Former Chief Constable of Kent Police
Alan Pughesley

What happens when Kent Police don't have enough evidence to prosecute? Well they make it up of course. On 21 May 2014, LM was arrested on suspicion of possessing indecent images of children. He gave a full interview denying any knowledge of such images. He was interviewed at length, the transcript spanning 75 pages. During that interview, LM admitted to using Pirate Bay to illegally download otherwise legitimate movies, music and software. Illegal only because of copyright infringement. During interview, LM raised the very real possibility of malicious Remote Access Software, also known as Trojan Horses or (incorrectly) simply as viruses.

DC Karl Brett, interviewing, asked LM when was the last time his computer had a virus and he replied that he 'thought it had one now'. See the excerpt of the interview below (click to see an expanded version).

Despite this, neither DC Brett or his digital forensics analyst Gary Bates conducted any investigation in to the existence of malware, past and present, on LM's computer. Both claim to have found indecent images though but this still didn't prompt them to investigate the existence of malware. Why should they? Well, by not carrying out such an investigation, DC Brett and Mr Bates broke the law. The Code of Practice at section 23(1) of the Criminal Procedure and Investigations Act 1996 states:

“In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. For example, where material is held on computer, it is a matter for the investigator to decide which material on the computer it is reasonable to inquire into, and in what manner.”

DC Brett was told in interview of the possibility of malware on LM's computer but he ignored this, contrary to the Code of Practice. Just four years prior in 2008, John Maughan of Bishop Auckland was charged with possession of hundreds of indecent images of children on his computer. Mr Maughan said that viruses were likely responsible but Durham Police later said they found none (Durham Police provided no evidence that they conducted searches for viruses). Mr Maughan obtained an independent analysis of his computer that found 251 potentially toxic files, 55 of which were Trojan Horses granting criminals full access to Mr Maughan's computer from anywhere in the world. Charges against Mr Maughan were dropped and in a civil claim he was awarded £35,000 in damages. Lessons should have been learnt, the College of Policing should have circulated Mr Maughan's case to all police officers. LM had no knowledge of Mr Maughan's case during his interview but DC Brett should have.

Innocent victim of Durham Police
John Maughan

DC Brett claimed that he found indecent images on LM's computer having been alerted by Mr Bates of the possibility based on indicative titles being located. The computer was a desktop PC located in a living room of LM's family home and accessed by several individuals. In order to persuade the CPS to authorise charges, DC Brett had to find a link between the images and LM. There was none. What does any Kent Police officer do in this situation? Well they fabricate the evidence of course. DC Brett isn't worried about the consequences of fabricating evidence, it is very much a Kent Police thing and has the support of consecutive chief constables, the Kent Police Professional Standards Department and the Kent Police Legal Services Department.

DC Brett went about making his false witness statement that included the following passage, completely false of course:

"During the times that searches/downloads were occurring, with respect to indecent images of children, a person was logged into a Facebook account in the name of [LM]".

This fabrication by DC Brett was designed specifically to obtain guilty pleas from LM. DC Brett was successful. Once charged, LM was denied bail after pleading not guilty at Margate Magistrates' Court and was remanded into custody to appear at Canterbury Crown Court a month later where LM's barrister, Mr John Barker, having read DC Brett's witness statement advised to the effect: 'If you plead guilty, we'll have you out of here by this afternoon on a suspended sentence'. Mr Barker, unfortunately, did not pick up on the inaccuracy of the statement. LM pleaded guilty in the belief that the UK has an effective appeal system. Unfortunately, it does not. The UK doesn't really do appeals but has to give the impression that it does in order to instil confidence into the general public and to impress other sovereign states.

False guilty pleas are common, for example, in the Post Office scandal where the Court of Appeal were forced to quash convictions of postmasters and postmistesses following civil action in the High Court, in the first batch of overturned convictions, 35 had pleaded guilty out of 39 defendants. It is suggested that pleading guilty will avoid the defendant a stressful trial at the mercy of a jury and will also give them a third off of their sentence. Roughly translated, a defendant's sentence is increased by half if they dare to plead not guilty but later convicted by a jury.

