QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OWEN
| TERENCE JAMES BATES
|- and -
|CHIEF CONSTABLE OF THE AVON AND SOMERSET POLICE
BRISTOL MAGISTRATES' COURT
Andrew Waters (instructed by Legal Services Department) for the First Defendant
Hearing dates: 7 April, 2009
Crown Copyright ©
Mr Justice Owen :
THE BACKGROUND TO THE APPLICATION
"JUDGE HAGEN: Do you have that defence expert's report the first one?
MR MOORHOUSE: No. We have been served without one. We have a copy of the agreed areas between the two witnesses, which is available. The defence then instructed a witness, Mr Bates.
MR RICHARDS: We did not instruct Bates at all, ever.
JUDGE HAGEN: In essence, did the defence expert agree with the Crown?
MR MOORHOUSE: Yes, by and large. On all of the critical matters that were in dispute. My learned friend corrects me, that a person called Mr Bates was not instructed. If that was the case then it does give rise to concerns because Mr Bates was a person who was put forward and, as I understand, it given access to indecent images on the belief that he was an expert for the defence.
JUDGE HAGEN: Well, what was agreed at that stage with your expert?
MR MOORHOUSE: That was Paul Veller, who was the first expert witness instructed by the defence. There was then a person, if I can put it neutrally, which certainly the Crown believed was an expert instructed by the defence, called Mr Bates who was instructed after the defence lost confidence in Well, he was not instructed but certainly the Crown formed the view that he was. He made enquiries of the computer the week before the last time the matter was due for trial and the report The primary reason why the last trial was adjourned, Mr Bates was convicted for offences of perjury in relation to evidence he had given as a purported expert in criminal proceedings where he put himself forward with qualifications he did not have in a trial/ And so the defence in effect just before the last trial, were deprived of the potential to call that person as a witness.
MR MOORHOUSE: I raise one further matter as far as Mr McGee is concerned, because it may become relevant in the course of the trial, that Mr McGee visited the police facility with a person who he introduced as his driver, Jim. That person, his driver Jim, it seems started involving himself in the analysis of the computer and it transpired, when the police checked his identity, that Jim is Mr Jim Bates the convicted person who was supposedly put forward as an expert earlier on in the proceedings.
JUDGE HAGEN: It rather discredits Mr McGee then?
MR RICHARDS: Well, Mr Bates was never instructed as an expert by the defence.
JUDGE HAGEN: How was it he came to be involved then?
MR RICHARDS: Because Mr Bates, an expert used extensively by the Crown and by the defence in many hundreds of cases, was convicted for putting forward
JUDGE HAGEN: Was he or was he not instructed by the defence?
MR RICHARDS: Well, he was not, no, but the defendant
JUDGE HAGEN: So how was it that he happened to attend to examine the material in this case?
MR RICHARDS: It would appear not through any instructions of mine. But the position is that Mr McGee of Cyber Forensics knows of Mr Bates, who is regarded in many ways to be the founding father of computer forensics in this country.
JUDGE HAGEN: Despite having been convicted of perjury?
MR RICHARDS: Recently, yes. But prior to that he had had some 30 years of experience in the matters. Mr McGee, in the past and indeed to today, often uses him as a consultant and that is how he became involved in these matters today. He would use him as a consultant. He has never been instructed. Once I heard that the
I see there is a letter from my solicitor which purports to say that he was. The instructions are not clear. (conferring)Those instructing me wanted to instruct Mr Bates but he never had access to the material, which was the hard drive, the computer detail which needed to be examined to check that the depositories in evidence was accurate. He never had access to that because, of course, he had this conviction, as I understand it. But when I was aware that he was involved clearly if he was to be the defence expert his value would be almost nil, and that is why I was adamant that he should not be involved in the case. This was the difficulty with the experts we faced once Mr Veller was discarded. "
THE SEARCH WARRANT
" there are reasonable grounds for believing:
that an indictable offence namely: Conspiracy to Possess Indecent Images of Children has been committed and
that there is on the sets of premises described in the Schedule attached material that is likely to be relevant evidence and be of substantial value to the investigation of the offence and does not consist of or include items subject to legal privilege, excluded material or special procedure material, namely:
Clone copy of hard drive, computers, memory sticks, mobile phones, video tape and written correspondence between interested parties."
"There is an investigation into the Making and Possessing of Child Abuse Images that is fixed for trial at Bristol Crown Court on 15 September 2008. The defendant in this case is Harris.
