Leslie wanted to confirm the documents that had been seen by Tugendhat so that he could roadmap the hearing to take him through it as clearly and concisely as possible. He also asked that the judge have a little bit of patience with him.
Tugendhat wanted to know what was in dispute between the parties that day so that he could understand what he ought to be listening to, to which Leslie replied that there were still a number of questions that needed to be answered by the police.
Tugendhat, for clarity, asked, ‘So you are asking for orders for answers?’ Leslie confirmed but said that since the arrangement of this hearing some of the questions had been answered but others were outstanding. An additional document had been handed to the judge by the clerk which had only just been given to our team and which we were to go through at this hearing so that some additional disclosures be given.
‘Anything else?’ asked Tugendhat.
‘Costs and further directions in relation to the management of the case,’ replied Leslie.
Our requests complete, Tugendhat turned to Challenger and said, ‘And what are you going to be asking for, Mr Challenger?’
Challenger stood, swaying slightly from side to side. ‘We say that both applications should be dismissed.’
‘That is all?’ responded Tugendhat, looking at Challenger with puzzlement. ‘You are simply resisting the claimant’s applications?’
Challenger confirmed this intention and suggested that Grundy’s statement be read, and that even though events had moved on since she had written it, it was the foundation for their position. Tugendhat emphasised the importance of focusing on what the issues were today, on whether further questions should be answered and whether further additional disclosure be given, which he considered pretty narrow. But Challenger continued to press on about him reading Grundy’s statement, his skeleton arguments, looking at bundles of documents and schedules, finally ending with: ‘…but I am in the court’s hands, of course.’
Already indicating some displeasure with Challenger, Tugendhat told him that he was going to start with hearing what questions we thought ought to be answered, what documents should be disclosed and then he would know what, if any, further reading he needed to do. Turning back to Leslie, he said, ‘Right, Mr Thomas, what are the questions?’
Standing again, Leslie said, ‘Would your Lordship turn to pages 151 and 152?’
For a fair while it was dialogue just between the two of them, with Tugendhat asking or clarifying questions until he got to a point where he had to bring in Challenger for his response to disclosure on the disc of images. The trouble with Challenger was he never really answered a question directly and, as he admitted, ‘I cannot answer in one sentence but I can answer in three or four,’ and proceeded to do this many times in his monotonous voice. I was beginning to drift, Jeremy looked bored and Tugendhat was becoming exasperated.
Then it was back again to Leslie to proceed with the next question, for clarity regarding the status of Fouhey within Hertfordshire Constabulary. As Tugendhat stated, ‘The question is whether he is, for these purposes, someone for whom the defendant is vicariously liable.’ Leslie confirmed that he was and Challenger proceeded on another journey of lengthy explanations that did not make the answer any clearer for the court. Tugendhat, taking in a deep sigh of resignation, said, ‘I do not think that this will do, Mr Challenger. I am not trying to resolve the issue, I am just trying to find out what the Chief Constable’s case is.’ With that, he ordered that the questions we had asked be answered by the police.
Leslie then turned to the question of disclosure, as we had been served two lists of documents by Grundy. She briefly glanced up but resumed her scribblings. He explained that the first list was obtained when Jeremy was a litigant in person in October 2007, and then when he got Andre on board the second list was served, which, when put next to the first list, did not make sense because documents and numbers had been changed. Grundy was now saying that a certain amount of them would not be available to view as they would be the subject of Public Interest Immunity (PII). This means priviledged information that does not have to be disclosed.
Leslie gave examples of documents that we were looking for and Tugendhat questioned Challenger on Grundy’s stance on the two lists. Challenger said, ‘Mrs Grundy believes that there is nothing of relevance in that material but has not reminded herself of its content since she compiled the second list.’
Tugendhat responded that the rules on standard disclosure 31.6 were very clear and that it is the duty of a solicitor in any civil litigation to go through all the documents and comments and see whether they fit into that category or not, even if those documents adversely affect their own case or adversely affect or support another party’s case.
Challenger proceeded to drone on about documents that would not be disclosed, namely communications with the CPS leading up to Jeremy’s criminal trial which he considered to be privileged information.
Leslie interjected: ‘The point is that the defendant cannot be saying that the CPS documents are privileged because we have a lot of the CPS memoranda. We just do not have all of it and we want the documents that we have not got because we suspect that those documents undermine the defence’s case. To give you one example just to illustrate the point, my Lord, you have seen the memorandum from DS Willcox this morning? This is the one that completely undermines the defence case, that Hopkins did know and did have information from Fouhey. We know from that memorandum that the CPS lawyer expressed her concern at the time.’
Tugendhat argued the privilege point with Leslie for a while and came back to the two lists indicating that there were 128 documents on the first but only 115 on the second. He brought up document ninety-six, a name tracer print-out, and asked if it was on the second list, to which Challenger replied, ‘No, because it is subject to PII.’
Tugendhat told Challenger that there should have been a letter to support this and that there had been documents withdrawn. He said, ‘Unless I am shown a letter saying that the first list has been withdrawn, I do not see how I can be critical of the claimant for not understanding that.’
