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

Even if HMRC was to be considered a prosecutor, contrary to that which has been found above, this is not a case where there is any real prospect that malice could be established. This is for the same reasons substantially as those set out in the section about reasonable and probable cause. First, there were objective reasons to support a belief that there was prima facie evidence of each element of the offence which it is intended to charge the Claimants.

Second, to the extent that the various identified emails had not been handed over at the charging stage, that did not found a case with a real prospect of success to the effect that the decision of the CPS to prosecute the claimants was overborne and/or perverted and/or manipulated by HMRC who deliberately did not provide material evidence or documentation to the CPS. It is based on a premise that the production of these documents was required at the pre-charging stage, when for the reasons set out above, that was not the case.

Further, it is based on the premise that had these documents been produced, it would have indicated to a prosecutor that there was no reasonable basis for the prosecution. When the documents were produced, they had no such effect. Further still, the Claimants’ case by reference to these documents misses the object of the prosecution, namely not about fraudulent evasion of Beer Duty but fraudulent evasion of the other taxes and especially VAT. Whether or not there was an oral agreement to permit trading before registration had taken place, that was irrelevant to the obligation to make full returns in respect of VAT and the taxes other than Beer Duty. The prosecution was about those taxes and not about Beer Duty.

Third, there are exceptional cases where there is a genuine desire to prosecute but some collateral purpose or mixed motive. In Wilson v Department of Transport [2025] EWHC 1387 (KB), the allegation (which failed at a trial) was that there was a desire to avoid a judicial review which would have shown up a government department’s lack of a proper prosecution policy. In Rees v MPC above, the allegation was that there was evidence amounting to perverting the course of justice by subornation of a witness. The instant case amounted to nothing of the sort. The documents in question were not suppressed: when produced they made no difference to the continuation of the prosecution: they related to a different tax from the taxes which were the subject of the various counts in the indictment.

Whilst the court has to be careful at an interim stage in rejecting a case of fraud where it might be said that cross-examination might elicit malice, this does not apply in the instant case. Even adopting a generous attitude to pleadings at an interim stage, in the instant case it is not possible to infer dishonesty of the kind alleged from the non-production of the various documents in this case at the charging stage. To allege that is a case of subornation or concealment or manipulation has no real prospect of success at trial. This is especially because the documents are not about the subject matter of the indictment and/or because it is based on a failure to take into account how the process works to the effect that disclosure is not completed at the charging stage. The fact that these documents, when produced, did not affect the continuation of the prosecution is further support as to the absence of the improper motive alleged. On proper analysis, there is no case to go to trial which has any real prospect of proving the alleged malice.

For all these reasons, there is no real prospect that the case of malicious prosecution will succeed at trial nor is there any other compelling reason why the case should go to trial.