Breeze and another v Chief Constable of Norfolk Constabulary 2025
The first claimant, B, was a registered mental health nurse who worked as Chief Executive of Cawston Park psychiatric hospital. The second claimant, W, was an accountant who worked as Finance Director at Cawston Park. Cawston Park was a private psychiatric hospital that provided mental health care to NHS patients, charging Primary Care Trusts (PCTs) for these services. The hospital implemented a charging system called "extra care" for certain patients who were assessed as requiring additional resources.
In January 2006, D, the former Head of Care at Cawston Park, reported to the NHS Corruption and Fraud Reporting Line alleging that B and W were fraudulently charging PCTs for "extra care" that was not actually being provided. D had previously been caught attempting to set up a competing business while employed at Cawston Park and had resigned in November 2005 before disciplinary proceedings against him were concluded. In July 2006, the NHS internal fraud investigation was transferred to Norfolk Constabulary's Major Investigation Team (MIT) with Detective Inspector Paul Cunningham as Senior Investigating Officer and Detective Sergeant Paul Brownsell as Enquiry Team Leader.
B and W were arrested on 14 November 2006, and extensive searches were conducted at their homes and at Cawston Park Hospital. On 10 November 2006, police obtained restraint orders against B and W prohibiting them from disposing of their assets under the Proceeds of Crime Act 2002. After a lengthy investigation, including interviews and evidence gathering, the police submitted a case summary and evidence file to the Crown Prosecution Service (CPS) in September 2007.
On 8 February 2008, CPS lawyer Christopher Tarrant made the decision to charge the B and W with conspiracy to defraud. B and W were formally charged on 18 February 2008 with conspiracy to defraud PCTs by dishonestly charging for "extra care" services that were not provided. The trial began on 20 April 2009, but concluded in with B and W's acquittal, the prosecution having offered no further evidence on 16 June 2009 after several witnesses' testimony significantly undermined their case.
In March 2015, B and W issued proceedings against the defendant, the Chief Constable of Norfolk Constabulary, alleging malicious prosecution and misfeasance in public office (see note (ii) below). The court considered liability.
Held
Claims dismissed.
The court dismissed the claims for malicious prosecution and misfeasance in public office, holding that:
(i) there had been reasonable and probable cause for the prosecution;
(ii) the investigating officers had acted with an honest belief that the case had been fit to have been tried and (although not a necessary element), they had actually believed in B and W guilt;
(iii) as for the objective element, consideration of the adequacy of the evidence, the evidence had been such as to have led an ordinary and prudent man to believe in the charge;
(iv) the relevant officers had not acted maliciously and there had been no deliberate manipulation of the evidence;
(v) there had been errors of judgment, but the tort of malicious prosecution was not concerned with incompetence and/or negligence;
(vi) the CPS had been the prosecutor; and accordingly
(vii) the claim of malicious prosecution failed.
Concerning the misfeasance in public office claim, the court held that it failed on its merits, given the absence of malice and any wrongful act constituting an abuse of power.
In particular, the court found that at no stage in the investigation did any officer come to believe that D had not been telling the truth on the central issue of fraud; his allegations had not been inherently incredible and there was some support from other sources. The court determined that DS Brownsell's case summary and MG6 gave a reasonable, realistic and honest assessment of matters which could undermine D's credibility, and this had been communicated to the CPS. They rejected allegations that police had deliberately "tampered" with evidence, finding instead that witness statements had accurately reflected what was said in interviews, with witnesses freely signing statements after having the opportunity to make amendments.
The court found that, while there were omissions in the case summary regarding witnesses whose evidence might have assisted B and W, these were errors rather than deliberate attempts to suppress evidence. They examined allegations about the intimidation of witnesses and found that a DC Baker had raised the issue of the witness' dismissal from the Royal College of Nursing, but this had not been done with improper pressure or malicious intent. It was concluded that another witness' police statement contained a fair reflection of his views, and allegations that officers attempted to suppress negative comments about D or positive comments about B and W were unfounded. There were identified failings in the investigation, particularly the failure to take statements from potentially important witnesses but concluded these were errors of judgment rather than malicious acts. It was also found that the CPS lawyer Christopher Tarrant had not been deprived of the ability to exercise independent judgment due to any police misconduct; he had had access to all relevant evidence including information about D's credibility issues.
The court determined that there was sufficient evidence to justify a prosecution, including inconsistent explanations of the "extra care" charge given by B and W, evidence suggesting patients received no additional care despite extra charges, and the absence of a clear audit trail. It was also found that the very purpose of a restraint order is to prevent those under restraint from dealing with their assets, and DC Wilcox's strict adherence to the law in relation to asset restraint, while perhaps unsympathetic to B and W, had not been improper.
The court identified contradictions in B and W's case, noting that allegations that officers had a "mindset of guilt" were inconsistent with allegations that officers knew B and W were innocent but proceeded regardless. Furthermore the court was critical of the failure to cross-examine DS Brownsell on the content of the case summary, noting this limited the court's ability to assess his explanations for alleged deficiencies in the document.
Reproduced with permission of Reed Elsevier (UK) Limited, trading as LexisNexis.
View the full case document here, with links to related legislation and similar cases.