Da Silva & Anor v The Department for Business, Energy And Industrial Strategy [2018] EWHC 1591 (QB)

[2018] EWHC 1591 (QB)

Case No TLQ17/0804

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 29/06/2018

Before

MRS JUSTICE ELISABETH LAING DBE

Between

(1) Dean Daniel Adrian Da SilvaClaimants

(2) Robert John FindlayClaimant

The Department for Business, Energy and Industrial StrategyDefendant

Joseph Giret QC (instructed by Direct Access) for first Claimant

The second Claimant represented himself

Andrew Deakin (instructed by GLD) for Defendant

Hearing Hearing dates: 23 - 27 April, 30 April - 1 May 2018

Judgment Approved

Mrs Justice Elisabeth Laing :

Introduction

[1]The Claimants claim damages against the Defendant for malicious prosecution and for misfeasance in public office. As pleaded by the Claimants, those two claims stand or fall together. Their pleadings do not distinguish between the two torts. The Defendant argues that the misfeasance claim is barred by the Limitation Act 1980. That is the first issue I will consider. I observe, in any event, that it is not obvious how the claim for misfeasance in public office (as pleaded) adds to the claim for malicious prosecution. It is not suggested that the latter claim is barred by limitation.

[2]The Claimants are the directors of the Staff Supply Company Limited (‘SSC’). The nature of the business carried on by SSC is in dispute. The Claimants contend that it was a training and immigration advice business. They interviewed graduates in Indonesia who wanted to come to the United Kingdom to develop their careers, and placed them with hotels for that purpose, where, they accept, the graduates were employed by the hotels. SSC charged the graduates £4500, which, the Claimants say, was the cost, perhaps not even the whole cost, of various services they provided for the graduates. They deny that that charge, or fee, or any part of it, was for placing the graduates in a job. For convenience, I will refer to the graduates as ‘students’. That is a label. It is not an indication of my view (to the extent that I might have one, or that it might be relevant) about the legal, or economic effect of the arrangements the students made with SSC.

[3]The Claimants now accept, however, that the business of SSC is correctly labelled, for the purposes of the legislation governing employment agencies, as that of an employment agency; or at least the First Claimant did, in his evidence. They accept that they retained the students’ passports while they were in the United Kingdom, but they do not accept that that was a detriment for the purposes of the relevant legislation. The Defendant’s case is that, on the basis of the information which it had, and on the basis of its internal legal advice, it had reasonable and probable cause to prosecute the Claimants for two breaches of the legislation governing employment agencies, and that that prosecution was not malicious, or for any extraneous or improper purpose or motive.

[4]The First Claimant was represented by Mr Giret QC. The Second Claimant represented himself. The Defendant was represented by Mr Deakin. The Claimants were cross-examined. Mr Keeler and Mr Atkins, who gave evidence for the Defendant, were also cross-examined, first by the Second Claimant and then by Mr Giret QC. The Second Claimant asked a few questions of Mr Kelly, an officer in the Data Protection Department of Northamptonshire Police. There was no cross-examination of the other witnesses for the Defendant, in particular, of Ms Malpas (who gave evidence about CCTV) or of Ms Diprose (who gave evidence about her involvement in Mr Keeler’s investigation of SSC).

[5]I allowed the Claimants to rely on a witness statement of Mr Parrish, signed and dated on 26 February 2014. I refused their application to rely on a letter dated 27 December 2013 from Ayu Yuniar, for the reasons I gave orally on 26 April 2018.

The law

[6]The law does not seem to be in dispute. This is a case in which it is appropriate to describe the law near the start of my judgment, as it is the frame for this case and the allegations which have been made in it. I say little about misfeasance in public office, because, as I have said, as pleaded, it adds nothing, in my judgment, to the claim for malicious prosecution.

Malicious prosecution

[7]The Claimant’s case on malicious prosecution depends on showing that there was a prosecution, and an acquittal. There is no issue about those two elements of the tort. The Claimants must also show that the prosecution was without reasonable and probable cause and that there was malice (see Glinski v McIver

[1962] AC 726

at 742).

[8]The dispute concerns the last two elements of the tort. For an explanation of ‘reasonable and probable cause’, Mr Deakin referred to a passage in the judgment of Lord Atkin in Herniman v Smith

[1938] AC 305

, approving a statement by Hawkins J in Hicks v Faulkner

(1878) 8 QB 167

at 171:

‘‘…an honest and reasonable belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.’’

[9]The prosecutor is not bound to have tested every possible relevant fact in order to see whether there might be a defence, but rather, to ascertain whether there is a reasonable and probable cause for a prosecution (per Lord Atkin, Herniman, p 319). See also Coudrat v HMRC

[2005] EWCA Civ 616

at paragraph 42.

[10]I accept Mr Deakin’s submission that, in the context of a public authority, which prosecutes in the public interest, the test in the CPS Code for Crown Prosecutors (as in force at the relevant time) (‘the Code’) is relevant to the question of reasonable and probable cause. Mr Atkins accepted in his evidence that he was bound by the Code. There is a two-stage test. There must be enough evidence to provide a realistic prospect of conviction and, if that stage is reached, it must also be in the public interest to prosecute.

[11]The cases which Mr Deakin cited in his closing submissions show that ‘malice’ has a special meaning in this context. It includes spite and an intent to injure, but also any improper motive, that is, a motive other than the wish to bring a person to justice, so that the prosecution is not a bona fide use of the court’s process. An absence of proper motive can be inferred from the circumstances, including from that fact that there is no reasonable and probable cause for the prosecution, but it all depends on the circumstances. An absence of reasonable and probable cause does not, on its own, necessarily lead to a conclusion that there was an improper motive for the prosecution (see the discussion in Williamson v Attorney General for Trinidad and Tobago

[2014] UKPC 29

per Lord Kerr at paragraphs 11-13 and 17-19). A failure to take the steps which it would be necessary for a prudent and reasonable person to take before instituting a prosecution might in some circumstances be evidence which points towards an improper motive, but sloppiness and malice are not the same thing.

Misfeasance in public office

[12]The Claimant’s case on misfeasance in public office depends on showing that Mr Keeler was a public officer, and that the allegations relate to the exercise of his functions as such. There is no dispute about those two elements. The second two elements are that the Defendant, acting as such, with the necessary state of mind, caused loss to the Claimants. Those elements are disputed.

[13]The leading case on misfeasance in public office is Three Rivers District Council v Bank of England (No 3)

[2003] 2 AC 1

. Mr Deakin cited various passages from the speeches of Lords Steyn, Hutton and Hobhouse in his skeleton argument. Clerk and Lindsell on Torts (22nd Edition) (paragraph 14-120) says that Lord Steyn’s speech gives an authoritative definition of the tort. It has two forms. The first is where there is targeted malice by a public officer; that is, conduct which he specifically intends will injure a person or people. It involves bad faith in the sense that the official exercises his public power for an ulterior motive. The second form is where the official knows that he has no power to do the act in question and that the act will probably injure the claimant. It involves bad faith because the official does not honestly believe that his act is lawful. Mr Giret QC did not disagree with this formulation.

The Employment Agencies Act 1973

[14]The legislation which applied at the relevant time was the Employment Agencies Act 1973 (‘the 1973 Act’). As in force at the relevant time, section 13(2) of the 1973 Act defined ‘employment agency’ (subject to irrelevant exceptions in section 13(7)) as ‘the business, whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding persons employment with employers or of supplying employers with persons for employment by them’. Section 6(1)(a) of the 1973 Act provided that, except as might be prescribed in regulations, a person carrying on an employment agency should not ‘request or directly or indirectly receive any fee’ from any person for providing services (whether by the provision of information or otherwise) for the purpose of finding him employment or seeking to find him employment’. The evident policy of this legislation is to protect employees from paying any charge for being found work by a business which is an employment agency. The language of both provisions is deliberately wide. Section 6(1)(b) and (c) made analogous provision in respect of a person carrying on an employment business in relation to employees, in short. By section 6(2) the contravention of section 6 was a summary offence punishable by a fine. By section 13, ‘fee’ includes ‘any charge, however described’.

[15]Regulation 6 of the Conduct of Employment Agencies and Employment Business Regulations 2003 (‘the 2003 Regulations’) prohibited employment agencies and employment businesses from subjecting or threatening to subject a relevant work-seeker to any detriment on the ground that he had terminated or given notice to terminate any contract between the work-seeker and the agency or employment business. Regulation 5 of the 2003 Regulations, as in force at the material time, made it unlawful for an employment agency to make the provision of work-finding services conditional on the work-seeker using other services for which the 1973 Act did not prohibit the charging of a fee, whether provided by the employment agency or by another person connected with the employment agency.

Limitation

[16]It is convenient for me to decide this point first. The relevant facts are not in dispute, nor did Mr Giret QC dispute the Mr Deakin’s legal analysis. Foskett J gave the Claimants permission to amend their claims to plead this cause of action on 19 February 2018, provided that that claim was to be based on the facts already pleaded. He did not decide whether any such claim was time-barred or not. He left the question of limitation for the trial judge to decide.

[17]It is common ground that the amendments permitted by Foskett J relate back to the date when the claims were issued. The claim forms were issued on 16 and 10 December 2013 respectively. However, the First Claimant’s was received by the court on 4 December 2013, and Mr Deakin accepts that this is the relevant date for limitation purposes. The misfeasance in public office claims relate, as pleaded, to the investigation by the Defendant and the bringing of the prosecution. That process was complete on 14 December 2007, when the three-day trial ended. The Claimants’ response to questions pursuant to CPR Part 18 was that the losses which they claim accrued ‘during the investigation and following the trial’. Mr Deakin submits that the cause of action for misfeasance in public office was complete as soon any damage was suffered, and that, therefore, the cause of action accrued more than six years before the claims were issued.

[18]The Defendant did not plead a limitation defence in respect of the Second Claimant’s claim for malicious prosecution, presumably because it recognised that that cause of action was not complete until(a) the date of the acquittal, and

(b) the date when any consequential damage had been suffered. The acquittal was less than six years before the Second Claimant issued his claim (10 December 2013), but more than six years before the First Claimant was then thought to have issued his claim (16 December 2013). The Defendant did plead a limitation defence against the First Claimant’s malicious prosecution claim. Mr Deakin told me that the Defendant does not now rely on that defence.

[19]I asked Mr Deakin in an email sent to the parties whether different arguments could apply in principle to the Second Claimant’s misfeasance in public office claim, based on the same facts, from the arguments which apply to the malicious prosecution claim and, if so, why. In other words, I found it difficult to see that the Defendant could realistically maintain that the Second Claimant’s misfeasance in public office claim, based on the same facts, was time-barred, if his malicious prosecution claim, based on the same facts, was not.

[20]In his closing submissions, Mr Deakin accepted that the relevant date in the case of the First Claimant was not 16 December 2013, but 4 December 2013, when his claim was received by the court. I asked Mr Deakin in the same email whether that meant that the Defendant no longer maintained a limitation defence to the First Claimant’s malicious prosecution claim. I also asked, if so, then whether, by parity of reasoning with the argument in the Second Claimant’s case, the First Claimant’s claim in misfeasance was time-barred, and if so, why.

[21]Mr Deakin’s reply was that malicious prosecution could be distinguished from misfeasance in public office, because the components of the torts are different. He submitted that when each of a series of ‘malicious’ acts is said to be tortious in itself, so that each founds a separate cause of action, it is necessary to consider whether each is statute-barred. He invited me to consider when each cause of action accrued, relying on the Claimants’ pleaded case that they suffered loss ‘during the investigation and following the trial’.

[22]The cause of action in malicious prosecution was not complete until the acquittal had happened, and loss had been suffered as a result of that prosecution. I would be inclined to think that the same must apply to the cause of action in misfeasance in public office, which based on exactly the same facts. But if that is wrong, the Defendant must make out this defence, and it seems to me that, as the facts relied on in respect of the two torts are the same, it would be disproportionate, and all but impossible, for me to investigate a series of separate allegedly malicious acts in order to see when loss caused by that act was suffered, given the vagueness of the pleading. I had no help from the Defendant in relation to such an exercise. I decline the invitation to embark on such a difficult exercise, which, on the facts, is, in any event, an arid one. I conclude that the Defendant has not satisfied me that the claim for misfeasance in public office is barred by limitation.

Observations about the evidence and the witnesses

[23]Many of the background facts are not in dispute, and many are evidenced by contemporaneous documents. This is a case, nonetheless, in which I have to make findings about some contested facts. In making such findings, I have considered a variety of factors, such as the intrinsic probability of the rival accounts, and the extent to which each account is supported (or not) by contemporaneous documents. I also consider that I should make general findings about the reliability of the evidence of four witnesses, in particular; the Claimants, Mr Keeler, and Mr Atkins. While I have considered each significant disputed fact individually, I consider that a factor which I can and should take into account in relation to each significant dispute of fact is my general assessment of each witness’s approach to giving evidence, as, while it may well not be conclusive, it may help me to decide whether the evidence he gave on a particular point is likely to be reliable.

