“21. The authorities therefore make clear that in the context of summary judgement the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the court will be entitled to draw a line and say - even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial.”
“The ZP Investment Products ultimately comprised investments in 52 UK Limited companies. The investments comprised an investment by each high-net-worth individual, both through their own funds and in significant part through “limited recourse” loans. It was intended that, in the event that an investment failed, a claim could be made for share loss relief pursuant to sections 131 and 132 of theIncome Tax Act 2007 . Each of the investments suffered a fall over time in the value of its shares.”
“… every aspect of the transactions under investigation had been advised upon by credible professional advisers … any proper and fair evaluation, of the contention by HMRC of suspected criminal activity, should be considered against the background of, and be informed by the fact of, the involvement of the many independent professional individuals and organisations.”
“… a big debate as to whether we should take a reasonable line of enquiry. HMRC were very reluctant to get involved with HSBC as in their opinion it would distract the jury from the fraud and would enable [the Claimant] to blame [HSBC].”
“… in my opinion I would not be acting in accordance with the Code for Crown Prosecutors if I were to make a charging decision on the Claimant in this investigation at the present time or within the very narrow window of time that the Claimant has suggested. The reason for that is that the investigation has not concluded. I regard it as vital that all the charging decisions in this investigation are made at the same time and with the great deal of care that the Court would expect. … Not only would making a decision before the investigation had concluded not be in accordance with the Code … it would also create very real logistical difficulties …”
“As the week progressed, issue after issue arose. The sheer scale of work outstanding and remedial work required and that needed to be immediately actioned was phenomenal.”
“I can find no evidence that either the reviewing lawyer [James Lewis] or counsel had read the evidence sufficiently to satisfy the evidential limb of the test. … Add to that: • Succumbing to pressure to charge when clearly not ready to do so; • … • Instructing counsel whose instinct about the case was sound but he did not have the time needed to read and consider the evidence and prepare charges that accurately reflected the evidence. Because the reviewing lawyer had not read the evidence, he had no idea as to the work required and therefore both leading and junior counsel’s tasks and hours were understated and inadequate. • Failing to “front load” the case in relation to our disclosure duties prior to charge. In his note book, JL records at a conference on3 March 2015 that he advised HMRC that the disclosure exercise could not be completed prior to charge, if it were to be completed first, it would delay charge by another 12 months. Instead, HMRC should continue to schedule material. Post charge, we seemly [sic] took a “keys to the warehouse” approach. Had we reviewed the unused material properly [critical words redacted]. We should also have realised that there were reasonable lines of inquiry in relation to HSBC that were necessary …”
“… in any serious or complex case the CPS prosecutor will not normally authorise charging notwithstanding the strength of the evidence unless the disclosure exercise is sufficiently advanced and initial disclosure can be completed and served at or shortly after charge. ”
“The prosecution accepts that the charging decision in the particular circumstances of this case was premature. This admission should be read in the context of the two admissions made previously the bear on the question of whether the decision was premature and whether the investigation had been completed. It is further accepted that not all available evidence (including material capable of informing the quality of that evidence) had been properly considered at the time that the charges were brought. It is accepted that these acts and emissions are stark and clear errors for the purposes of section 19 POA.”
“… other elements of the case were not fully set out or explained. Please note in this context that at the time the decision not to apply for a VBI was made we were not in a position to apply the Full Code Test. It follows that we cannot say with certainty how any new case summary would have been framed.”
“4.2 In most cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed … 4.3 Prosecutors should any take such decision when they are satisfied that the broad extent of the criminality has been determined and that they are able to make a fully informed assessment of the public interest. If prosecutors do not have sufficient information to take such a decision, the investigation should proceed and the decision taken later in accordance with the Full Code Test set out in this section. 4.4 Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.”
