Constable v The Crown Prosecution Service (CPS) (Rev 1)

This is a renewed application for permission to challenge the decision of the Crown Prosecution Service (CPS) not to prosecute Constance Atkins and Brian Oxley for offences of fraud and Jane Oxley for an offence of conspiracy to defraud. The applicant contends that this decision was perverse to the extent that no reasonable prosecutor could have reached it.

There is also an application of an extension of time within which to renew the application for judicial review. The applicant submits that he is out of time because he has suffered ill health and stress as a result of these proceedings and that, as a litigant in person, he did not know the correct procedure.

I do not accept that there are good grounds for an extension of time. I have nonetheless considered the merits of the application.

Constance Atkins (previously Oxley) is the mother of Brian Oxley and Jane Oxley is Brian’s wife. Although I have seen no evidence to this effect, the applicant submits that Jane Oxley is a legal professional specialising in probate and family law. Constance Atkins met Reginald Atkins (deceased) on 13^th January 2002 when Reginald was 79 years of age. Mr Atkins was the applicant’s uncle. Originally the applicant was an executor and beneficiary of Mr Atkins’ will and estate. This position was subsequently changed by Mr Atkins removing the applicant as executor and then beneficiary. This has led to the present proceedings.

In April 2002 Mr Atkins asked the applicant if he would become the executor of his will. A will dated 23^rd April 2002 confirmed the applicant as executor and beneficiary of 50% of Mr Atkins’ estate which consisted mostly of a house at 37 Stone Close, Worthing. The will also gave Constance Oxley the right to live at the property until her death.

In a will signed and dated by Mr Atkins on 16^th September 2002, the claimant was removed as executor and Brian Oxley appointed in his place. At this time the applicant was still a 50% beneficiary. Constance Oxley was named as beneficiary of the other 50% in consideration of a payment of £70,000 which was to be paid from the sale of her home.

On 17^th September 2002 Mr Atkins underwent an operation and was diagnosed with cancer. On 18^th September 2002 Mr Atkins instructed his solicitor in writing to

“remove C Constable from my will and make clear that Rose [Mrs Oxley] would have the same rights as me at 37 Stone Close.”

On 19^th September 2002 Mr Atkins signed a will removing the applicant’s share of his estate. He transferred the property into the joint names of himself and Mrs Oxley. This transfer was made by deed of gift. No payment was made.

The applicant states that Constance and Brian Oxley had secured his uncle’s estate in 249 days. On 17^th October 2002 Constance Oxley and Mr Atkins married.

On 30^th April 2008 a codicil was added to Mr Atkins’ Will changing the 30 day survivorship clause. The applicant was given a share of 25% of the property, his brother 25% and Brian Oxley 50%.

On 20^th November 2008 Mr Atkins’ will was changed for the final time removing the applicant and his brother as beneficiaries. This left Brian Oxley the absolute gift of residue by means of the 30 day survivorship clause.

Mr Atkins died on 31^st July 2009. He was cremated on 17^th August 2009.

On 20^th August 2009 Brian Oxley and Constance Atkins signed an HMRC form. The applicant contends that they failed to declare Mr Atkins’ share in 37 Stone Close and failed to declare his personal possessions. It is this document which forms the subject matter of the alleged fraud offences against Brian Oxley and Constance Atkins.

The applicant alleges that Constance Atkins, Brian Oxley and Jane Oxley conspired to fraudulently secure Mr Atkins’ estate by any means whatsoever shortly after first meeting him in 2002, at a time when, he submits, they were fully aware that he was aged 79, very lonely and particularly vulnerable due to his serious ill health. He further alleges that the “suspects” also conspired to subsequently falsely declare his estate to probate so as to maximise their own financial benefit by defrauding the State. He submits that Mrs Oxley had been extensively employed as a legal professional for many years specialising in family law and probate. Both she and her husband gained experience of property conveyancing while developing an extensive chain of properties.

