There are many cases that show a surprisingly insouciant approach to accuracy by those who draft, and those who sign, witness statements.  This  insouciance  is even more surprising when the person who has signed the statement is a public official, or someone with an official role.  This case be seen in the contempt of court application heard by Mr Justice Langstaff in Coghlan -v- Bailey [2017] EWHC 570 (QB). Although the judge found that the person who made the statement was not dishonest the statement was undoubtedly “careless” in several respects.

“In my judgment, there is a high public interest in ensuring that public officials making statements in these kind of proceedings do so with, as far as is humanly possible, complete accuracy and certainly with no intention to mislead”

“In many respects the evidence of Mr Bailey was less than impressive. Though he was an investigator, assigned to an investigation, his emphasis upon the fact he reviewed the material on the files of SOCA was such that he accepted he had done no investigation of his own. When it was pointed out to him that he had used the words ‘my investigation’ in his witness statement of 24 April 2013 when making an application to strike out proceedings brought by the Applicant, he described the word “my” as a typographical error. The evidence he was now giving was that despite calling it “my investigation” it had never been an investigation conducted by him…”


The defendant was a financial investigator with what was the Serious Organised Crime Agency.  It was alleged that the Defendant had made a false statement, verified by a statement of truth, without having an honest belief in its truth.  The defendant had made a witness statement in support of an application under the Proceeds of Crime Act 2002.

“The Alleged Contempt
    1. In his witness statement, verified by a statement of truth, of 15th July 2009, Daniel Bailey when describing these transactions, and in particular the initial sale to Kayes, said at paragraph 7.12:
“analysis of the conveyancing files obtained under Disclosure Order show that KAYES purchased The Chapel for £180,000 from Simon Harrington and Alexandra Wilkinson. Inquiries with the mortgage provider have shown KAYES to have obtained a mortgage with the Natwest for £162,000 with a 10% deposit of £18,000 being paid by bankers draft from an unknown source. During interview on 26th November 2008, KAYES was asked how he purchased the property to which he replied that he couldn’t remember. When asked whether it was a cash transaction he again stated that he couldn’t remember but that he thinks their (sic) might have been a mortgage.”
    1. The Applicant’s case is that this statement was false, and made without an honest belief in the truth of the statement, thus rendering the statement of truth itself false.
    2. The Applicant’s central case (paragraph 16, Grounds) was that Mr Bailey lied in his witness statement as to the exact figure and source of the Deposit funds stating that this was “£18,000 being paid by bankers draft to an unknown source” when in fact it was a cheque for £18,030 from an instant saver account of Mr Kerry Kayes. The statement purported to have been made (paragraph 17) after Mr Bailey had conducted an “analysis of the conveyancing file obtained under the Disclosure Order”. From this a reader was intended to infer that he had conducted a complete review of the file, and was expressing himself with candour in relation to all relevant entries.
    3. The conveyancing file (paragraph 18) had never been disclosed to the Applicant by SOCA, although a request for this had been made by him. When the Applicant through his own efforts obtained the file he discovered it to have contained a cheque “signed on behalf of the Halifax”. He asserted (paragraph 19):
“that cheque refers to the Instant access account of Mr Kayes (an account examined by the Defendant). It is drawn on the Denton Branch where Kayes banked and not the Wilmslow one at which the Applicant banked. It refers to the solicitor of Kayes. The amount was 18,030 rather than the cash round sum of 18,000.”
    1. The conveyancing file (paragraph 20) also contained a note from Kayes’ conveyancing solicitor dated 8th March 2000 in which was said “Kerry said he would obtain a deposit cheque for £18,030 and he would bob it in in due course on the next couple of days”. Despite this, Mr Bailey had wrongly asserted that the deposit was £18,000, paid by draft, and from an unknown source.
