Andrew Breeze & Anor v Chief Constable of Norfolk Constabulary

Index 2 - 4

Introduction 5 - 6

Facts; an overview 6 - 9

The parties’ cases 9 - 14

Evidence 14 - 16

Defendant’s witnesses 124 - 169

Other Statements/Interviews 169

Documentary Evidence 183

The Trial and failure of the Prosecution 187 - 198

Post Prosecution 199

Law 201 - 203

Analysis 215 - 216

Conclusion 229 - 230

This case concerns a failed fraud prosecution (with a single count alleging conspiracy to defraud certain Primary Care Trusts between 1^st February 2004 and 30^th September 2006), that was discontinued some seven weeks into a trial 16 years ago. There were 20,000 documents disclosed by the police in the criminal case and 83 witness statements. The Trial followed a very lengthy criminal investigation into events now twenty years ago. This judgment concerns the liability issues within a claim for malicious prosecution and misfeasance in public office.

The pleadings are extensive and the 29 witness statements descend into considerable detail including through cross-referencing to documents within a bundle which by the end of trial ran to well over 9,000 pages. The issues raised by the Claimants in pleadings and during questioning at trial have been wide ranging. At the outset of this judgment it is necessary to point out that the trial has not been a public inquiry to investigate all aspects of the failed prosecution; rather it has been a determination of the two causes of action alleged by the Claimants.

The Claimants were major shareholders, and directors, in a company (latterly known as Cawston Park Holdings Ltd) the business of which was to provide private sector mental health care to the National Health Service (“NHS”). A criminal charge relating to the running of that business was laid against the Claimants in February 2008: specifically, it was alleged that they had made charges to various Primary Care Trusts (“PCTs”) for “extra care” for certain patients placed at Cawston Park hospital despite no additional care or services being provided to those patients which could reasonably have justified the additional charges.

The criminal proceedings concluded in 2009 with the Claimants’ acquittal (following the prosecution offering no further evidence at trial).

By this claim, issued in March 2015, the Claimants allege that they were prosecuted by the Defendant, that there was no reasonable and probable cause for their prosecution and that the prosecution was malicious. Further or alternatively, they contend that the Defendant’s conduct of the investigation and prosecution involved an abuse of public power calculated to cause them loss/damage in the form of their prosecution.

The core of the Defendant’s defence is that the police were not the prosecutor (the decision to charge having been made by the Crown Prosecution Service (“CPS”)) and in any event there was a proper case to prosecute and the Defendants officers acted at all times with good faith and to achieve the proper furtherance of justice.

Before, and also at the outset of the trial, I expressed my concern about the parties’ inadequate assessment of the amount of the reading in time required. I was given unmanageable reading lists in a case which was, not surprisingly given the age of its subject matter, heavily document driven. Fortunately I was able to create some additional reading time within the trial time estimate, but it was still inadequate. This meant that throughout, and after, the hearings I have still been reading documents with a consequential knock on effect on time available for other cases (during a long trial issues arise in relation to other cases which have to be addressed and other cases need to be listed after it ends) and also other judicial work. The parties are required to help the Court to further the overriding objective which includes allotting to their case an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases. To comply with this duty parties must be realistic and give early and accurate assessments about required reading in time.

The First Claimant, Mr Breeze is now aged 70 (I shall refer to the Claimants individually by name and collectively as “the Claimants”) He qualified as a Registered General Nurse (“RN”) and Registered Mental Health Nurse (“RMN”) and was registered with the Nursing and Midwifery Council (“NMC”).

Mr Wilson is aged 52. He qualified as an accountant and was registered with the Chartered Institute of Public Finance & Accountancy (“CIPFA”).

The Claimants first met in the 1990s when Mr Wilson was on a placement at the Norfolk Mental Health Care NHS Trust.

Chancellor Care Ltd was set up by Tony Chancellor in 1998 to provide private sector mental health care to the NHS. The business originally operated from a site at Kelling Park. In 2003 it acquired a new site at Cawston Park which was converted into a private psychiatric hospital designed to accommodate and treat in-patients. The company was paid by the PCTs who placed patients at the hospital.

Mr Breeze was appointed General Manager, and Director, of Cawston Park hospital and Mr Wilson to the role of the Finance Director. Both invested in the company. Dr Simon Barker was Medical Director and Mark Deveney was employed as Head of Care.

As regards the material aspect, the charging system at the heart of the criminal prosecution the Claimants’ skeleton argument set out the Claimants’ perspective on matters as follows;

“In or around late 2003, a system was developed for charging commissioners of Cawston Park’s services, which became known as the ‘extra care charge’ or simply ‘extra care’. The extra care charge was an innovative concept for patients who presented or were likely to present difficulties in terms of the nature and level of care and treatment required, based upon a clinical assessment. In other facilities, patients with high levels of need were likely to receive ‘specialling’, which meant constant one-to-one contact from an often junior and/or unqualified member of staff and would also likely involve additional charges for commissioners. Specialling was not something Cawston Park did, as part of its philosophical approach to patient care and its ethos, which mirrored that already in place at Kelling Park (another facility set up by Mr Chancellor).”

In or around late 2004, the Claimants, with the assistance of Lloyds Development Capital (“LDC”), agreed to a management buy-out with Mr Chancellor. As part of this process Pricewaterhouse Coopers (“PwC”) were instructed to carry out a due diligence process. PwC produced a report dated 23 May 2005.

On 6 May 2005, the Claimants incorporated AD Care Limited, which was set up as the parent company for Chancellor Care Limited and also Chancellor Children’s Care Limited. Mr Breeze became Chief Executive and Mr Wilson became the Finance Director. The Board of Directors included Mr Bull as a representative of LDC.

On 6^th November 2005 Mr Breeze discovered that the Head of Care, Mr Mark Deveney and another employee, Ms Lisa Vescio were preparing to launch a company in competition with AD Care Limited/Cawston Park. It was revealed that they had developed new business plans, which contained financial information that almost replicated the format of financial administration at Cawston Park. Mr Deveney and Ms Vescio were due to attend a disciplinary hearing on 14 November 2005 but before doing so they resigned.

On or around 31 January 2006, Mr Deveney made a report to what was then known as the NHS Corruption and Fraud Reporting Line, alleging that the Claimants were committing fraud in relation to the charging procedures at Cawston Park. Mr Deveney made a series of allegations to the effect that charges for “extra care” were being added to invoices sent out by Cawston Park despite such extra care not being provided. The NHS internal Corruption and Fraud department (“CFS”) conducted an initial investigation which yielded evidence which was considered to provide some support for Mr Deveney’s allegations.

In March 2006, the information provided by Mr Deveney was notified to Norfolk Constabulary and in July 2006, the CFS investigation was transferred to the Defendant’s Major Investigation Team (“MIT”). Operation Meridian formally commenced on 1^st August 2006 under the leadership of Detective Inspector Paul Cunningham as Senior Investigating Officer (“SIO”) with Detective Sergeant Paul Brownsell as Enquiry Team Leader (throughout this judgment I shall refer to the former officers by the rank they held at the time of the material events).

The Crown Prosecution Service (“CPS”) was notified of the ongoing investigation and, by October 2006, Mr Chris Tarrant, an experienced specialist CPS fraud prosecution lawyer, had been allocated to the case. Mr Tarrant was thereafter to maintain direct contact with the investigation team, and to provide advice, up to and beyond the decision to charge.

By November 2006, the Defendant’s officers were preparing to arrest the Claimants.

On 10 November 2006, the Defendant’s officers obtained restraint orders against the Claimants which prohibited them from disposing of their assets, pursuant to the Proceeds of Crime Act 2002 (“POCA 2002”).

The Claimants were arrested on 14 November 2006. Extensive searches were conducted of their home addresses and at Cawston Park Hospital and a large volume of material was seized.

The Claimants have not challenged the lawfulness of their arrest i.e. alleged that that there were no reasonable grounds to suspect them of an offence.

Following the arrests, a very substantial volume of evidence was obtained by the investigation team including witness statements from nurses and support workers, unit managers, therapists, physicians, senior managers, board members, administrative/office staff and PCT representatives. In respect of a number of witnesses, the statement-taking process consisted of an audio-recorded interview followed by preparation (by the investigation team) of a draft witness statement. The drafts were then provided to the witnesses for their approval and signature.

Following interviews, the Claimants were released on unconditional bail, with notification that they had been restrained in relation to their assets.

The Claimants were later formally dismissed by AD Care Limited following the Board’s investigation into matters (including the commissioning of an independent expert investigation).

A forensic psychiatrist (Dr Badcock) was engaged by the Inquiry team as an independent expert to provide an assessment of the extra care concept and its application to a sample of cases.

In June 2007 DI Cunnigham retired and passed on the role of SIO to Detective Superintendent Hobley.

In September 2007, the investigation team submitted an advice file to Mr Tarrant followed shortly thereafter by a detailed case summary (prepared by DS Brownsell) (“the summary”) and relevant evidential material. A further tranche of additional material and an updated summary was sent to Mr Tarrant in January 2008.

The Claimants were represented by DLA Piper solicitors during the criminal proceedings. DLA Piper made some representations to the CPS prior to charge complaining about the adequacy of the police investigation. The correspondence was shared with the investigation team.

On 8^th February 2008 Mr Tarrant made the decision to charge the Claimants with conspiracy to defraud, recording the rationale for his decision in a 28 page advice.

On 18 February 2008, the Claimants were charged with conspiracy to defraud, contrary to the common law.

On 17 June 2008, the Claimants were indicted for conspiracy to defraud. The allegation was that:

“[The Claimants] between the 1^st day of February 2004 and the 30^th September 2006, conspired together to defraud certain Primary Care Trusts, who acted on behalf of the National Health Service, by dishonestly causing charges to be made to them, and payments to be received from them, for various charging periods in respect of certain patients placed by the Trusts at the Cawston Park Private Psychiatric Hospital on the false representation that a service described as “Extra Care”, or multiples of Extra Care, had been provided to the given patient, being care beyond that which was included in the core care charge for that patient, when no such additional care had been provided or no additional care in the given charging period had been provided for that patient which could reasonably justify the charge.”

The Defendant’s officers continued their investigation while the Claimants began to attend preliminary hearings in the Magistrates’ Court at first and thereafter the Crown Court.

The Claimants’ trial commenced on 20^th April 2009. Some of the oral evidence called by the Crown was considered by Counsel and the CPS to have significantly undermined the prosecution case. Following a review a decision was taken (prior to the conclusion of the prosecution case) to offer no further evidence. The Claimants were duly acquitted on 16^th June 2009.

A summary of the Claimants’ case stated as follows:

“The Claimants aver that by reason of the improper manner in which the investigation was conducted, and the manner in which evidence was presented to the CPS, the Defendant’s officers caused them to be maliciously prosecuted and/or the Defendant’s officers committed a misfeasance in public office. In particular, the Claimants say that the Defendant’s officers failed to take account of and give proper consideration to important evidence, suppressed evidence and changed and manipulated evidence. The Claimants’ case is that the Defendant’s officers acted with malice. The Defendant by his officers knew that there was no evidence, or no sufficient evidence that the Claimants had committed the offences with which they were charged but nevertheless proceeded to instigate a prosecution against them.”

Further it was set out in the Claimants’ skeleton that;

“The Claimants contend that the Defendant’s officers were prosecutors, and they were instrumental in the bringing of the prosecution and/or were the persons responsible and/or a person responsible for the prosecution.

The Claimants’ rely in their claims in malicious prosecution on the mindset and general approach of the officers, as well as on a series of specific acts and omissions, which they say demonstrate an absence of reasonable and probable cause and malice.

It is the Claimants’ case that, on the totality of the evidence, the prosecution was brought without reasonable and probable cause, in that the Defendant’s officers did not have an honest belief in their guilt, and that they acted with malice, in that they had an improper motive or purpose towards them see paragraph 208,..

…..

Misfeasance in public office

For the purposes of misfeasance in public office, the Claimants further contend that the Defendant’s officers did not approach the investigation with an open mind and held an improper and malicious motive and that they maliciously abused their powers as public officers in the knowledge that such abuse of power would probably cause them damage. Further, the Claimants contend that the Defendant’s officers knew that the prosecution of them would lead to the demise of their business and/or the companies. The Claimants further aver that the Defendant’s officers suppressed fundamental evidence which they knew would undermine any prosecution case, and which would support the Claimants case, thus rendering it more likely that the Claimants would be convicted of the charges.”

During his oral opening Mr Metzer KC confirmed that it was the Claimants’ case that the officers who were instrumental in the progression of the police investigation, produced a deliberately misleading and “slanted” case summary to the CPS, and did not believe that the Claimants were guilty of fraud. They had subjective belief in the Claimants’ innocence but wanted to achieve a conviction. The CPS were given an intentionally distorted and inadequate picture and had they received a balanced and fair picture “it would have gone the other way” i.e. there would not have been a prosecution.

It is helpful at this stage to set out the pleaded particulars of malicious prosecution and misfeasance in public office which remained as allegations at the conclusion of the trial.

The Defendant’s case was that it was the CPS (via the charging decision of Mr Christopher Tarrant) that set the law in motion against the Claimants. The CPS was therefore the prosecutor. The case (irrespective of its merits) was formulated by the CPS (and in due course prosecuting counsel) who were provided with the entirety of the material, both inculpatory and exculpatory, obtained during an extensive police investigation and summarised in a detailed case summary.

In order to succeed in malicious prosecution, the Claimants needed to prove one or more specific acts/omissions on the part of one or more individual police officers which was/were sufficient:

It was the Defendant’s case that the Claimants had failed to advance a credible case that the police acted in bad faith in the conduct of the investigation/prosecution, and/or that they effectively subverted the independent decision-making role of the CPS. Specifically, the Claimants’ evidence failed to establish any specific piece of evidence/information that was knowingly concealed/suppressed by the police (still less did they establish that any such evidence/information would have materially affected the CPS’ decision to prosecute). Further,

As for misfeasance in public office, it was the Defendant’s case that the Claimants’ inability to prove either (a) their underlying hypothesis of bad faith on the part of the investigating police officers and/or (b) that any act/omission in bad faith on the part of any police officer was instrumental in the bringing of a prosecution by the CPS that would not otherwise have been brought, was also fatal to the misfeasance claim (because the elements of bad faith and/or causation were not established).

The Claimant’s relied on the evidence (witness statements and oral evidence) of

The Claimant served witnesses statements from the following witnesses who were not required to give oral evidence:

The Claimants also relied upon documents contained in the (overly) voluminous bundle.

The Defendant relied on the evidence (witness statements and oral evidence of)

Judith Cass, who provided a statement in relation to the draft statement of Christopher Tarrant, was not required to give oral evidence.

Although I have briefly outlined the essential dates and events above it is helpful to set out a fuller chronology before considering the evidence in detail. The chronology is at Annex 1.

Before setting out the relevant aspects of the witness evidence, it is necessary to address in some detail key aspects of the history of events and some of the documentary evidence.

I start, just as the whole investigation started, with Mr Deveney.

I shall first set out the details of Mr Deveney’s complaints/disclosure and his evidence at the criminal trial in order to provide context for the matters addressed by those who provided statements in this action. In so doing (and as I shall do when reviewing all of the evidence), in order to avoid the need of extensive cross referencing and to make this long judgment more easily readable, I shall weave in factual findings that I have made having considered the entirety of the evidence presented to me.

Mr Deveney did not provide any evidence in this action.

In his witness statement signed on 6^th April 2006 Mr Deveney acknowledged that he was suspended when it was discovered by Mr Breeze that he intended to set up his own independent facility and had developed a business plan. He stated that he resigned because it was his belief that he was going to be dismissed and that subsequent to his resignation Chancellor Care Limited made unsubstantiated reports of misconduct to the Healthcare Commission and the Nursing and Midwifery Council.

Mr Deveney stated that he had been unhappy since approximately December 2004 with the fee structure at Cawston Park. His perception was that the care delivered was inferior to that delivered within good NHS facilities despite significant fees being charged to the commissioning authorities. He said he was also unhappy with the levels of staffing, the quality of staff and the absence of sufficient senior clinicians to support the junior grades. He stated:

“Having left the employment of Chancellor Care Limited in December 2005 I remained unhappy with regard to charges being levied for which I knew no service was being provided.”

He stated that he considered discussing it with the commissioning manager for Norwich PCT but he was unsure that the conversation would remain confidential and in January 2006 some colleagues working in the NHS advised him to discuss the matter with the NHS Corruption and Fraud service. He also stated that within his initial report to that service he outlined his concerns with regard to fees charged for services that were not delivered having discussed the matter with Paul Vincent and Lisa Vescio. He indicated at that stage that they would give statements if necessary (both of these individuals having been involved in the plan to set up an alternative facility).

Mr Deveney stated

“I was particularly concerned with regard to charges made for extra care. I was aware that these charges were being made at a rate of £330 a day on top of the standard fee and in one case at £660 a day. I had been informed and repeatedly reminded by Dominic Wilson and Andrew Breeze that financial projections for the company required 12 extra care charges to be made on the Cawston Park site. Charges for extra care were purely a financial/accounting exercise and bore no relation to any increased level of service to those particular patients. Clinical staff working on the wards were unaware of which patients attracted charges for extra care. It may be significant to note that from November 2003 to April 2005 the standard staffing on each unit during the day provided for only one nurse. This was a constant source of disquiet and irritation to both myself and the unit managers who reported to me….The support staff who were recruited to support the nurse on duty were largely inexperienced and naive to the environment of working in which they found themselves. From November 2003 to August 2005, the medical establishment of Cawston Park was one doctor, the medical director Dr Simon Barker. He, like me, was on duty for out of hours periods and was the sole psychiatrist working at the hospital…given the paucity of service in both medical and senior nursing staff it was difficult for me to see how any charges for extra care could be justified. I was charged by Andrew Breeze and Dominic Wilson with producing clinical reports on each patient to accompany the invoices sent (sic) the commissioning PCTs. I was encouraged by these individuals to identify factors in patient presentation which would indicate a need for extra care. I did this as a matter of routine. I was aware that, despite the factors identified by me in the reports, no additional care was delivered. I have made my concerns known to Andrew Breeze and to Dominic Wilson, as well as to Dr Barker on numerous occasions with regard to these charges. I was informed on numerous occasions that these charges were necessary on twelve patients to meet financial projections.”

Mr Deveney also made the following allegations in his first witness statement;

Mr Deveney also made references to specific patients as examples.

Mr Deveney signed a second and more detailed statement. He stated that once Tony Chancellor left the company life became difficult and he had parted company philosophically with Andrew Breeze and Dominic Wilson because he felt they were exploitative and the aim of the company was to make short term profit. He did not think it had anything to do with patient care or the long term building of a decent hospital or a decent staff and he did not like the way in which they were charging for fees particularly for extra care. He stated;

“…I did not like the pressure they put on me to put extra care charges on, and over the months I became aware they were altering my clinical reports.”

And

“It was made extremely clear to me by the directors Andrew breeze and Dominic Wilson that extra care was an accounting exercise, This is where we started to part company. Unlike in the NHS I have no control over the resources and had I explained to my staff the philosophy behind extra care and showing them how to utilise the additional resources they would have said what additional resources because there were not any extra resources.”

Mr Deveney explained that they (the Claimants and himself) were very conscious of those PCTs who were strict on cost and those who were not so strict. Hertfordshire and Suffolk were very sharp but Norfolk (Linda Todd) was very weak.

As regards his own actions Mr Deveney stated:

“…I was complicit in this decision making process because I wrote reports which justified extra care when no extra care was required. I was often told that it was necessary to have I think 12 patients on extra care at anytime for the hospital to achieve its financial projections.”

And

“Patients were reassessed on a monthly basis and I would write monthly clinical reports. These reports were written on the work computer and filed on a particular drive…so they were available to Dominic Wilson…The clinical reports that were submitted were either correct in that that was a need for extra care or it was constructed to justify an extra care charge, but whether or not extra care was delivered is another matter because in my opinion we never accessed the additional resources to provide extra care. On some occasions…(the Claimants)…would come back to me to adjust my report slightly to support the request for extra care charges and then I discovered from Paul Vincent…that they were changing the reports before they were sent out to PCTs.”

And

“I was complicit for so long because whilst I realised at the time that what I was doing was morally wrong I was an employee, I was doing as I was told and Chancellor care were paying my salary.”

He repeated that unit managers where never made aware of these extra care charges and therefore were never in a position to access additional staff resources in order to cater for those patients with more serious problems. This was indicative of the money making philosophy that had grown up amongst the board of directors and that “extra care” was not the clinical resource he had set out to achieve, but had become a financial tool. Mr Deveney stated:

“Whilst the philosophy of extra care required extra resources to be available the actual staffing levels at the hospital were in fact very low and at times sometimes dangerously low.”

Significantly given the issue raised in this case and what was to transpire at the criminal trial Mr Deveney set out his view of another manager, Mr Cooper;

“Gary Cooper as I understand was sourced through an agency and interviewed at a motorway service station by Andrew Breeze and Dominic Wilson. As soon as this man arrived it was just incredible. I had worked for 18 months developing a very laid back approach, and as soon as Mr. Cooper arrived he was banging on about staff wearing jeans…I found him very rigid like an old school nursing officer from the 1980s. He came in and upset everybody from the unit managers down, and it is my belief that the recruitment of Gary Cooper was intended to hasten my departure from Chancellor Care Limited. This was based on the fact that quite clearly we were not going to get on and yet we were supposed to be working very closely together as the clinical manager and the operations manager. If you had gone out to recruit somebody I was not going to get on with then you could not have done a better job. We did not have a good working relationship on the basis of a complete clash of culture, beliefs, personalities and philosophies.”

As regards Dr Barker he stated:

“He thought Breeze and Wilson were running the hospital in a draconian manner, and it irritated him that the clinical decisions made by him were always questioned by Dominic Wilson as the finance director. I had discussed extra care charges with Simon, and Simon took the view that the situation was absolutely ridiculous and people should not be doing that but even when he was a director of the company he tended not to get involved in the business side of things.”

Mr Deveney stated that in about August 2005 he started to develop (along with Lisa Vescio) a business plan to open a small mental health unit elsewhere in Norfolk. He stated that he believed that since about March 2005 the Claimants had been looking to remove him because of the difference in opinions over staff numbers and technical care, his close relationship with Ms Vescio and because he had become a thorn in their side. He acknowledged that he gave the Claimants ammunition to get rid of him when he was discovered photocopying his business plan on their machine but said that the actions following his departure were completely disproportionate. In particular he denied the accusation that he used a company computer to access pornography. He believed the report to the Nursing and Midwifery Council to be a vindictive attempt to prevent him from working in the nursing field. He stated that they had also issued references to a nursing agency that made unsubstantiated allegations of theft and fraud and that it was this vindictive attitude that finally persuaded him to report his concerns over the inflated charges at Cawston Park to the NHS.

Mr Deveney’s motives for disclosing what he said was a fraud were known by the relevant officers from the outset of the Police investigation (as acknowledged at paragraph 82 of the Particulars of claim). It was known that he had been caught trying to set up a rival business and that he had reacted to complaints made about his conduct.

In my judgment it is clear that initially the police investigation proceeded, very reasonably, cautiously as it was recognised that Mr Deveney was implicated in the alleged fraud which he had disclosed (as he was to state he was “complicit”). However, as I shall set out in due course I find as a fact that it was the belief of all of the officers concerned throughout the investigation that despite the fact that he was “tainted” (to use DS Brownsell’s expression) his evidence on the central issue of a fraud was credible given the other evidence which was obtained as matters progressed. Put another way no relevant officer ever formed the view that his evidence was “incredible”.

It was obvious to the officers at the outset that Mr Deveney was a central figure at Cawston Park and central to the charging of extra care. Indeed it is the Claimants’ pleaded case in this action that Mr Deveney was responsible for determining to which patient placements the extra care charge would apply, having consulted with Dr Barker and any other clinician with responsibility for the care of the patient, (including the Commissioner’s own clinicians). Also that responsibility for agreeing the cost would fall to Mr Deveney and/or Mr Breeze, often in consultation with others including Dr Barker, “prior to the patient being admitted”.

No criticisms were made during questioning of the Defendant’s witnesses or submissions, of the way the statements were taken from Mr Deveney or about their detailed content e.g. that it was somehow manipulated or tampered with (indeed no witness was asked about the detailed content of his statements). Rather the broad/overarching argument advanced on behalf of the Claimants was his evidence should have been considered and/or was actually considered as not credible. For reasons which I shall set out in due course I reject that submission. The very serious allegations which he made (and backed up by signing witness statements) were not inherently incredible and from the outset it was reasonably considered by the NHS Fraud Team and the investigating officers that there was some support from other sources for what he was stating.

Significantly in terms of the two causes of action in this claim Mr Deveney did not retract, or significant modify, his statements/proposed evidence at any stage during the investigation and maintained his evidence through cross-examination at trial.

During the life of the police investigation Mr Deveney was to a degree supported on several issues by the evidence of others; including at the outset Ms Vescio and Mr Vincent (see below), members of staff, PCT Commissioners, and also what was contained in documents.

In the summary DS Brownsell gave an overview of Mr Deveney’s allegation and stated:

“NB Most if not all of what Deveney initially alleged has been corroborated by other witnesses or exhibits seized.”

It was suggested in cross-examination of DS Brownsell, DC Baker and DC Flynn, that they believed/knew that Mr Deveney’s account was “incredible”. This was denied and in my view all available evidence very strongly points the other way.

A fracture line running through the Claimants’ case, as highlighted by questions of officers suggesting that they believed that Mr Deveney’s account was not believable, resulted from the obvious tension between the assertion that there was on the one hand a “mindset of guilt” i.e. officers formed a closed mind to the potential of the Claimants’ innocence and the assertion that the officers did not have an honest belief in guilt i.e. they believed in the Claimants’ innocence (and were doing senior officers’ bidding in trying to secure a conviction).

The relevant officers’ analysis of, and subjective belief in relation to, the evidence of Mr Deveney is a central (although not conclusive) factual issue when determining the overall honest belief of the officers, as to whether there was a case which should proceed.

The summary gave disclosure of Mr Deveney’s potential motivation for making a complaint:

“Deveney was employed by Chancellor Care Limited as head of care until he resigned following an internal investigation in to him setting up a rival healthcare venture. The company made complaints about Deveney to his professional body and latterly provided discreditable work references. This inspired Deveney to contact the NHS Fraud Dept, He made the following allegations…”

And

“Deveney stated that he was complicit in seeking patients to place at Cawston Park who would attract an extra care charge, and that he was complicit in the running of the “extra care” fraud. He has, however, not made any gain from this other than the wage he was paid. He alludes to the fact that he “blew the whistle” in an act of revenge how he perceived he was treated by Cawston Park management after he resigned (N.B. Most, if not all of what Deveney initially alleged has been corroborated by other witnesses or exhibits seized).”

The MG6 written by DS Brownsell stated;

“As can be seen Deveney is the whistle blower. Seemingly he is what his detractors say; a larger than life character, egotistical, articulate and very full of himself. He has been reasonably candid in that he says he was complicit with the alleged fraud but he did not receive anything for this involvement.

There has been much criticism from Breeze and Wilson and a few witnesses over Deveney allegedly having an affair with Lisa Vescio. Apparently it was unprofessional and led to nepotism in that Vescio had a meteoric rise in a relatively short time from nurse to unit manager. Vescio is now Deveney’s business partner in their new venture. Deveney and Vescio have denied having an affair to the enquiry team, not that it matters to the case one way or another. As an aside, there have been rumour and speculation as we have made our way through the witnesses to the effect that Wilson and Breeze have been having their own liaisons with staff. Rumour has it that Wilson was entertaining Katherine Ibbotson and Breeze was comforting another member of staff.

Deveney has been reasonably honest in saying that the reason he blew the whistle was as an act of revenge. He’d been caught out by Breeze printing off his prepared business case at work. He and Vescio were suspended prior to an internal inquiry. Deveney and Vescio resigned before they were sacked. Breeze accused him of accessing pornography and swearing at a patient which Breeze reported to the nurses’ professional body – The Nursing and Midwifery Council. This has been investigated by them and was found that there is no case to answer. Breeze also effectively cut off any likely avenues of employment for Deveney with strongly worded references. Deveney understood that he would have been sacked, but viewed Breeze’s reaction to him as totally disproportionate. He decided to put the knife into Breeze, Wilson and company and made a phone call to NHS Fraud confidential reporting line.

What’s not mentioned by Deveney but will undoubtedly be picked up in any trial is that by damaging Cawston Park his new venture ‘Milestones’ will be in a better position in what is evidently a crowded market place within the private mental healthcare sector. Deveney has touched on this in conversation only in the sense that what he provides at Milestones is totally different to Cawston Park.

Deveney is aware that should this go to trial he will find himself as the star witness being savaged by an expensive barrister. I think his personality is such that he would probably prevail in that sort of environment.”

In my judgment these documents combine to give a reasonable, realistic and (perhaps most importantly) honest assessment of the matters which could undermine Mr Deveney’s credibility. DS Brownsell was not cross-examined on what he had set out in the summary and MG6.

Mr Tarrant independently formed a view that Mr Deveney’s evidence on the central issue of a fraud was credible given the other evidence which was obtained and was capable of supporting a successful prosecution. He stated in his advice note of 19th November 2007;

“Any evidence given by Deveney must be treated with reservation given his motivation for becoming a complainant. However a very detailed inquiry has revealed that the nurses and support staff did not know which patients were on extra care which tends to support the assertions made by Deveney.”

This was repeated in the review note of 8^th February 2008 in which it was also stated:

“It will be contended below that there is a considerable amount of evidence to corroborate the account given by Deveney. Even so he is a very important witness because he was personally involved in the mechanics involved in the provision of “extra care”. The general impression is it Deveney was a strong and arrogant character who did not hesitate in expressing his views.”

(He also noted that Mr Cooper said that he was “a very charismatic man with a massive ego).

As regards the evidence of Mr Deveney, his motivation for whistleblowing (as he effectively stated it was) and the concerns about his credibility I can see no realistic grounds for arguing that Mr Tarrant was deprived by any deliberate manipulation of any relevant evidence, or by having been provided with “slanted” comments in the summary or MG6, of the ability to exercise his own professional judgment as a specialist fraud prosecutor.

When fresh evidence came to light to cast further doubt on Mr Deveney’s character (his dismissal for gross misconduct from a small private health care home as a result of three allegations of misappropriation/improper use of company funds upheld, speeding, viewing pornography and being drunk at work) the police referred it in full to the CPS (a report from DC Horsburgh to Mr Tarrant dated 3^rd December 2008). It did not alter Mr Tarrant’s view (or that of Prosecuting Counsel).

Having been “fully sighted” on all credibility issues trial Counsel formed the view before trial (and indeed after Mr Deveney gave evidence) that Mr Deveney could be believed by a jury.

Trial Counsel’s analysis was as follows:

“Mark Deveney was a strong witness. The prosecution was allowed by the defence to take him through the extra care patients individually although he had made no statement on that topic. He came over as a highly competent professional telling the truth. He was attacked but he was left - apparently - not seriously marked. He had strongly rebutted the accusations of dishonesty in the period following leave the hospital.”

It is noteworthy (as set out in more detail below) that the prosecution case was not discontinued after Mr Deveney’s evidence was given; rather that occurred only after the evidence of others.

Given what was set out in the summary, that Mr Deveney was thought credible by Mr Tarrant and Trial Counsel and maintained his allegations through cross-examination, the suggestion that officers actually formed the subjective view that he was not credible but pressed on regardless (in so doing not only persuading Mr Tarrant but effectively removing his ability to form a balanced independent judgment) was always going to be, to say the least, a difficult one to advance. The reality is that it gained no traction through the hearing of evidence and was very firmly rebuffed by the Defendant’s witnesses. I think that any objective, independent observer of the trial would be truly astonished if my finding was other than that I am entirely satisfied that at no stage in the investigation did any of the officers who provided a statement in this action come to believe that Mr Deveney was not telling the truth on the central issue of fraud. I also see no realistic possibility that any other officers involved in the investigation formed such a view. Indeed I am satisfied that DS Brownsell still believes that there is at least some truth in what Mr Deveney has said about the extra care charges.

As set out above, when first raising his complaint/disclosure Mr Deveney indicated that Lisa Vescio and Paul Vincent, who had been parties to the proposed new venture were willing to give statements. This they did.

In her witness statement of the 4^th April 2006 Lisa Vescio, who is a registered mental health nurse, indicated that she had been employed on the Grange unit from March 2004 and was promoted to charge nurse and then to unit manager in June 2005. She stated that within the first couple of months of her employment there was a lack of structure and little direction on what care should be provided to the patients. Dr Barker visited infrequently. She felt that she was never guided as to what the care plan for each patient was. She was never given any definition or instruction/guidance regarding the level of treatment and care relating to individual patients’ psychological and psychiatric difficulties. She had never heard about what extra care meant and was never told how this should be delivered. She stated;

“As the unit filled up I had concerns as to the client group which is being brought into the unit. I felt these patients needed more specialist care as we were getting patients with severe mental health problems who were often unmanageable and who would have required specific care programmes. I could not deliver the care necessary for each patient as I was the only nurse on the unit with often very inexperienced support workers looking after some very difficult patients who required staffing levels way higher than what was provided.”

She stated that there was minimal intervention made in the care plans by senior clinicians, Dr Barker, Mr Breeze or Mr Wilson and she was not aware of any fee structure that informed her of what level of care was required for each patient. She was never informed that certain patients required an extra delivery of care. Her impression was that there would be a standard charge and at no stage during her employment did she think an appropriate standard of care provided to the patients was accessible mainly due to the lack of resources given for nursing care. She felt that junior staff were being exploited as they had very little training and were dealing with high risk patients. Patients and staff were put at risk due to the lack of staff.

Mr Vincent also signed a statement on 4^th April 2006. He had been employed as the financial controller at Chancellor Care Limited from 27^th July 2005 to 8^th November 2006. His direct Line Manager was Dominic Wilson. He worked out which patients should be subject to extra care charges by looking at the whiteboard in the Claimants’ office. Mark Deveney would e-mail clinical reports to Mr Breeze, Mr Wilson and him and he ensured that reports and invoices matched. Mr Breeze and Mr Wilson would hand write any changes on the clinical reports (which he knew annoyed Mr Deveney as his name was on the bottom) It was implied by both Mr. Wilson and Mr Breeze that 12 extra care charges would be levied each month in order to deal with forecasts. The extra care charge was £330 per day (this provided corroboration for Mr Deveney’s evidence about the need for 12 patients to be subject to an extra care charge). Clinically he did not know what the charge was based on and he never saw any additional resources to those that he knew were on extra care. Staffing levels were below forecast.

The statements of Lisa Vescio and Paul Vincent provided some support for the allegations made by Mark Deveney. In particular that staffing levels were inadequate even for a basic level of necessary care, no extra or additional care was ever provided, that there was a minimum requirement of 12 patients on extra care in order to meet financial forecasts and that both Mr Breeze and Mr Wilson, (neither of whom was involved in the content of care plans for individual patients) were instrumental in the levying of the charge.

I next turn to the Case Summary and MG6.

As I shall set out in detail in due course it was a very strange aspect to the conduct of the Claimants’ case at trial that DS Brownsell; the author of the case summary and MG6 (he said that the contents of the case summary were prepared primarily by him but in conjunction with DC Horsburgh) was not cross-examined about the detailed content of these lengthy documents (save for one very limited issue). This despite it being the Claimants’ case, as set out in opening and closing submissions, that the case summary was “clearly misleading in a number of respects as it did not represent the true state of the evidence”.

I shall deal with specific criticisms of the summary (as I understand them to be) within my review of the witness evidence. However it is necessary at this stage to give a relatively brief overview of the two documents.

The case summary is a very substantial document (over 200 pages long).

After an introduction and overview of the running of psychiatric hospitals it provides background information regarding Cawston Park Hospital setting out details taken from Mr Chancellor’s statement (including that there was no difference between extra care and specialling other than the wording and that extra care would be, without a shadow of a doubt something extra).

The next section considered extra care as defined in documents seized during the investigation. This included a service level agreement with Norwich PCT signed by Mr Breeze on 6^th January 2004 (which on the Claimants’ case was wrong), a later service level agreement of 31^st March 2005 and various internal documents setting out definitions of extra care. It is stated:

“…It should be noted that extra care is frequently compared to specialling in these documents Especially with regards to pricing. It is quoted as being charged for by the day or part of the day although evidence of a part day payment has never been found. The mixed messages as to what extra care is, is discussed later. Where a patient has been specialled elsewhere this has been used to justify the charges and the risk factors cited are similar to the test required for sectioning. It has been observed that the explanation of what extra care is (or is not) gathers momentum in 2006. Inquiries have ascertained that Linda Todd (commissioning manager, Norwich PCT) became aware of an investigation around this time. In essence prior to this time SLAs refer to extra care especially in terms of its delivery. Many of these documents refer to extra care being reviewed on a regular basis. There is no audit trail to evidence the review of extra care and Dr Barker in interview admits that it never was.”

The allegation as made by Mark Deveney is then considered.

The summary then considered in detail the evidence from Primary Care Trust Commissioning Managers with precis of the statements of 12 commissioners. As is observed the PCTs in Norfolk and Suffolk were the main suppliers of patients. Mr Rowley lead commissioner for Suffolk West and Suffolk East is noted to have said that to some extent the system “is based on trust” and

“With extra care x1 there would be a distinction about this being 24 hour care or just daytime care and I would have expected extra care x1 to be 24 hour care, including one to one care whilst asleep. So if the patient was off site for any length of time, perhaps as explained within the SLA, I would have expected that extra care was not needed during that period and so would not be charged…(and in respect of extra care x 2 for patient AC)…I would have expected there to have been two male nurses looking after this patient during this time on 8 hour shifts or something along these lines…if I had clear evidence that services were not being provided as set out in the contract I would have ensured its termination.”

It was not in issue that extra care was charged whilst patients were on leave (so off site) and that the x1 and x2 direct staffing did not take place. In respect of Rob Hall who dealt with contractual referrals for Suffolk East after Mr Rowley it is set out that he stated:

“If a patient were receiving extra care…Then I would expect them to have one person with them all the time, like having a shadow. I do not know how many nurses this would entail or how long their shifts were. I would not expect a nurse providing one to one care to be responsible for other patients at the same time…If a patient went home on day leave without anyone escorting them I would expect reimbursement for any extra care that had been agreed. I would expect the basic care costs to continue to keep the bed open ready for their return.”

Linda Offord of Waveney PCT is noted to have stated:

“I do not recall being given any details from Chancellor Care that absolutely defined what extra care was or how it was being delivered. I assume that at night they would be pulling in waking staff who are additional staff with the sole responsibility to look after this patient.”

And

“The clinical reports provided by Chancellor Care with their extra invoices gave me reassurance that this patient was receiving the extra care treatment that was being referred to…And understood this to mean that extra care was actually being delivered to her. I thought that extra care included additional staff, including therapists and nursing support…I would not have expected to pay extra care charges for any periods when she was away because my impression is the extra care was for the two nurses that would have to be with her all the time.”

I shall not set out the analysis in the summary of the other Commissioners, but as an overview it can reasonably be stated that the evidence would tend to disprove any suggestion that the charging of extra care was an open and transparent exercise with the rationale and basis clearly explained by or on behalf of the Claimants. Also that the Commissioners believed that extra care meant the provision of identifiable care beyond that given to other patients.

The summary then considered the delivery of extra care, with the commentary;

“It is the view of the investigating officers that a number of factors in the running of Cawston Park meant that it was not possible for extra care to be delivered to patients. A wide range of staff of varying disciplines were canvassed by postal questionnaire. It is evident from statements taken as results of this process the concept of extra care is unknown amongst those most likely to deliver it. It became apparent that at best staffing levels could be described as adequate; several witnesses have referred to the staffing levels as dangerously low. What is evident is that Cawston Park was not over resourced to deliver extra care. Many of the staff at all levels, describe a culture of penny pinching at the hospital. This is in terms of staff and other resources is available for patients (these accounts are contrary to Breeze and Wilson’s account that the hospital was over resourced and tends to show the hospital was run to maximise profit).”

The summary then gave the brief details of the statements of a number of members of staff from consultant psychiatrists, managers, members of the accounts department, nurses and the activities manger. It is pointed out that in addition to the witnesses referred to there were statements from 30 others on the file. The summary then sets out an overview of evidence in relation to staffing levels and in relation to a penny pinching culture using extracts from witness statements. The summary explained that following the setting up of the Gold Group there was an unannounced inspection by the Healthcare commission which led to a statutory requirement notice being served (the summary then dealt with evidence as to cleaning).

The summary next considered information extracted from the records of patients who were subject to extra care.

Extracts were set out from the draft report of Mr Hird who had been asked by the board of directors to undertake an inquiry as to the provision of extra care. Also there was a brief analysis of the expert report being compiled (then a work in progress) by Dr Badcock. He was asked to sample a set of seven records covering patients not being charged for extra care, some extra care and on long term extra care on a blind basis.

Details were next set out about the purchase and intended disposal of the company.

The summary then dealt at considerable length with the interviews of the Claimants and Dr Barker; Mr Breeze internal pages 93-129, Mr Wilson pages 129-157 and Dr Barker pages 157-185, noting at the end that the interview records were included with the summary.

The conclusion of the summary was:

An MG6 form was issued to inform the CPS of relevant background information. It is stated that:

“This file is submitted for advice as to the validity of whether in the CPS’s view there is a criminal case that has a realistic prospect of conviction at court. We believe the file as presented evidences in broad brush strokes terms that at Cawston Park Andrew Breeze and Dominic Wilson defrauded the NHS PCTs for some considerable amount of money not only for the extra care scam but for the overcharging for drugs. A decision is sought as to how Dr Simon Barker may fit into this.”

As with the summary it is not necessary (or in terms of length of judgment appropriate) to set out all the content in detail. It is observed that:

“we have tried to keep the main thrust of this inquiry as straight forward as possible. Basically the allegation is that PCTs were charged for extra care and nothing was delivered to them over and above that that a patient was receiving as part of their normal treatment.”

DS Brownsell the author stated his view that:

“It is my opinion that the extra care concept was probably quite noble in its inception. Initially it would appear that Cawston Park were slightly oversubscribed in terms of staff to deliver a form of extra care should a patient have an episode. They had the resources to cope with a patient going through a heightened state of their illness. As the company expanded the over subscription of staff numbers was not maintained… we have gathered evidence from a broad spectrum of staff that shows that staffing levels were low, sometimes apparently dangerously low, or best adequate. Later after the management buyout it is evident that money was the driving factor which impacted on staff numbers. Facts alluded to by several witnesses. How do you provide extra care when you are understaffed?”

As for commissioning managers it is stated;

“There is a significant element of trust between the commissioning managers and service providers-in this case Cawston Park. It should be noted that Deveney has talked about some commissioning managers being a softer target than others. This is evident as some took a robust line when the extra care charge was pushed their way, either questioned or refuse to pay it. If that was the case Cawston Park didn't try it on again. However, clearly there were some commissioning managers who didn't ask questions as seemingly they were the regular recipients of invoices marked extra care. This is proven to be somewhat of a difficulty with commissioning managers some of whom are going to be potentially embarrassed by the fact that they made no checks what they were getting for the public money they were spending. We believe that this was potentially the catalyst that drove Linda Todd to tell Breeze about the impending police raid on Cawston Park. Especially as Todd was Cawston Park’s biggest customer.”

As for the understanding of the term extra care it was stated:

“The suspects speak of extra care as a concept. We've included some of the explanations. It is of profound interest to note that no one outside the suspects actually knew what extra care was. The actual practitioners of day-to-day care did not. The new management (Reardon and McKenzie) who were brought in had a look at the concept after they were aware of the police investigation. They could not find out what it was and how it was applied.”

And

“We have looked at patient records and from our lay perspective we can see nothing extra being given to Extra Care patients in comparison with non Extra Care patients. This in tandem with the fact that they were understaffed has led us to conclude that nothing extra was delivered for the charge.

There is no audit trail to show how Extra Care was delivered. Breeze didn’t think it necessary to have an audit trail. Wilson thought it would be too expensive to evidence this treatment contemporaneously. Barker said that he didn’t know who was in receipt of Extra Care and patients got what they needed.

We explained our lack of understanding of how the Extra Care was delivered to the suspects. This drew a variety of responses from re-explaining the concept to accusing us of being ignorant and choosing not to understand the concept.

Latterly this prompted DLA Piper to write to Chris Tarrant at CPS Fraud in which they outlined their concerns that the officers did not understand Extra Care. They attached a lengthy explanation of Extra Care. It would appear that they have missed the point. There is no explanation as to how Extra Care was actually delivered to justify the cost. It remains to us, an ethereal concept for which there is no tangible evidence of delivery to patients.”

Importantly in my view it was recognised within the MG6 that:

“Criminal intent or dishonesty will be a difficult area to show. All of the named are of previously good character and arguably of some standing in their professional world. The intent or dishonesty element will no doubt be considered in CPS’s decision making.

We cannot show that there was a particular moment when the suspects formed a criminal intent to request payment for services that were not provided. I am of the opinion that once they charged the ‘Extra Care’ charge, batted off some early questions about it; it was very easy to continue to charge it. Besides, the charges associated with ‘Extra Care’ had been factored into their business plan as part of the MBO. I believe that they got locked into a cycle of charging for it, not providing anything for it, were never questioned about it and it helped to meet forecasts.”

Given the Claimants’ arguments concerning the assessment of Mr Deveney’s credibility the analysis of his credibility is of particular significance; it has been set out above.

It was the decision of Mr Tarrant that no charges should be brought in respect of a drugs allegation referred to within the MG6. Mr. Wilson was interviewed at some length about this allegation and it was the view of the investigation team that a prosecution was warranted; “As the extra care scam continued, Wilson was also at it in terms of overcharging for drugs.”

During the trial there was no detailed consideration of the drugs allegation. However it is noteworthy that Mr Tarrant disagreed with the investigating officers’ assessment and exercised independent judgement.

I shall now consider the evidence of the Claimants’ witnesses. It is necessary, in order to keep the length of this judgment within reasonable bounds, to summarise some elements and to focus on the issues arising from the parties’ pleaded cases (although I will identify and deal with some matters which were raised during cross -examination of the Defendant’s witnesses which were not pleaded). As I have already stated I will weave in factual findings based on an assessment of all the evidence.

In his statement for this action Mr Breeze set out his extensive experience of work in healthcare after qualifying as a registered mental health nurse in 1976, rising to the post of general manager for adult services at a Norwich Hospital and responsible for all hospital and community psychiatric services and a budget of £26 million. It was whilst in this post that he met Mr Wilson who became the directorate accountant. In 2001 Mr Breeze was appointed to the hospital board. One of the budget managers in the Trust was Tony Chancellor. He left in 1999 to set up a private facility at Kelling Park. In 2002 Mr Breeze met with Mr Chancellor who expressed a desire to open a licensed psychiatric hospital and asked him if he would like to join in the venture. The Cawston Park site was purchased. In due course Mr Breeze discussed the project with Mr Wilson and offered him the chance to join the company, which he did in the autumn of 2003.

Mr Breeze stated that Kelling Park had, from its opening in 1999 a philosophical approach to patient care that did not involve the nursing practice of “specialling” or one to one nursing and that this philosophy was transferred to Cawston Park when it opened in late 2003. Mr Breeze said that because of this philosophy Cawston Park was staffed, as Kelling Park had been, in terms of numbers and skill mix, to deal with any patient eventuality. He stated that referrals came from a combination of PCT commissioners and Social Services, similar to the position at Kelling Park.

In respect of costing of a placement Mr Breeze stated as follows as regards the systems at Kelling Park and Cawston Park;

“The cost of patient placements were arrived at following patient assessment by one of the two senior clinicians at Kelling Park, the same as Cawston Park, by up to three senior clinicians…Assessments were made by the two senior clinicians, in the main Tony Chancellor himself, who then took a professional view on how much to charge, similar to Cawston Park. Costs ranged from £550-£4,500 per week depending on the assessment. At Cawston Park costs varied dependent on the assessment. The more seriously ill the patient, the higher risk to the organisation and the more resource considered by the two senior clinicians carrying out the assessment to be required to manage and treat the patient the higher the cost (extra cost for more difficult and higher risk patients). The same as Cawston Park; known as the “extra care charge”. “Specialling “costs in other mental health establishments and the extra costs applied to patient placements at Kelling Park, were only the same in that they both were an additional cost to funding authorities. Funding authorities were informed the placement cost prior to admission. This was the same as at Cawston Park. The majority of staff did not know what patient placements cost: again the same as at Cawston Park. Placement costs did not go down when patients were on leave or away from Kelling Park for any other reason. This was also the same as at Cawston Park. The Care Programme Approach (CPA) meetings were the audit trail for funding bodies, as at Cawston Park. Funding authorities were encouraged to visit, and many did on a regular basis, at anytime, which was the same as at Cawston Park. All of the above was almost identical to how Cawston Park was operated and yet, to my knowledge, no allegations of fraud were ever made in relation to Kelling Park.”

