Rudall v The Crown Prosecution Service & Anor

I start with uncontroversial matters of law. In order to succeed in his action for malicious prosecution, the Claimant must prove (a) that he was prosecuted by the Defendant (b) that the prosecution was determined in his favour (c) that the prosecution was without reasonable and probable cause and (d) the prosecution was malicious: see Lord Keith of Kinkel in Martin v Watson [1996] 1 AC 74 at 80C (citing Clerk & Lindsell on Torts 16^th d (1989) p. 1042, para 19.05).

This claim concerns the last two elements only. There is no issue that the prosecution was determined in the Claimant’s favour and, having discontinued his action against the South Wales Police, Mr Spackman accepted that the prosecutor, for the purpose of the claim for malicious prosecution, was Mr Sherrington, the CPS lawyer who, having advised throughout the investigation, ultimately made the charging decision.

I therefore turn first to the issue of reasonable and probable cause. Again, the basic legal principles underlying the claim are not contentious. I set them out below:

There was no difference between the parties concerning the meaning of “malice”. In Glinski, Lord Devlin said at 766 “Malice, it is agreed, covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice.” Or “any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a malicious motive on the part of the person who acts in that way.” Malice can be inferred from the absence of reasonable and probable cause but not from a finding of lack of reasonable and probable cause where there is an honest but unreasonable belief: see Thacker.

I pause at this stage to clear the decks of two points which arise.

The first concerns the difference between the evidential stage of the Code for Crown Prosecutors and the assessment of sufficiency of evidence for the purpose of establishing reasonable and probable cause. Mr Spackman’s closing submissions elide the two tests. He does so on the basis that when, as in this case, the piece of evidence of (he submits) doubtful admissibility is fundamental to the Crown’s case, then my approach to the objective assessment of adequacy should reflect the importance of the evidence to the success of the prosecution. I should not therefore, he argues, limit my examination to whether the evidence is strictly admissible but should adopt a broader approach, consistent with the evidential stage of the Code test, and take into account the possibility of admissible evidence being nonetheless excluded, for example, on grounds of reliability. Such an approach he submitted to be consistent with that the Court’s approach in the Australian case of A v State of New South Wales [2007] HCA 10 where it was emphasised that the question of evidential sufficiency was a question of fact which should be assessed in the light of the facts of the particular case.

I do not accept that the evidential Code test is the correct test to apply for the purpose of examining whether there is reasonable and probable cause. The exercise undertaken by the prosecutor in that context is to identify whether there is a realistic prospect of conviction which is a different, and higher, threshold than that which I must apply when considering whether there is a case fit to be tried or a proper case to lay before the court. The intensiveness of the scrutiny to be applied to the evidence is correspondingly different and greater than that relevant to the consideration of reasonable and probable cause. The evidential stage of the Code test includes an analysis of, not just the admissibility of the evidence, but the importance of the evidence, whether the evidence is reliable and credible and the impact of any defence or other information put forward by the suspect. By contrast, my role, in examining whether there is a reasonable basis for an honest belief in the charge by the prosecutor, is to address the question of whether there is prima facie admissible evidence in respect of each element of the offence (see Smith LJ in Coudrat), setting aside evidence which is plainly admissible. I accept that there may in some circumstances be a feature (which is, or should be, obvious to the reasonable prosecutor) which raises such a large question mark over whether otherwise admissible evidence could be “used in court” (to adopt the expression used in the Code) that a wider consideration including, for example, of the reliability of the evidence is reasonably justified. But, even in those circumstances, the degree of scrutiny will be at a level consistent with the need to establish whether the evidence could prima facie be used in court and not whether at trial there may be a successful argument mounted by the defence to exclude it.

Second, I do not understand it to be a matter of controversy between Mr Spackman and Mr Kinnear that an absence of reasonable and probable cause could be found in circumstances in which the court concludes there to be an honest, but objectively unreasonable, belief: see, for example, Thacker. An honest but negligent or uninformed or careless belief may be sufficient to establish subjective absence of reasonable and probable cause which if coupled with a finding of malicious motivation and damage will complete the tort (subject to the other elements). For the reasons which I set out below however, that principle is of no application in this case where the Claimant has unambiguously pinned his colours to Mr Sherrington having no honest belief in the charge. The point does therefore not arise.

The Claimant’s pleaded case on the absence of reasonable and probable cause is reasonably clearly stated in the Re-Amended Particulars of Claim. Although the pleadings entwine topics relevant to malice with those relevant to reasonable and probable cause, the line of attack is easy to see. The case on reasonable and probable cause relates solely to the admissibility of exhibit TE/91 which purported to contain the bank account of Lifeclub.

The Claimant’s starting point is that the admissibility of that material was fundamental to the prosecution and was the foundation for the expert opinion that the scheme bore all the hallmarks of a dishonest pyramid selling scheme. Adopting many of the elements of HHJ Parry’s ruling on the dismissal application, the Claimant’s case is that the exhibit was “plainly inadmissible” because:

In his closing submissions, Mr Spackman raises as a separate (unpleaded) “defect.” the existence of the “second ILOR” which (a) was sent to FI Eynon when he was in Latvia in November 2003 (b) has never been disclosed and (c) generated the production of the CD Rom and other material. On this basis he submits that the CD Rom was not recovered lawfully. Mr Spackman spent time at trial exploring this issue with witnesses. Although not pleaded, I am prepared to allow him to pursue the point and to resolve it - not least because it seems to fall very broadly within his case on provenance.

The Claimant’s pleaded case was that Mr Sherrington knew of the defects in his case and that he knew that TE/91 was inadmissible. For example, it is pleaded:

At times, Mr Spackman appeared reluctant to put the full force of his case on honest belief to Mr Sherrington in cross examination, but to the extent that he did, he followed the pleaded case. He put to Mr Sherrington that his reliance on the case of Foxley as the basis for the admission of the evidence under s.117 Criminal Justice Act was wrong and known by him at the time to be wrong; that Mr Sherrington was “hanging his hat on Foxley” because he knew of the deficiencies in his evidence; that Mr Sherrington deliberately withheld from the DCMP highly relevant information concerning the problems concerning the admissibility of TE/91; that Mr Sherrington had deliberately concealed a second ILOR because he knew that it would reveal that TE/91 had been unlawfully obtained and that he had no consent to use the material in Wolfram I; that the service of a set of Admissions had been manufactured as a way of getting him out of the problems the case posed.

The Claimant’s case as framed in closing submissions veered away from his pleaded case, and the case which he put in cross examination. Mr Spackman refers in his written closing submissions to Mr Sherrington not having given the admissibility of TE/91 “proper consideration;” he refers elsewhere to Mr Sherrington having “deliberately ignored any issue about whether it was admissible.” In his oral closing he embarked on a submission that “whether Mr Sherrington appreciated it or not, he ought to have come to the conclusion that it (ie TE/91) was neither admissible or else likely to be excluded.” I queried Mr Spackman’s approach with him during closing argument and understood him to accept that his case against Mr Sherrington was based on his actual knowledge of the defects in the exhibit, not on constructive knowledge. In case I am wrong in my understanding, I make it clear that the case that I address in this judgment is that which is pleaded and as framed at trial. This is not a case in which it was suggested that Mr Sherrington negligently failed to investigate the admissibility of TE/91 or that he formed a view of its admissibility on the basis of an honest but flawed interpretation of the law or that for some reason he had an honest but objectively wrong view concerning TE/91. The case against him is that he knew of the defects but proceeded to charge Mr Rudall notwithstanding. This is the case which I deal with below.

