“Mr. Pilley was not treated unfairly in the programme as broadcast in that the programme makers took reasonable care in presenting the material facts in relation to the allegations made about Mr Pilley in the report and the programme included a fair representation of the responses which were given to criticisms included in the programme on Mr Pilley’s behalf. Mr Pilley was given an appropriate and timely opportunity to respond to the claims made about him in the programme.”
“This investigation is covert at the moment so I would appreciate your discretion at this current time. In the meantime, I would continue to carry on and make as much fuss as you can. Complain to as many people as you can, including your MP. (I believe that the law should be changed to protect microbusinesses such as yours). Copy any complaints you make in to Joel Chapman at BES…. It appears he gets rid of troublesome complainants by eventually releasing them from their contracts.”
“Our office has received numerous complaints from the proprietors of small businesses, alleging fraud by misrepresentation regarding the supply of energy and telephone contracts. We have obtained in excess of 50 witness statements from such individuals which appear to make out a prima facie case. The m.o. involves a cold call from alleged independent brokers to the business involved which contains various lies and results in unfair contracts with BES and has caused detriment and severe financial harm to each business, forcing several into administration and rendering individuals unemployed. We have been in consultation with Sarah Morgan…a barrister at Chester, regarding the progression of this case. We are approaching the stage of the investigation where warrants are to be sworn, served and executed.”
“We are not in possession of any paperwork from the brokerage company, and can confirm that all information held has been provided to you. You state that the contract recording was modified on7 May 2014 , however, we cannot find any evidence to support this allegation and can confirm that we do not edit the recordings received by the brokerage company in any way.”
“And we are here to answer any questions that the court may have about the detail of the material. We are also conscious, we were aware of a communication yesterday, indicating that the hope for judicial reading time was not going to be made available. If it means deferring the decision and the court requires reading time post-hearing before reaching a decision, then there is no objection to that course being followed. JUDGE BROWN: No, no. Well, I will obviously, I just need to go through the document you have provided me with this morning. As is often the wont or as is often the way, I have had to find reading time. MR. THOMAS: Yes. JUDGE BROWN: But it was not a satisfactory state of affairs to be given a file yesterday when I was away from the building from lunchtime for the whole of the rest of the day. MR. THOMAS: Well, I apologise. We would--- JUDGE BROWN: And I had to rejig yesterday morning's list because of it. I mean it is not your personal fault, Mr. Thomas, and I appreciate that these things can happen, but it is in a sense compounded by the fact that I have just been given this document [a reference to Counsel’s note].”
“In total, across all the exhibits submitted by the North West RIT for examination, there was in excess of 53 Terabytes (TB) of storage capacity, which is a huge volume of material. 1 Terabyte is the equivalent of 1,000,000 Megabytes (MB). To illustrate the capacity of a Terabyte, a file containing the full text of Jane Austen’s novel ‘Pride and Prejudice’ is 784 Kilobytes (KB) in size and so it would be possible to store 1,275,510 copies of that file on a 1TB hard drive. According to Barnes & Noble booksellers, that novel has 434 pages and so this would amount to 553,571,340 pages of Pride and Prejudice on a 1TB hard drive. Obviously, the exact amount of material depends on the size and type of the data being stored, but this does give a realistic idea of the potential amount of data per Terabyte of hard drive space.”
“In my judgment, the attempts to limit the ambit of the case to exclude the CP materials must fail. There is an overlap of the issues on the pleadings. There is an overlap on the evidence. The claimants have chosen to express their case broadly and no doubt for good reason. I have made my findings in respect of the pleadings as above. I do not accept the attempts to characterise the pleadings in the narrow manner submitted by the claimants. I have referred also to parts of the witness statements. The claimants having chosen to advance their case in a broad way, the defendant is entitled to deploy all relevant arguments and materials to meet that case. Otherwise the case will be tried on a false basis where the claimants have been expansive and the defendant would be unfairly restricted. The fact that the claimants could have cast the case in a narrower way is irrelevant: they have chosen to cast their evidence, especially that of Mr Pilley, broadly, such that the defendant is entitled to test the evidence. In respect of the alternative of the claimants of abandoning parts of their case, that would not be sensible or just. The case cannot fairly be sliced up in this way: this would change its complexion. The witness statements have been prepared on this basis and the case prepared for trial. It may all work to the benefit of the claimants because it may appear that the way in which it is put about the independence of the brokers and the absence of reasonable and probable cause will enable the claimants to prevail. Alternatively it may work to the benefit of the defendant who may in defending such a case have a broader basis to defend.”
