The courts have delivered a sharp rap over the knuckles to Avon and Somerset police, reminding them in no uncertain terms that it is they – and not individual police officers – who rule on legal matters.
This was the result of a decision handed down from a judicial review last Friday, before Lord Justice Richards and Mr Justice Owen, which held that a search carried out at the Market Harborough home of forensic expert Jim Bates had been unlawful – and thus any seizures made in the course of that search were unlawful too.
This is the end of a story that began last June, when Jim Bates accompanied a fellow forensics expert, Chris Magee, to the offices of Avon and Somerset Hi-Tech Crime Unit to make copies of hard drives implicated in a trial for indecency. Their aim was to determine whether there was any trace of malware that might have automatically downloaded the images.
Jim Bates' status as expert was at that time in some doubt. It is generally agreed that he has considerable expertise in the area of computer forensics. He has acted both for the police and, increasingly, for the defense in a number of high profile cases: his findings have attracted both praise and condemnation, as he may be viewed as either a shining defender of the truth, or an awkward impediment to justice, depending on point of view.
In early 2008, he was found guilty of perjury in respect of his academic qualifications, and his ability to act as an expert witness was thereby severely diminished. There is some confusion as to his exact role in this case: at the judicial review, conflicting evidence was given as to whether he had been instructed to act for the defendant.
Reading between the lines, it appears that the legal profession is now very wary of him, but that the defendant still wished for his involvement on the basis of his known expertise.
On arrival at Bristol police station, Jim Bates and Chris Magee claim that they made no attempts to conceal Bates' identity – and that Bates signed an exhibit label in respect of material copied. Mr Magee introduced Bates as "my assistant" although also during that visit, Bates is alleged to have remarked that he was just "the driver".
This remark featured in later police evidence, as possibly indicating an intention to conceal his true purpose on the premises.
Over the next few months, a series of heated exchanges took place between the Crown Prosecution service and Bates. However, as he observed to The Register in September of last year: "If the Police wanted their hard drive back, they had only to ask." There was no hint of what was to follow.
A simultaneous raid took place at the home addresses of Bates and Magee on the morning of 8 September 2008. The warrant was counter-signed by a DI Cawsey of Avon and Somerset Police, and was specifically made out on the basis that the police needed to look for evidence of "conspiracy to possess indecent images".
Again, as we observed at the time, there was a whiff of "through the looking glass": impersonating forensic experts and signing in to a local police station using one’s real name in an attempt to access child porn is not the world’s most cunning of plans.
Police officers extended their search beyond the areas specified in the original warrant, relying on PACE s19 powers to remove large amounts of additional material and hard drives as possible evidence of the alleged conspiracy. They continued to remove items despite protests by Bates that they were taking away "privileged material" – specifically, material that could not be seized under warrant by virtue of its privileged status in respect of past and ongoing court cases.
This is a key point, to which the judicial review returned in some detail. The judges held very clearly that whether or not Bates remained an expert was not for the police to judge: it was not even for the courts to determine. Rather, his recent history and conviction might "go to the weight of the evidence not to its admissibility".
Police claims that Bates no longer had expert status were therefore in error.
The case brought by Bates was that the warrants themselves were issued unlawfully, because the police had no reasonable ground for assuming that there was no privileged or "special procedure" material on his premises.
The court upheld this contention, pointing out that contrary to statements made by the defence, the police were directly aware of Mr Bates acting in an expert capacity as recently as 2005. They added that, in previous cases, it had been held that in applying for a warrant it was "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". Clearly, the police had not done this.
Declaring the original warrant unlawful, the judicial review went on to rule the subsequent extension of the search to be illegal as well. Jim Bates has been vindicated. ®