“to give, to such extent as he thinks appropriate, and to such persons as he considers appropriate, advice on matters relating to: (i) a criminal investigation by the Revenue and Customs; …”
“Accordingly, any person who deliberately designed, formed, promoted or used such an arrangement/arrangements in order to gain a tax advantage for themselves and/or another/others, knowing that they were not entitled to do so, is prima facie guilty of cheating HMRC. …”
“A partner in Zeus. Not as visible as Mr Ryder in respect of the arrangements. Nevertheless, he was a party to relevant emails from the very beginning of the enterprise, in 2007, and was the recipient and author of other key emails/correspondence throughout the operation of the enterprise which are indicative of knowing involvement in the formation and promotion of arrangements which had as their main purpose the securing of a tax advantage, and therefore is an enterprise to cheat HMRC as it primary purpose. [The Claimant] was also an “investor” and latterly financier and director in respect of [three schemes].”
“CPS have indicated that the number of suspects and nature of the complexity of the case requires consideration of reducing the number of suspects. I recommend that in order to bring this to manageable levels a number of trials are sought.”
“Evidence Additional evidence available and scanning process started. Expect it available in a couple of months. Not to worry on timescale as have enough to charge now. Disclosure Essential disclosure officer knows the case. No approach into charging decision until disclosure done. Front load but somewhat [?] continuous process until up to and including trial. Good to have substantial unused (non-sensitive) in place. Need a protocol for digital material. …”
“… that this will not and cannot be finished before charge, to do so would delay charging by a year. There should be sufficient time to complete this provided HMRC continue to schedule the material.”
“Counsel: not chase Alliance & Leicester/HSBC or individuals. Mr Millington: only thing to be aware is Ryder and Hughes both say HSBC etc. involved. Counsel: Jury will have to decide … HSBC not promoting scheme. Not in public interest. Another player amongst others not being prosecuted.”
“there was plenty of evidence that the HSBC employees were aware of the big lie at the heart of the fraud [and] there seemed to me to be plenty to suggest that the HSBC employees knew that this was in fact a loss generating enterprise designed for the dominant (sole) purpose of generating losses against income tax.”
“it was generally agreed that we must consider the way forward with reviewing the HSBC/Bowman case re charging for the offence of facilitating tax evasion. This is an on-going matter.”
“Operation Ice-Rink has not identified any evidence that there was any political motivation not to pursue HSBC and its employees. Nor has any material been provided by [the Claimant] or his team to contradict this view. The available evidence indicates that active consideration was given to the position of HSBC and decisions were made by Prosecutors on matters to do with case management rather than on any other grounds.”
“58. It seems to me that the case falls squarely within what this court said in AH(unt) v AB. DCS Cook deliberately manipulated the CPS into taking a course which they would not otherwise have taken (Sedley LJ). The decision to prosecute was "overborne and perverted" (c.f. Wall LJ) by DCS Cook's presentation of the material to the CPS with the implicit suggestion that its procurement was not tainted in the manner that it was. 59. This is not to say, as Mr Johnson submitted it was, that the mere provision of false information to a prosecuting authority leading to a prosecution makes the provider a prosecutor. I accept that the test is, as he argued, "drawn more restrictively". However, the cases are fact specific: see in this respect the very different results reached in not entirely dissimilar cases in Martin v Watson and in AH(unt) v AB. This present case was one in which DCS Cook took it upon himself to present to the independent prosecutor for a prosecution decision a case which he knew included an important feature procured by his own criminality. There is nothing more likely to have "overborne or perverted" the decision to prosecute. The CPS were deprived of their ability to exercise independent judgment.”
“This makes it necessary to consider just what is meant by reasonable and probable cause. It means that there must be cause (that is, sufficient grounds; I shall hereafter in my speech not always repeat the adjectives “reasonable” and “probable”) for thinking that the plaintiff was probably guilty of the crime imputed: Hicks v Faulkner. This does not mean that the prosecutor has to believe in the probability of conviction: Dawson v Vandasseau. The prosecutor has not got to test the full strength of the defence; he is concerned only with the question of whether there is a fit case to be tried. As Dixon J (as he then was) put it, the prosecutor must believe that “the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted: Commonwealth Life Assurance Society Ltd v Brain.”