[24]I should make clear that I do not consider that the question whether SSC charged a fee to students for placing them in employment, which was at the heart of one the charges, is a question of primary fact, that is that it is a question to be resolved by deciding whose evidence the relevant tribunal prefers. Mr Atkins’s analysis of this issue in his hearsay application was the same as mine. The question is what inference could or should be drawn from the primary materials (the evidence of the witnesses and the documents). The issue is not how the parties described the transaction, or what label they attached to it, but what the legal effect of the transaction was. Many of Claimants’ questions to the witnesses, and their submissions on this topic, were based on two (wrong) premises. The first was that that question was to be resolved by the reliability (or otherwise) of the witness statements of Sofia Buntarti, Hendy, Fauziah and Imelda Waty (‘the complainants’), rather than by the process of inference I have just described. The second was that if SSC’s documents did not use the phrase ‘fee for placement’ or ‘charge for placement’ that was relevant to, or even decisive of, the question whether such a fee was in substance being charged.

[25]It is suggested, further, that Mr Keeler had an improper motive for his investigation and that he somehow improperly influenced Mr Atkins in his decision to bring, and to maintain, the prosecution. I also, have, therefore, to consider whether I can rely on their denials in their evidence that they did what they did for an improper motive.

[26]I start with an inconsistency which is at the centre of the claim, and which Mr Deakin put to the Claimants in cross-examination. Both Claimants emphasised in their evidence that SSC did not make ‘millions of pounds’ and that, while it was not a charity, the business had a philanthropic element, because both Claimants wished to help people in Indonesia to further their careers in hotels. They emphasised that the fees they charged to students barely covered SCC’s costs, but that, taking the rough with the smooth, SCC got by. This topic was explored by Mr Keeler in his interview of the First Claimant, part of which was recorded, and was played during the trial. He asked, ‘Where is the benefit to you?’ and ‘It is a business, where does the income come from?’ The Claimants are claiming about £5m for the destruction of their very profitable business. The inconsistency between their evidence about the benefit they got from SSC’s business and the size of their claim was not resolved by any of their evidence. It leaves room for an inference that the charges they made to the students did not simply cover costs which SSC incurred in furthering the students’ careers, but allowed for a large profit margin. That is an inference which I have drawn, and it is an inference which it was open to a reasonable prosecutor to draw, on the materials which were available at the time of the prosecution.

The First Claimant

[27]There were two important themes in the evidence of the First Claimant. The first was that the Defendant had no evidence that the SSC was charging students a fee for placing them in employment. He relied on this point repeatedly in support of his claim that Mr Keeler was acting maliciously and that there was no reasonable and probable cause for the prosecution. The First Claimant’s point is right, to the extent that no document says that SSC ‘charged a fee for placing a student in employment’ (or anything similar). The witness statements of the complainants in the magistrates’ court made such an assertion. The First Claimant’s case was that ‘the words’ in those statements, and ‘the information’ were ‘incorrect’. But for the reasons I have already given, this was a question of inference, not of primary fact. Whether or not SSC was making such a charge is a question of substance, not form. If the amount charged did not represent the true cost of the services which SSC provided for the students, then there is a further question, which is what the charge was for, and it might be legitimate to infer, in relation to a charge or part of a charge which was otherwise unexplained, that it was, in substance a charge for placing a student in a job, even if the charge was not labelled in that way. Nonetheless, the First Claimant asked me to infer malice on the part of the Defendant from the fact that the Defendant prosecuted him for something which, in his view, he had not done. He said in cross-examination that he was never paid by the students. ‘We received back what we laid out. It was for the services we provided and not for finding a job’.

[28]The second theme in the evidence of the First Claimant was about why he was the object of the tortious behaviour which he alleged. Paragraph 60 of his witness statement starts ‘It was nevertheless obvious to me that the prosecution was clearly ill motivated. SK hoped by using the strength of the Defendant against individuals that he would secure a criminal conviction against me and thus put me out of business and ruin my life’. Cross-examined, the First Claimant accepted that what he meant was that Mr Keeler had an axe to grind against him because he was close to the Second Claimant. ‘It was Mr Findlay. Unfortunately I was involved because I was a co-director’.

[29]I asked the First Claimant whether paragraph 50 of his witness statement was identical to paragraph 110 of the Second Claimant’s witness statement, apart from the fact that he referred to Mr Keeler as ‘SK’ whereas the Second Claimant referred to him as ‘Mr Keeler’. He accepted that it was. Mr Giret QC re-examined him about this. The First Claimant explained that the two paragraphs were all but identical ‘because we felt the same’. Neither had based his witness statement on the other’s, he said. I asked whether the similarity in wording was, then, a coincidence. The First Claimant replied that it was not a coincidence; they felt the same. I do not accept this implausible explanation. Despite suggesting in his witness statement that Mr Keeler had a personal animosity against him, his case, it became clear, when he was cross-examined, was that Mr Keeler’s animosity was against the Second Claimant. In passing, I noted when I read them that it is ironic that the Claimants’ witness statements share a characteristic which the Claimants attribute to the witness statements of the four complainants in the magistrates’ court, which is that there are passages in them which are identical, word for word. I find that those passages in the Claimant’s statements which are identical have been copied, and pasted, from one witness statement to the other. It is unnecessary for me to make any finding about which witness statement is the source of the copied material.

[30]The First Claimant was cross-examined about a number of documents. Some of his answers were revealing. He was asked about two letters sent on 1 December 2006 by the Second Claimant and by him, respectively. The Second Claimant’s letter was to Ms Ibu Irawati at the Indonesian Embassy. The First Claimant’s letter was to Mr Keeler.

[31]In his letter, the Second Claimant referred to a visit by ‘his staff’ that day. That visit, it seems from the First Claimant’s evidence, was from the First Claimant. The Second Claimant says that he had been told that Ms Irawati had ‘some queries’ about SSC. He then gave an account of SSC’s business. Next, he turned to ‘your comments about the DTI’. He said that one of the students SSC brought to the United Kingdom ‘tried to cheat us and not to pay us back’. The students complained ‘and this has given an opportunity to some UK Government departments to try and stop the program [sic], because we feel that amongst other things they do not like the way we pay for everything and get paid back’. He asked the Embassy to send him copies of any letters which it had been sent about SSC. He did not suggest in that letter that the DTI had been sending malicious and untrue letters about SSC.

[32]The First Claimant said in his letter to Mr Keeler, ‘I have today been informed that you are sending out malicious letters riddled with untruths to various government departments and other persons, trying to affect our business’. He asked for copies of all letters Mr Keeler had sent to anyone about SSC. In his evidence, the First Claimant said that he had a conversation with Ms Irawaty that day, and it was a small error in his witness statement that he had not mentioned the conversation in that statement. Ms Irawaty had told him in that conversation that the Embassy was in communication with the DTI and that a letter from the DTI accused SSC. He said that he assumed that that letter was similar to the letter which Mr Keeler sent to the banks (see paragraphs 105-106, below). He accepted that he had not seen any malicious letters. He accepted that she was only telling him about the letter she had. I then asked him whether the passage I have quoted from his letter was misleading, because Ms Irawaty was his informant, and she did not tell him about any letters sent by the Defendant to ‘various Government Departments’, or to anyone else, apart from the Embassy. He eventually accepted that he had exaggerated what he had been told that day. It was ‘a slight exaggeration’.

[33]The First Claimant was asked about an undated document at page 2817 in the bundle. He explained that these were his notes which he prepared for, and took to, a meeting he had with his local MP, at some point in 2011. He asserted in this note that Mr Keeler had been keeping a watch on Companies House, and started his investigation when he saw that the Second Claimant had become a director of SSC. When asked, he said he had no evidence for this assertion at all other than his belief that it was so. He referred in the document to two witnesses who work for the Defendant whom he could call to say that Mr Keeler had been made to feel small in his department because he had failed to close down the Second Claimant’s business. In his evidence, he said that they were associates he met at a conference event. He did not mention this in his witness statement because he did not think it was relevant. In paragraph 8 of the document, he said that the prosecution ‘relied heavily on the fact that the crown stated that [SSC] and its directors defrauded the work seekers’. He accepted when challenged by Mr Deakin that no such allegation had been made at the trial in the magistrates’ court:

‘Ok I accept that my word was probably incorrect. On that I apologise’

. In paragraph 9 of that document he asserted that Mr Keeler admitted to the magistrates that he had ‘fabricated’ the witness statements. The First Claimant accepted in cross-examination that Mr Keeler did not say ‘fabricate’. In paragraph 9 he also said that the magistrates were ‘horrified’ that the case had been brought. When it was suggested that they did not express horror, he said ‘Ok’. In the same paragraph he asserted that the magistrates ‘even mentioned that it appeared that Mr Keeler had commenced a malicious prosecution and vendetta’. He accepted in cross-examination that ‘The bench did not mention that’. He denied, however, the proposition that he had manufactured evidence of a conspiracy which did not exist. I do not accept that denial. This document has several examples of exaggerations and inventions by the First Claimant, the evident purpose of which was to enable him to convince his MP that he has been the victim of a malicious prosecution and vendetta.

[34]In re-examination, the First Claimant was asked questions about two documents which set out the amounts charged by SSC. It is clear from Mr Keeler’s letter of 7 June that the First Claimant took one such document (bundle, page 564) to his interview with Mr Keeler. That document is a document which was given to students to show them how much it cost SSC to bring them to the United Kingdom, place them with a hotel, and provide various services to them. The total cost shown in that document is £5360 plus £2000, which is said to be the cost of an interview in Indonesia ‘(not included in individual breakdown)’. The amount of fees charged to students, the First Claimant said, was always £4500. That figure never varied. A document at bundle, page 888 was said to list the fees charged for immigration purposes. It is difficult to reconcile that document with the equivalent sums on bundle, page 564, and I did not understand the First Claimant’s explanation of this in his evidence. He said that the document at page 888 was ‘issued to the students’, but this seems unlikely as the document lists a fee for ‘Initial interview in person at the above office’, that is, SSC’s office in Corby. The other evidence in the case is that the Indonesian students were interviewed, not in Corby, but in Indonesia. Further, there was no evidence that SSC made applications for leave to remain on behalf of the students. Moreover, the fee charged for a work permit application is lower on page 564 than the equivalent fee on page 888. The First Claimant explained that the fee on page 888 was for someone who was ‘not on the programme’.

[35]When I asked the First Claimant about the claim in the document at page 564 that it cost £2000 to interview each student in Indonesia he explained that ‘it was not the cost of interviewing one student’. I asked him then whether page 564 was misleading. His reply was ‘I see where you are coming from’. He accepted that SSC gave this document to students to show them how much it cost to bring them to the United Kingdom.

[36]The First Claimant was asked about a screenshot from SSC’s website. He struggled to explain how the tone and content of that website (which was aimed at hotels in the United Kingdom) was consistent with idea that SSC was not supplying, very cheaply, trained staff to work in hotels rather than (as the Claimants asserted) students whose sole aim was to be trained in the United Kingdom. I summarise some the material from the website in paragraph 92, below.

[37]He made allegations in his evidence which were not supported by any document in the bundle, for example, that after the Defendant wrote to two banks, they ‘foreclosed on’ his accounts. If that had been so, I would have expected the First Claimant to have produced documents from the banks in question, showing that they had reacted in that way to the two letters which Mr Keeler sent, and which I describe below (paragraphs 105-106).

[38]He was asked whether his case was that Mr Keeler was responsible for a break-in at SSC’s offices in December 2006, which he referred to in paragraph 34 of his witness statement. His answer was that he did not have ‘concrete evidence, video evidence. All I know is that the office was broken into and documents from the company were stolen’. The break-in is not a pleaded allegation. The First Claimant did not suggest in his witness statement or in cross-examination that the Defendant or Mr Keeler was responsible for it. It is, in those circumstances, hard to see what this allegation adds to the claim, or why he made it, other than to insinuate, with no basis in fact, that something sinister was going on.

[39]These are examples of the First Claimant’s approach in the documents he has produced, and his approach to making allegations. I find that these examples show that he has a tendency to exaggerate, and, at times, to mislead. He has made allegations in documents which, when he is asked about them, he has had to concede, are not true. I take this tendency into account in evaluating his evidence on the contested issues.

The Second Claimant

[40]As in the case of the First Claimant, I found that the Second Claimant’s responses to questions which he was asked about the documents were revealing. I mention some examples only.