On 19^th August 2009 the applicant entered a caveat at the District Probate Registry in Brighton preventing a grant of probate being issued. He claimed his interest arose from the fact that the will entered into in November 2008 was as a result of undue influence and/or lack of testamentary capacity. This meant that the applicant would be entitled either as his nephew under the laws of intestacy or under one of the previous wills to a proportion of the property where he was a beneficiary.

It was argued in pleadings by solicitors representing Constance Atkins and Brian Oxley that the marriage between Constance and Mr Atkins would have revoked all previous wills in any event. If the will was successfully challenged there would be an intestacy. On intestacy the whole estate would pass to Constance Atkins.

The applicant refused to withdraw the caveat. The caveat ceased to have effect on order of the court when the applicant failed to issue a claim within 28 days. His application for a rehearing of the order was dismissed on 13^th April 2011. He was ordered to pay costs in the sum of £17,300 within 14 days.

On 8^th April 2011 the applicant issued proceedings before the Chancery Division of the High Court for aggravated and exemplary damages. The Particulars of Claim alleged that Constance Atkins and Brian Oxley conspired to defraud the estate of Mr Atkins between 13^th January 2002 and 20^th November 2008. On 21^st July 2011, on the application of the respondents, the claim was dismissed and the applicant was ordered to pay costs in the sum of £8,626.20.

The applicant made complaint of the same allegations to the Metropolitan Police who referred the case to the Sussex Police. After an investigation in 2009-10 it was determined that no criminal offence had been committed. The applicant submits that the complexities of the crime were not understood by the police.

On or around the 22^nd February 2018 District Judge Henderson agreed at the request of the applicant to issue three summonses before Wimbledon Magistrates Court to commence a private prosecution against Constance Atkins, Brian Oxley and Jane Oxley.

The applicant brought the case to the attention of the CPS in February 2018 and by email on 29^th March 2018 formally requested it to take over the prosecution on his behalf.

Applying the CPS guidance in respect of private prosecutions, on 17^th December 2018 the case was reviewed by Simon Arloff, a Senior Crown Prosecutor from CPS London. He concluded that there was insufficient evidence to provide a realistic chance of conviction. This conclusion was endorsed by Mr Venkatasami, Deputy Chief Crown Prosecutor. Mr Arloff gave reasons for his decision which in summary were:

In accordance with the CPS policy on the handling of private prosecutions Mr Arloff’s decision was passed to the Special Crime and Counter Terrorism Division to quality assure that there had been compliance with the policy. On 28^th December 2018 Simon Ringrose, the Unit Head from Special Crime and subsequently Bethan David, deputy Head of Division, were satisfied that the decision that there was insufficient evidence to prosecute any of the offences was correct and complied with the policy on private prosecutions. The case was discontinued on 15^th January 2019. Mr Ringrose determined that this decision fell within the Victims Right of Review Scheme.

On 25^th February 2019 a Local Resolution Review took place at the request of the applicant. This was conducted by Christian Meikle, a Senior District Crown Prosecutor, who reviewed the decision to take over and discontinue the criminal charges against the three proposed defendants. Mr Meikle wrote to the applicant explaining that he agreed that there was no realistic prospect of conviction and that the decision to take over and bring the case to an end was the correct one. He noted that the evidence in the case presented consisted of the applicant’s witness statement and some documentary exhibits. His reasons in summary were:

The applicant requested a final independent Victim’s Right of Review which was conducted by Cara Pickering, a specialist prosecutor from the Appeals and Review

In his written submissions the applicant argues that the decision by the CPS is perverse such that it could not have been reached by any reasonable prosecutor. He relies principally on what he sees as the strength of the evidence in this regard. In summary his submissions include the following:

In renewing his application before me the applicant highlighted two aspects of his submissions to support his contention that the decision of the CPS was perverse.

The first pertained to the reasoning of Ms Pickering that the omission of the value on the form IHT/205 could have been a mistake. The evidence clearly pointed towards dishonesty. Mr Atkins’ 50% as tenant in common was not declared, the property was not declared as passing by survivorship to the spouse and the initial 50% share that was obtained as a gift less than seven years earlier was not declared. The prosecutor failed to acknowledge that Brian Oxley only amended his declaration after the applicant refused an offer of money to withdraw the probate caveat and far later than provided for in the form. Any reasonable and honest person would conclude that the declaration was dishonest. The CPS decision that dishonesty could not be proved to the required standard is thus perverse.

