[2025] EWHC 2684 (KB)

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

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

DS Brownsell described the MIT team members as follows;

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

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

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

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

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

DC Alison Doust was a reliable manager of routine tasks.

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

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

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

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

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

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

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

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

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

….

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

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

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

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

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

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

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

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

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

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

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

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

“42.

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

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

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

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

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

And

“70.

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

(i)

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

(ii)

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

(iii)

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

(iv)

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

(v)

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

(vi)

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

(vii)

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

(viii)

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

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

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

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

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

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

I now turn to specific issues.

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

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

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

And

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

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

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

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

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

DS Brownsell said in evidence:

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

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