONOURABLE MR. JUSTICE SAUNDERS

Between

Major Milos Vladimir Stankovic MBEClaimant

Chief ConstableDefendant

of the Ministry of Defence PoliceDefendant

Augustus Ullstein QC and John Tonna (instructed by Barker Gillette) for Claimant

Jonathan Crow QC, Angus McCullough and Miss Sarah Whitehouse (instructed by The Treasury Solicitor) for Defendant

Hearing Hearing dates: 22 nd October 2007 to 2 nd November 2007

(Did not sit on 1 st November 2007)

Judgment

The Hon. Mr. Justice Saunders:

[1]On 16th October 1997 at 8.26am, Major Stankovic (the Claimant) was arrested on suspicion of committing offences contrary to the Official Secrets Act 1989. He was at the time, a student on the Advanced Command Staff Course at the Joint Services Command and Staff College at Bracknell, and it was at the college that he was arrested.

[2]The Claimant was notified by the Crown Prosecution Service on 23rd April 1999, that the results of the police enquiry did not justify prosecution. The Army Legal Service then carried out an investigation to see whether offences against Army regulations had been committed. On 10th March 2000, the Army Legal Services told the Claimant that no proceedings would be taken against him.

[3]A police investigation lasting 2½ years (it started 12 months or so before the Claimant’s arrest) ended with no charges of any sort being preferred.

[4]The Claimant remained as he always had been, an innocent man, but the effect on him of the investigation was serious. His attendance on the Advanced Command Staff Course was terminated, and his security vetting status was suspended. Rumours, no doubt, abounded about the Claimant and there are many people who believe, albeit irrationally, that ‘there is no smoke without fire’.

[5]Faced with this situation, the Claimant concluded there was no chance that he would be able to have a worthwhile career in the Army and resigned.

[6]Arising out of these events, the Claimant has brought this action against the Chief Constable of the Ministry of Defence Police, claiming damages for, false imprisonment, malicious prosecution, misfeasance in public office, negligence, and trespass. This judgment deals only with liability.

[7]Looked at objectively, there is no doubt that what has happened to the Claimant has been unfair and the consequences serious. That does not, of course, necessarily mean that the tortious conduct alleged against the Defendant is made out. Background.

[8]The Claimant is a British Citizen. His father was born a Serb; but came to Great Britain in 1947 and became a British Citizen in 1985. His mother was of Serbian and Scottish descent. The Claimant was educated in England, and joined the Army in 1981.

[9]He had a successful career in the Army. He had two tours of duty in Bosnia with the British Army contingent serving with the U.N. Protection Forces (UNPROFOR): from 29th December 1992 to 13th November 1993 and from about 24th June 1994 to 22nd April 1995. He was awarded the MBE for the way in which he performed his duties on his first tour and was promoted to the rank of Major on 1st October 1994. It is not disputed that on a number of occasions Major Stankovic showed considerable heroism in carrying out humanitarian acts in Bosnia which had to be conducted in secrecy. These included the rescue of a Muslim woman at considerable risk to himself and he was involved in an operation called ‘Schindler’s List’ which re-united Bosnians with their families.

[10]Having returned from Bosnia in April 1995, he served with the Parachute Regiment before starting the Advanced Command Staff Course in December 1996 and was undertaking phase 2 of that course at the time of his arrest.

Bosnia

[11]The origins of Major Stankovic’s arrest come from his period of duty in Bosnia with UNPROFOR. UNPROFOR was a peacekeeping force whose aim was to prevent the three parties to the conflict from fighting and to provide humanitarian aid. It was a non-belligerent force. There was a separate NATO force which could be called upon by UNPROFOR if required, but otherwise the NATO force and UNPROFOR were independent of each other.

[12]The job of UNPROFOR was extremely demanding. The conflicting parties were suspicious and wary of the peacekeeping force. Major Stankovic spoke Serbo-Croat and his job initially in Bosnia was as an interpreter, but his principal role changed when he served under General Sir Michael Rose from June 1994 to January 1995.

[13]General Rose sought to establish and maintain good relationships with the conflicting parties. Both General Rose and Major Stankovic considered his skills as an interpreter to be limited; so his principal job then became as liaison between General Rose and the Bosnian Serb leadership. In this job he built up links not only with the Bosnian Serb Liaison Officer Major Indzic, but also the Bosnian Serb leaders: in particular Radovan Karadzic, their Political leader; General Mladic, the Military Commander; and Jovan Zametica, a political advisor to Karadzic. The Serb leadership were based in Pale while the U.N. Headquarters was in Sarajevo. The Claimant was a frequent visitor to Pale carrying messages to and from the Serbs and General Rose. Most often on these visits, he was accompanied by one of the Joint Commission Observers (JCOs), who were army officers attached to UNPROFOR and gathered intelligence for General Rose and others. Normally Major Stankovic was accompanied by Soldier ‘A’, who gave evidence before me.

[14]Soldier ‘A’ in his evidence paid tribute to the skill and dedication with which Major Stankovic carried out his duties. On 31st December 2004 a peace agreement was signed between the parties to the conflict, known as ‘the Dayton Agreement’. In the lead up to that agreement, Major Stankovic’s role became critical. General Rose in his evidence, which was not disputed, said, “during the intensive negotiations at the end of 1994 between the Bosnian Government and the Bosnian Serbs, Major Stankovic, who was deployed to Pale where he remained for some time with a UN communication team, played an important part in communicating the latest changes in position of the Bosnian Government and advising the UN Headquarters in Sarajevo of the reactions of the Pale Serb leadership. The negotiations culminated in the signing of a four month cessation of hostilities agreement between the warring parties.”

[15]The job that Major Stankovic did, carried with it considerable risks. He operated under the pseudonym of ‘Mike Stanley’. The use of his true name would have revealed his Serb ancestry and put his personal safety at risk. In January 1995, just prior to General Rose’s departure, the Claimant was issued with a passport in the name of ‘Mike Stanley’. He also had a number of identity cards in different names.

[16]Major Stankovic’s close association with the Serb leadership led to a growing belief that he was pro-Serb. This belief was held by Bosnian Muslims who were in conflict with the Bosnian Serbs. This belief was also held by some of those working for NATO, particularly the Americans, and some parts of the Press. The atmosphere of suspicion that existed in Bosnia at the time was intense and made the spread of such rumours inevitable. It was a short step from a belief that Major Stankovic was pro-Serb to a suspicion that he was supplying information to the Serbs which they should not have.

[17]These suspicions may have been heightened because many people did not understand the true nature of Major Stankovic’s role. He was not simply a conduit for messages back and forth. He also provided useful intelligence to General Rose and the JCO’s. This intelligence would involve what the Serb leadership really thought or intended to do rather than what they were saying openly. He would also seek to cajole the Serbs into complying with UNPROFOR requests or demands. He had to pacify the Serbs when they believed that UNPROFOR was acting in a pro-Muslim manner. In order to achieve these objectives, Major Stankovic has told me that he would from time to time supply dis-information to the Serbs. Sometimes, this was information which, if true, would have been confidential and should not have been disclosed.

[18]Suspicions about Major Stankovic and his relationships with the Bosnian Serbs were held by some officials holding senior positions in Bosnia. For example, Dr. Williams, an American who was a senior political adviser to Mr. Akashi,the head of the United Nations Mission in the former Republic of Yugoslavia, thought he was too close to Mladic, and was on ‘the side’ of the Serb leadership. Major Stankovic believed, probably correctly, that these suspicions were also shared by some British soldiers, no doubt because they did not fully understand his role.

[19]By June 1995 the Security Service suspected that Major Stankovic had passed sensitive information to the Bosnian Serbs. They began an investigation which included making a covert search of Major Stankovic’s house. By October 1996 the Security Service felt they had taken their enquiries as far as they could and in order to bring them to a conclusion, they decided to invite the M.O.D. Police to carry out an investigation.

[20]The police agreed to do so and in October 1996 they began their investigation. It is the conduct of that investigation that is the subject of this claim; both the steps which were taken to pursue the investigation and the manner of the investigation are criticised. To evaluate these criticisms, it is necessary for me to try and put myself in the position the police were in, in 1996, 1997 and 1998; and to ascertain what information they had at each step of the enquiry.