The second concerned the point about no immediate loss to the Exchequer. The CPS had failed in this regard to understand that current guidelines state that HMRC do not investigate estates declared as under the IHT threshold that are passing to a spouse. The applicant submitted that the evidence taken as a whole would lead any reasonable person to conclude that there was a cunning plan to conceal the fact that property which they had not paid for was owned outright by the surviving spouse who intended to pass it on to her son who was also the executor.

The applicant informed me that he has submitted a new application to the Justices seeking three additional summonses in the names of the executor, his solicitor and counsel who were involved in this matter for the offence of conspiring to pervert the course of justice and accusing the solicitor and barrister of aiding an offender when obtaining court orders on behalf of the executor in the Holborn Probate Court. I am informed that the District Judge is awaiting the result of this application before making a final decision in this regard. If granted permission to judicially review the applicant proposes to apply to adjourn any hearing pending the prosecution of these individuals. This concerns the decision of another court and future intent by the applicant. The information has played no part in my decision on the present application.

In written submissions the respondent refutes the contention that the decision by the CPS not to prosecute in this case was perverse or one at which no reasonable prosecutor could have arrived.

The respondent points out that the Chancery Division of the High Court have ruled against the applicant and the police investigations have revealed no criminal offences. The material and lengthy representations supplied by the applicant has been reviewed independently by at least four lawyers from the CPS, all of whom came to the same conclusion that the evidential stage of the Full Code Test is not met. There are many strands to the applicant’s argument but the respondent restricted its submissions to the evidence needed to support a prosecution for the criminal offences alleged in the summonses. As dishonesty could not be proved the other elements of the offences did not fall to be considered.

The decisions not to prosecute were correct and reasonable based on the material provided.

There is a well-established principle that the Administrative Court will only rarely intervene in a prosecutorial decision.

As Laws LJ said in R (Bermingham and others) v Director of SFO [2007] QB 727 at [63]:

“There is much authority to the effect that the jurisdiction to conduct a judicial review of a public authority’s decision to launch or not to launch a prosecution, though it undoubtedly exists, is to be exercised sparingly…Where the decision is not to prosecute…there will have been expert assessments of weight and balance which are so conspicuously within the professional judgment of the statutory decision maker that there will very rarely be legal space for a reviewing court to interfere.”

I have carefully considered the applicant’s written and oral submissions in this case. I am however unpersuaded that there is any arguable foundation for the proposition that the decision of the CPS not to prosecute was perverse or one which no reasonable prosecutor could reach. Indeed I find the application totally without merit.

As set out in Bermingham it is extremely difficult to prove such a proposition. The applicant in my view does not come close to doing so. As the respondent points out at least four lawyers within the CPS have independently considered whether the proposed defendants should be prosecuted for the offences alleged by the applicant. On each occasion the correct test was applied. There has been no misunderstanding of the law nor of the facts. Each prosecutor, for the reasons given, has concluded that the prospects of a successful criminal prosecution are not such as to justify the continuation of one. That is manifestly a conclusion that, on the evidence in this case and for the reasons given, each prosecutor was entitled to reach. Earlier decisions, including by a Chancery Judge, were consistent with that view. This is not arguably one of those rare cases where there is legal space for a court to interfere. The applications for an extension of time and for permission for judicial review are accordingly refused.

There is an application by the respondent for costs in the sum of £1,507.20 for the preparation of the Respondent’s Notice. The applicant has submitted that he should not be required to pay costs as he is a man of limited means and “technically bankrupt”. He is still paying the costs from the order of Sir Wynn Williams when he refused this application on paper. These are not, in my view, adequate reasons for not making an order for costs. The applicant chose, when his initial application for permission was refused, to bring these proceedings. The respondent has been put to expense as a result. I therefore make an order for costs in the sum of £1,507.20 against the applicant.