Despite the advice of Mr Barker, LM was not released on a suspended sentence, he was remanded back in to custody whilst the court adjourned for 5 weeks pending a sentencing report. LM was ultimately sentenced to 10 months in prison. The sentence was not suspended.

During 2022-2024, LM was in legal dispute with Kent Police over the false witness statement by DC Brett. In the data protection claim, Kent Police applied to have the case struck out on two grounds: 1) Abuse of process and 2) that the statement wasn't false. HHJ Parker sitting at Canterbury County Court dismissed Kent Police's application to strike out on both of their grounds. Kent Police appealed to the High Court. Mr Justice Kerr allowed the appeal in that LM's claim was an abuse of process but did not allow the appeal on the second ground. Mr Justice Kerr agreed with HHJ Parker (and LM) that the passage in the statement by DC Brett was false*
*The word 'inaccurate' is used instead of 'false' in data protection legal jargon.

"Ms McNeil-Walsh [for Kent Police] accepts that the judge [HHJ Parker] had to address the meaning of the personal data in order to determine whether it was arguably inaccurate. The court follows the same approach as in a defamation claim."

"The appellant’s [Kent Police] contention was that the judge embarked on an over-elaborate analysis and took too literal an approach to the content of DC Brett’s statement, in determining its natural and ordinary meaning."

"On that footing, I tend to agree with the judge that the respondent’s [LM] meaning is arguably correct."

"I do not accept that his analysis was over-elaborate and technical. It seems to me to have been plain and straightforward."

"The issue whether there was “simultaneity” or not might have troubled the jury if the respondent had pleaded not guilty..."

"The appeal does not succeed on the second ground. The judge was entitled to find that the meaning of the statement was as he found it to be and that the respondent had a reasonable prospect of demonstrating at trial that it was inaccurate and obtaining a remedy. However, the success of the first ground of appeal is fatal to the claim, which will proceed no further."

Mr Justice Kerr
Neutral Citation Number: [2024] EWHC 990 (KB)

Mr Bates, DC Brett's forensic analysist at Kent Police, stated that files containing indicative titles were located on two hard drives. Mr Bates noted that LM's computer, described as a 'black tower computer', had a bank of hard drives within and that one of them contained indicative titles. Another internal hard drive that had previously been removed from that computer was also said by Mr Bates to contain files with indicative titles. On sentencing LM, HHJ Norton ordered the destruction of the two hard drives. A routine order but one that destroys evidence for and against the defendant.

LM's computer at the time contained a bank of four hard drives. One was removed and destroyed as per the court order along with the previously removed hard drive. This meant that LM's computer was returned to him with three hard drives still in place. Almost all of LM's personal files were on those three hard drives including precious photos of his children. Also on those hard drives were the copyright infringed downloaded movies, music and software downloaded from Pirate Bay. After spending hundreds of hours analysing the behaviour of the various software downloaded from Pirate Bay, several installer viruses and trojan horses were found. An installer virus is not technically always a virus but is any malware embedded into otherwise legitimate software such as installers for Microsoft Windows, Microsoft Office, Adobe Photoshop, etc. When the installer is launched, the expected software is install but simultaneously, malware is also installed.

Two of the installer viruses located on LM's computer replicate exactly what was reported by Mr Bates. When installing Audacity (a music editor) or EaseUs Data Recovery Wizard Professional, both of which were downloaded from Pirate Bay in 2012 or 2013, the expected software was installed and was fully functional. But other software was silently installed that downloaded indecent images of children automatically following a restart of the computer. On each future restart, the malware would move the illegal files from C:\Users\[USER]\Downloads\eMule\Incoming to a directory called 'Encrypt' that is created by the malware on the drive designated with the highest drive letter. For example F:\Encrypt.

Do not be put off from using Audacity or EaseUs Data Recovery, just be sure to download them from reputable websites, preferably their own. The software is the best in their fields.

Had DC Brett not broken the law by ignoring the Code of Practice, the malware would have been discovered and no charges would have been brought. Had DC Brett not lied in his statement and as a consequence to the Court, he would not have perverted the course of justice, an offence that carries a maximum sentence of life imprisonment. Had DC Brett not committed either of those crimes, LM would not be wrongly convicted and LM's two youngest children would not have been adopted by strangers.

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