[21]I have been faced with several difficulties in doing that. First, the events I am examining took place 10 years ago. Inevitably memories fade over that period of time. The Senior Investigating Officer (SIO), Detective Chief Superintendent Anderson retired some time ago and is now in such poor health that he could not appear as a witness and no statement had been taken from him. Detective Chief Inspector Love, who was his number two in carrying out the enquiry, has also retired and clearly had great difficulty in remembering the details of events. To a large extent this difficulty has been obviated by the existence of many contemporaneous documents which record meetings involving the Security Service, the Ministry of Defence, the Crown Prosecution Service (CPS) and the M.O.D. Police. Throughout the course of the investigation the police referred to the CPS for legal advice; to discuss the progress of the enquiry, and what steps should be taken. These documents have been of great assistance in re-constructing the course of the enquiry.

[22]The second difficulty has been less easy to overcome. The Security Service was reluctant to give the M.O.D. Police any of the information on which their suspicions were based. Briefing notes supplied to the Police at the outset of the enquiry were heavily redacted. The police found it difficult to progress the enquiry with the limited information that they had, and some information which had previously been withheld was disclosed by the Security Service. It could never have been used as admissible evidence in any trial but it was helpful background. Most of that information, while it was disclosed to the police at the time has been withheld from the Claimant. He does not know the basis of the suspicion which led the Security Services to begin their investigations.

[23]Before the hearing of the action began, application was made to me to order the Defendant to disclose the redacted parts of the documents. The Defendant claimed Public Interest Immunity (P.I.I.). The original intention was that I should read the un-redacted documents and decide whether they should be disclosed. I was very reluctant to do this. I did not want to see information which might not be shown to the Claimant. It was made clear that the Defendant would not seek to rely on any matters which were not disclosed to the Claimant, as being within the knowledge of the police and justifying decisions and actions taken in the course of the enquiry.

[24]The Defendant was of course well aware of his obligation to put before me any matter which might assist the Claimant’s case or undermine the Defendant’s case even though the information was covered by P.I.I.

[25]When these matters were made clear to the Claimant, it was accepted that it was both unnecessary and undesirable for me to see any of the redacted parts of the documents as I was not being asked to carry out any balancing exercise to decide whether the interests of justice required disclosure not withstanding the claim to P.I.I. It follows that I am not aware of any matter of fact which affected the police officers’ minds which is not known to the Claimant. That is not only desirable from the viewpoint of objective fairness but it also means that I will not have to indulge in the mental gymnastics of considering information for one purpose and then ignoring it for another.

[26]In the interests of national security, a number of witnesses have not been identified in court by name. The Claimant and his legal advisors have fully co-operated in that. The true identities of all except one of them are known to the Claimant. The one exception is an officer of the Security Service who has been known throughout the case as ‘Witness A’ and who gave evidence from behind a screen. Her true identity is not known to the Claimant or to me. No-one has suggested that it is necessary for this Officer’s identity to be revealed in order to do justice to the case. The Claim.

[27]The essence of the Claimant’s case is that the Defendant acted maliciously throughout. The pleadings allege that the investigation was begun and pursued by the officers involved without any reasonably held suspicion that the Claimant had committed any offence. The motivation driving the inquiry was not, it is alleged, to secure the ends of justice but to harm the Claimant.

[28]It is necessary to consider at various stages of the inquiry what the police knew and whether that justified their conduct of the inquiry at the various different stages. There are different stages of the inquiry identified by the Claimant which need to be considered:- i) The beginning of the police investigation in October 1996. ii) The application for search warrants on 14th October 1997. iii) The execution of the search warrants on 16th October 1997. iv) The arrest and first interview of the Claimant on 16th October 1997. v) The conduct of the investigation between 16th October 1997 and the re-arrest and further interview on 28th October 1998. vi) The conduct of the second interview on 28th October 1998. vii) The content of the police report prepared for the consideration of the CPS in late 1998 and the police’s behaviour in relation to the Army investigation.

[29]The beginning of the police investigation. Evidence as to this was given by Walter Boreham, the Chief Constable of the Ministry of Defence Police at the time; Arthur Rucker who was the Assistant Under-Secretary at the Ministry of Defence with responsibility for security; ‘Witness A’ who dealt with this matter for the Security Services, and Mr. Love, the Detective Chief Inspector who was the assistant to Detective Chief Superintendent Anderson for the purpose of the inquiry. The Claimant, of course, can give no evidence to contradict what these witnesses have said, but does invite me to draw inferences adverse to the Defendant from the evidence I have heard. All the witnesses except ‘Witness A’ had difficulty in recollection, and Mr. Love’s memory of the events in particular was not good. However, there are sufficient contemporaneous documents to enable the events to be re-constructed. There is no basis for doubting the accuracy of the evidence given by the witnesses and I accept it, based, as it is, almost entirely on briefing notes and notes of meetings which were made contemporaneously.

[30]The Security Service investigation had gone as far as it could by October 1996. The Ministry of Defence had been aware of and had been briefed as to the Security Service investigation from the outset. Both the Security Service and the Ministry of Defence were keen to conclude the investigation. They decided that could only be done by a search of the Claimant’s property. This could only be done overtly by the police. A covert search carried out by the Security Service had revealed that there were a large number of documents at the Claimant’s house which emanated from the Army in Bosnia; some of which, at least, were confidential. The inference was that Major Stankovic had brought these documents back from Bosnia.

[31]The covert search, I am told, was restricted in extent because of its covert nature but a document was seen which without explanation could support the intelligence the Security Service had that the Claimant had passed confidential information to the Serbs. It was a page in a notebook on the reverse side of a note of a meeting held at Pale on 12th September 1994 involving General Rose and Karadzic amongst others. The note of the meeting was in English and written by the Claimant, the note on the reverse side was written in Serbo-Croat. It appeared on its face to contain secret information about a proposed NATO air-strike which had been abandoned. As it was written in Serbo-Croat, a possible inference was that it was being communicated to one of the Serb leadership secretly at the meeting. (See Bundle 13 pp. 1279/1280 and the translation at Bundle 13 p. 1401). Also seen in the covert search was a diary kept by Major Stankovic and an entry for 11th September 1994, the day before the meeting appeared to record that he had received information about proposed NATO air-strikes on that day.

[32]Neither the information received by the Security Service nor the results of the covert search would be admissible in any criminal prosecution. A proper search was needed to see exactly what documentation there was; what was contained in it, and in particular, whether there was any other material which might support the intelligence that the Security Service had. For this purpose a police investigation was required and in particular an overt search.

[33]As I have already explained, no-one is suggesting with the benefit of explanations provided by Major Stankovic later that he actually supplied secret information to the Serbs but I am concerned with the state of mind of the people involved in starting this investigation, at the time it started. Major Stankovic has told me that at the end of his second tour of duty in Bosnia, he decided, of his own initiative, to clear his desk and office of any documents kept by him or his predecessors and bring it back to England. He did so believing he was to be extensively de-briefed by the Secret Intelligence Service (S.I.S.). In the event, no S.I.S. de-brief took place. He was eventually de-briefed by a member of the Defence De-Briefing Team (Lieutenant Commander Newby-Grant) in October 1995. That de-briefing Major Stankovic describes as completely inadequate but he says he told Newby-Grant of the documents he had brought back. There is no evidence to contradict that assertion and I accept that it was said. Mr. Rucker tells me that this was never reported back to him. It does not appear in any contemporaneous record and I have no reason to doubt what Mr. Rucker says. That explanation for possession of the documents was not known to the police at the commencement of their investigations.

[34]On 14th December 1995, the Claimant was interviewed by Major Cook about his time in Bosnia but particularly about his contacts with the Serb leadership after his return from Bosnia. He was seen again by Major Cook on 4th January when he was handed a letter. I will have to return to these meetings later in a different context but the Claimant asserts that on 4th January 1996, he told Major Cook of the documents he had at his house. There is no direct evidence to contradict this assertion but the fact of the possession of documents was not mentioned in the interview on 16th December 1995, which was recorded. It is not mentioned by Major Cook in his statement to the police nor is it recorded in any note of the police briefings in October 1996 in which Major Cook took part. In the absence of direct evidence to the contrary, I accept that Major Stankovic did indeed mention the documents to Major Cook at the meeting in January 1996, but equally there is no evidence that Major Cook reported that conversation to Mr. Rucker or the M.O.D. Police. Major Cook did brief the police on 23rd October 1996. Notes were made of that meeting by D.C.I. Love (Bundle 3 p.104) but there is no reference to the Claimant telling Major Cook that he had documents at his house that he had retained from his time in Bosnia for the purpose of the de-brief.

