[2025] EWHC 2684 (KB)

There was then a diversion into small talk and it was later stated by DS Brownsell that;

“…what you have to say about him is as important as to, in your opinion, professional and otherwise, as important as everything else that we talk about to be honest because we have to make decisions about how we view everybody.”

Later it was stated

“…I’m not trying to blow sunshine or whatever, someone of your years of experience and if you tell us about personalities and opinions and work practices at Cawston Park carry a lot of weight.”

These extracts were totally contradictory to what Mr Cooper had asserted in his statement. For some reason during a cigarette break he wanted to make further criticism of Mr Deveney “off the record”; but the officers deliberately then brought it onto the record (twice) and make it clear that everything he said was important. They acted entirely properly to bring an attack on the credibility of Mr Deveney into the limelight as opposed to Mr Cooper’s allegation that they wished to push such criticism into the shadows. Mr Cooper was also left in no doubt that his opinion was important. Further and significantly having brought the comment about drinking “onto the record” the officers included it in the statement which Mr Cooper signed:

“I also think that Mark may have had alcohol issues. I often saw him come into work very hung over. He would sweat like a bull.”

The comment that the officers were trying to avoid uncomplimentary comments about Mr Deveney was wholly wrong. Apart from this the statement contained references to Mark Deveney being “obstructive and evasive”, “very territorial”, “surrounded himself with acolytes”, that he had “a massive ego”, he “controlled his managers he did not manage them” and attempted to bully him. There are also comments about his relationship with Lisa Vescio, an allegation that he told a patient to “fuck off” and him accessing pornography on his computer.

It is very difficult indeed to understand how Mr Cooper came to make the serious, but demonstrably incorrect and unfair allegation that the Police tried to supress information having “recollected it” it nine years after the interview.

There is also no sign within the interview transcript of Police “disinterest” in what he had to say about staffing levels, aggression or intimidation.

Mr Cooper was also unable to explain what the “omissions” were in the statement and eventually conceded that on reflection the Police did not fail to put in anything which he said which was negative about Deveney or positive about the Claimants or the hospital.

Given these matters it is very difficult to see how the statement in this action came to be signed and presented to the Court as his evidence. He joins Mr Chancellor, Mr Ward and Mr Bull as witnesses whose statements for this action give some cause for concern.

As for extra care and the comment in his statement for this action that he believed that the Police had decided their own definition of the term “extra care” and when the term was put to him at interview through their questioning he was confused and did not know what “extra care” meant in this context; the transcript again paints a very different picture

The question posed about extra care was an open question (that they did not know what extra care was) and Mr Cooper stated that it was term that he had never heard of before and also that in his view staffing levels were adequate. Again, there is no basis for the suggestion set out in Mr Cooper’s witness statement for this action that the officers had already decided their own definition of the term “extra care” or that he was confused when the term was put to him.

Within the Police statement which Mr Cooper signed it is stated;

“I have been asked by DC Sean Baker of what my understanding is of ‘extra care! within the context of care provided by Chancellor Care, All I can say on this matter is that I was aware of the phrase ‘extra care’, but I only heard an explanation in the last few weeks of my employment at a presentation given by Andrew BREEZE. I must confess, I didn't pay any attention really as I was due to leave the company shortly. With regards to ‘extra care’ – l am unaware of which person at Cawston Park, when I was there, receiving ‘extra care’. I do not know what 'extra care' constitutes. I do not know how the need for ‘extra care’ was arrived at. If any person had been identified, without my knowledge, as needing ‘extra care' I do not know how this was delivered, I certainly was never asked to provide extra staff in relation to any ‘extra care’, In my experience there are engagement and observation levels which would be considered when establishing funding for patients and these are historically based on agency fees. This is done as a patient may only require this extra observation or engagement over a short period of time which would make the hiring of permanent staff unviable.

……

There is a concept in holistic mental healthcare of ‘engagement’ rather than purely observation. The policy of Cawston Park was that all patients were engaged in this process as far as possible. There would be some patients that would refuse or be incapable in engaging in this concept. The holistic approach would have included activities for patients that would be as diverse as feeding animals, art therapy, visits out of premises on a shopping trip and psychotherapy. As far as I am aware, this is the norm for every patient and I would not consider this to be 'extra care’.”

And

“It was apparent to me that patient care was always at the forefront of what they were trying to achieve at Cawston Park.”

In respect of staffing the police statement stated

“On the occasions that I have been asked to provide extra staff or equipment I have done so with the full backing of Andrew Breeze and Dominic Wilson. I have never had my actions questioned when I have used extra resources.”

As Mr Warnock correctly pointed out what points firmly away from any deliberate attempt to suppress or manipulate Mr Cooper’s evidence, is that the drafted and signed statement contained a full and fair reflection of his negative comments about Mr Deveney and his motives and also his positive comments about Mr Breeze and Mr Wilson. As with any statement taken after an extended interview process it was necessarily a distillation of what was said.

I accept the evidence of DS Brownsell and Mr Baker that nothing was deliberately omitted from Mr Cooper’s statement with the intention of distorting or manipulating his evidence and I reject Mr Cooper’s concluding comment in his witness statement in this action that:

“The Police simply disregarded information that I provided them with that wasn’t in line with their thinking or wasn’t what they wanted to hear.”

I also reject the closing submissions made on behalf of the Claimants that the statement prepared for Mr Cooper to sign included “subtle but critical differences to Mr Cooper’s account of extra care given in interview” and that the omission of “the positive, significant and more detailed information provided by Mr Cooper on the extra care charge and how it operated was deliberate”.

However I do find that there was insufficient analysis of what Mr Cooper said, and was likely to say if called as a witness by DS Brownsell, the CPS and Counsel.