    2. This evidence was reflected in para. 21 of the judgment of Simon J. He said:-
“On 4th February 2000, Natwest Bank valued the Chapel at £290,000. On 24th March 2000, it was sold to Mr Kayes by its owners Adrian Harrington and Alexandra Wilkinson, for £180,000. First of all, though £162,000 of the purchase was raised by mortage from the Natwest Bank, it is unclear where the deposit of £18,000 came from. It was paid by bankers draft but the SOCA’s evidence was that it did not come from any identifiable account of Mr Kayes and when asked about this, Mr Kayes had no recollection of it.”
    1. In his findings at paragraph 107(4) of his judgment, Simon J said:
“The purchase of the Chapel using a mortgage was an unusual transaction for Mr Kayes and, although £162,000 was advanced on the mortgage, Mr Kayes was unable to explain where the £18,000 deposit came from. Its source is still unexplained but is likely to have come from Mr Coghlan.”
    1. For the purpose of this application, Mr Coghlan has exhibited a copy of the cheque or draft, and the solicitor’s note to which I have referred.
    2. In granting permission on 6th December 2016 for this application to be made, Mitting J said at paragraph 6:-
Contrary to what Mr Bailey said in paragraph 7.1.2 (sic) of his witness statement, although the deposit was paid by bankers draft, the source was not, on true analysis, unknown. It was, or was almost certainly, Mr Kayes’ instant access savings account. In the absence of any explanation from Mr Bailey, it is difficult to understand how he could have come to say that, having analysed the conveyancing files the bankers draft represented funds from an unknown source. Mr Talbot accepts that the paragraph is, at least in that significant respect inaccurate. For the purpose of these proceedings, Mr Bailey has not had an opportunity of explaining what he meant. However in… proceedings brought by the Applicant to set aside the judgment of Simon J, [which failed] he did produce a witness statement in which he addressed this issue but not explain how it was that he came to give the erroneous impression to which I have referred in paragraph 7.1.2 of his witness statement. The position therefore is that at the moment, there is no explanation of that error or worse in paragraphs 7.1.2 of his witness statement.”
    1. Mitting J went on to say that the test set out in paragraph 16 of the judgment of Moore-Bick LJ in KJM Superbikes Ltd v Hinton [2009] 1WLR 2406 for granting permission to apply for committal proceedings was met. He commented (paragraph 8):
Mr Bailey was a public officer appearing in coercive proceedings against an individual. As Mr Talbot accepts, there was a duty of candour upon him. He has had the opportunity to explain why it was that paragraph 7.1.2 was erroneous in the respect that I have identified and has not taken it. In my judgment, there is a high public interest in ensuring that public officials making statements in these kind of proceedings do so with, as far as is humanly possible, complete accuracy and certainly with no intention to mislead. Although there may well be a complete answer in due course to be provided by Mr Bailey, it is not, on the material that I have reviewed, evident at the moment. Accordingly, in relation to this ground, I conclude that permission should be given.”
The Evidence
  1. Mr Bailey filed an affidavit on 2nd February 2017, and supported it by oral testimony. After consideration of what he had said, the Applicant chose to call Costas Elias, a former financial investigator of the Assets Recovery Agency (“ARA”) and SOCA. Mr Elias had been the investigator responsible for identifying whether the Applicant held property in respect of which recovery proceedings should be brought. He had that role from 2005 until he was promoted in May 2008 to the post of principal officer.
  2. Mr Bailey told me that he had had some three years’ experience of financial investigation prior to joining ARA in March 2007, where he then began as a trainee financial investigator. He was still a trainee when on 1st May 2008 he was given conduct of the civil recovery investigation into the Applicant. Some 19 days later he was promoted to the role of accredited financial investigator (he had earlier been formally accredited – in March 2008 – by the National Police Improvement Agency). In his Affidavit he described his task as being to “review” the material obtained by Mr Elias before making a decision as to whether to progress the investigation to formal court proceedings. He emphasised this in his oral evidence.