[41]He was asked about a document at page 724. This was sent by Mr Sudradjat of SSC to students to whom work permits had been issued. It said, ‘Now all we have to do is work together to get you a visa!’. The document is a briefing note to students, giving them advice about what to say when they were interviewed by the Entry Clearance Officer in Jakarta. The document says that the Entry Clearance Officer’s job is ‘to find ANY reason not to let you come into UK…you have to bear in mind that they will ask you trick questions and if you answer with the obvious answer, you will not get a visa’. It said that it would set out a list of (seven) (presumably ‘trick’) questions, with scripted answers. It then said ‘DO NOT TAKE THIS LIST WITH YOU TO THE INTERVIEW OR SHOW IT TO ANYONE ELSE!’ Students were told to refuse the offer of a translator (because if they needed one, they should not be coming to the United Kingdom), to emphasise that they were going to the United Kingdom for training, not to ‘lay it on too thick’ about their own qualifications, because if the Entry Clearance Officer thought they were ‘too experienced they will ask you why you should go to the UK for Training and Work Experience. If they do ask you you must state that it is the only place where you can get training… and nowhere else’ (paragraph 6). Paragraph 5 said that students might be asked ‘how can you afford to live on the money which you have left after you have paid your agent?’. Paragraph 5 continued, ‘You must reply that the money paid to the agent is a repayment of the costs to get you to the UK and to look after you …in the UK and that after you have paid this, you are left with around £100… to spend on yourself which MUST be more than enough’ because it was more than the state pension of £82.05 per week.

[42]It was suggested to the Second Claimant that this document amounted to coaching students about what they should say to get a visa. He denied that he knew that the document was improper. He was asked about the capitalised bold passage, above. His explanation for this advice was ‘If they showed it to the consulate, the consulate would think that they were too stupid to get a visa’. It was suggested that the references to training showed that training would not otherwise be at the forefront of students’ minds, and he was asked why the students needed to be told that the purpose of their visit was training and work experience. He replied, ‘They got confused. We had to treat them like babies, to make sure that there were no shocks’. I had difficulty following his rambling reply when he was asked about paragraph 6.

[43]This ‘briefing document’ and the Second Claimant’s answers to questions about it showed, in my judgment, that SSC, and the Second Claimant, realised that the details of the arrangements made by SSC, ostensibly under the Training and Work Experience Scheme (‘TWES’), might well cause doubts in the minds of inquisitive officials. Officials might discover, from unschooled or naïve answers given by students, that they were very well qualified, that some of them might have difficulties with the English language, and that they were paying large sums to SSC to go to the United Kingdom to work in minimum wage jobs in hotels, rather than to be trained. The briefing document was designed to reduce that risk, and that is why Mr Findlay had such trouble in giving plausible answers to the questions he was asked about it.

[44]He was asked about the student’s contracts of employment. He accepted that the contracts said nothing about training and that they were ‘standard’ for all the staff employed by the hotel, whether or not they were students. He was asked about page 1403, a witness statement from Lesley Hancock, the HR manager at the Belfry Hotel. She relates that the Second Claimant contacted her in 2002 with an offer to supply high quality hospitality workers from Indonesia to be employed in the Hotel. He told her that the Hotel would not have to pay SSC any fee for being supplied with workers. It was not until 18 April 2006 that the Second Claimant contacted the Hotel to discuss setting up a formal training programme for the workers they were considering introducing to the Hotel. She referred to an email from SSC confirming that students did not expect to follow a ‘rigid training programme, as they were here to get training and work experience in a good quality hotel’. The Hotel told SSC that it was not able to deliver a training plan which SSC gave it. In any event, all staff received any necessary on-the-job training. The Second Claimant, when asked about this witness statement said that it was ‘not particularly correct’, and that the Hotel were ‘paying workers they didn’t really need’. His answers about what training was provided did not persuade me that the Second Claimant thought that SSC were providing any training for students at the Belfry.

[45]He was asked about paragraph 17 of his witness statement. The background is that the Defendant’s prosecution of a company of which he was a director, Ruby Mears (‘RM’). He and the company were prosecuted for breaches of the legislation governing employment agencies who place models in jobs. He said that there was a ‘plea bargain’. His solicitors advised that RM should plead guilty. The ‘bargain’ appears to have been that if RM pleaded guilty, the prosecution of the Second Claimant would be dropped. I say more about this below, in paragraph 79.

[46]In paragraph 17, the Second Claimant said that after the case ended, outside court, ‘Mr Keeler via a colleague made a press statement naming and blaming me notwithstanding all the charges against me had been dropped. I interpreted this event as a definite indication of bad faith on Mr Keeler’s part and as I say I was amazed that a public servant should behave so irresponsibly and vindictively’. The Second Claimant was shown the Defendant’s press release (page 342). It does not refer to him at all, but only to RM. He said in his evidence that Mr Keeler made a statement outside court after the case. When he was shown paragraph 17 of his witness statement (dated 6 January 2016) he said, ‘Things are clearer now. But I didn’t remember when I made the witness statement…I put two and two together and made five’. He accepted that there was nothing wrong with the press release. ‘It doesn’t mention me’. He accepted that the press statement did not ‘name and blame me’. He was asked where that allegation came from, and said, ‘Maybe it is me being a bit over-eccentric with words’.

[47]The Second Claimant’s evidence on this shows that he is prepared to make unsubstantiated allegations when he considers that it suits his purpose to do that. It also shows a reluctance to face up to the fact that that is what he has done; he has not lied, but merely added two and two together and made five, or been ‘over-eccentric with words’. He would not accept in cross-examination that his account of the prosecution of RM was misstated and exaggerated to bear out his claim of malice; nonetheless, I find that it was.

[48]A second example of the Second Claimant’s willingness to make unsubstantiated allegations is his reliance on a reference in the schedule of sensitive unused material (which was produced for the trial in the magistrates’ court) to an intelligence report sent by the Home Office to the Defendant. He insisted that this reference showed that Mr Keeler told ‘a bit of lie’ when he said in his witness statement that he (Mr Keeler) had not contacted the Home Office. The reference to the intelligence report shows no such thing. It shows, not that Mr Keeler contacted the Home Office, but that the Home Office sent a report to the Defendant, as Mr Keeler explained when the Second Claimant cross-examined him. He explained that the Defendant’s Employment Agencies Service (‘EAS’) is a prosecuting authority, that intelligence is shared between prosecuting authorities, that the Home Office did not know that EAS was investigating SCC, and that the Home Office contacted EAS and not him, personally. I accept Mr Keeler’s evidence on these points.

[49]A third unsubstantiated allegation was that Mr Keeler ‘controlled’ Mr Atkins, the solicitor who made the decision to prosecute the Claimants, and who conducted the prosecution. To anticipate what I say about those two witnesses, below, I do not accept that Mr Keeler in any way ‘controlled’ Mr Atkins, or that Mr Atkins did anything other than act independently, and in accordance with the Code, and his view of the merits of the case, in his decision to prosecute, and in his conduct of the prosecution.

[50]In her witness statement, Ms Malpas, who is employed by the relevant local authority, explained, in short, that the local authority is aware of CCTV operations and applications in its area and that the only CCTV camera installed in the relevant period at or near the addresses in Corby to which she refers to in paragraph 5 of her witness statement was installed outside a council-owned building between 7 September 2007 and January 2008 to monitor anti-social behaviour. A fourth unsubstantiated allegation, all the more inexcusable because the Claimants did not require Ms Malpas to attend the hearing and be cross-examined, concerns a CCTV camera which, the Second Claimant says, was installed outside the Second Claimant’s house in August 2006. Mr Findlay was asked in cross-examination whether he was saying that Mr Keeler was responsible for the CCTV camera outside his house. His reply was ‘The Defendant was responsible in some way shape or form’. He said that Ms Malpas was mistaken, and one could see from the photographs that this was not the sort of area where there would be anti-social behaviour. She was mistaken, he said, because someone told him that people who wanted to install CCTV cameras did not need the permission of the local authority. When he was referred to bundle, page 2938 (which set out a Freedom of Information request he had made about who applied for planning permission for the erection of a camera, and the local authority’s response, which was that no planning permission was required), he accepted, ‘Maybe I overstepped the mark’.

[51]The Second Claimant made a fifth unsubstantiated allegation in the course of his cross-examination. He said that the magistrates had not been told about the decision of DJ Pearl (see further paragraphs 91, and 131-135, below). Later on, when shown documents that contradicted that assertion, he qualified that assertion by saying that ‘no big song and dance’ had been made of her judgment. He was unable to explain (since he was legally represented) why that was so, if the DJ’s decision was so important. A little later, he accepted, in the light of another document, that the magistrates had seen the DJ’s decision. ‘They did see that, so I was wrong’.

[52]He made a sixth such allegation in his cross-examination. It was suggested to him that that the magistrates made no criticism of Mr Keeler from the bench. His answer was ‘Orally they did’. He was unable to answer when asked, twice, whether that allegation was in his witness statement. He accepted that this allegation was not pleaded. I conclude that he invented that allegation while being cross-examined, and I reject it. It is significant that the First Claimant made similar allegations in the document at page 2817, to which I have already referred, and that, when pressed, he accepted that they were not true.

[53]The Second Claimant was asked about correspondence between SSC and Newmarket Citizens’ Advice Bureau (‘CAB’) and Mr Reed, of the Cadogan Hotel. The First Claimant wrote to the Newmarket CAB on 20 September 2005. He said that SSC’s contracts ‘have been studied by lawyers overseas and also by lawyers for the various Government agencies we work with as well as various large hotel groups who help us with the program [sic]’. He told the Newmarket CAB that the contract between SSC and Ms Sari only became an issue when the Hotel realised that ‘because we charge the student for our costs incurred’ the Hotel would not be able to charge Ms Sari £76 per week, and having asked SSC to reduce its ‘fees’ and been told that ‘this was not possible’, they ‘have now coerced her into this action’. The Second Claimant accepted that ‘persuasion’ would be a better word than ‘coercion’. He did not directly answer the question whether SSC’s depiction of the position of Mr Reed of Cadogan Hotel in this letter was a misrepresentation of Mr Reed’s true position, as shown in his letters to SSC. Although the letter of 20 September was written by the First Claimant, the Second Claimant did not disown it. He tried to defend it, thus associating himself with the obvious inaccuracies in the letter, from which he only partly resiled when he accepted that the word ‘coerced’ was inaccurate.

Conclusions about the Claimants’ general reliability

[54]I conclude that neither Claimant showed, in the course of his evidence, or when cross-examined about documents which he, or SSC, had produced, a strict regard for truth. Each was prepared to make allegations for which he could provide no support, and each was prepared to make allegations which, when checked, were obviously untrue. To be fair to them, each Claimant was prepared, at times, and to varying degrees, to accept that an assertion shown to be untrue was untrue. I bear in mind this overall conclusion when I make findings about the relevant disputed incidents.

Mr Keeler

[55]In assessing Mr Keeler’s general reliability, I have taken into account the recording of part of his interview with the First Claimant, his responses to the questions he was asked in cross-examination, and, most importantly, the approach which he took to the investigation and prosecution of SSC, as evidenced in the contemporaneous documents. When the interview was recorded, and when he wrote those documents, Mr Keeler had no idea that he was to be the focus of these proceedings. I found that there was no difference between his manner in court, and his manner in the interview and in those documents. He was courteous, thorough, and business-like. There was no hint of oppression, bullying, or unreasonable or improper conduct in the interview, or in any of the documents. Indeed, the First Claimant offered Mr Keeler a cup of tea in the interview. Mr Keeler gave the First Claimant a full opportunity to answer his questions, which were straightforward requests for relevant information. In the interview, in my judgment, Mr Keeler did not behave like a person who was pursuing a malicious campaign. Nor did the contemporaneous documents show any hint of that.

[56]Mr Keeler was thoughtful in cross-examination. He gave considered answers, and unlike the Claimants, did not seem to me to be prepared to make things up as he went along. When he could not remember what had happened over ten years ago, he said so, in response to many different questions.

[57]He was patient, for example, with the Second Claimant’s repeated questions about whether elements of SSC’s charges, such as a taxi fare, could be a fee for finding a job, repeating, in my judgment, reasonably, that the question was what proportion of the charge could be deemed to be a fee for work-finding and that he had passed the information the Defendant’s lawyers for them to consider. He was right to say that HMRC’s classification of SSC’s business as ‘educational service not elsewhere specified’ depended on ‘what business they investigate and find you in’. He accepted that he had not approached HMRC, but there is nothing untoward about that, as, in my judgment, HMRC’s view is not relevant, as a matter of law, to the questions whether or not SSC was an employment agency, and if so, whether it complied with the legislation governing employment agencies. He dealt similarly with a question about whether he had looked at how other government departments such as the Office of the Immigration Services Commissioner (‘OISC’) worked with SSC. He replied, again, reasonably, in my judgment, that he was ‘solely looking at employment agency standards’. There were many rules that employers and employees had to follow (such as those about work permits), but ‘My investigation focussed on employment agency compliance’. It was up to the Home Office, and not the Defendant, to check that people were entitled to work in the United Kingdom.

