[2025] EWHC 2684 (KB)

This is a question of fact.

As I have already stated the inquiry team was not a specialised fraud team and it was a complex investigation. That some ex post facto criticism can be levelled in terms of steps taken or not taken is not wholly surprising or, without more, significantly supportive of malice. I remind myself that I must be cautious not to infer malice from facts that are consistent with incompetence or negligence.

There is validity in Mr Warnock’s criticism with his closing submission that much of the questioning of the witnesses proceeded as if the Claimants were advancing a negligence claim (or conducting a public inquiry into Police professionalism and/or why there was a failed prosecution) e.g. suggestions of failure to give appropriate weight to the PWC report; failure to devise a better questionnaire for those who worked at Cawston Park; the suggestion that the Major Investigation Team were inexperienced in investigating fraud; the allegation that the investigators did not keep a sufficiently open mind and therefore missed the significance of exculpatory evidence, the inappropriateness of continuing to attend at a social club when Mr Breeze also remained a member and/or of drinking too much when doing so. Malice is distinct from incompetence or negligence and I am satisfied that the relevant officers within the investigation did not act with malice on any significant occasion or in any material way. Mr Warnock referred to the view expressed by Lord Carloway (President) in the Scottish case of Grier v Lord Advocate [2022] CSIH 57; 2023 S.C. 116 at para 108,

“It is not to be readily assumed that a failure by the police to report a particular piece of information, or produce a specific document, to the Crown stems from malice. On the contrary, there is a presumption that a public office holder is doing no more than his duty, and doing it honestly and bona fide (Beaton v Ivory (1887) 14R 1057, LP (Inglis) at 1061). A police report, by its very nature, is bound to be a summary in order to make it reasonably digestible to the prosecuting authority. It cannot, and should not, cover all the minutiae of months of investigation. It must, to a degree, be selective, even though the law of disclosure must ultimately be complied with. Even then, what is readily seen in hindsight to have been of relevance may not have assumed such a significance at an earlier stage. This is the real world in which prosecutions are commenced. In short, the occurrence of mistakes does not normally constitute a conspiracy or give rise to an inference of malice”.

I respectfully agree.

I reject as misconceived the suggestion advanced on behalf of the Claimants that:

“The very starting point of the investigation should have been that the allegations made by Mr Deveney were probably fabricated”

and/or that Gary Cooper’s account when interviewed in September 2006 should have put an end to the investigation and that as a consequence it can be inferred that the motives thereafter must have been malicious.

It was recognised at the outset of the police investigation that Mr Deveney was a witness with a potential motive for revenge. DS Brownsell said in his evidence that he recognised from the outset that Mr Deveney was tainted as a witness, and the police were alive to the fact that he could be lying, but (in his honest view) that did not mean that what he said should not be investigated or was necessarily untrue. I accept this evidence. He then believed other evidence supported what Mr Deveney alleged.

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 terms that were not challenged when he was cross-examined DC Horsburgh provided more information when this became available. 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

I find as a fact that it was Mr Brownsell’s honestly held view (a view shared by the other officers) that other evidence obtained during the investigation corroborated Mr Deveney’s allegation and that he did not at any stage believe that the evidence given by Mr Deveney was inherently incredible. In my judgment there is no reliable or realistic evidence to support a claim that any officer in the team ever had a desire other than to bring criminals to justice. The view that there was a case to answer 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 (as I have set out Trial Counsel also formed an initially positive view of Mr Deveney’s evidence as given at trial).