Within the case summary DS Brownsell stated;

“Gary Cooper is a registered mental nurse who has been in nursing since 1970. In August 2005 Cooper took a year's contract with Chancellor Care to work at the Cawston Park site as the operations manager. Cooper has said that he was only aware of the phrase “extra care” in terms of a presentation given by Andrew Breeze. Cooper has said that he paid no particular attention as the presentation was delivered at a time when he was within a couple of weeks of leaving the company. As such, he has stated that he does not know how the need for extra care was arrived at, who it was delivered to and what it constitutes. He states he was never asked to provide any extra staff in relation to extra care.”

Having carefully considered the entirety of the evidence relating to Mr Cooper, I reject the submission that DS Brownsell must have been aware that he was providing a misleading impression to Mr Tarrant in the drafting of the case summary in respect of the evidence Mr Cooper would give. I also unhesitatingly reject the allied submissions that what Mr Cooper had actually said in the interview (as opposed to what was set out in his statement and the summary) about the extra care charge was “critical information for the CPS in deciding whether to charge” and that Mr Brownsell appreciated as much. I find as a fact that DS Brownsell did not believe that he had omitted anything of significance, let alone critical significance on the issue of extra care.

I also reject as misconceived the suggestion that Mr Cooper’s account in interview should have put an end to the investigation.

In my judgment the summary was accurate as far as it went, as regards Mr Cooper’s statement but failed to sufficiently highlight the very poor view Mr Cooper had of Mr Deveney, as set out in the police statement. Calling Mr Cooper as a prosecution witness (and provided he maintained the trenchant views that he had expressed in the interview and statement) was always (and obviously) going to result in a significant attack upon a central prosecution witness. Further, it was obvious that Mr Cooper held Mr Breeze and Mr Wilson in the very highest regard and had no significant complaints about staffing levels. However I find that these inadequacies in the summary were not as a result of any deliberate attempt to mislead or downplay or conceal evidence. An obvious flaw in such a suggestion is that the statement was supplied to Mr Tarrant (and available for Counsel to read).

Mr Tarrant’s view of Mr Cooper’s evidence in the November 2007 file note and February 2008 note was that;

“It is interesting that he concludes that Breeze, Wilson and Prior are men of the highest integrity. However he was not aware about the concept of extra care at all and is not in a position to implicate or exonerate Barker.”

In the February 2008 note, Mr Tarrant stated That Mr Cooper;

“…describes Deveney as a very charismatic man with a massive ego.”

In my judgment it is also likely that had DS Brownsell been more comprehensive in his analysis of Mr Cooper’s statement in the summary (and/or if did he not have an interview transcript and this was supplied) it would not have made any difference to Mr Tarrant’s view. He read the statement and was well aware of Mr Cooper’s support for the Claimants and alleged character flaws (as set out by Mr Cooper in the statement). Such additional information as was set out in the interview about Mr Cooper’s view that if extra care was a basic fee and there are “add ons” for extra care so much a day and if “they are guaranteed that the fee level will not increase if this person deteriorates” (which was not the case as the charge could go from extra care x1 to extra care x2) this “insurance thing” was “a good option”; would have made no difference to Mr Tarrant’s view that charges were warranted on the entirety of the evidence.

In the closing submissions on behalf of the Claimants it was also submitted that the interview with Mr Cooper was recorded, and that no police-created transcript for any of the witnesses has ever been made available. The transcript of Mr Cooper’s interview, as with the other witness interview transcripts available to the Claimants, was created by DLA Piper, their criminal solicitors, much later during the course of the prosecution. As a result it was submitted that an inference can be safely drawn from the evidence that Mr Tarrant did not know which interviews had been recorded and that he was not aware of the existence of any transcripts.

I note that the summary stated “interview records are included with this advice file, they have not been proof read” and Mr Tarrant’s statement stated:

“I was sent the interview transcripts and a detailed 204 page case summary in the Autumn of 2007.”

The Claimants case is that it is probable that only the interviews of Defendants were supplied, with the signed statements of other witnesses supplied without transcripts of their interviews. However it is not necessary for me to resolve (to the extent that I can) every issue of fact. I am satisfied that there was no intentional attempt to conceal or supress any evidence by failing to supply any available transcripts of witnesses to Mr Tarrant. The interviews of the Defendants fell into a different category for obvious reasons and it would have been very strange if these had not been supplied even though they were summarised by DS Brownsell. What Mr Tarrant had was at least, a large bundle of signed witness statements. Given the totality of the evidence before me I view the suggestion of deliberately trying to mislead through not supplying the interviews as far-fetched. Also taking Mr Cooper as a paradigm and as I have already set out, I am satisfied that even if the transcript was not supplied it would have made no difference to his view had it been supplied.

Mr Cooper said that he was astounded to be called as a prosecution witness. In my view this was understandable as he intensely disliked and distrusted the main prosecution witness and held the two Claimants in high regard.

It was the view of Prosecuting Counsel as set out in his note of 12^th June 2009 that:

“21.

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 cate 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.”

In my view there was a collective failure to appreciate how damaging to the credibility of Mr Deveney Mr Cooper was likely to be given the content of his statement (I do not understand how Counsel was not “put on notice” of his utmost contempt for Mr Deveney). However this was neither intentional or malicious on the part of the Officers. Also when called he gave evidence not covered in his interview or statement and which was contrary, and damaging, to the Prosecution case. In my judgment any “omissions” in his statement were not due to any deliberate attempt by the officers to avoid or conceal evidence that would damage the Prosecution case. Mr Cooper recognized that there were matters he did not explain to or cover with the officers which he subsequently gave evidence about and he has sought to unfairly criticise the officers involved to explain this.