QB-2020-004171 - [2025] EWHC 2773 (KB)

The Claimants say in the RRAmPoC para. 97 that various documents were withheld by HMRC from the CPS which were relevant to the mens rea of the criminal offences including cheating the public revenue and fraudulent evasion of income tax. They comprised the following documents, namely:

The view of the CPS is relevant, though not conclusive. CPS confirmed both in the course of the prosecution and in this litigation that they and not HMRC were the prosecutor. In answer to an application for costs in the prosecution, CPS said that “…the decision to prosecute was made by an independent body - the CPS, and not HMRC.” In this litigation, by a letter dated 24 February 2023, the CPS stated that it had “independently applied” the charging test. The CPS had “conducted the prosecution and disclosure process, and throughout the process remained of the view that there was sufficient evidence to provide a realistic prospect of conviction and the public interest stage of the code was satisfied.” It said also that “having completed the disclosure process during the prosecution, the CPS is satisfied that it was able to properly exercise its discretion...”

The CPS, with the assistance of Counsel throughout the prosecution process, remained of the view that the Full Code Test was met throughout the prosecution and the two trials both before and after disclosure of the material listed in paragraph 97 of the RRAmPoC. The Claimants submitted that there must be positive evidence that the CPS would have prosecuted if they had such documents as were missing at the charge stage: see the Claimants’ skeleton argument at para. 53. This is answered by the willingness of the CPS to continue the prosecution even when all of these documents were available to them.

At least some of the emails listed above were in form or in substance before the CPS at the time of the charging decision. Documents (d) and (e) had been listed in exhibits to witness statements provided to the CPS. Further, prior to the charging decision, a document of Ms Laker to C1 dated 20 October 2014 was provided to the CPS which contained comments by Ms Laker to C1 containing a comment (“I am sure with us all working together we will get there”). There was therefore evidence suggesting that HMRC was working with C1 to seek to obtain payment of the outstanding taxes. As such, the CPS decision was taken in the knowledge of such information.

In any event, to concentrate on documents unavailable at the charging stage, as if that was unusual or irregular, is to ignore the nature of the process. As summarised by Lambert J in Rudall v Crown Prosecution Service [2018] EWHC 1587 QB, it suffices if there is prima facie evidence of each element of the offence which it is intended to charge the defendant. It is not expected that a prosecutor will have completed the disclosure exercise at this preliminary stage.

Even on the Claimants’ case, the material had been disclosed to C1 and C2 by July 2017. On any view, the prosecution thereafter was conducted in the full knowledge of the material.

It follows from this that this material does not have the impact suggested by the Claimants. There is no reason to conclude that these documents made or may have made the difference between the decision to prosecute and a decision not to prosecute. There is no objective material to support the contention that this material would have demonstrated to the CPS that “there was no credible evidence of knowing or fraudulent evasion was misconceived.”

It is also to be borne in mind that the CPS checked its disclosure, as the Judge in the Crown Court was satisfied at the start of the trial, by prosecuting counsel personally reviewing all of the material. Despite the matter having been reviewed including the documents said to have been missing at the charging stage, the CPS continued with the prosecution. In the case of C1, the prosecution went beyond half time, and the acquittal was only following a retirement of six hours and the conviction was only by a majority of the jury following a majority direction.

Further, as was pointed out on behalf of the CPS in the course of a disclosure application before Master Gidden in this action, which was heard on 2 October 2023, there was nothing in the material passed to it or in the actions that it took that impacted upon it acting as an independent prosecutor.

It is theoretically possible that a third party could be liable for dishonestly aiding and abetting a malicious prosecution by a prosecutor. In that event, the prosecutor and the third party might be liable jointly for the tort. No such case is alleged here because it has not been suggested that the CPS undertook the prosecution maliciously, such as to make the alleged liability of HMRC that of a person aiding and abetting such a prosecutor.

In any event, this case is very far removed from the cases where exceptionally, the Court has found that someone other than CPS is to be treated as the prosecutor. As noted above, even where deliberately false information is provided by a third party to a prosecutor, that by itself will not necessarily mean that the third person is acting as a prosecutor. It is a high bar to make a third party a prosecutor. In the instant case, there is no real prospect that at a trial of this action that that high bar could be surmounted.