As I shall set out in due course Mr Chancellor, when interviewed, and in his police statement, gave a markedly different picture in respect of some important elements of what Mr Breeze set out in his statement (which he was not to maintain when giving evidence at the criminal trial). However, an important point arises in respect of this extract which has applicability across the witness statements served in this action on behalf of the Claimants. Care must be taken to focus upon what the Claimants and witnesses said at the time of/during the police investigation in respect to the relevant issues, rather than explanations given/comments made after the event (sometimes many years later). Mr Breeze’s police interviews were extensive (20 hours of interviewing over three interviews) and he also served a defence case statement. It is what he said in 2006-2008 that must be assessed when considering the two causes of action in this claim.

In his witness statement Mr Breeze stated that there were brain storming meetings before Cawston Park was opened, but that “cost wasn’t really discussed”. There had been general discussions whilst Mark Deveney (a nurse and head of care who was responsible for assessments) was travelling around looking for assessments (potential patients). Before a meeting with the commissioners of Norfolk Primary Care trust (who placed the first six patients), there was a discussion about setting a rate and Mark Deveney had said that they should charge extra for those difficult patients coming from places where they were “specialled”, or had one to one supervision, or were generally high risk. Mr Breeze said that he recalled a general conversation with Mark Deveney about what they would call the extra charge and he stated that he had a vivid memory of Mark Deveney saying that they could justifiably charge more for these patients and

“I think the decision to call the concept the extra care charge was made before a meeting with Norfolk commissioners and we knew we couldn't call it specialling as that wasn’t what we were doing. It was Mark that gave it the name extra care charge. Over time Mark simply referred to a patient as being on extra care.”

Mr Breeze stated that when there was a potential patient there would be an assessment, and if the patient was accepted the price for that patient treatment would be agreed including, where relevant, an extra care charge. Mark Deveney and Dr Simon Barker did all the assessments of prospective patients. The cost of a patient was agreed between the PCT commissioners and Mark and/or Mr Breeze, often in consultation with others, including Dr Barker, prior to the patient being admitted. Accordingly, the PCT knew in advance what it would be paying for the placement. Employees were not aware of the extra care charge because it was a financial charge and not a specific nursing intervention. Staff were instructed to give the patients everything and anything they needed regardless of cost. Because they were giving patients everything they needed they did not view giving specific patients anything as giving “extra”. Staffing was always high on the agenda of the Board and “there was never a complaint that staffing was inadequate during this and it was never inadequate and certainly never got so low as to be dangerous. Junior staff were not in a position to have a professional view on staffing.” As he was to concede the comment about there never being a complaint was not correct.

Mr Breeze also stated that the care plan for each patient would set out the details for the treatment, care and support of each individual patient. This would include the level of support required and details of individual needs. The plan would be available to and accessible by each member of staff and also the commissioning agencies.

Mr Breeze explained how Mark Deveney’s plan to set up a unit in competition was discovered in November 2005 and that he was unaware of the allegations made by Mr Deveney in January 2006 until August 2006 when a former work colleague stated that Mr Deveney had been “casting aspersions on our charging for patient placements”. On 3 Sept 2006 Gary Cooper informed Mr Breeze that the police had interviewed him. Mr Wilson then drew up a paper with the assistance of Mr Breeze on the extra care charge “for explanation purposes” for their solicitors (DLA Piper). Linda Todd learned that Mr Breeze was to be arrested and told him on 7^th November and he was arrested on 14^th November 2006. He stated that on arrival at the police station there were photographers outside so he can only assume that the press must have been tipped off prior to his arrest.

Mr Breeze’s statement covered the history and impact of the restraint proceedings in detail. However those proceedings are not covered by specific allegations in respect of malicious prosecution or misfeasance in public office. I shall therefore only deal with them in brief detail in due course.

Mr Breeze set out a number of extracts from his interviews and commented upon them. He stated that during the interview on the 24^th May (his solicitor being present) Officers were “more combative” than during the first interview and;

“DS Brownsell burst in at one point, threw a piece of paper on the table and said to my solicitor “this proves your client's guilt”. This was said off tape. The document was my handwritten notes of a conversation with DLA Piper which I understood would have been subject to legal privilege…This document was labelled DJK/9.”

Mr Breeze stated that he now knew that the statements had been “tampered” with and that;

“It seemed to me there was so much evidence that was either manipulated, not collected, minimised, exaggerated, misrepresented as well as obvious lines of inquiry not followed and of transcripts not being accurately represented in statements. This leads me to believe the investigation and prosecution were brought by the police in bad faith.”

When cross-examined Mr Breeze denied that, at different times, a variety of descriptions had been given of what extra care was. He stated that the extra charge was specific and that he did not think that there were any misunderstandings. It was pointed out that was in contradiction to his own defence statement for the criminal trial which stated:

“On occasions Andrew Breeze was asked to explain the meaning of extra care, and is now aware that in some documentation issued to, from and between himself, Dominic Wilson, Mark Deveney, Dr Barker and the commissioning bodies, there could sometimes be a variety of descriptions or explanations. This was due to the fact that different people attempted to respond to different commissioners asking for different information at different times.”

Having had the benefit of considering a raft of evidence in this case it is my view that there clearly were varied descriptions of what extra care was and how it was justified and it is unrealistic to contend otherwise. I am not surprised that Mr Breeze was, it appears, advised to address this issue in his defence statement “head on”. However he told me that he disagreed with this paragraph of his own defence statement.

During his cross-examination Mr Warnock took Mr Breeze to some explanations/descriptions of the extra care which he suggested were not consistent with the explanation that he had given in his statement in this action and proved that the Police were faced with varying explanations. It is necessary to briefly set them out.

On 28^th December 2003 Mr Breeze wrote to Dr Rowley, joint commissioning manager of Ipswich PCT, referring to a patient and an extra care cost of £312 per day and stating;

“The extra care is based on his assessment showing that at least for the first month we would envisage the need for an extra member of staff to be available. Depending on his mental state on admission this could potentially go up to two members of staff. If this were the case we would inform you immediately. This would be at £13 per hour per person. Obviously this element would be reviewed on a weekly basis.”

£312 is 24 hours at £13 per hour. Eventually, Mr Breeze conceded that someone reading the letter, e.g. the Commissioner for the Trust paying for the patient could be led to believe that an extra member of staff would be brought in and dedicated to the patient. This would be wholly inconsistent with the concept of extra care which Mr Breeze said was in operation (whereby there would be no dedicated extra member of staff).

In the case summary DS Brownsell noted a document dated 24^th October 2003 seized from Linda Todd which contained the following note

“Additional cover e.g. specialling at £13hr.”

Mr Breeze then signed a service level agreement with Norwich PCT (on behalf of all Norfolk PCTs and signed by Linda Todd) on 6^th January 2004 The agreement was for a period between the 21^st November 2003 and 31^st March 2005 it set out that:

“Special support will be charged at £13 per hour per staff required e.g. 2-1 nursing – 1 hour x £13 x 2 staff = £26.”

On its face this document is also obviously inconsistent with the concept of extra care which Mr Breeze said was in operation and he said had been clearly explained. Mr Breeze agreed that he signed it but said that it was a document prepared by Linda Todd and sent to him. Mr Breeze stated that Ms Todd had “got it wrong”. He stated, somewhat remarkably, and demonstrably (as I shall set out) incorrectly, that “everyone” understood the basis for the charge. Equally remarkably given the sums involved he stated that he did not think that a written contract needed to be in place. His explanation for this document was that that Linda Todd had called and said that she wanted to compare extra costs with the specialling costs she had previously paid elsewhere and wanted an extra rate for extra care charged. As I shall set out in due course this did not marry with the evidence of Linda Todd (in any of her four statements).

It was observed in the case summary:

“The quoted cost is per hour which is the method for normal charging of specialling. It is felt that this would lead PCTs to believe that extra care and specialling were the same. This is discussed under the title of mixed messages.”

When asked in the first interview if there was a definition of extra care Mr Breeze answered that there was a definition for extra care which is written into the Norfolk PCT contract which was “the only PCT we actually have a contract with”. On 18^th April 2006 a further Service level agreement was signed which omitted this section but still on one possible reading again suggested the provision of something extra, beyond what was integral to the system of working at the hospital for all patients, and referred to deployment of staff of a variety of disciplines as necessary “to provide extra care”. The case summary also sets out Mr Breeze’s comments on the SLA (during the third interview);

“Breeze said that this was a SLA that was, he suspected, a template for most SLA, this document being the very first document that they had when they opened Cawston Park. Breeze said this document was written by Linda Todd and he suspects that at the point they had not completely made themselves clear on the way that they were working. He went on to say that there was a misunderstanding of what they were doing, he knows this because Devaney had told him “we understand it is not one to one can you please tell us in cost terms what is the equivalent to? Which is where the £13.00 an hour comes from referring to the number of staff involved. Breeze went on to say the definition that they later developed was the one that Linda Todd clearly said she understood just after that time. He stated that the SLA was wrong. Breeze did not state why that document had not been corrected but referred to lots of conversations he had with Linda Todd and Tony Chancellor where they made it clear they did not do one to one nursing, however he suspects that Linda Todd understood it so he signed the document. However the commissioner would clearly have understood what extra care was about.”

In a letter dated 8^th March 2004 Mr Breeze stated to Dr Rowley that the extra care cost (£312 per day) was for the provision of an extra member of staff;

“The extra care element of this cost is to provide an extra member of staff to input into Mr H’s treatment package which has been considered necessary following his assessment. This will be reviewed after the first two weeks and only continued if considered necessary.”

Again he unequivocally linked the extra care to an identifiable extra cost and an identifiable additional feature of the care provided. This is incompatible with the explanation of extra care given by Mr Breeze which was that existing regime was able to provide care for all patients. In my judgment the letters to Dr Rowley taken with evidence of Dr Rowley (as referred to in the summary) and the evidence that no extra care was in fact provided would, create a case to answer in the mind of an ordinary and prudent person (i.e. that a Commissioning Trust was being misled).

On 9^th July 2004 Mr Breeze also appeared to equate extra care to “specialling” in a letter to Carol Lawton, Peterborough District Hospital. He explained;

“Extra care is what we apply to keep patients safe involved in their treatment programme. Other settings may call it “one to one” or “specialling”. Extra care is applied depending on the risk assessment. It may be applied over the whole the 24 hour period Or only over part of it depending on the outcome of the risk assessment…”

Again extra care was set at £312 per day. As set out in the summary there is no evidence of extra care ever being charged for only part of a day. Mr Breeze stated that he could not understand why he wrote in these terms and that it was wrong. He also accepted that if a PCT Commissioner looked at this letter in isolation they would be likely to form the view about charging that was incorrect. Faced with the difficulty posed by its content he relied on what was said orally and stated that there was “so much around this letter they would not know that we were not working in this way”. Objectively this letter clearly undermined the explanation of extra care advanced by the Claimants.

The suggestion that all Commissioners understood the basis upon which extra care was being charged was also undermined by other evidence obtained by the inquiry teams. By way of examples (others are contained in the case summary);

Mr Breeze explained in his first interview as regards a definition of extra care that apart from Norfolk the other PCTs

“Spot purchase from us, so information like that would be passed over to them in discussions and telling them about it...after assessment.”

The evidence set out above would lead a reasonable person to conclude that evidence obtained by the Inquiry was capable of establishing the opposite.

During oral evidence Mr Breeze stated that he thought that there was no problem (with the Commissioners understanding of extra care) and the PCTs were happy as costs were lower; so there was no need to provide further detail. It very well may have been the case that the lower cost meant that PCTs did not challenge costs as much as they might otherwise have done; but that would not directly affect the issue as to whether they were fraudulently misled in respect of what they did pay.

Within the first interview Mr Breeze stated that extra care was a “financial term” (and in his second interview “a charging mechanism”) which was implemented depending upon the clinical information that was coming in and that

“…we needed to find a mechanism for charging more for the more difficult patients.”

He also stated:

“…so the clinical information comes in on a weekly basis and when we started this was Mark Deveney’s job…He would bring the clinical information to myself and Dominic (Wilson) and we've got a list of patients on the board and he would identify for us who clinically was taking up more of the time than other patients…and it was on that basis that an extra care charge was sought.”

It is noteworthy that this explanation of when the charge was levied (which excluded any involvement of Dr Barker) placed the eventual decision making in the Claimants’ hands (one of whom had no clinical training at all).

When asked for a definition Mr Breeze said that extra care means “basically someone who has a higher level of therapeutic intervention put into then than the average patient and that is a clinical decision.” When asked by DC Williams as a follow-up question what form the extra care took Mr Breeze stated that what was in place was a high level of skilled staff and as for who would “target patients”, from a clinical point of view this was a question for Dr Barker and there would be “an extra level going into that patient”. Staff would know who the “more difficult” patients were on the ward but they would not be aware of the extra care charge as this was a charging mechanism. On this basis there would usually be nothing identifiably “additional” or “extra” in terms of resources allocated to a specific patient (contrary to the statements set out above) although there were occasions when extra staff were actually brought in, rather it was charged according to who was perceived to be taking up more of the time than other patients. When asked “who decides how extra care is delivered?” Mr Breeze said that was putting this the wrong way around “you look at what is being delivered and then make the charge” i.e. it was an ex post facto analysis of which patients were actually using up more of the existing staff resources “across the board”. However this analysis could not account for the charge being levied before patients had used any resources. Mr Wilson when asked what extra care meant also described the charge in a different way, more akin to an increased risk premium:

“It’s a way of identifying the particularly challenging risky difficult patient that we’d expect to be using more of our resources, or being more risk to us.”

There is an obvious difference between a charge levied because there is a risk someone will need a service (such a risk may remain constant) whether they actually use it or not and a charge levied because someone actually has used a service (whether it was expected they might or not).

Given the explanations given by Mr Breeze it is also of significance that:

Whilst there has been much emphasis on what witnesses said and the documents produced, what was not present was also of central significance in the evaluation of the case against the Claimants. Despite the very large sums of money the PCTs were charged the Claimants never produced (or caused to be produced) a clear and straightforward written explanation of what extra care was and/or the basis for the charge. Also there was no clear audit trail linking the perceived increased taking up by a patient of the existing resources with the levying of the charge These factors appear to have been at the heart of the difficulties the Claimants faced when Mr Deveney made his disclosure/complaints.

Mr Breeze’s claim in the present case is, in effect, that extra care was such a straightforward, simple and transparent construct, which was understood by the Commissioners, that there can be no plausible explanation for why the investigating police officers failed to recognize this other than malicious intent.

During the second interview Mr Breeze’s solicitor stated that there was “a complete and unfortunately fundamental misunderstanding or a lack of willingness to understand extra care”. In my judgment given incorrect information provided, the confusion surrounding the extra care charge and the evidence available to the investigating team that is not a realistic, justified or accurate assessment. From the outset of his involvement in the investigation Mr Breeze has consistently been incapable of accepting any problems in respect of the confused and confusing way that the charge was arrived at and levied. Even during cross-examination he could not see why anyone should question how the company was paid large sums of money without clear contractual terms, a written explanation of its basis or a specific documentary audit trial stating who made the relevant judgments about the charge and on what information.

The Claimants’ case as advanced at trial was that, despite what Mr Deveney had said and the other available evidence, after Mr Breeze and Mr Wilson had given their explanations of extra care during their interviews, the investigation should have not proceeded further and the fact that it did must mean that there was malice. I do not accept that argument.

An essential feature of Mr Breeze’s explanation/rationale of how the extra care system worked at Cawston Park was that there was always a high level of staff, (higher than otherwise needed without catering for the provision of extra care). This became a focus of the Police inquiry.

Mr Breeze set out in his statement for this action the bold statement that there was “never a complaint made that staffing was inadequate prior to the police investigation” and that if a substantive post was unfilled at any stage the gap would be made up by agency staff.

DS Brownsell gave an overview of evidence obtained in relation to staffing levels in the case summary. As with other issues he was not cross-examined upon what he had set out. Apart from the views set out in witness statements within the first iteration of the summary he also referred to a letter of 20^th June 2004 referring to dangerously low staffing levels written by David Pyke, a lead nurse in the Grange, to Mark Deveney;

“He is concerned about the low level of mental health nurses employed and alludes to there being a lack of these since the Grange opened in November 2003. He goes on to say that staff are working long hours and the commitment is due to goodwill, however the staff are becoming disenchanted by the poor pay. He states that bulking up on inferior agency staff has left the unit in a potentially dangerous condition and has put the safety of everyone in jeopardy.”

Mr Breeze said that he was not aware of this letter and Mark Deveney must have either sorted it out or disagreed with him.

The summary noted that minutes of an operational meeting on 6^th February 2006 mention problems with staffing levels and recruitment being too slow and opines that; “this document corroborates what staff have said about staffing levels being too low”.

Mr Breeze was taken by Mr Warnock to a letter of 27^th February 2006 from Kate Willan tendering her resignation as unit manager of the Lodge, amongst the points made she stated:

“Staffing wise I feel we are in a very unsafe position. I now have 10 operational staff of my own, when I should be operating on an agreed minimum of 25…quite how I am supposed to operate a caring, professional and clinically therapeutic environment without due support is beyond me. I have consistently discussed recruitment issues, but am regularly rebuffed…”

Mr Breeze said that he had forgotten this letter as he gave no weight to it. I found this a surprising answer given Ms Willan’s post.

Again matters were not as simple as Mr Breeze set out in his witness statement in this action. There was evidence to support the proposition that staffing levels were a very real concern. This would also have undermined the extra care through, in effect over-staffing, philosophy.

Mr Breeze has come to strongly believe in multiple conspiracies. Apart from his pleaded case in respect of the Defendant Mr Breeze gave evidence that

Turning back to his criticisms of the police investigation, Mr Breeze stated that evidence had been “tampered with”. Questioned as to what he meant by this he said that things had been deliberately left out of statements or things manipulated. Mr Warnock pointed out that the witnesses had been happy to sign the statements (and some had the assistance of solicitors). However Mr Breeze sought to justify his serious allegation by stating that some witnesses would not have understood what the statements were for, some would have been fed up and some would have skim read it and just signed it. He also believed that some junior members of staff were “led by Police”. In my judgment Mr Breeze has a mind set that readily imputes malice and as I shall set out in due course the allegation the police deliberately “tampered” with evidence is misconceived and without foundation. However I have no doubt that Mr Breeze still believes that his analysis is correct and he will not be persuaded otherwise. There was an illuminating exchange with Mr Warnock concerning Dr Barker. Within his witness statement Mr Breeze gave an example of a witness statement having been tampered with. He stated:

“For example, having read the transcript of Simon's interview where he describes in some detail those patients who were on an extra care charge however that detail is absent from Simon statement.”

Mr Warnock pointed out that the original draft statement sent to Dr Barker had contained details of patients, but Dr Barker had then asked for the details to be removed. In a letter dated 25^th January 2008 submitting further evidence to Mr Tarrant it was explained by DS Brownsell that:

“This is the draft statement which Dr Barker has agreed…Doctor Barker was on the cusp of signing it when he decided that he ought to submit it to the GMC as within the statement he names patients and gives clinical information which could be viewed as a breach of confidentiality…and (he) didn't want any more problems with his professional body. A copy of the signed statement will be forwarded to you immediately on receipt.”

Dr Barker continued to refuse to allow the details to be in his statement and specifically addressed his reasons in the revised version;

“The police have asked me to recall details about patients who I now understand were being charged for extra care. In general they were the patients who were at the more challenging end of the scale. I do not feel able to recount clinical details as in order to do this, I would need to seek, and obtain, the consent of every patient I wished to write about…I am not in a position to do this, and I believe that certain patients would not be competent to give their valid consent in any case. In any case, it has been over a year now since I had any patient contact and I have no access to their records.

Remarkably Mr Breeze would not accept this as the true explanation for the draft statement not being signed. Rather he believed that it was a lie that was inserted and Dr Barker signed the statement containing this comment whilst he was under pressure and unwell. This despite the fact that Dr Barker had solicitors acting for him. In my judgment Mr Breeze’s allegation is fanciful and his refusal to accept what was obviously an accurate rationale within the statement speaks volumes of the extent to which he will find a way of attacking the police conduct of the inquiry, however unreasonably.

Turning to the three interviews with Mr Breeze these were conducted with his solicitor present. The very lengthy transcripts are within the trial bundle. DS Brownsell gave a lengthy analysis (stated to be a precis) of what Mr Breeze had said within the case summary and was not cross-examined as to its accuracy. Also, and importantly, transcripts of the interviews were supplied with the summary. I have carefully considered the content and do not see grounds for significant criticism of the summary in terms of accuracy or omissions as regards the interviews.

The summary also did not hide Mr Breeze’s view of the merits of the investigation. It included a specific reference to the fact that during the second interview:

“…Mr Breeze’s solicitor interjected (not for the first time) suggesting there was a complete and unfortunately fundamental misunderstanding or a lack of willingness to understand what extra care was.”

And in respect of the third interview:

“Breeze started off the sets of interviews on the offensive. He asked the interviewing officers if they were interested in getting to the truth as he didn't think they were interested in the truth at all. He stated that he thought that the police were only interested in gathering a body of evidence that supported their theory that there has been a fraud and that they were not interested in gathering evidence that disproves that. He accused the police of being selective in their evidence gathering and that the complaint from the NHS was driving the inquiry and that they only had one goal which was to gather enough evidence to put to the CPS so that he would be charged and that was all they were interested in. He went on to say that the evidence had been gathered in a biased way. He then said that members of his staff had been interviewed who had positive views about what had gone on have not had statements recorded from them…Breeze said that the police were not interested in seeking the truth and they were being driven by the NHS who have spent a huge amount of resource on an investigation and they want a result for him to be charged. Breeze said that the powers that be was Chief Inspector Chris Hobley as well as Frank Ginelly from the NHS.”

And

“Breeze stated that he had explained extra care many times and the interviewing officers were choosing not to understand the concept.”

So Mr Tarrant was unarguably well sighted in Mr Breeze’s view that the investigation had not been properly conducted.

Having considered all the available evidence, I do not accept that there was any aggressive or intimidatory conduct at any stage during the interview process. In my judgment Mr Breeze was more than capable of holding his own when questioned and, as set out above, felt able to be very critical of the officers. Mr Breeze stated that during the second interview on 24^th May 2007 (during which, it appears, he chose not to look directly at the officers), DS Brownsell “burst” into the interview room at one stage flourishing a document which he said proved Mr Breeze was guilty. When shown a transcript of the interview (conducted by DC Horsburgh), which, Mr Warnock suggested to Mr Breeze demonstrated that his solicitor already had the document and that the ensuing discussion between the solicitor and Mr Brownsell was about privilege, Mr Breeze stated that the document was not the one labelled DJK/9 as his witness statement specifically stated, rather a piece of paper with one line on it. I do not accept this as an accurate account and instead accept DS Brownsell’s account, namely that there was merely an argument between him and the solicitor about privilege, which was resolved by him agreeing to have the document reviewed again. DS Brownsell’s evidence is in line with his roughbook entry.

Mr Breeze described the officers as “gloating” whilst he was charged. It is my view that this is not founded on a reasonable assessment/description of the behaviour or attitude of such officers as were present. Despite making many complaints in the past Mr Breeze did not raise this issue before setting it out in the witness statement in this action. Mr Breeze’s solicitor was present and Mr Wilson and Mr Breeze were charged within 30 minutes of each other and Mr Wilson made no such allegation. I prefer the evidence of Mr Flynn that there was not a crowd of officers and there was no gloating.

Mr Breeze made a number of complaints about officers attending at the City Club. It was his view that that DC Baker and DC Flynn attended the City Club on 28^th March 2008 for lunch (after the interview with Martin Ward) so that they could intimidate him. There is a dispute as to whether it was the 28^th March or some other date when both officers attended the Club, but in my view nothing turns on this issue. Rather I am wholly satisfied that on the one occasion that the two officers did attend the City Club (DC Baker was a member; he is now president and took DC Flynn as a thank you for a favour) they did not expect Mr Breeze to be present and had certainly had no intention of intimidating him. They attended due to a failure by the steward to provide the agreed warning that Mr Breeze would be present (a system which DC Baker had instituted). It is also very difficult to see how the officers could have intended to achieve any intimidation or the possible point of it. This is an example of how Mr Breeze’s belief in conspiracies to cause him unnecessary personal harm has turned innocuous conduct into what he believes to be malevolent behaviour.

Mr. Wilson had a background in NHS financial management. He accepted the offer of the position of finance director at Chancellor Care in the autumn of 2003.

He sets out in his witness statement that:

“In or around mid to later 2003 Andrew and I entered negotiations with Norfolk Primary Care Trust (PCT) with a view to taking on our first six patients. Linda Todd was a PCT commissioner who was working under the direction of Mr Brook…

The prosecution case centred around the extra care charging and I will briefly set out the concept of extra care. This, as a term, was coined in October 2003 And I believe came from a discussion between myself, Andrew (Breeze), Mark (Deveney), Tony (Chancellor) and Simon (Barker). Around what would be a charge to be incurred for difficult patients over and above a daily core charge…

…its beginnings arose out of Mark's observation the patients who were particularly difficult would require more input in terms of our resources and so should be charged at a higher rate. So, whilst the clinical practice was completely different to “specialling” we did still need a way for more difficult, challenging patients, to be allocated a higher price.”

And

“My understanding is that extra care charges arose through a variety of different types of input not just physical staff input or presence.”

And

“My original and continuing understanding was that extra care, being a pricing mechanism, was a reflection of the way in which clinical staff were able to manage difficult and sometimes very difficult patients and reflection also of the fact that those patients in other establishments did attract additional charging because of them having to be nursed in particular ways.”

Mr Wilson gave an example of one patient who was awaiting a court hearing and because of this needed an escort when moving around between activities and this required a greater level of resource compared to other patients. He contrasted this with an example of another patient in respect of whom he stated that the indication given to the PCT (Hertfordshire) was that it was necessary to continue extra care to manage a patient and this meant that

“…the clinical team are managing more challenging, higher risk individuals but Mark (Deveney) is not saying there will be specific additional staff dedicated solely to LM because of that. It could be that LM is using more of the existing consultant psychiatrist’s time or similar interventions. Such detail was not required for the report to commissioners which accompanied invoices and the finance team would not be cited on that detail. However it would have been clear from the patients care plan.”

In re-examination Mr Metzer took Mr Wilson to a letter of 2^nd August 2004 Dr Barker wrote to Mr Wesley of the Ipswich PCT about a patient NS and her increased assaultive behaviour stating:

“At that time we completely reviewed her care plan, increased her access to psychotherapy, firmed up some boundaries and increased her extra care with a view to continuing to care for (her).”

Whilst this letter shows that Dr Barker had some involvement in the identification of those who should be subject to the extra care charge it is also reasonable to view this as difficult to reconcile with the suggestion that the existing staffing level was adequate and this patient was simply taking up more of it.

Mr. Wilson said the first time he had a conversation with a Commissioner about extra care was a visit by people from Suffolk commissioners in or around 2005. His recollection is that he told the representative that they did not do 1 to 1 specialling rather “What we do is something different-we call it extra care-either Andrew or Simon Barker or Mark Devaney will explain it but it is to do with not guarding patients.

Given Mr Wilson’s confirmation that PCTs did not ordinarily get any detail of what the extra care charge was for when invoiced (and, it appears, needed an oral explanation) it was unsurprising that Ms Ventham KC pressed him about the service level agreement which was signed by Mr Breeze and Linda Todd (on behalf of Norwich PCT) on 6^th January 2004 which sets out that;

“Special support will be charged at £13 per hour per staff required e.g. 2-1 nursing = 1 hr x £13x 2 staff =£26.”

Mr Wilson was asked how it came to be that this document, given to a PCT, explaining what extra care was (and signed by Mr Breeze) was giving a justification/basis for the charge which was directly contrary to what he had explained in his statement (save for the one example of a patient actually needing an extra dedicated member of staff). Mr Wilson stated that the document, which he conceded was wrong, had come from Linda Todd and recorded an agreement against a background of discussions and “was not a big deal” and was not crucial. Objectively, given the amount of money concerned and that the document set out a set basis for charging which they never intended to follow this was surprising evidence from someone with a career in financial management.

As I have already set out whilst consideration must be given to the content of the witness statement for this action, it is necessary to have close regard to what Mr Wilson said during the investigation (and the balance of the evidence in relation to his involvement). In his first interview, apart from referring to Norfolk SLA, Mr Wilson had defined extra care in his first interview as follows:

“It’s a way of identifying the particularly challenging risky difficult patient that we’d expect to be using more of our resources, or being more risk to us.”

And

“It’s not one to one nursing …it talks about engagement, it talks about the fact we may have to deploy extra resources, it talks about it being for particularly challenging patients.”

Mr Wilson appears to have been making reference to a form of risk premium for some patients. He explained that they:

“Weren’t going to do specialling but were gonna do this other thing which, I understand is a lot more difficult to get your head round than one to one nursing.”

However he also explained that:

“It's more a case of the true care and treatment that is given to the patient. The Clinicians don't think about, the individual nurses, support workers and unit managers don't think ah this person is extra care, I need to give them extra care. They’re there treating those particular things with that patient. It's then someone like Simon, predominantly it was Mark or Andrew, that's a right, having discussed these patients and having read the report that is all about these patients, clearly this person is absorbing a lot more of our resources that we've already put in...”

When asked how the figure for the charge had been arrived at Mr Wilson said that he knew what the charge for specialing was; usually £600-700 per day and that they halved that figure to come up with the price for extra care.

In his second Interview Mr Wilson stated that the extra care charge system was not the same system as in place at Kelling (which runs contrary to the argument/evidence that it was effectively the same system) and that:

“Extra care is a charge levied on the more difficult, challenging risky patients on the basis that they do pose more of a risk and are likely to be using more resources than less challenging, risky, difficult patients.”

In his second interview Mr Wilson was asked about what, at first blush could seem objectively to be a difficult aspect of extra care charges to justify; the charge being levied on patients when they were not at the hospital (on section 17 leave). He explained that “the package (i.e. the resources) was there to enable staff to cope with the person coming back” and they were:

“Ready to pick up any pieces if things did not work or if when they came back there were lots of issues…”

As I shall set out Mr Chancellor struggled with this justification and gave a damming criticism of it describing it as “a complete no – no.” Also (as already set out) Commissioners such as Mr Rowley and Ms Offord would have expected re-imbursement.

In his statement for this action Mr Wilson referred to his frustration at the nature and extent of the questions during his interviews:

“After many hours of questioning they still didn’t seem to be getting it. The desperateness to trip me up , or catch me out, does not come across in the transcripts in the same way as I remember it happening at the time, but they do seem to go round and round the same issues again and again… the manner in which the officers questioned me led to my solicitor telling me not to answer any more questions as they are just being petulant.”

Mr Wilson also referred to the

“relentless refusal to understand what we told them and the repeated decisions to ignore people who could and would reinforce what we were saying (he does not specify which individuals he was referring to)…it seems that nothing we said was ever considered properly.”

And

“The Police were not investigating but instead were trying to build a case to prove the position they had already determined. They latched onto anything which helped their case and ignored everything else, especially if that counted against them.”

I accept that these comments may accurately reflect Mr Wilson’s perception at the time. However in my Judgment, save for some objectively reasonable grounds for his view that the interviews were too long and to a degree repetitive, they are not a balanced or accurate critique of the investigation as evidenced by the content of the case summary and MG6.

Mr Wilson also stated that Mr Deveney had no credibility as a witness given:

“His conduct whilst employed with us, and he was already a proven liar and a thief as he had defrauded the company he worked for after us and the NatWest Bank. This seemed however not to matter to the police. It seemed they accepted what he had to say without consideration to his character and the obvious benefit to him if his competition, myself and Andrew were out of the picture.”

On any reasonable and objective reading of the summary, MG6 and subsequent extra information supplied to Mr Tarrant by DS Horsburgh matters concerning the character of Mr Deveney were raised for the consideration of Mr Tarrant. However Mr Wilson at no stage changed or resiled from this view. Put simply it is obviously not right to say that there was “no consideration” of Mr Deveney’s credibility.

Mr Wilson’s comments in his statements and his oral evidence as a whole are also somewhat difficult to reconcile with a case based on the assertion that the officers knew that the Claimants were innocent. They appear more consistent with a belief that the officers believed that they were guilty and closed their minds to any alternative suggestion.

Mr Wilson’s comments in his statement also ignore the totality of the evidence obtained by the Police and the fundamental weakness in the Claimant’s business approach; the lack of any accurate written explanation/contractual term setting out this explanation of the charge to those paying it, the lack of any proper audit and consequential confusion. When this was put to him Mr Wilson said that they got “better with time; we got better at documenting all sorts of things.” Also, as I shall set out important witnesses (such as Mr Chancellor and Dr Barker) did not assist the Claimants at all when they were interviewed or when providing statements; quite the reverse.

Mr Wilson explained that in August 2006 he became aware that there was “some sort of investigation,” which was “looking into our charging”. In the following weeks there were “conversations with the Board to try and understand what the investigation could be about…And in particular feedback from Andrew about conversations with Linda (Todd) about the investigation being about extra care.”

Mr Wilson agreed in cross-examination that he had produced a report for the Board dated 10^th August 2006 (or 19^th September) entitled “extra care review” and stated to be an explanation of the original philosophy behind extra care, how the charges were developed and instigated and the current process for determining when the charges should be made. The document includes the following statement;

“Extra care is NOT one to one “specialling” and from the inception of Cawston Park this has been clearly explained. The charge for extra care is approximately half that of specialling. Extra care charges facilitate a way of working which has more clinical efficiency than one to one specialling. The responsibility for determining which patients were allocated an extra care charge was originally held by the head of care, Mr Mark Deveney, in conjunction with the then general manager, Mr Andrew Breeze and the finance director Mr Dominic Wilson. When Mr Deveney left the employ of Chancellor Care Limited in November 2005 this responsibility was transferred to Mr Andrew Breeze and the medical director doctor Simon Barker as an interim measure. Following appointments for chief operating officer in 2006 a formal process for identifying which patients should be allocated an extra care charge had been implemented.”

As for extra staffing required to implement extra care it is stated in the document that;

“To provide extra care service staff of a variety of disciplines may be deployed, as necessary, to maximise the potential for inclusion of service users who display challenging behaviour in every appropriate part of the programme. Often, most senior and experienced clinicians will focus on that individual, providing greater input than they would normally receive at that level. Some staff replacement cost may be incurred in additional numbers on the shift to enhance the service users opportunity for participation and to enable regular staff to provide additional time to them. However, this is not one to one nursing or “specialling” and consequently chancellor care is able to keep the cost to less than half that charge by some providers.” (underlining added)

And

“When planning the opening of the hospital and knowing the client group that would be using our facilities, it was clear that some persons would experience symptoms that made life very difficult for them. Engaging in the treatment programmes would therefore be a very real challenge…… to enable us to attempt full patient engagement with their programme, extra staff from a variety of disciplines were employed over and above the minimum/core element.”

And

“extra care facilitates us, as the provider, to take a therapeutic risk in order to achieve better, longer term, clinical outcomes. It presents a financial risk to us, the provider, in terms of a substantial initial outlay for extra substantive staff, further additional staffing required and the replacement/repair of any damaged items or property, which may or may not be recovered in their entirety through the extra care charge.”

The explanations of using/paying for further additional staffing required and for staff replacement costs can be contrasted with the evidence of Mr Deveney and as to staffing levels generally.

As I shall set out in due course in an e-mail sent on the 20^th October 2006 Mr Ward was critical of the draft document as it stated what extra care was not but failed to clearly set out what it was.

Ms Ventham referred to the police statement of Mr McKenzie who became the Chief Operating officer in July 2006 (originally having trained as a mental health nurse then progressing to a ward manager and then director of nursing at other hospitals) and suggested that it showed how opaque the extra care charge was for him and how it did not operate as he would have expected. Mr McKenzie said that having reviewed such procedures and policies as there were (and the PwC report) before he started he thought that extra care was another term for specialling. Mr McKenzie stated that it was after a board meeting on 4^th September 2006 he started to ask some questions and found that three patients were still subject to extra care charges. He said that he had never heard about the concept and it sounded like something called zonal observation whereby patients are nursed in an environment where they could be easily observed; but that neither the Manor or the Grange at Cawston Park lent themselves to this type of concept. He stated;

“This being the case the whole concept sounded rather flowery (in interview the term used was “a bit blurry”) and I couldn't see that those patients were necessarily getting anything extra. I cannot find any audit trail as to why any of these remaining extra care patients were subject to an extra care charge. However we have commissioned an internal investigation that may report differently on this activity. I don't know how it was decided who would be on extra care. Logically this would be a clinical decision made at ward round. Ideally the RMO taking a lead in this. I'm unclear how decisions were communicated to finance at this point. A record would be made by the clinician in the patient’s notes about their needs. This would cover provision of extra staff. Through constant review the RMO should decide how long this was necessary for. During September and October 2006, having learned about the investigation, I made inquiries with the unit managers, Mark Grainger, Phil Wakely and Helen Walters and asked them to explain extra care. I learned that it wasn't specialling, and Dominic tried to explain that it was about patients being provided with extra services such as clinicians giving more input but ultimately no one could give in my view a reasonably straightforward easy to understand definition. On one occasion I asked Mark Grainger how many patients he had on extra care. He did not know…On the basis of what I know of extra care and the lack of detail about it, the only people that could deliver it would have been Mark Deveney, Dr Simon Barker and Andrew Breeze. How they could actually do this I do not know.”

Mr McKenzie suggested the practice of extra care charges stop. Given that Mr McKenzie was supposed “to run the place operationally” as Chief Operating Officer and commenced employment in the summer of 2006 it is unsurprising that Ms Ventham raised its contents (which were accurately summarised in the case summary). The statement had also been put to Mr Breeze during his interview. It was set out in the case summary that;

“Breeze said that his response would be to say that McKenzie had got it wrong. McKenzie had come from a mainstream psychiatric healthcare company and didn't understand the concept of the way they worked. They didn't feel the need to start making heavy explanations as to what extra care was all about because they had stopped charging for it…The reason McKenzie was unable to found out (sic) about extra care was that he had not spoken to Breeze..”

So Mr Breeze acknowledged that his own chief Operating officer did not understand the charge and would not get an explanation for its levying that he could understand. (Mr McKenzie stating that it was still being charged at the time of the police raid).

As with Mr Breeze there was a very lengthy “precis” of Mr Wilson’s interviews in the case summary and DS Brownsell was not challenged as to its accuracy.

Mr Ward is a mental health nurse by background but describes himself as “a practitioner, researcher, educationalist, manager, politician and writer”. He worked at Cawston Park from September 2003 until late 2007 as a professional advisor. By 2007 he had 35 years of experience within the field of mental health.

In his statement in this action Mr Ward set out that he met with the Claimants:

“...to discuss with them the possibility of developing an initiative that sought to provide high quality psychiatric care at an unusually high quality site in Norfolk. During this initial meeting they outlined their plans to purchase and develop Cawston Park as a private hospital for people with severe mental illness and those suffering borderline personality disorders. I was struck by both the sincerity and passion of the two men to develop a service that was both clinically efficacious as well as being a sound business proposition. Over a two or three week period we held several meetings and it became obvious to me that they wanted to use their considerable experience to make the Cawston site a centre for clinical excellence, offering patient centred care based upon a Modified Therapeutic Community (MTC) model and to gain a reputation for undertaking psychiatric care that was both contemporary and evidence based.”

Mr Ward explained that as a professional advisor he spent several weeks on site during the hospital’s set up period. He drafted the hospital’s manifesto explaining its philosophy of care. He was also partly responsible for educational packages given to staff and was contracted for 40 days per year to conduct research at Cawston Park which he would usually do for blocks of one week at a time as he lived in Malta.

Mr Ward said once he knew of the police investigation into the hospital that he had assumed that as he had been a “key player” in the startup of the hospital he would be interviewed very quickly. However by the middle of 2007 he had still not been interviewed. He spoke to Mr Breeze and told him that he was happy to support him and after that he was contacted by DLA Piper (the Claimants’ solicitors) and a statement was produced which he signed on 27^th August 2007.

In that statement (“the DLA Piper Statement”) Mr Ward said that he was convinced of the genuineness of the Claimants to establish a service that was inherently patient centred and as a good psychiatric hospital should be run. In respect of extra care Mr Ward stated:

“Extra care was an invoicing mechanism designed to pass on the increase in support required by certain patients to the Commissioner responsible for their placement. This is standard practice throughout the independent sector as this is often the way that increases in care can be monitored when using the traditional specialling model of care i.e. bringing in extra staff. However, certain key issues need to be addressed at this point to clarify what was happening at Cawston during the first two years of its development.

Firstly, as described above and from my own examination of patient records for later research purposes, the documentation systems, as described above, were not sensitive enough to be able to detect the increase in staff support for individual patients. Staff spent time with the patients sorting problems and difficulties out rather than sitting in an office writing reports. Whilst this perhaps represents some organisational naivety it reflects the stage of development that the organisation had reached and its desire to meet its clinical ethos using the “right" approach to care, not just the most expedient one.

Secondly, much of what went on as an increase in care came, certainly in the early days, from the senior staff who were at that time living on-site. They it was who would often act as the back up person in difficult to handle situations and their input was seldom, if ever, recorded in the patient's notes.

Thirdly, even if these senior staff were not on site during incidents requiring additional resource input, this would invariably come from the senior staff on the unit, not additional staff from the nursing pool or an agency. There were, of course, incidents where this was the case, however, in most part it was dealt with from within existing resources. My understanding was that an additional charge for the increase in support and care level would then be reflected in the invoicing process. In the morning meetings with the Head of Care, the senior management would discuss the previous day’s events and those patients who had required, or continued to require, additional support and interventions. There were no formulae, or scientific calculation, for this calculation merely an evaluation by the team of the extent of additional support required. However, I am not aware of how the figure to be charged for each patient was arrived at. Given the structural developments at that time this would appear to be a perfectly appropriate way of determining the cost to the organisation and any suggestions that this was not so would indicate a complete lack of understanding and experience of clinical practice and the demands placed upon skilled nursing and support staff at times of crisis. It also places too much emphasis on the mechanical process of offering extra staff for extra care. Patently this is not the way it works and any suggestion that it should merely reflects an uniformed and perhaps stigmatised view of the way that people with mental illnesses should be treated.

Fourthly, as described above most independent institutions invoicing for extra care would be able to show the necessity to bring in extra staff to undertake either specialling activities or to manage seclusion because of either their reporting mechanisms or the bill for bringing in additional staff from either bank or agencies. Cawston managed to do this from within its own resources, providing additional support and care that needed to be paid for. The outcomes from the approach undertaken at Cawston, versus those of many other more traditional establishments, should beg the question who is actually cheating who here? Many of the patients transferred into Cawston had received specialling in one form or another during the length of their various hospitalisation period. None of them appeared to have benefited therapeutically, they were simply still alive but with the same debilitating mental health and behavioural problems. Where was the cost effectiveness in this one must ask…

Fifthly, the decision as to who would attract extra care charges was that of the Head of Care in discussion with the CEO, the Medical Director and the Director of Finance, at either their informal daily meeting or the more formal weekly ones. Clinical data was discussed and if it was agreed by the team that additional resources had been, or were continuing to be, required, charging was made accordingly. This was the agreed arena for these discussions and many of the decisions about the day to day running of the organisation, as reported to me informally and in our own meetings by the participants of these meeting, were apparently made by this senior group as a working team. It was not something about which the support workers or nurses on the unit would be aware of.”

These extracts were clearly supportive of the Claimants.

Extracts from the statement were provided to Mr Tarrant by DLA Piper in a letter dated 1^st February 2008. Mr Ward stated that an interview with the police was arranged for the 28th of March 2008 (after he had been contacted 3 or 4 times to arrange a date). Prior to the interview Mr Breeze had asked if his solicitors could be present “to protect Andrew's interests and not there as my representative”. Mr Ward said that DC Baker stated that this would not be possible but when he was contacted by Mr Breeze prior to the interview it was confirmed that the solicitors would be there.

On the morning of the 28^th March he attended at Hellesden Station in Norwich as agreed. He assumed that a representative from DLA Piper would also be attending. In the statement for this action he stated:

“...there was a delay before the interview started. One reason was that the other officer could not get the recording machine to work, another was that we were waiting for a representative from DLA Piper to arrive. The interview eventually began, without any DLA representative.”

As regards the interview Mr Ward stated:

“I got the impression that the officers were not interested in what I had to say, but they were just going through the motions. DC Baker made no notes during the interview…I definitely felt that my role in the investigation was a bit player.”

Mr Ward stated that at the beginning of the interview one of the officers mentioned to DC Baker “what about the other thing” and he stated “No we’ll deal with that at the end”. After the tape had finished recording DC Baker raised with Mr Ward his work with the Royal College of Nursing. Mr Ward stated that he explained that he had been dismissed after a bogus accusation made against him that he had been spending money inappropriately and unfortunately the College felt they had no option but dismiss him as the paperwork was incomplete. DC Baker indicated that they knew about this as the information had been in one of the box files in the documents they had seized. Mr Ward then stated:

“DC Baker then went on to say words to the effect that I should realise that if I went on the stand as a hostile witness to the CPS, they would have to raise this because it showed that I had a shady background and my word was not necessarily credible….DC Baker continued to say that if I didn't appear that wouldn't matter, but if I were to be a witness for the prosecution, then my dismissal from the RCN would not be raised. I remember thinking at the time, how on earth can I be a witness for the prosecution when everything I presented supported the stance taken by the company and Andrew. Throughout this part of the discussion, DC Baker's demeanour did not change. The fact he continued to speak in a friendly manner made the message even more chilling…. I have no doubt this was a premeditated ploy to discourage me from being a defence witness carried out in a way to achieve optimum impact. DC Baker then told me to go away and think about it.”

And

“I was and to this date remain horrified by this whole conversation. I had wanted to be put forward to assist Andrew in the case, but with DC Baker's words the dominos fell down. Following this conversation, I wanted to put as much distance between myself and this matter as fast as I could.”

Mr Ward’s statement (for this action) continued on to state that DC Baker had a cigarette with him whilst the tapes were checked and that he told him that he thought he was a good chap and that he did not want to see him damaged by the inquiry. Mr Ward likened it to a scene of interrogation by the Gestapo and that:

“he did a fine job in scaring me off.”

As I shall set out in due course when he gave evidence DC Baker confirmed that it was his decision to tell Mr Ward that they knew of his dismissal for fraud at the end of the interview (as opposed to the outset) to spare him embarrassment. However his recollection of events differed in that he said that Mr Ward asked him whether, if he gave evidence in Court, the matter may come out and he replied “possibly”.

Mr Ward confirmed that after the interview a draft statement was sent to him and that;

“I amended some things and returned it to him. I signed the final draft and returned it to him. I signed the statement hoping I would not have to play any further part in the case.”

After the trial ended Mr Ward provided a further statement to the Independent Police Complaints Commission regarding the events surrounding the interview (I shall refer to this complaint in due course). He confirmed that Mr Breeze was a friend as well as a colleague and that Mr Breeze had indicated that he was happy for Mr Ward to see DC Baker. He said that save for a failed telephone call his contact with DLA Piper was through Mr Breeze. He said that at the beginning of the interview he did not remember waiting for anyone else (contrary to his recollection as set out above) but that he could be wrong. The statement then varies significantly to the details in his witness statement in this action.

As for the interview process he stated:

“The interview started and I have no complaints about the interview, the officers were polite, I felt comfortable and not stressed, the officers were not hostile towards me in any shape or form. Although on reflection, I do not think they were that interested in what I had to say, they were going through the motions…”

Mr Ward described the interchange with DC Baker in broadly similar terms to his description in his witness statement for this action. He said of DC Baker’s comments about his dismissal;

“He continued to tell me that of course it will come into the public light and therefore it will affect your professional career as a professional consultant; people will know what happened and wouldn't employ me. It wasn't said as explicit as that, but that is what he said and the implication was it would damage my career…When discussing the RCN details, DC Baker was not threatening when he spoke, it was very much a case of bon hommie, and although I was shocked, I was friendly back thanking him for alerting me to the possibility and said what a nice thing to do. My inner feeling at the time was that I was horrified that this should be said to me…”

Returning to the interview and the extra care charge process Mr Ward said that there was “very little” in terms of audit processes and that

“…any audit for psychiatric establishment is based primarily on the medical and nursing records, that's where it starts…”

And

“…there was an absence a good record keeping right at the very beginning, that was addressed I would say relatively quickly and within the first four or five months it became obvious they needed to increase their record keeping but that was essentially the responsibility of the head of care Mark Deveney…”

There was the following exchange;

Given the allegations made by the Claimants in respect of the Officers dealings with Mr Ward, it is necessary to set out the significant parts of the statement he signed. Mr Ward described his knowledge and understanding of extra care as follows;

“I had no part in its concept or application as it was a clinical matter and as such something I would not be involved in. I have never seen an invoice for it but understood that the term was used as an invoicing mechanism.

…

I know that if a patient needed a higher level of input from more qualified people then Simon, Mark and Andrew would be available most of the time to give it as for a long time they lived on site. They would of course been available to any patient not just those for whom extra care charges were being made.

I have been present at a few morning meetings involving the management team when issues would be discussed about individual patients, who were having problems, and that there was a need for extra staff to be brought in to keep them safe. It is my understanding that those resources would either be brought in from other units if there was flexibility to do that, or staff would be paid overtime, failing that they would be brought in from agencies.

If Cawston incurred additional expense I feel it would be appropriate to make a charge for this to the relevant PCT’s.

