a) there was a "lack of Criminal Intent on behalf of BT and Phorm Inc in relation to the tests"
I guess they took their word for it, being nice corporate types and all. What happened to "ignorance of the law is no defence" anyway?
b) "there would have been a level of implied consent from BT's customers in relation to the tests, as the aim was to enhance their products."
In other words, although the customers were deliberately never told about, and therefore never given a chance to consent or object to, the interception of their data, if they had been they would have all felt it enhanced the service they received and so would have agreed to it.
I couldn't sum it up any better than Nicholas Bohm, lead counsel at the technology law think tank the Foundation for Information Policy Research, who branded the police's explanation "pathetic".
The European Commission is still considering the Government's response to it's demand for an explanation as to why UK authorities have taken no action in relation to Phorm. They seem to be the only body left that could hold the lawbreakers to account, after the UK's Information Commissioner's Office, responsible for enforcing the Data Protection laws, chose to turn a blind eye to the illegal trials, saying "Taking into account the difficulties involved in providing meaningful and clear information to customers... in this case, this is not an issue we intend to pursue further with BT,", which is basically saying that customers are stupid and wouldn't be able to appreciate the benefits of Phorm. Nice one ICO, cheers for protecting my rights.
If you feel strongly enough about Phorm and particularly if you were a BT customer in 2006 or 2007, when they conducted the secret trials, you might want to write to Viviane Reding who is the person at the EC who is investigating this matter. http://ec.europa.eu/commission_barroso/reding/contact/index_en.htm
Apart from that, all we can do is vote with our wallets and boycott any company that is considering introducing Phorm, currently BT, Virgin and Talk Talk,