In trying to defend Grundy from the serious criticisms of the judge, Challenger explained the difference in the number of documents in that there were duplications of papers and that she was trying to make the list more logical by putting the documents into categories. I could tell Tugendhat’s patience was being sorely tested as he turned to Leslie to inform him that the second list would be the one to follow. Leslie responded that there were documents that we knew could be inspected and had not been inspected. Now that he had Tugendhat’s attention, Leslie proceeded with the list of exhibits that he was looking for. However, when questions were levelled at Challenger, he never responded directly but had a habit of making lengthy meandering responses, until Tugendhat shouted, ‘We are wandering off, Mr Challenger!’
The tone and raised voice snapped me out of the trance that I had gone into as the time had dragged on. Tugendhat was irritable and said, ‘It’s five past one. I cannot carry on. I am not at all satisfied, Mr Challenger, that this really serious case, which is really serious both from the point of view of the claimant and for the officers concerned, is being dealt with, with the seriousness that it deserves. I am far from satisfied of that.’ Challenger, looking somewhat uncomfortable, shifting his weight from one foot to the other, replied, ‘My Lord, I am very unhappy to hear that.’
Tugendhat continued: ‘Yes, I am sure that you are and you should be. These matters should have been dealt with clearly in correspondence item by item. It is, as I say, unheard of for me, a High Court judge, to sit for a morning on matters like this.’ Challenger could only reluctantly agree.
Sitting on the hard wooden bench listening to the drawn-out discussions, I had perked up to enjoy the scenario playing out before me. Jeremy, seated by Andre, could not contain himself and turned round to give me a big grin. As I was in full view of an angry Tugendhat surveying the courtroom, I rem
ained passive for fear of being seen. He was in a really bad mood and I did not want to bring any of his displeasure to our side especially as he was obviously leaning very much in our favour.
Challenger tried to get back on track and put over his points but Tugendhat had clearly had enough. He stood up, face reddening, and shouted, ‘The resources of the Chief Constable are not unlimited, of course they are not. We all know that but he is a public authority and these matters should not be left like this. I can see that you have already talked about the trial date slipping and it is quite clear that there is a danger of this going off. It is absolutely to be avoided. I do not know how I can take the matter further but it should never have got this far.’
Despite this, Challenger, still not getting the hint, tried to continue on. Tugendhat interjected once again: ‘I have indicated that I do not accept that the requests for information were inappropriate and I have indicated that I regard the position on disclosure as unsatisfactory.’ Grundy kept her head down with the fierce criticism that had been heaped upon her. I had no sympathy, she had been mucking us about for years.
Tugendhat, still disgruntled, sat down and surveyed the sea of papers in front of him. I had to give it to Challenger, he was a persistent barrister with the hide of a rhino and here he was on his feet to answer to costs of this application hearing. He was clearly unable to be concise and went off on another lengthy argument which ended with a request for disclosure from us of Duncan Campbell’s report, as the police had only seen part of it quoted in a letter that caused the criminal case to collapse.
Tugendhat said this could not be dealt with at this hearing and that a separate application had to be made. In trying to mitigate the subject of costs, Challenger said, ‘I agree with my Lord that this application should not be before a High Court judge. I accept, following my Lord’s findings, an element of responsibility if the application was necessary at all. I say that it is wholly disproportionate and in the circumstances would ask for a costs order in case, or alternatively a reservation for costs is the only possible clear outcome.’
This was clearly lost on Tugendhat who, looking towards Grundy, said, ‘No, I am going to order the Chief Constable to pay the costs of today. I wish to convey a message by doing so that I do not consider that this matter has been dealt with with the urgency that it requires. It is in everybody’s interest, and when I say “everybody” I mean the Chief Constable, Mr Hopkins, the claimant – everybody – that this matter be resolved so far as it is possible to do so before and without a trial. Deferring matters is more likely to lead to a trial and further delay. If the parties can look at what the documents and witness statements show and form realistic assessments, these cases may not need to be tried. But at the moment I am only able to convey my concern about the delay. It is a very old case. It goes back years and it should not still be in the position in which it is.’
At the request of the clerk to ‘all rise’, we stood for the judge to leave. Leslie, Andre, Jeremy and I were now able to look at each other with triumphant grins, but would not say anything until Challenger and Grundy had left the court.
I looked over to their corner to see them busily gathering up their files. It had been a bad morning for them both, with Challenger managing to wind up a High Court judge and Grundy receiving an eye-wateringly embarrassing criticism of her abilities as a solicitor. She now had to return to her boss, the Chief Constable, to report on what had transpired here, plus having to bear the costs of a hearing that they were so confident in getting thrown out. I relished in their visible discomfort and disappointment at what had transpired, which shocked me a little, as it was not really in my nature to be so vindictive. It made me realise that I had been changing, my heart was hardening, I was less sympathetic to others and not so accommodating. If I was to continue to cope with what was to come, however, this was the person I had to be.