The Claimant’s case on malice is also addressed clearly in his pleadings. It is pleaded that Mr Sherrington was motivated not by a desire to bring Mr Rudall to justice on the basis of the charges but because of the ulterior and improper motivation of stopping him practising as a solicitor coupled with general ill-will and spite. Mr Sherrington was part of a close-knit team all of whom were motivated by spite and ill-will towards Mr Rudall. The team comprised Mr Sherrington, Mr Taylor QC, Mr Essex Williams and the police officers. The team acted in concert. Each member was, as it was put to Mr Sherrington and Mr Taylor QC, “out to get” Mr Rudall. Mr Spackman submits that I should be prepared to infer malice or improper motive on Mr Sherrington’s part from statements made by others in the team. They worked closely together over a long period of time. This submission attracted the label (from Mr Kinnear) of “malice by osmosis.” However, I do not understand Mr Spackman to be shrinking away from his need to prove his case against Mr Sherrington; he is however asking me to infer an animus which is common to those working closely together in a group over a prolonged period of time. I interpret the submission in that way and address it accordingly.

I am also asked to infer malice from the following specific matters set out in Mr Spackman’s closing submissions:

It was also suggested by Mr Spackman in his written closing submissions that there had been a failure to disclose the document in these, civil, proceedings (“either no copy of the document was retained or it has been deliberately withheld from disclosure in these proceedings”), an argument which Mr Spackman sought to dilute in his oral submissions but which, for obvious and good reason, caused Mr Kinnear a degree of professional concern. The allegation has no foundation. It should not have been made. However, I put it to one side given that it irrelevant to the findings which I need to make.

The Defendant’s case is that Mr Sherrington is a straightforward and honest witness. Mr Kinnear submits that I should accept his evidence that he had an honest belief in the case against Mr Rudall and raises, rhetorically, the question of why a prosecutor of 30 or more years’ track record with the CPS should embark upon such a dishonest project against a person whom he did not know and had never come across before in his professional or personal life.

Mr Kinnear accepted that the main focus of the case (on both the subjective and objective strands of the test) was TE/91 but reminded me of other evidence available to Mr Sherrington which pointed clearly in the direction of criminal involvement between the Claimant and Evans. There was, for example, a considerable email traffic between Evans (signing himself off as ghost or spook or “Don Evanso”) and the Claimant when Evans was on the run in Spain; that email traffic was not consistent with a professional relationship between client and solicitor but was matey and familiar in tone (the Claimant signing himself off as “Lonely of Swansea” or “Desperate of Swansea” or “P x”); the email traffic related to Evans’ business dealings and property purchases; there was a witness statement from Mr Rudall’s estranged wife which spoke of the Claimant’s close involvement with Evans; the Claimant had been interviewed by the police and asked questions concerning Lifeclub which he had refused to answer. There was, Mr Kinnear submitted, a considerable circumstantial case against the Claimant which painted a compelling picture of Mr Rudall’s involvement in crime.

Further Mr Kinnear submitted that TE/91 was not plainly inadmissible and that a reasonable prosecutor could legitimately form the view that the exhibit would be admitted as hearsay evidence of a business nature under s.117(1) Criminal Justice Act 2003. Mr Kinnear accepted that the evidence was fundamentally important in establishing that Lifeclub was a fraudulent enterprise and that there were no statements from those involved in the creation of the disc. His point was that, whilst there were arguments which could be made concerning the origin of the disc before the jury, the factors upon which the Claimant relied were not determinative of its admissibility or otherwise. He submitted that there was ample material bearing upon the circumstances of the CD Rom being produced which supported the Crown’s case that it contained the Lifeclub accounts. This material included the Letter of Request of February 2003 and the letter enclosing the material in November 2003; the correlation between what was requested in the February ILOR and what was produced in November 2003. The data contained on TE/91 showed a list of transactions with an opening balance of zero and a closing balance close to zero. Although the Paritate Bank had closed in dubious circumstances there was no plausible reason why the bank itself should have wished to manipulate the data. Mr Kinnear accepted that there were problems with the documentation of the handling of the exhibit but those problems only became known at the time of the dismissal hearing in April 2013 and in any event were not the fault of the CPS (or of Counsel). He submits that the abject failure by SWP to maintain the integrity of the audit trail could not have been predicted. Both the reasonable prosecutor and Mr Sherrington had been entitled to assume that the exhibit had been handled in accordance with good practice.

Mr Kinnear submitted that the evidence of Mr Kelly QC was of crucial importance to my objective assessment of evidential adequacy. No critical allegations were made against Mr Kelly QC, whether of bad faith, negligence or breach of the Code. Mr Kelly QC was aware of all of the material factors impinging upon the admissibility of TE/91, save for the problems associated with continuity (of which he was not aware until the dismissal hearing). He was aware of the importance of the evidence to the case. Nonetheless his view was that the Code test was met, that being a test higher than the test that I should apply to establish the presence or absence of reasonable and probable cause. Mr Kinnear’s submission was that Mr Kelly QC’s evidence was the killer blow to the Claimant’s case that there was no reasonable and probable cause.

As to the Claimant’s case on malice, Mr Kinnear submits that I address the case on the basis that nothing short of evidence directly impinging upon Mr Sherrington’s state of mind will suffice and that “malice by osmosis” is not sufficient. There is, he argues, no such direct evidence. As to those particular matters which Mr Spackman relies upon as suggestive of malice on Mr Sherrington’s part, he submits that none stand up to close scrutiny.

The distillation of the case leaves me with three issues to determine: whether Mr Sherrington had an honest belief that exhibit TE/91 was prima facie admissible or (putting the same point in a slightly different way) whether Mr Sherrington knew that TE/91 was not plainly inadmissible. If I find that Mr Sherrington did not have an honest belief that TE/91 was prima facie admissible then that is an end of the issue of reasonable and probable cause. If I do find he had an honest belief then I must go on to consider whether in the light of the pleaded case, that belief was reasonable. If not, then I need consider whether Mr Sherrington was motivated by malice in charging Mr Rudall.

I remind myself that I must consider and analyse each of these elements separately, although inevitably there is overlap in the evidence and there are obvious points of contact between the three elements.

I consider first therefore the merits of the Claimant’s case that Mr Sherrington did not honestly believe in the charge. That is, in the context of this case, that he did not honestly believe that exhibit TE/91 was prima facie admissible or that he knew that TE/91 was plainly inadmissible.

Limb One: Mr Sherrington’s Honest Belief.

It is obvious that, at the heart of this element of the case, is Mr Sherrington’s honesty and integrity. I have found it helpful to stand back from the Claimant’s case and draw together some of the threads of Mr Spackman’s cross examination and see where they lead. In this context, I make the following observations:

Knitting the elements together, on the Claimant’s case, Mr Sherrington acted dishonestly over many years; he was deceitful (prepared to mislead the DCMP, the Court and the Latvian authorities) and cunning (creating a paper trail to cover his tracks in the event of questions being asked concerning his decision-making at some point I the future). It is conduct which, as Mr Rudall put it in his pleadings (albeit in the context of malice), demonstrates the utmost bad faith. Mr Sherrington was correct in interpreting the allegations (as he did) as ones which, if true, risked his livelihood, career and, possibly, his liberty.There is also a contradiction at the heart of the Claimant’s case. If Mr Sherrington knew the key evidence against Mr Rudall to be inadmissible then the chances of a conviction were slim. He would have had to have been either naïvely optimistic or grossly arrogant to believe that the point would not be raised by the defence and argued out at court. If, as Mr Spackman suggested, the hope was that Mr Rudall and Ms Richards would agree a set of Admissions so that the problem would disappear, Mr Sherrington was certainly taking a big risk.