[35]As to the documents seen in the covert search by the Security Service, explanations have now been given by Major Stankovic which resulted in no prosecution taking place.

[36]As at October 1996, however, the explanation for bringing the documents back from Bosnia, and the explanation for the documents examined in the covert search were not known to the Security Service or the M.O.D.

[37]The Security Service also had information, that after Major Stankovic had returned to England in April 1995, he had been in touch with members of the Bosnian Serb leadership including General Mladic and Jovan Zametica. In January 1996 he was given an order to cease making contact himself and if they should contact him to report the contacts to Major Cook. He did have further contact despite the direct order.

[38]The Security Service were concerned about these contacts, for which there seemed no justification. Since his return from Bosnia, Major Stankovic did not have access, in the course of his duties, to secret information relating to Bosnia, but he did have contact with people who did; in particular Major Lowther-Pinkerton who worked within the Directorate of Military Operations with special responsibility for the former Yugoslavia. The Security Service in the light of the other intelligence they had, were concerned that he might be supplying secret information to the Serb leadership, picked up from his contacts.

[39]Because these continued contacts are significant to this case as a whole, I will deal with them in a little more detail at this stage. Major Lowther-Pinkerton and Major Stankovic are close friends. Major Lowther-Pinkerton commanded the JCOs in Bosnia for a time and admired the way in which the Claimant did his job. The close friendship which developed continued after they had both returned to England. In early December 1995 they had dinner together at Major Lowther-Pinkerton’s home. As no doubt frequently happened, they discussed Bosnia. During the course of dinner and probably as something of an intoxicated prank, the Claimant rang General Mladic on Major Lowther-Pinkerton’s phone. Largely because of concerns that the authorities would get to know and suspicion would fall on Major Lowther-Pinkerton, this contact was reported to Major Lowther-Pinkerton’s superiors. As a direct result of that report, on 14th December 1995, Major Cook had his first interview with the Claimant. They discussed his contacts with General Mladic and Zametica. The Claimant told Major Cook that he maintained these contacts because he believed they might be of use to the British effort in Bosnia. The Claimant proposed that he should maintain and exploit these contacts for the benefit of the military. Major Cook advised him to cease all contacts. On 3rd January 1996, Captain Kelly, the Director of Security (Policy) wrote to Major Stankovic a letter, which was hand delivered by Major Cook on 4th January. The relevant part of this letter (Bundle 11 p.73) read as follows:

“You mentioned to Major Cook that it might be possible to exploit further some of the liaison contacts which you established while you were in Bosnia. We have given some thought to this proposal and are aware of the continuing difficulties that you face. However, having taken advice at the highest levels within the DIS and with others, we have concluded that you should not initiate any further contact with the Bosnian leadership or any of their representatives and that if any should attempt to make further contact with you, you should report the circumstances without delay to Major Cook .”

This was reinforced by a letter from Brigadier Trigger from the Intelligence/Security Section at Headquarters Land Command. The relevant parts of that letter read, “My main purpose in writing to you now is to reinforce and to complement what D Scy (Pol) has said. Particularly, in your own interest, it is essential that you do not originate any linkage with Bosnian figures – especially with Bosnian Serb leaders. Equally, if they get in touch with you, do not encourage that, or further contact. (I do not include purely social discourse, but I think that it is virtually impossible to keep an exchange to social matters, once it has started …………… . Finally, I must stress that my main purpose in writing is to add my personal advice to D Scy (Pol)’s letter. I do not question the contents thereof, and you must abide by its instruction.”

[40]There was nothing ambiguous about this order and Major Lowther-Pinkerton was told of the order by Major Stankovic.

[41]In March 1996, Zametica rang Major Stankovic and they met in London. Neither the call nor the meeting were reported to Major Cook by the Claimant. His explanation was that his father died the day after the meeting; nothing significant emerged at the meeting and he simply forgot to report it to Major Cook. He did however tell Major Lowther-Pinkerton. The Security Service were aware of this contact between Zametica and the Claimant and were aware that he had not reported it.

[42]On 10th August 1996, Zametica contacted the Claimant by telephone. This was reported to Major Cook by Major Stankovic on 22nd August 1996 at a meeting. This meeting was recorded, although the Claimant was unaware of this (Bundle 14 p. 1873). Major Stankovic explained that Zametica’s call was purely social and nothing of interest was said by him. The Claimant did say in the course of that interview with Major Cook that he hadn’t spoken to Zametica for well over a year. This was not accurate; he had met up with Zametica five months before. No doubt the reason for this inaccuracy was a lapse of memory by Major Stankovic caused by the meeting being followed so closely by his father’s death, but it can only have heightened suspicion.

[43]The Security Service also had information that the Claimant was due to receive a medal from the Bosnian Serbs. This medal was in fact an award for Major Stankovic’s humanitarian effort and although the Security Service seemed to believe that there could have been two medals, I do not know the basis for this belief and I ignore it.

[44]On the information they had, in my judgment, the Security Service and the Ministry of Defence were perfectly entitled to ask the police to investigate Major Stankovic’s conduct both in Bosnia and in England. The suspicions that the Security Service had, which they conveyed to the Ministry of Defence and the M.O.D. Police, justified an investigation being commenced. The M.O.D. Police in the circumstances had no alternative but to commence that investigation. The decision to commence the investigation was made by the Chief Constable. In the Particulars of Claim, it is alleged that the investigation was initiated maliciously and without reasonable and probable cause. Those allegations are not supported by the evidence and there is no evidence that the investigation was commenced with any other intention than to establish whether there was any truth in the allegations.

[45]Evidence became available near the end of a trial in the form of a memo (Bundle 6 pp. 321/322) dated 12th March 1997, which reveals that the Security Service did not expect an Official Secrets Act prosecution to result from the police investigation. It cannot be properly inferred from that, that an investigation should never have started.

[46]Investigation from October 1996 to October 1997. Detective Chief Superintendent Anderson was appointed by the Chief Constable as the S.I.O. and D.C.I. Love was appointed to assist him. A course of action for the inquiry was agreed. At the end of the police investigation, if there was sufficient evidence to justify prosecution, then that would be conducted by the civil authorities. If insufficient evidence was found, then the matter would be handed over to the Army to consider whether there were offences against Army Discipline. A number of briefings of the police occurred in October by ‘Witness A’ as to what the Security Service were able to tell them and by Major Cook as to what had been said in the interview that he had conducted with Major Stankovic.

[47]The start of the inquiry was slow. The Security Service were reluctant to disclose any more information to the police than was necessary but they did tell the police: a) That they had intelligence that Major Stankovic supplied secret information to the Serbs in Bosnia. b) That there had been a covert search of Major Stankovic’s house which revealed that he was holding confidential information from Bosnia. c) The nature of the particular document seen in the covert search and the diary entry to which I have already referred. d) Major Stankovic’s continued contact with members of the Bosnian Serb leadership after his return to England. e) His association with people who still had access to confidential information about Bosnia. f) His meeting with Zametica in March 1996 in contravention of the order of Captain Kelly which was not reported to Major Cook by Major Stankovic. g) The belief that the Serbs had given Major Stankovic a medal.

[48]Detective Chief Superintendent Anderson was given further information by the Security Service which has not been revealed either to me or to the Claimant, so I ignore it for the reasons already given.

[49]Apart from the difficulty for Detective Chief Superintendent Anderson in getting fuller information from the Security Service, the M.O.D. refused, at first, to allow the police to rely on the contents of the interview between Major Cook and Major Stankovic. As that would be likely to form a significant part of any police interview, it was important for the police that the Ministry of Defence changed its mind. A number of meetings were held about that. It seems they did change their mind but it is impossible to say when.