Before we left, Jeremy and I had a brief discussion with Leslie and Andre and had a laugh at Tugendhat’s outbursts with Challenger. We had to bear in mind that we had won a battle but not the war and this hearing was just a prelude to what was to follow in the coming weeks.
Chapter 30
THE SID DOCUMENT
Just before the hearing of 28 May 2008 further documents from Grundy had been disclosed rather hurriedly in a thick file but we had not had time to look at these before going into court. After Mr Justice Tugendhat had ruled that the police hand over the information that we were looking for, we turned our attention to the latest offerings. Andre had organised that Jeremy and I receive a copy and he wanted everybody’s eyes poring over the papers.
Jeremy had to meet a friend one evening and left it to me to have a look through the bundle to see if anything interesting came to light. After a hard day’s work I was not really in the mood to look at heaps of typewritten sheets and felt a little resentful at being left with the task. I flicked quickly through the many pages, the words blurring and nothing of any note jumping out. I conceded that I would have to laboriously look at each page so I settled down and started to take in more detail. I was about halfway in when I came to a document titled ‘Service Improvement Document Number 60’ dated 18 July 2005. That in itself meant nothing to me and appeared as a memorandum from a DS Bob Willcox, Technical Support Manager, addressed to Superintendent Vic Kerlin of the Professional Standards Department. I realised that this report was as a result of the internal investigation that had been conducted after Jeremy had made a complaint to the Police Standards Authority, which we would not have seen as we agreed that they would resolve the matter internally. The first few paragraphs were a preamble of the history of Jeremy’s arrest, the confiscation of the Tiny computer and the examination of it by Fouhey. Then the next paragraph leapt out at me. I couldn’t believe what I was seeing. There, in black and white, it said:
Mr Fouhey liaised with the Officer in the Case, DC 1343 Hopkins and explained that the images identified had been found within temporary internet files. These files could not be relied upon as the basis for a charge because the origin of the images could not be detailed. These images can appear as advertisements without the user of the computer requesting them or even being aware that they were on the machine. They were small thumbnail pictures. DC Hopkins agrees that Mr Fouhey said this to him.
That last sentence was the key. Willcox had clearly interviewed Fouhey and Hopkins and if Hopkins had agreed that he was told this information then he should not have charged Jeremy with downloading and possession.
The next paragraph stated:
At this time it was agreed policy that persons who had entered the Landslide site and visited a level one site were to be charged with an incitement charge. This relates to the incitement of the persons running the Landslide organisation to commit a criminal offence of supplying paedophilia. Following his liaison with the CPS, DC Hopkins charged Clifford with the incitement offence but also charged possession of the indecent images within the temporary internet files. This was to give additional weight to the incitement charge.
I had to read it two or three times before it sank in, two words in particular – additional weight! This showed that Hopkins knew that the evidence on the credit card transactions was weak, as we found out when the CPS dropped the charge at Jeremy’s first court hearing. If he had accepted his own forensic expert’s findings then he would not have been able to bring the possession charges, which meant that Jeremy would have been home and free back in August 2004. We would have been able to put this terrible experience behind us and get on with our lives. Instead, here we were, four years on trying to establish justice and clear his name.
There was more.
Just before the matter was finally due in court Mr Fouhey was shown a report from the defence team which highlighted the fact that Clifford now stood charged only with the possession charges and that the images subject of the charges were temporary internet file images. It gave the opinion that these were insufficient to substantiate the charges. Mr Fouhey w
as asked to comment. When he did so he completely agreed with the defence expert because this was exactly what he had been saying from the beginning. As a result the case folded.
At no time did Fouhey change his evidence. He advised against charge. This was overruled in favour of charging the possession of the images in order to support a separate stronger charge. This separate charge was subsequently dropped. The remaining possession charges were then left in an unsupportable position. This was done without Mr Fouhey being consulted or even being made aware. It is not clear who made that decision or why, or whether the CPS were made aware of the information from Mr Fouhey.
The error could have been prevented if Mr Fouhey had documented the relevance of the temporary internet files within his statement. This would have had the effect of preventing them being used as support for other matters despite that fact they were not sufficient in themselves. To this end the examiners within the Computer Crime Unit have now been instructed to ensure that such reservations will be included within the statements or reports that they produce and they will no longer rely on verbal information to the officer in the case.
I was so excited by this document. No wonder this had not been handed over sooner by Grundy. I thought she must have been aware of it from quite early on, probably back when Jeremy was a litigant in person, and was probably most reluctant to let it go but had been forced to with the impending hearing to push her for proper disclosure.
I could not wait for Jeremy to get home to tell him about my findings and called him on his mobile. I explained about the Service Improvement Document which, ongoing, we referred to as the SID document, only to find that Andre had stolen my thunder and beaten me to it. He was equally amazed and could not wait to impart the news of this massive development in the case as this was a valuable piece of evidence for malicious prosecution. At Jeremy’s next meeting with Leslie he was told: ‘Congratulations, this document wins you your case.’
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