“When considering whether to charge a suspect, consideration must be given to the elements of the offence with which it is intended to charge him. There must be prima facie admissible evidence of each element of the offence. Although anything plainly inadmissible should be left out of account, we do not think that, at the stage of charging, it is necessary or appropriate to consider the possibility that evidence might be excluded at the trial after full legal argument or in the exercise of the judge’s discretion, Nor is it necessary to test the full strength of the defence. An officer cannot be expected to investigate the truth of every assertion made by the suspect in interview.”
“Although the matter has been put in various ways in the decided cases, in my view, it is clear (whatever the language used) that whether one considers the objective or subjective element of reasonable and probable cause, the focus is and always has been on the sufficiency of evidence to support the prosecution of the offence in question., and the defendant’s knowledge of and honest belief in that. …”
“80. I do not accept that the evidential Code test is the correct test to apply for the purpose of examining whether there is reasonable and probable cause. The exercise undertaken by the prosecutor in that context is to identify whether there is a realistic prospect of conviction which is a different, and higher, threshold than that which I must apply when considering whether there is a case fit to be tried or a proper case to lay before the court. The intensiveness of the scrutiny to be applied to the evidence is correspondingly different and greater than that relevant to the consideration of reasonable and probable cause. The evidential stage of the Code test includes an analysis of, not just the admissibility of the evidence, but the importance of the evidence, whether the evidence is reliable and credible and the impact of any defence or other information put forward by the suspect. By contrast, my role, in examining whether there is a reasonable basis for an honest belief in the charge by the prosecutor, is to address the question of whether there is prima facie admissible evidence in respect of each element of the offence (see Smith LJ in Coudrat), setting aside evidence which is plainly admissible. I accept that there may in some circumstances be a feature (which is, or should be, obvious to the reasonable prosecutor) which raises such a large question mark over whether otherwise admissible evidence could be "used in court" (to adopt the expression used in the Code) that a wider consideration including, for example, of the reliability of the evidence is reasonably justified. But, even in those circumstances, the degree of scrutiny will be at a level consistent with the need to establish whether the evidence could prima facie be used in court and not whether at trial there may be a successful argument mounted by the defence to exclude it.”
“109. In acting unlawfully as particularised above, each of the identified public officers acted in bad faith and with targeted or untargeted malice. In particular: 110. First, each of the public officers either knew that the particularised acts were unlawful, or were recklessly indifferent as to whether they were lawful. Each unlawful act was a breach of a basic and essential requirement upon an OIC and/or DO and/or prosecutor in a criminal prosecution. Each public officer had a sufficient understanding of the statutory obligations upon investigators and/or prosecutors in a criminal prosecution to have known and appreciated that they were acting unlawfully, or must at least have been recklessly indifferent to the lawfulness of their acts. 111. Second, in acting unlawfully as particularised above, each of the public officers identified above foresaw, or were recklessly indifferent to, there being at least a “serious risk” (Three Rivers (No.3)[2003] 2 AC 1 at 247C, per Lord Hope), of the following harm being caused: (a) That the Claimant would be charged and prosecuted with a serious criminal offence (and/or that prosecution being maintained) in circumstances that there was no fit case to be tried; (b) That the Claimant, as a result of being charged and prosecuted, would suffer serious detriment to his reputation and to his business interests; (c) That those companies with whom the Claimant was closely associated would similarly suffer significant financial losses, including those of the assignors. 112. In support of the averment above, the Claimant will say that any prosecutor would have appreciated that a successful financier being charged with a significant criminal offence is likely to be caused significant harm to their business interests. Further, and in any event, the Claimant pointed to the devastating effect that a criminal prosecution would have upon his business reputation in his voluntary interview on22 January 2014 .”