[50]The C.P.S. were involved in the investigation from November 1996. They were there to advise the police as to the mechanics and legalities of the way in which the investigation was to be progressed. At an early stage it had been agreed that a search warrant should be applied for and it was decided by Detective Chief Superintendent Anderson that Major Stankovic should be arrested to coincide with the search. To obtain a search warrant, certain procedures had to be carried out. There were Codes of Practice made under the Police and Criminal Evidence Act 1984, which identify steps which must be taken by the police before applying. These had to be complied with. Evidence had to be given to the Magistrate to justify the issue of the warrant and the police were under a duty to ensure that the Magistrate was ‘fully and properly informed’ (see R (Da Costa) -v- Thames Magistrates Court [2002] S.T.C. 267). In addition there were issues as to what could be said to the Custody Officer who needed to be satisfied that Major Stankovic’s detention was lawful. The Security Service were not keen for their intelligence to be used. Although the role of the C.P.S. at this stage was only to advise and assist the police, the fact of their involvement makes it less likely that the investigation was being conducted improperly as is alleged by the Claimant. I heard evidence from Dru Sharpling, who is now the Chief Crown Prosecutor for London. At the time of this inquiry she was the Chief Crown Prosecutor (Central Casework). Although she was not involved in many of the meetings, her department dealt with the case. She was kept informed of developments and attended a critical meeting on 26th August 1997 with the M.O.D. Police and the Security Service. She was an impressive witness and I am satisfied she would not knowingly have allowed the police to mishandle the inquiry or conduct it improperly.

[51]What did happen between the police beginning their investigation and the application for the search warrant was that Major Stankovic made further calls to Zametica. He made calls on 11th January and 18th January 1997 and a further two calls on 20th June 1997. These calls were made in defiance of Captain Kelly’s order and were not reported to Major Cook.

[52]Major Stankovic’s explanation for this was that he had decided that it was in the Army’s interest that he should maintain these contacts and as Major Cook did not seem, from the conversation they had in August 1996, to be interested, he told Major Lowther-Pinkerton instead, knowing that he would pass the information up the chain of command.

[53]I am satisfied that Major Stankovic had decided that the refusal of the Army Security to allow him to maintain his contacts with the Serbian leadership was a mistake. He therefore passed any useful information he got to Major Lowther-Pinkerton. If Major Lowther-Pinkerton thought the information was worthwhile he would pass it on to his superiors. Major Stankovic did not tell Major Lowther-Pinkerton of the contacts as a substitute for reporting to Major Cook. He knew perfectly well that if he told Major Cook, he would get into serious trouble. This was his way of making sure that the Army did not lose the benefit of information which he could obtain through his contacts. He may have been right, and what he did may have ultimately been for the Army’s benefit but when the M.O.D. Police heard of the contacts and the failure to report them to Major Cook, it justifiably increased their suspicions.

[54]Although the police were able to obtain through British Telecom, details of the telephone numbers to which the calls were made, they had no useable evidence that that was Zametica’s number. To start with the Security Service was going to obtain that evidence, then it was going to be the Foreign and Commonwealth Office. They then did not want to get involved. A statement was finally obtained from Charles Crawford, the British Ambassador to Bosnia and Herzegovina on 5th August 1997. That dealt with Zametica’s position in relation to Karadzic and also recorded his telephone number. This all took an unnecessary amount of time.

[55]That information having been received, a conference between the C.P.S., represented by Dru Sharpling and Andrew Faiers, the Senior Crown Prosecutor dealing with the matter on a day to day basis; Detective Chief Superintendent Anderson and Detective Chief Inspector Love for the police and ‘Witness A’ for the Security Service took place on 25th August 1997. A note of that meeting is to be found at Bundle 2 p. 169. Most of the note (paras. 1 to 4 inclusive) deals with the difficulties any prosecution would face in getting a conviction for an offence under Section 2 (2)(b) of the Official Secrets Act 1989. The Prosecution would have to prove that Major Stankovic as a Crown Servant without lawful authority made a damaging disclosure of any information, documents or other article relating to defence which is or has been in his possession by virtue of his position as a Crown Servant. Subsection (2) defines what is a damaging disclosure, and under (b) a disclosure is damaging if it endangers the interests of the U.K. abroad, seriously obstructs the promotion or protection by the U.K. of those interests or endangers the safety of British citizens abroad. Difficulties were envisaged in proving what information was passed to whom in Bosnia and in proving that information was passed during the telephone calls from England.

[56]Paragraph 5 of the note recorded the gist of a discussion about the obtaining of a search warrant. The C.P.S. made it clear that a warrant would have to be obtained under section 9 of the Official Secrets Act 1911 and that could only be obtained on suspicion of an offence under section 2 of the Official Secrets Act 1989. It could not be obtained on suspicion of an offence under section 8 which is a summary offence of wrongly retaining confidential documents.

[57]To obtain a search warrant, it was necessary to provide an Information which was to be confirmed by Detective Chief Inspector Love on oath. This Information was drafted by Detective Chief Inspector Love but the contents were approved by both the C.P.S. and the Security Service. The C.P.S. would be advising whether it complied with the Act and the Codes of Practice, while the concerns of the Security Service were to ensure that nothing was revealed to the Magistrate which should not be, bearing in mind that at any subsequent trial, the Information would have to be disclosed to the Defence if the legality of the search was put in issue.

[58]On 14th October 1997, a successful application was made to a Magistrate at Bow Street Magistrates Court for two search warrants under section 9 of the Official Secrets Act 1911, authorising searches of the Claimant’s home in Farnham and his room at the Staff College. The evidence put forward to justify the grant of the search warrants was information on oath given by Detective Chief Inspector Love.

[59]The information is to be found in Bundle 3 p. 229. It deals accurately, if briefly with the background of Major Stankovic’s service in Bosnia and the development of the relationship with Karadzic and Mladic. It records the suspicion, based on the documents seen in the covert search, that on at least one occasion during meetings he conveyed information in Serbo-Croat to the Bosnian Serbs. His continued contact with the Serb leadership despite the order of Major Cook is recorded. At paragraph 11 it is asserted that as a British Army Officer, Major Stankovic was still in a position ‘to sequestrate or attempt to sequestrate sensitive information’.

[60]Apart from the odd use of the word ‘sequestrate’, it was not, on the evidence I have heard, his position as a British Army Officer which might enable him to gain sensitive information, but rather the contacts and friends he had gained through his service in the Army or new contacts he was in a position to make.

[61]On the basis of that information, the Magistrate was satisfied in accordance with section 9 of the Official Secrets Act 1911, that there were reasonable grounds for suspecting that an offence/offences had been committed and that there were reasonable grounds for suspecting that evidence of those offences would be found at his house and room.

[62]It is alleged by the Claimant that the search warrant was maliciously procured. In Gibbs -v- Rea

[1998] AC 786

, the Privy Council decided that the malicious procuring of a search warrant was an actionable wrong. At p.797 they set out what has to be proved: 1) That the Defendant made a successful application for a search warrant. 2) That the Defendant lacked any belief that he was placing before the issuing Judge material sufficient to meet the conditions for issue of the warrant sought (I have omitted the words ‘bona fide’ as qualifying the belief because it does not seem to me to add anything). 3) That the Defendant acted with malice, which encapsulates acting because of an improper motive. I will not deal with the element of damage.

[63]The pleaded allegations in support of this claim by the Claimant are pitched extremely high. Sensibly at trial, a more reasoned approach was adopted. The Claimant’s case on the application for a search warrant at trial was: 1) There was no basis for reasonable suspicion that disclosure coming within the terms of section 2 of the Official Secrets Act 1989 had been made because: a) The Claimant never had access to secret information in Bosnia, the disclosure of which ‘could endanger the interests of the U.K. abroad, or seriously obstruct the promotion or protection by the U.K. of their interests’. b) There was no evidence that any disclosure had in fact been made by the Claimant in Bosnia. c) The investigation between October 1996 and 1997 had revealed nothing to support such an allegation. d) There was no evidence that since he returned to England the Claimant had in fact acquired any sensitive information which he could have passed on. 2) Even if there were grounds for such suspicions, that was rebutted by what they knew of the Claimant’s character. 3) An application for a search warrant and in particular its execution is a draconian measure and the aim of the search warrant could have been achieved simply by asking the Claimant to hand over the documentation.