Mr Kinnear submits that the case against Mr Sherrington is inherently improbable. I accept this point. At the time when the investigation into Mr Rudall’s connection with Evans and Richards commenced, Mr Sherrington had been employed by the CPS for over 30 years, for much of that time with the fraud branch. There is no suggestion that Mr Sherrington knew Mr Rudall or knew of Mr Rudall before his name began to crop up during the investigation into AML and OCL and before he became linked with Ms Richards after her husband’s death in 2000. It is intrinsically unlikely that Mr Sherrington should gamble everything (his career, his reputation and livelihood) by embarking upon a prolonged course of dishonesty and deceit when, as I have noted above, the chance of it resulting in a conviction (on the Claimant’s case) must have been so slim and the personal and professional risk to himself so great. It makes little sense.

That said, I bear in mind that people do sometimes behave irrationally. They can become obsessed and behave completely out of character. I have therefore examined the evidence to see whether it points in the direction of an otherwise honest man behaving irrationally.

I set out my review of the evidence and my conclusions below.

I formed a preliminary impression of Mr Sherrington’s general approach to his work from the large number of documents within the trial bundles which had been drafted by him. Those documents included file review notes, conference notes (including a duplicate note if a note has been prepared by an assistant) and briefing documents. The documents are lengthy, detailed, methodical and at times repetitive. Even his file notes and briefing documents frequently start with a short scene-setting and reminder of the point in question. He would correct himself if he thought that he had made an error. Mr Sherrington described himself in his evidence as a “worrier,” a description which is borne out by my reading of the documents in the trial bundle; for example, he took the opportunity to correct what he regarded as a mistake in his file note of 11 September 2006 (based on his reading of Stones, rather than Archbold) when he sent the note on to Counsel. Whether considering the correct route to follow in making the application for a search warrant, or his consideration of the expert evidence in Wolfram 1, it seems from the documents that if he was concerned by a point, he would return to it again and again. Although Mr Spackman submits that this quality was singularly lacking when it came to Mr Sherrington’s examination of the admissibility of TE/91, there is another equally plausible explanation for this, which is that Mr Sherrington was satisfied with his analysis so there was nothing for him to worry about.

I have found the three statements that Mr Sherrington prepared for the purpose of the application for a stay on the grounds of abuse to be potentially revealing. They each ran to over 40 pages. They must have taken Mr Sherrington a very substantial time to prepare. The documents slavishly (and relentlessly) set out the chronology of the prosecution. I found them to be striking for two reasons.

Whilst it would be wrong to say that I formed the impression from the statements that Mr Sherrington was taking the application for the stay in his stride, there is a workmanlike quality to the statements which is not consistent with the Claimant’s portrayal of him as someone personally and emotionally committed to the prosecution; nor of someone who, on the Claimant’s case, may be on the brink of exposure as a dishonest prosecutor who had ridden roughshod over the Code.

This methodical and rather pedestrian approach which I detected from the 3 witness statements was reflected in his evidence to me. Mr Sherrington pointed out on several occasions what he had read and what he had not read in order to explain his difficulty in answering certain questions. He reminded me that, even for the purpose of the hearing before me, he had tried not to read too much of the material which had post-dated his leaving the case in August 2010. He came back to the topic of the further ILOR after a short adjournment to clarify his evidence on the point, having taken the opportunity to read some further material. He frequently went back to his original chronologies to orientate himself in the context of the topic under question. My impression was that he gave evidence in a business-like, slightly fussy, way.

I do not recognise Mr Spackman’s characterisation of Mr Sherrington’s evidence as “overly defensive and argumentative”. He made appropriate concessions: for example, he never denied that TE/91 was fundamental to the success of the prosecution; he did not deny that he may have seen the words Viborka for Prok on the CD Rom (he just could not remember); he accepted that although he took into account advice from Counsel, ultimately, the decision to prosecute was his and his alone: when it was put to him that he was part of a team that was out to get Mr Rudall, he responded “I can only answer for me. I was not out to get him.”

Nor do I accept Mr Spackman’s submission that Mr Sherrington’s evidence was the “exercise in self-justification” which Mr Spackman submits it to have been. Over the course of the day and a half or so of his cross examination, he gave me every impression of being an honest and straightforward witness. He was quick to appreciate the truly serious nature of the allegations which were being made and their implications for him personally and professionally. It was put to him that he hoped to sidestep the problem of the admissibility of TE/91 by serving admissions which he hoped that the defence would agree, even though no evidence had been served upon which the defence could make those admissions. He responded “Absolutely not. I am not suicidal”. When it was put to him that he had misled the DCMP by failing to highlight the difficulties posed by TE/91 because otherwise there would have been “huge damage to the reputation of the CPS” he responded “Absolutely not.. So now in addition to all of the other things which I would have risked, I lie and try and prosecute somebody in order to protect the reputation of the service? No.” When it was put to him that he knew that he did not have the evidence but had nonetheless gone on to prosecute Mr Rudall regardless and in so doing was acting dishonestly and maliciously, he responded “Absolutely not. I had the evidence. I had put everybody to thousands of hours of work. You’re suggesting to me that I would risk not only my job, my career, my liberty and my family’s welfare for the sake of one defendant in one case? Rubbish.”

My general impression of Mr Sherrington is therefore completely at odds with the picture painted by the Claimant’s case. There is nothing which I draw from my review of the documents or the manner in which he gave his evidence at trial which points me in the direction of him being anything other than an honest and sincere, if slightly perplexed, man.

Mr Sherrington acknowledged to me that TE/91 was fundamental to a successful prosecution: he accepted that, if TE/91 were to be ruled out, the Crown would have no case. Mr Sherrington was not cross examined closely on his legal analysis, but Mr Spackman put to him in cross examination that the mass of data contained on TE/91 was “a million miles away” from the sort of documentation that the Court held in Foxley would speak for itself. He stood by his analysis as recorded in his file note of 11 September 2006. He told me that it represented his genuine and honest opinion both at the time when it was created, and thereafter, otherwise he would not have written it. He said that when he prepared the note, he had read the case of Foxley and he had genuinely considered it to be on the point. Mr Sherrington said that he only very rarely was given the sort of material that Mr Spackman was suggesting to him he should have received: sometimes he was given letters from foreign jurisdictions substantiating the data which was produced but more often than not he only got a certificate. He told me that he was surprised and shocked to learn of the outcome of the dismissal application.

The file note bears many similarities with other documents which Mr Sherrington produced. It starts with scene setting and moves on to set out his research and then his conclusion. The note is not a formal document; it has something of the flavour of an aide memoire, prepared by Mr Sherrington to capture his thoughts at that time. There is nothing in the form or content of the document which suggests it to be a false document, contrived for the purpose of putting someone tasked with reviewing the file in the future off the scent. It might be said, that if that had been its purpose, Mr Sherrington might have done a rather more comprehensive and authoritative job (not, for example, musing on the significance of the case of Boo and recording his intention of tracking it down via the CPS library). I also find it revealing that Mr Sherrington sent the note on to Counsel. Even if I were to take into account the Claimant’s case (which I reject, see below) that Mr Sherrington was only part of a team effort to prevent Mr Rudall from returning to practise as a solicitor and that Counsel were part of that team, it still strikes me as illogical and inconsistent with the Claimant’s case that the document was false, that Mr Sherrington should send to Counsel a record of his analysis of the law which he knew to be wrong. At very least, there was a risk that the note might have sparked a response that his analysis was wrong or doubtful. Although Mr Taylor QC admitted in his evidence to me that before the topic was raised with him by Mr Sherrington he had not been familiar with the case of Foxley, I can see no reason why Mr Sherrington would have known this. If the note had been drafted for the self-serving purpose of track covering, then there would be no need to send it to Counsel: Mr Sherrington could have simply drafted it and put it in the file to be uncovered in years to come by whoever was tasked with reviewing the file.