I would without any doubt expect that if an “extra care” charge was made then the patient would be receiving something “extra” for it. This could be extra therapy or input from more qualified staff or simply an additional staff member to be there for them during periods of some sort of crisis, but it would be something “extra”.

For example if three people were in a room for three hours and after the three hours they all left happy that would be normal and I would not expect any one to pay extra for the experience. Now if it took four hours for the same three to reach the same state or an additional person was added to work with one or all of the three to reach the same state then that would clearly be something “extra”.

It’s irrelevant, I think that the staff would have already been there or not, it’s the Extra service that you are paying for.”

And

“I did not know who attracted an extra care charge and I have been asked who should know. The level of care would be dictated by clinical need and it would be the clinical staff who would convey this back to either the Head of Care or the Medical Director. I would not expect the unit staff to be told what was required, it was, and remains, their job to identify this and communicate it to clinical management. To attract the charge then the patient concerned would be getting more resources anyway but it would not be necessary for staff to be aware of financial matters, only that they got what they needed.

I have no problem morally with charging extra care in advance in some cases. For example a new arrival who has previously been specialled may attract the charge as its fair to assume that they, at least in the beginning, will need extra resources in place for them, but again the default position is that they would receive that extra resource. Ultimately it comes down to some ones extra time.

The charge should also only remain for the period of time that the extra level of care was required. I have been asked if it would be reasonable to make the charge for months on end. I would say that as a Commissioner I would want that justified and as an advisor I would want whatever extra resource/input that was given correctly recorded.

I have also been asked my opinion on charging extra care for someone on leave. My view on this is again as long as the resource is in place should it be required than its expectable however I can see how it could be seen as questionable practice.”

The Police statement, which, it bears repetition, Mr Ward chose to sign (after he had returned to Malta) was very significantly less favourable to the Claimants than the DLA Piper statement had been. In particular the emphasis on an “extra care” charge reflecting the actual receipt of something “extra”. Indeed Ms Morris suggested in her cross-examination of DC Baker that it was less favourable to the defence case.

Mr Ward is an intelligent man and he well knew the potential implications of some of the content of the Police statement. He would also have appreciated that Mr Breeze and DLA Piper would come to appreciate that he had not given the clear and strong support which the first statement had provided. Significantly Mr Ward had given his views during the interview before the issue of his dismissal from the RCN was raised (so it cannot be the case that what he said during the interviews was due to any pressure placed upon him to assist the Prosecution).

During cross-examination Mr Ward was taken to an e-mail which he sent to Mr Wilson on 20^th October 2006 after there had been an attempt to set out what extra care was within a document (the document dated both 10^th August and 19^th September produced by Mr Wilson) which contained these comments

“There is, however, one small issue I want to raise about the extra care document. It reads well and contains an absolute wealth of material but there are occasions where it repeats itself…anyway the most significant thing about the document from an observers point of view is it despite telling me what extra care is not, you do not give the same clear, concise and absolute description of what it actually is. If you look at the bullet points of the Exec summary for instance, you go to great pains to say that it is not this and it is more efficacious etc etc but even here you do not say what it actually is. The reader has to plod through the document to discover what it entails, and, almost inevitably, you spend far more time telling the same reader that it costs less than the traditional specialing but again the actual, physicality of it is still elusive. If I were a commissioner reading this I would assume that you were trying to convince me of the worth of your decision and that extra care was as elusive in practice as it is within the document. Now, descriptions of what extra care do exist but my advice would be to put a short and straightforward description of it right at the beginning of the Exec summary -not hidden away on the sports pages. Tell me what it is before you tell me what it is not. When I came to editing the research report to ensure that I complemented the extra care report I use my notes from our conference call rather than the document to help me do this. Otherwise it seems to me that you have covered the territory very well. Hope that helps and that you are not now wishing to lynch me.”

The content of this e-mail does not fit easily with the very positive content of Mr Ward’s DLA Piper statement.

The main factual issues in respect of Mr Ward are whether there was a legitimate interest in, and assessment of, what he had to say as opposed to disinterest and also whether improper pressure was deliberately applied by DC Baker and DC Flynn in an attempt to persuade Mr Ward not to give evidence.

Having carefully considered all the relevant evidence I am satisfied that an entirely proper interview and (in respect of the issues at the heart of this claim) statement preparation process took place (I have borne in mind findings of the IPCC which I shall set out in due course) with appropriate interest in what Mr Ward had to say; and with the central issues appropriately explored. It is very difficult to reconcile his comments that the Police officers were not interested in what he had to say with the detailed interview (and statement). In his e-mail of 4^th September 2009 to the IPCC Mr Ward stated that

“the interview itself was held in the most professional way.”

He said in cross-examination that he had no idea why he did not mention that he thought that the officers were not interested in what he had to say (which would clearly be unprofessional).

Mr Ward accepted that his views about the interview had changed over time and after reflection.

In my Judgment given the statement which Mr Ward provided after his interview the view could reasonably and properly taken that the DLA Piper Statement did not significantly alter any assessment of the merits of the case against the Claimants made to that stage because Mr Ward had given a far less favourable account of how extra care charges came to be levied.

As for improper pressure Mr Ward was only told about the Police knowledge of his dismissal after he had been interviewed and given his version of events which, as I have stated, on any realistic appraisal was more favourable to the Prosecution case than the content of the DLA Piper statement. I am satisfied that Mr Ward knew that his Police evidence was not as favourable as what he had previously set out and that this weighed on his mind. As he stated in his e-mail of September 2009 as a “…result of this interview...I chose not to have contact with Mr Breeze or his counsel prior to the trial” Mr Ward stated that he knew that he would be “discredited on the stand” and was depressed that he was unlikely to be “unable to defend the working practices of people who had done nothing to warrant their predicament other than to do a good job.” Mr Ward explained that his relationship with Mr. Wilson is “now completely destroyed and only time, and the goodwill of Mr Breeze will tell if we are able to resume as both professional colleagues and friends.”

In my judgment Mr Ward knew that if he gave evidence for the Defence that what he had said to the Police would be raised. He stated in his IPCC statement;

“I didn’t contact Mr Breeze afterwards and I didn’t get in touch with him whilst I thought about what had been said. I spoke to my wife and I thought that if I gave evidence at trial I could be more harm to Andrew than not, bearing in mind that I knew the CPS were going to discredit me.”

In my view this gives only a partially accurate picture. Mr Ward was in a difficult position given his professed support of the Claimants and the fact that he had given a statement which was not wholly supportive of them. I am satisfied that he was worried by the prospect of his dismissal from the RCN being brought up should he give evidence, but it was only part of his concerns. In my view what has subsequently happened is that Mr Ward has sought to explain away his reluctance to assist the Claimants at trial as solely due to improper pressure in relation to his dismissal from the RCN. This is not correct. It is pleaded (at paragraph 176) that following the interview with Mr Ward, DC Baker indicated that “Mr Ward’s career would be ruined if he gave evidence for the defence”. I reject this allegation having heard Mr Ward and DC Baker. Mr Ward clearly felt concerned about the prospect of his dismissal being brought up in Court should he give evidence but it is difficult to disentangle his complex inner feelings from what was actually said and the manner in which it was said. Had the dismissal never been mentioned it is difficult to see how Mr Ward could have believed that his evidence would not have been, at its highest, a mixed bag from the Claimant’s perspective, and capable of doing more harm to the Claimants than good.

For his part DC Baker thought that he was giving a fair and proper indication that the dismissal might be brought up in Court. I do not accept as accurate the recollection of Mr Ward of the suggestion that if Mr Ward gave evidence for the Prosecution it would not be brought up. This may have been Mr Ward’s interpretation of what was said/the situation; but I do not accept that it was said to him.

In conclusion in my judgment there was nothing malicious or deliberately improper in the interaction with Mr Ward. DC Baker did not handle the interaction with DLA Piper as well as he could have done and the comments about dismissal should have been on tape. However the reality of the matter is that Mr Ward was simply not as “favourable” about the extra care charge in interview and in his (voluntarily signed) statement, as he had been in the DLA Piper statement.

Mr Chancellor worked in the NHS for approximately 25 years. He was the founder and chairman of Chancellor Care, a company he set up in 1999 to deal with people with mental health issues. He opened and successfully ran a facility at Kelling Park. In 2003 he acquired the premises at Cawston Park, which was opened as the psychiatric hospital. He recruited the Claimants and eventually sold his company to them in the management buyout in 2005.

Before descending into the detail of Mr Chancellor’s evidence before me it is important to recognize that his Police statement was an important pillar of the case against Mr Breeze and Mr Wilson as presented by the Police to Mr Tarrant. Mr Chancellor recognized, as he stated in the interview, that what he had said did the Claimants no “favours” although during cross-examination he said, very unconvincingly, that he did not know what he meant when he said this.

The impact of Mr Chancellor’s police statement was not lost on the Claimants. As is set out within the case summary, the statement was read through and Mr Breeze described himself as “gobsmacked” and that it was

“…a misinterpretation of what happened and all the conversations that he had had with Chancellor…Breeze said that Chancellor had misrepresented what was happening.”

In his police statement Mr Chancellor gave his view about the extra care charge in these straightforward and damning terms;

“The term extra care was defined by a combination, I think Mark led on it, certainly Andrew would have had input, and well all of them Mark, Andrew, Dominic and Simon were the key people that would have coined the term ‘extra care’.

To be honest I didn't care what they called it as long as they didn't call it 'specialling'.

The 'Specialling' or 'extra care’ in addition to the usual enhanced level of care we did at Kelling was the level of care that someone would get when they're at risk. Either at risk to themselves or at risk to somebody else, or risk of absconding, so ‘extra care' to me would be a description of the level of care someone would require to prevent them from harming themselves or harming someone else.

This could be extra staff, extra psychiatric treatment, extra activity whatever it takes to stop this person harming themselves, harming someone else, to lessen their distress.

But it would, without any shadow of any doubt, be something extra.

It wouldn't be the standard level of care for somebody who isn't going to do something right now.

If you are in a position whereby you have established that somebody needs extra care it would manifest itself in one of many ways, but it would very much involve extra use of people no matter what...Extra people would be needed to get them through the crisis whatever it was.

You may not always use the term ‘specialling’ or extra care or enhanced care so a care worker for example may not hear the term. It’s the hand over of clinical care throughout the twenty four hour period that would define it.”

It is difficult to see how this passage can be interpreted other than, as Mr Chancellor stating that extra care required something readily identifiable beyond the standard level of care and that required extra people. This was totally at odds with the Claimants’ explanation of the extra care charge.

It was the view of trial Counsel (in his review of 12^th June 2009) that:

“Once the investigation started, the police gathered a body of evidence which appeared strongly to support the account given by Mr. Devaney. This included Mr Chanceller, (sic) the founder of the company, who made a statement trenchantly supporting the Crown position.”

Within his witness statement prepared for this action Mr Chancellor stated that;

“At the start of the interview, the atmosphere was extremely formal and to some extent, I felt it was oppressive. I was informed that I was a key witness and what I had to say was very important to the investigation. This made me think very carefully about what I should be saying.”

He also referred to asking if he was going to be arrested and was told “we’ll see…I’ll interview you now it depends on what you say” and described this as a “clear attempt to intimidate me and it worked” and “I was made to feel that any answer the police did not want to hear would lead me into trouble”. However, it is important to note that Mr Chancellor was accompanied by a solicitor. He may well have found the formality somewhat oppressive, but this was largely unavoidable. Significantly, bearing in mind what was to later transpire with Mr Chancellor “clarifying” what he had said; he was fully aware of the need to be accurate in what he said; to be “very careful.”

I have had the benefit of listening to extracts of the interview (during which Mr Chancellor appeared to be relatively relaxed) and of hearing DC Baker’s evidence and I have considerable difficulty with Mr Chancellor’s assertion that DC Baker “spoke with venom” at any stage on or off the tape. If there was anything improper about the interview process Mr Chancellor’s solicitor would surely have intervened (no complaint was made at the time or prior to these proceedings). The suggestion is also at direct odds with what Mr Chancellor was to state when interviewed by DS Frost and Mr Fernandes on 6^th November 2009 in respect of Mr Breeze’s complaints (which had been outlined in an e-mail the day before);

“Mr Chancellor concluded the meeting by stating that in respect of DC Baker he found him to be totally professional in his meetings with him and that he displayed good skills in interviewing him and searching for answers around difficult and complex issues.”

I also do not accept as accurate the assessment that “the officer tried to turn (him) against the Claimants. In my view having heard his evidence it is clear that Mr Chancellor gave answers which he well knew were unfavourable to the Claimants and subsequently that he wished to lessen the damage he knew that he had caused to the Claimants’ defence.

When interviewed by DS Frost and Mr Fernandes Mr Chancellor did not mention feeling oppressed

“Mr Chancellor was asked about the alleged comment made when he asked if he was under arrest i.e. “No not yet, but it depends on what you tell us”. He confirmed the comments or words to that effect were said but it didn't affect what he said in his statement and he didn't feel threatened or intimidated.”

During cross-examination of DC Baker it was suggested that there was something improper about the use of the comment that extra care would, “without any shadow of any doubt, be something extra” within the witness statement as this was a proposition put forward by DC Baker within the interview and agreed by Mr Chancellor and was not Mr Chancellor’s own wording. In my view this criticism is unjustified as;

Mr Chancellor also explained that members of staff would know who had received additional care;

“So staff would not necessarily know what each client was costing but they would certainly know if additional care was given because they would be giving it!

And my expectation is this is how it should have happened at Cawston. This is my view and belief as a clinician.

Clearly there are cost implications to this and this is how I perceive that that worked at Cawston Park.”

There was criticism raised (it was not raised by Mr Chancellor in his written or oral evidence) that this phrase did not tally exactly with what was said at interview; the main divergence being the; “so staff would not necessarily know what each client was costing”. However Mr Chancellor signed the statement after he made amendments (and this may have been one), Also, it is in line with the balance of what he said, and it is not the Claimants’ case that the staff knew what each client cost and specifically those with extra care charges applied to them. This was a criticism going nowhere in terms of advancing the Claimants’ case.

Mr Chancellor brought up the subject of specialling in the interview and within his Police statement he set out an unequivocal view that also saw any charge for extra care as justified only if linked to a patient having had some form of “ episode”. He said that he “personally was only aware of one person having an Extra care charge applied to them and that was a patient named NH she was at the unit she was in subject to four to one specialling (and the PCT charged £16-£18 thousand pounds a week)”.

He continued

“I have made my view on 'specialling' very clear however I will reiterate that if felt someone needed an extra custodial presence to get them through whatever episode or problems they were dealing with they would get it. It may however take a diversionary tactic like, taking somebody shopping, whatever it took.

This extra presence ultimately requires extra staff or resources could incur an extra cost but only for the time it was required. In these cases there is no difference in my view between ‘specialling and extra care’ it's simply the wording.

I have been asked about PCT's being charged extra care and double extra care for extended periods. I would personally find great difficulty in justifying that. Great difficulty. I would from experience expect that situation to be challenged and certainly I would expect any such ‘extra care’ to be properly documented,

From a clinical point of view if someone was under that level of 'extra care or specialling' for a whole month you'd want a clinical review of their care, because something's not right. Either they're that distressed or that disturbed that they must be in the wrong place or something's not working.

An episode of that length is something extraordinary.”

Mr Chancellor was equally forthright on the issue of charging whilst a patient was not at the hospital. He stated that;

“For someone on extra care as I understand it and have described it in this statement to be given periods of unescorted home leave is absolutely outrageous. The very nature of extra care and specialling is that the client is in a period of distress, a danger to themselves or someone else.

You don't send them on leave and still charge for that level of extra care. That would be a complete no no.

I can't in any event think of a clinical benefit in sending somebody on leave under those circumstances.”

In his summary to the CPS DS Brownsell noted that Mr Chancellor recruited the Claimants to assist in the run up to the opening and subsequent management of the hospital and that he was still running the Kelling Park site. He effectively devolved a great portion of the work in getting the Cawston Park site up and running and became exhausted. Mr Chancellor also stated that he brought from Kelling Park an ethos of patient care that included how he and his staff would deal with acutely distressed mentally ill patients. He insisted on the setting up of the hospital and that the word “specialling” was replaced with another term. He believed that Mark Deveney, the Claimants and Simon Barker came up with the term “extra care”. DS Brownsell stated “He has stated that there is no difference between extra care and specialling other than the wording”. In the interview the exchange was as follows;

DS Brownsell was not challenged on his analysis in the summary but having considered it carefully and also in light of his cross-examination it is my view that it is a fair precis of the interview and statement. I find that there was no deliberate distortion or manipulation.

Significantly, after he provided a statement, but before the trial Mr Chancellor was made a co-defendant in the civil claim brought in the High Court Chancery Division by the company against the Claimants and Simon Barker. The Particulars of Claim are dated 17^th October 2007 and the sum sought as damages was over £12.5 million. The allegation was that there were breach of warranties in relation to the sale agreement of 25^th May 2005 by reason of the extra care charges. Objectively, this gave Mr Chancellor a very strong personal incentive to defend the extra charge process.

In his witness statement in this action Mr Chancellor stated;

“With the trial looming I received a witness notice from DC Baker…I thought it best to see my solicitor, Malcolm Savoury, to ask general questions about the trial process and what to expect when giving evidence. It was at this point that I properly looked at my statement and realised how open to misinterpretation it was in several aspects. A clarifying statement was prepared which I felt resolved any confusion.”

The lengthy statement of clarification is dated 22^nd April 2009. The trial had started on 20^th April and during his evidence Mr Chancellor confirmed that he only produced his “clarification statement” during the trial and never provided a copy at an earlier stage. I reject as matter of fact that when Mr Chancellor spoke to DC Baker during the run up to the trial that DC Baker was dismissive and appeared irritated and I view as misconceived the rather curious suggestion that DC Baker somehow sought to supress a clarifying statement that he had not seen (and it appears was not yet even produced) by telling Mr Chancellor to attend Court.

The clarification statement is markedly different from the police statement. It contains the following extracts in relation to extra care:

“I have no recollection of when the term extra care was adopted. I think we were struggling how to describe how we would charge for those patients who we assessed would consume greater resources that the ‘average’ patient. Someone came up with the idea of calling it a charge for the extra care that such patients would require the company to provide.

One important difference from the operation at Kelling, was that there was no concept of a prescribed basic charge for a secure mental hospital. So the company’s basic charge was very much based on what other private institutions were charging and then charging a bit less. However, all the other private sector hospitals were charging, in addition, to a basic rate a charge for specialling, as required.

I think to some extent we were able to include a charge for some of the services we provided at Kelling i.e. the extra accommodation services for want of a better phrase, within the basic charge but we needed to provide a top up fee in respect of the most demanding patients. Exactly how this evolved is unclear to me as I was not actively involved in operations at Cawston at any time and had no involvement at all from February 2004 onwards. All I can recall is that Mark Devaney undertook the initial assessments and from that a fee structure was offered to the referring PCT that would be reviewed in line with the patient’s progress.

Having participated in the initial discussions and explained how things were done at Kelling, I left Andrew Breeze, Dominic Wilson and Mark Deveney to implement the strategy.”

In relation to his statement that staff would not necessarily know what each client

Mr Chancellor stated that in relation to his comment in his police statement that

“In a financial sense this is what I would regard as a justifiable extra care charge...”

applied to a specialling regime and that

“It does not apply to the charging regime that operated at Kelling or that I intended should operate at Cawston Park. That, quite deliberately, was more broad brush and was certainly not intended to be a charge made in respect of specific episodes after they had occurred.”

In relation to his statement that there was no difference between specialling and extra care apart from the wording;

“I think this passage could be misconstrued and needs some clarification. At a high level financial level there may be no practical difference between the allocation of additional resources under a specialling system and an extra care system save the name that is given to the system However, for the reasons I have given in my statement, and above, there are significant differences between the two approaches, both in a Clinical sense and in the way in which the service is charged. At a clinical level specialling was about the abandonment of clinical intervention and the imposition of a regime of physically controlling the patients’ behaviour, whereas the Extra Care approach was about applying extra clinical resources to the most demanding patients. At a charging level, there was a conscious disconnection between the decision to apply an Extra Care charge - which was based on a risk assessment, and the decision to deploy particular resources - which was based on actual clinical need.”

In relation to his comments about charging for double extra care and also when patients were on leave he stated;

“I am obviously in no position to comment on specific cases of charges for Extra Care at Cawston as I was not personally involved in any of those decisions. However, on reflection I don’t think I can fairly suggest that Extra Care charges were only justifiable in respect of ad hoc exceptional events and that I would not expect an Extra Care charge to continue for longer than a month. The system established at Kelling involved, as I have made clear in my statement at page [7], an assessment of the patient at the admission stage and was reviewed every three months. So if the Kelling model had been replicated at Cawston then the minimum period of Extra Care charge would have been three months. It follows that it might have been the case that a patient might have been given home leave at a time when they were subject to an Extra Care charge. The central point is that the Extra Care charge was not trying to replicate charges for specialling; it was an individually negotiated fee charged in respect of patients who, on assessment, presented a probability that they would absorb greater resources. In essence it was a way of charging more for the more challenging patients.”

The investigating officers did not have this very significant clarifying statement. Had Mr Chancellor said what he said in the clarifying statement when he was interviewed or within his police statement then the investigating officers and in particular DS Brownsell could be seriously criticised for not recognising its importance and referring to it in the summary. However he did not and the statement goes far beyond clarification of what was previously a damaging statement for the Claimants. It was the view of Prosecuting Counsel that his evidence at trial undermined a central part of the case and that he was a witness whose evidence changed from that set out in his statement. As he set out in his advice of 12^th June 2009;

“Tony Chancellor described extra care as a legitimate charging mechanism applying to those patients who genuinely consumed more resources. He emphasised that extra care did not necessarily involve an additional expense for the hospital rather it reflected an additional allocation of existing resources. This was at odds with the description he gave in his statement. Not only did he validate the concept of extra care but he also gave evidence that the patients who needed extra care received it. He went on to say that he did not consider that nursing staff would necessarily appreciate that a patient they were caring for was in receipt of extra care. This undermined a central part of our case in which we had sought to rely upon the absence of staff knowledge of extra care as evidence that it was not being delivered.”

I found Mr Chancellor to be a witness whose account I could not rely upon in some material aspects. In particular I am satisfied that his recent comments about oppression are an excuse for what amounted to a very significant volte face. I reject as simply untruthful his explanation during cross examination of what he said to DS Frost and DS Fernandes as sarcasm and irony. He simply could not explain why he did not criticise either DC Baker or DS Brownsell when he had the opportunity to do so within what he knew was an investigation of a complaint, but was then very critical of them in his witness statement in this action.

I do not need to make specific findings about why Mr Chancellor changed his evidence so markedly save that I am satisfied that it was not because there was anything improper or inappropriate about the interview or statement making process.

Between 2002 and 2007 Mr Bull was employed by Lloyds Development Capital (“LDC”), an equity arm of Lloyds Bank. LDC was approached by a firm of accountants in Norwich to fund a management buy-out of Chancellor Care Limited and agreed to do so. The deal was completed in May 2005 and he became a director on the board of directors alongside David Prior (Chairman) and the Claimants.

Mr Bull stated in his witness statement for this action (signed on 19^th May 2016) that LDC considered the company to be a health care company with a difference and that

“…It was made clear to us right from our initial assessment of this proposal that the hospital did not operate the commonly used nursing practise of one to one nursing or specialling as it was known. We were told of research that demonstrated that specialling was detrimental to patient care. We were also told that the therapeutic community approach as adapted by Chancellor Care since 1999 had much greater clinical benefits for patients.”

Mr Bull also stated within the statement that LDC had instructed PwC to carry out due diligence into the company and that;

“The due diligence process took several weeks following which PWC produced a report of over 300 pages. Chancellor Care Limited’s alternative to specialling provided for the more difficult patients to have access to generally higher quality staff and more attention, albeit not on an oppressive basis. This led to a tiered charging structure to the PCTs whereby a patient either attracted just the core charge or the core charge plus an additional charge which was known as “extra care”. Extra care was mentioned over one hundred times within the PwC report. No attempt had been made by the management buyers to hide or distort extra care and any such attempt to have done so would have been fruitless, bearing in mind the depth with which PWC investigated. PWC expressed no qualms or concerns with the concept of extra care.”

As regards the PWC report Mr Bull conceded in cross-examination that it was compiled on the basis of such documents that were then available and that he had set out in his police statement that;

“I don’t know the level of detail that the PwC team went into when they looked at extra care but they did compare the fees that Chancellor charged compared to both independent and NHS facilities and did not conclude the Chancellor's charges were unusually high.”

In his Police statement Mr Bull stated that;

“Prior to the investigation my understanding of extra care is exactly what it says in the (PwC) report in that “patients tended to have been specialled and therefore were particularly difficult patients who responded well in our conditions. I was also told that it was a clinical decision. In my mind it reflected the patient group we took in.”

And

“My understanding was that “extra care” was effectively a risk premium for the most acutely ill patients. What I couldn't do was carry out an audit trail on an individual patient on “extra care” what was delivered for these services. What was clear to us was “extra care” was quite an important part of the business pre LDC coming in but the business plan going forward less important. This was partly because it looked like the market would change with the PCTs were looking for an all inclusive price and there was more competition. At board meetings there was never any discussion of the amount of patients on extra care needed to achieve budget.”

Mr Bull stated that in early 2006 discussions took place at board level with regard to LDC realising their investment by way of selling the business. Another firm of accountants Deloitte was brought in to advise the board on a potential sale and they valued the business at approximately £55 million based on the existing and future profitability of the business. LDC moved to put a plan in place whereby the sale could take place in around May 2007. In his Police statement Mr Bull had set out that

“At the time of the MBO (the Claimants) intended to run the business for a further five years before selling it but their thinking changed when they realised that the prices being paid for healthcare businesses were at an all time high and there was a strong possibility that they could make a very large capital gain after a relatively short period of time.”

Mr Bull explained that in November 2006, a “bomb” which “ultimately ruined the business”, was dropped on AD Care Limited by way of the police investigation into Cawston Park and also that:

“Shortly after the arrests, I was contacted by telephone by a police officer by the name of Brownsell. I remember this particular conversation for its duration, I was outside the railway station at Norwich, walking backwards and forwards in front of the station building. He made it very clear to me that fraud had been taking place within the company and I was left in no doubt that this officer considered the accused were guilty and would definitely be going to court.”

Following a complaint by Mr Breeze that DS Brownsell had made an unprofessional comment to Mr Bull before (and not, as Mr Bull set out in his statement, after) his arrest that the case was going to Court (the complaint being that this was before he had been charged or informed that he was to be charged and that this comment led directly to his dismissal) an e-mail was sent by Mr Bull to Mr Fernandes on 22^nd October 2009.

“I would make the following comments in respect to the issues you have raised: as far as I can recall at no point did DS Brownsell advise me the case was going to court. My understanding of the process was that the CPS was the body that would make the decision on whether the case would come to court and there was no contact between the CPS and LDC. With regard to the reasons for Mr Breeze’s dismissal it was not as a result of his arrest.”

Mr Bull stated that the e-mail was “purportedly” sent by him but in fact was drafted by Nick Bacon at LDC and a legal advisor Toby Starr of Starr Legal and was sent due to desire not to get into a protracted dispute. It is a rather remarkable assertion that the compliance officer of LDC (as Mr Bacon was) and a lawyer deliberately sent what on Mr Bull’s evidence in his witness statement in this action was, a wholly false and misleading e-mail.

Mr Bull also set out in his witness statement that over the following weeks after the arrests he believes that he was visited at least twice by DS Brownsell and another officer who he believed was called Baker. He said that his two “lingering recollections” of the statement process were firstly that the officers took a disproportionate interest in anything that could possibly give a positive slant to the prosecution or a negative slant to the accused (one example being the fact that the company had changed its name) and, secondly, that the officers failed to understand even some of the most basic financial or business detail and that it appeared that they had made-up their minds about what had happened and were disinterested in his explanations. Mr Bull stated at paragraph 11. that:

“LDC were left in no doubt by these officers that if we wished to protect our investment in A D Care Limited, it would be beneficial if Andrew and Dominic were removed from the business. I cannot remember the specific words used but there was definitely a strong intimation from the police that us removing Andrew and Dominic from their posts would be to our (LDC and the police’s) mutual benefit.”

Mr Bull said that this caused “considerable internal struggle” as no one believed the accusations against the Claimants but due to the need to protect LDC’s investments a decision had to be taken that they should be suspended. LDC promoted Richard McKenzie to run the business, (I have already set out Mr McKenzie’s comments about extra care) alongside an interim financial director John Greenhalgh and an non-executive director Lesley Reardon-Denton. Mr Bull explained in his witness statement that;

“A report was requisitioned by Christopher Hird from which LDC were able to contend that Andrew and Dominic had not kept a robust audit trail for extra care and had put their co-directors in a position whereby they too could be arrested. The official reason for their dismissals was therefore incompetence.

However, the reality was that they were dismissed because of the ongoing police investigation and the certainty in our minds, by reason of what the police officers had said, that this matter was going to trial which would have been disastrous for the business and hence LDC’s investment. As stated above, this caused me a significant degree of personal anguish…”

Mr Bull described the Claimants’ dismissal for incompetence as “a somewhat engineered reason” and that they were dismissed because of “the damage done to the business, and hence LDC’s investment caused by the police investigation” and that the reason of incompetence was used to expedite them leaving the business.

Mr Bull stated that within the Police statement making process he made it clear that he did not think that there was any fraud at Cawston Park and three matters pointed away from any offence; specially that;

Mr Bull recollected making “several amendments” to the draft statement before he was satisfied that the statement reflected what he had said to the police. He conceded during cross -examination that he had been given a clear warning that he must carefully check his statement and ensure that it was accurate.

The Claimants’ pleaded case is that;

“On or around the 25th of September 2007, the claimants were formally dismissed from their positions by Leslie Denton on behalf of LDC because of the pending allegations against them. This was as a direct result of the Defendants officers telling the companies to carry out this action to protect their investment…”

Mr Breeze stated within his witness statement that:

“Shortly after the arrest of myself and Dominic, DS Brownsell and DC Baker suggested to LDC that if LDC wished to protect their investment in AD Care it would be beneficial if Dominic and myself were to leave the business. As a result of this Anthony informed us that we could either recuse ourselves or be dismissed.”

It was Mr Breeze’s evidence that LDC suspended him on the advice of Police officers (as opposed to the company’s own lawyers) and dismissed him as a result of an engineered report (the report of Mr Hird). In arriving at this view Mr Breeze would have relied on what he was told by Mr Bull (Mr Bull stated he had explained matters to Mr Breeze in May 2007 at a meeting at a hotel).

Having carefully considered Mr Bull’s oral evidence, his statements and the interview transcript I formed the view Mr Bull was far from an accurate or reliable historian. I also have doubts that he was truthful in what he said to Mr Breeze in relation to the need to take action in respect of his involvement with the company.

Mr Bull accepted that he was not interviewed by DS Brownsell as he has set out in his witness statement for this action ( he was interviewed by DC Flynn and DC Baker). He was then taken in cross-examination to the transcript of the interview and it was suggested that there was nothing unusual in the questions asked by the officers about the history or value of the company. He was specifically taken to the limited questions about the new company post buy-out and he could not explain how this displayed “a disproportionate interest” and/or “excited them”. He conceded that his comments were not a fair criticism.

Mr Bull was also unable to explain his assertion that the officers appeared to have made their minds up about what had happened and were disinterested in his explanations.

As for his comments (at paragraph 11 of his witness statement compiled for this action) that LDC were left in no doubt by the interviewing officers that if LDC wished to protect its investment, it would be beneficial if Andrew and Dominic were removed from the business, he said that he could not remember words but it was a “strong intimation”; not just given during the interview but in conversations after the interview. However when the interview (the relevant parts of which were played) was put to him it was inconsistent with what Mr Bull said in his witness statement for this action. He referred in the interview to DLA Piper, which was already acting for the company acting for the Claimants and no reference to conversations with any officer and said;

“I then raised the issue of conflict with them straight away because you could see a scenario that basically the directors had been arguing one thing…And the company's interest was clearly very different. Have this argument with them for at least the first two or three weeks. They basically saying that the company's interest would be prejudiced if they are not the same as the individuals, but they saw the company, companies guiding mind being Breeze (and Wilson) whereas LDC are saying forget them, you know , innocent, guilty, we don't care we have a business to run now and the interest of the business you know, we have to act in the best interest of the business so we basically split from DLA. ”

And

“…As of the raid, Breeze and Wilson, basically got them out of the business. Em they are voluntarily out of the business. The reason why, you know, it's not in the best interest of the company if they're running the business…If there was a way, without saying there was a way to sack them that we would, because it cannot be in the interest of the company those guys coming back.”

And

“When they were out of the business, the board majority…Thought we need to instruct…because there were all sorts of things coming out there which are things like the PwC report. You know you guys asked us to disclose that. I have no issue in disclosing it, DLA sort of were giving the view “well it may not be in the best interests of Andrew and Dominic to disclose it…And I'm saying well bluntly “I don't give a…”. Exactly so em it was clear that there was going to be conflict in certain areas and that, you know, the companies interest may, may diverge quite radically.”

Mr Bull then continued within the interview to indicate that there was a loss of confidence in Mr Breeze in any event i.e. separate to the investigation. He said that he had a meeting with the Claimants and

“em I said I didn't have confidence in the way the business was run. It was clearly clear that David didn't either…And something had to change and I thought that something was Andrew should step down from the chief exec role. He asked me to think long and hard about it…and then to be honest we got overtaken by events…you know we couldn't be removing him whilst, so you know, all other investigation is going on. So I think you know, had your investigation been 8 weeks later Breeze would not have been chief exec…I don't know whether he would still have been in the business because I felt he still had a role to play…”

Having considered the transcript Mr Bull conceded that paragraph11 of his witness statement in this action was wrong and unfair.

In my judgment the assertion that the Claimants were dismissed not only because of the ongoing police investigation but because of “the certainty in our minds, by reason of what the police officers had said, that this matter was going to trial” is not supported by what he said in the interview.

In my judgment it is highly likely (given the other involvement of LDC’s legal advisors following knowledge of an investigation) that steps taken in relation to the Claimants (including the commissioning of an independent report) were carefully thought through and the suspensions and/or dismissals of the Claimants were not knee jerk, or even direct reactions to any “certain” belief that the case would proceed to trial.

Mr Bull could also not point out where he had made the three points which he said that he tried to make during the taking of his witness statement. He stated that he could not remember if this was during the interview or not.

Mr Bull did remain firm in his evidence that an officer had telephoned him and that he was left in no doubt that the matter would be going to court; although he stated that this was after the arrests of the Claimants. Having heard DS Brownsell’s evidence on this issue (that he would definitely not have said the matter was going to court as that was the decision of the CPS) I prefer it to that of Mr Bull. I find that he did not make such an explicit and certain comment.

In relation to extra care Mr Bull was taken to the following exchange;

In respect of the “engineering” of reasons for dismissal Mr Bull stated during his oral evidence that he had no concerns about the independence or expertise of Mr Hird who was the external healthcare expert who was commissioned to prepare a report. He said that he believed that they asked for a hard hitting report and that he did not believe that the Board went into the exercise with the view of dismissing the executives. This conflicted with the belief of Mr Breeze that it was some form of conspiracy using a non-independent expert.

In any event it was the Board that commissioned the report and there was no suggestion by Mr Bull that the content of Mr Hird’s was deliberately misleading, false or dishonest. In my judgment this content of the report, which was critical of the Claimants was accurately summarised by DS Brownsell within his summary (and it has not been suggested otherwise).

DS Brownsell made reference to Mr Bull’s evidence in the summary in relation to the profits made before the buyout (Mr Breeze made about £1.2 million which he reinvested in the new company receiving a share of 29.4% and Mr Wilson also reinvested receiving the same share. Dr Barker did not reinvest his profit). At first blush this conflicts with the suggestion that neither of the Claimants made any money from the buyout.

DS Brownsell was not cross-examined in relation to the relevant extracts of the summary; but I note that he did not make reference to either Mr Bull’s comments about extra care which were not favourable to the Claimants or his statement that he believed that it was a risk premium which was favourable. In my view those matters should have been included, but their omission was not down to a deliberate attempt to mislead. In any event in his advice note Mr Tarrant stated of Mr Bull that;

“He understood extra care is one to one nursing support but told by Breeze, Wilson, Chancellor and Barker that specialling is destructive. His understanding was that “extra care” was effectively a risk premium for the most acutely ill patients; important parts of business pre LDC but business plan going forward less important as PCTs were looking for an all inclusive price (654).”

And in respect of Mr Breeze

“…First meeting was with Breeze and Wilson and v impressed. It was clear to Bull that the main motivation of Breeze was to improve lives that were blighted by mental illness and hoped to use money to rebuild a hospital in India where he had been born.”

And Mr Bull’s view of Mr Wilson

“very intelligent and able but a little too confident in his abilities.”

So although DS Brownsell made only a limited reference to Mr Bull in the summary it is clear that Mr Tarrant considered the witness statement which it appears was page 654 in the bundle accompanying the advice.

Mr Drewery worked at Cawston Park from August 2003 until May 2007, initially in security and then as a support worker as he had a wider interest in arts and crafts, painting and modelling. He lived on site with his wife who was also the activities manager. Mr Drewery is not a mental health nurse (as he described it not a “person with keys”) but worked as support worker spend time with the patients including doing various activities including arts and crafts work and swimming. In his questionnaire he also referred to the mechanical workshop vehicle maintenance, fishing trips and breakfast and lunch trips and a range of other activities.

Mr Drewery recalled being interviewed (probably on 14^th December 2006) by two officers and in his witness statement for this action stated:

“I informed (the officers) what a fantastic facility (Cawston Park) was for patients and how I believe the care was second to none. In particular I was questioned about Andrew Breeze. I told them he was an excellent manager who put the patients first and was always looking to have the best possible care provided for them. I went on to inform them that Andrew, although being the chief executive, was constantly around the hospital and knew all the patients and staff by name. He took a keen interest in the patient's care and treatment and for a long period of time he lived on the hospital site… all of the staff that lived on the site were aware they could be called upon at any time if there was a problem with any of the patients. I myself was called out on many occasions and I witnessed others assisting we were all keen to respond.”

Mr Drewery also stated that Mark Deveney’s relationship with Andrew Breeze had been deteriorating as Deveney’s consumption of alcohol increased and his attitude to work changed. He was aware that he was setting up a rival facility and attempting to poach staff for the new venture. Mr Drewery said that it dawned on him that the police were losing interest in what he was saying about Mark Deveney and they stopped taking notes. He stated:

“They also appeared disappointed when I said positive things about the hospital and its management and negative things about Mark Deveney and the few members of staff who were his supporters.”

Mr Drewery said that during his interview staffing levels were a theme and the police returned to it “time and again” and he got the impression that they were desperate for him to say that there were too few staff. However that was not his view and he told them so.

As for extra care he stated:

“Another theme the police dwelt on was what I understood by the term extra care and who was receiving it and how this was linked to what was charged for the patient to be in the hospital. I told the police that I was completely unaware of how much it costs to keep a patient at Cawston Park Hospital. I also told them that I had not heard the term “extra care” before, other than the extra care suite…however I did explain that there were a group of patients who were extremely difficult to manage because of the severity of their illness and this group certainly took up more staff time as they required more input than others. I was one of the members of staff who spent more of my time with these patients. I named some of the patients I was talking about who I had observed to take up more staff time. I had written their names down on the questionnaire that all staff had been sent by police. The police appeared to be unhappy with the explanation that some patients got more than others and seemed to just dismiss it. I even gave examples of how particular patients took up more staff time.”

Mr Warnock KC pointed out that Mr Drewery filled in a questionnaire after the interview (on 17^th February 2007) and not before it. In the questionnaire he set out that he had never heard of the term “extra care”, but felt that the hospital was set up to treat patients in a very different and special way and that they had had a lot of success with very difficult people.

Mr Drewery said that after the interview he was told by the officers that they would go away and write up a statement for him to sign; but this did not happen. He telephoned the police and they said that it would happen in due course but he never heard from them again. He stated that he was:

“very angry because I believed I had something to offer the investigation.”

He added that on reflection he felt that the police did not return his statement because he did not say what they wanted to hear and they had made their minds up that fraud had occurred.

Mr Drewery’s wife was Ms Jean Johnson who was the activities manager so effectively his superior. The Police did take a statement from her (and her statement is referred to within the summary).

A draft but unsigned statement was prepared by DLA Piper. Within it Mr Drewery stated:

“I didn't know anything about extra care in terms of a charge being applied to patients, but to my mind extra care was what you gave the patient when they needed it.”

This statement was not served. Rather within a letter of 1^st February 2008 to Mr Tarrant DLA made reference to information they had received from David Graham, Susan Smith, Hugh Arnail, Martin Ward and Stephen Drewery. The letter stated:

“We have become increasingly concerned about the manner in which the Norfolk Constabulary have conducted this investigation. In particular, a number of witnesses of fact who have evidence in support of our clients have either not been approached by the police, or more worryingly, having indicated their support (of the Claimants) have not been revisited in order for formal statements to be obtained.”

In respect of Mr Drewery it was stated that at the interview he gave positive evidence in support of the Claimants. It was also stated that he had completed a questionnaire which referred to patients whom he spent the most time attending to; “which our clients understand mirrors almost exactly those patients for whom extra care charges were made.”

It is the Claimants’ case that the failure of the investigating officers to obtain a signed statement from Mr Drewery was a deliberate step, because it was recognized that he would undermine the prosecution case and would support the Claimants’ defence.

It was not specifically put to DS Brownsell that the failure to obtain a statement from Mr Drewery was a deliberate and malicious attempt to supress helpful evidence. The DLA Piper letter was forwarded to him by Mr Tarrant for comment and he responded. In respect of Mr Drewery he stated that;

“Drewery was seen as part of the inquiry. He had initially completed a questionnaire saying how brilliant Cawston Park was this will be sent to you. The main thrust of why we went to see Drewery was because of information received from Deveney. It was suggested that Breeze had a camper van worth about £40,000. This was not declared as part of the restraint proceedings. We knew from memory that there was one at Cawston Park so officers from the inquiry team went to have a look. As it turned out it was only an old camper van that Drewery lived in. It was also suggested that Stephen Demicoli had had a conversation with Drewery in which Drewery had said that Breeze was trying to sell his deposit on his flat in Norwich obviously contrary to the restraint. Drewery denied this conversation took place. Whilst there DC Henley and DC Horsborough took some notes regarding the general situation at Cawston Park. Drewery didn't have anything from our perspective, evidential to the inquiry other than Andrew breeze was a jolly good fellow. Mark Deveney was not. The patients were treated superbly; they got Easter eggs at Easter and Christmas presents at Christmas. He didn't like Leslie Reardon and Richard McKenzie. Drewery took patients out in the grounds and on trips. Drewery is the partner of Jean Johnstone. She was head of activities and very much supportive of Breeze and Wilson. A statement has been recorded from her.”

And

“It is of note that we sent out 259 questionnaires to Cawston Park staff past and present. We had 192 responses. Of those 10 gave positive feedback about Cawston Park (Including Drewery). From those 10 we have recorded 2 statements. I think it's fair to reflect that we have not recorded statements from every negative reply we received from the questionnaires. We still continue to record statements from staff… as (DLA Piper) have alluded to “positive” positions adopted by ex staff they have not been followed up by the enquiry team I will send to you copies of the 10 positive questionnaires to assist you with the decision making process.”

It is also of relevance that within the summary DS Brownsell gave the following precis of the statement of Jean Johnson which he described as “very supportive” of the Claimants;

“Jean Johnstone, the activities manager has said that a lot of time is spent taking patients off site or on trips to their homes, even if their home is a long distance away. She classes this as “extra care”. She has also spoken of a time when the hospital paid for a patient’s family from Shrewsbury to travel and stay overnight in a local bed and breakfast to see the patient. This is also what she classes as extra care. She has described at length the activities available to patients and has stated that she has always found the management were very supportive and open towards her. The exception being Mark Deveney whom she says undermined her position. She states that when Deveney was sacked, things got better. She states that Breeze instructed that's activities were to be focused on more an encouraged and she now believes that the activities are a major contributing factor within the recovery of patients at Cawston Park.”

I pause to observe that this is an example of the summary fairly setting out matters supportive of the Claimants case and not “ignoring” any such evidence.

Having heard DS Brownsell it is my judgment that it is likely that the response to Mr Tarrant constituted his honestly held view of the relative lack of importance of Mr Drewery (who was not a nurse). I also find that, in the full circumstances, it was a reasonable view with which few investigating officers would disagree. DS Brownsell had already fairly set out details of the “very supportive” statement of Mr Drewery’s wife and the activities manager. It was part of DS Brownsell’s background rationale that Mr Drewery had no knowledge of extra care. As Mr Tarrant stated in his review note

“DLA Piper…has accused the officers of failing to pursue lines of enquiry that will exonerate, as distinct from implicate, the accused. In particular it is asserted that, although a signed questionnaire was obtained from one “favourable” witness, no witness statement has been obtained. The signed questionnaire from that witness and other witnesses who give evidence “in favour” of the accused have been forwarded to this office and considered. These questionaires contend that the hospital was run efficiently and that some of the patients made a good recovery. However these potential witnesses cannot assist on the vital issue, namely what “extra care” did such patients receive compared to other patients and why was such extra care billed on a weekly or monthly basis rather than a one off daily basis?”

Every enquiry must have a boundary and time and resources are not limitless. As DS Brownsell stated there were 192 questionnaire responses. Although Mr Drewery (who as he conceded, had no experience of other hospitals) was strongly supportive of Mr Breeze from the perspective of a support worker, and this was known from the questionnaire response, I do not find that the failure to take a statement was in any way due to malicious or improper motives. It is also my view that had a statement been taken it is highly unlikely that it would have had any significant effect upon Mr Tarrant’s view that charges were justified.

Mr Bott KC was leading Counsel for the defence at trial. He stated that there were more than 20,000 pages of served material as evidence in the case and he did not have any of it when compiling a note in 2014 (five years post trial) for the Claimants’ solicitors (his statement was only signed in 2024). He was able to use notes from his professional diary that showed who gave evidence on what day and that refreshed his memory to a degree and that:

“It enables me to say why I thought the case failed…but I do not pretend to have a detailed recollection of the course of the evidence or of all the issues that arose.”

In my judgment this was obviously a fair and accurate comment.

In his witness statement Mr Bott KC stated that in the days prior to the acquittal it had become increasingly clear that the Prosecution’s case was misconceived. He had questioned the Prosecution on whether the evidence could realistically support the indictment in its present or any amended form. I observe at this stage that the decision to have a single count on the indictment struck me at the outset of my consideration of this case as a curious and questionable one on the basis of the prosecution case before trial. Ordinarily I would have expected counts in relation to specific patients and/or PCTs and also counts in relation to specific alleged aspects of the fraud such as double charging and charging when patients were on leave. Mr Bott KC agreed with this view.

Mr Bott KC set out his view that the Prosecution’s decision to base the case around the evidence of Mark Deveney was one that he found hard to understand given the issues surrounding his credibility and given that he had a motive to damage or discredit the Claimants. He stated;

“The investigation never confronted this central issue and appeared keen at times to obscure it.”

However Mr Bott KC was not privy to the information and analysis of the investigating officers and in my judgment, probably because he was solely concerned with the position by the time of the trial, he conflated the work of the investigating officers with the work of the CPS. It is simply not correct to say that the investigating officers did not confront what they knew to be the credibility issues faced by Mr Deveney and in cross examination he agreed that the concerns of the investigating officers were brought to the attention of the CPS. Mr Bott KC also referred to the documents disclosed before trial concerning Mr Deveney's issues whilst working at another establishment after he left the employment of the Claimants. These issues were not known at the time DS Brownsell drafted the summary for the CPS (but the information was supplied subsequently by DC Horsburgh).

Mr Bott KC described the Prosecution case as, at times, painfully simplistic and the central theme that extra care was being charged for but not supplied had a number of obvious problems; most obviously that it neither meant nor could realistically mean what Deveney and the Crown suggested at trial. He stated that:

“It arose from a principled objection to the widespread alternative of “specialling” and applying extra nurses to difficult patients and charging for them. Tony Chancellor (a prosecution witness and the founder father of Cawston Park, whose philosophy underlay the structures of the hospital) and Dr Simon Barker (the principal psychiatrist) both said that “specialling” was counterproductive in therapeutic terms but was used elsewhere because it enabled very high charges to be made for some patients. Cawston Park used the concept of “extra care” because it avoided the use of specialing but allowed the hospital to charge PCT’s at a commercially sustainable level. Some PCT witnesses plainly understood this. Others professed not to and said they thought it was another form of specialing - but it made no sense to charge for the specific, additional manpower because of the way it was levied and the balance of evidence failed to support Deveney’s contention that the charges were inherently deceptive.”

Mr Bott KC referred to the evidence of Mr Chancellor; but in my view his overview (and indeed the progress of the case) would have been different had Mr Chancellor given evidence in line with the statements he provided to the police (and upon which the police summary to the CPS was in part based). In cross examination Mr Bott KC conceded that there were unfortunate ambiguities in the definition of extra care; but in his view it was not remotely tenable that this was a fraud although he had recognised that “some PCT witnesses professed” not to understand the basis for the extra care charge.

