The Solicitor-General (Mr Edward Garnier)
I will speak quickly, to get as much on the record as I possibly can in the short time available to me.
I congratulate my hon. Friend the Member for Wycombe (Steve Baker) on securing the debate and thank him for making it possible for my hon. Friend the Member for Norwich North (Miss Smith), who is with me here on the Treasury Bench but who, as a Government Whip, is prevented from speaking, to bring before the House a matter that directly affects one of her constituents, Mr Andrew Breeze.
The debate allows me to answer some important questions on behalf of the Crown Prosecution Service, for which the Attorney-General and I are accountable to this House. I should also confirm that the interest of my hon. Friend the Member for Wycombe in this matter is not just altruistic, although it is that as well. Mr Breeze’s brother lives in his constituency, so he has a family interest in the debate.
Andrew Breeze was one of two defendants charged in February 2008 with conspiracy to defraud NHS primary care trusts by charging them for what was called “extra care” for mental health patients at a private hospital, Cawston Park hospital in Norfolk, which was owned by a company in which the defendants had a significant interest. Those activities were said to have taken place in the two years before August 2006. It was alleged by the prosecution that the charges for extra care were criminally dishonest, because that extra care was not in fact provided.
The trial began in April 2009 but was halted in June 2009 when the judge at Ipswich Crown court intervened, resulting in the prosecution bringing the case to a halt by offering no evidence. Mr Breeze was then acquitted of all charges. At the conclusion of the case the judge said to Mr Breeze and his co-accused:
“You leave vindicated with your good name intact and your heads held high.”
I wish to make it clear beyond doubt that that acquittal means that Mr Breeze was, and remains, not guilty of the criminal charges brought against him. On behalf of the CPS, and as Solicitor-General, I associate myself without reservation with the words of the judge, but I go further and say that in so far as Mr Breeze was prosecuted as a consequence of what the CPS did or did not do, I want to place on record for all to see my apologies to him. It has become clear that regardless of whether it was proper to investigate the affairs of Cawston Park in the first place, the prosecution should never have got as far as it did.
I am accountable for the CPS, which was responsible for deciding whether to institute and continue the prosecution in this matter. The police were responsible for investigating the case on the basis of a complaint from NHS Counter Fraud, but not for deciding whether to prosecute. The prosecution in this case should never have reached the stage that it did, and I repeat, without restating verbatim, the judge’s words and my apology.
I should also like to apologise to Mr Breeze for the failure to respond to his letters of complaint sent to the CPS after the trial finished. Mr Breeze eventually felt that he had no option but to present himself in person at the CPS offices, because of the repeated failures to reply to him.
In response to his complaint, the CPS did––very late––conduct a thorough review. It was conducted by a senior lawyer at the CPS, Elizabeth Bailey, who had no prior involvement in the case. She concluded that, in her view, the case should not have resulted in criminal charges. I endorse her conclusions. She found that there was material available in the evidence that could be seen as pointing towards dishonesty, but equally that there were issues, which were known about at the point of charge, that undermined the strength of the case. I will come to those in a moment. Different lawyers can quite properly take different views on the merits of any given case. Elizabeth Bailey in this case believed that, even if the charging decision could be seen as appropriate at the outset, the case should none the less not have been allowed to proceed to trial. She apologised to Mr Breeze by letter dated 26 July 2010 on behalf of the CPS both for the prosecution and for the lack of response to Mr Breeze’s complaint.
My hon. Friend the Member for Wycombe complains that that letter leaves Mr Breeze’s reputation tarnished, whereas the judge in the case told Mr Breeze that he left the court with his reputation intact and his head held high. With respect, since it was a private letter, it cannot be said to have had any public effect and the judge’s words at the end of the trial in 2009 are what will have been publicly remembered. However, in so far as there is any doubt about Mr Breeze’s reputation, I trust that what I have said tonight will make the position abundantly clear.
I gather that Mr Breeze has been in touch separately with Norfolk constabulary, the Information Commissioner’s Office and NHS Counter Fraud. I understand that Norfolk constabulary undertook a systematic review of its investigation under terms of reference agreed by the Independent Police Complaints Commission. NHS Counter Fraud has also undertaken its own internal review.
My hon. Friend asked for an independent inquiry. From what I have said, it must follow that I accept that this case raises several concerns. It has, however, been examined both inside and outside the CPS, and I do not believe that another inquiry would reach any new conclusions. The CPS has accepted responsibility for its failings in this case and they are now publicly acknowledged.
The case was not straightforward. There were some 84 witnesses and around 23,000 pages of evidence. The charging decision was approved by the then director of the fraud prosecution service. Both the barristers acting for the prosecution endorsed the decision to proceed. Miss Bailey was asked to consider the case in accordance with the code for Crown prosecutors which is issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985. Her review of the evidence and the information that was available at the point of charge led to the following five conclusions.
First, there was in the hospital a lack of clarity about what the “extra care” charges were for. A better description might have been a “surcharge” for difficult-to-manage patients, but she commented, and I agree, that a lack of clarity is not necessarily indicative of fraud.
Secondly, several people, including Mr Breeze, his co-accused and other officers of the company were being sued by the board of the hospital. The other defendants in the civil action all later gave evidence for the prosecution. They had an interest in the outcome of the criminal case and, as Elizabeth Bailey found, that conflict should have been considered as a significant risk in the criminal case, but it was not. There should have been regular reviews as the case progressed.
Thirdly, in 2005 a due diligence report was prepared by PricewaterhouseCoopers on behalf of Lloyds TSB Development Capital Ltd, which was due to invest—