[64]The test laid down in section 9 of the Official Secrets Act 1911 for the issue of a search warrant is ‘reasonable ground for suspecting that an offence under this Act has been …….. committed’. Those reasonable grounds for suspicion do not have to be based on evidence that would be admissible in a Court. Paragraph 2 of the relevant Code of Practice made under the Police and Criminal Evidence Act 1984 makes it clear that an application for a search warrant may not be made on the basis of information from an anonymous source where corroboration has not been sought. The intelligence provided to the Security Service and passed onto the police came from an anonymous source. It could provide part of the basis on which reasonable grounds for suspicion could be founded but corroboration had to be sought. Here there was, in my judgment, further information to support that intelligence namely: 1) The results of the covert search, i.e. the finding of documents in the Claimant’s house which he should not have had and the specific nature of the document identified by ‘Witness A’ and the diary entry to which I have already referred. In the absence of explanation, finding that document would provide evidence of an Official Secrets Act offence. 2) The continued contact with members of the Serbo-Croat leadership despite the direct order which was given. It has been accepted by Detective Chief Inspector Love, that he did not believe that a search would reveal anything which would be evidence of disclosure, made after the Claimant’s return to England in 1995.

[65]Although the investigation between October 1996 and October 1997 had produced little, the telephone calls to Zametica in January and July 1997 were matters to which the police were entitled to attach significance. It had already been agreed in October 1996, that the next step for the police was to carry out an overt search and it was unlikely the investigation would make significant progress until that happened. The police spent the time trying to get their information in a form which could be put before a Magistrate.

[66]I do not accept it is correct to say that Major Stankovic did not have access to material which if disclosed would be an offence contrary to section 2 of the Official Secrets Act 1989. It is correct that UNPROFOR was a peacekeeping and mediating force and did not as a matter of course have secret information, but from time to time it did. General Rose was able to call up NATO air-strikes and would be aware of both the location and the timing of any strikes. Sometimes Major Stankovic had access to that information. Furthermore, he would have had details of negotiations between UNPROFOR and the Muslim-Croats, which if disclosed to the Serbs could affect the outcome of the negotiations, and certainly make it more difficult for General Rose to carry out his work successfully.

[67]While no doubt a police officer ought to take into account the character of the person they are investigating, the weight to be attached to that character will depend on the nature of the suspected crime and the circumstances. It will normally be the case that a person who is in a position to hand over confidential information, will be somebody who is trusted. Otherwise he would not be in possession of the information. This is not a case where knowledge of the character of the suspect could have or should have displaced the police’s suspicion.

[68]Similarly, I do not consider it is realistic to argue that the police should have asked Major Stankovic to hand over the documents and not sought a search warrant. With the benefit of hindsight, I am satisfied that if asked, Major Stankovic would have handed over everything he had, but the police were not in that position in October 1997. They, on my findings, had reasonable grounds to suspect that an offence contrary to section 2 of the Official Secrets Act 1989 had been committed and had been committed by Major Stankovic. If those suspicions had turned out to be correct, it would at the very least have been an unacceptable risk to ask Major Stankovic to hand over evidence which might convict him, and thereby given him the opportunity to dispose of it.

[69]Although I think criticisms can properly be made of the wording of paragraph 11 of the Information, these criticisms in my judgment do not begin to lead to a conclusion that Detective Chief Inspector Love was deliberately trying to mislead the Magistrate. A conclusion that he was not acting maliciously is strengthened by the involvement of the C.P.S. Not only did they approve the wording of the Information, they were also satisfied that the police were entitled in law to seek a search warrant. In Reynolds -v- Metropolitan Police Commissioner 1985 1 QB 881 at p. 892 D-F, Slade LJ accepted that the fact of C.P.S. advice and approval for the obtaining of a search warrant was relevant to negating malice even though the function of the C.P.S. at that stage of the inquiry was only advisory.

[70]I am satisfied that the application for the search warrant was properly and lawfully made and not made for an improper reason. It follows that the claim for malicious process in relation to this part of the claim must fail.

[71]Arrest. The Claimant was arrested at 8.26am on 16th October 1997. He was not interviewed until 7.43pm and was released on bail at 8.30pm. In order to lawfully arrest Major Stankovic, the police had to suspect on reasonable grounds: 1) That an offence contrary to the Official Secrets Act 1989 had been committed, and, 2) That this offence had been committed by Major Stankovic. Once a person is arrested he is taken before the Custody Officer. The details of, and the reason for the arrest must be outlined in front of the person who has been arrested. The Custody Office has to be satisfied as to the reason for the arrest, and the need for the suspect to be detained. The difficulty in this case for the police, was how much of their information they could disclose to the Custody Officer, bearing in mind it would have to be disclosed also to Major Stankovic. No doubt for tactical reasons, it was decided to arrest on suspicion of unauthorised disclosures of information after Major Stankovic had returned to England. The Custody Officer was told that that suspicion was based on the fact that Major Stankovic had retained contact with representatives of the Bosnian-Serb leadership in contravention of a direct order not to contact them. For reasons of national security, no mention was made to the Custody Officer of the intelligence obtained from the Security Service or the results of their covert search. In the event the Custody Officer was satisfied that the arrest was lawful and the detention justified, both to interview, and to preserve evidence.

[72]Similar allegations are made by the Claimant about his arrest as were made in relation to the obtaining of the search warrant. In essence these allegations are that the police had no reasonable grounds to suspect that offences had been committed by Major Stankovic and were acting oppressively in arresting Major Stankovic. The Claimant was detained for about 12 hours before being bailed. As it is alleged there was no legal justification for the arrest, this would amount to false imprisonment.

[73]The Defendant accepts that, if there was no legal justification for the arrest, then this was false imprisonment. They also accept that it is for them to satisfy me on the balance of probabilities that the arrest was lawful.

[74]While the decision to arrest was made by the police, the C.P.S. discussed the matter with them and advised. For the reasons I have already given in relation to the search, I am entirely satisfied that the police suspected that an offence contrary to section 2 of the Official Secrets Act 1989 had been committed by Major Stankovic and had reasonable grounds for that suspicion. They were accordingly entitled to arrest and to detain.

[75]I am also satisfied that the police suspected on reasonable grounds that the reason for the telephone calls to Zametica in January and June 1997, might have been to disclose sensitive information. He had after all, rung him in defiance of a direct order.

[76]It was suggested on the Claimant’s behalf that the police should not have arrested Major Stankovic, but should have invited him to attend voluntarily at a police station to answer questions. With the benefit of hindsight no doubt Major Stankovic, as an innocent and responsible man, would have willingly assisted the police with their enquiries. At the time, however, the police were acting on the basis of suspicions of criminal conduct. If these suspicions had proved to be correct, it could have seriously hampered the inquiry if Major Stankovic had been free to come and go as he pleased and contact whoever he wanted. This was an operational decision for the police which was not disapproved of by the C.P.S. and does not demonstrate oppressive treatment.

[77]I am satisfied that, when Major Stankovic was arrested, the police were concerned to interview Major Lowther-Pinkerton without him having the opportunity to speak to Major Stankovic first. The police were concerned to find out whether he had told Major Stankovic anything of a sensitive nature about Bosnia which he could have passed on. They also did not want the search that they were carrying out to be impeded in any way. No-one is now suggesting that Major Lowther-Pinkerton would, if told by Major Stankovic that the police were likely to interview him, have done anything other than fully assist the police, nor is it suggested that he has either inadvertently or deliberately in fact passed on sensitive information to Major Stankovic. None of these things would have been known to the police prior to interview. Accordingly Detective Chief Inspector Love applied that Major Stankovic’s rights to notify a friend or member of his family of his arrest, under section 56 of the Police and Criminal Evidence Act 1984, be suspended, and also that his right to consult a Solicitor under section 58 of the Police and Criminal Evidence Act 1984, be suspended. Superintendent Batley who was the officer who considered the request, refused the request to suspend the right to consult a Solicitor but suspended the right to notify a friend or relative until 12.00pm, a suspension of 3½ hours after arrest.

[78]Superintendent Batley was quite right, in my judgment, not to grant the request in relation to seeing a Solicitor, in the light of the terms of section 58 and the cases which have been decided under it. There was no basis for suspecting that allowing Major Stankovic to consult a Solicitor would either deliberately or inadvertently hinder the inquiry. Major Stankovic did not have a particular Solicitor in mind and wanted to make use of the Duty Solicitor scheme. The application was misconceived. Had it been granted there would, in my judgment, have been a breach of PACE.

