[2025] EWHC 2684 (KB)

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.