[2025] EWHC 2684 (KB)

I deal first with the subjective element. On the basis of all the evidence before me I am satisfied, and find as fact, that the officers involved honestly believed that they had amassed a body of evidence that meant that there was a case fit to be tried i.e. that a charge against the Claimants was warranted. In this case (although not a necessary element), contrary to the Claimants’ central argument the Officers did actually believe in the Claimants’ guilt.

It was the closing submission on behalf the Claimants that anyone (any reasonable person) considering the evidence of Mr Deveney, Ms Vescio and Mr Vincent, which was “inherently incredible and unreliable” ought to have concluded that the allegations made by them were probably false. It was submitted, that as a result the relevant officers could not have honestly believed that there was a case fit to be tried. I reject that submission. As DS Brownsell stated a tainted witness may still be telling the truth and this submission faces the obvious and considerable difficulty that Mr Tarrant and Counsel considered that Mr Deveney’s evidence was capable of belief when fully aware of his credibility issues given the other evidence obtained.

I also reject the suggestion that the officers within the investigation were only pursuing the case to appease “the powers that be”.

Turning to the objective element the question is whether the circumstances were such that they would lead an ordinary and prudent man to believe in the charge. i.e. to conclude there is a proper case to lay before the court.

In this regard the analysis of others as to whether there was a proper case is of relevance.

It was the view of Mr Tarrant that charges should be laid.

A Crown Court Judge was satisfied that there were reasonable grounds to suspect that the Claimants had benefited from criminal conduct. An order, made ex parte on 10^th November 2006 was upheld on an inter partes hearing on 15^th December 2006 at which the Claimants were represented by leading and junior Counsel. The witness statements of Mr Deveney and Mr Cooper (along with other statements including from Linda Todd) were all before the judge, and DC Wilcox made a witness statement (not the subject of any challenge before me) which made full and frank disclosure of the competing evidence.

As I have set out in considerable detail, Prosecuting Counsel were of the view that “there was a case” to be put before a jury (although whilst the Crown may prove the case there may not be a conviction). Their view is encapsulated by the sentence “There was a considerable body of evidence that charge was a fiction”.

Mr Warnock also submitted that as the Claimants had not challenged the lawfulness of their arrest, this necessarily involved an acceptance that there were reasonable grounds to suspect them of an offence.

Any analysis of this issue must take into account evidence which should have been obtained such as statements from Mr Graham and Ms Smith and that which should have been taken into account such as that of Ms Gaisford.

I have set out the evidence in some detail and also the content of the summary and MG6 but shall draw together the strands.

Central to the existence of a case was the evidence of Mr Deveney. Despite attacks on his credibility, he maintained his account at trial and under cross-examination. As DS Brownsell reasonably said “a tainted witness can be telling the truth”. His evidence was initially supported to a degree by Lisa Vescio and Paul Vincent on central issues, such as inadequate staffing and the need for 12 patients to be on extra care at any one time. He gave direct evidence of a fraud and if believed the Claimants would face conviction.

Mr Deveney’s account was supported by a body of other evidence.

As I have set out in detail Mr Chancellor provided what could properly be described as a damning statement which left Mr Breeze “gobsmacked”. He could see no distinction, in practical terms, between “specialling” and extra care (which would ‘without a shadow of a doubt’ be something extra) and was clearly concerned about patients being charged extra care and double extra care for extended periods and/or when on leave.

There was clear support from the evidence of the various commissioners which negated the Claimants’ case that they were told in clear terms what the extra care charge was. The evidence supported the proposition that explanations were neither consistent or transparent.

There was no written explanation of the charge and the first SLA signed was at direct variance to the Claimants explanation.

Dr Barker said that there was a great deal of confusion and obfuscation and that he considered that the Claimants were using him to justify the charging for “Extra Care” “clinically from a retrospective point of view”. Clinical details were not communicated to the financial side of the business and he did not discuss (up to the Autumn of 2006) who was or was not being charged for extra care and he could not understand how the charge could be levied in advance.

When commenting on a draft report on extra care for the Board in which Mr Wilson attempted to define the concept, Mr Ward said that:

“Despite telling me what Extra Care is not, you do not give the same clear, concise and absolute description of what it actually is.”

And

“If I was a Commissioner reading this I would assume that you were trying to convince me of the worth of your decision and that Extra Care was as illusive in practice as it is within the document.”

As I have also set out, in his statement he also set out that it should involve something extra.

Mr Bull described the concept as “woolly” “a sort of nebulous concept” and not something he would “buy”.

Richard McKenzie, Chief Operating Officer at Chancellor Care, found the whole concept “rather flowery” and “couldn’t see that those patients were necessarily getting anything extra”. No-one “could give him a reasonably straight forward easy to understand definition”.

There was no audit tail to justify the charge (as set out by numerous witnesses including Mr McKenzie, Mr Bull, Ms Gaisford, Dr Barker, and Mr Hird in his report) whatever its basis (ex post facto or as a risk premium).

