[2025] EWHC 2684 (KB)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and concluded by stating that:

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

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

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

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

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

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

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

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

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

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

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

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