[58]Mr Keeler dealt sensibly with a question the Second Claimant asked him about bundle, page 455. This was a work permit issued to SSC in respect of a person who was SSC’s own employee (Ardy Sudrajat). The Second Claimant sought to suggest that because UKVisas did not issue work permits to employment agencies, the issue of this work permit to SSC showed that SSC was not an employment agency. Mr Keeler said that the work permit had been issued to SSC because Ardy Sudrajat was directly employed by SSC. The Second Claimant then made the implausible suggestion that UKVisas were reluctant to issue work permits to employment agencies, even for their direct employees.

[59]The Second Claimant was driven to suggest that Mr Keeler knew that SSC was providing immigration services because there was an OISC logo in SSC’s offices and on SSC’s notepaper. Mr Keeler said, and I accept, that those clues did not mean that he knew in 2006 that SSC was providing immigration services. The fact that the suggestion was made would tend to indicate that the Second Claimant was not confident that SSC had told the Defendant that this was so. Mr Giret QC put a somewhat different suggestion, which was ‘At all times in your dealings with the Claimants it was put to you that [SSC] was operating a link with the OISC and under the TWES regime’. Mr Keeler’s answer was that he did not remember the First Claimant referring to the OISC in the 1 May 2006 interview (there is no such reference in the recording which was played to me), that there might have been certificates and posters in SSC’s premises, but he did not look at those things. He accepted that the OISC logo was on the first letter in 2005, but said that nothing about that was specifically drawn to his attention. The Defendant, he said, had sought information from the OISC when the OISC was mentioned at the preliminary hearing in the Magistrates’ Court in 2007. That is supported by the fact that there is no reference to the OISC in the undated draft defence case statement in the bundle. I accept Mr Keeler’s evidence about this.

[60]When cross-examined by Mr Giret QC, Mr Keeler said that he did not believe that he failed in his duty to investigate fully or fairly. He had no malicious intent to bring down the First Claimant or the Second Claimant. He accepted that some of the letters could have been clearer, and that there were areas that could be improved on. He accepted that a crucial word was missing from the letters to the banks (bundle, pages 1410 and 1412, see paragraphs 105-6, below). The investigation was as full as it could have been in the circumstances, he said. I agree with that assessment, particularly in the light of the fact that neither Claimant accepted invitations to explain his position in an interview under caution.

[61]He accepted that the complainants’ witness statements were crucial documents and that they were the basis of the decision to prosecute. It was suggested by Mr Giret QC that the Defendant had presented an unsound case in the hope of getting a guilty plea. Mr Keeler denied that. Having considered all the circumstances of the prosecution, I accept that evidence. Mr Keeler fairly accepted that he had not taken down notes of each interview with the complainants in his notebook, and that, to that extent, he had not followed the Defendant’s relevant Guidance. The evidence from the complainants was not the only evidence, he said; there was also evidence from the hotels. He accepted that the phrase ‘fee for placement’ was not in his (very short) notes of the interviews. He said that that was in the contract, that is, the contract between SSC and the complainant. He said that if the employees have pay to get a placement, it is a fee for a placement.

[62]He was repeatedly asked, by both the Second Claimant and by Mr Giret QC, whether he had investigated the costs of air fares. He said that he had. He was asked where in the bundles the relevant document was. He said he did not know, because he had not looked at the bundles. When he was re-examined, it became clear that he done exactly what he had said he had done, and that there were documents which showed that (see pages 2398, 2134, and 2259).

[63]He was pressed by Mr Giret QC to say where in SSC’s documents there was any reference to ‘fees for placement’. Mr Keeler referred Mr Giret QC to the relevant legislative provisions, in particular section 13 of the 1973 Act; a fee is a fee, however it is described. That meant, Mr Keeler said, that if an employment agency says clearly that it is charging a fee for placing a person that is a breach, but ‘just because they call it something else, that does mean that it is not a fee [for placing a person in a job]. That is for the court to decide’. It will be clear from what I have already said that I agree with that analysis.

General conclusion about Mr Keeler’s evidence

[64]Having considered the recording of part of interview, Mr Keeler’s evidence, and the contemporaneous documents, I am satisfied that he did his best to help the court with truthful and accurate answers. He was cross-examined for the best part of two days, at times repetitively. He had none of the faults as a witness which I have described in the Claimants. There were one or two errors in documents which he was shown, and which he admitted. But there were no examples of demonstrably reckless or misleading claims or assertions in any of the documents he wrote or in his answers. My conclusion is that, in general, what he said was reliable. Mr Atkins

[65]If Mr Atkins could not remember what had happened, or what he had thought, or seen, in relation to events which happened and documents which were drafted over ten years ago, he said so. He did not guess, or speculate.

[66]He was asked by the Second Claimant about an application to adduce bad character evidence (bundle, page 2431). He accepted that, as drafted, the application was ‘not entirely correct’. The notice referred to the Second Claimant’s previous convictions in connection with RM. Mr Atkins accepted that it was RM, not the Second Claimant, which had pleaded guilty to those two charges. He conceded that the wording should have been different. He said that the information came from Mr Keeler. His letter dated 3 December 2007 to the Claimants’ then solicitors explained the purpose of the bad character evidence. He had indicated at the previous hearing (ie on 16 November 2007) that the prosecution would rely on the evidence if the Second Claimant suggested that he did not know of the existence of the Defendant’s inspectorate or that the 2003 regulations did not apply to his business. I reject the unpleaded allegation made by the Second Claimant, in the course of his cross-examination, that Mr Atkins made this application maliciously. It was a sensible application. Mr Atkins explained his reasons for making it. The fact that he made a mistake, which he admitted, in referring to the conviction of the Second Claimant, instead the conviction of RM, does not show that the application was malicious. The Second Claimant was, at the relevant time, a director of RM; see further, paragraphs 45-47 above, and paragraph 79, below.

[67]He said he would not use the word ‘scam’ about the OISC defence. He knew that an argument would be run that SSC was under the supervision of, or licensed by, the OISC. The Defendant’s view was that dual regulation did not amount to a defence. The phrase ‘manufactured defence’ was used ‘because it was not raised earlier, pure and simple’. The Claimants were invited to interview under caution and chose not to go. This argument was not raised immediately, but only late in the day.

[68]The Second Claimant cross-examined Mr Atkins about why holding a passport was a detriment. He gave, in my judgment, a convincing series of answers. The holding of the passport prevented a worker from leaving the employment of the current employer, and prevented the worker from going home if he wanted to. The question which was uppermost in his mind was why an agency would hold a passport, which was the property of a foreign government, and why an agency would make that a stipulation of the contract between it and the student. A suspect had a right not to agree to be interviewed under caution, but in the absence of any explanation advanced in such an interview, his view was that ‘objectively’ holding a student’s passport was a detriment to that student. If a student was questioned by the Home Office or by a hotel, they would need their passport. He believed that it was a detriment and was unnecessary. His experience from doing police defence work was that the police wanted an answer immediately. The work permit guidance did not recommend that employers, or agencies, should hold employees’ passports. His firm view was that unless there was an immediate need (such as the need to get hotel accommodation) the bearer of the passport should hold it and that it should not be held long-term by anyone else.

[69]Mr Atkins was also cross-examined on whether there was enough evidence on the fees charge. He was satisfied that charges had been levied and paid, that they could be broken down and that an inference could be drawn that there was a benefit to SSC. SSC was called ‘the Staff Supply Company’. The purpose of the business was to make a profit. Even if the benefit could not be identified down to the last penny, he was satisfied that the business was making a profit. That was an inference which could be drawn from the facts. He would not be drawn into criticism of the decision of magistrates, which he respected.

[70]He denied that the prosecution had been run ‘in an incorrect manner’ while conceding that with the greater investigative powers which are now available, the Defendant might have been able to get more evidence. He said that the job of the prosecution is fairly to lay a case before the court, and its job is done when (as here) the tribunal finds that there is a case to answer. The magistrates also found that SSC was an employment agency and that it had retained the passports. There would have been something wrong with the case if it had been dismissed at half time.

[71]Mr Giret QC cross-examined Mr Atkins at some length on various provisions in the Code. He was asked whether he had given any consideration to the Claimants’ explanations ‘given through Mr Keeler’. He replied that he was keen to see if the Claimants would be interviewed under caution. Mr Atkins was asked if he had considered whether the complainants’ witness statements were reliable given that their statements were ‘not what they had to say but what Mr Keeler said’. He replied that it was like a criminal case in which the police draft witnesses’ statements. It was not unusual. He knew that Mr Keeler had written the witness statements. He accepted that the important parts of each statement were in identical terms.

[72]He was asked whether he was satisfied that the contract ‘referred to fees for work placement’. His answer, in short, was he was not satisfied that the contract represented the true state of affairs, ‘not for the first time’. He noted the heading and that SSC was not called ‘the Student Supply Company’. Despite the language of the contract he was satisfied that the students were work seekers who were being placed in employment. The similarity of the witness statements of the complainants, rather than raising suspicion, to his mind showed a system. The evidence of the hotel supported that. It was no part of his duty to ask to see Mr Keeler’s notes. Prosecutors were not, in those days, allowed to speak to witnesses. He had experience of Mr Keeler, whom he saw as an honest and reliable investigator. There was nothing in his history or in that of the EAS which caused him any doubt. There was internal agreement that if the defence did not agree to the reading of the witnesses’ statements at the trial (the defence did in fact agree) they would be flown back from Indonesia. I accept this evidence. It is supported to some extent by a document at page 1955 (a letter from the Claimants’ solicitors dated 11 July 2007) and by bundle, page 2086.

[73]He was not troubled by the risk that the complainants had a financial motive. He accepted that it was a remote possibility. In his experience, people did not make a complaint unless there was substance to it. At the time, he considered that the statements were reliable. If need be, the witnesses could be flown in (see the previous paragraph).

[74]He was asked whether he had given any thought to the fact that English was not the complainant’s first language, and that ‘fee for placement’ is not a phrase an Indonesian would use. His reply was that the question was whether the witnesses were describing the facts, not the individual words they used. Many statements are drafted by professional investigators, and the words do not tally with the words used by the witnesses. He could not answer whether he had seen Mr Keeler’s notes of his interviews with the witnesses, but did not find those notes alarming. They were investigator’s notes, in a format common for EAS and for the Defendant’s own officer service. As he explained, the witness statements ‘spoke to’ documents, and referred to different exhibited documents. The statement, he said, is a narrative which allows the exhibits to ‘speak through’ the witness statement as to formal production, admission, and as to their contents. As far as he knew, it was a standard pattern for writing statements, and nothing to cause alarm, except and in so far as there was an incorrect reference to a document, or a document contradicted the commentary in the witness statement.

[75]He was asked about the decision of the DJ (see further paragraphs 91 and 131-135, below). He said he had read it and that it was a major concern before the prosecution. Ms Sari’s complaint was similar to the complaints of the complainants, and the DJ had specifically found that SSC was not an employment agency. ‘In terms of selection of charges’ Mr Atkins was ‘long enough in the tooth’ to realise that he did not want to ‘embark on a raft of issues’ with her. He was not a civil lawyer, but took advice, and his analysis, on advice, was that the case could be distinguished. He had no knowledge of the evidence which had been given in that case, other than what could be gleaned from the DJ’s decision. In relation to the four witnesses, ‘the documents spoke for themselves’ so it was not immediately apparent that there was any improper or inaccurate statement in their evidence.

[76]He disagreed that he had no evidence and should have abandoned the proceedings. ‘If I’m wrong, I’m wrong.’ He thought that it was right to bring the prosecution and that the tests in the Code were met. He accepted that paragraph 25 of his witness statement was not precisely accurate in so far as it suggested that paragraph 9 of the contract set out a fee for finding work. Paragraph 25 says, ‘I believed at the time I made my [decision to prosecute] that paragraph 9 of the Contract set out a fee for finding work. This accorded with the evidence of the Complainants and what Mr Findlay and Mr Da Silva told the Department about their business’. In paragraph 9, the student agreed that from his or her weekly pay there would be deducted, among other things, ‘The agents [sic] administration and cost charges which are £1500 for transportation, and £1500 for every six months or part thereof that The Students [sic] stay in the UK’. General conclusions about the evidence of

Mr Atkins

[77]Mr Atkins also did his best to help the court. He made concessions where they were appropriate. I was satisfied by his evidence that he is a thoughtful, independent, and experienced prosecutor, and by the documents in the bundle which he drafted, that he did a thorough job preparing the case for prosecution. His decision to prosecute was reasonable. His decision to continue with the prosecution to trial, and his conduct of the pre-trial preparations and of the trail were also reasonable. I reject the suggestion that his decisions were in any way controlled by Mr Keeler.

The facts in outline

[78]I have been greatly helped in setting out the facts by Mr Deakin’s full chronology.