Those on the Claimant’s case who were actually giving extra care including medical staff did not know of the concept. By way of example an RMO at the hospital; Dr Connell did not know what it meant or that any of his patients had been on extra care nor did Dr Javani. Ms Willan said…“It would be fair to say that amongst the nursing staff and support workers; almost universal ignorance as to the existence or meaning of extra care”.

Staff evidence supported the proposition that the hospital was not sufficiently staffed to provide extra care. Complaints were made by Mr Pyke in June 2004 and Ms Willan in February 2006. Out of 259 questionnaires only 10 were supportive of the Claimants. The Health Care Commission had served a statutory notice which had staffing as an element.

Mr Hird, an independent nursing expert appointed by Chancellor Care to investigate Extra Care, found a lack of understanding of the concept and concerns about inadequate staffing levels, with senior staff unable to recollect any interventions being provided by themselves or others for specific difficult patients over and above their normal duties. He also could find no evidence of review of individual extra care charging by clinicians and managers with an auditable communication trail and potentially unethical charges having been made for patients whilst they were out of hospital.

Dr Badcock an independent psychiatric expert instructed by the police, having reviewed seven cases “blind” found it difficult to see how the clinical care of patients who were on it differed from those who were not. He considered the Claimants’ explanations in their interviews and concluded that:

“The term “Extra Care” has been attached both to the provision of a humane, interactive clinical environment for difficult patients and to a financial levy, although the two usages have different meanings (financial and clinical). The nature of any relationship between the two usages is not made clearer by the reasoning used to explain the term “Extra Care”, although it does appear that the moral imperative of providing a humane environment for patients became a cloak to automatically justify “Extra Care” charges without subjecting those to further scrutiny.”

In his opinion the decision to charge Extra Care rates was an “arbitrary” one

Dr Barker stated that he was not as involved as the Claimants said that he was in the process of assessment of who should be on an extra care charge (no other clinician working in the hospital was aware of the extra care charge), which threw the focus back on to Mr Deveney (who said it was a fraud).

The explanations given by the Claimants and other evidence supportive of their explanations, have to be taken into account and weighed against such evidence. Given what they said did reasonable and probable cause cease?

I accept as accurate the submission of Mr Warnock that the Claimants gave various and at times conflicting explanations and definitions of Extra Care (that there were a “variety” of explanations was conceded by Mr Breeze in his own Defence Case Statement in the Crown Court, although he resiled from this during his oral evidence). I have already set the relevant details within my analysis of the evidence but examples of explanations/descriptions at variance with the Claimants case included:

Within Mr Breeze’s interviews he stated;

“(a)

It was a means of dealing with patients who would otherwise have been “specialled” by having higher staffing levels at all times (this conflicting with the evidence about staffing which I have set out)

(b)

“You look at what’s being delivered” “And then you make the charge” and it was charged according to “who clinically was taking up more of the time than other patients” and reviewed on a “weekly basis.”

So this clearly suggested an ex post facto decision taking into account what care staff had actually delivered. This explanation faced the difficulty that the staff had no input and were unaware of the concept and there was no audit trail. Mr Breeze’s response was:

“…it was a charging mechanism…” and hence staff delivering it would not know that they were doing so”.

(c)

Mr Breeze also said that extra care was a “financial term”, which was implemented depending upon the clinical information that was coming in, a mechanism for charging for the more difficult patients. “There were daily discussions on a daily basis between the clinicians and Simon Barker and Mark Deveney” which fed back into the charge, although these were not recorded and the clinicians were unaware of the concept of extra care. This conflicts with the evidence of Dr Barker.”

Within Mr Wilson’s interview he also gave another, somewhat different, explanation to an ex post facto assessment; his explanation being of a risk premium to be paid in respect of “difficult” and “risky” patients:

“It’s a way of identifying the particularly challenging risky difficult patient that we’d expect to be using more of our resources, or being more risk to us.”

And

“Extra care is a charge levied on the more difficult, challenging risky patients on the basis that they do pose more of a risk and are likely to be using more resources than less challenging, risky, difficult patients.”

A risk premium is different to an expost facto analysis. So which basis applied to which patient? There was no audit trail and no patient specific explanation to any PCT recorded in writing (and the evidence of Commissioners was that they were unaware of the Claimants’ justifications for the charge).

In my judgment there was clearly evidence (even from the Claimants’ own accounts and documentation), that extra care was meant to involve the actual delivery of something additional, consistent with what Mr Deveney had alleged. As Mr Warnock argued; if that was not the case, why would its continuation need to be reviewed on a daily or weekly basis, having regard to the resources actually being used, as some of the explanations and definitions suggested?

I have taken into account evidence which was supportive of the Claimants’ explanation from:

I bear in mind that a review of the case by Elizabeth Bailey (conducted after the prosecution collapsed) concluded that the CPS should have concluded that there was insufficient evidence to justify the decision to prosecute under the Code for Crown Prosecutors (this after applying a different evidential test to whether there was reasonable and probable cause for a prosecution; see Rudall v CPS and another above).

This was a very far from straightforward allegation but in my view, although it is by a relatively fine balance the circumstances were such that they would lead an ordinary and prudent man to believe in the charge. The main pillar was the direct evidence of fraud given by Mr Deveney.