[79]There is also a curious feature of the documentation relating to this request. There are two documents at Bundle 3 pp. 281 and 282 which are identically timed and dated and both signed by Superintendent Batley. The first records that the reason for the delay of the right was because notification ‘will lead to the alerting of other persons suspected of having committed a serious arrestable offence but not yet arrested for it’. The second form records over the signature of Superintendent Batley, ‘Following telephone discussions with the OIC DCI Love I ascertained from him I established that he had further enquiries involving other persons ……….. were sensitive enquiries and other persons to be seen’.

[80]On the basis of the first document the Claimant alleges that Detective Chief Inspector Love lied to Superintendent Batley because it asserts that other people were to be arrested which was not the position. The Defendant relies on the second document as being accurate and therefore the first document is a mistake on the part of the Custody Officer. Certainly there was a pre-arranged plan for the arrest of Major Stankovic and the interview of Major Lowther-Pinkerton, although I have not found that any such plan included an application for suspension of rights. There was no pre-arranged plan or intention to arrest anybody else.

[81]In the absence of reliable evidence, it is impossible to say where the reference to arrest came from. It is apparent from a very early stage that the intention had been to interview Major Lowther-Pinkerton at the same time as Major Stankovic’s arrest. I do not see how it would have strengthened the case for the suspension of rights to say the intention was to arrest rather than interview. It is also fair to say that Detective Chief Inspector Love had a script which he seemed to stick to. On the evidence I am not prepared to find as a fact that Detective Chief Inspector Love lied to Superintendent Batley although this part of the evidence is unsatisfactory and not fully explained. On the state of the inquiry at that time, the decisions taken by Superintendent Batley were entirely right. It does not follow from that, and I do not find that the fact that Detective Chief Inspector Love applied for suspension of rights to a Solicitor, means that he was acting from an improper motive. It was however, entirely correct that that application failed.

[82]Execution of the Search Warrant. The search warrant (Bundle 3 pp. 232 and 233) authorised the police to enter and search both Major Stankovic’s house and his room at the Staff College for, ‘documents, including documents and notes written in a foreign language, sketches, plans, models, notes, including information stored upon magnetic tapes or any other mechanical or electronic data retrieval mechanism, or anything of a like nature or anything which is evidence of an offence under the Official Secrets Act 1989’. The police were entitled to enter by virtue of the warrant which was lawfully obtained and accordingly the claim for trespass to land fails.

[83]It is well established law that the police are only entitled to seize goods in the course of a search in accordance with the terms of the search warrant. This may, of course, cause logistical problems where the police are searching for relevant documents amongst a large number of other documents which are not relevant to the search. In Reynolds -v- Metropolitan Police Commissioner

[1985] 1 QB 881

, the Court of Appeal sought to give guidance to cover cases like this. This was the guidance that applied at this time. At p. 896, Slade LJ laid down general principles. That case concerned forgery but the guidelines are of general application: 1) No matter how convenient the course may seem to be, a police officer acting under a search warrant issued under the Forgery Act 1913 is not entitled, without the consent of the owner, indiscriminately to remove from the premises each and every file, book, bundle or document he can lay his hands on, even if only for the purpose of temporary sorting. Before doing so, he must have regard to the nature and contents of the item in question. 2) However, provided that he acts reasonably in so doing, he is entitled to remove from the premises, files, books, bundles or documents which at the time of removal he reasonably believes contain(i) forged material or

(ii) material which might be of evidential value, as showing that the owner is implicated in some other crime . 3) Any necessary sorting process in relation to all items removed (e.g. those contained in files and bundles) should be carried out with reasonable expedition and those of them which are not found to fall within either category should be returned reasonably promptly to the owner.

[84]The list of documents returned at Bundle 7 p. 54, reveals that many items were taken which were not relevant to an Official Secrets Act offence. They included books, wet and dry sandpaper, a can opener, waterproof bags, cuff links, an envelope containing an MBE certificate, etc., etc. On the face of it, a large number of items were taken which were not covered by the warrant. While recognising and understanding the difficult task the police faced, (they legitimately removed many, many documents), no-one has given any evidence to explain why irrelevant items were seized as well. I am left with the impression that the seizure was, to some extent, indiscriminate. The inevitable conclusion from that is that the police did not exercise reasonable care in carrying out the search.

[85]I therefore find that the allegation of trespass to goods is made out. I do not however, draw any inference from the manner of the search that the police were acting for an improper purpose. It was simply a search which was not carried out according to the terms of the warrant.

[86]In the event many, many documents were legitimately recovered; many were in Serbo-Croat and needed translating. Part of the reason for the delay in interviewing the Claimant was because the police waited until the end of the search. The Claimant complains of that and says that, as no questions were asked of him, arising from the search, he should not have been detained while the search went on. I do not accept that argument. I have no doubt that it had been hoped to ask him questions, if appropriate, on items recovered in the search. In the event that proved impracticable because of the quantity and nature of the documents recovered.

[87]Major Stankovic was interviewed between 19.43hrs. and 20.13hrs. on 16th October 1997 – a period of 30 minutes. The Particulars of Claim allege that this interview was a sham conducted to give an appearance of legitimacy to the unlawful searches of his house and room. The record of the interview appears at Bundle 14 p. 1881. A reading of that interview discloses that it was a perfectly proper interview dealing with the matters for which he had been arrested. Major Stankovic had advance notice of the questions and no doubt had discussed them with his Solicitor. It dealt with a limited number of questions because it was impossible to deal with any of the results of the search. Any complaint about that interview is unsustainable.

[88]As a direct result of Major Stankovic’s arrest he was removed from the Staff College and his security vetting was removed. On the evidence, neither of these decisions was made by the M.O.D. Police. They could have had no interest in whether Major Stankovic remained at the Staff College and there is no evidence that they had anything to do with his removal. What happened to Major Stankovic’s security vetting, was again nothing to do with the M.O.D. Police , save insofar as it would be obvious to anybody that while Major Stankovic was under investigation for Official Secrets Act offences, his security vetting would be suspended.

[89]Conduct of the investigation October 1997 to October 1998. Having been released by the police on bail after his first interview, Major Stankovic was bailed by the police on a number of further occasions until his second interview on 28th October 1998. The reason for the delay was that a great deal had to be done by the police. They saw close on 300 witnesses; they had to have many documents translated; handwriting expert evidence was required to confirm that certain documents were written by Major Stankovic. Documents had to be classified by Army personnel. Documents had to be shown to people for their comments. A significant number of police officers were assigned to the investigation. The investigation was bound to be protracted. Whether it could have been completed more quickly, I have insufficient evidence to judge. I have no doubt that the delay had a devastating effect on Major Stankovic. During this year, friends, former colleagues, former Commanding Officers, as well as people who were ill-disposed to him, were being interviewed.

[90]Major Stankovic accepted, during the course of his evidence, that many of the documents which had been recovered from his house gave rise to suspicions about his conduct to which the police could legitimately seek answers.

[91]An analysis of the documents revealed in conjunction with the evidence of witnesses: 1) That Major Stankovic was in possession of documents which, had they been revealed to the Bosnian Serb leadership, would have constituted offences under section 2 of the Official Secrets Act 1989. 2) That he was in possession of documents which some others thought he should not have had. 3) That he had made careless disclosures particularly to his parents, including revealing pseudonyms used by other soldiers and details of visits by VIPs. 4) That details that he was supplying in letters to his parents of his job and the situation in Bosnia were being circulated to Serbs in England in circulars. 5) The use of a pseudonym for Zametica in a letter from his father. 6) The document which had been discovered in the covert search was found by the police. 7) There were other documents in the form of notes in Serbo-Croat which raised similar grounds for suspicion that secret information was being conveyed.

[92]All of these matters could be and ultimately were sufficiently explained by Major Stankovic to the C.P.S. so that they decided not to prosecute but the M.O.D. Police, in the absence of explanation were entitled to treat a number of documents as giving rise to suspicions that offences had been committed.

[93]The further investigation revealed more contacts between Major Stankovic and Zametica in 1995 after his return to England.