Mr Bott KC also referred to the defence embarking upon an exercise of looking at the clinical histories of patients who had been on extra care which;

“For some reason formed no part of the investigation or so I thought at the time of the trial and when compiling my note in 2014. I am now given to understand Dr Simon Barker have provided this information in an interview to the police, but the information was not provided in his statement.”

Unfortunately, the information given to Mr Bott KC was not correct. The police did put the details in Dr Barker's statement; but he took the details out. Also the Prosecution instructed an expert to review sample cases.

Mr Bott KC described the evidence in relation to clinical standards and low staffing numbers as “clumsy”. He also stated that;

“…As I remember it, staff who had commented favourably about the standards at the hospital had been ignored in the enquiry whilst those with criticisms had been asked to provide detailed statements and give evidence. Some of these people were in no position to give reliable professional opinions anyway.”

Mr Bott KC stated that he could not understand how those who were responsible for the investigation could have so fundamentally misunderstood the nature of extra care charges or why they were so determined to insist that the charges were fraudulent. He stated:

“The problem lay, in the large part, in the attitude of the police. Witnesses who tried to explain what was happening were ignored or the accounts misrepresented. Anything which contradicted Deveney or supported the position of the claimants was airbrushed out of the picture. Responsible witnesses got the impression that the idea was to do down Chancellor Care and that a conviction was needed for this purpose.”

and concluded by stating that:

“From an early stage of the case I thought there was something deeply unsatisfactory about the investigation which seems to me to have been tarnished by closed minds and a complete lack of objectivity.”

As I set out above Mr Bott KC recognized the limits of his recollection and having been fully immersed in the detailed history of the police inquiry I do not find that the generalised comment about ignoring those potential witnesses who had commented favourably is a fair or accurate one (given the full content of the summary and the fact that 182 questionnaires were not favourable and only 10 favourable, and the favourable ones were supplied to Mr Tarrant).

Mr Bott KC readily and very fairly conceded that his opinions were formed through “the echo Chamber” of the defence team. In my view the generalisations made are not supported by detailed analysis of the history of the investigation. Mr Bott KC conceded that he had limited material available to him five years after the trial but I view the comment that witnesses who tried to explain what was happening were “ignored or their accounts misrepresented” as somewhat unfortunate in the absence of any supporting detail i.e. who the witnesses were upon which this assertion rests, particularly given the seriousness of the allegation. An allegation of misrepresentation of witnesses was made on behalf of the Claimants in this case in respect of some witnesses but, as is set out at various points within this Judgment; in my judgment without any significant merit. It was pointed out in cross examination that even on the Claimant’s case only two witnesses were not interviewed; David Graham and Susan Smith.

Also it is difficult to see that the specific examples of witnesses who were “ignored” as relied on in this case by the Claimants would fall into the category of those who Mr Bott KC would have considered to be in a position to give a reliable professional opinion (by way of example Mr Drewery was not a mental health nurse; rather principally involved in craft and other activities).

In my view it is likely that when Mr Bott KC made these criticisms statement the echoes he heard in the Chamber were not all of his voice, rather he has adopted criticisms made by others.

I also view the comments that “anything which contradicted Deveney and supported the Claimants case was airbrushed out of the picture” as, on any reasonable evaluation a surprising and unjustifiable comment.

Mr Bott KC chose his words carefully about the Prosecution legal team (as might be expected) but in my judgment it was clear that it was his view that Prosecuting Counsel were not on top of the case. He did not agree with Prosecuting Counsel’s analysis of why the case collapsed and specifically that a number of significant witnesses “all changed their evidence from their original witness statements; changes that could not reasonably have been foreseen”. However Mr Bott KC fairly conceded that in our adversarial system things may be seen from different perspectives.

Mr Bott KC stated that he had considered with care Elizabeth Bailey’s letter to Mr Breeze of 26^th July 2010 and that he believed that she was right to say that Mr Deveney’s evidence was neither “compelling or convincing” however he stated that he struggled (indeed he did not understand the meaning of) the suggestion that there were

“some factors which indicate dishonesty by both you and Mr. Wilson.”

He noted that she referred to a lack of understanding by staff of the extra care regime and the absence of any clear audit trail and stated that the nature of extra care charges, if they are properly understood, were not a matter for nursing staff to assess. If one refers back to the Police statement of Mr Chancellor, and also the evidence of staff it is in my view understandable how Ms Bailey reached the view that she did. It is unrealistic to view the history of the imposition and explanation/s (or more specifically lack of explanation) of extra care charge as immune from proper criticism as Mr Bott KC appears to suggest.

I attach limited weight to Mr Bott KC’s opinion (given the nature, extent and evolution of the investigation and also the comments made about Mr Deveney’s credibility issues to the CPS).

In re-examination Mr Bott KC made the criticism that the Police saw Mr Deveney as a genuine whistleblower and “swallowed it uncritically”. If this is married to his comment that the investigation was tarnished by closed minds and a complete lack of objectivity it sets out his belief that the Police formed a view early in the investigation that the Claimants were guilty. As an overview this is contrary to the Claimants’ case that the Police knew that the Claimants were not guilty of fraud and, more significantly, there was no hint of such a suggestion in anything that Mr Bott KC said.

Ms Gaisford worked for Chancellor Care at Cawston Park from November 2003 to May 2008 in the role of communications manager (having initially been the PA to Dr Barker). Prior to this she was the PA to Mr Chancellor.

She described her general day-to-day duties as administrative and that she was the member of staff on site who was in charge of, and knew most about, the organisation’s computer system.

In her police statement Ms Gaisford stated:

“A few months after opening the first unit at Cawston Park we admitted some patients who were high risk, more challenging than other patients, very demanding, sometimes violent and it was agreed that the number of staff on each shift would need to be increased in order for these patients to receive the care they needed. There were several meetings between Tony, Andrew, Dominic and Mark to discuss different options; I was present at a preliminary discussion. This was prior to the management buyout in 2004. The directors did not want to go down the same route as the NHS and many private hospitals by providing one to one care called specialling…I know there were a few meetings I did not attend where the subject was discussed further…

I was not present when or if a final definition of “Extra Care" was produced however my understanding is that you need enough staff present on each shift to provide effective care for all the patients including the more demanding patients without resorting to a "permanent" (custodial type) extra presence. All the patients referred to Cawston Park were assessed before admission, the assessment report and contract were sent to each referrer stating the level of risk the patient was presenting and the level of extra care needed to manage that risk, patients were admitted after the contract was agreed. We also gave non clinical staff like Phil Spinks the grounds man basic training in mental health and engagement with patients so that it he could interact with patients during activities such as gardening and caring for the livestock.”

These extracts were clearly supportive of, and consistent with, the Claimants’ defence.

Ms Gaisford referred to the discovery that Mr Deveney was preparing to set up a business in the same industry and that she was called in to shut down the servers. She stated that she isolated Mark Deveney's computer and made a copy of everything and began to look through it to see if there was anything untoward. She found a business plan but also evidence that Mr Deveney was on the habit of visiting pornographic websites. She reported what she found to the directors and the original hard drive to his computer was, in due course, given to the lawyers DLA Piper.

Ms Gaisford also stated:

“when Mark left the company I understand that Simon (Barker) was then expected to sign clinical reports for all of his patients including those that received “extra care”. He refused to take that responsibility alone and Andrew's name also appeared on the report that went to the PCT's. Simon was not the only person I heard voice concerns over “extra care”. Gary Cooper had spoken of it before and when he left the company. He had taken responsibility for some of the clinical work after Mark’s departure, one of the things that Richard McKenzie did soon after starting work with the company was to recommend the practice of charging for extra care was stopped.”

And

“I have been asked my opinion and the problem that I can see with the old system is that it is difficult to audit or prove what care was provided for which patient.”

During cross-examination Ms Gaisford agreed that she was given every opportunity to say what she wanted to say about Mr Deveney.

In his summary DS Brownsell made no mention of the statement of Ms Gaisford and Mr Tarrant made no mention of her evidence in either of his Advice notes. I view this as a surprising omission. Because DS Brownsell was not cross-examined on the detailed content of the summary (he was not taken to this omission in context but it was pointed out that Ms Gaisford’s statement was supportive of the issue of extra care) he has given no explanation for its omission (and has been given no opportunity do so) – but the issue still arises as to whether this was because of a deliberate attempt to supress the evidence or mislead Mr Tarrant or a mistake. Having heard all the evidence and carefully considered this point I am not satisfied on balance that it was a deliberate attempt to suppress/mislead. However it was a mistake.

After the arrest of the Claimants in November 2006 Ms Gaisford was given the task of liaising with the investigating officers as they searched through Cawston Park’s computer records. She had frequent contact with the officers and most regularly dealt with DC Baker.

In her 2018 statement in this action Ms Gaisford recalled one conversation in January 2007 when DC Baker came to collect some documents. She stated that she asked him “where is the investigation going?” and that his response was

“I don’t know where this investigation is going. The problem we have is that the powers that be want a result on this one.”

She set out that she got the impression the superior officers wanted a result which meant pinning the blame on people that they had decided were guilty and

“From my perspective (DC Baker) and his superior officers had clearly made their mind up that Andrew and Dominic were guilty of committing fraud.”

On the 14^th October 2009 and after she had moved to Australia, Ms Gaisford was sent an e-mail by DS Frost who was investigating Mr Breeze’s complaint that DC Baker had made an unprofessional and inappropriate comment to her “that the powers that be want a result”. Ms Gaisford’s reply (by e-mail of 18^th October 2009), after she said that she gave the issue time it deserved was that

“…I cannot recall any discussion with Detective Constable Sean Baker clearly anymore but I have the impression that (he) was aware this was a very important case and that it was very important that no stone was left unturned. We discussed the investigation on several occasions…DC Baker was also the officer who conducted my interview. In all my dealings with DC Baker I found him to be helpful where he could be within the boundaries of professional conduct…I found the whole experience, the raid, investigation etc very stressful due to the final years in Zimbabwe which left me with a distrust of authority. Detective Constable Baker overcame this with his continuing professional manner and behaviour. I am sorry I am not able to be more conclusive or certain about our conversations but since the investigation I have been unwell and my memories of the last two years, before I fell ill tend to be general or impressions not details. I am glad to be fully recovered able to work again.”

The statement produced in 2018 (nine years later) in this action is very different in material aspects to the e-mail sent in 2009 in that it is critical of DC Baker and sets out a clear recollection of a conversation which she stated in 2009 that she could not remember. In her 2018 statement Ms Gaisford stated that she felt “put on the spot” by DS Frost’s request and at the time she was on medication and was suffering from PTSD and that she was fearful of the police generally and the response was “the path of least resistance”. In her oral evidence she also said that she was fearful that DC Baker could lose his job. However her e-mail response, which was sent after she had moved to Australia was sent four days after Mr Frost’s e-mail and she stated that she was fully recovered from ill health. It gave a full and balanced explanation which was not in any way critical of DC Baker; quite the reverse and there was no need for her to be so complimentary unless she felt it was justified.

In a further statement dated 27^th April 2023 Ms Gaisford covered the issue of the whereabouts of Mark Deveney's computer on the day of the police raid (14^th November 2006). She stated that she had a copy of the hard drive kept in a locked drawer in her desk and it was still there on the day of the police raid. She later provided a copy of the hard drive to DLA Piper (the Claimants’ solicitors) sometime after the raid, but the police had not asked about Mr Deveney’s computer on the day and

“…If they had, I could and would have very easily given them a copy of the whole of the hard drive, this would have included his assessments of patients prior to their arrival at Cawston Park.”

In her oral evidence Ms Gaisford stated that the police had been more interested in the server but that she had actually told them that they needed to look for Mr Deveney’s computer, but that they did not take it up further and just ignored what she said. This was very different to what she had set out in her witness statement and she agreed that this was the first time that she had mentioned actually telling the Police about the computer; over eighteen years after the event.

Having heard Ms Gaisford give oral evidence I formed the view that it was not possible to rely on what she set out in her statements in 2018 and 2023 in respect of the detail of DC Baker’s alleged comment or the raid. The 2009 e-mail was clear and I do not accept the reasons given for its content and she could also give no explanation as to why she was mentioning for the first time that she had told the police about Mr Deveney’s computer during evidence over eighteen years after the event. Also, there is the obvious point that if she had thought the matter important she could have taken the hard drive out of her drawer and given it to the Police.

It is distinctly possible in my view that as a result of exchanges with DC Baker Ms Gaisford formed the view that DC Baker believed that the Claimants were guilty (which is inconsistent with him having a view that he had no idea where the investigation was going) and that she passed her view on at the time and subsequently. However such a view does not materially advance the Claimant’s case which is that DC Baker and others had no honest belief in the Claimant’s guilt. Even if DC Baker had said that his superiors “wanted a result” such a statement would be consistent with senior officers expressing a view that given the evidence the case against the Claimants should proceed to trial (in line with Ms Gaisford’s belief that such senior officers had decided that they were guilty). It cannot realistically be seen as clear evidence that any such senior officers wanted a result even though it was appreciated that the Claimants had not committed any offence and/or that there was insufficient evidence to justify a prosecution. In any event without accurate detail and context any comment of the broad nature alleged is very far from the damaging admission which it has been portrayed as.

As for Mr Deveney’s computer it is in my view important to take into account the fact that at the time of the Police raid Mr Deveney had not worked at Cawston Park for over a year and the Police would have no reason to suspect that a copy of a hard drive had been retained unless told and in oral evidence Ms Gaisford said that she did not specifically say to the Police that she had a copy of the hard drive. The unsatisfactory evidence of Ms Gaisford fell very far short of supporting the pleaded allegation that the failure to seize Mr Deveney’s computer was a deliberate act of ignoring/supressing evidence.

Mr Cooper signed a witness statement for these proceedings on 9^th December 2015.

Given the Claimants’ case in relation to Mr Cooper’s interview and statement it is necessary to consider his evidence in relation to his interaction with officers in some detail.

Mr Cooper worked for Chancellor Care Limited at Cawston Park from September 2005 to July 2006 in the role of operational manager. He described his general day-to-day duties as administrative. He was responsible for the day-to-day running of the hospital, including being in charge of staffing the hospital and checking the patient care plans were completed and up to date.

Mr. Cooper was interviewed on the 1st September 2006 by DS Brownsell and DC Baker who travelled down to see him in Exeter (where he was living after leaving Cawston Park a month earlier).

Mr Cooper set out in his witness statement for this action that his overall impression of the police interview was one of unprofessionalism and that the police had already made their minds up that the Claimants were guilty. He said that prior to starting the interview the officers told him that they had enough evidence to convict the Claimants and that he remembered asking “why do you want to interview me then?”

Mr Cooper stated in his witness statement for this action that:

“I remember being concerned the tape was turned off on several occasions throughout the interview. A cigarette break was the usual reason. I now recollect the tape appeared to be turned off and another cigarette break suggested at times when I was making positive and complimentary comments about Cawston Park Hospital and its management and also when I was making uncomplimentary comments about Mark Deveney. I told the police officers that he was unprofessional and a bully and even told the police that if they were relying on Mark as a witness “You’ve not got a celluloid rat in hell’s chance.””

He also stated that he believed the interview lasted longer than the length of the time the tape was running, that many comments were made off record and during the course of the interview the police officers switched from being very friendly towards him to quite aggressive and intimidating. He stated that during the interview the officers appeared disinterested in what he told them about staffing levels.

When challenged about his recollection being set out in 2015 Mr Cooper appeared to suggest that he had “forgotten about all of this stuff”, but now recollected it.

As for extra care he stated:

“Since the collapse of the trial, on reflection, I believe that the police had decided their own definition of the term “extra care”. When the term was put to me at interview through their questioning, I was confused and did not know what “extra care” meant in this context. The actual term was not familiar to me and I got the impression that the police interpreted my not knowing of the term as evidence that fraud was occurring. This is something that I never believed to be true. Although I had nothing to do with the charging system at Cawston Park Hospital, had I been asked I could have told the police that in my extensive experience of private psychiatry, when contracting with the National Health Service it is perfectly normal for clinically more difficult patients to be charged an additional sum over and above those of the less difficult.” (underlining added)

And

“If the police had explained to me properly what the accusations were, rather than just out of the blue asking me if I knew anything about extra care, a term I was not properly familiar with, then I am quite sure I would have been better able to assist the officers in understanding how the hospital operated, how patients were receiving a high quality service and how some of the more difficult patients received “more” than others.”

Mr Cooper clearly recognized that his police statement was not as strongly supportive of the Claimants as it might have been (and as, it appears, his evidence at trial was). Objectively it could reasonably and properly be thought somewhat strange that the operational manager of the hospital who was responsible for the day-to-day running of the hospital, and, most significantly in charge of staffing was unaware of the extra care charging regime which on the Claimants case required a permanent staffing level able to cope with the most demanding patients.

Mr Cooper explained about his police statement;

“I have asked myself why I did not query my statement at the time, pointing out the omissions, I can only say that the strong impression I received from the police was that my statement was unimportant and was unlikely to be used. I did not realise the significance of the allegations being made and how the term “extra care” was so important to this case. I signed the statement at the end of the interview on the second day, at a point when I was eager to go home.”

In his oral evidence Mr Cooper said that it was a “good cop/bad cop” scenario with DC Baker being friendly and “chipper” and DS Brownsell just staring at him and that in his view the officers did not ask the right questions; “they just kept going on about extra care”. He said that he just answered the questions and did not expand and that “extra care was not within my remit”.

Mr Cooper was taken to what he set out in the statement compiled for this claim about the circumstances and length of the interviews and asked how these details came to be included given that they were plainly wrong (the implied suggestion being that someone else had provided this detail). He was taken to the interview and challenged on his comment that the tape was switched off and there was a break when he was making uncomplimentary comments about Mark Deveney. It was pointed out that within the interview he described Deveney in various recorded answers as strange, egotistical; with an ego “as big as you like” a bully, very obstructive, someone who exaggerates, very territorial, evasive, lacking in transparency and that he did not find him a truthful or genuine person. Mr Cooper accepted that the tape was not switched off during such comments (the first break was at a time when the subject was staffing levels and after Mr Cooper raised that he would “nip out for a fag” rather than DS Brownsell or DC Baker switching the tape off when he was saying uncomplimentary things about Mr Deveney). If such inaccuracy was not concerning enough Mr Warnock pointed out that during a comfort break (but caught on the tape) Mr Cooper said, unprompted

“I mean, off the record, I mean Deveney’s a piss artist. He was hungover most mornings.”

Importantly when the tape was then back running DC Baker immediately did the exact opposite of what was alleged by Mr Cooper in that he brought an uncomplimentary comment from off the record onto the record;

“That’s um interesting to hear because everything you are…tell us we want to hear. Because as we explained to you during the fag break is we have the allegation and we have to investigate it …and we investigate it with an open mind…but you are saying that Mark Deveney…would be hung over in the mornings you say.”

To which Mr Cooper responded

“Well he would be sweating like a bull most mornings. You know, I mean I don’t want to sound biased in this but like I say I always found Andrew Breeze a guy who had a lot of integrity and I found Mark as someone who didn’t.”

There was then a diversion into small talk and it was later stated by DS Brownsell that;

“…what you have to say about him is as important as to, in your opinion, professional and otherwise, as important as everything else that we talk about to be honest because we have to make decisions about how we view everybody.”

Later it was stated

“…I’m not trying to blow sunshine or whatever, someone of your years of experience and if you tell us about personalities and opinions and work practices at Cawston Park carry a lot of weight.”

These extracts were totally contradictory to what Mr Cooper had asserted in his statement. For some reason during a cigarette break he wanted to make further criticism of Mr Deveney “off the record”; but the officers deliberately then brought it onto the record (twice) and make it clear that everything he said was important. They acted entirely properly to bring an attack on the credibility of Mr Deveney into the limelight as opposed to Mr Cooper’s allegation that they wished to push such criticism into the shadows. Mr Cooper was also left in no doubt that his opinion was important. Further and significantly having brought the comment about drinking “onto the record” the officers included it in the statement which Mr Cooper signed:

“I also think that Mark may have had alcohol issues. I often saw him come into work very hung over. He would sweat like a bull.”

The comment that the officers were trying to avoid uncomplimentary comments about Mr Deveney was wholly wrong. Apart from this the statement contained references to Mark Deveney being “obstructive and evasive”, “very territorial”, “surrounded himself with acolytes”, that he had “a massive ego”, he “controlled his managers he did not manage them” and attempted to bully him. There are also comments about his relationship with Lisa Vescio, an allegation that he told a patient to “fuck off” and him accessing pornography on his computer.

It is very difficult indeed to understand how Mr Cooper came to make the serious, but demonstrably incorrect and unfair allegation that the Police tried to supress information having “recollected it” it nine years after the interview.

There is also no sign within the interview transcript of Police “disinterest” in what he had to say about staffing levels, aggression or intimidation.

Mr Cooper was also unable to explain what the “omissions” were in the statement and eventually conceded that on reflection the Police did not fail to put in anything which he said which was negative about Deveney or positive about the Claimants or the hospital.

Given these matters it is very difficult to see how the statement in this action came to be signed and presented to the Court as his evidence. He joins Mr Chancellor, Mr Ward and Mr Bull as witnesses whose statements for this action give some cause for concern.

As for extra care and the comment in his statement for this action that he believed that the Police had decided their own definition of the term “extra care” and when the term was put to him at interview through their questioning he was confused and did not know what “extra care” meant in this context; the transcript again paints a very different picture

The question posed about extra care was an open question (that they did not know what extra care was) and Mr Cooper stated that it was term that he had never heard of before and also that in his view staffing levels were adequate. Again, there is no basis for the suggestion set out in Mr Cooper’s witness statement for this action that the officers had already decided their own definition of the term “extra care” or that he was confused when the term was put to him.

Within the Police statement which Mr Cooper signed it is stated;

“I have been asked by DC Sean Baker of what my understanding is of ‘extra care! within the context of care provided by Chancellor Care, All I can say on this matter is that I was aware of the phrase ‘extra care’, but I only heard an explanation in the last few weeks of my employment at a presentation given by Andrew BREEZE. I must confess, I didn't pay any attention really as I was due to leave the company shortly. With regards to ‘extra care’ – l am unaware of which person at Cawston Park, when I was there, receiving ‘extra care’. I do not know what 'extra care' constitutes. I do not know how the need for ‘extra care’ was arrived at. If any person had been identified, without my knowledge, as needing ‘extra care' I do not know how this was delivered, I certainly was never asked to provide extra staff in relation to any ‘extra care’, In my experience there are engagement and observation levels which would be considered when establishing funding for patients and these are historically based on agency fees. This is done as a patient may only require this extra observation or engagement over a short period of time which would make the hiring of permanent staff unviable.

……

There is a concept in holistic mental healthcare of ‘engagement’ rather than purely observation. The policy of Cawston Park was that all patients were engaged in this process as far as possible. There would be some patients that would refuse or be incapable in engaging in this concept. The holistic approach would have included activities for patients that would be as diverse as feeding animals, art therapy, visits out of premises on a shopping trip and psychotherapy. As far as I am aware, this is the norm for every patient and I would not consider this to be 'extra care’.”

And

“It was apparent to me that patient care was always at the forefront of what they were trying to achieve at Cawston Park.”

In respect of staffing the police statement stated

“On the occasions that I have been asked to provide extra staff or equipment I have done so with the full backing of Andrew Breeze and Dominic Wilson. I have never had my actions questioned when I have used extra resources.”

As Mr Warnock correctly pointed out what points firmly away from any deliberate attempt to suppress or manipulate Mr Cooper’s evidence, is that the drafted and signed statement contained a full and fair reflection of his negative comments about Mr Deveney and his motives and also his positive comments about Mr Breeze and Mr Wilson. As with any statement taken after an extended interview process it was necessarily a distillation of what was said.

I accept the evidence of DS Brownsell and Mr Baker that nothing was deliberately omitted from Mr Cooper’s statement with the intention of distorting or manipulating his evidence and I reject Mr Cooper’s concluding comment in his witness statement in this action that:

“The Police simply disregarded information that I provided them with that wasn’t in line with their thinking or wasn’t what they wanted to hear.”

I also reject the closing submissions made on behalf of the Claimants that the statement prepared for Mr Cooper to sign included “subtle but critical differences to Mr Cooper’s account of extra care given in interview” and that the omission of “the positive, significant and more detailed information provided by Mr Cooper on the extra care charge and how it operated was deliberate”.

However I do find that there was insufficient analysis of what Mr Cooper said, and was likely to say if called as a witness by DS Brownsell, the CPS and Counsel.

Within the case summary DS Brownsell stated;

“Gary Cooper is a registered mental nurse who has been in nursing since 1970. In August 2005 Cooper took a year's contract with Chancellor Care to work at the Cawston Park site as the operations manager. Cooper has said that he was only aware of the phrase “extra care” in terms of a presentation given by Andrew Breeze. Cooper has said that he paid no particular attention as the presentation was delivered at a time when he was within a couple of weeks of leaving the company. As such, he has stated that he does not know how the need for extra care was arrived at, who it was delivered to and what it constitutes. He states he was never asked to provide any extra staff in relation to extra care.”

Having carefully considered the entirety of the evidence relating to Mr Cooper, I reject the submission that DS Brownsell must have been aware that he was providing a misleading impression to Mr Tarrant in the drafting of the case summary in respect of the evidence Mr Cooper would give. I also unhesitatingly reject the allied submissions that what Mr Cooper had actually said in the interview (as opposed to what was set out in his statement and the summary) about the extra care charge was “critical information for the CPS in deciding whether to charge” and that Mr Brownsell appreciated as much. I find as a fact that DS Brownsell did not believe that he had omitted anything of significance, let alone critical significance on the issue of extra care.

I also reject as misconceived the suggestion that Mr Cooper’s account in interview should have put an end to the investigation.

In my judgment the summary was accurate as far as it went, as regards Mr Cooper’s statement but failed to sufficiently highlight the very poor view Mr Cooper had of Mr Deveney, as set out in the police statement. Calling Mr Cooper as a prosecution witness (and provided he maintained the trenchant views that he had expressed in the interview and statement) was always (and obviously) going to result in a significant attack upon a central prosecution witness. Further, it was obvious that Mr Cooper held Mr Breeze and Mr Wilson in the very highest regard and had no significant complaints about staffing levels. However I find that these inadequacies in the summary were not as a result of any deliberate attempt to mislead or downplay or conceal evidence. An obvious flaw in such a suggestion is that the statement was supplied to Mr Tarrant (and available for Counsel to read).

Mr Tarrant’s view of Mr Cooper’s evidence in the November 2007 file note and February 2008 note was that;

“It is interesting that he concludes that Breeze, Wilson and Prior are men of the highest integrity. However he was not aware about the concept of extra care at all and is not in a position to implicate or exonerate Barker.”

In the February 2008 note, Mr Tarrant stated That Mr Cooper;

“…describes Deveney as a very charismatic man with a massive ego.”

In my judgment it is also likely that had DS Brownsell been more comprehensive in his analysis of Mr Cooper’s statement in the summary (and/or if did he not have an interview transcript and this was supplied) it would not have made any difference to Mr Tarrant’s view. He read the statement and was well aware of Mr Cooper’s support for the Claimants and alleged character flaws (as set out by Mr Cooper in the statement). Such additional information as was set out in the interview about Mr Cooper’s view that if extra care was a basic fee and there are “add ons” for extra care so much a day and if “they are guaranteed that the fee level will not increase if this person deteriorates” (which was not the case as the charge could go from extra care x1 to extra care x2) this “insurance thing” was “a good option”; would have made no difference to Mr Tarrant’s view that charges were warranted on the entirety of the evidence.

In the closing submissions on behalf of the Claimants it was also submitted that the interview with Mr Cooper was recorded, and that no police-created transcript for any of the witnesses has ever been made available. The transcript of Mr Cooper’s interview, as with the other witness interview transcripts available to the Claimants, was created by DLA Piper, their criminal solicitors, much later during the course of the prosecution. As a result it was submitted that an inference can be safely drawn from the evidence that Mr Tarrant did not know which interviews had been recorded and that he was not aware of the existence of any transcripts.

I note that the summary stated “interview records are included with this advice file, they have not been proof read” and Mr Tarrant’s statement stated:

“I was sent the interview transcripts and a detailed 204 page case summary in the Autumn of 2007.”

The Claimants case is that it is probable that only the interviews of Defendants were supplied, with the signed statements of other witnesses supplied without transcripts of their interviews. However it is not necessary for me to resolve (to the extent that I can) every issue of fact. I am satisfied that there was no intentional attempt to conceal or supress any evidence by failing to supply any available transcripts of witnesses to Mr Tarrant. The interviews of the Defendants fell into a different category for obvious reasons and it would have been very strange if these had not been supplied even though they were summarised by DS Brownsell. What Mr Tarrant had was at least, a large bundle of signed witness statements. Given the totality of the evidence before me I view the suggestion of deliberately trying to mislead through not supplying the interviews as far-fetched. Also taking Mr Cooper as a paradigm and as I have already set out, I am satisfied that even if the transcript was not supplied it would have made no difference to his view had it been supplied.

Mr Cooper said that he was astounded to be called as a prosecution witness. In my view this was understandable as he intensely disliked and distrusted the main prosecution witness and held the two Claimants in high regard.

It was the view of Prosecuting Counsel as set out in his note of 12^th June 2009 that:

“21.

Gary Cooper was to emerge as the most experienced psychiatric nurse to give evidence with wide well researched knowledge. He was recruited as the hospital manager leaving Mr. Devaney still Head of Care. Although his main evidence was not foreseen, there was nothing in his witness statement to put us on enquiry. He was dynamite. He had the utmost contempt for Mr. Devaney. He gave detail for his opinion. Consistent with his statement he said he knew at the time there was an extra cate charging system. He did not know who was on extra care but it was in his opinion, obvious to him who would attract the charge and he said, it would be obvious to any professional at the hospital. When the actual last 4 subject to the charge were identified, he asserted that at that time, the 4 of them absorbed a third of the hospital resources. He gave very detailed evidence of why this was and how it worked. He said that there was plenty of staff. He said he had made a comparison with the principal NHS hospital in Newcastle and Cawston came out very well. He returned to the theme we had had from other witnesses that the dependency on agency staff was a nationwide problem. He explained the reasons. He also maintained that at Cawston the national problem had been exacerbated by Mr. Devaney’s lack of personal management skills. He was quite clear that neither defendant put any limitation upon the ability of himself or Mr. Devaney to recruit as many agency staff as in their judgement was required. This was flatly contradictory to the evidence of Mr. Devaney. He flatly contradicted Mr. Devaney’s evidence that he, Devaney, had complained to him about staffing levels. Whilst the hospital manager, gave evidence to the effect that those patients being charged for extra care received a far greater proportion of existing resources and clinician’s time than those patients not subject of the charge. It was a legitimate and fair charge. Although when he started his evidence on Thursday he sounded slightly petulant merely with an agenda to attack Mr, Devaney, on Friday the “mood music” changed. He became a man of stature whose evidence may be wrong but I simply cannot be rejected by any fair minded properly directed jury.”

In my view there was a collective failure to appreciate how damaging to the credibility of Mr Deveney Mr Cooper was likely to be given the content of his statement (I do not understand how Counsel was not “put on notice” of his utmost contempt for Mr Deveney). However this was neither intentional or malicious on the part of the Officers. Also when called he gave evidence not covered in his interview or statement and which was contrary, and damaging, to the Prosecution case. In my judgment any “omissions” in his statement were not due to any deliberate attempt by the officers to avoid or conceal evidence that would damage the Prosecution case. Mr Cooper recognized that there were matters he did not explain to or cover with the officers which he subsequently gave evidence about and he has sought to unfairly criticise the officers involved to explain this.

As an overview I gained very little assistance from any of the evidence concerning conversations or meetings at the City Club. As with the evidence of Mrs Breeze (which I shall briefly consider in due course) it is difficult to see why the evidence was presented to the Court as even taken at its highest the content did not materially advance the Claimants’ case on the two causes of action pleaded. Indeed it was a theme of this evidence that the officers concerned believed (and in one case still believed post trial) in the Claimants’ guilt. Whether any officer was unprofessional in what he said in expressing a view about the Claimant’s guilt may be matter for complaint (and complaints were made and investigated and to a degree upheld) but in my view it did not impact on the central issues in the case. Ms Morris’s suggestion during cross-examination that the officers were “trying to alienate Mr Breeze from his support group” was in my view fanciful. Despite this overview given it was produced I shall set out the evidence.

It was pleaded that in the summer of 2007 DC Baker discussed details of Operation Meridian with club members Victor Miller and Steve Pointer on separate occasions, in particular prior to the Claimants being charged and that DC Baker informed Mr Miller that Mr Breeze would be taken to Court and found guilty and sent to prison.

Mr. Miller was a longtime member of the city club in Norwich and as at 2007 had known Mr Breeze, as a well respected fellow member for a number of years. After Mr Breeze was arrested Mr. Miller stated that;

“…there was much discussion within the City Club regarding Andrew's arrest and the police investigation. The unanimous view within my group of friends at the City Club (save for police officers) was that the accusations against Andrew were nonsense. Along with myself, many members wanted to support Andrew and I certainly did not believe the accusations that had been made.”

Mr Miller also said that it was common knowledge that DC Baker, another member of the club was part of the investigation. He stated that following a meal he had a conversation with DC Baker who had said that it was a pity that Andrew had been arrested as he understood that he was a nice friendly person. Also that DC Baker made it very clear that Andrew would be taken to court and found guilty and that the only matter in doubt was what sentence he would receive, (and that he did not expect him to serve more than two years in prison).

Mr. Miller also expressed annoyance that DC Baker had invited other police officers to the City Club when it was obvious that their presence would cause Andrew upset, even if he was not present. He was also annoyed by the lack of professionalism of DS Brownsell who attended and got “extremely drunk”.

Mr Miller was seen by Mr Fernandes as part of an investigation by the Professional Standards Department. Within that report Mr Fernandes recorded that:

“Mr. Miller told me that in his opinion DC Baker never acted inappropriately in any conversation he had with him concerning the Cawston Park Enquiry. He felt that it was inevitable the case would be mentioned within the confines of the City Club but clarified that DC Baker never spoke about the inquiry in respect of the mechanics of the investigation and any comment that was made was in very general terms.”

And

“Mr. Miller stated that he had no reason to consider making a complaint against DC Baker with regard to any conversation that he had with him around the Cawston Park Inquiry and felt that any conversation they had related to Sean speaking through his perceived professional embarrassment because of his connection and membership of the City Club.”

And

“(Mr Miller) recalled that DC Baker and he had a conversation about the case against Breeze and Wilson during which Sean Baker made the comment “I like old Breezy, I hope he don't get done. Mr Miller said he asked DC Baker if Mr Breeze was to be convicted as to what sort of sentence he would attract. DC Baker replied get a couple or three years at the most.”

In his oral evidence Mr Miller said that Mr Fernandes came to his house and they had a “little chat” and he did not know it was an interview and/or that it would be recorded.

DC Baker provided a written response to the IPCC complaint stating that just before the trial Mr. Miller had approached him at lunch and although he made it clear then he realised he could not talk about the case asked why it was scheduled for a 12 week trial. DC Baker said that he did not make the comments outlined in the allegations.

Whatever the exact content of the conversation was, and putting to one side issues of professionalism, there was and is no allegation that DC Baker said anything other than he liked Mr Breeze but thought that he would be convicted. It is very difficult to see how this advances the Claimants’ case that DC Baker held no true belief in the guilt of Mr Breeze.

Also, even if DS Brownsell did drink too much whilst a guest at the club it is difficult to see how that advances the Claimants’ case either. This case is not concerned with issues of professionalism; rather the two causes of action.

Mr Pointer had been a police officer and left the force in 1981. As with Mr Miller he was a friend of Mr Breeze. He recalled a “heated conversation” with DC Baker after Mr Breeze had been arrested but before July 2007 and stated;

“During this conversation with DC Baker, I told him that Andrew's arrest was preposterous, ludicrous and that they were a bunch of buffoons who had got it all wrong. I couldn't understand why Andrew was even being investigated. I said to DC Baker “I bet he won't get charged”. DC Baker said “yes he will”. I was amazed at his intransigence and fortitude. This escalated into a heated conversation…at one point DC Baker was almost in tears.”

Mr Pointer also recalled a conversation with Chief Inspector Guy after the trial. Mr Pointer stated that CI Guy got quite animated and stated that Andrew Breeze “was on the fiddle”, “Guilty of fraud by overcharging” and “should still be serving time in prison.” Mr Pointer said that he was taken aback by these views and believe that CI Guy definitely thought that Mr Breeze was guilty. He also recalled other elements of the conversation about the trial process.

Mr Pointer was contacted by Mr Fernandes and asked if he wished to provide an account of his conversations with DC Baker. Mr Pointer stated that he would but never did.

DS Brownsell provided a written statement which set out that:

“I was having a cigarette with DC Baker outside we were approached and harassed by Steve Pointer who was very drunk. We had anticipated that this might happen, however at the time DC Baker was confident that it would not as Pointer had apparently been spoken to by senior club members. Mr Pointer was quite loud and kept demanding of me what did I think I was doing harassing an innocent man. He was told by me that we would not discuss anything with him; we were off duty and didn't want to talk about anything to do with work. Mr Pointer then started to get quite offensive…other members of the city club were present during this embarrassing exchange…Later Mr Pointer approached me DC Baker and apologise for his comments. We shook hands and he insisted that he bought us a drink.”

DC Baker also gave evidence that Mr Pointer had apologised for his conduct.

Again, whatever the exact details are of the exchange between Mr Pointer and DC Baker and DS Brownsell I cannot see how it can possibly advance the Claimants’ case as presented to me. I also view any personal view expressed post trial by CI Guy as of little relevance to the conduct of the enquiry.

I am satisfied that such conversation as there was with DC Baker started with Mr Pointer sharing, forcefully (indeed having heard him I believe in all likelihood very forcefully) his unsolicited views about the investigation of Mr Breeze. He had a wholly closed mindset of complete innocence. It is likely that alcohol fuelled his decision to criticise DC Baker and others calling them buffoons.

Taken at its highest the allegation is that DC Baker stated that it was his belief that Mr Breeze would be charged. Professionalism aside such a comment takes matters no further.

The Claimants’ case in relation to the restraint proceedings also lacked focus and in my judgment had not been adequately thought through. Mr Metzer described it as “background” and not the primary focus of the Claimants’ case. The merits of the restraint order were not analysed before me in any detail.

The fact that DC Wilcox prepared a statement on 9^th November 2006 in support of restraint proceedings was pleaded. This followed on from the CPS taking advice from Counsel about the appointment of a receiver. It was also pleaded (as a fact) that he communicated with HMRC and that “throughout the investigation DC Wilcox refused a number of requests to make amendments to the restraint orders preventing the Claimants from dealing with their assets”.

However the very purpose of a restraint order is to prevent the person under restraint from dealing with his/her assets. The order was made by a Judge and was unsuccessfully challenged by leading Counsel and DC Wilcox explained that thereafter a number of variations were made.

DC Wilcox took advice as to liability as to HMRC and acted accordingly.

It is pleaded that Dc Wilcox refused to meet Mr Breeze despite repeated requests and Ms Morris suggested to DC Wilcox that he should have met Mr Breeze. DC Wilcox pointed out (in my view unsurprisingly) how inappropriate it would have been for him to agree to meet a defendant on bail to discuss whatever Mr Breeze wanted to discuss rather than for all communication to be in writing.

I can well accept that DC Wilcox came across to Mr Breeze, Mrs Breeze and Mr Wilson as unsympathetic and a strict adherent to the law in relation to restraint of assets. He candidly stated that it was his view that the rules were “draconian” and could put a person subject to them under enormous strain, but as he repeatedly stated his job was to apply the law not make it. As an overview that is what he did.

Given that there is no pleaded allegation that any aspect of, or step within, the restraint proceedings was improper or any mention within the particulars of malicious prosecution or misfeasance in public office the relevance of how the proceedings were conducted was something I found difficult to understand at the outset of the trial and matters became no clearer as the evidence progressed.

I am sure that the Claimants and Mrs Breeze have maintained a very strong dislike of DC Wilcox. They also challenged his recollection of certain details of their interactions with him. However the difficulty which I had, and still have, with the evidence in relation to him is that it is difficult to see how this materially advances the Claimants’ case in relation to malicious prosecution/misfeasance in public office as DC Wilcox was clearly not part of the MIT investigating the allegation of fraud in relation to extra care.

Ms Morris suggested in questioning of DC Wilcox and DC Flynn that DC Wilcox had been consulted/had input in relation to DC Flynn’s investigation of the potential drugs’ fraud. Firstly I should state that I unhesitatingly accept the evidence of DC Flynn that he consulted DC Wilcox as he had been the officer dealing with pharmacies and therefore had a store of specialised knowledge in relation to prescription drugs and that this was the limit of his involvement. Secondly there was no pleaded allegation in relation to the drugs fraud investigation and as a result it received no detailed consideration during the trial (although it was covered in Mr Wilson’s witness statement). When I clarified matters with Ms Morris during her cross examination of DC Flynn she conceded that it was not the Claimants’ case that the drugs investigation provided evidence of malice.

Apart from DC Wilcox also helping DS Brownsell on his request (it must be borne in mind who was the senior officer) to undertake a discrete task; an enquiry of the NMC in relation to Mr Ward as DC Wilcox knew the relevant people at the NMC, DC Wilcox had no involvement in, and more importantly, no influence over, the fraud inquiry at all. It has always been difficult to see the relevance of issues such as whether DC Wilcox told Mrs Breeze that her then estranged husband was giving her raw deal as to maintenance to the central issues in this case. I shall therefore only briefly deal with the evidence of Mrs Breeze and DC Wilcox.

Mrs Breeze produced two statements (the second explaining the provenance of her notes which were contained within a supplementary bundle). She explained that she was divorced from Mr Breeze from 2004 until 2012 when they remarried. She was previously a pharmacist for many years and knew DC Wilcox professionally as he was the drug enforcement officer and she had regular contact with him. After Mr Breeze’s arrest and over the course of the criminal investigation she stated that she had several (she thought five) conversations with DC Wilcox who stated that he was not involved in the investigation itself and he was just collecting financial information. She got the impression that DC Wilcox assumed that there would be antagonism between her and Mr Breeze as they were divorced. She said that during an early conversation DC Wilcox informed her that Mr Breeze was guilty and that he had been making lots of money and that he had not been paying her enough maintenance. Mrs Breeze stated that “it was very clear to me that DC Wilcox had already decided Andrew’s guilt” and that he advised her to seek legal advice in relation to a possible confiscation order.

Mrs Breeze gave details of conversations about specific elements of the restraint proceedings and the order including the repayment of a loan by Mr Breeze to her, the payment of school fees and the placing of a charge on the house (as explained by DC Wilcox in a letter of 5^th February 2008) and stated that she formed the impression that DC Wilcox

“became deliberately obstructive during Andrew’s attempts to get variation orders to the restriction order.”

And

“the impression I got was that DC Wilcox was condescending and completely unconcerned about the upset he had caused.”

Mrs Breeze drafted a letter of complaint about DC Wilcox, but never sent it.

Mrs Breeze’s view, formed only from interaction with DC Wilcox, was that the Police had formed a mind set of guilt about Mr Breeze from a very early stage. For what it adds, this is inconsistent with officers holding any view that the Claimants were not guilty and/or that there was insufficient evidence that they had committed the offence of fraud but that they should be taken to trial to secure convictions in any event.

Other witnesses whose statements were in the bundle were not called as they were not required for cross-examination. The statement of Mr Brook was not relied upon.

I shall deal briefly with these witnesses.

Mr Prior (who is now Baron Prior of Brampton) was the Chairman of Chancellor Care Limited from May 2005 to September 2006 (and from 2003-2006 an investor having been introduced to Mr Chancellor who was looking to raise money through his accountants). He was the MP for North Norfolk from 1997 to 2001. In 2002 he was appointed the Chairman of the Norfolk and Norwich University Hospital NHS Trust.

He was also arrested on 14^th November 2006. He stated that “the Police had tipped off the press which I felt was disgraceful and outrageous”. He was interviewed (not being impressed with the quality of the questions put) and then released.

Mr Prior stated that:

“I instructed…solicitors and over the next several weeks (they) and I sought to persuade the police that I could not possibly be implicated in this imaginary fraud. I recall the rudeness and complete disdain that the officer in charge DI Cunningham showed me and my solicitor. He refused to take a call from me and engage in any way. I remember at one point being told that if we carried on as we were, the Police would apply for a restraint order against me, as they had with Andrew and Dominic. Then on around the 15th of February 2007 my solicitor received a telephone call to say that I was no longer under suspicion.”

And

“A month so later, I complained to the then Chief Constable Ian McPherson… there was no hint of an apology and no expression of regret. He appeared to have no understanding of the havoc his officers had caused to my life and career. I have one further recollection from that meeting which is that when discussing Andrew and Dominic the clear cut impression Ian McPherson gave me was that the case against the two men was a cut and dried case. My statement to the Police made it absolutely clear that there was no fraud at Chancellor Care and yet they paid no regard to that and called me as a prosecution witness. If they had even remotely open mind they would never have proceeded with the case relying on my evidence. The interview with McPherson confirmed the view that they simply closed ranks and were not open to fresh thinking.”

Although it was not a specific issue in this claim, and therefore not the subject of detailed submissions, I found it difficult to understand the justification for the arrest of Mr Prior (as opposed, if thought necessary and given the evidence which had been obtained which did not directly implicate him, to a request that he attend for questioning on a voluntary basis). Further it is not in issue that the Press were tipped off and that DI Cunningham was rude and disdainful; both being improper conduct. Overall it is my judgment on the evidence before me that Mr Prior was dealt with in an unacceptable manner that fell below the conduct that could be expected of the officers involved. I am also sure that the unchallenged evidence of Mr Prior is accurate in that Ian McPherson was of the view (given what he had been told by his officers) that the case against the two men was a “cut and dried” case. However such matters are of limited assistance to the Claimants’ claim and yet again the impression formed was that the relevant officers thought that the Claimants were guilty; not that they were not guilty and/or that there was insufficient evidence to support a successful prosecution.

Within his police witness statement Mr Prior stated about the PWC report that;

“I find it incredible that, if the fraud was going on, they did not find out at the time and also that, if Andrew and Dominic were involved, they would have allowed the due diligence process to happen.”

He explained that one of his roles as chairman would be to attend monthly board meetings and to read the pre meeting board pack which would involve financial report. He stated of Dr Barker:

“The idea that he was caught up in some commercial fraud knowing the man as I do is risible, he just wouldn't understand it. One could be critical in more recent times of his commitment to the business as he was looking forward to retirement but he would not have been involved in any sort of pricing discussions or anything like that. He was more on the patient side of things.”

In relation to Mr Deveney he said;

“He was a big, charismatic, impressive man. He was much stronger in personality then Andrew Breeze. I find it staggering that as I understand it, Mark says he was suborned into doing things he didn't want to do. That is utter nonsense. He is a big tough bloke. If anything it was the other way around. Andrew was a person who wouldn't tackle a problem. Mark did a lot of things that were totally unsatisfactory but Andrew did not have the courage to fire him a lot earlier. I think they went back a long way together and have been good friends but I think the whole dealing with Mark Deveney in November/December 2005 was extremely poor and exposed Andrew as not being up to the job of Chief Executive. The whole “Mark Deveney thing” was very messy. We had instructed lawyers as it's very hard to dismiss someone these days, even if they had done what he had done, but he actually resigned just prior to the disciplinary hearing. He was a key part of the team. He was head of care, he was assessing all the new patients coming in. He was very much involved in the extra care concept and had the day-to-day running of the organisation, effectively doing what Andrew should have been doing.”

Mr Prior then explained that LDC (Mr Bull) were unhappy about the Claimants’ performance as:

“…They were not very happy with the occupancy levels on the financials, which were OK but not as good as Andrew and Dominic had forecasted. As a result I had a number of meetings with Andrew and Dominic and expressed my reservations about their ability to do the job…”

And

“By Christmas 2005, the business was not doing as well as had been predicted in May so Andrew was under quite a bit of pressure.”

Mr Prior stated of Mr Breeze and extra care;

“I never had any reason at all to believe he was anything other than a man of integrity. I never got any indication that he was aware of doing anything wrong. As far as ‘Extra Care’ is concerned, I don't really know what his role was.

As I understood it, ‘Extra Care' centred on the principle that Cawston Park took in a range of people. Some were much more difficult than others and some were so difficult that no one else wanted to have them. Indeed some were so difficult that they would have had a number of staff with them all the time in other establishments making sure that they did not kill themselves or someone else, The whole concept of 'Extra Care’, as I understood it, was that we charged more for those people who were difficult to care for.

The mechanism, I think, was that the individual patient was assessed before they came to Chancellor and if they were considered to be very difficult the PCT's would be charged 'Extra Care’ for them. I think that the 'Extra Care' charge was always agreed with the PCT before they came. Anecdotally, I don't think we would have charged 'Extra Care’ for someone unless they were "specialled" elsewhere and again, anecdotally, I understand that it was a lot cheaper to have a patient at Cawston Park than where they had come from in the NHS, which is why the PCTs were so keen to send them to us. My understanding is that it was a clinical assessment which determined whether someone was eligible for 'Extra Care’.”

And

“In relation to 'Extra Care' my understanding was that it was a charging mechanism to reflect the difference between a standard and a very difficult patient.