  3. In many respects the evidence of Mr Bailey was less than impressive. Though he was an investigator, assigned to an investigation, his emphasis upon the fact he reviewed the material on the files of SOCA was such that he accepted he had done no investigation of his own. When it was pointed out to him that he had used the words ‘my investigation’ in his witness statement of 24 April 2013 when making an application to strike out proceedings brought by the Applicant, he described the word “my” as a typographical error. The evidence he was now giving was that despite calling it “my investigation” it had never been an investigation conducted by him, since he had merely acted to review the results of an investigation conducted by others, pulling the material together in order to assess whether there was a viable case to commence recovery proceedings.
  4. In a witness statement of 21 July 2011, he described that it was a failure of his not ‘to make sufficient inquiries with HM Land Registry…‘ When it was put to him by Mr Keeling that he had said that he was making no inquiries of his own, yet here he appeared implicitly to recognise that he had made some (and, it might have been added, felt he had an obligation to do so given his description of it as a failure on his part) he gave the answer that he was not making an inquiry of the Land Registry, because he would not be looking for an answer to a question.
  5. Next though, in his witness statement of 15 July 2009, he appeared to be saying (at paragraphs 6.30 and 6.34) that he had taken something of an investigative role. His explanation became not that he had never occupied such a role in respect of this particular inquiry (though that was the thrust of his earlier evidence): he had, but had not done so before interviewing the Applicant, and Mr Kayes, in 2008.
  6. Nor do I regard it as satisfactory that his witness statement of 15 July 2009 did not indicate that though describing himself as ‘financial investigator’ in fact he had investigated nothing of his own prior to November 2008 and had personally been involved in the ongoing enquiries only since 2007: his witness statement would have left the court with the impression that he had personally been involved throughout, and had personally investigated matters, and this would not have been accurate. He should have realised this.
  7. He accepted fully that it was open to him to make enquiries. No-one had told him merely to review and collate evidence collected by others. Plainly, he knew that the deposit had been paid by a document which came from the Halifax. He accepted that it was an obvious enquiry to ask the Halifax what the source of the funds was. In all the other investigations he had conducted it is a question he would have asked. It should have been obvious to him that those who had been involved in the inquiry prior to him would almost certainly have asked that question, and that the answer should be somewhere in the documentation. Yet though describing the work he did as ‘a good analysis’ of the conveyancing file, he said he did not see this, nor make any enquiry (if he was to be believed) of Mr Elias, who remained his line manager, and whom in one passage he described to me as sitting next to him in the office.
  8. By saying that the bankers draft was from an unknown source he implied that enquiries had been made into the source of the funds, as one would expect if there had been a careful investigation by an organisation with the powers of SOCA or, before it, the powers of the ARA, into the provenance of the funds. He accepted that, in the Conveyancing file, to which he had access, there was a file note with the initials of Mr Kayes’ solicitor dated 8 March 2000 – the only file note of an attendance on the clients (the Kayes) in the file – in which the source of the deposit cheque was indicated to be ‘Kerry’ (ie Mr Kayes) since he had promised to “obtain” it. He accepted that a notice had been sent to the Halifax seeking details of the origins of the funds. He told me that request however was not in the paperwork which he reviewed. He would, he said, look for the response in any event, rather than the request. There was no written response, somewhat unusually, but there was a telephone call recorded on the electronic systems operating within SOCA at the time. That shows that on the 14 April 2007 Trish Miller of the Halifax had called to tell “me” (that is Mr Elias, whose record it was) that the funds were drawn on an account in the name of Kerry Kayes. She had said that the account was live but not active, with a balance of £246. Only six entries later in the same computerised record were four entries made by Mr Bailey, noting that interviews of Mr Coghlan, Tomlinson, Kayes and Sharon Hall (who had been involved in the abortive conveyance of Blackshaw Farm) were due to take place, giving the place and time. This showed that he had had at least part of the very computer file on which the entry was recorded, if not the entry itself, in front of him on the screen. Mr Bailey could not say whether the response from the Halifax was or was not on the screen when he entered those appointments, but if it had been he said he did not notice it.