I find nothing inconsistent between the analysis in the file note that TE/91 was admissible and the contents of other documents in the trial bundles. For example, Mr Sherrington’s conference note of 14 September 2006 (in which he recorded that there were bound to be objections to the banking material, if only tactical) is not inconsistent with his view that the material was admissible. Viewed in context, that section of the conference note is referring to the need to make sure that the further letters of request seeking permission to rely upon the Darwin material covered off the possibility that further statements may be needed in due course. Nor is the file note inconsistent with Mr Sherrington’s comment in the conference note of 1 May 2007 that there would be “a need for some further statements”. When asked about those further statements in evidence, Mr Sherrington accepted that it was not referring to statements from the Paritate Bank and it seems clear to me that the statements he was referring to were from police officers, exhibiting the letters of request and material produced, similar to those obtained from DC Jones and FI Eynon in 2010. Mr Sherrington was asked about the reference to “starting from scratch” in the conference of 1 and 2 July 2007 but again viewed in the context of the conference note as a whole, he is referring to the need for expert forensic accountancy evidence geared towards the prosecution of Mr Rudall and Ms Richards, rather than relying upon the expert evidence which had been obtained for the confiscation proceedings.

Finally on this point, Mr Sherrington made it clear to the DCMP in his charging note that the evidence which had been assembled consisted of “a huge amount of material not in the usual format of banking records which took a long time to analyse” and that “no witness statements were provided when the original material was obtained, only accounts..the best we received were some certificates of authenticity and authorisations.” I do not see how Mr Sherrington could have laid out in more unambiguous terms what he had by way of provenance evidence and what he did not have: his charging note is absolutely clear. Mr Spackman’s only answer to this point is to speculate that the DCMP membership may not have read the material given to it by Mr Sherrington. This is a bad point. Mr Sherrington could not have known one way or the other whether the DCMP would have skipped over his charging note or read it in detail. Mr Spackman put to him that he should have spelt out the implications of the limits of the evidence and the likely range of objections – even tactical objections - which the prosecution would confront. Mr Sherrington’s response was “we are talking about the DPP, Jenny Goode, the chief crown prosecutor and the principal legal advisor. That was the destination for this material” and “I didn’t think that I had to – needed to – explain the law of hearsay to them”. This response is compelling.

Taking all of these points into account, I do not find that there is any cogent evidence, or even a tell-tale sign, that Mr Sherrington’s belief that the exhibit TE/91 was admissible hearsay evidence was dishonest.

Mr Sherrington was not in Riga at the time when the Latvian Authorities produced TE/91, nor was he aware of the additional information contained in DC Jones further statement of 12 March 2013 which went into further detail concerning the events in Riga. All that Mr Sherrington had, around the time of charging was the exhibits, including the Latvian covering letter, DC Jones and FI Eynon’s statements and DC Jones’ pocket book.

This is a topic in which Mr Spackman’s closing submissions again veer off track. Having pinned his colours to Mr Sherrington not only knowing of the existence of a further ILOR but also having taken steps to suppress the document, Mr Spackman’s closing submissions assert that “there were further fundamental procedural defects in the method by which TE/91 was obtained which Mr Sherrington should have been aware of but of which he was apparently unaware” and “the potential defect in the evidence gathering process was apparently never considered.” I make the point again that I deal with the issues raised in this case on the basis of the pleaded case as fleshed out at trial.

Mr Sherrington told me that he believed that TE/91 and the surrounding material had been produced in response to the ILOR dated 18 February 2003. It was not clear to me from his evidence whether he had, at the time, paid close attention to the reference in DC Jones’ notebook to the “further letter” as he wondered, on reflection, whether that further letter was the undated November ILOR. He consistently told me that, when he had reviewed the ILORs for the purpose of obtaining consent from the Latvian authority to use the Darwin material, he had been aware of only three ILORs: those of 18 February 2003, November 2003 and another written in 2005. It was put to him that he had not sought consent to use material obtained by an additional ILOR: “my answer is simple, those are the letters of request which I looked at with respect to the material obtained and set out in FI Eynon’s statement” and “as far as I am aware those are the only letters of request”. It was put to him that the second ILOR had not been produced by him because he was aware that the document did not provide him with the authority he needed to use the evidence against Mr Rudell. Mr Sherrington’s response was again compelling: “all the effort, all the hours, is based on fact that we’ve hidden the letter of request, knowing that that was completely wrong. Utter rubbish.”

I accept Mr Sherrington’s evidence that he did not know of the existence of a further relevant letter of request. I accept his evidence that he has not, during the course of the prosecution, concealed or destroyed evidence. Setting aside my general impression of him as an honest witness, I can see no logical reason why, if he had been aware of the existence of a further letter of request, he would not have disclosed it. It was put to Mr Sherrington that his reason for concealing the letter was because it would have established that the Latvian material had been obtained unlawfully or (as it was put in Mr Spackman’s closing submissions) that “the process by which the Latvian CD was obtained was flawed to such an extent that its admissibility was at best extremely uncertain”. However, no coherent case has been advanced by Mr Spackman, either in his cross examination of Mr Sherrington or in his closing submissions, explaining why the production would have been unlawful in those circumstances. Mr Spackman appeared in cross examination to be setting out a case that the material would have been unlawfully produced on the basis that (at the time) letters of request would have had to have been despatched via the UK Central Authority but there is no evidence that a second ILOR, if one existed, was not sent to the UKCA as well as to the Latvian authorities. More importantly, if Mr Sherrington had been aware that there was a procedural flaw in the obtaining of the material, it would have been consistent with his methodical practice to have addressed the point and taken steps to remedy the defect by asking for the material again via an appropriate and lawful route. There was no evidence before me that material obtained unlawfully in the context of one investigation (Operation Darwin), could not have been obtained again and lawfully as part of a separate investigation (Operation Wolfram). Although in his closing submissions, Mr Spackman submits that the Bank had closed and so any steps taken to rectify the problems would have been impossible, this makes no sense: the Bank had already closed by November 2003 and yet was still “in existence” at least to the extent that it had a General Manager (Mr Olegs Chernyshen – whom DC Jones, in his pocket notebook recorded meeting) and premises. In any event, the letters of request and consent are directed, not to the Bank itself, but to the Latvian Judicial Authorities.

For the reasons I set out above, I reject the Claimant’s case that Mr Sherrington knew of the existence of a second or further ILOR which he then concealed or otherwise suppressed.

HHJ Parry’s conclusions concerning the failings by the police in its handling of TE/91 are strongly worded. It was these failings which had led to the “unedifying spectacle” of retired police officers scuttling around during the course of the dismissal hearing attempting to document their handling of the exhibit. The police handling of the exhibit was described by HHJ Parry to have been “lackadaisical and reckless”.

Mr Sherrington was asked few questions concerning his knowledge of these defects. To the extent that he was asked questions on the topic, he denied being aware of the problem. I accept his evidence. From his first grappling with the issue of the mechanics of getting TE/91 before the jury, he contemplated statements being provided by DC Jones and FI Eynon exhibiting the CD Rom and other material. He returned to the point on a number of occasions, including his charging note to the DCMP. Had he been aware that there had been irregularities in the handling and audit of the exhibit, it would have been consistent with his practice to have addressed them. As Mr Beer put the point in his opening and as adopted by Mr Kinnear, the best evidence that no one (including Mr Sherrington) knew of the defects in the logging of the handling of the exhibit was the depressing backdrop to the dismissal hearing of officers attempting to reconstruct the audit trail on the hoof.

Mr Sherrington did not deny that he had seen the words Viborka for Prok which appear on the computer screen when the CD Rom was opened. Interpreting his evidence as a whole on the point, he was, in 2018, simply unable to say one way or another whether at the time when he was working on the case he had seen it but that if he had seen it, he did not know what it meant.