[94]The police also discovered that both Major Stankovic and his father were in contact with a man called Trifkovic who was Karadzic’s spokesman in London after Major Stankovic returned to England.

[95]There was some evidence that calls to Trifkovic were proximate in time to calls to Major Lowther-Pinkerton.

[96]Statements taken from some witnesses by police in this period referred in glowing terms to Major Stankovic’s abilities as a soldier, his heroism and his loyalty to the Crown. Others expressed the belief that he was partisan towards the Serbs and acting in an inappropriate way.

[97]There was a witness statement taken from ‘Soldier P’ in which he described an occasion when he accompanied Major Stankovic to Pale. He said, ‘Major Stankovic placed on the table what I believe was the local newspaper in Sarajevo. These papers were immediately picked up by Zametica. For a very brief period I believe that I saw what appeared to me to be an official document, possibly a NATO situation report’.

[98]The Particulars of Claim make a number of serious allegations as to the ways witnesses were interviewed during this period. Major Stankovic was taken through them in detail and agreed himself that the allegations do not in fact stand up to close scrutiny. As a result of that examination, a number of allegations were withdrawn. I shall not deal with those which have been withdrawn.

[99]Complaint is made that in a synopsis of witness statements produced by the police prior to the second interview, they lied when they said that General Jackson refused to make a statement. When interviewed by the police General Jackson had declined to make a statement, but subsequently did send a statement under cover of a letter. The statement was not in section 9 form, but could have been readily put into proper form by the police. The statement was wholly favourable to Major Stankovic.

[100]Although that synopsis was misleading, the allegation that it was a deliberate untruth is difficult to sustain. In a previous document sent by the police to the Defence solicitors, a comment by the name of General Jackson says ‘declined to make a statement however submitted letter of knowledge of events’. So the Claimant’s solicitors were aware of a document and the police did include it in the report to the C.P.S. The evidence is simply not there to support the allegation of a deliberate lie as the Claimant himself appeared to accept in evidence.

[101]Complaint is made that a police officer, Sergeant Kerr said to Major Lyman, a potential witness, that the purpose of the investigation was to exonerate Major Stankovic. If said, it must have struck Major Lyman as being rather odd. A police investigation would normally be to find out whether an offence has been committed and if so by whom. If it was said it did not and cannot have had any effect on Major Lyman giving an accurate account to the police. Sergeant Kerr says he did not say it. Whether it was said; whether it was a misunderstanding or was not said at all, is impossible to determine satisfactorily at this distance in time. What I am quite satisfied about is that it is no evidence that Sergeant Kerr was conducting his part in the investigation in an improper way.

[102]It is further alleged that the police falsified or distorted witness statements taken from Major Lowther-Pinkerton to exclude the full extent of Major Stankovic’s reporting to him of contacts with Zametica.

[103]In my judgment, the role of Major Lowther-Pinkerton has been unduly prominent in this case. It has been suggested by the Claimant that telling Major Lowther-Pinkerton of contact with Zametica amounted to ‘reporting’ them in the same way as telling Major Cook. I do not believe that either Major Lowther-Pinkerton or Major Stankovic saw the matter in that light at the time. Both thought the contact should be kept open and if Major Stankovic got a ‘tit-bit’ of information, Major Lowther-Pinkerton ensured it got passed onto his superiors. Both knew of the order from Captain Kelly to Major Stankovic to cease all contact and report any that happened.

[104]I do not believe for a moment that Major Lowther-Pinkerton’s witness statements were distorted by the police. Major Lowther-Pinkerton is an intelligent man. He was making statements in relation to the investigation of a close and much admired friend. I am quite sure he would have read his statements carefully and would not have signed them until he was satisfied they accurately reflected his evidence. If there are differences between what he now says and what is contained in his police statements, they are minor. As is pointed out by the Defendant in his closing submission, many of the witness statements including Major Lowther-Pinkerton’s are extremely favourable to Major Stankovic for perfectly good reason, but it makes the suggestion of distortion unlikely.

[105]One of the matters which clearly concerned the police in the course of the investigation was that Major Stankovic was issued with a passport in a false name. As was demonstrated in the evidence I heard, the issue of the passport was for perfectly good operational reasons, namely to ensure the Claimant’s safety. It is perfectly true that the police were getting different opinions as to whether this was justified operationally from witnesses including General Rose, but looking at it from my perspective the investigation became unduly concerned about this aspect. The issue of the passport had after all been dealt with through the proper channels. Equally it can properly be said that the way it is dealt with in the police report is not objectively balanced. Although I find this criticism of the police is to some extent justified, it does not in my mind go anyway to support the allegation of improper conduct by the police.

[106]It is said by the Claimant, that in January 1998 he made an offer to the police to explain the documents which they had recovered. That offer was to be communicated to the police by Brigadier Cumming, the Soldier’s Friend assisting the Claimant. If Cumming communicated that offer and if so to whom we do not know because I have heard no evidence about it. I am quite satisfied that the Claimant made that offer and intended it to be communicated to the police. There is no evidence to the contrary and the fact that it is included in the Claimant’s submission to the Attorney-General at a time when it could readily and easily be checked, supports the Claimant’s evidence. But, even if it was communicated, I would have expected it to be rejected. From the Claimant’s point of view he was an innocent man wishing to explain ambiguities, to the police he was a suspect who they would not wish to interview until they had fully prepared their case and knew the questions they wished to ask.

[107]By the time the police were ready to interview the Claimant a year had passed. The Claimant was a very angry man, and understandably so. From his point of view the effects of the investigation had been devastating. The result of having policemen interviewing witnesses about possible serious criminal offences committed by him was bound to tarnish his reputation. The people who were questioned were colleagues and senior officers in the Army. People who previously had quite properly completely trusted Major Stankovic were invited to look at his actions in a suspicious frame of mind. His career in the Army was on hold and unlikely to recover. As far as he was concerned he had acted only in the best interest of the Crown in Bosnia and at considerable personal cost. His actions were now being questioned by people who he believed knew and understood nothing of what his life had been in Bosnia. Documents taken by the police in the search, had in his mind, been wrongfully withheld from him. He concluded that the police inquiry was being conducted unfairly.

[108]Conduct of the second interview. Major Stankovic’s reaction to all this was to refuse to answer any questions when he was interviewed for the second time on 28th October 1998. As Major Stankovic accepted in his evidence, there were matters which had come to light in the investigation which were suspicious unless and until he gave the explanation for them. These suspicions were not based on the errors of judgment to which I have referred which were not evidence tending to show an Official Secrets Act offence but other documents recovered in the search which did raise those suspicions.

[109]When Major Stankovic was put before the Custody Officer by Detective Sergeant Goodwin before the second interview, the Custody Officer asked Detective Sergeant Goodwin whether he had sufficient evidence with which to charge. He said he did not but said that he had enough evidence to justify an interview. In my judgment Detective Sergeant Goodwin was correct in what he said. He had evidence which might have an innocent as well as a guilty explanation. Major Stankovic had to be given the opportunity to give his explanation before a proper decision could be taken as to whether or not to charge. If the explanation was satisfactory there was no basis to charge.

[110]In the event, Major Stankovic refused, after caution, to answer. Had the matter gone for trial, the Judge would have had to consider whether the jury could properly draw an adverse inference from his refusal to answer. It would then have been for the jury to decide whether they would draw such an inference.

[111]Even though Major Stankovic had indicated that he would not answer questions, the police proceeded to question him and put to him methodically the information which they had and to which they wanted answers. There were three interviews: The first lasted from 11.48 to 12.24 (38 minutes). The second lasted from 12.34 to 17.18 (52 minutes). The third lasted from 14.26 to 14.46 (20 minutes).

[112]On 28th October 1998 the Claimant was detained under arrest at the police station from 11.07am to 3.07pm. The Claimant asserts that the police did not have the necessary suspicion or reasonable grounds to justify the arrest. I do not agree. They did have such grounds because of the matters set out in this judgment.

[113]The police were also told that the Claimant had prepared a document which he intended to and did send to the Attorney-General. That document was added to later, to deal with matters raised by the police in interview. The Claimant also complained that some of the documents on which questions were asked were supplied to him to consider very shortly before the interview giving him inadequate time to consider them and answer questions properly. That may well have been a justified complaint, and could have been dealt with by a postponement of the interview. Little would, however, have been achieved by that as Major Stankovic had by then decided not to answer any questions.