The prosecution of Ruby Mears and of the Second Claimant

[79]The Second Claimant was a director of RM, an employment agency. RM and the Second Claimant were prosecuted in 2003 in Corby Magistrates’ Court, pursuant to two summonses, for breaches of the law governing employment agencies. On 27 June 2003, the solicitors acting for the prosecution wrote to the Court to say that if RM entered guilty pleas to both summonses, the prosecution would offer no evidence against the Second Claimant. On 18 July 2003, the Defendant issued an anodyne press release about the successful prosecution of RM. It did not mention the Second Claimant’s name. Mr Keeler of the Defendant was involved in the investigation and prosecution of RM. SSC

[80]SSC was incorporated on 3 October 2001. The proposed registered office was The Ivy House, Franklin Fields, Corby. An annual return to 3 October 2006 showed that that address was also the personal address of each of the Claimant (bundle, page 1521). The First Claimant was listed as company secretary and director. The other director was Amanda Maty. Amanda Maty resigned as a director of SSC on 31 October 2005. On 21 February 2005, the Second Claimant was appointed a director of SSC. On 27 November 2005, SSC was given a standard Consumer Credit Brokerage Licence.

Events in 2003

[81]On 18 March 2003, Lesley Hancock, the Employee Relations Manager at the Belfry Hotel, wrote to ‘Robin’ at SSC (that is, the Second Claimant) about a contract between her employer, DVHL, and SSC. She referred to a ‘request for 6 chefs qualified to a minimum of NVQ Level 3 and working towards Level 4’. A contract was made between DVHL and SSC in April 2003. It was said to contain ‘the terms on which’ SSC ‘(the Agent)…will supply overseas students to Employer under the terms of a [TWES] Work Permit’. If the student was not ‘suitable for the job proposed’ he or she could be placed in another position if the employer and agent agreed. The agent agreed to make various arrangements and to pay for them, and to keep the student’s visa, work permit and passport ‘for security and safe keeping’.

Events in 2004

[82]Between February and May 2004, there was correspondence between Diane Gilbert of the Lee Marston Hotel and Leisure Complex (‘LMH’), the Second Claimant on behalf of SSC, and others. This referred to people placed by SSC being ‘employed’ by LMH, and to the fact that one had been ‘working’ at LMH, to the ‘salary’ of one and to the fact he was living in ‘staff accommodation’. The contract between LMH and SSC was slightly different from the contract between SSC and DVHL. It said that ‘Under United Kingdom law the Agent is not an Employment Agent but a payroll agent for the Employer and a placement agent for the Student’. A letter dated 6 July 2004 from Sonya Dacre of the Belfry refers to the completion of Fatony Abar’s ‘full training plan’.

Events in 2005

[83]On 2 March 2005, Imelda Waty filled in a form provided by SSC, answering questions about the effect of her contract with SSC. On 20 June 2005, Desi Ratna Sari made a contract with SSC. SSC wrote to her on 31 July 2005 explaining what she had to pay them: £1500 ‘for the cost of arranging your arrival and then £1500 to take care of you for every 6 months of your stay’. The total of £4500 was to be paid directly from her bank account.

[84]In 2005, there was correspondence between SSC and Mr Reed, the Director of the Cadogan Hotel (‘CH’). He expressed his concerns about the terms of the arrangement between SSC and Desi Ratna Sari. SSC agreed to allow CH to hold her passport in a locked safe. SSC’s letter of 18 August describes Desi Ratna Sari as ‘working so hard for you’. Mr Reed referred to the ‘exceptionally high fees (in my opinion)’ which SSC was charging. SSC wrote to Desi Ratna Sari on 24 August to say that if she missed any payments to them, she would be charged an extra £50 ‘to cover the work involved’. SSC wrote to Mr Reed on 26 August. The fees were none of his business and ‘the charges have been checked by various Government Departments’. The only evidence of any official scrutiny of SSC’s fees which I have seen was by one government department or offshoot, that is, by the OISC. On 30 August, Mr Reed told SSC that he had seen the contract between SSC and Desi Ratna Sari. He was discussing the question of holding her passport with the Immigration Service and with the Indonesian Embassy. SSC had suggested that Mr Reed had wanted to charge Desi Ratna Sari for rent and meals. He made it clear to SSC that that was never his intention and that he considered that SSC was exploiting the Indonesians they brought in. He did contact the Indonesian Embassy. They asked him to contact the consular section. On 13 September 2009 the Indonesian Consulate wrote to Mr Reed. It said that the passport was the property of the Indonesian Government and should be kept by its bearer.

[85]On 1 September 2005, Newmarket CAB wrote to SSC about Desi Ratna Sari, saying that it was clear that SSC was acting as an employment agency and that the fees it was charging were illegal. On her authority, the CAB had drawn the matter to the attention of the Defendant’s relevant inspectorate. On the same day, the CAB wrote to the Defendant’s EAS raising concerns about SSC. SSC replied that if Desi Ratna Sari and CH did not comply with their contracts, they would be sued. On 2 September 2005, the Defendant acknowledged receipt of the complaint and said that it would be allocated to Mr Jones. On 20 September 2005 the CAB wrote to SSC to say that Desi Ratna Sari would pay the costs of her transport to the United Kingdom and asking for a detailed breakdown of SSC’s charges. SSC (the First Claimant) wrote to the Newmarket CAB on 20 September 2005. SSC was not an employment agency and ‘indeed in our role as defined by the Government it would be illegal for us to be described as an employment agency’ (emphasis added). SSC described, without giving any breakdown, what it paid for. SSC added that their contract with Desi Ratna Sari only became an issue when CH realised they could not charge her £76 per week, and CH ‘coerced her’ into taking action. Mr Reed wrote to SSC on 26 September 2005, denying those two accusations.

[86]On 26 September 2005, SSC issued proceedings against Desi Ratna Sari, claiming £4500.

[87]Mr Jones wrote letters to SSC in October and November 2005 to arrange a meeting. He apologised for not being able to attend on the date he had initially arranged (7 November 2005). On 9 November 2005 SSC (the Second Claimant) wrote to him, ‘…As confirmed with you by telephone, this company was formed specifically NOT to be an employment agency or recruitment business. We find training places for students. We do not charge fees. The students only repay us what it has cost us to bring them to the United Kingdom and maintain them during their stay’ (emphasis added). SSC said that the directors would be out of country from late November until the end of January 2006

[88]Imelda Waty made a contract with SSC on 11 November 2005. The Belfry wrote to her on 14 November 2005, expressing its ‘delight’ at offering her ‘the position of Room Attendant outlined in the enclosed contract’. She was to be employed on a probationary period at first and the ‘employment’ could be ‘terminated’ on one week’s notice. A stage 1-5 training schedule was included.

Events in 2006

[89]On 28 January 2006, SSC made a contract with Fauziah, on 1 February 2006 with Sofia Buntarti, and on 12 February 2006 with Hendy.

[90]On 16 February 2006 Mr Keeler of the Defendant wrote to SSC, raising concerns about its business. He fully summarised the relevant legislative provisions. He said that he needed to visit SSC’s premises with a colleague to inspect SSC’s records and to discuss the matter further. He said he would come on Monday 6 March 2006. On 16 February 2006, Mr Keeler emailed the Newmarket CAB. He asked for an update.

[91]On 28 February 2006, District Judge Pearl (‘the DJ’) gave judgment to SSC on its full claim against Desi Ratna Sari. I infer that that judgment was given ex tempore. The DJ held that SSC was not an employment agency. I say more about the DJ’s judgment in paragraphs 131-135, below. On 1 March 2006, SSC (the First Claimant) wrote to Mr Keeler. The letter referred to the Newmarket CAB’s ‘vexatious and misleading complaint’ which was a smokescreen designed to impede SSC’s preparation for the case. The DJ saw through this. One of the grounds of her decision was that SSC ‘is absolutely NOT’ an employment agency or recruitment business ‘and therefore does not have to comply with’ the 1973 Act. SSC thanked Mr Keeler for his letter of 16 February which ‘was very helpful and has raised some interesting discussions between the Directors …and our Lawyers which may result in some amendments to our paperwork so that no misinterpretation can occur in the future’. If SSC needed any guidance in the future, it would contact Mr Keeler. In the light of the DJ’s decision, the visit on 6 March was no longer necessary. In any event, the directors would be out of the country from 3 March until the end of April, so no-one would be available to meet him.

[92]Mr Keeler replied on 2 March 2006. He said he did not know what evidence had been before the DJ. He referred to SSC’s name, and what that implied. He quoted extensively from SSC’s website, headed ‘QUALIFIED HOSPITALITY STAFF AT LITTLE MORE THAN THE MINIMUM WAGE! CAN’T BE TRUE – READ ON’. The First Claimant accepted in his evidence that this website was aimed at hotels in the United Kingdom. The website said, for example, that hotels would ‘have to give them very little training’. Students were interviewed to ensure that they had a ‘good command of English’; ‘little or no training needed – trained already’. The ‘staff’ were ‘committed, dependable and hardworking… We have staff who are ready to start work within the next three weeks – please phone for further details to reserve your staff... We look forward to hearing from you to tell us what staff you require’. Mr Keeler said in his letter that SSC was clearly supplying workers to hirers and SSC was in the scope of the legislation. Because the Defendant had sufficient reason to believe that SSC was acting in the scope of the legislation, the Defendant had power to enter SSC’s premises to inspect records and ask questions.

[93]It was disappointing, he continued, that the directors were not available until the end of April. He would visit on Monday 1 May, he said. It turns out that that day was a Bank Holiday. The Claimants suggested that the choice of this date showed a sinister excess of enthusiasm on Mr Keeler’s part. He explained that he had not realised when he fixed the date that it was a Bank Holiday. It is clear that he offered to change the date when he realised, well in advance of 1 May, that it was a Bank Holiday (email of 23 March 2006). In the event, as the later emails showed, the First Claimant was content to meet him on 1 May (emails of 21 and 24 April 2006). I accept Mr Keeler’s explanation. The fact that the Claimants even suggested that there was anything to be made of this episode typifies, in my judgment, their unreasonable approach to this litigation.

[94]I further find that, in all the circumstances, this letter did not show that Mr Keeler was acting unlawfully, still less, maliciously, at that stage. He was entitled to say that he did not know what evidence the DJ had based her decision on, and also entitled, on the basis of the website alone, to conclude that there was reason to believe that SSC was operating as an employment agency or employment business. He was also entitled to conclude that he should investigate SSC’s business further.

[95]On 18 April 2006, SSC sent an email to Louise Alton (at the Belfry). SSC said that SSC had made some changes to the assessment programme. As the Second Claimant had explained, the students did ‘not expect to follow a rigid training programme. They are simply here to get training and work experience in a good quality hotel. Also the training assessor has told us that the students should be able to find out all the information required by simply doing their job and if you read through the assessment programme you will see this’.

[96]Mr Keeler and Ms Griffiths interviewed the First Claimant in his office on 1 May 2006. They consented to the recording of that interview. Part of the recording of the interview was played during the hearing. In my judgment, nothing in the extract I saw showed any objectionable conduct by Mr Keeler or by Ms Griffiths. Nor did the Claimants suggest that it did.

[97]On 4 May Mr Keeler sent an email to the Newmarket CAB. He said that he had interviewed the First Claimant. He was seeking further legal advice from the Defendant’s solicitors. He asked the CAB for a copy of the DJ’s judgment. The CAB did not have a full transcript. In due course, on 1 November 2006, Mr Keeler got the transcript from the court. Mr Keeler made an undated investigation report (bundle, pages 1139-1142). The major issue seemed to be the fees charged by SSC to students. The First Claimant had said these did not relate to work-finding services. He had explained to the First Claimant in the interview (rightly, see section 13 of the 1973 Act) that a fee was a fee ‘however it is described’. Mr Keeler considered that some of the fees were associated with finding placements. Although the First Claimant had explained that the fees were not conditional on finding a placement, that was not made clear on the website or in any document. He felt that students might feel that they were obliged to pay the fees to get a placement. He asked for legal advice. In my judgment, in the circumstances, this was a proper report. It does not show any improper motive or malice. It was a reasonable report to write in the circumstances. It also shows, contrary to suggestions made by the Claimants during the hearing, that Mr Keeler did take into account the First Claimant’s explanations in the interview. He took them into account, but he was entitled not to treat them as answers to the legitimate questions he had about SSC’s business, and, therefore, to take things further and to ask for legal advice.

[98]Ms Becker gave some advice on 30 May 2006. She said she would be interested to see the DJ’s judgment. In any event, she considered that SSC seemed to fall within the scope of the legislation. Businesses set up to find work experience for students would generally do so, as she had previously advised. SSC appeared to be charging students for work finding services in breach of section 6 of the 1973 Act. Further investigation was needed in relation to the 2003 regulations. In the circumstances I consider that this advice was reasonable.