“In Wisniewski v Central Manchester HA [1998] P.I.Q.R. P324; [1998] Lloyd’s Rep. Med 223, Brooke LJ set out the principles as follows: “(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
“(i) This evidential ‘rule’ is, as I have indicated above, a fairly narrow one …, the drawing of such inferences is not something to be lightly undertaken. (ii) Where a party relies on it, it is necessary for it to set out clearly (i) the point on which the inference is sought (ii) the reason why it is said that the ‘missing’ witness would have material evidence to give on that issue and (iii) why it is said that the party seeking to have the inference drawn has itself adduced relevant evidence on that issue. (iii) The court then has a discretion and will exercise it not just in the light of those principles, but also in the light of: (a) the overriding objective; and (b) an understanding that it arises against the background of an evidential world which shifts—both as to burden and as to the development of the case—during trial.” “(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.” “Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. As the first principle adequately makes plain, there is a discretion i.e. ‘the court is entitled to draw adverse inferences’”. “(i) This evidential ‘rule’ is, as I have indicated above, a fairly narrow one …, the drawing of such inferences is not something to be lightly undertaken. (ii) Where a party relies on it, it is necessary for it to set out clearly (i) the point on which the inference is sought (ii) the reason why it is said that the ‘missing’ witness would have material evidence to give on that issue and (iii) why it is said that the party seeking to have the inference drawn has itself adduced relevant evidence on that issue. (iii) The court then has a discretion and will exercise it not just in the light of those principles, but also in the light of: (a) the overriding objective; and (b) an understanding that it arises against the background of an evidential world which shifts—both as to burden and as to the development of the case—during trial.”
“The relevant act (or omission, in the sense described) must be unlawful. This may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose. Here again the test is the same as or similar to that used in judicial review. The official concerned must be shown not to have had an honest belief that he was acting lawfully; this is sometimes referred to as not having acted in good faith. In the Mengel case, at p 546, the expression honest attempt is used. Another way of putting it is that he must be shown either to have known that he was acting unlawfully or to have wilfully disregarded the risk that his act was unlawful. This requirement is therefore one which applies to the state of mind of the official concerning the lawfulness of his act and covers both a conscious and a subjectively reckless state of mind, either of which could be described as bad faith or dishonest. The next requirement also relates to the official's state of mind but with regard to the effect of his act upon other people. It has three limbs which are alternatives and any one of which suffices. First, there is what has been called "targeted malice". Here the official does the act intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable. This limb does not call for explanation. The specific purpose of causing loss to a particular person is extremely likely to be consistent only with the official not having an honest belief that he was exercising the relevant power lawfully. If the loss is inflicted intentionally, there is no problem in allowing a remedy to the person so injured. Secondly, there is what is sometimes called "untargeted malice". Here the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge is an actual awareness but is not the knowledge of an existing fact or an inevitable certainty. It relates to a result which has yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences: Garrett v Attorney General[1997] 2 NZLR 332 , 349-350. Thirdly there is reckless untargeted malice. The official does the act intentionally being aware that it risks directly causing loss to the plaintiff or an identifiable class to which the plaintiff belongs and the official wilfully disregards that risk. What the official is here aware of is that there is a risk of loss involved in the intended act. His recklessness arises because he chooses wilfully to disregard that risk.”
“The rationale underlying the first limb is straightforward. Every power granted to a public official is granted for a public purpose. For him to exercise it for his own private purposes, whether out of spite, malice, revenge, or merely self-advancement, is an abuse of the power. It is immaterial in such a case whether the official exceeds his powers or acts according to the letter of the power: see Jones v Swansea City Council[1990] 1 WLR 1453 . His deliberate use of the power of his office to injure the plaintiff takes his conduct outside the power, constitutes an abuse of the power, and satisfies any possible requirements of proximity and causation.”