[114]The conduct of the interview is described in the Particulars of Claim as oppressive, serving no evidential value, and insulting and scandalous in what was said by the police about the Claimant and his father.

[115]If one reads what is actually said in the interview those criticisms are misconceived, as Major Stankovic himself accepted in the witness box. No doubt he was hurt by the fact that the police were investigating whether both he and his father had unlawfully disseminated information to other Serbs. The reality is that the documents recovered raised these suspicions and the police were entitled and under a duty to seek answers.

[116]Nor was it oppressive in the circumstances of this case to continue to question Major Stankovic. It is much easier to invite a jury to draw an adverse inference if the specific allegation or document is put to the suspect and no reply is given. That refusal is capable of having evidential value. There is therefore no proper basis to justify the allegation of false imprisonment and/or malicious prosecution arising out of the interview and arrest on 28th October.

[117]The Police Report and Army Proceedings. Thereafter the police prepared their report to the C.P.S. They recommended charges be brought. They did not see the submission to the Attorney-General in which the Claimant answered the allegations in detail and gave explanations as to the documents. The police wanted to see that document. They were prevented from doing so because the Claimant asserted legal professional privilege attached to it. It has not been argued before me, but it is difficult to see how that claim could be justified.

[118]It may well be that the reason the police wished to see it was in order to argue against it because they had by then formed the view there was sufficient evidence to prosecute. The fact however remains that they reached the conclusion that there was sufficient evidence to charge without ever knowing what the explanation of Major Stankovic was for the matters which raised suspicions in their mind.

[119]The C.P.S. having considered the police report, all the statements, the exhibits and the Claimant’s submissions decided there was insufficient evidence to prosecute. No-one questions that decision, the Claimant remains, as he always was, an innocent man.

[120]It is said that the police report is unbalanced and fails to deal objectively with the evidence. I think there is some support for that allegation in certain parts of the report. The section dealing with the issue of the passport does not entirely accurately reflect the evidence. Too much emphasis, in my view, is placed on the disclosures in correspondence which can only be properly described as errors of judgment, i.e. disclosure of code names, royal visits etc. They do not support the case for an offence under section 2 in my judgment. Evidence suggesting that the Claimant may have exaggerated his achievements does not really further the case. The report also suggests that ‘Soldier A’, a friend of the Claimant had access to information which would have been of interest to Major Stankovic presumably about Serbia. That, ‘Soldier A’, told me is not correct. I have no reason to doubt his evidence. That was an error in the report which was adverse to the Claimant’s interests which should not have been made.

[121]The police report, however, has to be looked at as a whole to properly judge its objectivity. In my judgment, taken as a whole, it is fair. It deals accurately with the documents which were recovered which do raise suspicions that Major Stankovic was supplying information to the Serbs. I have not dealt with these in detail because it is now accepted that there are innocent explanations which Major Stankovic gave the Attorney-General. Major Stankovic himself accepted repeatedly in evidence that those documents would quite properly raise suspicions in the minds of the police. An indication of the report’s overall fairness is how it deals with ‘Soldier P’s’ account to which I have previously referred. To a dishonest police officer determined to do the Claimant down, that could have been described in compelling terms. However it is dealt with in a balanced way and makes clear the difficulties there might be with that evidence.

[122]As the Defendant further points out, the Report does detail the evidence in Major Stankovic’s favour discovered during the inquiry and even suggests that Major Stankovic may have retained the material from Bosnia to help in writing a book. That is not in fact his case.

[123]Once the C.P.S. had decided against charges, the intention as determined by the Army and the Ministry of Defence was for the Army to decide whether there were offences against Army Discipline disclosed. In fact none were ever brought. By the time of that decision Major Stankovic had resigned from the Army. It was not the M.O.D. Police’s decision that the matter should be investigated further by the Army.

[124]There was a very long delay before the police handed over the necessary documentation to the Army so that they could carry out their investigation. It is suggested by the Claimant that that was done maliciously by the police to further delay the matter and cause him greater hardship. I have no doubt, despite the evidence of Detective Chief Inspector Love to the contrary, that the police were disappointed at the decision of the C.P.S. not to prosecute. I think any other reaction would have been surprising. They had conducted an inquiry for over 2 years. They had interviewed many witnesses. At the end of it they had concluded that they had sufficient evidence to charge. They had not seen or been able to comment on the Claimant’s submission to the Attorney-General that he should not be prosecuted. I do not however accept that such disappointment demonstrates that the police have acted with an improper motive. Many prosecuting counsel feel disappointed when a jury acquit even though their role is as a minister for justice.

[125]I have read the correspondence relating to the transfer of papers. There was undoubtedly undue delay in the transfer. The matter was largely dealt with by the Treasury Solicitor acting for the M.O.D. Police and the Claimant’s Solicitor. Both sides were keen to do everything by the book; both sides believed that they were being entirely co-operative and the other side unco-operative and unreasonable. That is not a unique situation between solicitors. It is unnecessary for me to decide which of them is right. I am satisfied that the delay was not the result of improper behaviour by the M.O.D. Police. Conclusion.

[126]I have considered the conduct of the police at different times of the inquiry to see whether there is evidence that they were conducting the inquiry not in the interests of justice but for some improper motive. I have also considered all the areas of the inquiry where I have decided that adverse comments about the police conduct are wholly or partially justified to see whether cumulatively they demonstrated that the police were affected by an improper motive. In my judgment they plainly do not.

[127]Accordingly applying the appropriate standard of proof namely the balance of probabilities and for the reasons I have given in this Judgment 1) I am satisfied that the two arrests of the Claimant in 1997 and 1998 were lawful and accordingly the claims for false imprisonment fail. 2) I am not satisfied that at any stage of the inquiry the police committed the tort of a misfeasance in a public office. 3) I am not satisfied that the Claimant has established that in the application for search warrants or at any time thereafter the police committed the tort of malicious prosecution or malicious process. 4) I am satisfied that in seizing and removing the items that they did in the course of the search the police acted outside the terms of the warrant. In doing this, their conduct was negligent. Accordingly the allegation of trespass to goods is made out. 5) I am satisfied that this search warrant was lawfully obtained and accordingly the claim for trespass to land fails. 6) The claim was also made in negligence. Mr Ullstein conceded in his final submissions that the claim cannot survive in the light of the decision of the House of Lords in Brooks -v- Commissioner of Police for the Metropolis

[2005] 1WLR 1495

. The effect of that decision is that no duty of care was owed by the police to the Claimant for reasons of public policy.

[128]In relation to my findings in relation to trespass to goods, I am not required to assess damages but to decide what sort of damages may be appropriate. It is fair to say that this aspect of the case has not been explored in detail because I am only concerned with liability. I do not know the full extent of what was taken. Nor am I fully aware of the effect it had on the Claimant nor at which stage all the items which should not have been taken were returned. Any damages are limited to loss suffered as a result of the search namely deprivation of goods and any effect on the Claimant. The trespass did not contribute to the Claimant’s decision to leave the Army or any other possible consequential loss.

[129]As a matter of principle aggravated damages may be appropriate if basic damages would not properly compensate the Claimant. This may be the case here but, without making further detailed findings, I am unable to say.

[130]The trespass does not however justify exemplary damages. The police were faced with a difficult situation because of the quantity of potentially relevant material they found. They were negligent, but in my judgment, deliberate wrong doing, which might justify exemplary damages, has not been established.

[131]Even though I have dealt in considerable detail with this case, I have not dealt with every matter which has been raised because it is unnecessary for me to do so. I have gone into so much detail in order that Major Stankovic fully understands my reasons even if he does not agree with them.

[132]This case does represent a considerable personal tragedy for him. He was an impressive and realistic witness. He did not overstate his case although the pleadings did. He believes that the Army makes an unduly restrictive use of people like him and that he should have been given more freedom to act in the Army’s best interests in his own way. He may or may not be right. He proved himself to be courageous and resourceful in Bosnia and suffered the effects of his time there more than most. The only thing he has been proved to have done wrong was to disobey the direct order of Capt Kelly which he did because he believed the Army was wasting an opportunity. He has paid a high price for this mistake.