[99]Mr Keeler then wrote SSC a formal letter on 7 June 2006. He referred to the interview. He had taken legal advice. He summarised the information he had gathered about SSC’s activities. He explained his legal reasoning in some detail. At that stage, his view was that SSC was acting as an employment business, rather than as an employment agency. He asked SSC to confirm, in the next 21 days, what action it would be taking to comply with the legislation, and for its confirmation that it would be issuing refunds to all 12 workers from whom it had received fees. He warned SSC that the Defendant had powers to consider criminal proceedings. In the circumstances, I consider that Mr Keeler acted reasonably in sending this letter. He had reasonable grounds for writing it. It does not show that he was acting from an improper motive, still less maliciously. SSC replied on 9 June 2006, disagreeing with Mr Keeler’s analysis. The First Claimant said he had taken legal advice. He reminded Mr Keeler that he had recorded that interview and said that ‘after reading your letter carefully I can see that you twisted and lied’. Having seen the recording of part of the interview, I can see no evidence of distortion or lying in Mr Keeler’s letter. SSC’s letter said, among other things, that SSC ‘are providing Training for Hospitality Students and NOT employment in any way’. The suggestion that SSC were not providing ‘employment in any way’, is on the basis of their own documents, extremely ambitious.

[100]At some point, the complainants made a complaint about SSC to Tamworth CAB (‘CAB 2’). On 29 June 2006, CAB 2 wrote to the complainants to say that they had spoken to Mr Keeler about their situation and that he would be arranging to interview them. On 26 July 2006, Mr Keeler interviewed the complainants at the office of CAB 2. He took very brief handwritten notes. He accepted in cross-examination that he did not record in his notebook, word for word, what each complainant had said to him. He prepared formal witness statements for each complainant. He then sent them to CAB 2 for the complainants to sign, and amend, if they wished. Each signed a witness statement on 6 October and each made manuscript changes to the draft, and initialled those changes. On 24 October Mr Reed signed a witness statement.

[101]On 3 October 2006, Mr Keeler approached Sue Alton from the Belfry asking for a meeting. On 3 November 2006, Mr Keeler wrote to each of the directors of SSC, saying the Defendant did not think that they were complying with employment legislation, and inviting them to an interview under caution. No director responded to that invitation. On 28 November 2006, Mr Keeler expressed his view in an email that the case was a breach of section 6 of the 1973 Act. He asked for further legal advice. He described the history of the case very fully. He attached relevant documents. He said that the Defendant should consider proceedings against the directors. He asked for comments on the evidence, and what further information was necessary for the matter to be considered further. The email was a reasonable email. Mr Keeler had reasonable grounds for asking for further legal advice. There is no material inaccuracy in the email. It is not evidence of an improper motive, still less of malice.

[102]There were further internal emails about a possible prosecution. It appears that the directors of SSC were again invited to an interview under caution to be held on 12 December 2012 at the Job Centre in Corby. They did not attend. Mr Keeler and Ms Griffiths then went to Margarethe House, SSC’s business premises, and the Ivy House in Franklin Fields in Corby. The Claimants were not at either place. Mr Keeler and Ms Griffiths went to the Ivy House because Mr Keeler rang Royal Mail to see if post from Margarethe House was being re-directed and was told that it was being re-directed to the Ivy House. The Claimants suggested that this conduct was over-zealous, intrusive, or in some way sinister. It is none of those things. Mr Keeler and Ms Griffiths had travelled from London to Corby. No-one turned up to the interview under caution which they had arranged at the Job Centre. It was reasonable for Mr Keeler and Ms Griffiths to use their visit to Corby see whether the directors of SSC were, either, at its place of business, or at its registered office. In the circumstances, there was nothing unlawful unreasonable or malicious in Mr Keeler’s asking the Post Office whether mail was being re-directed from SSC’s business premises. I bear in mind that the Claimants’ home address and SSC’s registered office were the same.

Events in 2007

[103]On 22 December 2006 Mr Keeler had invited the First Claimant to a further interview under caution on 25 January 2007. The First Claimant replied on 20 January. No-one was available on 25 January, but, in any event, SSC had nothing further to say. On 24 January 2007, Ms Becker gave written advice about the DJ’s judgment. She said, in short, that the DJ’s legal reasoning was not clear. In any event, she considered, for the reasons which she gave, that the DJ’s decision was distinguishable on the facts. That was reasonable legal advice in the circumstances.

[104]On 30 January 2007 Lesley Hancock from the Belfry signed a witness statement.

The letters to the banks

[105]On 8 February 2007 Mr Keeler wrote two materially identical letters to Barclays Bank and to the Royal Bank of Scotland. Their heading included ‘Employment Agencies Act 1973’, the names of the Claimants, that they were directors of SSC, and the numbers of the relevant bank accounts. Mr Keeler explained the Defendant’s role, and gave a link to details about the relevant legislation. He said, ‘We are commencing criminal [missing word] against the Directors…and their company…for offences under [the 1973 Act].’ He accepted that a word was missing from this sentence. At this distance it is not clear what the missing word is. Various words are possible, such as investigation, proceedings, prosecution. ‘We are looking at charges relating to fees received by this company from work seekers for work-finding services contrary to section 6(1) of [the 1973 Act]’. He related that workers paid their fees into a specific bank account. He asked the bank to confirm whether the account was in SSC’s name and that the signatories were the Claimants. He also asked for details of all payments made into the account from 1 August 2003 so as to identify payments made contrary to section 6. He attached copies of the relevant legislation.

[106]I can see nothing wrong with these letters. Contrary to a suggestion made by Mr Giret QC in his cross examination of Mr Keeler, the letters have nothing to do with money-laundering, whether expressly, or by implication. They are reasonable requests for information in the circumstances. The fact that the Defendant had not yet made a formal decision to prosecute the Claimants or SSC does not change that. It was suggested that these letters were oppressive, unrelated to any legitimate investigative aim, and calculated to cause loss, by ensuring that the banks would close the accounts in question, and by Mr Giret QC in his cross-examination of Mr Keeler, that they were written maliciously. There is no foundation in these suggestions. I accept Mr Keeler’s denial that they were written maliciously. There is, further, no evidence, other than the First Claimant’s unsupported assertion, that the banks closed the relevant accounts, whether in response to these letters, or, indeed, for any other reason. In paragraph 14 of his decision to prosecute (see paragraph 109, below) Mr Atkins noted that the purpose of seeking documents from Barclays was to see if anyone else could be identified as work seekers who had paid a charge for SSC’s services. That bank, he noted, had refused to co-operate, and a witness summons against an authorised officer of the bank would be sought once proceedings had commenced.

The bailiffs

[107]On 8 March 2007, bailiffs seeking to enforce a fined imposed by RM by the Magistrates’ Court seized a Mercedes Benz car, model number CLK 320, from outside the Ivy House in Corby. I say more about this in paragraph 145, below. The First Claimant made a complaint to the Northampton Police about the conduct of PC Bettles on that day. The Police concluded their investigation into that complaint on 6 June 2007. PC Bettles was to be seen and advised by DS Clancy in relation to her conduct towards the First Claimant.

Modelsat

[108]On 14 March 2007, Karen Jones raised concerns with Clive Hurst about a modelling agency called Modelsat. Mr Hurst forwarded her email and his reply to Mr Keeler. Mr Hurst had looked at the relevant website and said that the company behind it was SSC. He expressed the view that the Defendant was unlikely to do anything about it and that the Defendant’s inspector was ‘afraid of his own shadow’. Mr Keeler forwarded the email to Mr Atkins. He said that the Defendant would need to investigate this but that he would prefer to know first if the Defendant was going to prosecute SSC in relation to the hotel workers. Mr Keeler did investigate Modelsat. In due course he decided not to prosecute them and closed the file on 9 April 2008. The Claimants complaint about this was that Mr Keeler should never have approached the First Claimant in relation to Modelsat, as it was nothing to do with him. Given the information supplied by Mr Hurst, I consider it was reasonable for Mr Keeler to approach both Claimants in relation to Modelsat, since both were directors of SSC and it appeared from Mr Hurst’s researches that SSC was behind Modelsat. That supposition is confirmed by a later document which shows SSC as the registrant for Modelsat (bundle, page 1492).

The decision to prosecute SSC

[109]On 27 March 2007, Mr Atkins made the decision to prosecute SSC. He gave full reasons for that decision. Mr Atkins took into account relevant factors, such as the DJ’s decision. He did not take into account irrelevant factors. He noted that SSC had filed no profit and loss accounts. At the date of that decision, only the First Claimant had a copy of the recording of the interview (decision, paragraph 61). Mr Atkins concluded that there was enough evidence for there to be a realistic prospect of conviction in respect section 6 offences. There was not yet enough evidence in respect of regulation 6 offences. He concluded that the public interest test was also satisfied in relation to the section 6 offences. The decision is a careful review of the evidence and of the relevant law. Mr Atkins’s decision that the two tests in the Code were satisfied is not an unreasonable one. I can see no evidence in his reasoning that he was influenced by anything other than his objective analysis of the available evidence and of the relevant law. Nor is there any evidence that Mr Keeler improperly influenced Mr Atkins’s decision, either by suppressing relevant exculpatory evidence, or by exaggerating or distorting the evidence in support of a prosecution.

[110]On 28 March 2007, Mr Atkins certified that sufficient evidence to justify the institution of the proceedings came to his knowledge on 6 March 2007.

Further events in 2007

[111]Mr Keeler asked the complainants for further information on 24 May 2007. They provided further statements on 4 June 2007. In the meantime, an information was laid at Corby Magistrates’ Court on 30 May 2007. The Claimants were served with summonses and attached documents on 6 June 2007. Mr Atkins applied for witness summonses in respect of named officers from the banks on 12 and 20 June 2007.

Steps to secure the admission of the complainants’ witness statements

[112]Mr Atkins served hearsay notices in respect of the complainants’ statements on 26 June 2007, relying, among other things, on section 116 of the Criminal Justice Act 2003. The application argued that the witnesses were giving evidence about their dealings with the [Claimants] and/or exhibited documents which were prepared by the [Claimants]. It further argued that the Crown relied on the documents to show that the Claimants were job seekers who used the [Claimants’] services. The evidence would not be greatly enhanced or contradicted if the witnesses were called to give evidence in person. The Claimants’ solicitors responded to that application on 11 June 2007. They said, in respect of the section 116 application, that their clients were ‘disinclined to object, as clearly the cost of transporting these witnesses to the UK will be considerable and will have to be borne by our clients, in the event of them not being successful in their defence’. In an email dated 11 July 2007, Robert Sejjengo, the Defendant’s Law Clerk, told Mr Keeler that he had had conversation with the Claimant’s solicitors and that they would reply to the hearsay notice by 30 July. He said that ‘DWD believes they can agree the Indonesians’ witness statements’. On 27 July 2007, the Claimants’ solicitors emailed Mr Atkins. They said that the evidence of witnesses numbers 1-5 on the amended list (that is, it seems, the evidence of the complainants and of Desi Ratna Sari: see bundle pages 1713, 1714 and 2536) could be read, with the hearsay elements included. They suspected that most of the evidence would not be contradicted by the evidence of their clients, but wanted to make the point that what was read in court, whether it was narrative, or the documents referred to, ‘will not necessarily be accepted without challenge’; see also the note on evidence prepared by the Claimants’ then advisors (bundle, page 2519, paragraph 3).

The defence case statement

[113]A defence statement, undated, and headed ‘draft’, was served at some stage (bundle, page 1961). It did not refer to the OISC. It denied that the Claimants were engaged in the business of an employment agency or that they had acted to the detriment of any of the complainants. Their business was ‘providing training to which the factor of work is ancillary, and is for the purpose of enhancing the opportunity to train’. Their business was ‘to provide training in the hospitality industry’. They also provided ‘ancillary services’ such as arranging accommodation, training, and ‘welfare attendances on the student’. Where the [Claimants] incurred costs for a student, the student was required to make repayment. ‘The student could not otherwise have taken advantage of the training opportunity’. The statement was signed by the Second Claimant, but not by the First Claimant. I infer, from some of the letters sent by Mr Atkins to the Claimants’ then solicitors, that the draft statement was served in order to trigger disclosure obligations on the part of the Defendant.

Further preparations for the prosecution

[114]There was a pre-hearing review on 20 July 2007. The case was adjourned until 1 August. On 26 July 2007, Mr Keeler sent Mr Atkins an evaluation of the information provided by Barclays Bank. He noted that the Barclays Customer Profile Report described SSC’s business as ‘Hotel Staff Recruitment’, not ‘training’ (see bundle, page 1949). He had identified payments made to SSC by the complainants. The information showed payments from 13 other people, who, Mr Keeler ‘firmly believe[d]’ were ‘workers from Indonesia for whom SSC has found work in hotels’. Mr Keeler sent Mr Atkins a further email the same day. He said that ‘in theory’ having regard to regulation 5 and section 6(1), the compensation due to the complainants was £4500. If SSC were given the benefit of the doubt, the work-finding bit, he assumed, was £2997. The likelihood was that the other workers had returned to Indonesia. He was replying to an email from Mr Atkins. Mr Atkins said that it was not an easy case. It was necessary to isolate the part of the charges which was proper expenditure. The [Claimants], Mr Atkins said, should be given the benefit of any doubt.