“476. To establish that Mr Bourne committed the remaining elements of the tort in issue at this trial , and following the authoritative statement of the law by Lord Steyn in Three Rivers DC v Bank of England (No.3)[2003] 2 AC 1 at 191-196, the Claimants need to demonstrate: 476.1 that Mr Bourne acted either: 476.1.1 lawfully, but with the intention of harming the Claimants as one of his purposes (targeted malice); or 476.1.2 unlawfully knowing or being subjectively reckless as to such unlawfulness, and either knowing that harm was likely to be occasioned or of being subjectively reckless to the same (untargeted malice). 476.2 subjective recklessness in this context means reckless indifference to legality and the likelihood of harm which will be established if Mr Bourne was aware of the possibility that his actions were unlawful and that harm was likely but acted anyway.”
"No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; . . ."
"It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice."
““Thanks for getting back to me, It would seem that you are one of the lucky ones who have escaped BES clutches. It would also appear that most people are not so lucky.”
“The statement gathering phase should start in about four weeks and will take my team another four weeks as the complainants live as far apart as Glasgow, Exeter, Stockton on Tees and Kent. If you don’t hear anything for a week or two don’t worry, it’s not going away this time.”
“If you think that is panicking…wait until the Police Vans arrive! We are setting off this morning to obtain the statements it will take two or three weeks…I am doing the Northern/Scottish/Newcastle ones, and my colleagues Paul Williams and Rob Scrannage are heading south.”
“it would be proceeds of crime but for 500K I would take out the problem with a .338 Lapua round. Dolphin rifles (class f) do a nice one! Accurate 1,000 yards plus. Two good statements yesterday from Hebden Bridge, Yorkshire.”
“I had a meeting with Kelly [Bailey] on Friday. Very very interesting. It has filled some intelligence gaps and confirmed what we already know. I am off to see the Mayburys on Wednesday. Plus a Lady who’s Aquarium business went bust with the help of BES.”
“I would like to know the real reason why Ben Jones left after a few months. I wonder if he has seen what is going on and wants to get well clear before something nasty hits the fan. If you can turn him that would be Excellent.”
“Q. Can you describe how Mr Bourne behaved during your statement-taking process? A. Courteous, professional, well adjusted chap visiting the office to take a statement. Q. Did anything that he said or did that day cause you any concern? A. No. [T13/69/22-70:3]”
“Hi Joel. Attached are the three calls required. Afraid we can't send these.”
“Unlawful disclosure of information 141. Quite apart from their claims in misfeasance, it is common ground that if information about the investigation was unlawfully disclosed by Mr Bourne, the Defendant will be vicariously liable to the Claimants for breaches of their rights underArticle 8 of the Convention pursuant to ss.6-7 of the HRA 1998 (CG, ¶7).”
“… it is important that this core right protected by article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose, I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual’s personal autonomy must (if article 8 is to be engaged) attain “a certain level of seriousness”
“It is true that ‘private life’ has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms…”
“Particularly, in heavy commercial cases, the borderline between material facts and non-material facts may be a somewhat uncertain one. While in no way discounting the heavy duty of candour and care which falls on persons making ex parte applications, I do not think the application of the principle should be carried to extreme lengths. In one or two other recent cases coming before this court, I have suspected signs of a growing tendency on the part of some litigants against whom ex parte injunctions have been granted, or of their legal advisers, to rush to the Rex v. Kensington Income Tax Commissioners [1917] 1 K.B. 486 principle as a tabula in naufragio, alleging material non-disclosure on sometimes rather slender grounds, as representing substantially the only hope of obtaining the discharge of injunctions in cases where there is little hope of doing so on the substantial merits of the case or on the balance of convenience..”
"Sometimes the court hearing the judicial review application will be given the information which should have been given to the court below. This may involve not merely the material of potential benefit to the defendant which had not been disclosed, but also the police response to that material. In Dulai the court accepted (at [46]) that this evidence is admissible and that if it is plain that once all the evidence is taken into account the judge below would still have issued the warrant, then it should not be quashed. In effect, the court is concluding that taken in the round, and having regard to the police response, non-disclosure did not materially affect the outcome. On that strict test the court is reviewing the lawfulness of the issue of the warrant but is not undertaking its own assessment."