The way the difficult patients were looked after in more traditional settings is what you could call “man to man custodial marking". They would have one or two people (or more) with them all the time, twenty four hours a day. We did not do that as we tried to put in place an infrastructure which obviated the need for that kind of treatment which we felt was not conducive to them getting better.

I accept that the term "Extra care" was probably not the best term to have chosen. I don't think the company could say that it put three people on a person at £15 per hour, twenty four hours a day for three months. Instead we had an 'extra charge’ for people who were complex and difficult and as I understand it this was fully disclosed and understood by the Primary Care Trusts.

I think this is where there is a misunderstanding. I accept it is a slightly confusing area, but it was a different model of care than other companies and the NHS were used to operating.”

And

“The service level agreement with Norfolk, I have to accept, is pretty imprecise. It is not a nice clear cut legal agreement but it does set out the basis on which "Extra Care" is charged. I cannot recall it ever being brought to my attention that a PCT had raised a query in relation to these charges.

Again, with the benefit of hindsight I think the label 'Extra Care’ was not the right one. On reflection, a better description in my view would be a “responsibility allowance" - both a risk premium and a care premium reflecting the severity of the patient's condition. At the time I knew that it was being applied to patients with difficult psychiatric conditions by agreement with the PCTs but that is all 1 knew at the time and that is all I really know now.”

And

“I appreciate that the definition of "Extra care" is being treated as central to this investigation but I do not feel qualified to comment further. The irony of it all is that the person who came up with the idea of using this term was Mark Deveney who, I believe, had introduced the term in to the NHS in Norfolk.”

And

“After Lesley Denton found out that there was an investigation from speaking with the Suffolk PCT the matter was discussed at Board level and we thought we should carry out an internal investigation. So we asked Dominic and Andrew to put together a paper on ‘Extra Care' which was reviewed by our solicitors DLA Piper. We read that paper and came to the view that the concept had not been precisely defined but also that there was no dishonesty involved and that there was no evidence to suggest that the PCTs did not understand the Chancellor Way and the charging mechanism. I should say that as soon as we found out about the investigation we wrote immediately to the police to ask if we could be of any assistance.”

In summary DS Brownsell said;

“David Prior is an ex-MP and the chairman of Norfolk and Norwich University Hospital. David Prior invested in the acquisition of the Cawston Park site with an investment of £120,000.”

In the MG6 he stated:

“David Prior

In the early stages of the enquiry we could not ascertain Prior’s involvement with the day to day running of Cawston Park. We were aware that he was the non-executive Chairman and that he benefited considerably from the MBO, as had the other suspects. Det Insp Cunningham policied that Prior was to be arrested with the other suspects on the day of action: 14^th November 2006.

Subsequent enquiries showed that Prior had in fact resigned from Cawston Park.

Prior had been in dialogue with Anthony Bull from LDC. Bull had written to him expressing concerns over the competence of Breeze as the Chief Executive as the company was not meeting projected targets. Indeed, Prior was later subject of some criticism that he had not done enough at Cawston Park in his capacity as Chairman.

Prior was also aware of the enquiry into Extra Care.

In September 2006 the HCC performed their inspection which resulted in statutory notices being served, a considerable embarrassment to Prior.

Richard McKenzie was contacted by Prior and asked whether he would be the Chief Executive. Prior at the Board meeting demanded that Breeze step aside to allow Mackenzie to be Chief Executive or he would resign. During this Prior mounted a personal verbal attack on Andrew Breeze. The Board accepted Prior’s resignation.

There was no evidence to link Prior to the Extra Care fraud in terms of its pseudo application or invoicing. Prior was not linked to the drugs fraud. Det Insp Cunningham policied that he was to be released from his bail obligation and treated as a witness. This decision was ratified by CPS. Prior has provided a witness statement.”

Apart from this he did not feature in the analysis save as regards to documents found on a search of his home which related to the sale of the property. This was a surprising omission given the significant matters set out above which gave an insight into the individuals at the centre of the operation of the hospital, an explanation of an understanding of extra care which was supportive of the Claimants’ case and undermined the evidence of Mr Deveney. Mr Prior’s overview was, in effect, that there were deficiencies in management (indeed in line with the view of Mr Bull he clearly did not believe that Mr Breeze was up to the role he was filling) but that there had been no dishonesty. Not having heard DS Brownsell directly cross-examined on the omissions from the summary I have been deprived of his reasoning for not setting out more fully the content of Mr Prior’s statement (which accompanied the summary; so was there to be read). As with the evidence of Ms Gaisford I have carefully considered the likely explanation for the failure to highlight the views of Mr Prior as set out in his statement. For the avoidance of doubt I have also considered the omissions (as I have found them to be) cumulatively. Having considered the entirety of the lengthy summary document, the number of witnesses referred to and its focus, also having heard DS Brownsell (although not cross-examined directly on the content of the summary) I am satisfied on balance that omissions (including in relation to Mr Prior) were not due to a deliberate attempt to mislead or suppress evidence.

Mr Tarrant’s advice also did not cover the views of Mr Prior. In my view this was also an error in his advice.

Given the content of his witness statement I cannot understand why Mr Prior was called as a Prosecution witness without detailed consideration of what he had set out in his statement (but that was not a decision for the investigating officers).

Two witnesses set out their surprise at not having been contacted by the Police, and the failure to do so is relied upon by the Claimants as evidence of malice.

Mr Graham signed a statement for this action in 2016 having previously made a statement to DLA Piper in 2007.

Mr Graham is a registered mental nurse with many years experience and from 2004-2005 he was the Healthcare Commission's lead inspector for Cawston Park. He stated;

“When I first heard of the police investigation into Cawston Park Hospital I made the assumption that the police would want to interview me as I had been the regulatory body inspector for the hospital's operating licence for ensuring that the hospital met all the required standards as set down by the HCC. It surprised me immensely when I was not approached by the police. Sometime later, after the investigation was over, when I understood the detail of the police investigation, I was further saddened that I had not been approached by the police as I believe that I would have had a lot to offer them at this time.”

Mr Graham then referred to the content of his DLA Piper statement.

Mr Graham explained that Cawston Park was very different in terms of philosophical approach and that he witnessed this approach on his visits to the hospital. He said that staffing was a key feature of the standards of the HCC and he could have furnished the police with his opinion and findings from inspection visits on this subject and that;

“On each and every inspection visit to Cawston Park the staffing levels were scrutinised very carefully with regards to the numbers and the skill mix of staff in relation to the number of patients, taking into account the current approach the hospital implemented.”

Mr Graham continued;

“At all times during my time as an inspector I found that the staffing levels at Cawston Park were more than adequate for the number of patients they had taking into account the fact that they did not participate in the practice of “specialing” patients on the basis that they felt it was detrimental to good quality care, something I strongly agreed with. It was due to this different philosophical approach that I observed that Cawston Park had a higher ratio of staff to patients that other similar establishments I was inspecting.”

Mr Graham also recollected speaking to Mr Deveney on the subject of staffing and that he was informed by him that;

“He was perfectly satisfied with not only staffing levels but all other matters at the hospital…”

As for the provision of care Mr Graham stated:

“My observation of staff interactions with patients was that there were some patients who received much more input from staff than others due to the severity of their illness. This more intensive input would be in a variety of different ways, often changing from day-to-day so the varying level of need could be met by varying level of input that the patients received. Put simply, some got more input than others.”

As for charging Mr Graham stated;

“Another matter I could have assisted the police with was the charging mechanisms that were in operation at that time. It was standard industry practice, in private healthcare, to charge more for the more difficult patients. A lot of establishments did this by use of specialling patients, however Cawston Park made it clear that they did not use this nursing practice, but instead had put in a higher level of resource, compared to other establishments, for those more difficult patients to access as and when they required it…And I found it perfectly reasonable and something other hospitals were doing, for Cawston Park to have made an additional charge for those patients who had been identified as being more difficult to manage and presenting with a higher risk than others.”

Mr Graham stated that;

“I have been informed that the police did not take seriously my statement that I considered that the staffing levels at Cawston Park were perfectly adequate at all times by saying that “on inspection visits the hospital probably just upped the staff numbers just for that visit as the visit would have been announced. I find this statement to be complete nonsense and is a slight on HCC inspectors who carry out their responsibilities very seriously…”

Mr Graham did not set out the source of his information; specifically whether it was the Claimants, DLA Piper or some other person.

Mr Graham was, and is, undoubtedly strongly supportive of the Claimants and critical of the failure of the Police to take a statement from him, in my view with strong justification.

In the case summary DS Brownsell had a section relating to the Healthcare Commission and stated that following on from the formation of the Gold Group, the Health Care Commission were asked to inspect the hospital and they carried out an unannounced inspection on 19^th September 2006. DS Brownsell explained that the inspectors were aware that the concept of extra care was the subject of police investigation. He stated;

“(the Inspectors found that areas of the hospital were filthy particularly communal eating areas where the presence of dirt was obvious and longstanding…support staff were required to wash up after the meals leaving inspectors wondering who would be caring for the patients during this time. Given the behaviour of the patients the inspector's view was that there were not sufficient staff on duty…”

As a result of the inspection a statutory requirement notice was served on Andrew Breeze in relation to three areas one of which was.

“Failure to ensure at all times that there was an appropriate number of suitably qualified, skilled and experienced staff.”

On 1^st February 2008 DLA Piper wrote to Mr Tarrant expressing concerns about the conduct of the police investigation and in particular the failure to take statements from individuals who were able to give evidence in support of the claimants. The letter quoted passages from statements obtained from Mr Graham and Ms Smith and stated there may have been a failure to follow up all reasonable lines of inquiry.

The DLA Piper letter was forwarded to DS Brownsell who responded on 4^th February with the following comment (by e-mail) as regards Mr Graham:

“David Graham We had never heard of Graham until now. It would appear that he ceased working for the HCC in August 2005. Nevertheless, it would appear that Graham had no knowledge of the charging system. He has given opinion about the hospital and treatment given. His observation that the staffing levels at Cawston Park were higher than other similar establishments is of interest. One wonders whether his inspections were pre planned, if that was the case it is possible that staff numbers were ‘upped’ for his visit. His position is at odds with numerous statements from members of the work force we have taken that state that there was a low level of staff. You are in possession of these statements.”

In my judgement the failure to gain evidence from Mr Graham in relation to previous Healthcare Commission visits and reports was a mistake. I am also surprised that when alerted to the evidence of Mr Graham, Mr Tarrant did not suggest that a statement should be taken from him. DS Brownsell provided his comments but Mr Tarrant could have asked that a statement be obtained. As DS Brownsell stated he had ‘never heard’ of Mr Graham. I find as a fact that he had not been contacted as an oversight (simply not considered) as opposed to any deliberate decision to suppress evidence. DS Brownsell gave his honest overview to Mr Tarrant of Mr Graham’s importance as a witness. In my view it did not adequately reflect the potential significance of what he had to say (and I find that the standard of a reasonable investigating officer was breached). However the failure to do so was not due to malice.

Ms Smith worked from September 2001 to July 2006 as the finance director’s assistant for Chancellor Care Limited, first for Mr Feavers then Dominic Wilson. She stated that she was aware in 2007 that Mr Feavers had said that the police should speak to her about the accounts at Cawston Park, but she was never contacted by the police. She stated that:

“I have been led to believe more recently this was supposedly because my husband was terminally ill at the time…nonetheless this would not have prevented me from seeing the police if they had made contact with me.”

Ms Smith also provided a witness statement to DLA in 2007.

The DLA Piper letter of 1^st February contained the following comments from Ms Smith:

“…For the first several months I shared a large office with Andrew Breeze, Dominic Wilson and Simon Barker. Through doing so I developed a good understanding of how the hospital operated, how patients came to be admitted and how charges were applied. It was in this office that senior clinicians came to discuss patients with each other, how they were doing and the results of new assessments, Occasionally Tony Chancellor would join us. In this office many discussions took place, most of which I was not involved in but overheard because I was working in there. Mark Deveney would have clinical discussions on a daily basis with Simon Barker, and Andrew Breeze being a clinician would join in.

I knew how the charging mechanism for patients worked at Cawston Park because I was in the office where decisions were made between Mark Deveney, Simon Barker, Andrew Breeze, and to a much lesser extent Dominic Wilson.

The process was very similar to what had always taken place at Kelling Park, except the decision to what should actually be charged involved more people. The patient would be assessed, the clinical information analysed and a price for the placement agreed…In some respects it was easier to understand how the price was arrived at compared to Kelling Park because it was clear that there were only two charges associated with the clinical information. One was the core charge, which everybody was charged and the other was the ‘extra care charge’ which was applied depending on the outcome of discussions between primarily Mark Deveney and Simon Barker but also with Andrew Breeze's involvement Dominic Wilson did not get involved with clinical discussions as he was not a clinician and I recall him often stating that he could not have a clinical view because of this. Once a decision on price was agreed Dominic Wilson would then take the necessary steps to implement it.

Mark Deveney would come into this office, often several times a day, but always when he returned from an assessment so that he could discuss it with Simon Barker. These assessments were usually done by Mark Deveney but sometimes the unit managers and/or Simon Barker would accompany him. After the assessment he would write a report, discuss it with Simon Barker and determining a price, core + extra care or core charge only. The PCT would be contacted, following which arrangements would be made for the patient to be admitted. The only other element to do with charging was the cost of drugs which was added by the finance department at the invoicing stage. I raised these invoices and this process was then passed on to Paul Vincent and Sandra Grunwald when they started working at Cawston Park.

Once again patient placements were monitored on a regular basis through the ‘CPA process’. Mark would also write monthly reports for the PCT to update them on how the patients were doing. These would then be sent out with the invoices. On several occasions 1 had to chase Mark Deveney for these reports and sometimes I had to ask him to change them. This is because he had been careless, for example, in the use of cut and paste and they did not make sense. This was just Mark and the reports were changed and sent out, These reports were sometimes seen by Andrew Breeze and Dominic Wilson as they were in the same office and sometimes they were not. I often hand delivered these on my way home.

Once again as with Kelling Park, charges remained the same regardless of whether patients went home at the weekend or not. There had never been a question of charges being reduced when patents were not at Kelling Park or Cawston Park ever since I joined the company in 2001, The ‘CPA Process’ monitored patients and so everybody knew what was happening.

In the five years I worked at Chancellor Care I never heard of a complaint regarding the standard of patient care or the cost of their placements, in fact quite the reverse, I understood many Commissioners, Placement Advisors and Social Workers were very pleased with what we were doing at Chancellor Care and the clinical results that were being achieved with the patients.

…Mark Deveney never complained that he did not have enough staff. I knew him to bring in extra staff from nursing agencies when he thought they were needed because I was responsible for ensuring the invoices were paid. Some months the totals of agency spending were very large. Mark had the authority to order the agency staff as required, At times he was questioned as to why the amount of spending on agency staff was so high but he was never prevented in bringing them in to provide adequate cover. I never observed anyone being asked to do anything they did not want to do. At that time everyone appeared to be working extremely well together.

…From the beginning Andrew Breeze and Simon Barker lived on site. Patients had access to them 24 hours a day. Mark Deveney lived on site for a while but when he was not living there he spent most of his time there. I observed that, in my opinion, the patients were looked after very well and the management treated the staff very fairly. I was very pleased to have been part of such an exciting venture working so closely with those responsible for making it happen.

…When I heard I heard about the allegations I did not believe them. I know that Andrew Breeze, Dominic Wilson and Simon Barker would never do anything like this. I observed the company to be run extremely well both financially and, although not a clinician, what I thought was clinically very well. I felt that I was in a position to make this judgment as I was observing at first hand the decisions that were being taken. Had there been any behaviour that I felt was wrong I am convinced that, because of my close proximity to all the senior staff on such a regular basis and my access to all the financial records, I would have known about it. All the patients seemed to get whatever they needed and I understood some of them did very well compared to other places they had been, some individuals told me themselves they were much happier with their care and the excellent surroundings they found themselves in at Cawston compared to other places they had been. Since the beginning of my time with the company in 2001 I never had any concerns as to how it operated…”

As I have set out Mr Tarrant forwarded the DLA Piper letter to DS Brownsell who responded on the 4th of February 2008. As regards Ms Smith he stated:

“Susan Smith We know of Mrs Smith through the statement of Charles Feavers. We also knew that her husband at the time was critically ill with a brain tumour. He has since died. Her description of the interactions between Barker, Deveney and Breeze is already known and reflected in papers in your possession. Her position about charges for patients whether they are at the hospital or not is irrelevant. We have never disputed the need for Cawston Park to carry on charging a patient’s core cost whilst they were absent from hospital. Our interest is the fact that patients continued to be charged for Extra Care when they were away from the hospital. I would remind you that this enquiry has never been about patient care. ‘It is about the additional charging for patient care called Extra Care. This is reflected by the papers submitted to you.”

Mr Tarrant, considered DS Brownsell’s analysis of the information provided to be a reasonable one and did not advise that statement should be taken from Ms Smith and/or that any further inquiries should be made before a decision was made to the charging.

It is my objective assessment (taking the standard of a reasonable CPS lawyer) that the failure to require DS Brownsell to obtain a statement from Ms Smith was an error by Mr Tarrant. DS Brownsell was not challenged about the explanation given to why Ms Smith was not approached earlier (her husband’s illness) or (surprisingly) about the failure to obtain statements from either Mr Graham or Ms Smith, or his assessment in the e-mail of 4^th February. However it was submitted in closing that the failure to obtain a statement from Ms Smith was “deliberate”, meaning a malicious act. I have heard DS Brownsell cross-examined at length, considered the lengthy documents which he prepared for Mr Tarrant and his e-mail comments and am not satisfied that any act or omission in relation to Ms Smith (or Mr Graham) was malicious. Rather I consider it likely he set out his honest view of the potential significance of the evidence when asked about it. In my judgment he fell into error and should have obtained a statement (regardless of the view of Mr Tarrant) or at the very least suggested to Mr Tarrant that he should do so (taking as my standard the reasonable senior investigating officer). However this case is not about negligence. In any event I find that had a statement been taken from Ms Smith (with the content in line with what she has set out in her statements); it would not have altered Mr Tarrant’s view.

Mr Adcock retired from the Norfolk Constabulary in October 2008 after 31 years’ service at the rank of Chief Superintendent. He had known Andrew Breeze for many years and they were both members of a rambling society.

Mr Adcock had no formal role to play in the police operation but had comments to make about two of the officers involved in the case, Inspector Paul Cunningham and Acting Chief Constable Simon Bailey. He stated:

“At this time the Constabulary were investigating what officers involved described as their most high profile fraud case yet; both Paul Cunningham and Simon Bailey made passing comments to me. They had emphasised that this case had to succeed and that it was important that the case did not fail. It was a most important enquiry and also the first time that the NHS Police force had corroborated (sic) together in this way. ”

And

“If I bumped into Paul in the canteen, then this was sometimes the subject of conversation between us. I was well aware of Paul’s stance on the investigation and what he wanted the outcome to be.”

And

“My strong impression of Simon Bailey at this time was one of a naive manager who had firmly formed the view that Operation Meridian was going to expose extensive fraud and lead to high profile convictions.”

Mr Adcock set out his view of Inspector Cunningham having known him for many years. He made some irrelevant, highly critical comments about his character, business interests and other matters. Some of the matters were so obviously irrelevant it is surprising that they were included in a statement.

Mr Adcock described Inspector Cunningham as a maverick, a “dyed in the wool CID man” with little respect for senior officers.

Mr Adcock explained how he came into contact with the investigation as he was the treasurer of the rambling club he and Mr Breeze were both members of and there was suggestion made that he had used his rank to pressure a more junior officer into allowing Mr Breeze to access some frozen money in his account. As part of this complaint he had a regulation 9 disciplinary notice served on him by Acting Chief Constable Simon Bailey. Mr Adcock stated that he was of the firm belief that this was part of efforts to try and isolate Andrew Breeze from his friends (Mr Adcock being a friend).

Mr Adcock gave the view that:

“It was very clear that from a very early stage in the investigation senior officers had decided on Andrew's guilt.”

And

“It is just very unfortunate that Operation Meridian was so badly conceived of and managed, with senior officers’ minds set from the beginning.”

Mr Adcock had no detailed knowledge of the investigation into his friend and clearly did not like Inspector Cunningham or Acting Chief Constable Simon Bailey (not helped by the disciplinary notice). He made no comments about DS Brownsell or any other officer engaged in the inquiry. Insofar as Mr Adcock formed a view about the approach of senior officers to the inquiry it was that they believed in the Claimant’s guilt. There is no hint or suggestion the officers involved thought the Claimants were innocent and/or that there was not sufficient evidence to prove their guilt.

Ms Grunwald is a chartered accountant and from December 2005 until January 2007 was employed as the financial controller of the Chancellor Care Group. She provided two statements to the police on the 16^th February 2007 and one to DLA Piper. She stated that these statements gave a full account of her relevant involvement at Cawston Park.

Ms Grunwald’s statement for the purpose of this action was “to describe the manner in which the Police statements were taken”. She stated that she was surprised that she was one of the last people at the hospital to be interviewed. She said that the officer who interviewed her was a pleasant individual; but with no financial insight and it appeared that he had a list of questions and did not understand some of the questions that he was asking. Her impression was that there was “an undercurrent against Andrew” and that the officer wanted her to say that “Andrew was pulling the wool over my eyes”. Her recollection is that she had to get mildly irritated with the officer before he appeared to accept what she was saying.

The second interview concerned the drugs charging.

In his summary DS Brownsell stated:

“Sandra Grunwald who worked in the accounts department at Cawston, has described “extra care” as relating to the clinical needs of patients and is a charge for additional input by members of staff over and above the core service. She states the business was actually manned at such a level to enable this to be performed by members of staff known to patients.”

So he set out that her evidence was broadly in line with, and supportive of, the Claimants’ case.

DS Brownsell also also gave a precis of the evidence of Mr Vincent who held the post of financial controller before Ms Grunwald (July to November 2005);

“…he had experience in the private healthcare world. He has described that Chancellor Care had an operating profit margin of 47.7% for the full financial year up to September 2005…He has given the opinion that this is “obscene” and demonstrates unethical practice. He states the clinical staff resource is…(are). Also demonstrates in a graph on the consolidated management information which indicates the staffing levels were below forecast this was at a time of peak EC (Extra Care) income. Paul Vincent states that he was told by Dominic Wilson that Cawston Park had to have at least 12 or so people on extra care so as to meet budgetary requirements. There appears to be an element of corroboration to what Vincent says…”

DS Brownsell was not challenged on the accuracy of either extract from the statements of the two financial controllers (which, it bears repition, accompanied the summary).

DS Brownsell also recorded in the summary that the content of Mr Vincent’s statement had been discussed during Mr Breeze’s interviews and that;

“Breeze said that Vincent was a finance man and not a clinician.”

There were statements compiled for this action from two bankers, Mr Braithwaite and Mr Innes.

Mr Braithwaite was employed by Nat West Bank and was the relationship manager for AD Care Limited and the main point of contact for the company with the bank from late 2004/early 2005. He stated that:

“Andrew and Dominic were keen for me to understand what good relationships they had with their clients, the PCTs, who placed patients with them. I recall them explaining how they were different to their competition and specifically, how they were upfront and transparent with the charges they made, including the extra care charge for the most demanding patients.”

And that

“…Both Andrew and Dominic displayed honesty, integrity and transparency through their dealings with me. The idea that they were committing fraud was and remains ludicrous.”

Whilst the statement (signed in 2018) provides a good character reference for both of the Claimants it is difficult to see how it assists with the issues in this claim. Mr Braithwaite could only rely on what the Claimants told him (and they were unlikely to say anything negative about their business to their relationship manager) and had the Claimants been “upfront and transparent” in relation to the extra care charge then there would have been no scope for Mr Deveney to say what he did and any for subsequent investigations.

Mr Innes worked for Barclays Bank up to August 2004. He assisted with the initial setting up of Kelling Park and with further funding for the acquisition of Cawston Park in 2003 (both purchases being effectively made by Mr Chancellor). He stated:

“I had a good understanding of how the business worked. I was aware that the higher dependency patients attracted premium pricing. I was also aware that staff numbers were sufficiently high to allow a higher degree of care to be given to those most troubled patients. Cawston Park took in some of the most mentally ill people in the whole country.”

Mr Innes felt that the Claimants were trustworthy and that although he was not working with the company he kept an interest in what was going on. Again he would have relied on what the Claimants told him.

He stated that “I am told the prosecution allege that the fraud was taking place prior to the management buyout in May 2005” and referred to the fact that the fraud would be enhancing the value of the company the Claimants were seeking to buy and also he was aware of high levels of due diligence. Mr Innes does not say who told him about the details of the Prosecution (and what details were given). Mr Innes’ opinion evidence does not materially assist with the issues in this claim (the same points are made in Mr Bull’s statement). Mr Innes stated that he was surprised that he was not contacted by the police to assist in the inquiries and stated “I am told” that the Police decided not to investigate Kelling Park; which to him made no sense at all. Finally he stated that he met Mr Deveney once and “was not overly impressed”; this obviously being a comment of no evidential value in this claim.

Norman Lamb was the MP for North Norfolk succeeding David Prior. He sets out that during a conversation with a journalist he was made aware that the media had been tipped off prior to the arrest of Mr Prior and the Claimants. He also complained to the Chief Constable about a police officer trying to convince a reporter of the Claimant’s guilt after the trial.

Ms Scicluna is the former wife of Martin Ward. She stated that after the interview Mr Ward described to her “how he had been pressurised and threatened by the police and that the police were horrible and intimidating”. As I have set out I have no doubt that Mr Ward was worried about the prospect of his dismissal from the RCN being raised if he gave evidence. As I have also set out, having considered all the relevant evidence in detail Mr Ward was not pressurised, threatened or intimidated.

Dr Olive is a friend of Mr Breeze and spoke to the NHS Appointments Commissioner (previously the Chair of the Eastern Regional Health Trust) when sitting with her on a Mental Health Tribunal Panel and told her his views on the “Cawston Park Catastrophe”. He was left in no doubt that she considered that there had been a serious fraud. This evidence did not materially assist in the determination of the issues in the case.

DS Brownsell joined the Norfolk Constabulary in October 1991. He became a detective in 1994/1995. He retired from police service at the end of December 2015. He described himself as having been a career detective. When the constabulary’s major investigation team (“MIT”) was formed in about 2004 he applied for a detective sergeant’s role and was appointed. He explained that MIT was set up to provide a reactive, investigative response to homicide, industrial death, serious major crime, stranger rape and any other investigation as directed by the force executive. He explained that apart from some Nigeria base frauds he had not done significant fraud work; “fraud was not the usual thing”.

DS Brownsell explained that his involvement in Operation Meridian began in July 2006 when DI Cunningham said that that the investigation had been passed over to the MIT by North Constabulary Fraud Squad (DS Kirkham) and that this had followed a referral by Frank Ginelly of the NHS Counter Fraud Squad.

DS Brownsell described the MIT team members as follows;

“The structure of the investigation team and primary roles were as follows. DI Cunningham was the SIO and reporting to him I performed the role of investigative lead as OIC. Beneath me were various detective constables including DC Sean Baker, DC Steve Flynn, DC Mark Horsburgh, DC Adrian Martin, DC Alison Doust, DC Phil Henley and DC Sarah McCluskey.

I deployed DC Horsburgh almost as a second in command. I regarded him as a valuable sounding board and he went on to assist me in preparation of the case summary.

DC Sean Baker was appointed exhibits’ officer. He had experience in the army pre-dating his police service and had what I regarded as an empathetic manner with witnesses.

DC Steve Flynn was an inexperienced detective. However, he had some experience in the role of exhibits officer. At the time of the Meridian investigation he was undergoing the Initial Crime Investigation Development Programme (detectives’ course).

DC Adi Martin was a sound and very experienced detective and brought practical and pragmatic skills to the team.

DC Alison Doust was a reliable manager of routine tasks.

DC Phil Henley was a very capable detective with a good overview of the investigation.

DC Sarah McCluskey was initially earmarked to be exhibits’ officer but due to leave commitments DC Sean Baker was nominated. She remained an available resource on the Caister team until she resigned from the constabulary.”

As DS Brownsell explained as regards his team “I got what I was given for the eastern part of the region” (before and after this investigation).

There is no doubt that not being a specialist fraud team the MIT found this investigation difficult. During the interview of Dr Barker DS Brownsell stated, it is my view honestly and candidly;

“And this is how this inquiry fell into our laps well over a year ago and what we're used to dealing with is very, very black and white. You know sort of in simplistic terms, there is a body in a room somewhere and there is a cause of death and we've had to find the person what did it. And it is very, very black and white. This inquiry has been so many different shades of grey, some are darker colours and some are lighter colours and as we've gone along there's been an element of at times, has this been sharp business practice or is this actually, is this a form of criminality, or quite clearly has this been a form of criminality. But to have gone on that path, to reach that road has been somewhat difficult because we're dealing with professional people who have at times been somewhat circumspect about their position within everything. So there's been an element of trying to get to the truth around through documentation, through examining computers and things, so hence it's dragged, dragged along for quite some time. Although as an aside I think there's, it means nothing to you I'm sure but we have been actually congratulated by the Crown Prosecution Service in London, the fraud department, for actually doing this very quickly and we have actually done, gone through a lot, we've been working like Billy-O for the last year on this and we have often on inquiries taken precedence for a short amount of time but unfortunately the nature of this particular beast is it's not black and white…”

Having considered all that transpired and the totality of the evidence it is my judgment that DS Brownsell’s lack of experience with major fraud investigations probably played a part in the errors/deficiencies within the Police investigation which I have identified. An example is the response to the DLA Piper letter referring to the evidence of Mr Graham, Ms Smith and Mr Drewery. Whilst I believe that DS Brownsell’s response to Mr Tarrant as regards to likely assistance Mr Drewery could give was objectionably reasonable and adequate (I am wholly satisfied it was an honest view), he made an error of judgment in relation to Mr Graham and Ms Smith and they should have been interviewed. It may be the desire to proceed with speed played a part. It may be he was leaving the decision to Mr Tarrant. However the two causes of action relied on by the Claimants are not based on mistakes/negligence or failure to meet an acceptable standard of professional performance; rather they are based on malice and bad faith. What the Claimants’ have in my view failed to establish with regard to DS Brownsell’s errors as regards two witnesses, or the omissions from his case summary, is that they were as a result of a deliberate desire to suppress evidence favourable to the Claimants, and/or attempt to mislead Mr Tarrant. I shall now cover the history of DS Brownsell’s involvement in the investigation and prosecution in some detail.

DS Brownsell produced a long witness statement in this action dealing with matters in a chronological order. It is not necessary for me to set out large parts of the detailed analysis in the statement, rather, save for one issue, I will set out relevant extracts within consideration of the issues raised in cross-examination. The one issue is the content of the case summary.

The case summary was and is clearly a very important document as it set out the Police overview of the evidence and the case against the Claimants. In his witness statement Mr Brownsell set out the following in relation to the case summary:

“I refer to the contents of the case summary, prepared by me primarily but in conjunction with DC Horsburgh. The case summary was and remains, in my view, a balanced summary of a lengthy, complex and extensive investigation. It referred to the state of the investigation at the point of the submission and was accompanied by relevant documents with summary explanations of their contents, together with references to what had been said in statements and at interview.

….

The case summary continued to set out the definitions of extra care from seized documents and the allegations made by Mark Deveney and then referred to various evidence from the PCT commissioning managers.

Under a series of self-explanatory headings, the case summary noted what had been said in relation to extra care and staff understanding of that concept, Detailed summaries of interviews of Mr Breeze, Mr Wilson and Dr Barker were included and the case summary concluded with a number of bullet points summarising the enquiry at that juncture.

Those summary bullet points represented, in my assessment and that of my colleagues, a fair and balanced assessment of the state of the investigation at that stage, sufficient to request from the CPS a charging decision. Of course, had more work been required by the CPS at that stage before a decision could be made by them, then the investigatory team would have acted accordingly.

Accompanying the MG5 case summary was the MG6 case file information form. I again was the author of that document with input and assistance from DC Horsburgh.”

After a day of cross-examination of DS Brownsell Mr Warnock KC raised the fact that Mr Brownsell had not been taken to the summary (or MG6). He pointed out that the questions asked to that point had wholly failed to address the detailed analysis contained in that document; which had been opened by Mr Metzer (not surprisingly given the Claimants’ pleaded case) as a central document which, on the Claimants’ case, was deliberately “slanted” in content.

I raised this with Mr Metzer and asked him to address Mr Warnock’s point (not the least of the reasons for so doing, as I expressly stated, was that if he intended to take DS Brownsell through the summary it could take a considerable amount of time, the cross examination already having exceeded the agreed time estimate). The very surprising response I received, which I considered, and still consider, to have been wholly wrong and inappropriate, was that my “repeated criticisms and interruptions” were not making his job easier and that there was an “ironic” concern on the Claimants’ side that I was not balanced. When I challenged this he clarified that he was not alleging that I was unfair. The cross-examination continued. Mr Metzer later apologized for these comments.

In all Mr Metzer cross-examined Mr Brownsell for approaching two and a half days. He chose to ask only one question about the content of the summary. This was a question relating to the summary setting out Mr Deveney’s assertion that he had been told by the Claimants that about 12 patients were needed to be on extra care to fulfil bank obligations when a spreadsheet (possibly prepared for the trial and which DS Brownsell could not recall having seen previously) showed that only 8 months out of 30 had 12 or more patients on extra care. It was put to DS Brownsell that he knew that this was untrue and misleading, however as he observed in response he was only setting out what Mr Deveney had said. Other than this one question Mr Metzer did not directly put to Mr Brownsell that what he had written in the summary or MG6 about specific issues, had deliberately misrepresented the evidence obtained and/or the known view of witnesses and/or was slanted. He did not take him to what on the Claimants’ case were deliberate omissions.

I could not (and still cannot) understand why Mr Metzer chose not to take Mr Brownsell to what was obviously a highly important document cognisant, as he must have been, that it was a central pillar of the defence that it was a fair and balanced overview. However having directly raised the point once (after Mr Warnock had specifically raised it) and having received the reply which I did; it was not for me to press the point further. Rather I took the view that it was for Mr Metzer (who led a team of two junior Counsel and solicitors) to cross-examine as he saw fit and certainly not for me to conduct a very lengthy questioning exercise of Mr Brownsell putting the Claimants’ case on each point in relation to the content of the summary. The result was that I never had Mr Brownsell’s detailed and focussed evidence on the content of the summary given the issues raised about the investigation; examples of issues being the omission of any reference to the evidence of Ms Gaisford and limited references to the evidence of Mr Prior and Mr Cooper. The Claimants’ attack on the summary (as confirmed in closing) was wide ranging and fundamental to the case advanced. It was submitted that it was not an “honest” document; yet Mr Brownsell was not cross-examined on its content.

(On Friday 4^th April) there was then an exchange during the cross examination (conducted by Ms Morris) of Mr Baker. Ms Morris had taken Mr Baker to the content of a statement/transcript of Mr Cooper and put it to him that the summary was inaccurate/inadequate. Mr Baker pointed out that he was relatively junior officer and had not written the summary (and later confirmed that he had not even read it).

On Monday 7^th April Mr Metzer raised at the outset of the day that he accepted that he had not put the content of the case summary to DS Brownsell. He said if a point on this was going to be taken about his failure to do so he “invited” the Defendant to recall DS Brownsell so that he could be further cross examined upon it (he confirmed that this would not just be on the reference to Mr Cooper, but all relevant issues, which, I observed, would surely be another day of cross-examination). He conceded that “he had no power to enforce” the invitation (and he made no application to me). Mr Warnock declined the invitation, pointing out that he had given fair warning of the failure to ask questions about the summary midway through the two and a half days of cross-examination and that DS Brownsell had left London and returned home to Norfolk. Mr Metzer did not pursue the issue any further.

Given these exchanges it came as no surprise that within his closing submissions Mr Warnock argued that given that the Claimants’ case depended centrally on the allegation that the summary of the evidence provided to the CPS for advice on charge was biased and/or false and/or incomplete, it was wholly inexplicable that the author of the 186-page summary was only challenged as to one short passage within it and that the case summary was “almost entirely unchallenged”.

Mr Warnock referred to the judgment of the Supreme Court in Griffiths-v-TUI (UK)Ltd [2025] AC 37 setting out the status and application of the rule in Browne v Dunn (1893) 6 R. 67, [1893] 1 WLUK 44 requiring a party in civil proceedings to challenge by cross-examination the evidence of any witness of the opposing party on a material point which they wished to submit should not be accepted. The Court stated that:

“42.

It is the task of a judge in conducting a trial in an adversarial system to make sure that the trial is fair. It is the task of the judiciary in developing the common law, and the makers of the procedural rules, to formulate rules and procedures to that end. One such long-established rule is usefully set out in the current edition of Phipson on Evidence 20th ed (2022). Bean LJ quoted the previous edition, which was in materially the same terms, at the start of his dissenting judgment. At para 12-12 of the 20th edition the learned editor states:

“In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases … In general the CPR does not alter that position.

This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.”

This statement is supported by case law, some of which I discuss below, and has often been cited with approval by the Court of Appeal. See, for example, recently, In re B (A Child) [2018] EWCA Civ 2127; [2019] 1 FCR 120, para 18 per Peter Jackson LJ; and Edwards Lifesciences LLC v Boston Scientific Scimed Inc. [2018] EWCA Civ 673; [2018] FSR 29 ("Edwards Lifesciences") , para 62 per Floyd LJ. An earlier version of the text from the 12th edition of Phipson (1976) was cited in Markem , para 59 (p 786) in which the court quoted with approval from the judgment of Hunt J in the Australian case of Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607 ("Allied Pastoral"), in which Phipson was cited.

I am satisfied that the statement in Phipson is correct and, as explained below, it summarises a longstanding rule of general application. It is not simply a matter of extensive legal precedents in the case law. It is a matter of the fairness of the legal proceedings as a whole. While many of the cases may have been concerned with challenges to the honesty of a witness, I see no rational basis for confining the rule to such cases or those analogous categories, such as allegations of bad faith or aspersions against a witness's character, as Mr Stevens suggests.”

And

“70.

In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:

(i)

The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.

(ii)

In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.

(iii)

The rationale of the rule, i.e. preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.

(iv)

Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert's honesty.

(v)

Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.

(vi)

Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.

(vii)

The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng , the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court's decision on the application of the rule.

(viii)

There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.”

Mr Warnock submitted given the failure to challenge what DS Brownsell had said in his statement about the summary and its detailed content a fortiori given he had expressly raised the failure to put the case summary during the cross-examination of DS Brownsell, it was not open to the Claimants to now criticise the way that it had been compiled and/or its content.

In response during his closing submissions Mr Metzer referred to his “application” to recall DS Brownsell. I corrected him and read out my notes of what was said on 7^th April and pointed out that no application had been made; merely an invitation to the Defendant and that he had said that he had no power to enforce recall. I stated that if there had been an application I would have heard argument and ruled on it.

Initially Mr Metzer did not accept that he did not make an application for the recall of DS Brownsell. He then stated that he did not make a “formal” application and also that he accepted that he could have pushed his application harder and that there had been an opportunity to deal with lacuna if it was considered that the issue was “a material one”. At one point he appeared to suggest that if I considered the content of the case summary a fundamental feature in the case (which it obviously was given the Claimant’s case as opened) I should have asked him if he was making an application. Mr Metzer also did not accept that he stated that he had no power to enforce the recall of DS Brownsell and that if he did say this it was because he meant that he had no power to require a recall of a witness but I as, a Judge, did; in my view a very curious and misconceived submission. As I expressed at the time I was (and remain) clear that:

After the lunchtime adjournment Mr Metzer stated that he had reconsidered what the reasoning had been for an “invitation” to recall DS Brownsell (as opposed to an application). He stated that the Claimants’ legal team had considered at the time that the Court had no power to order recall of a witness; so the only way forward was an invitation. He submitted that any mistake which he had made should not be held against/adversely affect the Claimants’ case. However he did not explain how the Court should approach the failure to question DS Brownsell about the content of the case summary or respond to the principles set out in Griffiths-v-TUI (UK) Ltd.

As I indicated during closing submissions it seemed to me that I was left with the unsatisfactory position of having to consider each of the criticisms raised of the summary/MG6 (including the matters which were put to DS Brownsell during the extensive cross-examination) against what appeared to me to be the material parts of the documents without the benefit of DS Brownsell’s explanations. No more could be done. I did not take the approach that no criticism could properly be considered because of the failure to take DS Brownsell to the document. However in conducting this exercise it has been necessary to bear in mind at all times the need to be fair to both the witness (DS Brownsell) whose evidence was being impugned without matters having been specifically put to him, and also the Defendant who relies upon his evidence. I was deprived of direct evidence in response to criticisms of the detailed analysis in the summary/MG6. The adversarial trial process is in part based on the premise that the oral evidence of a witness in response to an assertion, and/or oral and written evidence taken as a whole, can result in a factual finding which could not be made on the basis of the written evidence alone.

I now turn to specific issues.

DS Brownsell was pressed on the impact of the NHS enquiry and the views of Mr Ginelly. Mr Metzer suggested that DS Brownsell was somehow influenced by Mr Ginelly (he never clarified how and to what extent). DS Brownsell denied that he was “keen to prosecute” as a result of the referral. As regards the suggestion that appeared to be made that the Police somehow acted inappropriately in investigating the complaint made I could not, and cannot, see the foundation for such an assertion. The Police had a clear duty to take the referral from this department seriously and to carefully consider it. I accept DS Brownsell’s evidence that if there had been a clear picture that it was not a credible complaint that they would have walked away.

DS Brownsell attended the first MIT Operation Meridian briefing on 1^st August 2006 which was conducted by DI Cunningham. DS Brownsell noted at the outset that Mark Deveney had become a whistle blower after his plan to set up another company was discovered and he had resigned. DS Brownsell stated in his statement:

“I recorded in my rough book concerns over the role of Mr Deveney. We questioned whether Deveney was complicit in any fraud and how he may have profited. Right at the outset, the investigation was alive to the circumstances in which Mr Deveney had blown the whistle and we regarded him and his motive with circumspection.”

And

“As regards Mr Deveney, he was not to be re-interviewed as a witness at that stage as it was not possible to show that he was not an integral part of the primary offence. It was noted that as the enquiry progressed a clearer picture of his exact role should emerge.”

And that the following day (2^nd August 2006) in conversation with DI Cunningham, he confirmed that he was unhappy about the status of Mr Deveney who, on the basis of the documents, may have been involved in what had been happening;

“DI Cunningham indicated that we needed to carry out background checks and then re-assess his status, probably in conjunction with Lori Tucker of the CPS.”

The content of DS Brownsell’s rough book entries supported this evidence. He conceded in oral evidence that Mr Deveney came with “baggage” such as the reprehensible behaviour that led to his dismissal and viewing pornography and also that there were complaints about him by others and he was unpopular. However in response to Mr Metzer’s suggestion that he was “ an inherently incredible witness” DS Brownsell stated that whilst he was “tainted”, and they were “ very alive” to his flawed character and potential motivations ,that did not necessarily mean that what he said was untrue and/or that he was not to be believed. What they looked at within the investigation, which he started with an open mind was whether what he said was supported by other evidence and that it was unrealistic to suggest that from the outset they believed everything that he said. He said that “the lines of enquiry established a case to answer” and that “we never thought (there was) no credence in this (Deveney’s evidence)”. DS Brownsell said that it was matter for the Court what reprehensible behaviour was allowed in as bad character and that other lines of enquiry supported what Mr Deveney had said.

I accept as accurate Mr Warnock’s analysis that DS Brownsell specifically drew the issue of Mr Deveney’s credibility to the attention of the CPS in the MG6 which he drafted in September 2007, in which he sought the CPS advice on charge, in terms that were not challenged when he was cross-examined. He gave the view that Mr Deveney would be “savaged” by defence Counsel. Thereafter Mr Tarrant specifically considered the credibility of Mr Deveney, and evaluated his evidence against the other evidence available in the case, in his charging advice of 8 February 2008. Also when, post charge, fresh evidence came to light to cast doubt on Mr Deveney’s character, the police referred it in full to Mr Tarrant at the CPS (the report from DC Horsburgh to Mr Tarrant dated 3^rd December 2008).

DS Brownsell said in evidence:

“I did not believe that his (Mr Deveney’s) evidence was incredible. I believed it through to trial.”

I carefully assessed DS Brownsell’s evidence and having considered it as a whole I am satisfied that this statement is true. Notwithstanding that he considered him “tainted” he believed what Mr Deveney had set out in his statement through to (indeed I am satisfied after) the trial. As Mr Warnock submitted DS Brownsell’s view of Mr Deveney was plainly shared by the CPS and both prosecuting Counsel, who respectively advised the charge, settled the indictment and maintained the prosecution until the point where it collapsed.

Mr Metzer also challenged Mr Brownsell about his references at various stages to “fraud” as opposed to “alleged fraud” and suggested that this revealed a closed mind at an early stage as to whether a fraud occurred or not. In my view there was nothing in the language used that underpins an assertion that before what had happened at Cawston Park was investigated, or at the outset of the investigation, the officers concerned had a closed mind (as to guilt).

DS Brownsell soundly rejected the suggestion that the investigation had adopted a “good cop/bad cop approach” or that references to 1970s policing (“Life on Mars”) were accurate. Having considered the interviews (particularly that of Mr Cooper) and heard some extracts I reject without hesitation that there was some deliberate policy/tactic that amounted to “good cop/bad cop” when interviewing witnesses.”. As regards DC Baker, DS Brownsell stated that he was “good with witness, good at rapport building. He was good at putting people at ease; he finds communality with witnesses”. Having heard DC Baker at some length I can well understand how DS Brownsell formed this view. I can also understand why DC Baker might have been viewed by interviewees as more friendly as opposed to the other more formal/reserved officers including DS Brownsell. However, this does not mean that there was anything unprofessional about the conduct of the other officers. I accept DS Brownsell’s evidence that from his perspective, rather than appearing frustrated and aggressive, he and DC Baker had got in well with Mr Cooper; that Mr Cooper may have had a different perspective (to the extent that he did at the time) is just an aspect of human interaction.

Mr Brownsell also took particular objection to the suggestion that he was under pressure to achieve a successful prosecution responding “No, no I will not have that. There was no pressure to prosecute or get a result. Not at all.”

That the officers acted maliciously and in bad faith due to pressure from senior officers has been a view held by Mr Breeze from the early days of the long history of this matter. In the interview of 12^th July 2007 Mr Breeze referred to an officer discussing the case at the City Cub and being in tears over it (this must have been a reference to DC Baker) and that Mr Breeze believed that was because his heart was telling him that he was innocent but his head was saying that the powers that be want a result. I pause to observe that the evidence about the City Club did not bear this out. Mr Breeze then referred to:

“A police force being driven by the Health Service that have spent a huge amount of resource on an investigation and they want a result, that result being us being charged.”

When asked by DS Brownsell during interview who the powers that be were Mr Breeze said “the Police and the Health Service”.

At this stage DI Cunningham had retired and the Officer in charge of the investigation was Detective Superintendent Hobley and Mr Breeze was of the view that he was “obviously the powers that be”.

DS Brownsell agreed that these extracts reflected Mr Breeze’s long held perception.

Asked if DS Hobley was alive and well DS Brownsell said that he had seen him about seven years ago. DC Baker stated that he knew that he had a heart attack. In closing submissions on behalf of the Claimant it was argued that an adverse inference should be drawn from the fact that the Defendant did not produce witness statements from DI Cunningham or DI Hobley. However in my judgment no inference can be drawn given that as Mr Warnock submitted the Defendants have produced as witnesses the officers who were directly criticised in the Claimants’ pleadings, including the officers centrally involved in the investigation and liaison with the CPS.

DS Brownsell stated that in August 2006 enquiries with the Healthcare Commission were also discussed and pursued and also that the purpose of the HCC inspection was the need to be sure about patient safety (if the patients needed to be moved as a result of the “day of action” it would cause a critical incident). He was taken to the entry in his rough book;

“HCC inspection of Cawston Park; late September. Showed low staffing levels but no patients at risk. None of the managers knew what “special care” was. Served with statutory notice (1) Cleanliness (2)…(3) Fire no patient complaints. Dominic Wilson present.”

When it was suggested to DS Brownsell that if there were other areas of concern such as the lack of an audit trail that this would have been highlighted, his response was that he believed the primary concern was the safety of patients and he did not know if they were looking for audit trails.

I have already covered DS Brownsell’s failure to ensure a statement was obtained from Mr Graham.

In relation to the interview of Mr Cooper on 1^st September DS Brownsell stated:

“I still recall to this day an opening comment made by Mr. Cooper to the effect that whistleblowers did not last long in the NHS. I inferred from that comment this although Mr. Cooper had indicated he was willing to be interviewed, he may not tell us everything he knew for fear of potential consequences. I also clearly recall Mr. Cooper advising us in terms of the investigation to “follow the money”. He repeated this phrase at the end of the interview process.”

DS Brownsell also set out that:

“Mr. Cooper stated that Andrew Breeze wanted the best for patient care and that extra staffing was no problem.”

Also

“Mr. Cooper stated that whistle blowing was an act of revenge. He said that Mr Deveney was not going to go quietly once he knew that he would be dismissed. Mr. Cooper stressed that Andrew Breeze, Dominic Wilson and David Prior when men of integrity.”