I accept his evidence. Indeed Mr Spackman, in his closing submissions appears to accept the evidence also, expressing only surprise that he was not made aware of it (although by whom, Mr Spackman does not mention). Again, if Mr Sherrington had been aware of the possibility that the Lifeclub banking accounts were not complete, I see no reason why he would not have made a further request of the Latvian authorities for the full set of accounts.

It has been a consistent theme of the Claimant’s case that Mr Sherrington never had the necessary consent from the Latvian authorities to use the material which had been obtained in November 2003. Although not spelt out in the pleading, I had always understood his case on this point to be part and parcel of his case on the alleged second ILOR and based on Mr Sherrington’s failure to list in his letter seeking consent (2 March 2007) the “second ILOR.” See for example, the following exchange between Mr Spackman and Mr Sherrington (referring to the contents of the 2 March 2007 letter): “you’re not seeking permission in relation to any material that you might have received from Latvia from some other source” to which Mr Sherrington’s response was that “my answer is simple. Those are the letters of request which I looked at and those are the only letters of request to Latvia that I was aware of”. Given that I have already found that Mr Sherrington did not know of the existence of a second ILOR, the case on consent on this basis also falls away.

In his written closing submissions however, Mr Spackman raises a separate point, never put to Mr Sherrington, that the letter from the Latvian authorities giving consent “carries no stamp or signature and it does not bear the coat of arms of the Latvian judicial authority.” I do not know where this takes the Claimant or how, if at all, it ties in which his case on consent as put at trial. In any event though, as it is a new point, not pleaded, I do not address it.

This deals with the relevant matters concerning Mr Sherrington’s honest belief. I conclude without hesitation that Mr Sherrington had an honest belief in the charge. I find nothing in the evidence which points in another direction. I therefore move on to consider whether his honest belief was reasonable by the standards of the reasonable and conscientious prosecutor.

Limb Two: Objective Sufficiency.

Section 117 Criminal Justice Act 2003 (“CJA 2003”) provides an exception to the hearsay rule in respect of “business and other” documents. Sub-section (1) sets out the exception and sub-section (2) the qualifying requirements that the document was created or received by a person in the course of trade, business, profession or other occupation; that the person who supplied the information had personal knowledge of the matters dealt with and that each other person (if any) in the transmission chain from the supplier of the information to the creator of the document had also been acting in the course of a trade or business. Sub-sections (6) and (7) provide that otherwise admissible hearsay evidence may be excluded at the court’s direction on grounds of doubtful reliability as to contents, the source of the information contained in the statement, the circumstances in which the information was supplied, or received, or the statement created or received.

Mr Kinnear submits that in addressing the question of objective sufficiency of evidence for the purpose of determining whether Mr Sherrington’s honest belief in the charge was reasonable, I should limit my examination to those issues which have a bearing upon the admissibility of TE/91 under s.117(1) CJA 2003. Broadly speaking those issues are the “provenance issues”. He submits that there is no need for me to consider wider issues relevant to the reliability of the exhibit under s.117(6) which, whilst potentially relevant to the Code evidential limb, are not relevant to the narrower question of the prima facie admissibility of the exhibit. I agree with him. For the reasons which I set out below, I do not consider that the reasonable prosecutor (in whose shoes I stand) would have sufficient doubt over the reliability of the exhibit to engage in the exercise and analysis that I refer to in paragraph 80 above. Out of deference to Mr Spackman’s arguments, and in case I am wrong on the point, I address Mr Spackman’s full argument in any event.

I deal first therefore with the question of whether the exhibit was admissible under s.117(1).

In Foxley, the Court of Appeal considered the effect of the absence of evidence from those persons who had created the documents: in that case the documents were credit notes, invoices and credit invoices purporting to emanate from foreign suppliers of ordinance. The only evidence adduced by the Crown in that case, like the present, was from police officers who had obtained the material from the appropriate foreign authority who had in turn seized it from the companies in question. There was no evidence bearing upon the qualifying criteria in sub-section (2). The Court concluded that, although it might be desirable to have evidence bearing upon the different limbs of s.117(2) the Court was entitled to draw inferences from the documents themselves, and from the method or route by which the documents had been produced, in the absence of evidence detailing the circumstances of the production and obtaining of the material. It did so on the basis that Parliament had anticipated that the courts would draw inferences as to the personal knowledge of the person supplying the information of the matters dealt with.

Mr Spackman’s submission on Foxley drills down into two main points. First, the CD Rom contained spreadsheets detailing a mass of transactional data which bore little resemblance to bank accounts. Therefore, he argues, in the absence of a statement from the person who downloaded the material the spreadsheets did not speak for themselves. Given the way in which the transactions were laid out, he submits that it was not even clear that the material contained on the disc was a bank account record, let alone the bank account relating to Lifeclub. Second, he submits that it was known that the Paritate Bank had closed down in dubious circumstances and so the source of the information was unknown and doubtful.

I reject Mr Spackman’s submission. Assessed by reference to the standard of the reasonable prosecutor at the time of charge, I do not find that the exhibit was “plainly inadmissible” under s.117(1) CJA 2003. I reach this view for the following reasons.

I have looked at the material contained on the CD Rom (as it appears when opened on the computer). It contains three files of transactions, one bookmarked Lifeclub, the other GFS and the third PBS. The accounts record a series of credits and debits from the account. Many of the transactions relate to Evans. The transactions include transactions by the 13 “sample” people who were known to be victims of the Lifeclub fraud. Many of the payments are made by way of Lifeclub Maestro cards which was known to be one of the means by which payments were made. My conclusion, based on the data contained on the disc alone, is that it is a bank account record. This is not just one of a reasonable range of conclusions, it is the obvious conclusion (and no plausible alternative was advanced by Mr Spackman). I also find that the reasonable prosecutor would be satisfied to the required standard that the bank account was the Lifeclub bank account. Mr Kinnear did not address me upon all of those matters which Mr Kelly QC raised in his argument before HHJ Parry and which found their way into the ruling (the matching bank account numbers, the request for the online banking facility) but I find that, just on the basis of the transactions recorded, the bank account was likely to relate to Lifeclub.

I also accept Mr Kinnear’s submission that it is reasonable to consider the nature of the data on the CD Rom and to assess it in conjunction with relevant surrounding material: the Court of Appeal in Foxley stated that it was legitimate to view the material and the method or route by which the material had been obtained. There is a volume of other supporting information bearing on the nature of the data. DC Jones recorded in his pocketbook receiving the Lifeclub accounts and, although it is possible that he simply made that assumption, it is equally possible that that was what he was told. I also accept Mr Kinnear’s point that the material recovered in November 2003 by DC Jones and FI Eynon, and later exhibited by FI Eynon, matches broadly that which was requested in February 2003 ILOR. The bank accounts for PCB and GFS were provided. The other material exhibited by FI Eynon was consistent with what the February ILOR requested.

I do not accept that the fact that the data emanated from a bank which had closed down in “dubious circumstances” has a relevant bearing on the admissibility of the data. As Mr Kinnear has submitted, even if the Bank had been closed down by the Latvian regulators because it had become the banking house of choice for criminals such as Evans and Richards, without wild speculation, I see no plausible reason why the Bank itself should supply material other than that which had been requested. I deal with Mr Spackman’s other argument in this context that, as an internet banking facility, Evans or Richards may have been able to conceal the true nature of the transactions. Mr Spackman relies here upon a comment made by Dr Djanogly (the forensic accountant expert who reported for the Crown in December 2012) which suggests that the entries were open to manipulation by Evans. I do not see how this argument advances Mr Spackman’s case: even taking into account that possibility, Dr Djanogly still considered that the bank accounts demonstrated the hallmarks of a Ponzi scheme. But even if there is substance in Mr Spackman’s argument, it does not interfere with my finding that the reasonable prosecutor would be entitled to conclude that the data was prima facie admissible under s.117(1) on the basis that “it spoke for itself” in a Foxley sense.