The suspect Bates is a discredited 'expert' in computer forensics having been convicted in March 2008 at Leicester Crown Court of Making a False Statement in evidence x 4, this was with regard to qualifications he alleged he held.
In April 2008 the defence in the Harris case informed the prosecution that they wanted an additional expert to look at the Harris case and named Bates as their preferred choice. The prosecution at Bristol Crown Court on 7 April 2008 stated Bates was not acceptable to the Crown as an expert witness.
On 30 May 2008 the suspect Chris Magee of Cyber Forensics was instructed by the defence as their expert.
On 3 June 2008 Magee attended the Avon & Somerset Constabulary High Tech Crime Unit at Kenneth Steel House Bristol to 'clone' a hard-drive in the Harris case for examination. Magee was accompanied by another male who was introduced as 'his driver'.
Both men were at the premises for a number of hours and left with a 'cloned' hard drive, it wasn't until the following day that it was discovered that the suspect Bates was the male with Magee.
Bates has submitted a 30 page plus report in the Harris case where he states that he has examined the hard drive in the case, at the request of Magee of Cyber Forensics.
This hard drive contains a quantity of Child Abuse Images."
THE CLAIMANTS' CASE
a. The warrant did not identify so far as practicable the articles to be sought, as required by Section 15(6)(b) of PACE and was oppressively wide in the light of the requirement that only items which there are reasonable grounds for believing will be "relevant evidence" may be seized (Section 8(1)(b) and (4) of PACE):
b. There were no reasonable grounds for believing that the material sought did not include legally privileged material and special procedure material (Section 8(1)(d)):
c. There were no reasonable grounds for believing that the purpose of the search might be frustrated or seriously prejudiced unless a constable arriving at the premises to be searched could secure immediate access to them (Section 8(1)(e) and 8(3)(d)):
d. The entry and search was unlawful because it was not only a search to the extent required for the purpose for which the warrant was issued, and there was excessive search and seizure (Section 15(1) and 16(8)):
e. The warrant should be set aside by reason of a lack of full and frank disclosure to the justice who issued the warrant:
f. There were no reasonable grounds for believing, when the application for the warrant was made, that an indictable offence had been committed (Section 8(1)(a)).
THE STATUTORY FRAMEWORK
"8. Power of Justice of the Peace to authorise entry and search of premises.
(1) If on an application made by a constable a Justice of the Peace is satisfied that there are reasonable grounds for believing:
a. that an indictable offence has been committed; and
b. that there is material on premises which is likely to be of substantial value (whether by itself or whether with other material) to the investigation of the offence; and
c. that the material is likely to be relevant evidence; and
d. that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
he may issue a warrant authorising the constable to enter and search the premises.
(2) A constable may seize and retain anything for which a search has been authorised under sub-section (1) above.
Sections 10 and 14 contain definitions of the terms 'items subject to legal privilege' and 'special procedure material'. Section 19 provides for the seizure of property other than that identified in the warrant.
"8. On Friday 5 September 2008 I attended the offices of the Crown Prosecution Service with DS Jones and met John Burgess, a senior member of the Crown Prosecution Service, to discuss the information provided by Brendon Moorhouse in greater detail. The circumstances of the case were unusual and had come about following a breach of security at Avon & Somerset High Tech Crime Unit. The breach of security had occurred when Terence Bates accessed the High Tech Crime Unit with Christopher Magee and either assisted with, or was present when, Mr Magee, the appointed Defence expert in the case of Graham Harris, examined and obtained a clone of the hard drive from Harris' computer. Mr Bates later submitted a written statement regarding his examination of the computer in which he refers to having examined the clone hard drive.
10. The Crown Prosecution Service confirmed that Terence Bates was not authorised by the court to act in the role of a defence witness for the case of Graham Harris. A request for Mr Bates to act for the defence had been made and denied on two occasions, possibly due to his criminal conviction, and the Judge had made it clear Mr Bates was not to act as the defence witness and therefore must not have access to the material. I understood there had also been at least one further defence expert who had already examined the Harris computer. Mr Bates could not therefore have any legitimate reason for being in possession of material relating to the Harris case.
11. The Crown Prosecution Service also confirmed the Crown had a duty to protect material gathered during an investigation and that if hard drives contain indecent images of children, the Police are custodians of that material. Mr Magee was the legally appointed defence expert and had a duty to act with integrity and not compromise the material. I believed there had been a deception, regardless of our lapse in security, by not disclosing the full identity of Mr Bates who was introduced as "Jim the Driver". Mr Bates was therefore, in my view, in unlawful possession of copy material potentially distributed by Magee. The Crown Prosecution Service considered it both proportionate and in the public interest to pursue the investigation and subsequent prosecution if the charging threshold was met.