Such observations were of significance if Mr Cooper was ever going to be called as a witness as they revealed very clearly where his loyalties lay. As for extra care DS Brownsell stated:

“He stated again that he did not know what extra care was aimed at, what it was, how it was delivered or who had it, he stated that no one came to him asking for extra staff under the auspices of extra care.”

As for the statement taking process DS Brownsell stated;

“As part of the process, we would have made sure that the contents of the statement appeared to us to reflect truthfully, and without any undue emphasis or omission, what Mr Cooper had said the previous day. In my assessment, the statement was a fair representation of what Mr Cooper told us. It was not and did not purport to be a verbatim transcript of the tape recorded interview, which were retained to evidence exactly what had been said for future reference as required.

At 10.00am we saw Mr Cooper again. He was given his statement to read through before signature. He was under no pressure to agree and sign the statement in a hurry and DC Baker and I were under no pressure to leave Exeter with a signed statement. Had Mr Cooper wished to listen to anything on tape the facility was available.

On the day, Mr Cooper, was as co-operative and willing to participate as the day before. Having read through the statement and considered it, he signed the section 9 Criminal Justice Act declaration to the effect that its contents were true.”

DS Brownsell was taken to the extracts of the interview with Mr Cooper and it was suggested that Mr Cooper made it clear that he had never heard of the term extra care and that the interview was not fairly reflected in the statement. As I have already set out, I reject that suggestion.

When it was suggested to DS Brownsell that Mr Cooper was an important witness his response was that he was “a witness” and he denied that a misleading impression was given to Mr Tarrant during a meeting on 19^th October (also attended by DI Cunningham). DS Brownsell said that he did not remember this conference during which there was no specific reference to evidence as statements would not be given to the CPS piecemeal and he denied that the picture presented was distorted. There is only a short note of the conference recording that it was raised that “Chancellor is still invoicing for extra care” and that the plan was to arrest suspects and seize records on 14^th November. DI Cunningham suggested that it may be appropriate to appoint a receiver to run all the homes and the guidance sought related to receivership/administration, securing of patient records, and restraint. Of significance the note of the meeting records that;

“It will be necessary to deal with the media, particularly taking into account the position of Prior as a former MP.”

And

“With respect to the amount defrauded DC Brownsell indicated that, following the arrests other PCTs may become aware that they have made extra care payments but their patients have not received any extra care. In the circumstances the amount defrauded from the NHS may be about £5 million.”

And

“The problem with the allegations involving “extra care” is that PCTs rely on trust and therefore they did not question at all the extra care payments requested.”

As for the media as I have set out it was the evidence of Mr Prior and Mr Lamb that the press had been tipped off about the arrests. The matter was the subject of a complaint but the review of Mr Fernandes found it impossible progress the enquiry without further information. DS Brownsell said that he was not aware of the leak to the press (or the subsequent complaint) and it is not a matter in respect of which I can make any detailed factual findings.

As I have set out there is no reference to the statement of Ms Gaisford within the summary. This is a surprising omission and her statement includes comments clearly supportive of the Claimants. That the statement was ‘positive’ to the Claimants was pointed out to DS Brownsell in cross-examination (and that she provided evidence about staffing) but he was not specifically pressed about the absence of any reference to Ms Gaisford in his summary. In part as a result of this on the evidence before me DS Brownsell has provided no explanation for this omission. I therefore have to consider its omission against the totality of the case summary and the MG6 (which included reference to other evidence which was supportive of the Claimants), and was accompanied by a large bundle of all the statements the whole of the cross-examination of DS Brownsell and the balance of the evidence. My conclusion, on balance, is that it was not due to a deliberate attempt to suppress evidence or mislead Mr Tarrant.

In his statement DS Brownsell set out that;

“The day of action was flagged for the 14th of November…On the 23rd of October I spoke with DS Kirkham in the ECU to ask who would be available from the ECU and the Hi-Tech Crime Unit for 13 and 14 November. I subsequently spoke with DC Deacon who else to provide a written guidance document on computer seizures for the day of action briefing pack.”

When cross-examined DS Brownsell stated that he could not recall if DC Deacon was briefed about Mr Deveney (who had left the employment of Chancellor Care Limited a year earlier) and that he could only assume the failure to seize the computer on the day was because it “fell between the gaps”. He said that they were later told the content had been downloaded by DLA Piper.

DS Brownsell stated;

“When we arrived it was evident that there had been a leak. There were representatives from the solicitors firm DLA Piper present and there were stickers claiming legal professional privilege on the cabinets and papers.”

I shall deal with Ms Todd’s statements in due course. DS Brownsell did not accept Mr Metzer’s suggestion that Linda Todd’s first statement of 17^th May 2006 was, in broad terms, supportive of the Claimants or that she understood “from a early stage the way that Chancellor Care operated”. DS Brownsell stated that, contrary to this assertion, she stated in her first statement that she believed that she was paying for specialling costs at £13 per hour (and that extra care equated to specialling and would be for short term situations). This was correct although Ms Todd went on to set out that in January 2004 she met with Dr Barker and Mr Breeze and a definition of extra care was explained (she stated in her second statement that it was not until much later that she had an understanding of extra care).

DS Brownsell denied that potential action against Linda Todd for perverting the course of justice which was not progressed (she was informed of this on 17^th December by DS Brownsell and DC Horsburgh) was a device to “turn her into a Prosecution witness”, that she had been “played with” and “softened up” or that her final statement was “more sympathetic to the prosecution”. DS Brownsell said that no pressure was put on her to make a statement. I accept this evidence.

DS Brownsell stated in his witness statement;

“Mr Prior was cooperative and stressed that he had been in a non executive position. He indicated he had not been aware of the police inquiries and had done nothing wrong. Cawston Park was said to offer a higher level of care but he stated the extra care as a concept was very woolly, involved more staff and was not specialling. He said it could involve extra therapy and was an enhanced holistic experience. He observed that there had been a management meeting about extra care.”

And

“As regards David Prior DI Cunningham indicated that so far there was nothing to implicate him and he questioned whether he should be the subject to no further action.

DS Brownsell was not cross-examined about the limited reference to Mr Prior in the summary/MG6. As I have set out I view the failure to address his statement in more detail as a mistake.

DS Brownsell explained that on the 12th of March 2007 he noted that Dr Barker had been contacted the previous afternoon by Mark Deveney. Mr Deveney said that he had been contacted by Dr Simon Barker who wanted to meet him in a pub. DS Brownsell spoke with Dr Barker’s solicitor who told him that Dr Barker had suffered a minor stroke and was in hospital. DS Brownsell also stated that Mr Deveney said that Dr Barker had got very, very drunk and

“Dr Barker was reported to have told Mr Deveney about Mr Breeze and Mr. Wilson blaming him. Dr Barker said he was going to stand shoulder to shoulder with them and could go to prison for something he had not done. Mr Deveney reported that Dr Barker had not told the police the whole truth and that extra care “was a load of crap.”

In his witness statement DS Brownsell set out what he had explained to Dr Barker’s solicitor;

“When asked the question of what PCTs got for the extra money Mr Breeze and Mr. Wilson stated that they were demanding more clinical time and expertise and basically suggested the treatment and resources for patients were down to the senior clinician. I pointed out that when coupled with the fact that no one below Dr Barker's rank knew about extra care on the clinical side, Mr Breeze and Mr Wilson were firmly trying to position Dr Barker within the extra care situation.”

DS Brownsell stated that he liaised with Dr Barker’s solicitor who had said that he was in the process of writing up a prepared statement and that there was no evidence that Dr Barker was involved in a conspiracy to defraud and that;

“I pointed out, that in my opinion, and after speaking to other witnesses, extra care was ethereal, with no audit trail and noted that Dr Barker had stuck to the same mantra about the ethereal concept as Andrew Breeze and Dominic Wilson.”

Mr Metzer took DS Brownsell to the relevant extract in his rough books;

“…I point out that in my opinion, and after speaking to other witnesses etc-extra care is ethereal, non tangible “bollocks”. There is no audit trail. Barker has stuck to the same mantra about this ethereal concept as his Co Defendants/Co accused.”

DS Brownsell stated that his language was clumsy and inappropriate and accepted this was not an appropriate comment and could be viewed as pejorative. However he did not accept that he was dismissive or that anything that was said by Dr Barker which was “positive and aligned” (to the Claimants’ case) was disregarded. Given this allegation it is necessary to consider Dr Barker’s evidence in a little detail.

As regards alignment in his draft witness statement Dr Barker set out his differences with Claimants;

“I felt that up until August 2006 I had been in the situation that I was working at the hospital, trying to do my best for the patients but also looking forward to my retirement. I found myself being drawn more and more into being able to give explanations about extra care. This was something that really hadn't been on my radar until then. I felt that I could justify the concept of extra care as a clinical one, whether the name is correct or not I do not know. I became very confused by what the company were doing with regard to the charging and I think that this was deliberate by the company and I was wittingly used to allow this process to happen. I was used to justify this process clinically. I am really upset about this because at any stage the other people arrested could have said that I was not involved in the process. When I was first being interviewed I did not lie. My explanations were what I thought that I should be saying. I was advised that we should take a common line and not be contrary about anything. The DLA Piper lawyers portrayed themselves as the experts in the case but they didn't ever really sit me down and get my explanation. As time went on I felt that there was a conflict although they didn't agree with this saying that we were all in this together and should therefore stick together…I just felt that the matter was not right. It affected me hugely and I actually felt sick each time I went to those meetings. In the end I sought my own legal advice…When he heard what I had to say he felt that it was perfectly clear but there was a difference between me and Dominic and Andrew.”

Mr Metzer took DS Brownsell to Dr Barker’s draft statement within which Dr Barker referred to discussions with the Claimants about extra care in September/October 2006 and to a board meeting at which he was asked to clarify what extra care was from his perspective and that:

“I’d been asked to prepare these case vignettes to give a pen picture of what the patients were like. I had plenty of work to do and this was a real pain so I had only done a few. The idea was then I could explain to the lawyer, the sort of patient the charges being levy for. The ones that had been charged seemed all right but it's a grey area and I certainly hadn't looked at all the notes.”

Dr Barker then set out the initials of the patients in respect of whom he

Mr Metzer initially suggested to DS Brownsell that an extra charge was justified for “each and every one” of the patients identified by Dr Barker in his statement and then, when it was pointed out that this was simply wrong, refined it to the vast majority of the patients (so leaving aside the patients in respect of which it was not justified).

Dr Barker set out in his statement that;

“I learned that a service level agreement stated that extra care charging should be reviewed every week. But that never happened subsequent to Mark Deveney leaving. I don't even know if he was doing it before. There was no review mechanism that I could see and I don't know how you could justify patients like DMF and other long term ones being charged for extra care when the condition wasn't changing so the whole thing just carried on. This was a less defensible set of circumstances, you could argue clinically what this (sic) patients require and you could argue if it was a risk premium for what they might do or what might result but I'm finding it difficult to justify the charging for extra care for the long term patients where it can be seen how they are likely to need to be treated. I voiced those concerns with Andrew and Dominic and at a meeting with DLA Piper. My view was we should stop levying the charge but the view was that we should carry on. I even raised that DMF was going out on leave three nights a week and my report was saying he was doing pretty well at the time. This made the extra care charge untenable so his was actually stopped.”

In respect of the cohort of patients who were charged for extra care Dr Barker stated that “in general they were patients who were at the more challenging end of the scale”.

As for other specific patients he said that he was “quite surprised” that EC was the subject of an extra care charge (he was doing “quite nicely on an open unit”). DS Brownsell pointed to Dr Barker’s comment that:

“D jumped out of the page at me as someone who didn’t fit the criteria of what I understood extra care to be. In my discussions with DLA Piper. D still being charged for extra care didn’t equate with the concepts we’d discussed. I can’t say what the intent was with regard to this situation.”

Mr Metzer suggested that DS Brownsell had reached conclusions about charging in advance for extra care which were further evidence of “a closed mind” (a curious question given the Claimants’ case that he did not believe in the Claimants’ guilt”). In interview Dr Barker stated that he did not know until he was informed during his interview that extra care was charged for in advance. He stated;

“I just, I still can't really get my head around that, how, I mean that again is something that's just so, such a crazy thing to do…if I'd known a year ago I might have, I don't know things might have been different but you know you can't, it's just impossible to you know the philosophical thing that I've been talking about is fine but again that financial thing doesn't tie up to the philosophy if it's been charged in advance it's impossible, it's an impossibility to justify that from…you can't do that in advance, it's impossible…it just doesn't make any sense so I think if I had been told that I'd have said you know a year ago I'd say well that's just crazy that doesn't work that's not right I just can't understand it.”

Dr Barker also stated that extra care was not recorded in his notes (the clinical notes). In interview he discussed specific patients but DS Brownsell said that after a discussion with the Medical Defence Union he would not sign a statement containing the detail.

Dr Barker’s unsigned statement was sent to Mr Tarrant (with other statements) with a letter dated 25^th January 2008 which stated:

“This is the draft statement which Dr Barker has agreed. I've not precised it here as it really needs to be read and absorbed in its entirety. Dr Barker was on the cusp of signing it when he decided that he ought to submit it to the GMC as within the statement he names patients and gives clinical information which could be viewed as a breach of confidentiality…A copy of the signed statement will be forwarded to you immediately on receipt.”

At a conference on 2^nd April 2008 with Counsel and Mr Tarrant (attended by DS Brownsell) it was noted;

“Discussion on Dr Barker; we have draft witness statement from him. He has expressed reluctance to provide a detailed statement as he could be in trouble with the GMC for breaching patient confidentiality.”

Counsel advised:

“Dr Barker should be taken through each of the 24 patients. Counsel advises that we should serve the best evidence we have from Dr Barker…so defence know at the earliest opportunity we are using him as a witness. Mr Tarrant indicated that he was happy to speak to Mr Gentle, the solicitor who represented Dr Barker when he was being investigated, Mr Gentle has a good relationship with Dr Barker and could hopefully assist us in obtaining a full statement from him. Doctor Barker should be reassured that the court would not allow patients details to be reported.”

In my view the issue of patient confidentiality should have been immediately addressed by the enquiry team although this could also fairly be seen as a matter which Mr Tarrant should have addressed. As DS Brownsell stated the draft statement was of some assistance to the Prosecution case given the comments about his surprise certain patients were on an extra care charge; but it also needed to be carefully considered in respect of what was said about the other patients; which tended to support the Claimants’ assertions.

Mr Metzer raised an (unpleaded) allegation with DS Brownsell, on a basis that I did not follow, that there had been a further unsigned witness statement from Dr Barker that had been suppressed. After an exchange (Mr Warnock having objected to the allegation being put) Mr Metzer conceded that he did not have an evidential basis for this assertion. I am satisfied having heard all the relevant surrounding evidence that any such suggestion had no foundation in fact.

DS Brownsell stated;

“On the 28th March, DC Baker interviewed Martin Ward. I have no entries in rough book serial number 010482 in relation to that interview, in which my last entry before almost 20 blank pages refer to the 16th of March 2008. My next rough book entry appears in rough book serial number 011321 on the 2nd April 2008. I cannot now recall whether I made any entries in relation to DC Baker’s interview with Martin Ward. If I did, then I would have done so in a separate rough book which has been misplaced and is no longer available. Is equally possible that I did not make any entries in relation to that interview as we had entered the post charge phase when the CPS effectively took ownership of the prosecution through to trial. When I was questioned about the missing rough book as part of the IPCC investigation of Mr Breeze’s complaint, there was a general assumption that a book existed and I answered the questions accordingly. But I'm not sure that the assumption was correct. I note that on the 28^th March 2008 DC Baker made a number of entries in his rough book in relation to the interview with Martin Ward.”

In my judgement the “missing rough book” allegation took the Claimants’ case no further. Given that, as stated, the interview was after the Claimants had been charged and was conducted by DC Baker it is difficult to see how it would have been in DS Brownsell’s interests to dispose of or suppress this particular book; given the disclosure of all the other books.

DS Brownsell stated that;

“DC Horsburgh was tasked with identifying appropriate non extra care and extra care patients to enable a comparison regarding staff. He was to identify a person suitably qualified to provide an overview of patient notes to ascertain if anything extra had been provided.”

DS Brownsell called the National Policing Improvement Agency (NPIA) and was provided with the details of Dr Richard Badcock. He continued;

“The rationale for instructing Dr Badcock as an Independent clinical expert is explained in the policy book entries. Dr Badcock's views, albeit not at that stage in final evidential form, were facts noted in Chris Tarrant's decision to charge and approved by his seniors in the fraud prosecution service.”

Criticism was levelled post trial at the choice of Dr Badcock as an expert given his limited expertise of hospitals such as Cawston Park. However I am satisfied that it provides no support for the Claimants’ case as to malice/bad faith. It was believed by the enquiry team that he was a suitable/appropriate expert.

DS Brownsell was taken to an analysis of all patients treated at Cawston Park from January 2004 to September 2006 and whether and to what extent they were the subject of an extra care charge. He stated that it was produced by Mr Wilson and served during the criminal trial. He was also taken to a breakdown that showed that the total paid for extra care by Suffolk, Norwich, Hertsmere, Peterborough and Hampshire PCTs was £2,498,790.

Ds Brownsell stated:

“The allegation at Cawston Park centred on charging for extra care which may not in fact have been provided. There were no allegations of similar activity at Kelling Park. During the investigation, Frank Ginnelly of NHS was tasked to look at Kelling Park invoices to see if anything untoward emerged. Had anything emerged, then activities at Kelling Park may have been included in the investigation.”

Challenged on this issue by Mr Metzer DS Brownsell said that Kelling Park was not part of Mr Deveney’s allegation, that the Claimants were not running Kelling Park and no evidence of fraud was raised by the NHS and they did not look at this institution or at the Children’s home. He stated that the investigation team considered Kelling Park to be separate and that he did not think that he affected the Team’s thinking (also referring to Mr Chancellor having said that there was no extra care at Kelling Park). DS Brownsell was clear that he did not see the relevance of what had happened at Kelling Park to the investigation at Cawston Park.

Mr Metzer suggested similarities between Kelling Park and Cawston Park including that they have the same philosophy; however DS Brownsell said he did not know the detail of Kelling Park as he did not investigate it (although he did have the evidence from Mr Chancellor’s first statement, which he set out in the summary). I am satisfied DS Brownsell was setting out his honest belief at the time, and also that it was a reasonable view on the basis of all the evidence obtained and the focus of the investigation.

DS Brownsell stated that;

“As is evident from my rough book entries, the process of obtaining a statement from the author of the due diligence report was somewhat arduous. The PwC report needed to be considered in the context in which it was produced. It was not, in my assessment, a forensic investigation into the extra care component of Chancellor Care’s business.”

He agreed that it was a substantial document also stated that he could not recall reading the report and did not know if he focused upon it. He said that they made inquiries at PwC and were met with “a wall of lawyers”.

In his witness statement DS Brownsell stated;

“On Sunday the 15^th April I held a briefing with members of the team. I noted that DC Baker had in hand statements from Tony Chancellor and Sandra Grunwald and also enquiries with regard to the due diligence report. I noted a question as to whether those who had produced the report had simply accepted what was said when compiling the report. I also noted the work being undertaken by DC Flynn and PC Doust.”

Mr Metzer suggested this substantive report was being immediately downplayed and not being given sufficient weight. DS Brownsell repeated that the team were having difficulties with the lawyers and were making enquiries of the PWC report authors. In re-examination DS Brownsell was taken to a statement which was obtained from Mark Benka, a senior manager within PwC. Mr Benka stated;

“We did not carry out an audit, nor, except where otherwise stated in the report, did we subject the financial or other information contained in the report to checking or verification procedures. The primary point of contact was the finance director, Dominic Wilson who provided the financial information we requested. Chief executive officer Andrew Breeze provided information on commercial and operational matters…During the course of our work, the team was made aware by management of the term “extra care”. For Chancellor, it represented a source of revenue…which was explained as follows based on the teams discussions with both Andrew Breeze and Dominic Wilson during April and May 2005;

An alternative to specialling – the practice of other mental health providers of providing extra staff to an individual on a one to one basis (or greater) if their behaviours warranted it. Unlike specialling however, extra care was differentiated in that instead of the patient being “shadowed” or “followed “closely (this was believed to exacerbate challenging behaviours) the behaviours were managed and contained through an increase in both observations made by care staff and interventions (treatment) delivered by the clinical team. This varied significantly from patient to patient depending on their clinical needs and included additional support worker time, greater input from psychologists/psychiatrists and mental health nurses. Patients were placed on extra care typically after an incident or following a move down to a less secure facility or after observing behaviour patterns that warrant it. The PCT's were informed either before or soon after the extra care was implemented. I should make clear that I have no medical, mental health or clinical qualification or experience – my understanding of extra care was based on the information provided to me in preparing the due diligence report and related to its effects on Chancellor’s financial position.”

Mr Benka’s unsigned statement was forwarded to Mr Tarrant on 25^th January 2008 as one of a number of further statements “to assist in your deliberations”. It was stated “Benka will talk about what information he received as part of the due diligence process and from whom”. In my judgment it is clear that the PwC report was not ignored and that appropriate steps were taken to gain evidence in relation to it which was submitted to the CPS. I shall return to this report.

DS Brownsell could not recollect if he was responsible for the wording of the questionnaire sent out by the enquiry team or not.

The questions asked of staff were:

“6.

What was the normal staff/patient ratios where you worked at Cawston Park?

7.

Have you any comments regarding staffing levels at Cawston Park?

8.

Have you any comments about the resources provided at Cawston Park (i.e. cleaning, food, hygiene etc)?

9.

Have you any comments about the standards of care provided at Cawston Park?

10.

What Activities/Therapies were/are offered to the patients at Cawston Park?

11.

Did any patients receive activities/therapies above and beyond that normally offered at Cawston Park?

12.

Do you have any knowledge of patient costs i.e.charge to P.C.T’s (Primary Care Trusts)?

13.

Do you have any comments about any aspect of bow [sic] Cawston Park hospital was managed? (Good or bad)

14.

In relation to the term ‘Extra Care’ at Cawston Park, have you ever heard of this term?

15.

If so what do you understand ‘extra care’ to be, how was it delivered?

16.

Where [sic] there any patients that required more staff time than others, if so please name them. NOTE: - Patient confidentiality will be respected.

17.

Any other comments you wish to make please do so below.

Mr Metzer suggested that save for question 16 the questions were “useless” and were irrelevant to the question of fraud. He suggested that the following questions should have been asked instead:

DS Brownsell disagreed with Mr Metzer about these proposed alternative questions. I have to say that I found the suggestion these were the questions that should have been asked or even that they would have been potentially better questions asked, to say the least a very difficult proposition to follow in the context of this case. The relevant issue can only be whether the questions actually asked were somehow inadequate or irrelevant or biased such as to evidence in the questioner, an inappropriate mindset. The questions asked were in my judgment clearly appropriate and sensible given the scope of the investigation. In any event as regards Mr Metzer’s suggested alternative questions the answers to questions 1 to 4 could not sensibly be anything other than in the affirmative given that staff were concerned with a cohort of patients in a mental hospital with a variety of illnesses/disorders; in symptoms and presentation, very far removed from a homogenous group. Questions 5 and 6 did not need to be asked of a wide range of staff as they could be asked of the clinicians/those who attend such meetings and the PCT commissioners. In my view Mr Metzer sought to substitute for an unobjectionable series of objectively sensible questions a set of questions which (save for the last two) could reasonably be described in the very terms he used for the questions actually asked.

As for the alleged telephone conversation DS Brownsell was very clear in his evidence that he “absolutely did not say that it was going to trial as it was the CPS which was the decision maker”. When considering the conflict of fact I have taken into account all that DS Brownell is recorded as having said at the time. I note that when interviewing Dr Barker after a year of the investigation DS Brownsell stated at one point.

“…if this matter goes to trial, and I personally would like to see it, I personally wouldn't be sitting here wasting your time if I didn't think that was going to be the case…”

Having considered the evidence given by Mr Bull and DS Brownsell I am not satisfied that DS Brownsell made the unequivocal comment alleged. Mr Bull may have formed the view that DS Brownsell was of the view that it was likely to happen; but that is different to him having made the bold statement alleged.

As for the suggestion that he put pressure on for the Claimants to be dismissed DS Brownsell stated that he was a Detective Sergeant from a provincial force whereas Mr Bull was used to dealing with millions of pounds and questioned why he would want to see the Claimants sacked and that the suggestion was “wholly wrong and deeply silly”. He said that he would not remotely consider it and (and that if he did that it would be wrong). Again having heard Mr Bull and DS Brownsell I accept this evidence.

DS Brownsell stated;

“…when criticism of the investigation was received from DLA Piper in early February 2008 and Chris Tarrant forwarded that criticism to me for a response, I considered again Mr Drewery’s questionnaire. I noted that Mr Drewery said that he lived in a caravan on the site and was a support worker. He may have overstated his role. As we were conducting an investigation to seek an explanation of extra care, I noted that Mr Drewery said that he had never heard the term extra care. There was, in my assessment, no evidential value in terms of the investigation. Extra Care was the focus and Mr Drewery could not comment.”

DS Brownsell stated that he did not recall ever seeing a statement from Mr Drewery. Mr Warnock took him to letters of 4^th February (Mr Tarrant to DLA Piper) within which he asked whether the extracts set out in the letter of 1^st February were from witness statements and the letter of 5^th February in response stating that “ it is not appropriate for us to disclose what we have received , from whom and when...as you would expect we continue to identify those people who may be able to provide support to the defence…”

Given that Mr Drewery was a support worker dealing with activities and that his manager (and wife) had given a statement and that he never heard of the term extra care, I accept DS Brownsell’s response was, objectively, a reasonable one. In any event it was his honest view and there was no attempt to deliberately suppress evidence which may assist the Claimants’ case (of course it was the Claimants’ solicitors who pointed to his evidence and they would have the opportunity to call him as a witness if he could assist). As I have already set out DS Brownsell sent Mr Drewery’s questionnaire to Mr Tarrant.

A short way into the trial Mr Breeze made a request that DS Brownsell not be in the courtroom. The prosecuting team agreed to this but no reason was given to DS Brownsell at the time. He stated that after the court case a criticism was made that he was being “passively aggressive” in the precincts of the Court. DS Brownsell denied that he acted in any way unprofessionally or inappropriately.

This was not an issue that I was able to determine on the evidence before me given the very high subjectivity of the issue of whether a police officer was being passively aggressive (as was the opinion of Claimants and some witnesses) when sitting in the Court (whilst in plain view of everyone else in the Courtroom). However in the circumstances it was not an issue which I felt necessary to determine.

DS Brownsell was taken to extracts from the interviews of Mr Breeze and it was suggested that he was clear in his answers on the central issues. DS Brownsell disagreed and said that there was no single explanation of what extra care was; rather different explanations, a lack of clarity and conflict between the accounts from the Claimants and Dr Barker and also other witnesses which the team considered. When taken to an extract where Mr Breeze stated when asked what form extra care took (what would they get extra) and answered:

“…what's in place is a high level of skilled staff...who will target patients, now from a clinical point of view, I guess that is a question from Simon Barker and the clinicians, I would expect patients to take up more of Simon’s time...”

DS Brownsell pointed out that the explanation was not consistent with evidence as to staffing (it also conflicted to a degree with the evidence of Dr Barker).

During cross-examination DS Brownsell was taken to Mr Breeze’s answer to the question “can you tell me what extra care means” which was that:

“Extra care is a financial term…depending on the clinical information that is coming in, if you bear in mind the way I’ve just described how we’ve set up Cawston Park in terms of staffing…we needed to find a mechanism for charging more for the more difficult patients…(Deveney) would bring clinical information to myself and Dominic and we’ve got a list of patients up on the board and he would identify for us who clinically was taking up more of the time than other patients...and it was on that basis that an extra care charge was sought. Now generally speaking that level of clinical input would mean that if a patient wasn't at Cawston Park in another facility they would probably be being specialled...it was that sort of clinical discussion that we had and the discussion would be between Mark, Simon and myself.”

And when asked if there is the definition for extra care that Mr Breeze answered

“There is a definition for extra care which is written into the Norfolk PCT contract …Norfolk is the only PCT that we actually have a contract with… other PCTs…they spot purchase from us so information like that would be passed over to them in discussions and telling them about it after assessment.”

DS Brownsell was not taken to his detailed analysis of Mr Breeze’s interviews in the case summary or the analysis of the statements from the relevant people at the PCTs (or the original Norfolk SLA which conflicted with this explanation). Mr Metzer criticised the paragraph in DS Brownsell’s statement for this action that:

“Mr Breeze categorically denied fraud and generally believed he had never done anything wrong.”

as inadequate given the very lengthy interviews and transcript.

In the absence of cross-examination on the content of the summary I have considered the lengthy analysis of Mr Breeze’s interviews and objectively it is a reasonably accurate precis of the lengthy interviews. It is difficult to see where there is any “slanting” or deliberate misrepresentation.

DS Brownsell denied bursting into an interview with Mr Breeze with a torn piece of paper stating that it proved Mr Breeze’s guilt. He described it as “a minor bun fight” with Mr Breeze’s solicitor about privilege for a note (a photocopy was produced) found in a bin. I accept this evidence.

DS Brownsell was also taken to the interview of Mr Wilson in which he stated:

“We have always said to clinicians, to commissioners that we do not do one to one nursing...extra care is about engagement, we may require extra resources we may not...that is about us managing this particularly difficult patient…we, we realise that people struggle with it, we did realise…which is why we made sure that for our SLA we had built in our explanation was built into the SLA and were very clear with the commissioner do you understand what we mean by this.”

DS Brownsell was not taken to the analysis of Mr Wilson’s interviews or the extracts from the Commissioners’ statements in the case summary which showed a lack of clarity and also misunderstanding (also that the initial SLA appeared to be in direct conflict with this explanation). DS Brownsell stated that whilst Mr Wilson was giving an explanation of extra care it did not correlate with what the investigating team saw and found.

In my judgment there is no proper basis for criticism that the (again lengthy) analysis of the interviews of Mr Wilson was slanted or somehow inadequate.

Mr Metzer also took DS Brownsell to the statement of Mr Chancellor. He referred to a number of extracts and suggested that what he was saying was clear. Mr Metzer stated that the comment in DS Brownsell’s witness statement in this action that:

“I recorded that Mr Chancellor had indicated that he would not distinguish between extra care and specialling. It was the same thing. Extra care, according to Mr Chancellor, was whatever it took to get the patient over the episode, the episode being a state of heightened mental ill-health, including suicide, violence self harm and so on. Extra care was the application the resources according to the patient’s needs. An episode lasted for as long as it lasted, from a few minutes to a couple of days. According to Mr Chancellor, an episode did not last for weeks months or years.”

was “slanted”.

However a problem with this line of questioning (DS Brownsell did not accept the suggestion made) is that Mr Metzer did not take DS Brownsell to his precis in the case summary of what Mr Chancellor had said. Also, as I have explained, Mr Chancellor thought it necessary to compile a “clarifying statement” because he believed what he had said was not clear and could be misunderstood. I do not accept that what DS Brownsell set out in the summary about Mr Chancellor was in any way “slanted”. The reality is that Mr Chancellor’s first statement provided support for the prosecution case.

DS Brownsell was taken to a letter of 10^th Aug 2007 from DLA Piper to Mr Tarrant enclosing an unsigned document produced by an unspecified author entitled “The Philosophy of treatment at Cawston Park and the extra care charge”. It was suggested that it was a “succinct and helpful” document which supported the general proposition that if a prosecution was commenced it would fail. DS Brownsell disagreed with the suggestion that the document was “a complete and full justification and explanation” and denied that the failure to accept its contents was “another example of a one eyed approach “to evidence (although such a document, produced after the Claimants had been interviewed and with unknown provenance would not be evidence).

DS Brownsell accepted that the statement from Mr Ward and sent by DLA Piper was supportive of the Claimants. Within the interview conducted as part of the IPCC investigation DS Brownsell recollected (it is unclear what documentation he had available);

“…(Mr Tarrant) phoned me and said I got a statement...It was projected by DLA Piper, here's this great guy, Martin Ward, look at his statement. These the reasons why you shouldn't charge our clients…

We read through it all and effectively that statement was forgive the phrase it was flim flam. I am this, I am that, I do that…Throughout his discourse he made reference to various medical documents or papers or whatever to back up his argument. But what he, what he didn't say and what so many people of the defence camp didn't say is what was extra care, how was it applied.”

And

“…we constantly got from these people, including Martin Ward, is extra care is not this, extra care is not an extra care is it but they didn't say what an extra care is… so consequently in around that time there was some nonsense from DLA Piper about well you're not seeing all the witnesses, you're just cherry picking who you see and all this sort of business and they put up various individuals people like groundsman and so forth I mean with not disrespect to the guy who makes the grounds look good he's very unlikely to know exactly what extra care is…”

And

“Martin Ward was one of numerous people that had to be seen and he just came over the horizon at us.”

DS Brownsell confirmed his view in that interview that Martin Ward was not a significant witness. During cross-examination DS Brownsell struggled to explain how he arrived at or justified this view.

Mr Metzer asked if Mr Brownsell still believed in the guilt of the Claimants. Mr Brownsell chose his words in response very carefully. He said that they had been found not guilty and he “concurred with the system”. He was pressed on his answer, including whether he was “Quite sore about it (the failure of the prosecution). Eventually Mr Brownsell stated that he still had “sceptical view” of what had occurred at Cawston Park. I had the benefit of listening to and observing Mr Brownsell and I am satisfied that he was downplaying his current belief given what has transpired. I have little doubt that he still believes that there was some element of dishonesty in what the Claimants did in respect of charging for extra care. I was surprised by the questioning given that the Claimants’ case is that officers did not honestly believe that there had been dishonesty.

Having carefully considered all relevant evidence put before me I am not just sure on balance I am sure beyond reasonable doubt that at no stage before or after the submission of the report to Mr Tarrant did Mr Brownsell form a view that the Claimants were innocent or that the evidence obtained would not be sufficient to prove their guilt. His evidence was in my judgment compelling in this regard. It is noteworthy in my judgment there is not even the slightest suggestion that supports the proposition he believed that they were innocent of wrongdoing within any entry in one of his numerous rough books or notebooks. Further, the evidence concerning conversations before, during and after interviews (i.e. comments which were not recorded) and, in so far as it was relevant evidence of conversations with people at the City Club, all points in the direction of him believing before, during and after the investigation and trial that the Claimants were guilty of fraud. Indeed I think that any other finding would be perverse.

At the conclusion of the cross-examination Mr Metzer put the pleaded particulars of malicious prosecution to DS Brownsell seriatim. Unsurprisingly DS Brownsell simply answered in the negative to each one (save that he agreed that Mr Deveny’s computer was not seized) and stated that he believed that the Claimants had a case to answer.

In re-examination DS Brownsell explained that he submitted his summary and MG6 and wanted the CPS to take a decision. If the decision had been that there would be no charges “we would have moved onto the next case”. I am not satisfied that it would have been so readily accepted without demur given DS Brownsell’s belief that there had been dishonesty and the time and effort that he had spent on the investigation before submitting the documentation to Mr Tarrant. However I do not accept that this would have been seen by the rest of the team as a huge blow.

DC Baker retired from the Norfolk Constabulary in September 2020 at the rank of Detective Constable and with 28 years’ service.

It was suggested to DC Baker that if the investigation had not proceeded to a prosecution he would have been very disappointed and that he had a personal desire to see the Claimants prosecuted through to a conviction. However the very clear view that I was able to form having heard his oral evidence was that DC Baker personally would have returned to other major investigations; murders etc relatively happily and he was not overly enamoured with being involved in a large scale fraud investigation of this nature. He did not possess the eagerness to see the case through to a concluded trial which was suggested to him. DC Baker was as he stated doing what he was told to as part of the team and no more. As he said at the outset of his evidence he was not “excited” about being involved in the investigation; “fraud would not fill me with excitement”.

As with DS Brownsell, DC Baker provided a comprehensive statement in chronological order setting out the steps which he took within the investigation. It is not necessary to set out the detail except in relation to specific issues raised with him.

DC Baker denied being aware of “Powers that be who wanted a result”. He stated that he followed the lines of enquiry which he was told to follow.

DC Baker was taken to the report of Steve Fernandes and the annexed review of Operation Meridian by Detective Superintendent Henwood containing the outline of the role of the Senior Investigating Officer (“SIO”) as the lead investigator which included the statement that a key part of the role was “to develop an investigation strategy that feeds into and identifies main lines of enquiry for the investigation to follow”.

DC Baker said that he was not aware of the lack of a formal strategy (the point was not put to DS Brownsell). It was pointed out that none of the SIOs would be coming to account for their “practices” or involvement in the enquiry. In my judgment the report was accurate in that the day to day running was passed to DS Brownsell and he was the “key” member of the team.

DC Baker said that Mr Cooper’s interview was one of the first, he had no idea how important it would be and would not say it was “make or break” for the enquiry. DC Baker was clear and firm that Mr Cooper was not told that they already had enough evidence and would have been told that there was a fraud investigation into extra care.

DC Baker said that Mr Cooper was “very cagey and protective” and that in between tape changes he advised them to “follow the money”. He also said that a whistleblower in the NHS would be committing financial suicide.

It was put to DC Baker that there was a “good cop and bad cop” approach and he responded by stating that he was “not in Mr Cooper’s mind” and questioned why on earth they would have behaved like that if they wanted an interviewee to trust them.

DC Baker rejected the suggestion that some important matters explained by Mr Cooper in the interview were deliberately not contained in the statement; such as that there was an assessment of a patient before they were accepted by Mr Deveney. DC Baker stated that he did not accept the suggestion “for one moment” and that he believed that the statement was a fair reflection of what was said in the interview.

It was also put to DC Baker that the summary was “false” and “deliberately skewed” and gave “a false picture” as regards Mr Cooper. It was at this point the fact that this allegation was not put to the author of the summary (DS Brownsell) was raised.

DC Baker said that DLA Piper knew in advance about the Police search as they were on site putting labels on materials with the words “legal privilege”. He also became aware after the event that the press had been tipped off about the arrests, something which he considered “disgraceful”.

DC Baker did not believe that Ms Gaisford volunteered information about Mr Deveney’s computer. It was a very busy day and he was overseeing matters and nobody reported the issue to him.

DC Baker said that he did not remember a conversation with Ms Gaisford when she asked where the investigation was going; but said that he did not say that the “powers that be want a result”.

DC Baker recollected a conversation with Mr Miller inside the club after a meal. Mr Miller said that he knew DC Baker could not talk about it but if found guilty what sort of sentence would Mr Breeze get. DC Baker said that he made a guesstimate of two years. DC Baker said that he did not say that Breeze would get charged.

DC Baker explained that he took DC Flynn for lunch at the club. He tried to avoid attending at the same time as Mr Breeze and had an arrangement with the Club steward; if Mr Breeze’s name was on list for an event DC Baker would not attend. However on one occasion he did not get the call; this being the occasion when he had taken DC Flynn.

DC Baker explained during cross-examination that Mr Pointer spoke to him and later phoned and apologized for what was he had said. His witness statement sets out that:

“I recall at the very first function I attended at the club after Mr Breeze’s arrest, I was confronted by a former police officer named Steve Pointer, who had seconded me for membership. Mr Pointer made a number of inappropriate comments to me regarding my involvement in the case. Mr Pointer subsequently telephoned me to apologise for his behaviour. Unfortunately, when intoxicated, Mr Pointer continued to bring the matter up when I was in his company. As a result I began to scale back my attendance at club functions.”

DC Baker said that he was “absolutely not” trying to damage Mr Breeze’s reputation amongst peers.

DC Baker said that it was odd but he had no recollection of going to see Mr Bull.

He denied that there was a “disproportionate interest” in anything that Mr Bull said which could give “a negative slant” to Mr Breeze and Mr Wilson”. He said that DC Flynn wrote the statement and there were no deliberate omissions (such as Ian Scott saying that they could charge more) and he believed the statement was a fairly good reflection of the interview. He did not accept that there was anything wrong with the statement.

DC Baker was challenged about the very limited reference to Mr Bull in the summary but pointed out that he did not have any part in the preparation of the summary and had not read it. In his witness statement he set out that;

“On 29th and 30th of August I made notes regarding specific exhibit movements for the draft MG5. I was not responsible for drafting the MG5 but the whole team did provide some input by way of collective views it's a fairly early stage.”

In his witness statement DC Baker stated that;

“On Tuesday 24th of April I met Malcolm Savoury, together with Tony Chancellor, to take a statement from Mr Chancellor. Mr Savoury was Mr Chancellor's solicitor… the interview was taped recorded and I made notes in my rough book. It was recognised that Tony Chancellor's evidence was important. As a result, the tape recordings of his interview were subsequently transcribed verbatim and then transferred to an MG11 statement in readable statement form. Once the lengthy process was complete Mr Chancellor was provided with a copy to check over and amend as required before he signed when I visited him at home.”

And

“I recall that shortly before Mr Chancellor was scheduled to give evidence at the criminal trial, his solicitor, Malcolm Savoury called me to say that Mr Chancellor had seen his statement and thought it would be a good idea for me to speak to him. Mr Savoury put it in terms of avoiding “wrong footing the prosecuting barrister”. I spoke with Mr Chancellor and asked him about his issue. He explained that, following advice (which I presumed was from his legal team), he had some concerns over things in his statement. When I asked him to clarify he told me that he should not be giving his opinion on matters he had not witnessed first hand. As a result, my impression was that he had received advice about hearsay evidence. As a result of the phone call, I contacted my colleagues attending the trial at Ipswich Crown Court to ensure the matter was brought to the attention of Mr. John Farmer, Prosecuting Counsel. I subsequently received a return call from a colleague to tell me to inform Mr Chancellor that he would be taken through his evidence in chief and any hearsay evidence issues would be matters to be dealt with by the Judge and the legal teams”

And

“at no stage did I form the impression that Mr Chancellor wished fundamentally to change the contents of his evidence. I was as surprised as the rest of the investigation and prosecution teams when he gave different evidence in the witness box compared to that contained in his signed witness statement.”

When asked about the interview DC Baker pointed out that Mr Savoury was present and made comments. He denied that he spoke with venom about the Claimants or was at any time threatening; including during any cigarette breaks. When extracts were played they supported DC Baker’s evidence as to his demeanour and attitude (which was described by Mr Cooper as the “good cop”) and did not support Mr Chancellor’s account. By way of an example in an extract played Mr Chancellor described the extreme behaviour of one patient at Kelling Park and that as a result of it

“we would put some sort of costing to that based on how much, and it’s a very imprecise science but based on a rough estimate of what extra care…It's not to be confused with extra care at Cawston. That's a different thing”

to which DC Baker responded

“what you've brought up Tony will go with you whatever you want to go with because that does form a bit of the inquiry.”

Mr Chancellor then said “but extra care at Kelling I think was different to what was at Cawston” to which DC Baker said “let’s hope so”. When heard on playback the suggestion that this comment was an attempt to manipulate Mr Chancellor (who had already made his view clear unprompted) becomes unrealistic. Having considered the interview transcripts and the evidence of Mr Chancellor and DC Baker I reject without any hesitation the suggestion that Mr Chancellor (who had his solicitor present) was objectively or intentionally oppressed during the interview or that DC Baker spoke with venom at any time (including when the tape was not on).

I also reject the suggestion that DC Baker deliberately asked leading questions (the suggestion being that the question “but it would without a shadow of a doubt be something extra (?)” was an attempt to “manipulate” the evidence or trick evidence from Mr Chancellor that he was otherwise unwilling to give and showed malice. The suggestion that the shock expressed by DC Baker at the end of the interview was not at its damning content, rather shock that he had successfully managed to get answers that Mr Chancellor “did not set out to give you” is equally unrealistic.

I also accept the evidence of DC Baker that he was not particularly interested in Kelling Park save that was where “the Chancellor Way” began as it was in his honest view a completely different proposition to Cawston Park; very much smaller and therapeutic.

There was a suggestion that transcripts compiled were somehow “hidden” from the CPS. Given the content of Mr Chancellor’s statement (which was helpful to the prosecution and which fairly reflected the content of the interviews) and the fact that the transcripts would be on any disclosure schedule I reject this suggestion as without foundation.

DC Baker explained in his witness statement that;

“On 29th November 2007 I met with Tony Chancellor at his home address. We discussed Martin Ward. I had become aware of Martin Ward because DLA Piper had produced a statement from him and I was tasked with seeing him in interview as a result.”

Mr Chancellor signed a second statement dated 29^th November 2007 in which he noted at the outset that he had been asked about his knowledge of Martin Ward. The statement concluded:

“(Martin Ward…was an employee who is employed to transfer my working principle from Kelling to Cawston Park and demonstrate the positive results through recognised assessments and research tools. I would like to emphasise again that my views and practices could only be effective if the correct amount and quality of staff were available to deliver it.”

DC Baker was pressed as to whether Mr Chancellor had ever said this. I am satisfied that the statement properly reflected what Mr Chancellor said (Mr Chancellor did not contend otherwise in his statement for this action).

Having heard both Mr Chancellor and DC Baker; I find that DC Baker’s recollection about their interaction shortly before the trial is the accurate one and Mr Chancellor did not mention misinterpretation, specialling or extra care. For the avoidance of doubt I also reject without hesitation the suggestion that DC Baker supressed a clarification statement (that he had not seen) and did not obtain it as he knew he was not going to be helpful. This would be a rather hopeless attempt to assist the prosecution as DC Baker would have known that Mr Chancellor was going to give evidence and would obviously recognise the risk that any altered/new evidence would be a surprise which could “wrong foot” Prosecuting Counsel.

Given the content of the DLA Piper statement DC Baker was tasked with interviewing Mr Ward. He did not accept the suggestion that it was not necessary to do so (in my view a misconceived suggestion given the provenance of the statement) and denied that the purpose of the interview was to put pressure on him and to stop him being a helpful witness to the Claimants.

As the IPCC report set out DS Brownsell’s earlier work books (one being missing) state that Mr Ward should be informed of the police knowledge about his departure from the Royal College of Nursing; “DS Brownsell’s rationale was that it would only be fair to do so”. Ds Brownsell decided that Mr Ward’s interview would be tape recorded; but explained that this was normal practice during the investigation and therefore did not suggest Mr Ward was being treated as a significant witness. During his interview with the professional standards department DC Baker said that the interview was to be recorded because they had limited time available with Mr Ward because Mr Ward had an appointment later that day. I note difference in accounts given.

The IPCC report states:

“At 10.52 am 27^th March 2008 Mr Smyth arranged for a letter to be sent by fax to Mr Tarrant…Mr. Smyth stated the content of his letter indicated he was unaware of the date, time and location of Mr Ward’s interview. The letter…requested DLA Piper to be present at Mr Ward’s interview and made clear…the purpose was to observe the interview. Mr Smyth was away from the office for the rest of the day. However prior to leaving Mr Smyth tasked his paralegal Mr Adam Rasul, to pick up any messages from either the Crown Prosecution Service or the major incident team. Mr. Smyth explained that had Norfolk Constabulary given permission for DLA Piper to attend Mr Ward’s interview a local solicitor would have been contacted and ask to attend the interview on their behalf…Mr Smyth stated he was never informed by Mr Tarrant or the MIT a DLA Piper solicitor or representative could be present at Mr Ward's interview…”

Mr Tarrant stated following his receipt of Mr Smyth’s letter dated 27^th March he contacted “Kathy” at DLA Piper by telephone…and informed “Kathy” of the location of the interview which was to take place the following day.

…

By the morning of the interview DLA Piper had been made aware of the date, time and location of Mr Ward's interview.

…

Mr Rasul had contacted the Norfolk Constabulary control room to ask to speak to DC Baker…The control room operator could not connect Mr Rasul to DC Baker, but checked his telephone number for DC Baker to return his call. In conversation Mr Rasul told the control room operator DLA Piper would not be attending Mr Ward's interview. Mr Rasul explained that he needed to clarify something with the officer but did not say what…

The control room officer passed Mr Rasul’s number to DC Baker but failed to tell him that Mr Rasul had said DLA Piper would not be attending the interview.

While speaking to the control room operator, DC Baker said because DLA Piper had been very difficult towards him he was “…In no rush to help them…they want to play hardball…I'll play hardball back”. In his prepared statement provided at interview DC Baker referred to another comment he made “…Don't tell them where I'm going” which he described as a “little joke”.

In his statement DC Flynn corroborates DC Baker’s account that he returned Mr Rasul’s call but there was no reply.

The independent investigation accepts attempts were made to contact Mr Rasul. DC Baker delayed commencing the interview for an hour to facilitate Mr Rasul's attendance which Mr Ward could not recall.”

DC Baker stated in his oral evidence that it was never his understanding that DLA Piper wished to appoint a local solicitor and that he thought DLA Piper were going to arrive to sit in at the interview and that he had made attempts to contact them. He said that he made flippant remark to control room. He said that dealings with Mr Smythe had been difficult.

He also stated that in 29 years in the Police he had never experienced a defence solicitor attending at an interview of a witness so he was initially unhappy with the suggestion. He said that he did not think that another police officer would have reacted differently (DC Flynn said that he had not encountered it in 40 years in policing). He denied that this was because he did not want solicitors to see “his questionable practices”. Within his statement DC Baker set out that:

“Although not representing Mr Ward, DLA Piper wanted to be present to observe his interview. That request was unusual and as a result advice was sought from the CPS fraud prosecutor, Chris Tarrant, who expressed the view that nobody owned exclusive rights to a witness and that as a gesture of goodwill the inquiry team should allow a DLA Piper representative to be present if Mr Ward wanted them to be there…I recall making telephone calls to DLA Piper after I was informed that someone was en route and trying to contact me. I was unable to get through and with time moving on the interview had to start.”