  9. A separate file note was also made, by Mr Elias, of the call from Trish Millar This was held on files accessed by entering them through his name. Mr Bailey did not see that either. He said that he had simply seen the draft as being a ‘banker’s draft in a conveyancing file’
  10. The absence of any enquiry made by Mr Bailey into the provenance of the funds, and his failure to pick up the references on file which might have alerted him (the draft itself, the attendance note from the solicitors, the entries on the screen, and the file note) were compounded by the fact that Mr Kayes was asked at interview in November 2008 about the deposit, but was not shown a copy of the draft to jog his memory.
  11. Despite Mr Bailey’s acceptance that it was a standard inquiry to ask a bank for the source of funds in circumstances such as these, and that he had made such an inquiry on every case he had investigated (save, it follows, this), he said to Mr Talbot QC in re-examination that it had not occurred to him that there were thunderingly obvious inquiries to be made, nor had it occurred to him that there were avenues to be explored in relation to the Halifax draft.
  12. Further, the evidence of Mr Elias was that Mr Bailey had taken over as the investigator, such that the investigation became his. Mr Elias would have expected Mr Bailey to follow investigative leads and not simply to collate the information that had already been collected. He would expect Mr Bailey to look into any area which had been overlooked.
  13. Given all this material Mr Keeling QC, for the Applicant, argued that it could not be said that it was not Mr Bailey’s role to make what were obvious checks. Therefore, either Mr Bailey knew that the investigations had been made and there was no comfortable answer which would advance an application for a recovery order, or he deliberately did not wish to ask because to do so would be to risk an answer unfavourable to the course which it was plain that SOCA was set on. His failure to pick up the evidence from the file, the computer screen, or from Mr Elias himself by simple enquiry pointed towards more than a mere mistake.


  1. I have no doubt that the statement was false, and tended to mislead. However as to its falsity I do not accept the Applicant’s case (at least as put in the application) in its entirety. Though initially it was suggested by the Applicant on paper that it was a factual error to describe a cheque drawn by the Halifax on its own account as a ‘draft’ I do not accept that this was materially false: a cheque drawn on a branch suspense account by a building society is to be treated in every respect in a similar way to a cheque drawn by a bank upon its own funds. The latter describes a ‘bankers draft’. That description was entirely appropriate for a cheque (or draft) such as that exhibited in the present case.
  1. As an organisation, SOCA was responsible for providing the Court with complete information. It failed to do so. The court should have been told that the immediate source of the funds was an account in the name of Kerry Kayes. That however still leaves room for argument what the provenance of the money in that account was, or as to cross-accounting between receipts elsewhere into the hands of Kerry Kayes: as to which, it was clear to me during the course of his evidence that Mr Bailey was reluctant to depart from his view that the source was the Applicant. As I have said, this was not an unreasonable view to have: I have, ultimately, concluded that it is probably the view which Mr Bailey had.
  2. I think this view was probably based more upon what Mr Bailey expected to be the case than that which was proved to be so. The information should not have been give to the Court in the form it was in paragraph 7.12. However, I cannot conclude beyond reasonable doubt that Mr Bailey was dishonest (or, if it be different, that he had no honest belief in the truth of his personal belief in the Applicant’s involvement to which he was attesting in his statement). His other behaviour was consistent with this. He prepared the briefing note he did prior to the interviews in November 2008. Nothing that was said in the course of those interviews was likely to shake the view he had expressed that the source of the draft funds was unknown. Kerry Kayes, who might have done so, was noticeably vague. His line manager, Costas Elias, who had investigated the source of the Halifax draft, was given his witness statement to review. He did not suggest to Mr Bailey that he had missed the point. Any suggestion of a conspiracy between Mr Bailey and Mr Elias was expressly disavowed by Mr Keeling. There is no evidence of it.
  3. Mr Keeling ultimately posed three possibilities: that Mr Bailey was honest, or careless, or dishonest. Though Mr Bailey did not say in his witness statement of 2009, as he might have done, that “the source is unchecked” the likeliest of those three possibilities seems to me to be the second.”