I now deal with Mr Spackman’s arguments which go to the reliability of the exhibit and its potential exclusion under s.117(6). I do not address each point which was made in cross examination but focus upon the issues relied upon in Mr Spackman’s closing submissions.

I have already considered the allegation that Mr Sherrington was aware of, and concealed, a second ILOR but the topic arises again in connection with my assessment of the sufficiency of evidence under the objective strand of the test for reasonable and probable cause. I bear in mind that, at the time of charge, the reasonable prosecutor would not have the benefit of those statements from DC Jones and FI Eynon of 2013 in which they add some flesh to their accounts of what took place in Latvia in 2003.

Mr Kinnear described the issue of the second ILOR as being little more than a distraction. He urged me to bring a “real world” sense to the topic. His point is that, that which was requested by the February 2003 ILOR was what was obtained by the men in November 2003. Mr Spackman argues, and invites me to find, that there was a second letter and that it led to the production of the material. He relies upon DC Jones pocket book reference to “an additional request” and the statements of the two officers in 2010 which referred to an additional request. I find that the reasonable prosecutor addressing the circumstances of the production of the material in November 2003 would conclude that the material had been produced in response to the ILOR of February 2003. I reach this view for the very simple reason that Mr Kinnear submits: what was received was what had been requested in that letter. If the reasonable prosecutor had, at the time of charge or running up to charge, focussed upon the reference to an additional or second letter in DC Jones’ pocket notebook, the natural inference would be that the second letter was the undated “November 2003” letter which had been despatched to Latvia at the time when the men were there in the hope that, whilst in Latvia, that material (relating to another person and another bank account) could be collected at the same time.

There were considerable irregularities in the handling and audit trail of the exhibit following its production to DC Jones and FI Eynon in November 2003. Those irregularities are described in detail in the Parry ruling. However, just as I have found that Mr Sherrington was not aware of those deficiencies, nor do I find that a reasonable prosecutor would have been aware of them. The reasonable prosecutor was entitled to assume that the police would do their job properly by labelling the exhibit, by maintaining a log of its use, keeping an audit trail of its being copied and ensuring that its integrity was not compromised. Ms Jenkins noted on 17 May 2013 that “in a case of the size and history of Op Wolfram there is a very close working with the investigation team and a degree of trust and professionalism is implied.” It was not part of the Claimant’s case that Mr Sherrington (and by implication, the reasonable prosecutor) was under a duty to check that the police were doing their job in accordance with good practice and this was not put to him in cross examination. Although an application was made to amend the pleadings on the last day of trial to raise the allegation, the allegation was directed at Mr Taylor QC who it was submitted was under a duty to check that the police were handling the exhibit in accordance with good practice. As it was, I refused that application on the basis that by that stage (on the last day of trial) it would be unfair to the defence. In any event, even had I allowed the application, it would not have assisted Mr Spackman’s case against Mr Sherrington.

The CD Rom bore the words Viborka for Prok meaning “excerpt” from this, it is said, the reasonable prosecutor would appreciate that the disc did not contain the entirety of the Lifeclub bank account. There is nothing in this point. Even if an interested prosecutor had taken the trouble of finding out what the words meant, the date span of the Lifeclub material on the disc (which coincided with the “life” of the company) and the size of the opening and closing balances would remove any concern that the full records had not been produced.

I deal finally under this topic with what Mr Kinnear submits is the fatal blow to the Claimant’s case on reasonable and probable cause. He argues that the fact that Mr Kelly QC and Ms Bex (against whom there are no allegations of bad faith, negligence or failure to adhere to the Code) concluded that the evidence against Mr Rudall and Ms Richards satisfied the Code test is determinative of my ruling on this issue.

Broken down, his argument is as follows:

Mr Spackman has no real answer to the difficulties which Mr Kelly QC’s evidence poses to his case. He notes the difference in approach to TE/91 by Mr Kelly QC (who raises the issue at his first conference) compared with that of Mr Sherrington who appears to have addressed it briefly in 2006 and never re-visited the analysis. He makes the observation that a comment made by Mr Kelly QC in one of the conferences that the Crown was going to have “a crack at it” (that is, a crack at prosecuting Mr Rudall and Ms Richards) hardly amounted to a ringing endorsement of the merits of the prosecution; nor was his statement that he could not guarantee the admissibility of the disc. On the first point, however, Mr Kelly QC explained (and I accept) that the context of the conference was his frustration at the threat that funding would not be available to permit DC Grey (who had been the officer in the case) from continuing his role in the case post-retirement. As to his second point, he said that, as Counsel, he was never in the habit of guaranteeing anything. I accept this explanation. It has more than the ring of truth about it.

Mr Spackman’s only refuge from the full force of Mr Kelly QC’s evidence was to suggest to me in closing that Mr Kelly QC was in reality “impaled on the horns of a dilemma” For Mr Kelly QC to have “pulled the plug” (as he described it) on the case and discontinued the prosecution would have led to “wide ranging repercussions given the nature and history of the case”. Mr Spackman concludes in this way: “ to the extent necessary therefore it is alleged that Mr Kelly QC and Ms Bex were in breach of the Prosecutor’s Code but in reality they were put in an invidious position in the first place… although it is submitted he was in breach of the Code, such a breach was absurdly minor compared to the breach committed prior to the issue of proceedings”.

I set aside for one moment that Mr Kelly QC denied that he had breached the Code and pursued a case in which he did not have the necessary degree of confidence. Mr Spackman’s other problem here is that no breach of the Code is pleaded in the Re-Amended Particulars of Claim. At the pre-trial review, I had sought clarity from Mr Spackman on his case against Mr Kelly QC and he confirmed in clear terms (as reflected in the Order which I made) that he did not assert bad faith on the part of Mr Kelly QC (or Ms Bex). I accept Mr Kinnear’s contention that an allegation against Crown Counsel that he (or she) breached the Code amounts to an allegation of bad faith. Further, although there is a reference in the Re-Amended Particulars of Claim to “the prosecution continuing in breach of the Code” this was clarified by the Claimant’s Further and Better Particulars to be referring to “the prosecutor” that is (at least until August 2012) Mr Sherrington and not Mr Kelly QC. His case in closing is therefore not only not pleaded but at variance with his case as confirmed to me at the PTR. It is no answer to the issue to suggest, as Mr Spackman does, that although it was a breach of the Code, it was only a very small one given the mitigating circumstances. As Mr Kelly QC observed: a breach is a breach.

It is against this background therefore that I address Mr Kinnear’s point that the Kelly evidence is the coup de grace to this element of the claim. I observe that Mr Kelly QC was not called as an expert (nor could he be, given his involvement in the case) but I find I am able treat his evidence as coming from someone against whom there is no suggestion that he was not doing his job properly. As such it has considerable value. I am satisfied that he considered the relevant problems concerning TE/91. I accept that he genuinely believed that it was admissible (indeed sufficient to meet the higher Code test) as opposed to plainly inadmissible. I do not accept that Mr Kelly QC would have felt pressured to “plough on” given his late arrival to an expensive long-running case. Mr Kelly QC was no shrinking violet. He struck me as a robust lawyer who would not have had a scrap of difficulty in telling Mr Lee that he thought the case was going nowhere, had that been his view. I do not go so far as to express the view that Mr Kelly QC’s evidence is determinative of the issue of the objective sufficiency of evidence. I have undertaken my own assessment of the issue. But having done so, Mr Kelly QC’s evidence provides compelling support.