“The fact that someone in the Crown Prosecution Service may have been negligent or incompetent in the course of reaching a decision to commence or to continue the prosecution – whether by failing to evaluate the evidence correctly at the outset, or in failing to review the evidence after committal or in the light of new material – cannot, in itself, justify an inference of malice. If that is all the evidence that there is, the question of malice cannot be left to the jury. It is because, in many of these cases, that will be all the evidence there is, an attempt to dress up a claim in respect of negligence or incompetence in the guise of malicious prosecution must fail.”
“26. The requirements at (c) and (d) above [in Three Rivers (No 3)] are onerous. In line with the heavy burden thus imposed, the claimant must specifically plead and properly particularise the bad faith or reckless indifference relied upon. It may be possible to infer malice. But if what is pleaded as giving rise to an inference is equally consistent with mistake or negligence, then such a pleading will be insufficient and will be liable to be struck out. The claimant must also specifically plead and properly particularise both the damage and why the public officer must have foreseen it. A pleading that fails to do so is similarly liable to be struck out. These propositions have been established in a series of cases, including Three Rivers (see above), Thacker v Crown Prosecution Service CA,16 December 1997 (unrep) and Carter v Chief Constable of Cumbria[2008] EWHC 1072 (QB) .”
“I am intimately connected with the subject-matter of ZRL’s claims against HMRC and the CPS as they concern misfeasance in public office by those defendants in their investigations of me in advance of prosecution, the making of the decision to charge me and the subsequent conduct of the criminal proceedings. It would be exceptionally difficult if not impossible for ZRL to progress its claims … without my knowledge of those matters, the documents in my possession relating to such matters which the CPS has sought to restrict being used in any other proceedings and the witness evidence that I am able to give. ZRL is also wholly dependent on me for funding generally and, in the context of the ZRL assignment, it would have been dependent on me for the funding of any claim pursed by it against HMRC or the CPS. … In any talks with any prospective future funders of ZRL projects … it would have been routine to all interested parties to disclose any litigation and so it was advantageous to ZRL to have the pursuit of the claim sit outside ZRL so that any stigma associated with the investigation and charge did not continue to pollute its business activities.”
“Although I held no shares in ZCL (or ZRL) at the time of the two deeds of assignments I had treated ZCL and ZRL as family assets and I continued to be integral to their commercial operations of both of these companies. I was also going to return to being the ultimate owner of the controlling interest in each company following the dismissal of the criminal charges against me and this has now occurred.”
“21. This was not wanton and officious intermeddling in another person's litigation for no good reason. It was simply the original owners retaining part of what they owned while disposing of the rest. There is nothing contrary to public policy in allowing Aerostar to pursue the claim against these defendants and no good reason why these defendants should be permitted to escape any liability that they may have. This is not, of course, to say that a shareholder will always have a genuine and substantial commercial interest in taking an assignment of the company's claims. To take an extreme example, for a minority shareholder to buy a substantial claim for a nominal sum in the hope of making a substantial profit may well be contrary to public policy. But that is not this case. Aerostar owned all the shares in CAASL and taken as a whole the transaction was a perfectly sensible business arrangement.”
“Whether a right to recover compensation for personal injury caused by negligence can properly be regarded as a form of property might at one time have been open to argument, but in my viewthe expression "legal thing in action" is wide enough to encompass such a claim and support for that conclusion can be found in the decision in Ord v Upton[2000] Ch. 352 , to which I shall return in a moment. It is difficult to see why a claim for damage to property caused by negligence should not be regarded as a chose in action and capable of assignment and if that is so, I can see no reason in principle why a claim for damages for personal injury should not be regarded in the same way. Indeed, the reasons given in the authorities for not permitting the assignment of a bare cause of action, namely, that to do so would undermine the law on maintenance and champerty, tends to support the conclusion that a claim of that kind is to be regarded as a chose in action and inherently capable of assignment.”