[115]Mr Keeler signed a further witness statement on 27 July 2007, analysing the evidence provided by Barclays Bank. On 1 August 2007 there was a case management hearing. According to a hearing note of that date (bundle, page 2120), the Claimants offered pleas of guilty at that stage to some charges. The prosecution would not accept the pleas which were offered as there was no agreement on the amount of compensation (bundle pages 2120-2). The case was adjourned for trial on 19 and 20 September. On 2 August 2007 Mr Keeler emailed each complainant. He told them that they would not need to attend the trial as a witness and their statement would be read. He would contact them as soon as the case was over. He asked if they still had a bank account in the United Kingdom. He continued, ‘I am not promising that we will be able to get any money back for you but if we do we will need to know how to get it paid to you’. It was suggested that this email was improper. I do not consider that it was. It was sent after the complainant had signed both of his or her witness statements. Mr Keeler also asked for information about their flights to and from the United Kingdom.

[116]On 2 August Mr Keeler emailed Louise Alton. He said that the Defendant’s legal advisers had told him that the Claimants should not be approaching her for information as the Belfry had provided a witness statement and was the Defendant’s witness. If they contacted her again, she should ask them to make any request through their solicitor to the Defendant’s legal advisers. He asked her whether, if Lesley Hancock was not able to give evidence, she would be willing to do so. As he explained, Lesley Hancock no longer worked at the Belfry, he did not have her contact details, and she might find it difficult to get access to the Belfry’s files. Mr Keeler sent an email on 2 August to Malaysian Air Systems asking for information about return air fares from Indonesia to the United Kingdom (November 2005 – November 2006 and March 2006 – March 2007).

[117]On 24 August 2007 the Second Claimant wrote the then Prime Minister, asking him to intervene if possible by asking the Defendant to withdraw the prosecution. If the case went ahead and SSC were found not to be an employment agency, ‘we will be looking for substantial damages against the [Defendant], however long it may take’. On 10 September 2007, the Claimants’ solicitors wrote to the magistrates’ court asking for an adjournment. The hearing was vacated and re-listed for a pre-trial review on 28 September. As at 14 September, the Claimants’ solicitors had not served a defence case statement (see their letter of that date).

The OISC

[118]It seems that just before 21 September, Mr Atkins was told that the Claimants would be relying on the fact that they were immigration advisors. Mr Atkins emailed Mr Keeler about this. Mr Keeler said that this was the first time the Claimants had raised this issue. They had never before said that they charged fees for immigration advice. On 28 October, Mr Parrish, the Claimants’ new counsel, drafted a skeleton argument. SSC’s defence was that they were immigration advisors registered under Part V of the Immigration and Asylum Act 1999, and not an employment agency. A hearing was listed for 31 October at short notice (see the Claimants’ solicitors’ email of 30 October 2007). The parties were not consulted. Mr Atkins apologised to the Claimants and to the court for not attending (see his letters of 31 October).

[119]Mr Atkins sent an email to Mr Keeler on 31 October 2007. He had not yet seen the skeleton argument but it had been described to him on the phone by one of the clerks to the justices. Mr Atkins records in this email that he told the clerk that the issue had only recently come to light. I accept the evidence of Mr Atkins and Mr Keeler that SSC did not raise this issue at an earlier stage. It is supported by these contemporaneous internal emails, written at a stage when neither had any reason to misrepresent the position about this issue.

[120]Mr Atkins also recorded that the magistrates were due to have a hearing at which they would decide whether, on this ground, the prosecution was an abuse of process. Mr Keeler then approached the OISC for information about its relationship with SSC. This was a reasonable step to take in the circumstances. It could not reasonably have been taken earlier, because SSC had not mentioned its relationship with the OISC, still less suggested that this was a defence to the charges. Since, as a matter of law, and perhaps except and in so far as its charges to the students were for immigration services, its relationship with the OISC could not be a defence to the charges, I find that there was no reason, before SSC raised this, for the Defendant to look into it. SSC could not, in the light of its own documents, plausibly suggest that all its charges to students were for immigration advice; self-evidently, those charges were not all for immigration advice. On 9 November 2007 Mr Atkins drafted a skeleton argument which clearly set out the Defendant’s position that the SSC’s relationship with the OISC was not a defence to the charges.

[121]The Defendant’s contacts with the OISC led the OISC to email Mr Keeler on 30 November 2007, suggesting that the OISC ask the Second Claimant for permission to release information the Defendant. In due course, SSC refused permission (bundle, page 2526), prompting Mr Keeler to wonder why (bundle, page 2527). On 15 November 2007, Mr Atkins served a bad character application in respect of the Second Claimant. I consider Mr Atkins’s evidence about this in paragraph 66, above. On 16 November 2007 a hearing of the abuse of process application was listed. There is a full note of the arguments advanced on behalf of each Claimant and of the Defendant. It seems that the lay bench could not agree on their decision, and the application was adjourned to the trial (see bundle, page 2518).

[122]On 19 November 2007, Mr Atkins emailed Mr Keeler and Ms Becker. He said that he intended to recast the case on the basis that the OISC was a ‘manufactured defence’. He was asked about this phrase in cross-examination. He said that he considered that this was a manufactured defence because it had been raised so late. In my judgment that was a reasonable view to hold in the circumstances. On 22 November 2007 there was a meeting between the OISC and the Defendant. Notes were taken. The OISC indicated that the Second Claimant had asked it for a witness statement. It was not in a position to help the Claimants. It seems from this note that the Second Claimant’s description of the prosecution to the OISC might well have been inaccurate. He is recorded as suggesting to the OISC that the case was about SSC arranging work permits and that it was a test case. Significantly, the OISC’s response to SSC’s list of fees was that the first five items might be charges for immigration advice (although the OISC stressed that they could not comment on the level of the fees) but that the remaining ten were not covered by immigration law.

[123]In due course, on 7 December 2007, the OISC wrote to Mr Keeler. The letter described the OISC’s functions, and the history of its regulation of SSC. I note that in December 2005, the OISC received a complaint about SSC. The OISC asked SSC for further information in May 2006. The renewal of SSC’s registration in August 2006 was ‘based on the understanding that’ the OISC would continue to investigate the suitability of the student contract and work with SSC to ensure that it met appropriate recommendations. SSC’s 2007 application was still outstanding, pending an audit, which was to take place on 18 December 2007. Audits were not routine, but the OISC decided that one was necessary because of ‘the issues highlighted by the complaint’. The audit included the fees charged for immigration advice. SSC had asked that the audit be postponed until after the magistrates’ court hearing. I was told by Mr Giret QC, on instructions, that there was ‘no outcome’ to that audit. I do not know what that means. A witness statement based on the OISC’s letter was produced for the hearing in the magistrates’ court.

The trial

[124]The Defendant’s hearing note is at bundle, pages 2614-5. The magistrates’ record of their decision is at bundle, pages 2627-28. The magistrates held that there was a case to answer, which entailed dismissing the abuse of process application. The magistrates held that SSC was an employment agency, but that the prosecution had failed to prove (to the criminal standard) that the students paid a fee for being found employment. They also decided that SSC’s holding of the students’ passports was not a detriment, but observed that it was not good practice. The Claimants were acquitted of all charges.

The pleaded allegations

[125]Paragraph 10 of each particulars of claim asserts that the prosecution lacked reasonable and probable cause and was based on a wrongful motive. Four particulars of this allegation are given by both Claimants. i) The witness statements (of the complainants) were drafted by Mr Keeler. He admitted in cross-examination [sc in the magistrates’ court] that he had drafted the statements without the assistance of the apparent witnesses. The statements were in English and there was no indication that they had been read back to the witnesses in their own language. ii) The DJ ‘after adjourning for days to fact find’ held that SSC were not operating as an employment agency. In the light of the DJ’s ‘detailed reasoning’ there was no reasonable basis for a criminal prosecution against the Claimants. iii) At various times the Defendant contacted ‘third parties who were doing business with the Claimant imputing [sic] the Claimant’s character’. The third parties included the British Embassy in Indonesia, the Indonesian Embassy in London, hotels such as the Belfry and banks where SSC or the Claimants had accounts. iv) ‘In excess of any lawful investigative aim the Defendant undertook unlawful, unnecessary and/or excessive surveillance of the Claimant, including arranging for a CCTV camera to be installed outside the Second Claimant’s home and questioning his neighbours.

[126]A fifth particular is given by the First Claimant (particulars of claim, paragraph 10.e.). It is alleged that ‘In excess of any legitimate investigative aim, the Defendant sent people to the Claimant’s business premises to question his staff’.

(i) The witness statements of the complainants

[127]I have referred to the evidence about the witness statements. The background is that the Claimants’ representatives were content that the complainants should not be called at the trial, on the basis that any challenge they wished to make to the statements could be made without cross-examining the complainants. The Defendant was willing, if necessary, to fly the complainants back from Indonesia. There are three points about the complainants’ evidence. First, to a large extent, their evidence consisted of exhibiting and summarising the relevant documents. Second, there is no doubt that the complainants had paid money to SSC in respect of fees or charges. Third, the correct characterisation in law of the fees or charges was a mixed question of fact and law for the tribunal. It was not to be resolved, either, by preferring the evidence of one side or another on an issue of fact, nor did it depend on the opinion of the complainants, or of the Claimants, about whether the complainants had been charged a fee for being put in a job.

[128]In that situation, I consider that the fact that Mr Keeler did not write down in his notebook each of his interviews with the complainants word for word is of no significance. Nor do I consider that it is significant that he drafted the witness statements, nor that those statements are very similar. They were all exhibiting, and narrating the effect of, the same documents. The complainants had all been brought to the United Kingdom from Indonesia by SSC to work in hotels, so their experiences were very similar. Each complainant was given, and took, the opportunity to amend his or her draft. It does not plausibly lie in the Claimants’ mouths to suggest that the complainants could not speak English. It is clear from the evidence that as part of their vetting process in Indonesia the Claimants did their own assessment of the student’s ability in English. An advertised premise of SSC’s scheme was that the students had a ‘a good command of English’.

[129]I reject the suggestion that Mr Keeler admitted in his evidence (at the trial) that he had drafted the complainant’s witness statements without the help of the complainants. The First Claimant admitted in cross-examination that he had been wrong to say that Mr Keeler had admitted to the magistrates that he had ‘fabricated’ the witness statements. The way that this allegation is put in the particulars of claim is a less florid equivalent. I also reject a similar allegation in paragraph 16 of Mr Parrish’s witness statement. I gave the Claimants permission to rely on this statement, although Mr Parrish was not available to be cross-examined. I was told that he was too old and infirm. Much of this statement is uncontroversial. But I give paragraph 16 no weight, because Mr Parrish was not cross-examined, and in the light of the First Claimant’s concessions on a similar point in his evidence. I further note that Mr Parrish’s recollection, recorded in paragraph 18 of his statement, that only one of the complainants’ statements had been amended by them is demonstrably incorrect. I also note that although he claims in paragraph 2 of this statement to have been a ‘Deputy Crown Court Judge’ there has never, to the best of my knowledge, been such an office. I accept Mr Keeler’s evidence about how he drafted the witness statements. I am satisfied that there was nothing improper in it, and that it does not show that there was no reasonable or proper cause for the prosecution, still less that Mr Keeler acted maliciously.

[130]I should consider separately a suggestion that the complainants’ evidence was improperly influenced by a promise that they would get their money back, or would get compensation, if the prosecution succeeded. In his cross-examination by Mr Giret QC, Mr Keeler said that when he had been to see the complainants at the Newmarket CAB, their main complaint had been the amount of fees which they had paid, and that, ‘as with any case, individuals think they will get their money back’. He then explained that he had said to the complainants that they might be required to give evidence and that if the prosecution was successful, the court might in its discretion decide to award them compensation in the amount of the fee they had been charged. He accepted that they were told this before they made their statements. It was suggested that the complainants would have agreed with anything Mr Keeler put to them in order to get their money back. Mr Keeler said that it was part of the investigation process to tell complainants what might happen. If they were not willing to attend court, no action would be taken; whether they were was a matter for them. I do not consider that Mr Keeler acted improperly in giving this explanation to the witnesses. Nor do I accept that his knowledge of this conversation with them meant that he had to discount what they said in their witness statements; much of their evidence was uncontroversial, and what was disputed (whether SSC gave them training) was supported by other evidence. (ii). Did the DJ’s decision mean that there were no reasonable grounds for the prosecution?

[131]In paragraph 6 of her decision the DJ said that the training issue had ‘significant implications as to whether [SSC] is simply an employment agency or something different.’ She said that ‘a fully trained chef would have no place in this country under a Training and Work Experience Permit’. She noted in paragraph 7 that there was nothing in the contract about training. She noted the conflict between Desi Ratna Sari’s evidence and that of the Second Claimant about whether SSC provided training. She accepted the Second Claimant’s evidence on that issue.