“I would simply observe that there are in my view considerable problems, as recognised in Rawlinson, in allowing the Divisional Court to make its own assessment of the evidence. The reviewing court is then standing in the shoes of the judge below and performing a function which by statute belongs to that judge. It is also stepping outside its reviewing function and allowing itself to become a merits court. But as I have said, the issue does not directly arise here.”
“…to focus on the information that should have been given to the magistrate... What should be before the magistrate is a fair and accurate summary of what is known by the applicant. That includes any points that can properly be made against the grant of the warrant, but also any answers to those points which could properly have been deployed at the time. All this must be considered in the context of the whole of the information before the magistrate so that the salience of the omitted matters can be assessed”
"The High Court— (a) must refuse to grant relief on an application for judicial review… if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."
“87. In the present case, the judge was presented with the Information and the evidence of the case manager. None of the underlying documentation was put before him. In an application for a search order in civil proceedings, the important underlying documentation would be exhibited to the statement of evidence before the judge and the judge would have an opportunity of considering them. That is not the practice where a warrant is sought in a criminal investigation under s.2(4) of the CJA 1987. 88. Thus, given there is no practice to provide the underlying documentation, it was accepted that there is a very heavy duty placed on the SFO to ensure that what is put before the judge is clear and comprehensive so that the judge can rely on it and form his judgment on the basis of a presentation in which he has complete trust and confidence as to its accuracy and completeness….”
“As you know, Ofgem completed its investigation into BES for various breaches of licence conditions and Complaints Handling Regulations in December 2015 and this resulted in a significant penalty. However, this dealt with only half the problem, at best, and all the issues we sought to deal with stem from the alleged misrepresentations made by brokers selling energy contracts on behalf of BES to induce consumers to agree energy contract with BES. Those concerns and allegations surrounding BES and associated brokers have been around since 2009 and were highlighted by BBC Radio 5 in 2010. At that time Ofgem did not have the necessary powers to enforce against the brokers allegedly involved. Back in 2013/14 we started to investigate this aspect using our newly acquired powers under the BPMMR (November 2013), but subsequently stepped aside due to interest from Trading Standards and your greater powers in this area. We continue to receive a high volume of complaints and correspondence about BES and associated brokers and face quite strong criticism from consumers for apparently failing to deal with a significant area of concern. Until your case is within the public domain, it is much harder for us to rebut criticisms effectively. We look forward to hearing from you in relation to developments and progress in your case, and remain very willing to cooperate and assist you as appropriate.”
“I have no idea if CRS & ERS are losing money as they are not really my Companies as we both know and I have never been privy to the ins and outs. I front them for everyone's benefit, probably mine included, and will continue to do so because as you say we are best mates. I can't afford to leave and set-up on my own as you well know...”
“I was present at the execution of the search warrants. I recall that it was not possible to conclude the search on28 July 2016 . An officer or officers of Lancashire Constabulary remained on the premises at Highbury Stadium overnight and the search continued the following day. There was therefore no re-entry to the premises. A copy of the warrant was handed to the responsible person and I have seen photographs of the warrant ripped up in a bin.”
“It was never the defendant’s intention to cause embarrassment to the claimants. As indicated above, it was intended that the searches would be completed in one day, but this proved impossible due to the officers’ inability to extract the information contained on the server. There was no re-entry”
“But as we discussed on the phone if it is going to take until next week then any constant complaining will not make any difference. I just need a date for return not an estimate.”
“Lancashire Police, at the instigation of and/or on behalf of the Defendant, and pursuant to the Defendant’s instructions of and in the presence of representatives of the Defendant, executed the search warrants and seized a large volume of items….”
“a person who merely gives information in good faith albeit mistakenly does not commit the tort. To be liable they have to go beyond that by directing, requesting or directly encouraging the officers to arrest the claimant, as a result of which the prosecuting authority could be said to be acting as their agent or whom the defendant procured to act as they did.”
“[t]he circumstance that a defendant in an action of malicious prosecution was not technically the prosecutor should not enable him to escape liability where he was in substance the person responsible for the prosecution having been brought.”
“Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if the prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.”