I am against Mr Spackman. I find that Mr Sherrington’s honest belief was reasonable. I am conscious that my conclusion may differ from that of HHJ Parry but remind myself that the test for a dismissal application under s.6 Criminal Justice Act 1987 is not the existence of a prima facie case, but whether the evidence is sufficient for the jury to convict the defendant. The test is thus different and higher than that which I must apply. HHJ Parry ruling is not, I add, binding on me,

Having made the findings of fact above, it follows that I am against Mr Spackman on the absence of reasonable and probable cause. As such, there is no need for me to consider malice. I do so in any event, not only in case I am wrong in my analysis of reasonable and probable cause, but in order to see whether there may be anything thrown up by my examination of the topic which causes me to review critically my judgment on Mr Sherrington’s honesty and integrity.

The case naturally falls to be considered under 4 headings which I draw from Mr Spackman’s closing submissions. First, the extent to which I can infer malice on the part of Mr Sherrington from comments made by Mr Taylor QC and Mr Essex Williams. Second, the circumstances surrounding the obtaining of the search warrant in 2002. Third, the decision to prosecute Wolfram II. Fourth, the continuation of the prosecution of Wolfram I and the delay in bringing that case to charge. I deal with the points in turn.

I start by making two general observations concerning the relevance of the statements made by Mr Taylor QC and Mr Essex Williams upon which the Claimant relies.

First, the case against Counsel is only relevant to the extent that it may shed light on Mr Sherrington’s motivation. Even if I were to take the Claimant’s case at its highest and find that Mr Taylor QC and Mr Essex Williams were motivated by spite, ill will and/or a desire to prevent the Claimant from practising, this would be irrelevant unless I were to also conclude that there was evidence that Mr Sherrington was infected by that malicious intention or shared that malicious intention.

I am against Mr Spackman on this point for the following reasons:

The second observation is that I am not satisfied that a wish to prevent a person practising as a solicitor is necessarily an improper motive for bringing a prosecution. As Mr Kinnear submitted to me, viewed in proper context and taking the Claimant’s case at its highest, all that Counsel appeared to be saying was that in their view Mr Rudall was dishonest and therefore should not be occupying that position of trust which a solicitor enjoys. It seems to me that only if I were to find that their predominant motive was to prevent Mr Rudall from practising (for reasons other than an underlying belief in his dishonesty) could I conclude that the motivation was malicious and improper.

I set out my views on Mr Taylor QC and Mr Essex Williams below. Criticisms can be made of both. Mr Taylor QC was long-winded and lacking in focus. Mr Essex Williams unreconstructed and inappropriate in the views which he expressed of Ms Richards and his comments concerning Mr Rudall. However, I can deal with the case against them relatively briefly given my finding that, whatever their motives, there is no evidence that Mr Sherrington shared their feelings or was infected by their malice and spite.

Mr Spackman submits that there is abundant evidence of the true motivation behind the prosecution from the various statements of Counsel. In fact, he relies upon a few statements by Counsel in which they express the view that the Claimant should not be practising as a solicitor. Mr Essex Williams on 22 March 2003 wrote in an Advice “as has been said on many occasions, he must be stopped practising;” that of Mr Taylor QC who explained to Mr Barry Maine of the Law Society on 13 May 2003 “what concerns us is that PR is still in practice”; that of Mr Taylor QC on 4 February 2004 who recorded in an Advice “the police are in possession of information concerning the behaviour of a man in private practice as a solicitor. Members of the public routinely ask him to deal with their money”; and finally, Mr Taylor QC’s statement of 7 August 2006 in his case management plan “I have no doubt that PR is a bent solicitor who should not be in practice.”

I address Mr Spackman’s headline points only. I pause to note that the tiny handful of statements above pale into insignificance in comparison with the large volume of material generated by Mr Taylor QC and Mr Essex Williams. On this basis alone, it would be hard to draw any useful conclusions from the statements. The statements should also be placed in their relevant context. For example, the meeting of the 3 May 2003, attended by Mr Mayne of the Law Society fraud team, focussed upon what, if anything, the Law Society could do in connection with a solicitor who was the subject of a criminal investigation and who was still practising. There was a discussion about what material could be shared with the Law Society and what steps it could take without prejudicing the criminal investigation. I find nothing objectionable or even particularly surprising about such an interest. Mr Taylor QC explained that the impetus for his Advice of 4 February 2004 was his knowledge of Mr Rudall’s connection with Evans whilst a fugitive, the possibility that the Claimant may have been considering moving to Spain (to be with Evans) and the suggestion of an element of financial dependence by Rudall on Evans. There is no doubt that Mr Taylor QC considered Mr Rudall to be dishonest. His reference to Mr Rudall being “bent” was inappropriate. However, I find nothing in these statements or in the others upon which Mr Spackman places reliance which suggest to me that the motivation for the prosecution was a desire to stop Mr Rudall from continuing to practice as a solicitor or that for some reason Mr Taylor QC was motivated by general ill-will and spite. It seems to me to be plain that Mr Taylor QC’s interest in the prosecution was because, on the basis of the information available to him, he considered the prosecution to be justified.

I need to refer to two further documents from Mr Taylor QC which assumed an importance which they did not justify at trial:

I mention only briefly the inappropriate and pejorative comments made by Mr Essex Williams. He referred to Ms Richards as appearing to be “a pampered bimbo” who was “not as stupid as she looks.” He referred to the pronunciation of Rudall “as in poodle.” Such comments do not reflect well on Mr Essex Williams but I do not draw an inference from them, or from other statements which he made, that he was motivated by ill-will and spite. The only inference which I can safely draw from his statements is that he was completely out of touch with contemporary mores.

Having dealt with the Claimant’s case concerning the “prosecution team”, I now consider those topics from which Mr Spackman invites me to infer malice. The first is the Information which was laid before the Magistrates at the application for the search warrant which it is said contained wrong and/or misleading statements intended to colour the attitude of the Magistrates.

The Information was not drafted by Mr Sherrington but he accepted that so far as he was aware and could remember, there had never been a suggestion that Mr Rudall was involved in drug trafficking and that to the extent that paragraph 3 of the Information or paragraph 138 of the Information suggested that he was suspected of drug trafficking then those references were wrong.

Mr Sherrington also told me that the extent of Mr Rudall’s suspected involvement in criminal activity was limited to these facts set out in the Information in terms of Darwin. In this context, the Information is worthy of closer scrutiny. It is again a long and quite involved document. The first point I make is that, although there are references to Operation Darwin relating to drug trafficking as well as laundering, the detailed content of the Information relates only to Evans’ money-making schemes and nothing which relates to the drug trafficking element of the investigation. So far as the Information addresses Mr Rudall personally, it records:

Taking the Information as a whole the “connection” was between Mr Rudall and that element of Operation Darwin which concerned money laundering. A sensible reading of the Information would not lead the reasonable reader to conclude that Mr Rudall was suspected of involvement in drug trafficking. If anyone had been initially misled by the statements in paragraph 3 or paragraph 138, a review of the document would make the position clear. I therefore reject the Claimant’s case that the Information taken as a whole was misleading. It was not. Nor do I find that the inclusion of those statements upon which the Claimant relies is evidence from which I can infer malice on the part of Mr Sherrington, or indeed on the part of anyone else involved in the investigation. He did not write it and, as he told me, the extent of Mr Rudall’s involvement in Darwin was as set out in the body of the Information.

Mr Spackman invites me to find that the application for the warrant should have been made under s.9 PACE rather than s.8 of the Act. It is not necessary for me to resolve the issue of the lawfulness of the s.9 as opposed to the s.8 route and I decline to do so. My only interest in the topic is whether the choice of route is evidence of malice on the part of Mr Sherrington.