It is unnecessary to make detailed factual findings about the attendance of a solicitor at the interview save that, although he was initially unhappy with the suggestion because it was so unusual (not because of any other reason), I am satisfied that by the beginning of the interview DC Baker was expecting DLA Piper to attend and delayed the start of the interview to enable this.

DC Baker denied that he intended to pressurise or “frighten off” Mr Ward because he had given a statement to DLA Piper which was positive. DC Baker said that Mr Ward had some things which were positive for the Claimants but “quite a lot of stuff not as positive” and what he said was not a problem for DC Baker (i.e. not a problem as far as he was concerned). He stated that he took a conscious decision to raise the issue of his dismissal at the end of the interview as otherwise it could have intimidated him. He set out in statement that:

“The issue of disciplinary charges had to be raised with Mr Ward. I was leading the interview with DC Flynn assisting, and decided that the most respectful way to raise the issue was to do so at the end of the interview, after the tape recording had concluded. My decision was to spare Mr Ward any embarrassment and I recall him thanking me for that approach and understanding at that time. I cannot now recall whether I discussed my intentions with DS Brownsell. Mr Ward asked if the disciplinary matter would come out in court if he should give evidence and I told him that was possible.”

DC Baker stated that he considered Mr Ward to be a “really relaxed man”, it was a well humoured interview and that they shook hands at the end. He said with the benefit of hindsight he should have recorded the exchange in relation to the dismissal. DC Baker pointed out that Mr Ward signed the statement when in Malta and could have altered the content if he was unhappy with any aspect of it.

DC Baker denied that he never had an honest belief in the Claimants’ guilt. He said that it was a properly brought prosecution and he thought that at the time and still does now.

DC Deacon retired from Norfolk Constabulary in 2017. At the material time relevant to this claim he was working within the computer crime unit (also known as the Hi Tech Crime Unit). He attended at Cawston Park on 14^th November 2006 and was involved in the imaging of two computers. Subsequently he was asked to copy the material onto a hard drive for DLA Piper. DC Deacon explained That following the initial copying there was a major server transfer within the unit and when he was asked to provide a copy there was no exact digital fingerprint on three of the files. Of the material seized 0.32% had lost its guaranteed authenticity and 0.11% had been lost altogether. The material in question all related to material seized from the home of Dr Simon Barker. Although it was pleaded that the loss of this material was due to malice, this allegation was not pursued.

In cross examination DC Deacon stated that he did not remember Ms Gaisford or being told anything about Mark Deveney’s computer. He stated that he was not looking for anyone's computer in particular and had never heard that name before.

DC Wilcox joined Norfolk Constabulary as a cadet in 1976. He became a Detective Constable in May 1993, and in August 1994 became the controlled drug inspector (also known as the Chemist Inspection Officer) in the force drugs squad. In 2005 he was given the role in the new money laundering team in the economic crime and computer unit. He retired as a police officer in August 2009 and from a subsequent role as a civilian investigator in 2014.

DC Wilcox stated that during his career he never applied for a restraint order that was not granted. He estimated that overall he applied for and managed over 50 restraint orders, with the order in this case being the only one that was challenged.

I have already dealt with DC Wilcox’s interaction with Mrs Breeze and as I have set out, I did not find any of the evidence in relation to the restraint proceedings to be of material assistance in determining the pleaded issues in this case.

DC Wilcox stated that he was “slightly divorced” from the main investigation as his task was financial describing himself as “outside Operation Meridian” and that there was supposed to be “a corridor of air” between the restraint proceedings and the main investigation. He was not part of the MIT and not tasked to do anything within the investigation. However he liaised with the team in relation to the drugs related allegation against Mr Wilson and remembered an enquiry from DS Brownsell in respect of the Royal College of Nursing. This was because of his previous experience and familiarity with the professional bodies, meaning that he knew who to contact. DC Flynn also gave evidence that he asked DC Wilcox about some financial terms.

Challenged as to his belief in the guilt of the Claimants DC Wilcox stated that he had an honest belief that there were reasonable grounds for a restraint order and reasonable grounds to believe that the Claimants had benefited from criminal conduct. I accept that evidence, His Honour Judge Elwen was also similarly satisfied or an order would not have been made.

DC Flynn joined Norfolk constabulary in 1984 and retired in September 2014 but has been subsequently employed as a civilian in the major crime review team. He was appointed as an enquiry officer and statement taker on Operation Meridian.

DC Flynn also gave a detailed statement setting out the details of his involvement in the investigation in chronological order.

DC Flynn denied that senior officers wanted a conviction.

DC Flynn was challenged about the absence of the transcript of the interview of Katharine Willan, who had been the unit manager at the Lodge. It was also suggested that there had been an aim to try and show that staff did not understand about extra care. I found this a strange proposition as staff either knew about extra care or they did not and it is difficult to see how words could be put in someone’s mouth on the issue.

Ms Willan’s statement was critical of the management of Cawston Park and in her view there was a lack of support from professionals (and there were not many professionals there). She stated;

“In relation to whether the patients received any care above the norm I can categorically state that as far as my PICU was concerned they did not get the basic care so they definitely didn't get anything extra.”

And

“There was no ‘extra care’ in relation to care over and above the normal care given. The only extra above the basic was when we had that one particular patient who would have been quite alarming in their behaviour and we might be allowed to hire two extra members of staff to boost up the team numbers. This did happen on a couple of occasions for the following patients; MG (she used her full name), JW and JO. When this happened the staff would be deployed to be with this patient for a certain number of hours a day but I can't remember if that was care planned in any way. We knew there would be someone throughout the day who would present differently so we would have a member of staff. In relation to charge for the patient I wouldn't know about that. I would have four staff and when we had actually got someone who was disturbed I would have requested that we have another one. As patient numbers increased we did have more staff but it was always after many discussions through Gary Cooper, to Dominic Wilson, We would then bring in agency members of staff and people would take it in turns to spend time with that individual.

Ultimately that may have been charged to someone else as an extra cost but that was not something that I was aware of. There may have been a time when a patient had someone assigned for a week but not permanently, not somebody all the time, because our patient numbers did not go up that much. At times we did have a few extra staff but I am not aware that was for anyone patient. The patient would not have extra staff all the time as some days they would have got up and been fine, so how could you say Patient A needed it every day.”

It is clear that she had a negative view of patient care and was sceptical of the extra care concept and it is unrealistic to suggest that she was somehow coached. The content of Ms Willan’s statement was briefly but accurately summarised within the summary by DS Brownsell.

DC Flynn was also taken to the transcript of the interview of Jeremy Woodhead, the former manager of the Grange. Within his statement Mr Woodhead referred to constantly having problems with staffing and that the company appeared to have a policy for employing unqualified staff without experience. He stated:

“In relation to ‘extra care’ I had heard the term mentioned but I knew we did not have an extra care suite. I had a naive idea that it meant something to with the environment in the Grange as opposed to the Manor, as the Grange was a low secure unit. I did not hear it talked about in any detail although I had thought about what was actually meant by extra care. I did not pay it a great deal of thought because of all the other things going on and it did not seem to mean a great deal to me. I was wondering if Andrew Breeze was talking about something in the future such as moving people onto something better. We certainly did not seem to be providing any extra care. It was a term I never heard until I was actually working in the Manor where I heard it mentioned once or twice accidentally. I heard Dominic Wilson talking about it and Mark Deveney talking about it to Dominic Wilson or Andrew Breeze, I don’t know if Simon Barker may have been there, it may have been during meetings.

We had regular meetings during the week to decide policies reviews of patients’ things like that. Andrew Breeze had a white board in his office upstairs with all the names of the patients on it and I think that some had mention of extra care against their names. I think they were highlighted in some way but I cannot remember how they were actually highlighted. I thought what does that mean but it was never explained to me. To be honest I did not really have time to sit down and think about it as when I was not looking after the patients I would catch up with paperwork and other things. It was quite a difficult working environment and one incident or another was always going on. There was always something that needed doing. Extra care does not mean anything at all to me. I am not aware of any patients that received any extra treatment.”

It was suggested to DC Flynn that the statement did not accurately reflect all that Mr Woodhead had said, including that he could see that:

“The type of people that we had would have demanded some sort of focus or extra care of some description because they were worse than the average psychiatric patient. Whether they meant that because we have this secluded environment and you've got the secure environs or what I don't know, but it (extra care) was a term I never heard until I was actually working in the Manor and I heard it mentioned once or twice accidentally…(but it was never explained to you then?)…No it didn't, it wasn't explained to me and to be honest with you I probably didn't really have the time to sit and think about it too much because of the pressure of working in that kind of situation..”

DC Flynn stated that he believed that the statement was a fair explanation of what Mr Woodhead had said. Having considered the transcript and the statement I accept that it is a reasonably accurate statement although for obvious reasons not verbatim. Mr Woodhead also had the opportunity to add to or delete from the draft statement if he had any concerns about it accuracy. As Mr Warnock pointed out Mr Woodhead stated during the interview that he was not aware of any patient who received any additional or extra treatment to what was normally offered. Most significantly I find that any omission was not due to malice.

Within the summary DS Brownsell stated;

“…Woodhead became a unit manager at the hospital. Woodhead has said that he had a naive idea the extra care was something to do with the environment in the Grange as opposed to the manor. He had heard the phrase, but did not give it any thought other than to wonder whether it was about moving people on to anything better. He said that Cawston Park was certainly not providing any extra care. He is not aware of any patients receiving any other treatments.”

In my view this was a reasonable precis of the statement. It was not deliberately “slanted”.

DC Flynn was asked about the PwC report (which he stated in his statement that he had read). It was suggested that he did not give the contents sufficient weight (no particular part or extract was put to him). He stated that he did not consider it was positive evidence that could assist the Claimants. I accept that this was his honest view.

DC Flynn did not recall Mr Bull saying anything off tape and denied that there were matters covered in the interview which were deliberately omitted from the statement (specifically a reference to a patient who was the subject of an extra care charge who “improved massively” and also the suggestion that they could be charging more). Having considered the transcript of the interview and the statement I am satisfied that there was an attempt to produce a fair distillation of the three hour interview. It could not be verbatim.

In relation to the interview of Mr Ward DC Flynn stated:

“DC Baker was the lead interviewer and decided to leave the issue (regarding professional disciplinary matters) until the end of the interview to spare Mr Ward embarrassment and avoid distraction from the areas of evidence we wish to cover. I did mention the issue in passing on tape and DC Baker at that point indicated he would deal with it later. As Mr Ward was fully cooperative, DC Baker decided to cover the issue off tape. The reason was certainly not to intimidate Mr Ward, who had by then answered all questions put to him.”

In cross-examination he said that it was “absolutely not” an act of intimidation.

Ms Cass is a solicitor within the Government Legal Department and had conduct of this case on behalf of the Crown Prosecution Service. She became involved when she was asked to take a witness statement from Mr Tarrant. She stated that she met Mr Tarrant (who had retired) on two occasions on the 21st January 2019 on the 9th May 2019 and continued to liaise with the civil litigation team and Mr Tarrant in the subsequent months.

On the 1^st August 2019 she spoke with Mr Tarrant over the phone and went through the witness statement line by line. She stated that at the end of the meeting Mr Tarrant confirmed he was happy with the content of the statement and the documents exhibited to it. It was agreed that she would send this version to the civil litigation team who would forward it to Mr Tarrant for a final review and his signature. The statement was sent to Mr Tarrant on the 1^st August 2019. On the 13^th November 2019 she received a telephone call confirming that Mr Tarrant had been admitted to hospital having suffered a heart attack and that he had not, as at that date, signed and returned his statement. Mr Tarrant died on 23^rd December 2019. Mr Metzer referred in his submissions to the delay between Mr Tarrant receiving the statement and becoming ill and that this may have been because of unhappiness with its content. However Ms Cass was not challenged about his confirmation that he was happy (at that stage) with its content and it is difficult to see why he would have changed his view given the content of the statement.

Mr Tarrant qualified as a solicitor in 1977 and joined the office of the director of public prosecutions in October 1978. He stated for the last 13 years he had worked exclusively in the CPS specialist division dealing with fraud cases.

Having been allocated Operation Meridian Mr Tarrant advised in relation to the potential appointment of a managing receiver once the suspects had been arrested given the potential effect upon the running of the hospital. There was a conference on the 19^th October 2006 following which Mr Tarrant instructed specialist Counsel. Following Counsel's advice a decision was taken to commence restraint proceedings and Mr Tarrant represented the CPS at the hearing before His Honour Judge Elwen on the 10^th November 2006. The statement set out that after that:

“The investigation team continued to conduct their inquiries. They approached me for ad hoc advice when necessary but for the most part they simply got on with their job.”

The statement continues;

“I was sent the interview transcripts and a detailed 204 page case summary In the autumn of 2007 which I considered. I set out my advice in a review note dated 19th of November 2007. Although in this review note it was anticipated that there may be proceedings against the Claimants its main focus was on whether proceedings could be justified against doctor Simon Barker…

…taking into account Simon Barker’s interviews under caution Also taking into account the evidence obtained from other witnesses during the course of the investigation I concluded that he was a clinician with no knowledge of the financial side of Cawston Park. In the circumstances I took the view that there was not enough evidence to charge.”

Mr Tarrant’s statement set out that there was a conference on 20^th November 2007 when the cases against Linda Todd and Dr Simon Barker were considered. It was agreed that the police would interview Ms Todd under caution in respect of conspiracy to defraud and depending upon how that went she could be called as a prosecution witness.

The statement sets out that on the 25th of January 2008 the enquiry team provided him with additional evidence gathered since the case summary sent in October 2007. This included an addendum report from Dr Badcock and a statement from Christopher Hird.

It is also stated that Mr Tarrant considered the response of DS Brownsell to the DLA Piper letter of 1^st February 2008 and that in his view DS Brownsell

“set out what I considered (and still consider) to be reasonable explanations for all of these concerns. In addition he sent me the 10 questionnaires specifically referred to in the letter. I took this into account at paragraph 3. 9.1 of my review note in which I concluded these potential witnesses were unable to assist on the vital issue, namely what extra care did such patients receive compared to other patients and why was such extra care billed on a weekly or monthly basis rather than a one off daily basis. They simply contended that the hospital was run efficiently and some of the patients made a good recovery.”

As I have set out I do not agree with this analysis as regards Mr Graham and Ms Smith.

Mr Tarrant stated that on 3^rd February 2008 DC Horsburgh sent a report concerning Mark Deveney that set out numerous allegations, including misconduct, incorporating financial allegations, driving matters, and viewings of porn whilst at work. He said that given that Deveney was a key witness it was right, professionally and ethically that he brought this to his attention. Mr Tarrant stated that he considered all of the evidence provided and concluded his findings and advice in his review note of the 8th February 2008. The statement states that:

“In summary, in my opinion, the position was that Mark

Deveney was the ‘whistle blower.

His contention was that the concept of nominating specific patients on ‘extra care’ was a financial tool and had no link to the actual care given to those specific patients. There were concerns about his credibility and I openly acknowledge this at paragraph 2.5 of the Review Note [Exhibit CKT2]. There was, therefore, a need to seek corroboration of his account of events.

I came to the view that Mr Deveney’s assertions were corroborated by a number of staff witnesses because, as a starting point, other than the Claimants, they all gave different explanations for the term ‘extra care’. In addition few of the staff, apart from the Claimants and Deveney, were aware which patients were on ‘extra care’. I believed that it would be reasonable to assume that the staff actually involved with the patients would have some knowledge as to which patients were on extra care or, at least, be aware that additional staff would be needed to cope with the resources required for the long term needs of particular patients. A summary of this evidence is set out at paragraph 3.6 of the Note [Exhibit CKT2]. ”

It appeared that many staff thought that ‘extra care’ was a means of giving a patient ‘extra care’ as and when needed as distinct from categorising certain patients as needing ‘extra care’ on a daily or weekly basis. Some thought that this term referred to specialling’ i.e. one on one or two on one care. Others thought it simply meant that they were aware of the Extra Care Suite at Cawston.

The evidence that I analysed had been taken from the staff; I understand that questionnaires were sent out to everybody, the PCTs that financed these payments and from external and internal audits.

I also took into account the explanations of ‘Extra Care’ provided by the suspects which is evidenced at paragraph 2.8 of the Note [Exhibit CKT2]. However I took the view, which was endorsed by Counsel, that given the funds incurred in extra care costs were considerable, at the very least the PCTs should have understood the system by which Cawston Park operated in claiming these.

The conclusion reached in my Review Note was that proceedings should be instituted against Andrew Breeze and Dominic Wilson. I applied the Code of Evidence Test which is set out at paragraph 4 of the Review Note [CKT2]. I took into account the different explanations provided of ‘extra care’, of the motive of Deveney, the positive comments made by some members of staff and the likelihood that the Claimants would defend the matter on the basis that it had all been a misunderstanding. I believed that there was a reasonable prospect of conviction at that time and until the matter unfolded during the trial in June 2009.

I have considered whether the police could have suppressed evidence and therefore created a false picture of the case. I have come to the conclusion that this would not have been plausible, taking into account the detailed interviews under caution of the suspects and the abundance of evidence obtained from prosecution witnesses.

In my view it was a thorough investigation and I said so in my covering letter to the investigation team when I attached the draft indictment on 12 February [Exhibit CTK5].

I did not consider that there was a need to seek advice from Counsel at this stage, as in my view it was a straightforward allegation, which clearly merited the institution of proceedings. Counsel John Farmer was not instructed until the case had already been sent to the crown court.”

And also;

The draft statement sets out an ability to form an independent view free from any evidential manipulation or “slanting” of the evidence obtained within the summary and MG6. Mr Tarrant believed that although Mr Deveney had credibility issues he was supported by other evidence. I take into account the evidential limitations of the draft statement but it provides significant support to the Defendants’ case.

I did not read, and was not asked to read, all of the statements and documents within the bundle. Also given the Claimants’ case as presented I need not refer to the content of all of the statements which were referred to within the summary and submitted to Mr Tarrant.

However it is necessary to refer the statements of those who featured within specific allegations made within the pleaded case.

Dr Barker was interviewed on 14^th November 2006, 28^th February 2007 and 27^th April 2007. As I have already set out after receiving the case summary Mr Tarrant prepared an advice note on 19^th November 2007 which concluded that it was not considered that there was a reasonable prospect of a conviction against Dr Barker. It was Mr Tarrant’s view that the enquiry had revealed that it was Mr Deveney as “Head of Care” rather than Dr Barker who decided which patients should be on an extra care charge and “many witnesses describe him” (as he describes himself) as someone who just wanted the opportunity to carry on with his work as “clinician”. It is noteworthy that Mr Tarrant took this decision having considered the summary which set out the evidence against Dr Barker and that he was “suspected of involvement in the extra care allegation”.

In his first Police witness statement Dr Barker set out that he had been a consultant psychiatrist since 1990 and was the clinical director for adult services for most of Norfolk. He left the NHS and became the first consultant psychiatrist at Cawston Park when it opened in the autumn of 2003. At the time of his arrest in November 2003 he was serving out 12 months notice (the notice expiring in February 2007).

It is necessary to set out several extracts from Dr Barker’s first statement given his central role at Cawston Park. He stated:

“…from August 2006 on I found myself being drawn more and more into being asked to give explanations about extra care; and support the idea of extra care. This was something that really hadn’t been on my radar up until then. I felt that I could justify the concept of extra care as a clinical one, whether the name’s correct or not, I don’t know. I was not clear what the company were doing with regard to the charging. I began to feel that I had been, and was being, used to justify this process clinically from a retrospective point of view.”

And

“I felt that staff were not well treated, the appropriate equipment was not procured in a timely manner, and the hospital was not being kept clean enough. Everything had to be justified and it was so time consuming that in the end people seemed to give up.”

And

“Clearly the main facet of the investigation is into extra care and in my view this exists as two things. It can be thought of as a philosophical concept describing the actual style of care and treatment delivered. Whether the name is right or not, I don’t know. It is also a financial construct around charging in order to recover costs, and make a profit. I have had a long time to reflect upon this, and have come to the conclusion that the conflation of these two completely separate strands has caused a great deal of confusion and obfuscation, and probably continues to do so.

When we started, people like me, Andrew Breeze, Mark Deveney, Tony Chancellor, Mark Grainger etc had a view that the way patients were treated in many psychiatric hospitals was damaging. Such treatment involved “specialling” (a nursing technique of dubious value involving an almost custodial approach to patients) people unnecessarily, over intrusive observation, seclusion, aversion risk management and treating them overall in a less than humane way. We all came together and thinking about the way Tony Chancellor had done things at Kelling, we wanted to create a philosophy of care around the therapeutic community concept. This was less custodial and less reliance on strong medication.

This revolves around people being listened to, given a lot more time and not being so restricted (if you restrict someone often the desire to do something becomes stronger). The plan was to have people around to intervene if things did go wrong and to only use specialling if it is absolutely necessary. Also, to be “positive” in the management of therapeutic risk — this means that you have to let people do things, and have plans in place for if it goes wrong, rather than not letting people do things because there is a chance things might go wrong. The other staff knew about this philosophy but would be unlikely to use the term “extra care”. Unit Managers like Mr Mark Grainger would have heard of it but perhaps not in any detail. In fact, on a day to day basis, I don’t think we ever used the term “extra care”. There was no need to, we just did what we had to do.”

And

“One of the advantages to hospitals that charge for specialling is that it can be easily evidenced when billing for the services delivered. The cost levied can bear little relation to the actual cost of its provision.”

DS Brownsell was not directly challenged on his overview of the interviews of Dr Barker in the case summary.

Dr Barker’s statement was, objectively speaking, somewhat of a “mixed bag” in terms of support for a prosecution. He said that extra care was not on his radar (before the Autumn of 2006) that there was confusion and obfuscation given the difference between a philosophical approach and a charging scheme, no audit trail, clinical details were not communicated to the financial side and he could not understand how a charge could be levied in advance so establishing that as the lead psychiatrist he had no involvement in justifying the charge for individual patients (and throwing the spotlight back onto the evidence of Deveney). However he also said things favourable to the Claimants’ defence. He stated it was not unreasonable in his view to have an additional charge for “the more difficult patients”, that patients were treated according to their needs and that extra care charges for a patient on leave may be justifiable.

I have already dealt with the issue of the identification by Dr Barker of individual patients and his unwillingness to sign the statement.

In 2003 Ms Todd held the post of senior specialised services commissioning manager for Norwich Primary Care Trust and has been in post for four or five years.

Ms Todd provided a statement to Operation Genus on 17^th May 2006 and statements to Operation Meridian on 5^th and 7^th September 2006.

It is the Claimants’ case that up to this stage,

“The evidence provided by Ms Todd was that her perception was that the extra care charge was legitimate.”

On 12^th May 2007, Ms Todd was arrested for perverting the course of justice and it was later decided on 19^th November 2007 at a case conference with Mr Tarrant that Ms Todd would be interviewed under caution in respect of conspiracy to defraud The notes of that case conference, at which a number of officers were present, stated.

“It was agreed that insufficient evidence was available against her to proceed on the present allegation, but, before she can be considered as a Prosecution witness, there are a number of additional points that need to be tidied up.

…

In the circumstances, it was agreed that she should now be interviewed under caution for conspiracy to defraud and, depending on the outcome; she could then be approached as a Prosecution witness.”

On 17^th December 2007, Mr Brownsell went to Ms Todd’s home address with DC Horsburgh and told her that she was to be subject to no further action “(NFA”).

It is the Claimant’s case that the purpose of the Defendant’s officers in arresting Ms Todd, and then in Mr Brownsell attending on her personally to notify her of the NFA decision, was to put pressure on her to support the prosecution case. As Mr Warnock correctly observed;

“This was a serious allegation, not made in any pleading, nor foreshadowed in any witness evidence or the Claimants’ opening, let alone supported by a statement from Ms Todd herself…”

It is also the Claimants’ case that the pressure placed on Ms Todd had its intended effect because, just a few weeks later, on 24^th January 2008, Ms Todd provided another statement to Operation Meridian which was;

“… much less positive about the extra care charge.”

Given the issue raised it is necessary to set out in some detail what Ms Todd stated within the fourth witness statement of 24^th January 2008. She stated:

“In my role I managed all the contracts for out of county placements with private providers in hospitals all over the country…I had anything up to 80 mental health or learning difficulty patients out with private providers at any one time, and then there was the nursing home patients on top of that…Sometimes I would only be using 20 providers but a provider might have more than one unit or hospital…The national service framework issued by the NHS decreed that we should treat patients as close to their home as possible so I was always looking for ways to get patients back to Norfolk as quickly as possible within the scope of their treatment. So in reality if there was a local provider who was suitable for a particular patient I was almost duty bound to use them if I could. In order to pay for the treatment of these patients my spend in 2003 was about £6 or £7 million and it just increased year by year till by 2006 if you included the forensic patients as well the spend was up to about £13 million.

…Robin Brook was my immediate boss but my responsibilities had been given to him and he already had a full work load and he did not have the time to manage the job properly any more than I did…I would normally work a 60 hour week. This was just to keep up with the work load and all I was really doing was fire fighting. I did not have the time to get ahead or have a chance to improve systems or procedures, If I had had more time I could have visited providers before I placed patients with them and then working with them to get more patients there rather than always reacting to the latest problem.

…All of the patients had some kind of agreement saying who would be providing what and who would be paying. We had our one and only full service level agreement with Cawston Park as we were block purchasing beds and we were trying to plan and develop a service. When Cawston Park first opened it was for a particular type of patient and we expected them to move through their service…With Cawston Park under the service level agreement we initially block purchased 6 beds but they very quickly became full so I think we increased it twice we went from 6 to 9 and then finally we went to 15 beds…The SLA was negotiated and agreed by myself with the provider in this case Chancellor Care Ltd. In the case of Cawston Park I was able to visit before they even opened. They invited Robin Brook to come and have a look and at the last minute he asked me to go with him and see what they were intending to offer. He was there for the first meeting when we negotiated the 6 bed contract, and he came out there with me when we reviewed the situation after about a month or so but he did not come again and was not there when we renegotiated for the 9 and 15 bed agreements, I was on my own when I negotiated these. The NHS has a standard Service Level Agreement on their website and I downloaded this and adjusted it to meet the needs of our arrangements with Cawston Park…The agreed SLA was then signed by me and a director from Chancellor Care Ltd. The SLA is time limited so the first ran to the end of March so over 12 months then the next was for twelve months in line with NHS guidelines the 3rd was for 2 years with a clause to allow for a price change after 12 months. This agreement was a big part of my expenditure starting at £800,000 when we had 6 beds rising to £3.7 million with 15 beds.

Chancellor Care Ltd at Cawston Park had a concept known as extra care and it is the provision of this which is central to the current enquiry, but it is also our understanding of this concept that is important to the investigation. Initially when we first negotiated the contract I assumed it would be like “specialling” as it exists everywhere else. It would be charged as and when necessary and it would be for a couple of hours or a day or two or even a week. It was not until we got the first couple of sets of invoices which came out monthly that we found that people whom we assumed were on “specialling” which we now know as extra care were on it permanently, 24 hours, 7 days a week and were on it all month. This was totally new to us. When Robin and I first negotiated the contract they talked about “specialling” at £14 per hour. At that time other places were charging £30 - £32 per hour so this seemed like a good saving, when we discovered it was on permanently it did not seem such a good deal. Initially we thought that as we had negotiated a 6 bed contract so the core cost was cheaper than a lot of out of county placements and the “specialling” cost was half that of other providers we saw huge savings for the PCT. At the first meeting at Cawston Park I do not recall any mention of extra care and they talked about “specialling”. Paula was at that meeting and took notes, and there was no explanation by Chancellor Care as to what their idea of “specialling” was or how it differed from the normal. I do remember that at that meeting there was Andrew Breeze, Dominic Wilson, Simon Barker and Mark Deveney and maybe some of the senior ward staff, but definitely those four. I do know that “specialling” in general was such a nuisance and so expensive that we would always have asked the provider what they charged for “specialling” but at that stage there was no indication that Cawston Park was any different from any other provider and extra care as a concept was not mentioned. I thought we would be charged on an hourly basis for periods of up to a week while a patient settled down. When the first invoices came in we would not have picked up on the situation straight away, and anyway they were a brand new unit but I do recall Paula spoke to me early in 2004 and told me people were being charged for “specialling” over 24 hour periods, and I did go to Cawston and I remember being told that it was not “specialling” as you would find elsewhere it was very different. I got some kind of explanation from either Dominic or Andrew. I would always see either Dominic or Andrew. Andrew would never discuss finances without Dominic being there, sometimes Mark Deveney would be present but always Dominic or Andrew or both.

Following our discussions and negotiations with the Directors at Cawston Park I drew up the original SLA, in which the terms and conditions were a direct lift from the standard SLA on the NHS website. In that first SLA the original core cost per bed was set out as a result of Norwich PCT buying a 6 bed rate. Also in this SLA under costs is the cost of “Special support” at £13 per hour. “Special support” is not a term that I would use and it would have been inserted at the request of Chancellor Care but I understood it to be an alternative term for “specialling”. The routine is that I draft the agreement and then send it to the provider, they indicate any changes or alterations they would like to be made and when both sides are in agreement the final draft is signed by both sides, I sign the SLA on behalf of the PCT. I now know that I did not have the authority to sign an agreement of this value, but I was not aware of this at the time and was acting in good faith. By the time the 2nd SLA was drafted in the early part of 2005 I was aware of the true extent of “special support/extra care” and that SLA should have reflected that, however, it was near the end of the financial year and we were under pressure and with too much work and too little staff the job was not done properly. I simply printed of the previous agreement then having changed the dates and amended the costs it was signed off. The final SLA which was drafted at the beginning of 2006 includes the term extra care and shows it being charged at a daily rate of £340.56 per day. The agreement also included a definition of extra care, and the concept is explained. This alteration and additional information was at the request of Dominic Wilson, and I recall he emailed the explanation to me for its inclusion in the document. This significant amendment was made at his intervention and request and left down to me the 3rd document would have mirrored the first two because of lack of time and resources.

Once the true facts relating to “special support” became clear, and I found that we were paying huge amounts of money for the more difficult patients that we had at Cawston Park I found myself in a very difficult position. I had just moved a number of patients into Cawston Park and back to Norfolk from all over the country, and I could not move those patients again away from homes and families solely on the issue of cost. NHS guidelines advise that patients should be treated as close to home as possible and local clinicians wanted to use Cawston Park for their patients it was convenient and easy for them. You cannot argue with a Consultant who wants to use Cawston Park even though you know there is somewhere else that will not charge for “extra care”. So whilst there were financial considerations I was under pressure from other areas to send patients to Cawston Park. My initial reaction to the full understanding of “extra care/special support” was to ask Cawston Park to identify at the assessment stage any patients who would attract an extra care charge and in those instances I would look for another provider wherever possible. We tried to monitor the situation, we were not happy about it, and we tried to not place patients there who would require “extra care”. If we had known from the outset the true circumstances relating to these additional costs then we would not have placed the more difficult patients at Cawston Park, and we would have challenged these charges at the negotiation stage. If we had sat down with them at that first meeting and they had explained to us then their concept of “specialling” or “extra care” then we would not have agreed the Service Level Agreement on those terms. We would have challenged them then and if they had not moved on this we would have looked more closely at the patients we placed there…

I believe that we were either misled or that we misunderstood their concept, but you do not misunderstand the term “specialling” they were using it in a way we would not expect. But the idea of extra care was never explained to us at the beginning. They used the term “specialling” but it proved to be very different to what we understood as “specialling”. They were not explaining their idea of “specialling” and they were not trying to sell it as a positive idea as you might have expected. I remember that they used the word “holistic” an awful lot. They talked about looking after the whole being but that concept was being used by a lot of other providers. I had other providers who were providing a holistic service who were not charging for “extra care” or “specialling” they were charging a daily rate. In hindsight if I had known and I am sure if Robin had known what their “specialling” was we would never had agreed the contract on those terms.

I received from Cawston Park written reports detailing who was in receipt of “extra care” but there was no evidence to us as to what was being provided for that. If you are lucky and you visit a unit and you see a patient who is meant to be receiving one to one or two to one nursing or some other kind of additional care and there is only evidence of one member of staff present then you know they are not getting the care being charged for, but with patients all over the country and even those at Cawston Park you did not get to them very often and when you go it is a planned visit. You are going for a CPA meeting or an extraordinary meeting so there is no way of knowing exactly what is being given you have to trust providers. You have to have trust in all of your providers that they are providing the service they are charging for. In the case of “specialling” in the traditional sense you are invoiced for known extra resources over a set period of time, however, in the case of “extra care” it is a daily rate added on and you do not know what provision they have had for that daily rate and you have to trust that they have had something different from the patients on the standard rate….I never had meetings with Care Coordinators in order to explain to them the concept of extra care at Cawston Park, and if they saw the term “extra care” they might link it to “specialling” but they would not necessarily have had it explained to them as it was explained to me when we queried the situation back in 2004…

When we realised the true nature of “extra care” we could not then move those patients, and in fact there was probably no where else that would take them…In my experience I have not come across the concept of extra care either under that title or by any other name in any other facility. The closest scenario to this was that certain providers assess patients on their specific needs and then charge accordingly. So one provider might have a patient at £250 per day and another of our patients at £700 per day because that patient’s needs were so much greater, but we would always know in advance what the costs were going to be. Also I do not see how their concept of “extra care” could work with the numbers of patients they had in receipt of it. If there were 13 “extra care” patients and they all needed therapy or the attention of senior members of staff at once it would not work. You might manage in a unit of that size if you had 3 or 4 on “extra care”. Over the course of time the number of patients on “extra care” fell away.”

I have taken into account the entirety of Ms Todd’s witness statements and also the evidence of DS Brownsell and I do not find that the evidence before me supports the Claimants’ serious, but unpleaded, allegation that DS Brownsell deliberately and maliciously engineered pressure upon Ms Todd to secure “more favourable” evidence to support a prosecution set out in the fourth statement.

The allegation leaves hanging the obvious issue of whether what Ms Todd set out in her fourth witness statement was her true recollection or not. The Claimants have not alleged that she lied. If her evidence in the witness statement was truthful the obvious question is how this allegation materially advances the Claimants’ case on the two causes of action relied upon as it can hardly be argued that she was suborned?

Ms Todd gave evidence at trial but I have not been taken to her evidence and am unaware whether it was suggested to her in cross-examination that she had “changed” her evidence (and if so what her response was). There is no hint of such a line of questioning within the documents produced by Prosecuting Counsel or within the evidence of Mr Bott KC.

I also do not accept that it is a fair or accurate overview of Ms Todd’s evidence that in her first and second statements that she considered the extra care charge to be legitimate (or that her evidence was favourable to the claimants) and that the fourth statement constituted a volte face. In the statement of 17^th May 2006 whilst she explained what she (then knew) to be the “Chancellor care method”, she stated that after the summer of 2003;

“…I visited the provider to discuss what type of service they would be providing and to view the provision. Extra care was not explained at this stage and I was not shown how the extra care model might work or who might be involved…”

And in respect of the meeting to agree terms

“At this meeting we agreed block purchase of six beds at a core cost of £360 per day and agreed specialling costs at £13 per hour, which is now known as extra care. At this stage there was no written definition of what extra care would be. However my understanding of the service would be to pay for extra staff as needed.” (underlining added)

These extracts are not in line with the Claimants’ explanation of how extra care worked or how it was clearly explained to Commissioners. Ms Todd then explained that in January 2004, after an incident involving one of her placed patients, that she was given an oral definition which was the same as that later given in the March 2006 SLA. That was the definition which referred to the deployment of senior and experienced clinicians for a greater level of input than normal. She said that if the staffing levels were sufficient to provide extra care to patients being charged for it as they needed it, that would be acceptable, but if there was no increase in basic staffing levels, no increase to senior staff or therapists, or no evidence of care above and beyond the standard provisions, then it would not be acceptable and she would be disappointed that the PCT had been charged for extra care as she had to rely on the provider

“to deliver the service they are contracted to provide.”

Had she known extra staffing had not been provided to care for particular patients she had placed, the invoice would have been challenged.

In the statement of 5^th September 2006 Ms Todd stated that she was shown a schedule which detailed the extra care payments for Norwich PCT from March 2004 to December 2005 and that:

“My understanding at that point in time was that these patients were being specialled at 2 to 1 and 3 to 1. I am referring here to two or three extra people on duty specifically to care for these difficult patients. It was not until much later that I had a full understanding of extra care. None of these payments were surprising…Had I known that extra staffing had not been provided by chancellor care limited then I would have challenged the invoices and I wouldn't have paid for that extra care provision.”

As Mr Warnock submitted the evidence within Ms Todd’s first two statements was favourable to the prosecution. Given the importance of Norwich PCT as a client of the Claimants and Ms Todd’s involvement in the SLAs I do not find it surprising that a further detailed statement was taken from her.

Despite the fact that the allegation of deliberate pressure was not pleaded I have considered it. However I can only determine the issue on the evidence before me. I make it clear that if a serious allegation such as this was to be made it should have been pleaded so as to give the Defendant (and indeed Ms Todd) a chance to respond. As it turns out no prejudice has arisen as I reject the allegation.

Ms Todd stated that she had produced the SLA which she said reflected her understanding of the cost of £13 an hour for care above and beyond that ordinarily provided to patients. She stated that this seemed like a good deal until she appreciated that it was being charged 24 hours a day on a continuing basis. However the statement of Paula Wakefield who worked alongside Linda Todd (who was her line manager) set out a different recollection;

“The traditional and commonest form of additional care is known as "Specialling". This is where a patient has a nurse or member of the support staff with them on a one to one basis for every minute of every day or as long as it's needed, and it is charged by the number of staff used by the hour and detailed as such on the invoice to the PCT. This type of nursing is frequently used in adolescent units or when dealing with patients who are likely to self harm or have shown suicidal tendencies. Under these arrangements "Specialling" would often be charged at rates as high as £40 per hour. There was no blanket approval for "specialling" to continue for months. Approval was normally granted by the PCT for a week, and then approved every three days after that and it was monitored closely. Chancellor Care at Cawston Park was different. They referred to this additional support as Special Support or Extra Care. They referred to patients who required extra support, and talked about a therapeutic community. It was this type of service which they wanted to provide Le. it was a community and the patients participated, and at times people might require extra care/additional care to get them involved for example. Chancellor Care charged for extra care at £13 per hour, and you would not get the traditional form of "Specialling" at that rate. Patients at Cawston Park would often require this “extra care" when they were first admitted during a settling down period and particularly difficult or demanding patients might also need additional resources. In the case of Chancellor Care Ltd and Cawston Park Hospital the agreement was that we were invoiced at the beginning of the month in advance with payment being made on the 15th of the month.

I have been shown exhibit AM/22 by DC 1052 Henley. This is a lever arch file containing invoices, patient schedules and correspondence relating to Cawston Park Hospital. DC Henley drew my attention to the Notes of a meeting held Cawston Manor on the 24^th October 2003 and attended by myself along with Robin Brook and Linda TODD from the PCT, and Andrew BREEZE and Tony CHANCELLOR from Chancellor Care. Within these notes and under the title of "Costs" is a note stating that Additional cover e.g, "Specialling" will be at £13 per hour, This surprises me as I do not recall Cawston Park ever referring to additional cover as "specialling" it was always "extra care". I do not exactly recall when the philosophy of extra care was explained to me, it may well have been at this initial meeting but for as long as I can remember I understood it to mean that additional staff would be available for certain patients should they be required. So certain patients would be charged at the core cost. Others would be charged at core cost plus the single extra care cost, and other more difficult people were charged at core cost and double the extra care charge, which as I understood it, reflected the differing demands they would put on the resources available.”

The summary of the statement of Robin Brook in the case summary;

“Brook has stated then when he was a commissioning manager for Norfolk he and Linda Todd had meetings with Dominic Wilson who tried to explain what extra care was. Brook states that neither he or Todd were convinced they knew what it was, however he took the view at that stage that they were making savings of £400,000 by placing patients there so they were not overly concerned. He has said that they did not know what they were getting for the money they paid in terms of extra care but felt as some of the patients were getting better and because they felt that they had a good financial deal they were not overly concerned about the matter.”

In my view this was an accurate (although limited) precis of the statement.

I now turn to some documents contained with the very large trial bundle.

The PwC report is lengthy and technical. The following extracts are of some significance:

“Strong growth in EBITDA from FY04 to Q1 05 has mainly been as a result of improved occupancy at Cawston Park as well as higher levels of Extra Care.

…….

The number of patients on Extra Care increased by an average of 3.6. Being charged at £312 ppd, the revenue impact is £410k. Based on management's assertion that the marginal cost is negligible, this also represents the EBITDA impact.”

And

“…The increased occupancy and Extra Care levels had only a limited cost impact.”

And

“Extra Care levels are projected to be 10.3 patients compared to the 3MO05 average of 13.6, the difference arising in the Manor, which is a relatively conservative assumption by Management. The EBITDA impact assumes no staff savings based on management’s indication that above five Extra Care patients at any particular time, the marginal cost is negligible.”

And

“Extra Care: Where it is deemed that a patient requires additional support due to their condition at the time, Extra Care is provided and charged at a fixed rate of £2,184 ppw irrespective of the unit. PCTs and Social Services are informed in advance. Extra Care consists of providing more frequent counselling therapy sessions than under the standard fee. It does not comprise a 1-to-1 with support workers as often provided in other facilities. Extra Care is typically provided:

— for new patients arriving from a previous facility where they previously received 1 to1 are placed on Extra Care; or

— if required immediately after an incident PCTs and Social Services are informed.

There are two components to the cost of Extra Care:

— experienced clinicians, psychiatrists and the head of care providing more attention to the patient. These staff are required to provide the standard care and as such does not represent an incremental cost; and

— consultation with outside psychiatrists, staff to monitor the patient more closely and costs of any breakages. These items represents additional costs.

The marginal cost of additional patients on Extra Care is limited to breakages and some outside consultants resulting in a relatively high margin. Extra Care numbers have fluctuated during FY04 and 3M05. This is detailed later in the section.”

I have already dealt with the issue of the PwC report and the statement of Mr Benka when considering the evidence of DS Brownsell.

It was argued on behalf of the Claimants, and suggested to a number of witnesses that the content of the report, if properly considered, should have indicated that there was no issue with the charging of extra care i.e. it was a proper and justifiable charge. In my judgment the content of the report required careful consideration and whilst it identified only limited marginal costs and raised no concerns about the system of charging it was not unequivocally supportive of the Claimants’ case. Whilst some costs are stated to not represent an incremental cost e.g. more frequent counselling therapy sessions any “extra” time of experienced clinicians, psychiatrists and the head of care the cost of “staff to monitor the patient more closely” was stated to represent an additional cost.

The report was not seen by either any PCT or hospital staff. Its perceived significance with Chancellor Care is illustrated by the reference to it within the police statement of Mr McKenzie who started as the Chief Operating Officer in July 2006;

“They also sent me copies of their policies and procedures which I reviewed and decided were rather thin and out of date. I also received a due diligence report which had been prepared by a company called PwC. I only read the summary and saw the term “extra care” but didn't bat an eyelid as I assumed that it was their term for specialling and that it had made a contribution to the finances within the running of the company.”

The Board of Chancellor Care commissioned a report by Christopher Hird (an experienced registered mental health nurse) into the provision of extra care at Cawston Park between November 2003 and August 2006. The report dated July 2007 was compiled after an audit of 10 sample patients and meetings with fourteen members of staff (including Mr Brook and Ms Grunwald).

A copy of the draft report was attached to the case summary. DS Brownsell noted that it reflected many of the findings of the police inquiry. Notably it was stated that:

“It is evident that there were differing levels of awareness and understanding of extra care at Cawston Park. Senior managers and finance staff appeared to have the most awareness, whilst middle managers such as charge nurses have the least awareness (within the report he elaborates on this as these were often the most experienced staff and should be central to the delivery of care).

Concern was expressed about staffing levels, particularly by senior nursing staff, that levels were not always adequate and high levels of agency staff were used.

Senior staff could not recollect any interventions being provided by themselves or other senior staff for specific difficult patients over and above their normal duties.

There was no reference found within the clinical records to extra care, as defined by Chancellor Care, in the progress note entries relating to increased or enhanced levels of observation. The only reference to the term extra care was found in relation to the use of the extra care suite.

No clear evidence was found of review of individual extra care charging by clinicians and managers with an auditable communication trail between clinical and financial departments.

It has been difficult to identify the availability and deployment of extra care resources, as defined, to those patients subject of extra care charges sample this part of this inquiry.

Six of the ten patients had overnight leave granted whilst being subject of extra care charges. A minimum of 164 nights leave was taken equating to approximately £52,480 of revenue, based on the conservative daily average charge of £320. Continued charging whilst the patient was out of the hospital will be difficult to justify should the commissioners wish to have queried it. Knowingly charging for service which has not been provided is highly questionable and is both unethical and unprofessional.”

DS Brownsell stated Mr Hird noted that his report has not been prepared with the criminal standard in mind “but he is aware that the police have a copy enquiries are in hand to produce this in evidence”.

Ultimately the report was ruled as inadmissible. However, on the evidence available to me it was reasonable for DS Brownsell to consider it as potentially supportive evidence (he was not cross examined on the view and the construction he sets out in the summary). The conclusion was plainly critical:

“As extra care was a major revenue stream for Chancellor Care Limited, particularly in the fiscal (sic) 2004 and 2005, one would expect to find clear transparent processes in place for the assessment, planning, implementation and recording of any additional or extra service being provided. This is not evident from the records which were audited.”

Whilst disagreeing with the contents of the report, and stating that it was his view that the result was, in effect preordained/required by the Board so as to justify his dismissal Mr Breeze accepted that the police looked at it and agreed that a view could be formed that it would assist them in building a case against the Claimants.

Unsurprisingly in my view the Judge had concerns about the single count Indictment. On the basis of the report of Mr Tarrant and following through his conclusion. There should have been a multiple count Indictment reflecting the different elements of the alleged dishonesty i.e. the different PCTs, different patients, different time periods, such as when patients were on leave.

It is necessary to give an over view of what happened at the trial. This can be most conveniently done through Counsels’ advices. In the second advice Counsel explain how they saw the start of the fraud;

“In the private psychiatric hospital sector, the method of charging was well established. There was a core cost per patient and an hourly rate for specialling. In the private psychiatric hospital sector it is specialling which generated the profit. Hospitals competing on price mainly competed on the core cost. Thus, when Cawston was being established, the core cost had to be in line with other hospitals.

The problem in our view which emerged was that it became apparent that the difficult patients were absorbing a lot more resources. It also became apparent that without "specialling" this private hospital could not make a profit. Wilson and Breeze had invested money. They wanted a profit. They wanted to sell on. The middle way was found of charging for "extra care'. The issue was whether there was anything extra.

The patients in respect of whom these charges were made were judged especially difficult. It was a flat charge. The revenue to be generated could be calculated exactly. Thus, if you wanted to generate £ X and the flat rate was Y, Wilson need only divide X by Y to say how many patients needed to be on extra care. Mr. Deveney was to say that number was 12 and the figures show he was nearly right. Unlike "specialling" which required extra staff and extra cost, this extra care required no extra staff. In reality it was more of a risk premium. However, Breeze and Wilson thought the PCT would not pay unless extra resources were being employed. Breeze and Wilson could not afford to explain exactly what it was in case business was lost. There was a pretence that these patients were incurring extra costs and that it was like specialling but different. For a long time it was not put into writing. What had really helped Breeze and Wilson keep these charges up was that some the patients were so difficult no one else would take them. It seemed therefore, for a while the commissioners had blanked the "extra care" charge. This extra care charging system was very successful at first. Over time it was looked at more closely by Commissioners and their superiors. In the meantime it bumped up the turnover enough to make it look a very profitable company by the buyout in May 2005.

The increasing challenge by the Commissioners led to its decline as it was recognised that it was hard to justify and impossible to show an audit trail. After July 2005 there no new patient was charged extra care. Thus, no new person was admitted to extra care whilst Mr. Cooper was there. It obviously affected his perspective. Furthermore, resources rose over time and appear to have been significantly greater in Cooper's period than previously. From the arrival of Mr. Cooper the number of patients for whom there was extra care charges dropped to the point when McKenzie arrived and there were only the hard core three.

It seems that it is not a coincidence that from about late 2005 as extra care charges fell, the company went into loss.”

The prosecution case was opened and witnesses called over a seven week period. A review of the progression of the trial was set out in the advice of Prosecuting Counsel (Mr Farmer) dated 12^th June 2009 In his introductory paragraphs Counsel indicated that whether or not extra care was provided to what emerged to be about 24% of patients was at the heart of the case. Counsel explained that “the main thrust” of the prosecution case came from Mr Deveney; “he was a whistle-blower” and a central figure:

“He invented the term extra care and was responsible for virtually all the reports justifying extra care. However, his position was that extra care was simply not provided; it was a fraud.”