[132]SSC was set up to make money. She had not been impressed by any of the witnesses who gave evidence. SSC was operating within the law. It gave people the opportunity to come here ‘to work for a period’ (paragraph 8). SSC had to ‘lay out quite a bit of money up-front to bring a student here’. In return, SSC ended up with a ‘limited amount of money’. The advantage to the hotel was that it got ‘a relatively high quality member of his staff and is able to pay her nothing more than the minimum wage; a deal which is not illegal, there is nothing wrong with it, but it is a deal which is a very real advantage to him’ (paragraph 9).

[133]The DJ accepted that if SSC was an employment agency, it could not charge Desi Ratna Sari for its services. The DJ held that it was not. ‘There are aspects of their organisation which take this matter out of a normal employment agency scenario’. She listed these. SSC were ‘the sponsors of each and every student…and they are responsible for them’. The DJ accepted that they regularly visited the students and ‘provide training where necessary’. They saw themselves as the students’ mentors. The students did not hesitate to make complaints to SSC. ‘For all those reasons this is not simply an employment finding organisation, but an organisation which, under the terms of their own contract, has an on-going relationship with the student throughout her stay in the United Kingdom’ (paragraph 10).

[134]The DJ considered the charges levied by SSC in paragraph 11. She considered that none was ‘an extortionate charge’ and that ‘this company is actually making a relatively modest amount of profit out the arrangements…’ The DJ did not accept Desi Ratna Sari’s evidence that she did not know what she was letting herself in for (paragraph 12). She was working in the United Kingdom for the minimum wage, but that was exactly what she had agreed to do (ibid). The DJ addressed the Unfair Contract Terms Act in paragraph 13. Her reasoning is not clear.

[135]The Defendant realised that the DJ’s decision was potentially relevant. It obtained a full transcript of her reasons. The DJ’s decision was considered both by Ms Becker and by Mr Atkins. I have read their advice about it. I consider that the Defendant was right to consider that the DJ had not explained her conclusion that SSC was not an employment agency. The DJ does not refer to the relevant legislation. She does not explain what test she applied in deciding that SSC was not an employment agency. On the facts she found, her conclusion that SSC was not an employment agency (as defined) is not only unexplained, but, in my judgment, inexplicable. The DJ’s reasoning about SSC’s charges is also unclear and at times difficult to disentangle from her reasoning on the question whether or not SSC was an employment agency. I consider that, in view of these factors, and because the Defendant did not know (other than to the extent that it was described in the DJ’s decision) what evidence she had seen, and because the Defendant was relying on different witnesses, the Defendant was also entitled to conclude that the DJ’s decision was distinguishable on the facts. The fact that the DJ had not accepted Desi Ratna Sari’s evidence did not mean that another tribunal was bound to reject evidence against SSC given by different witnesses. I reject Mr Giret QC’s attempt to suggest otherwise. I also conclude that the DJ’s decision (which contained no reasoning, let alone ‘detailed reasoning’ on the relevant issues) did not show that there was no reasonable and probable cause for the prosecution.

[136]The magistrates’ conclusion that SSC was an employment agency is irrelevant to, and unnecessary for, that conclusion. For what it is worth, however, it tends, independently of the view I express in the previous paragraph, to undermine the assertion in particulars of claim that the DJ’s view that SSC was not an employment agency showed that there was no reasonable and probable cause for the prosecution. (iii). Did the Defendant contact third parties and impugn the character of the Claimants?

[137]As far as I can tell, there are two aspects of this complaint. The first is the suggestion that the Defendant had been writing untruthful and damaging letters to a range of third parties. When the First Claimant was asked about this, he accepted that (see paragraphs 30-32, above) that he had not seen any malicious letters and that what he had suggested in his letter to Mr Keeler about such letters was not based on what Ms Irawaty had told him. I do not accept that there is any evidence that the Defendant sent malicious letters about the Claimants to anyone. I have seen none. I accept Mr Keeler’s evidence that he had a phone call from the Indonesian Embassy and that when the caller asked whether the Defendant was investigating SSC, he replied that he did not discuss investigations.

[138]The second aspect of this complaint is that letters which Mr Keeler sent to the banks (see paragraphs 105-106, above). I do not accept that these letters were, either, in excess of any legitimate investigative aim, or calculated to cause loss. Mr Keeler accepted that a crucial word was missing from each letter. So they could have been better proof-read. Nonetheless, it is clear from the letters that Mr Keeler was asking the banks for information which was relevant to his investigation, that is, evidence that job seekers had made payments to SSC. Such evidence, if obtained, would have supported the complainants’ evidence to that extent. The clause ‘We are looking at charges…’ does not suggest a concluded view about guilt. Mr Keeler clearly identified the relevant legislation. I do not consider that this letter impugned the character of either Claimant. I do not understand how such a letter could be calculated to cause loss, and reject the suggestion that it was. Nor do I consider that it was wrong or improper to write to the banks in these terms before Mr Atkins had made the decision to prosecute the Claimants. I reject the suggestion that the letters were written maliciously. (iv). Surveillance

[139]I have considered the evidence about the CCTV camera in paragraph 50, above. The Claimants cannot maintain, still less establish, an allegation that the Defendant installed a CCTV camera to watch them in the light of their decision not to require Ms Malpas to attend the hearing to be cross-examined. I accept her unchallenged evidence, and that of Mr Keeler, that the Defendant did not install a CCTV camera near the Claimants’ house.

[140]The Claimants applied for letters from Anne Foley and Joseph Gillespie to be read. Neither letter contained a statement of truth. The Defendant objected to this application. I refused it. In the light of the facts that the letters contain no statement of truth, and, in any event, in the light of the fact that neither attended the hearing to be cross-examined, I can give these letters no weight. Even if I could, they do not support the allegation that the Defendant questioned the Claimants’ neighbours in a way in excess of any legitimate investigative aim. The Claimants’ case on this point was said to be based, not on what the Claimants had seen, but on what their neighbours had told them. If the letters are the high point of this allegation (and there is no other material, other than the Claimants’ evidence) I find that the Claimants have failed to prove it.

[141]I accept Mr Keeler’s evidence that he and Ms Griffiths went to Corby on 12 December 2016 to visit the Claimants, that they visited SSC’s trading and registered addresses, that Mr Keeler was asked by a neighbour what he was doing, that he said he was looking to speak to the Claimants, that the neighbour told him that the Claimants were away, and that he did not question the Claimants’ neighbours (first witness statement, paragraph 36). Mr Keeler’s evidence on this point, in the event, is not contradicted by anything in Mr Gillespie’s letter, for what that is worth. This evidence does not show any action which was in excess of a legitimate investigative aim, nor does it show malice by Mr Keeler. (v). Did the Defendant send people to Indonesia to question the First Claimant’s staff?

[142]The Second Claimant said in paragraph 77 of his witness statement that Mr Keeler arranged for the Claimants’ properties and businesses on Lombok Island to be visited by staff from the British Consulate in Jakarta in order to report to Mr Keeler on the value of the properties as he intended to seize them as the proceeds of crime (see also paragraph 42 of the First Claimant’s witness statement). I refused the Claimants’ application to rely on a letter dated 27 December 2013 from Ayu Yuniar. I assume that the material in this letter is the basis for the assertions in paragraphs 77 and 42 of the Claimants’ witness statements. The allegations in this letter and in the witness statements are so vague as to make it impossible for anyone to check their accuracy, and the letter does not support the suggestion that the people who visited were from the British Consulate in Jakarta, nor that they referred to proceeds of crime. No date is given in the witness statements and only a vague date (‘in the middle of 2007’) in the letter. I can give no weight to these vague claims.

[143]It is intrinsically improbable that Mr Keeler would ask staff from the Consulate in Jakarta to go and value properties before any trial or conviction. If, improbably, he had done so, there would be documents showing that he had. On this issue, I accept Mr Keeler’s evidence that he did not contact anyone in Indonesia. I also accept his evidence that as there was no conviction, there was no investigation under the Proceeds of Crime Act 2002. It follows that this vague and unsubstantiated allegation does not support, either, the claim for malicious prosecution or for misfeasance in public office.

Other allegations

[144]I will not make this judgment any longer by considering the plethora of other allegations made by the Claimants, which were not pleaded, but were, either, contained in their witness statements, made in the course of their evidence, put in cross-examination, or made in documents in the bundle. I will only say that, given my views about the general reliability of the Claimants’ evidence, and that of Mr Keeler and Mr Atkins, I reject those allegations. I will, nonetheless, briefly consider two such allegations.

[145]I reject the allegation that Mr Keeler was heard on 8 March 2007 directing the bailiffs in a conversation which was overheard by the Claimants when the bailiffs turned on the speaker on their phone. The allegation is intrinsically improbable, and the evidence which the Claimants gave about it was inconsistent. I prefer Mr Keeler’s evidence, which was that he did not speak to the magistrates or the bailiffs about the seizure of the First Claimant’s car.

[146]I also reject the allegation that Mr Keeler was somehow involved in stealing documents from the Claimants or from SSC. In so far as I could understand what documents were involved, or how this link was discovered, what the Claimants appeared to be saying was that they realised the Defendant had their documents when they saw them in a bundle of documents recently disclosed in these proceedings. The allegation is implausible in several ways. I note only two. First, to the extent that the documents were identified, they seem to be invoices sent to SSC evidencing various expenses incurred by SSC in the course of its business. It is possible to understand how a malicious prosecutor might steal incriminating documents, but impossible to see why he should steal documents, which, to the extent that they might be relevant, support the Claimants’ case. Second, supposing for a moment that a malicious prosecutor had stolen documents, it stretches credulity beyond breaking point to suppose that he would be inept enough to disclose them in proceedings in which he was accused of malicious prosecution, and thus to draw attention to his crime. I accept Mr Keeler’s evidence in his cross-examination by the Second Claimant that these documents were disclosed to the Defendant in the magistrates’ court proceedings.

Overall conclusion

[147]I can state my overall conclusions concisely. For the reasons given in this judgment, I consider that the Claimants were unreliable witnesses, who have concocted a case against Mr Keeler and the Defendant in the hope of extracting money from the Defendant. As may be clear from this judgment, they have snatched at any available straw to support this enterprise. One final example is the suggestion by the First Claimant in re-examination that the Defendant was trying to get them ‘under the Terrorism Act with the OISC’. When I asked what this meant, I was referred to an email Mr Keeler sent to the OISC on 6 November 2007 (bundle, page 2412) in which he mentioned section 17 of the Anti-terrorism Crime and Security Act 2001 (‘the 2001 Act’). Section 17 is in Part 3 of the 2001 Act, which is headed ‘Disclosure of Information’. It has nothing to do with terrorism at all, but authorises the disclosure of information between public authorities under various statutory provisions for a wider range of purposes than had previously been authorised. Section 17 applies to the provisions listed in Schedule 4 of the 2001 Act. None of the provisions listed in Schedule 4 relates to terrorism. Part 4 of the 2001 (rather than Schedule 4) made some provision about terrorism. Other than the fact that Parts 3 and 4 of the 2001 Act are in the same enactment, there is no link between them. Far from being a manifestation of Mr Keeler’s over-zealous or malicious intent, the reference to section 17 in this email is innocuous in a communication between public authorities about the exchange of information between them.

[148]I am not required to, and do not, decide whether (on the balance of probabilities) SSC committed the offences with which it was charged. The question, rather, is whether there was reasonable and probable cause for the prosecution. It was, to put it no higher, reasonably arguable that SSC was operating as an employment agency. It was clearly operating a business one of the activities of which was placing students in employment with hotels in the United Kingdom. There was no dispute but that SSC was charging each student a fee of £4500. It was reasonably arguable, to put it no higher than that, that regardless of any description in SSC’s documents, that fee was, at least in part, a charge for placing the student in employment. SSC’s contract did not give the student a right to pay part of the fee only. SSC’s contract also required the student to surrender his or passport to SSC, and the students in practice did hand over their passports (see, for example Mr Reed’s successful attempts to recover Desi Ratna Sari’s passport from SSC). The holding of the passport was designed, in my judgment, to hang over a student’s head and operate as disincentive to a student to leave, or to give notice to leave, his employment. For the reasons given by Mr Atkins in his evidence, it is reasonably arguable that that was a detriment to the student. For those reasons, in short, I find that there was reasonable and probable cause for the prosecution of the Claimants.

[149]This conclusion means that I do not need to consider whether or not Mr Keeler, or Mr Atkins, acted maliciously. I conclude, nonetheless, that neither did. Each did his duty to his employer to the best of his ability in each of his tasks in the investigation and prosecution of the Claimants. Neither was, either, abusing his public power with the intent of harming either Claimant, or acting knowing that he did not have the power to do what he was doing and that what he was doing would probably injure the Claimant. I accept that Mr Keeler and Mr Atkins each honestly believed that he was acting lawfully.

[150]I dismiss these claims.