12. The timing of any arrest was significant due to the pending trial of Mr Harris to be heard on 15 September 2008. In order to limit the impact our action would have on the Judicial System, the decision was made to arrest both Bates and Magee on suspicion of conspiracy to possess indecent images of children at the earliest opportunity prior to the Harris trial
13. I was made aware that Terence Bates was known to the Crown Prosecution Service in London who had prepared an advice document back in 2005 concerning his status and suitability as an expert witness. Guidance was issued to the Crown Prosecution Service at that time, should he be nominated as a defence witness in the future.
14. As Mr Bates was not the authorised legitimate defence expert, he had no right to possession of any of the Harris case material and should not have been in a position to examine the cloned drive. Mr Magee, the accepted expert, was the only person entitled to examine the material being the party named in the memorandum of undertaking signed on 2 May 2008 by him and DS Beer. This was signed when arrangements were first made for Mr Magee's visit to the High Tech Crime Unit. A copy of that memorandum and the subsequent undertaking Mr Magee signed on 3 June 2008 is attached marked "BC/1". Mr Magee specifically undertook to take and retain personal possession of a copy of the computer material to keep it secure and make no additional copies of the material.
15. I was therefore satisfied and believed there were reasonable grounds for arresting both Mr Magee and Mr Bates on suspicion of conspiracy to possess indecent images of children and for the search of their premises.
17. On 8 September, DC Smith prepared the necessary Section 8 PACE Warrant applications which I authorised the following morning.
18. I agreed that simultaneous warrants and immediate execution was necessary to prevent any opportunity for the loss or disposal of evidence, given that both suspects were IT experts with the means of destroying evidence. Mr Bates had already obtained access to the High Tech Crime Unit by deception and I believed it was highly unlikely that any material would be handed over voluntarily. The premises needed to be secured immediately on arrival to prevent any frustration or prejudice to the investigation. A further warrant was obtained for the workplace of Mr Magee, namely Cyber Forensics.
19. The purpose of the search warrant was firstly to recover the cloned hard drive in the Harris case, secondly to recover the video recorded examination of Harris' computer at the High Tech Crime Unit and thirdly to locate any electronic communication such as text messages, emails or other written communication between Mr Magee and Mr Bates relating to the arrangements or agreement made to facilitate Mr Bates gaining access to the investigative material in the Harris case. Such communication could potentially be stored on mobiles, computers, USBs or other multi-media equipment.
20. The search warrants were therefore focused solely on obtaining evidence relevant to the suspected conspiracy and the way in which access was obtained to the High Tech Crime Unit in order for Mr Bates to examine and subsequently prepare a report in connection with the Harris case."
"14. At the time I prepared the Warrant Application forms I was satisfied from the investigations undertaken that Mr Bates was not authorised or permitted to act as an expert in the Harris case. I believe that he could not, therefore, claim any legal privilege over documents relating to that investigation.
15. On arrival at court I handed over all the documentation including the grounds and information to the court staff. I then took the oath before three Magistrates' and a Clerk and delivered the information as disclosed on the application.
16. I specifically remembered the Magistrates expressing surprise by the actions of the suspects obtaining entry to police premises and being asked if they had done so to distribute child abuse images. I informed them that clearly that our procedure had been lax, allowing them entry without confirming identities but that the deception was a way in which to facilitate Bates access to the material enabling him to make an examination of the computer hard-drive. If the officers had been told who Bates was, he would not have been granted access to the High-Tech Crime Unit. I informed the Magistrates that the cloned hard-drive contained over 1500 child abuse photographs.
17. I further informed them that Bates had been used by the police as an expert in the early days of Operation Ore."
"If an application is made for a warrant it is the duty of the applicant to give full assistance to the District Judge, and that includes drawing to his or her attention anything that militates against the issue of a warrant."
The evidence set out above at paragraphs 20 and 21 and the terms of the warrant itself, set out above at paragraph 13, reveal that the material that either was, or ought to have been, drawn to the attention of the justice was to the effect the first claimant was known to be an expert in the analysis of material held on computer, albeit that the officers believed him to have been discredited; secondly that he had acted as an expert for a substantial period of time, in particular for the prosecution in relation to the Operation Ore cases, and thirdly, per DI Cawsey, that he was known to the CPS in London, which had prepared a report concerning his status and suitability as a witness in 2005.
Lord Justice Richards :