Counsel continued;

“Once the investigation started, the police gathered a body of evidence which appeared strongly to support the account given by Mr. Devaney. This included Mr Chancellor, the founder of the company, who made a statement trenchantly supporting the Crown position. Dr. Barker, the company psychiatrist was a shareholder and director before the buy out. He had been investigated as a potential defendant. In the event he became a prosecution witness having made a statement strongly supporting the Crown position. Mr. Prior, a significant public figure and latterly the company Chairman also supported the Crown. The commissioners for the PCT appeared to support the Crown including, in particular, Mr. Brook who went on to work for the company.

(I pause to observe that I find the description of Mr Prior as being supportive a surprising one).

The strength of the case was carefully reviewed by Mr. Tarrant. He concluded there was a case. I endorsed that opinion when I was instructed. I added the caveat that the Crown might prove their case but not get a conviction. This could arise if the jury concluded that the outcomes were in the public interest and, notwithstanding money was obtained fraudulently, the public did not really suffer as a consequence. It seemed a strong case with fairly stark issues. When Greg Perrins came into the case as my junior, he endorsed my views of the matter. The case was long in preparation. On the basis of the statements, drafted so as to aver, “no additional care...had been provided for that patient which could reasonably justify the [extra care] charge”. Everyone in the prosecution team agreed that this fairly and accurately reflected the prosecution case. A prosecution summary was prepared which set out the issues with clarity. The introduction of the case summary stated, “it is the Crown’s case that these two men defrauded a number of NHS Primary Care Trusts by charging them significant amounts of money for “extra care” when no such service was in fact provided at Cawston Park’. The case was opened on this basis.”

This analysis, which was based on the statements as analysed in the case summary/MG6, provides strong support for the Defendant’s argument that, objectively speaking, there was reasonable and probable cause for a prosecution.

Counsel stated that the first set back was that shortly before trial further adverse information emerged against Mr Deveney. Ms Vescio accused him of dishonesty in the new corporate venture. Counsel considered that given Mr Deveney’s admission of prior dishonesty this storm could be weathered.

Somewhat remarkably in my view, given that he was seen as “the whistleblower” and “the foundation of the case” and even taking the Prosecution case at its highest; Counsel stated;

“At this stage the strength of the Prosecution case as a whole was such that we could almost have ditched Mr Deveney and kept going.”

It seems the view was that the strength of the prosecution case was within the evidence of Mr Chancellor, Dr Barker, Mr Prior and the PCT Commissioners.

The advice then explained;

“After I had opened the case, Mr. Perrins and I were to learn that there was concurrent civil litigation. The Claimant was Lloyds. The defendants were not only these defendants but three of our important witnesses, Messers Chancellor, Prior and Dr. Barker. The proposed litigation was, in essence on the very facts of this case. It was to sink in that there was a community of interest between the five of them which encouraged them to move to the “same hymn sheet”. In fairness, even had we known that and had in focus, we would have still been bound to call them. The prosecution could not have proceeded with integrity without the principal players. There was nothing to put the prosecution on enquiry that they were about to side fundamentally with the defence.

As a result of the damaging evidence from other witnesses, the principal prosecution witness has crystallised as Mark Devaney. He gave detailed evidence over a number of days that in many cases (though not all) extra care was a dishonest and unjustifiable charge that did not reflect the day to day clinical care of the patients in respect of whom an extra care charge was being made. In many ways he as an excellent witness. He gave positive evidence for the prosecution well beyond his statement. It was obvious he was a difficult man to cross examine. Head on, he was a difficult witness for the defence to undermine. Notwithstanding the difficulties on the evidence of the directors to which reference will be made later, the prosecution had high hopes that he could be relied upon to be the foundation of the case.

He is not a wholly independent witness. He is flawed character. John Farmer had, in fact, felt obliged to open the case with “a health warning”. That was prescient. He was a man with a motive. The point was well made in cross examination that he only made the complaint against the defendants once a grievance arose against them for the way he had been treated following his departure from Cawston Park. Evidence was also elicited from a number of other witnesses that there were serious question marks over Mr. Devaney’s integrity, probity and honesty. In this regard the evidence of Ms Vescio — a sometime close associate — was very damning. It went well beyond the bad character disclosure the prosecution had properly made. Mr Cooper, who professionally was exactly on a par with Mr Devaney, gave evidence that Mr. Devaney was a liar, a man whose word could not be relied upon. Also unfortunately, Mr. Deveney himself shot away the credibility of one of commissioners who potentially could have been most helpful to the Crown. He described him as an ignorant “oaf” who did not know what he was talking about. This was Brian Wesley, the lead commissioner from Suffolk. he has not yet been called but, were he called, his opinions are already fatally undermined.

As indicated above, set against Mr. Devaney’s evidence is a number of other significant witnesses. They all changed their evidence to varying degrees from their original witness statements. This change in evidence could not reasonably have been foreseen. This evidence is adverse to the prosecution. The cumulative effect of these witnesses’ evidence is that it is no longer possible to sustain a case on the basis that “no additional care has been provided which could reasonably justify the charge”. The evidence suggests the contrary to have been the case. A short summary of the relevant witnesses will illustrate the point.

Tony Chancellor described extra care as a legitimate charging mechanism applying to those patients who genuinely consumed more resources. He emphasised that extra care did not necessarily involve an additional expense for the hospital rather it reflected an additional allocation of existing resources. This was at odds with the description he gave in his statement. Not only did he validate the concept of extra care but he also gave evidence that the patients who needed extra care received it. He went on to say that he did not consider that nursing staff would necessarily appreciate that a patient they were caring for was in receipt of extra care. This undermined a central part of our case in which we had sought to rely upon the absence of staff knowledge of extra care as evidence that it was not being delivered.”

(I observe that it shows just how far Mr Chancellor had deviated from his statement that Prosecuting Counsel considered making an application to treat him as a hostile witness)

After Mr Brook gave evidence Counsel took stock. As they stated;

“Certain Police officers in the team who heard the evidence and agreed the damage was enormous” and Mr Tarrant was advised that the prospects of success were now so low that the Prosecution should review their position. A decision was taken to carry on.”

The advice continued:

“…From Monday to Thursday, we had a number of witnesses some bad and some superficially extremely favourable to the prosecution. We had Linda Todd who was a dull witness. She was a parcel of good news and bad news such that neither side overall moved forwards or backwards with her evidence. All seemed set to move forward as planned until Mr Cooper was called. On the face of it, whilst he gave evidence antagonist to Mr. Deveney neither side saw him as particularly significant. How wrong can you be. Mr. Cooper’s evidence changes everything.

….

Gary Cooper was to emerge as the most experienced psychiatric nurse to give evidence with wide well researched knowledge. He was recruited as the hospital manager, leaving Mr. Devaney still Head of Care. Although his main evidence was not foreseen, there was nothing in his witness statement to put us on enquiry. He was dynamite. He had the utmost contempt for Mr. Devaney. He gave detail for his opinion. Consistent with his statement he said he knew at the time there was an extra care charging system. He did not know who was on extra care but it was in his opinion, obvious to him who would attract the charge and he said, it would be obvious to any professional at the hospital. When the actual last 4 subject to the charge were identified, he asserted that at that time, the 4 of them absorbed a third of the hospital resources. He gave very detailed evidence of why this was and how it worked. He said that there was plenty of staff. He said he had made a comparison with the principal NHS hospital in Newcastle and Cawston came out very well. He returned to the theme we had had from other witnesses that the dependency on agency staff was a nationwide problem. He explained the reasons. He also maintained that at Cawston the national problem had been exacerbated by Mr. Devaney’s lack of personal management skills. He was quite clear that neither Defendant put any limitation upon the ability of himself or Mr. Devaney to recruit as many agency staff as in their judgement was required. This was flatly contradictory to the evidence of Mr. Devaney. He flatly contradicted Mr. Devaney’s evidence that he, Devaney, had complained to him about staffing levels. Whilst the hospital manager, gave evidence to the effect that those patients being charged for extra care received a far greater proportion of existing resources and clinician’s time than those patients not subject of the charge. It was a legitimate and fair charge. Although when he started his evidence on Thursday he sounded slightly petulant merely with an agenda to attack Mr, Devaney, on Friday the “mood music” changed. He became a man of stature whose evidence may be wrong but I simply cannot be rejected by any fair minded properly directed jury.

….

The position now is that the only evidence upon which we can sustain a prosecution is that of Mark Devaney. He is a witness whose integrity has been significantly damaged by the testimony of other prosecution witnesses. His explanation of the alleged fraud has been undermined by, amongst others, the founder of Cawston Park, its Director, its Manager, its principal psychiatrist and the principal commissioning officer for Norwich PCT during part of the time scale said to encapsulate the currency of the alleged fraud.”

Counsel said that matters came to a head on the morning of 12^th June 2009. Defence Counsel indicated that they wished to make submissions requiring the Prosecution to explain how the case was put and “coincidentally” the Judge, who had prepared already sent a note, expressed deep concern that “on the present unamended indictment, he could not see how the Prosecution proved the case”. The case was adjourned to allow the Prosecution to consider whether the case would be continued and if so whether there would be an application to amend the Indictment.

In an additional note to review the Prosecution case (following the not guilty verdicts and the initial note of 14^th June 2009) ; Counsel (John Farmer and Greg Perrins) provided a note;

“...to provide some illumination by further detail of the case at the outset and the progress of that case.”

Counsel justified the decision to prosecute on the basis of the witness statements obtained before the trial, but pointed out that the case had started to weaken before trial. It was stated:

“Mr Deveney was the whistle blower. He had been Head of Care. He reported the matter in January 2006. Over time he gave statements to support his accusation that there had been a fraud on the National Health Service. He said he had been party to the dishonesty. A policy decision has made not to prosecute him but to use him as a witness: he had been neither shareholder nor director and his remuneration had been proportionate to his employment. The accusations centred on charges for "extra care…which on his account was a non existence service. His evidence was that whilst eve1yone received proper care it was by stretching the available resources, including himself, to the limit. He said that both he and Dr Barker were either at work or on call for 168 hours a week for well over a year with little holiday. His evidence is encapsulated in the following passage from page 4 of his statement made on the 6^th April 2006.

“I had been informed and repeatedly reminded by Dominic Wilson and Andrew Breeze that financial projections for the company required 12 extra care charges to be made on the Cawston Park Site. Charges for extra care were purely financial/accounting exercise and bore no relation to any increased level of service to those particular patients. Clinical staff working on the wards were unaware of which patients attracted charges for extra care.””

In evidence he supported his position in detail subject to a few plainly identified exceptions. Substantial charges were made for extra care whilst patients were on leave. This, he said could not be justified. He said, in terms, that he had been dishonest at the hospital in relation to extra care and so had these two Defendants.

Counsel stated that they stood by the decision of the police and the CPS to prosecute which they endorsed at the time. It was their view that the case, “started to unravel” between arraignment and trial by reason of factors some emerging before and some during the trial.

“Lloyds - without consulting the prosecution - instigated proceedings against all the directors at the time of the buy out and Mr. Prior. The Directors were not only the defendants but Chancellor and Barker. Mr. Chancellor made £20 million from the transaction. Dr Barker made £1million. Mr. Prior was peculiarly vulnerable in his position as a profit taker and the Chairman of the Norfolk and Norwich NHS Trust. In simple terms the accusations in the civil proceedings was that the buy out had proceeded on the false representation that the income of the hospital was lawfully obtained. Put in another way, if the case for the Crown that the extra care charges were fraudulent was proved, the defendants would be jointly and severally liable in considerable damages... Thus, all these persons had a community of interest in coordinating their accounts of extra care. And so it was. Prosecution counsel had not appreciated the existence or significance of these proceedings until after the Opening.

The shift of Chancellor in his evidence came out of the clear blue sky. He was giving evidence that was simply the opposite of his statement but he wrapped it up very cunningly in his own illness. The prosecution team considered an application to apply to treat him as hostile. It was a difficult judgement call. There were complications. We decided against it.

Mark Deveney was a strong witness. The prosecution was allowed by the defence to take him through the extra care patients individually although he had made no statement on that topic. He came over as a highly competent professional telling the truth. He was attacked but he was left - apparently - not seriously marked. He had strongly rebutted the accusations of dishonesty in the period following leave the hospital.

Thus although, Chanceller, Prior and Barker had gone against the prosecution, the case for the Crown still seemed on the solid foundation of Deveney with a full supporting "cast" of witnesses from the staff and the PCTs. The defence did not consider that there was half time submission at this stage.

That changed with Ashley Brook. He went right against his statement. He contended for the position that, although unclear at first, it soon became apparent to him what the "extra care" charge was intended to cover. As far as he was concerned the PCT received good value for money and when he became an employee, he could see how it worked on the ground. Again, we considered a hostile witness application but that had a parcel of problems with it. As he was the main witness for the PCT that provided the most extra care business, he left the prosecution heavily damaged. Mr. Farmer expressed this to the police and Mr. Tarrant, the instructing lawyer, in strong terms after his evidence. It may be that the reason this witness "turned” was that by the time he was giving his evidence, he was back in employment with the National Health Service in, we understand, broadly the same work. To concede having in any way to have been "conned" would be to undermine his own employment.

…Theoretically, after his evidence the prosecution could have completely restructured their case to reconcile his evidence. We could then have contended that by the time he arrived the dishonesty was over. There would have been intellectual difficulties about that. There was, however, an overreaching problem arising from his evidence. He - adding to Ms Vescio - had fatally undermined Mr. Deveney's integrity. Unless the jury accepted that Deveney was honest and substantially correct in his evidence, the jury could not convict. Having seen and heard Mr Cooper (and the reaction of both the Judge and the jury to him) the Crown not properly with integrity, invite the jury positively to find Mr. Cooper to be dishonest and/or unreliable.”

Counsel then made what I consider to be a most surprising statement:

“We remain troubled as to how the evidence of the significant witnesses, Chancellor, Prior, Barker and Brook all conveniently shifted in the same way to the defence, John Farmer lives locally and has seen that Mr. Breeze has launched a media campaign. He has made a complaint against the police. For him to contend - as appears to be the case - that he cannot understand why he was prosecuted is simply absurd. He is demanding an enquiry. It is not for us to say but it may be that the only enquiry likely to throw light on where this case went wrong is an enquiry into a conspiracy to pervert the course of justice. Mr Breeze - in the light of his conduct - is the most likely person to have orchestrated such a conspiracy. We are experienced enough, however, to recognise all the down sides of such an enquiry. It is signally interesting that Wilson has remained silent.”

I should make it very clear that the suggestion that something very untoward lay behind the perceived failure of Mr Chancellor, Dr Barker, Mr Prior and Mr Brook to give evidence in line with their signed statements has played no part in this trial or indeed at any stage of this claim. Its relevance is limited to showing the perception of Counsel as to how much the evidence of these witnesses changed from their signed statements. In respect of these witnesses it was upon the signed statements that the extent to which reasonable and probable cause existed must be assessed (unless I am of the view, which I am not, that they were somehow engineered so as to not reflect the interviews).

Counsel stated that;

“Ultimately, this case failed on one of the classic bases in criminal cases, the core witnesses did not come up to proof. If further detailed explanation is required, we would be assisted by detailed questions.”

What is abundantly clear is that trial Counsel thought that they were conducting an entirely proper prosecution. They believed that Mr Deveney had held up well in cross-examination (before the evidence of Ms Vescio and Mr Cooper) and that four very important prosecution witnesses had departed very markedly from their signed statements. They were not in the slightest critical of the Police investigation and fully agreed with the decision to prosecute.

As I have set out Mr Bott KC held a very different view and although he was careful to point out that he had the echo chamber of his team/clients he was clearly of the view that the prosecution legal team had not been sufficiently on top of the case.

I have set the contemporaneous views of trial Counsel out at some length as it was the submission on behalf of the Defendant that they provide no fertile soil whatsoever for the Claimants’ case; quite the reverse, they strongly supported the Defendant’s case.

In respect of the argument that the Police should have recognized at the outset that Mr Deveney was wholly unreliable as a witness; Counsel still believed that he was believable even after cross-examination.

Counsel saw the change in the evidence of Mr Chancellor as so stark that consideration was given to treating him as hostile witness. There was undoubtedly a marked change in the evidence of Mr Chancellor. He happily signed his witness statement which was an accurate overview of what he said in his interviews and then gave very different evidence on central issues. In my judgment he well knew that his evidence was going to change markedly.

In my judgment Mr Cooper did not change his evidence as set out in his witness statement (and Counsel did not consider that he did); rather he significantly expanded on it. In my judgment there was a collective failure (the investigation team, Mr Tarrant and Counsel) to adequately consider the implications of what he set out in his statement and his obvious strong support for the Claimants.

There was a review of the failed prosecution by Elizabeth Bailey (the head of Division, Fraud Group North) at the third stage of the CPS. In her letter to Mr Breeze dated 26^th July 2010 she stated;

“Having reviewed the available evidence, I have concluded that there are some factors that indicate dishonesty by both you and Mr Wilson. These factors include: a body of witness evidence to show a lack of understanding or knowledge of extra care by staff that one would expect to be involved in administering that type of care; evidence of low staffing levels to give enhanced care; no clear audit trail to show what a patient received to justify the extra charges made: and in particular there do not appear to be file notes on the patient’s files to cover the extra care aspect of their treatment. In addition, same patients were charged extra care premiums whilst away from Cawston Park and some were charged in advance.

However, there were also issues that undermined the evidence test namely whether there was a realistic prospect of conviction. These included your open dealings with the Primary Care Trusts (PCT's) exhibiting no evidence that you misled them as to what they were receiving for the payments made; no secret was made of the details of those patients who were attracting extra care charges: and missed opportunities to maximise profit, as there were some difficult patients that were not on extra care but could have been.

The collapse of the trial in June 2009 was attributed to the key witness changing his evidence. On balance this witness’s evidence was neither compelling nor convincing. Following your charge in February 2008, the case should have been kept under continuous review in order to ensure that the evidential limb of the Code was still satisfied. If, as is my view, there was not a realistic prospect of conviction following charge, the case should not have proceeded to the stage that it did.”

The failure of the prosecution was also followed by complaints about conduct of officers resulting in professional standards and the IPCC investigations. I need not cover these in considerable detail as this is not an inquiry into the professionalism of officers. I have referred to some extracts when considering specific issues.

Mr Breeze sent a letter dated 16 June 2009 to the Chief Constable of Norfolk Constabulary containing his complaints about Operation Meridian. As a result of Mr Breeze’s letter, a statement of complaint was taken from him on 20 July 2009. In that statement, Mr Breeze raised numerous complaints, some of which were about the conduct of individual officers throughout the course of Operation Meridian, and some more general complaints about the conduct of the investigation as a whole. The former were investigated by the force’s Directorate of Professional Standards and the latter were investigated by Detective Superintendent Henwood in the course of his review of Operation Meridian. The outcome of the investigations was set out both in report form (with separate reports from Det Supt Henwood and Stephen Fernandes of DPS) and again in a written response entitled “response to issues raised in Mr Breeze’s statement dated 20 July 2010.

In his report dated 16^th September 2009 Detective Superintendent Henwood stated;

“The main issue for the investigation team identified by both the police and the CPS was focused on the term extra care. The first element was to attempt to understand what extra care was. This proved very difficult for the investigators and it is fair to observe that none of the inquiry team, CPS or prosecuting counsel ever understood the ethereal, intangible and often changing definition of extra care, in line with this the review team have also been unable to establish a precise definition of the term extra care that could be relied on.”

I note DS Henwood stated;

“The review has not seen a written SIO record of a formalised strategy relating to the arrest of the identified suspects.”

I have already set out observations about the arrest of Mr Prior (but this is not an issue in this case).

Mr Breeze appealed against the investigation into his complaints in a letter dated 15 September 2010. A number of aspects of the appeal were upheld; including that the investigation should have obtained a statement from David Graham, poor judgments were made in respect of the choice of expert and the decision to attend the City Club showed poor judgment on the part of DS Brownsell and DC Flynn.

The report of Janet Anderson and Simon Cousins, IPCC investigators dated 12^th September 2012 concluded that in respect of Mr Ward’s interview and statement that:

“The evidence strongly suggests that DC Baker attempted to mislead the independent investigation in his prepared statement by indicating DS Brownsell briefed him as to the status of DLA Piper during the interview contrary to earlier assertions to the professional standards department.”

And

“165.

The investigation has examined the statement prepared by DC Baker from the recording of the interview with Mr Ward on 28 March 2008.

166.

The investigation has concluded that DC Baker was selective in his drafting of Mr Ward’s statement to the Operation Meridian investigation and the statement did not accurately reflect, in some parts, what Mr Ward had said.

167.

The investigation has examined the prepared statement provided to the independent investigation by DC Baker in relation to the quote of Mr Ward.

168.

The investigation has concluded that DC Baker was selective in his quote of Mr Ward in his prepared statement, which gave an inaccurate meaning to what had actually been said for the purpose of supporting his assertion that Mr Ward made the allegation to Mr Breeze to explain why he was not in contact with him.

169.

In the circumstances, while his actions do not meet the threshold for misconduct and there is therefore no case to answer, they raise performance issues which Norfolk Constabulary should address.”

I have borne these findings in mind when considering my findings in relation to both Mr Ward and DC Baker, and have reviewed the statement content on the central issues.

Before I proceed to my analysis of the Claimants’ case it is necessary to set out the law.

I turn first to malicious prosecution.

It has long been recognised that a person who has been subjected to criminal proceedings improperly instituted against him/her will naturally be aggrieved by the institution of those proceedings. He/she is put to the time and expense of defending themselves, damaging publicity may harm their reputation and cause financial loss; the trauma of litigation may injure health; and other significant and potentially long-lasting implications may follow.

In Crawford Adjusters and others v Sagicor General Insurance [2013] UKPC 17, Lord Wilson set out the early development of the law relating to malicious prosecution starting in 1285 when the Parliament of Edward I provided a right to damages for the victims of malicious appeals (i.e. prosecutions) of homicides and other felonies against those who had conspired to procure them (Anno 13, Edw I, stat 1, c12). A central feature of the development of the law has been the recognition that the interests of a claimant must inevitably be weighed against countervailing interests. First of these is the defendant’s right to institute proceedings if done with the honest intention of protecting the public interest. Associated with this is the need to avoid any “chilling” effect on law enforcement, whether through susceptibility to civil actions or through potential adverse influence on prosecutorial discretion, whether of the police or of independent prosecutors.

In the Court of Appeal in Martin v Watson [994] Q.B. 425 Ralph Gibson LJ referred to the conflicting principles of policy and cited the following passage from Fleming, The Law of Torts (8^th Ed);

“The tort of malicious prosecution is dominated by the problem of balancing two countervailing interests of high social importance: safeguarding the individual from being harassed by unjustifiable litigation and encouraging citizens to aid in law enforcement. On one side, it needs no emphasis that the launching of scandalous charges is apt to expose the accused to serious injury, involving his honour and self-respect as well as his reputation and credit in the community. Malicious prosecution, therefore, bears close resemblance to defamation, both being infringements of essentially the same complex of interests on the part of the plaintiff. On the other side, however, is the competing interest of society in the efficient enforcement of the criminal law, which requires that private persons who co-operate in bringing would-be offenders to justice, no less than prosecutors, should be adequately protected against the prejudice which is likely to ensue from termination of the prosecution in favour of the accused. Moreover, there exist other sanctions against misconducting informants. [Making false statements to the police and perjury are crimes, and defamation is a tort.] So much weight has been attached to this consideration that the action for malicious prosecution is held on tighter rein than any other in the law of torts. Incidentally, it may also explain why this action was never absorbed into the law of defamation. For, though we have seen that the stringent liability of defamation is tempered by privileges when the importance of encouraging free speech outweighs the competing value of vindicating those unjustly defamed, it was probably felt that this would be an insufficient safeguard for the social interests here at stake. Thus, malicious prosecution has remained a distinct cause of action which in several particulars, notably in the allocation of the burden of proof and the functions between judge and jury, affords greater protection to private persons who initiate criminal proceedings than is accorded by conditional privileges to publish defamation.”

The relevant legal principles to be applied in this case were not in dispute and I am grateful to all Counsel for the most helpful summaries provided.

The elements of the tort of malicious prosecution are as follows:

The burden of proof for each element falls on the claimant; it is a heavy burden. As Otton LJ observed in Sinclair v Chief Constable of West Yorkshire & British Telecoms Plc (unreported, Court of Appeal, 12 December 2000) at p.10:

“Malicious prosecution is one of the most serious allegations in our jurisprudence. It is akin to fraud and imparts an assertion of deliberate dishonest behaviour on the part of the defendant. In order to succeed the Plaintiff faces a considerable task.”

Although each element of the tort requires to be proved separately, there is a conceptual and, in many cases evidential, overlap in determining (1) the identity of the prosecutor, (2) whether the prosecution was brought without reasonable and probable cause, and (3) whether the prosecution was brought maliciously, since the absence of reasonable and probable cause and malice must combine in the same individual (who must be the prosecutor) for the tort to be made out.

A prosecutor is someone who is responsible for setting the law in motion against another on a criminal charge.

Section 1 of The Prosecution of Offences Act 1985 established an independent prosecution service, the Crown Prosecution Service (CPS), headed by the Director of Public Prosecutions. The Director and under his directions Crown Prosecutors are charged with the duty of taking over the conduct of criminal proceedings instituted by the police. So the starting point is that the DPP, taking over proceedings originally initiated by the police, exercises independent judgment. A person who makes the decision to charge is, accordingly, the (but not necessarily the only) prosecutor. There are narrow, and highly fact specific, circumstances in which other individuals who were actively instrumental in setting the law in motion may be regarded as the prosecutor for the purposes of the tort.

The relevant principles emerge from the decision of the House of Lords in Martin v Watson [1996] 1 AC 74 and the decisions of the Court of Appeal in H v AB [2009] EWCA Civ 1092, Ministry of Justice v Scott [2009] EWCA Civ 1215 and, more recently, Commissioner of Police for the Metropolis v Copeland [2014] EWCA Civ 1014 and Rees v Commissioner of Police of the Metropolis [2018] EWCA Civ 1587.

For prosecutor status to attach to an individual who has provided facts to (or concealed facts from) the person who actually made the charging decision, it must be shown that the circumstances were such that the decision-maker was deprived of the opportunity to exercise any independent discretion or judgment on the question of whether to charge, so dependent were they on that individual for the veracity of the facts presented to them.

In Martin v Watson the issue was whether a complainant who had falsely and maliciously made a complaint of a sexual offence could be regarded as the prosecutor notwithstanding that she had not signed the charge sheet. Lord Keith of Kinkel, giving the leading Opinion for the House of Lords, held that she could. This was because she was in substance the person responsible for the prosecution having been brought. Lord Keith held at pp.86-87:

“Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.”

For an individual to be a prosecutor in such circumstances they must have falsely and maliciously provided, or failed to provide, information. As a result the issue of whether a third party (that is, someone other than the person who actually laid/decided on the charge) is the prosecutor will in many (but not all) cases stand or fall with the questions of whether the third party honestly believed that there was reasonable and probable cause for the prosecution. In this case this is a central issue.

In Rees -v-Chief Constable of Police for the Metrolis [2014] EWCA Civ 1014 a senior investigating officer (SIO) in a murder investigation had suborned the evidence of a principal witness (in so doing, committing the crime of doing an act tending and intended to pervert the course of justice and “contaminated the source of justice”) and concealed this fact from the CPS. The decision to prosecute was therefore “overborne and perverted” by the SIO’s conduct. It is also of note that at first instance; [2017] EWHC 273 (QB), Mitting J accepted at paragraph 144 that:

“45.

As already noted, the MPC accepts vicarious responsibility for any tortious liability of DCS Cook. She also accepts that, in principle, there may be more than one prosecutor in an individual case. As the judge noted in paragraph 144 of the judgment:

"144.

The case law establishes that an individual or group of individuals may be treated as the prosecutor where

i)

they alone know the facts about the alleged offence.

ii)

they deliberately misstate the facts to the person who makes the decision to lay the charge and so start the criminal process.

iii)

they intend that there should be a prosecution.

iv)

the person who decides that the charge should be laid and prosecution brought cannot be expected to and does not form an independent judgment on the question whether or not a charge should be laid and if so which."

He also cited a passage from the judgment of Brooke LJ in Mahon v Rahn [2000] 1 WLR 2150, paragraph 269 as follows:

“269.

In a simple case it may be possible to determine the issue quite easily by asking these questions. (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?”

This passage was cited by McCombe LJ in the Court of Appeal without criticism. McCombe LJ stated:

“50.

The judge referred to certain passages in the judgments in this court in AH(unt) v AB [2009] EWCA Civ 1092, which were also relied upon by Mr Johnson QC before us. This was a case in which AB alleged that she had been raped by AH. After the lapse of some time she complained to the police, who persuaded her to give evidence. She did so and AH was convicted, but his conviction was quashed on appeal. Blake J held that she was not the prosecutor and that decision was upheld on appeal. First, it was not proved that she had the desire and intention that AH should be prosecuted, but also (per Sedley LJ at paragraph 3):

"The answer of principle is that, even if AB had gone straight to the police and made it clear that she wanted Mr H prosecuted, the independent intervention first of the police and then of the CPS would, in the absence of proof that the prosecution was in reality her doing and not theirs, have made the latter the prosecutor."”

At paragraph 47, Sedley LJ added:

“Even if she had gone directly to the authorities, the professional responsibility for the case assumed first by the police and then by the CPS would prima facie have made the latter for all legal purposes the prosecutor. It would have been necessary to establish that she had deliberately manipulated them into taking a course which they would not otherwise had taken if, pursuant to Martin v Watson, she was to be regarded in law as the prosecutor.” (my emphasis)

51.

Wall LJ and Moore-Bick LJ agreed. Wall LJ said, at paragraph 5:

“In my judgment, provided the CPS makes an independent decision to prosecute, and its process is not overborne or perverted in some way by the complainant, the complainant is protected.”

Finally, Moore-Bick LJ said:

“More importantly, however, I think he was right to hold that this was not a case in which the prosecuting authorities were deprived of the ability to exercise independent judgment. Unfortunately, cases of this kind, in which the complainant's word is pitted against that of the accused, are not uncommon, especially if there has been any significant lapse of time between the events in question and the investigation. However, that does not normally prevent the authorities from assessing the credibility of the complainant by reference to the inherent plausibility of the account and such circumstantial evidence as may be available. As to this, I entirely agree with the observations made by Sedley LJ in paragraph 47 of his judgment. In my view the Court should be very cautious before reaching the conclusion that the authorities were unable (or even, as Mr Warby emphasised, virtually unable) to exercise independent judgment.”

And

“57.

In assessing whether the CPS and Treasury Counsel were able to exercise a truly independent judgment, it is necessary to stand back from the printed word and, postulating the reverse of the facts as they were, to ask what effect it would have had on their judgment if they had been told that the SIO had deliberately presented to them a case in which the evidence of the only supposed eyewitness had been improperly procured by that officer by acts intended by him to pervert the course of justice. The case otherwise was supported only by evidence, not to mince words, of extremely "dodgy" witnesses and some circumstantial material. In my judgment, on this hypothesis, it is inconceivable that, in such circumstances, the CPS would have advised that murder charges be brought, without DCS Cook having been removed from the process entirely and a fresh review of the material having been prepared from which his malign influence had been removed.”

58.

It seems to me that the case falls squarely within what this court said in AH(unt) v AB . DCS Cook deliberately manipulated the CPS into taking a course which they would not otherwise have taken (Sedley LJ). The decision to prosecute was "overborne and perverted" (c.f. Wall LJ) by DCS Cook's presentation of the material to the CPS with the implicit suggestion that its procurement was not tainted in the manner that it was.

59.

This is not to say, as Mr Johnson submitted it was, that the mere provision of false information to a prosecuting authority leading to a prosecution makes the provider a prosecutor. I accept that the test is, as he argued, "drawn more restrictively". However, the cases are fact specific: see in this respect the very different results reached in not entirely dissimilar cases in Martin v Watson and in AH(unt) v AB . This present case was one in which DCS Cook took it upon himself to present to the independent prosecutor for a prosecution decision a case which he knew included an important feature procured by his own criminality. There is nothing more likely to have "overborne or perverted" the decision to prosecute. The CPS were deprived of their ability to exercise independent judgment.

60.

In my judgment, therefore, DCS Cook was undoubtedly a "prosecutor" in the sense decided by the authorities.”

The classic formulation of ‘reasonable and probable cause’ comes from Lord Devlin’s speech in Glinski v McIver [1962] AC 726 (HL) at pp.766-767;

“It means that there must be cause (that is, sufficient grounds; I shall hereafter in my speech not always repeat the adjectives "reasonable" and "probable") for thinking that the plaintiff was probably guilty of the crime imputed: Hicks v. Faulkner. This does not mean that the prosecutor has to believe in the probability of conviction: Dawson v. Vandasseau. The prosecutor has not got to test the full strength of the defence; he is concerned only with the question of whether there is a case fit to be tried. As Dixon J. (as he then was) put it, the prosecutor must believe that "the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted": Commonwealth Life Assurance Society Ltd. v. Brain. Perhaps the best language in which to leave the question to the jury is that adopted by Cave J. in Abrath v. North Eastern Railway Co.: "Did [the defendants] honestly believe the case which they laid before the magistrates?"”

Lord Devlin explained in Glinski at p.768:

“The question is a double one: did the prosecutor actually believe and did he reasonably believe that he had cause for prosecution?”

As Lady Hale explained in Williamson -v-Attorney General of Trinidad and Tobago [2014] EWCA Civ 1587

“On the question of reasonable and probable cause, or the lack of it, a prosecutor must have ‘an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed’: Hicks v Faulkner (1878) 8 QBD 167 , 171 per Hawkins J, approved by the House of Lords in Herniman v Smith [1938] AC 305 , 316 per Lord Atkin. The honest belief required of the prosecutor is a belief not that the accused is guilty as a matter of certainty, but that there is a proper case to lay before the court: Glinski v McIver [1962] AC 726 , 758 per Lord Denning.”

So there is a subjective element and an objective element to the existence of reasonable and probable cause requiring a finding as to the subjective state of mind of the police officer responsible (i.e. no honest belief), and an objective consideration of the adequacy of the evidence (i.e. the circumstances are such that they would lead an ordinary and prudent man to believe in the charge). When assessing this issue it is immaterial to consider what the facts were unless they were, or should have been, in the knowledge of the officer/s concerned at the material time.

In Dallison v Caffery [1965] 1 QB 348 it was explained that the requirement that the Prosecutor should act honestly;

“Means no more than that he himself at the time believed there was reasonable and probable cause…for the prosecution.” (per Diplock LJ)

In Coudrat -v- Commissioners of Customs and Excise Smith LJ recognised the limits to matters which must be consider when stating;

“41.

We direct ourselves first that an officer is entitled to decide to lay a charge if he is satisfied that there is a case fit to be tried. He does not have to believe in the probability of conviction: see Glinski v McIver [1962] AC 726 HL at 766G to 767A. The probability of obtaining a conviction is the test that was properly applied by Miss Ayling at the stage when she was asked to advise, when the investigation was complete. The fact that Miss Ayling concluded that there was insufficient evidence to warrant continuance of the prosecution does not necessarily mean that there was insufficient evidence to warrant laying a charge.

42.

When considering whether to charge a suspect, consideration must be given to the elements of the offence with which it is intended to charge him. There must be prima facie admissible evidence of each element of the offence. Although anything plainly inadmissible should be left out of account, we do not think that, at the stage of charging, it is necessary or appropriate to consider the possibility that evidence might be excluded at the trial after full legal argument or in the exercise of the judge's discretion. Nor is it necessary to test the full strength of the defence. An officer cannot be expected to investigate the truth of every assertion made by the suspect in interview.”

Accordingly as regards the Police in circumstances such as this case the relevant “belief” is not a belief in guilt rather a belief that a charge is warranted, i.e. that the case is “fit to be tried” or that there is a “proper case to lay before the court”. It is not necessary for the police/any officer to believe that the suspect would probably be convicted. That is a matter for assessment by the CPS after detailed consideration of admissibility, witness credibility and the strength of circumstantial evidence.

The objective analysis falls to be determined in the light of the knowledge of the prosecutor at the time that the decision to prosecute was made, and not in the light of subsequent information, facts or circumstances.

However a prosecution may be unreasonable, not on the ground that the prosecutor had no substantial information before him pointing to the guilt of the Claimant, but because he was also aware of countervailing evidence which afforded a good answer to the charge. Although the prosecutor is not bound to assume that a theory put forward by the defence is sound, in certain cases “on the explanation given...the reasonable and probable cause cease[s].”

Whilst neglect to make reasonable use of the sources of information available before instituting proceedings may be evidence of want of reasonable and probable cause and also of malice as Jay J stated in Hughes-v-HMRC [2024] 1765:

“The authorities which I have cited demonstrate that the CPS’s failure to undertake a line of inquiry which might just have been relevant to the Claimant’s defence does not negative the existence of reasonable and probable cause.”

If it is established that there is relevant material that was not placed before the prosecutor the Court will assess what difference it would have made to the charging decision. In Alford v Chief Constable of Cambridgeshire Police [2009] EWCA Civ 100 the Court of Appeal agreed with the first instance judge’s view that a report, which clearly should have been placed before the CPS and the prosecutor, would have weakened the strength of the evidence but the

“advice and the decision would probably have been the same.”

Malice is at the root of the cause of action. As Otton LJ stated in Sinclair -v- Chief Constable of West Yorkshire (unreported 12^th December 2000)

“No action lies for the institution of legal proceedings, however destitute of reasonable and probable cause unless they are instituted maliciously- that is to say from some wrongful motive.”

The existence of malice is an issue of fact.

Although Viscount Simonds stated in Glinski that want of reasonable and probable cause involved a separate question from that of whether a prosecution was malicious, he stated that “the same facts may justify both findings”.

Malice has been defined as follows:

The issue of inferring malice from the absence of reasonable and probable cause was considered in Paul v Chief Constable of Humberside Police [2004] EWCA Civ 308, with Brooke LJ (with whom Chadwick LJ and Maurice Kay LJ agreed) citing Gibbs v Rea [1998] AC 786 at [44] and stating:

“A Claimant cannot ordinarily be expected to produce direct evidence on these matters.”

I now turn to misfeasance in public office.

This common law tort imposes liability for

“an abuse of power accompanied by subjective bad faith.”

(per Lord Steyn in Three Rivers DC v Bank of England (No.3) [2001] UKHL 16; [2003] 2 AC 1 at p.191). In Hussain-v-Chief Constable of West Mercia [2008] EWCA Civ 1205 Lord Justice Maurice Kay described it as:

“an intentional tort of considerable gravity.”

In order to succeed, a Claimant must prove each of the following ingredients of the tort,

In Rees at first instance Mitting J held that misconduct in the performance of police functions, even if not in the course of exercising a specific statutory or common law power, would be sufficient to found the tort.

The exercise of public power may be by way of positive act or by omission. Lord Hutton stated in Three Rivers (at p288a-c)

“I agree with the opinion of Clarke J, 583a, that the tort can be constituted by an omission by a public officer as well as by acts on his part. As Brennan J stated in the Mengel case 69 ALJR 527, 545: "Any act or omission done or made by a public official in purported performance of the functions of the office can found an action for misfeasance in public office." But whether the public officer is sued in respect of an act or an omission, it must be a deliberate one involving an actual decision and liability will not arise from injury suffered by mere inadvertence or oversight. I also agree with the opinion of Clarke J [1996] 3 All ER 558, 583b, d that it is sufficient for the plaintiff to prove that the public officer foresaw that his action would probably injure the plaintiff; to require foresight of certainty of harm would be unrealistic and, being very difficult to prove, would give inadequate protection against abuse of power.”

A Claimant’s ability to establish liability on an omission is limited. Lord Millett in Three Rivers characterised an actionable omission as one in which;

“The parties are agreed that there is no conceptual difference between sins of omission and sins of commission. This may be so; but factually there is a great difference between them. It is no accident that the tort is misfeasance in public office, not nonfeasance in public office. The failure to exercise a power is not in itself wrongful. It cannot be equated with acting in excess of power. The tort is concerned with preventing public officials from acting beyond their powers to the injury of the citizen, not with compelling them to exercise the powers they do have, particularly when they have a discretion whether to exercise them or not. There seems to be only one case in the books where a failure to exercise a power gave rise to the tort: R v Dytham [1979] QB 722 , 727g, where Lord Widgery CJ said in terms that the neglect must be "wilful and not merely inadvertent". Ferguson v Earl of Kinnoull (1842) 9 Cl & Fin 251 and the cases there cited were all cases of wilful breach of duty. Henly v Lyme Corpn 5 Bing 91 was in my opinion a case of breach of statutory duty, not of misfeasance in public office.

In conformity with the character of the tort, the failure to act must be deliberate, not negligent or inadvertent or arising from a misunderstanding of the legal position. In my opinion, a failure to act can amount to misfeasance in public office only where (i) the circumstances are such that the discretion whether to act can only be exercised in one way so that there is effectively a duty to act; (ii) the official appreciates this but nevertheless makes a conscious decision not to act; and (iii) he does so with intent to injure the plaintiff or in the knowledge that such injury will be the natural and probable consequence of his failure to act.”

There are two forms of liability, each involving a different form of malice. Lord Steyn explained in Three Rivers (No.3), at p.191:

“First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful.”

In a case of targeted malice, the abuse of power consists in the very intention to injure the claimant that constitutes the bad faith. In untargeted malice, it is the knowledge, or wilful disregard of the risk that, the claimant will probably suffer a particular harm (or type of harm) that, at least in part, constitutes the bad faith.

In opening submissions it was stated to be the Claimants’ case that;

“For the purposes of misfeasance in public office, the Claimants further contend that the Defendant’s officers did not approach the investigation with an open mind and held an improper and malicious motive and that they maliciously abused their powers as public officers in the knowledge that such abuse of power would probably cause them damage. Further, the Claimants contend that the Defendant’s officers knew that the prosecution of them would lead to the demise of their business and/or the companies. The Claimants further aver that the Defendant’s officers suppressed fundamental evidence which they knew would undermine any prosecution case, and which would support the Claimants case, thus rendering it more likely that the Claimants would be convicted of the charges.”

In closing submissions Mr Metzer and Ms Morris relied upon the submissions made in respect of malice made in respect of malicious prosecution.

On behalf of the Defendant it was submitted that the claim fails on its merits for the same reasons that applied to the malicious prosecution claim, in particular the complete absence of malice and the absence of any wrongful act constituting an abuse of power.

The applicable limitation period for misfeasance in public office is six years from the date on which the cause of action accrued (Limitation Act 1980, section 2 ). In the absence of a claim for damages for personal injury, there is no possibility of the time limit being extended.

At paragraph 290 of the Defendants’ Re-Amended Defence, under the heading of Misfeasance in Public Office the Defendant pleads a limitation defence in relation to “any alleged tortious conduct occurring prior to 5 March 2009”. It is the Defendant’s case that the cause of action accrued upon the charging of the Claimants on 18^th February 2008 yet the claim was not issued until 5^th March 2015 i.e. more than 12 months out of time.

No limitation defence has been raised by the Defendant in relation to the Claimants’ claims in malicious prosecution.

In the Claimants’ Reply to the Defence, they pleaded at paragraph 3 that they denied that their claim in misfeasance in public office was time-barred because;

“The loss and damage sustained in consequence of the misfeasance is on-going and it was certainly on-going up to and including the date upon which the prosecution was determined in favour of the Claimants.”

This denial was maintained through to paragraph 3 of the Re-Amended Reply to the Defence and this therefore remained the Claimants’ pleaded case as to the Defendant’s limitation defence in respect of misfeasance in public office.

At paragraph 85 of the Claimants’ skeleton argument for trial, reference is made to loss being an essential element of the tort of misfeasance in public office, while at paragraph 86 it is stated that:

“The tort is only complete at the point at which recoverable loss is incurred, which includes damage done by an investigation and prosecution.”

The Claimants submitted that this required the Court to look not at when specific acts occurred, but at their losses, as the acts are not “tortious” for the purposes of misfeasance in public office, even if an abuse of power, without the loss element of the tort being satisfied.

Mr Warnock submitted that the Schedules of Loss claim for the consequences of the Claimants’ loss of employment on 25 September 2007 and it is no answer to say that losses continued to accrue after the cause of action was complete. Time runs from the date on which the cause of action accrued. The continuation of a loss is different from the continuation of a tort – see Escott v Tunbridge Wells Borough Council [2016] EWHC 2793, per Holgate J (as he then was) at [38] to [39] for an application of this well recognised principle to a misfeasance claim. He submitted that no fresh actions were relied upon from the date the prosecution was brought (i.e. after the date of charge: 18^th February 2008) and in any event no fresh tort of misfeasance in public office is alleged to have occurred on or after 5^th March 2009.

In closing submissions on behalf of the Claimants it was argued that the Claimants’ case in misfeasance in public office is that the “prolonged investigation and prosecution” involved malice, with the intention of the Defendant’s officers that the Claimants would be convicted of the charges existing throughout. So reliance was placed on acts/omissions after the charges were laid up to the conclusion of the trial in June 2009. In respect of specific acts/omissions it was submitted that:

None of these allegations were pleaded. As I have already set out (b) above is without any foundation and (c) has no merit either on the facts of this case, as an allegation of malice or bad faith. I shall return to (a) in due course.

I have set out my factual findings during my review of the evidence. It is necessary to make it clear that it is simply not necessary or proportionate to make a finding of fact in relation to every single factual dispute raised within statements and oral evidence. This hearing was not a public inquiry, rather it was a civil case based on causes of action as defined in the pleadings. It is helpful to rehearse the Claimants’ case on the two causes of action.

The Claimants rely in their claims in malicious prosecution on the mindset and general approach of the officers as well as a series of specific acts and omissions, which they say demonstrate both an absence of reasonable and probable cause and malice. It is the Claimants’ case that, the Defendant’s officers did not have an honest belief in their guilt, and that they acted with malice, in that they had an improper motive or purpose towards them, which was to ensure prosecution and conviction regardless of such a lack of honest belief.

The Claimants repeat and rely upon their Particulars of Malicious Prosecution insofar as they can properly apply, to establish the tort of misfeasance in public office, malice being synonymous with bad faith. The Claimants contend that the Defendant’s officers did not approach the investigation with an open mind and held an improper and malicious motive and that they maliciously abused their powers as public officers in the knowledge that such abuse of power would probably cause them damage. Further, the Claimants contend that the Defendant’s officers knew that the prosecution of them would lead to the demise of their business and/or the companies. The Claimants further aver that the Defendant’s officers suppressed fundamental evidence which they knew would undermine any prosecution case, and which would support the Claimants case, thus rendering it more likely that the Claimants would be convicted of the charges.

I shall now address the central issues arising from these allegations.

During my review I shall refer back to the factual findings which I have already made during my review of the evidence.

The investigation was long and complex and not undertaken by a specialist fraud team.

I have made a number of findings of fact/observations which are critical of the investigation and subsequent prosecution and in my view there were some errors of judgment and/or inadequacies in the approach taken not only by the police but also by Mr Tarrant and Counsel. However, it bears repeating that the Claimants’ claim is not one based on negligence. Also this has not been a determination of policing conduct/standards.

In my judgment the following matters were mistakes; (there were potentially other mistakes such as the failure to consider the admissibility of evidence of Mr Hird but I do not have the relevant detail as it was not a mistake on the part of the officers involved).

I have carefully considered the extent to which these matters support the Claimants’ case as to malicious prosecution and misfeasance in public office. I have concluded that they do not. Several of the mistakes are due to the errors of Mr Tarrant (and potentially Counsel), and none of the mistakes made by the inquiry team were as a result of malice or bad faith. They were simply errors of judgment.

I reject as unfounded the allegation that the officers engaged in the enquiry deliberately changed, minimised and/or failed to record in witness statements the positive comments about Cawston Park and the Claimants and/or comments undermining the prosecution case, made during interviews with witnesses.

I have already made relevant factual findings including (given the focus of questioning) about the statements of:

In my judgment, for the reasons already set out in respect of the witnesses concerned, there is no justification for these allegations.

There was, and could be no suggestion that any witness was put under pressure to sign a statement or that any statement was altered after it was signed. Witnesses had the chance to alter draft witness statements sent to them (and Mr Chancellor, Mr Bull and Dr Barker had solicitors advising them).

It is the Claimants’ pleaded case that:

“Officers demonstrated malice by engaging in intimidating and oppressive behaviour. For example, the Defendant’s officers threatened Mr Ward after the tape had been turned off in interview.”

I have already set out my findings in relation to Mr Bull and the interview of Mr Ward.

I have also already considered and rejected the Claimants unpleaded allegation that the purpose of the Defendant’s officers in arresting Ms Todd, and then in DS Brownsell attending on her personally was to put pressure on her to support the prosecution case.

It is (and has consistently been) the Claimants’ case that the investigating officers did not honestly believe in the guilt of the Claimants but nevertheless sought to achieve their conviction. The suggestion put to witnesses was that this was because of the pressure they perceived they were under from senior officers to secure a conviction. The Defendant’s closing submissions pointed out the inherent contradiction within the case as advanced at trial.

“…the Claimants called a series of witnesses whose evidence was to the effect that the investigating officers appeared convinced that the Claimants were guilty. Moreover, all of the police witnesses were explicitly challenged to the effect that they had a “mindset of guilt” and/or that they regarded the Claimants as guilty.”