Mr Spackman faces additional problems in any event. As Mr Kinnear correctly states in his closing submissions, the basis for Mr Spackman’s assertion that s.9 was the correct route was never made clear to Mr Sherrington. The pleaded case on the point (paragraph 11 (iv) of his statement of case) set out the objection on the basis that the Claimant’s office would inevitably contain privileged material and this was the case which was put to Mr Sherrington. When I raised the issue with Mr Spackman during his cross examination of Mr Sherrington he confirmed this to be his case on the point. As Mr Spackman’s case evolved however and eventually settled in his final questioning of Mr Taylor QC and in his closing submissions, the objection was made on the basis that it was the presence of special procedure material which required the use of the s.9 procedure. Whatever the position, this case was never put to Mr Sherrington.

I do not accept that the purpose of pursuing the application for a warrant by an application to the Magistrates under section 8 is evidence of, or even suggestive of, an intention by Mr Sherrington to deprive Mr Rudall of procedural protections and enable the police to “raid” (as Mr Spackman put it) the premises and unlawfully seize privileged material. The evidence suggests that Mr Sherrington’s prime concern was to avoid the seizure of privileged material:

Finally, I observe that, if the submission that Mr Sherrington was deliberately manipulating the process to gain a procedural advantage, were correct, then it would follow that Mr Sherrington’s prompt sheet (and its predecessor note which was shown to Mr Essex Williams) were false documents (recording a view which Mr Sherrington knew to be wrong). This was never put to Mr Sherrington. But, in any event, I reject the point for the same reason that I reject that Mr Sherrington concocted the Foxley file note.

Mr Spackman invites me to find that the seizure of the file was unlawful. Again, I do not determine this point. It is not necessary for me to do so. Mr Sherrington was not present at the search. Indeed, Mr Spackman asked no questions of Mr Sherrington on the topic precisely because he was not present. Whether the file should or should not have been is not relevant to the case against Mr Sherrington.

The Claimant submits that the real motivation for prosecuting Wolfram II was because it provided Mr Sherrington with “a quicker and easier” route to putting the Claimant out of business. Otherwise, it was submitted, there could be no logical reason for prosecuting such a small and unimportant case at the expense of the Wolfram I investigation which was, during the currency of Wolfram II, put on the back burner. I reject this submission.

Mr Sherrington explained to me that the prosecution of Wolfram II was neither quick nor easy. He told me that “quite frankly, the last thing I needed at that stage .. was another file. And it certainly wasn’t quick and it certainly wasn’t easy… this was a civil law case.. it was the last thing we needed.” He told me: “the purpose of the case was simply because we found ourselves in a cleft stick.. that had to take precedence over Wolfram I. It was not to get him out of practice, it was to prosecute the case.” He said that he considered that the evidential limb of the Code test had been met. In those circumstances, he told me that, in his opinion, it would have been “completely untenable” for him to have gone on to advise that the public interest did not justify a prosecution. Mr Rudall was a solicitor who, on the facts before him, had perverted the course of justice during the course of civil proceedings. He said that although in money terms the case was not considerable, in terms of the actual administration of justice the case “loomed very large.” He said that to have made the decision not to prosecute the case on the basis of having “bigger fish to fry” would not in his view have been a reasonable exercise of the public interest aspect of the Code test. He did not consider that he could leave it in the hands of the Law Society who appeared to be awaiting the outcome of the criminal prosecution. He also had to consider the fact that Mr Clarke who, unreliable as he in the end turned out to be, at the time of charging had been the victim of an alleged conspiracy/deception.

I accept Mr Sherrington’s evidence. His explanation that the charge was serious, (although in money terms the case small in comparison with Mr Rudall’s suspected involvement in money laundering) was undoubtedly correct. I accept that, as Mr Sherrington told me, the easy way out would have been to have “washed his hands” of the case and given the package of material to the Law Society and that for him a case which arose from civil proceedings (of which he had no experience) was an unwelcome intrusion. The fact that Mr Sherrington did not take the easy way out, because to have done so would have been to act in a way inconsistent with the public interest element of the Code is, I find, another marker of his integrity.

I address two further points raised by Mr Spackman in his closing submissions on this topic. First, he refers to the dearth of evidence explaining the “sea-change” in the view of the merits of the prosecution of Mr Rudall in connection with his handling of the Richards v Clarke case. I do not accept this. The reason for the change in view was explained by Mr Sherrington in his charging note: the further investigations had unearthed material which supported Mr Clarke’s version of events. Second, he asserts that there is no reasonable and probable cause for the first (Wolfram II) prosecution (although he does not invite me to make a finding on the issue). I do however make a finding. There was reasonable and probable cause: Phillips J was undoubtedly correct in deciding that issue (not least on the basis that there was no half time submission) and, in any event, as I have already said, his decision is binding upon me.

Although in his closing submissions, Mr Spackman separates the return to Wolfram I and the delay in the charging, in reality they merge. Mr Spackman makes a number of points (the scattergun approach to potential charging, the large number of charges which were originally contemplated, the lack of focus on Lifeclub as evidenced by the few questions posed of Mr Rudall during his police interview and the lack of regard to Mr Rudall’s having a criminal prosecution hanging over his head) but they all add up to the submission that the decision in 2005 to revive the investigation of Wolfram I and the length of the investigation is evidence of Mr Sherrington’s dogged determination to prosecute Mr Rudall at all costs.

This judgment is not the place to go into the twists and turns of the investigation over the course of the years, not least as I have not been given the full suite of underlying papers. It may be that criticisms could be levelled at both Mr Sherrington and Mr Taylor QC for lack of focus and a difficulty in seeing the wood for the trees. However, I do not find that the prolonged investigation and the fact that charges were brought 8 years after the commencement of the investigation is evidence of malice or that the decision to revive the investigation after the failure of Wolfram II was (as it was put to Mr Sherrington) because he was “to be sure you finished him off”. Mr Sherrington’s three witness statements for the abuse hearing detail the steps which were taken. They highlight the delays caused by problems with expert evidence and obtaining material from abroad (to take just two examples). There was no time when nothing was happening. The history, as revealed, may show something of a plodding investigation without much strategic overview but there is nothing to suggest that it was a prosecution without foundation or that it was motivated by malice or ill-will. So, I reject this argument also.

I reject the Claimant’s case that the prosecution was motivated by malice for the reasons I have given above. I add that I find nothing in my examination of the points raised by Mr Spackman which undermine my view on Mr Sherrington’s honesty and integrity in paragraphs 99 to 127 above. Just the opposite. The evidence which I have reviewed underscores and reinforces my conclusion that Mr Sherrington had an honest belief in the charge.

This claim for malicious prosecution fails and I dismiss it. Having done so it follows that I dismiss the claims for misfeasance in public office and the action for damages for breach of s.6 Human Rights Act 1998. The action for misfeasance requires, as a foundation, a finding that Mr Sherrington acted in excess of his powers in instituting proceedings without the necessary evidential support to do so. I have made no such finding. The action under s.6 is parasitical upon a finding of malicious prosecution and thus fails for that reason.

I finish with a comment upon Mr Rudall himself. He gave evidence before me and, on occasions, exercised his right not to answer questions. It is important that I record that I have not drawn any adverse inference from his exercise of this right; nor have my conclusions above been influenced by a view that he is, or may be, guilty of the offences with which he was charged in 2010. I have given no thought one way or another to that issue. Mr Rudall’s own evidence has not featured in my analysis of any of the topics in this judgment for the simple reason that he had no relevant admissible evidence to give on any of the points raised by his claim. His witness statements, which originally ran to many hundreds of paragraphs, were reduced by agreement to only a few pages of relevant admissible evidence. As I said at the outset of this judgment, the focus of this case and of this judgment has been Mr Sherrington and not Mr Rudall. Having said this, it would be remiss not to record my understanding, and acknowledgement, of the fact that Mr Rudall lived under a cloud of suspicion for many years and that this has affected his life profoundly.

I invite the parties to draw up the appropriate Order to give effect to my conclusions.