by Neil Wild
“My Lord, in the recess, there have been some developments.” Evans addressed the Judge. He explained the facts that that Lappin had recounted.
The Judge showed no reaction.
“So you wish to withdraw the charges against Mr. Newberry?”
“My Lord”
“Very Good. Mr Newberry?”
“Stand up”. Hissed Brakespeare.
“Mr. Newberry, you have heard what Counsel for the Prosecution has to say. The charges against you are dismissed. You are free to go.”
“What now?” asked Newberry
“Sit down.” Hissed Brakespeare.
“Mr. Evans, before we move on, there are two other co-defendants in this case. What is their position?”
“My Lord, I need to speak with senior Counsel, Mr Edwards-Mitchell.”
“Why? Surely with Mr. Newberry off the scene so to speak, there is no case for them to answer?. Miss Lappin was quite right. Apart from the evidence of Mr. Black, there is simply no evidence of any conspiracy.”
“My Lord, this is something that we need to consider. The other two Defendants are of course not here.”
“No but it would appear that they are represented.” The Judge indicated the two young barristers, who looked petrified.
“My Lord.”
“Mr. Evans, the position is that the Prosecution have had to concede that there is not, and probably never was any evidence to justify the charge of conspiracy to defraud the National Bank.. I have read the bundle of correspondence between Mr. Black’s firm and, Skinners, is it? Surely those who instruct you must have read this as well as you yourself. Mr. Black horribly compromised his position.”
“My Lord I was unaware of this correspondence until recently.”
“Well that must be a matter between yourself and your Instructing Solicitors. My overall impression has been that this case is nothing but sour grapes by the National Bank. Someone, somewhere made a decision to lend against these properties. Probably due to the fault of no-one, and as a result of the recession, that investment proved to be a bad decision, and the National Bank has been looking for a scapegoat.”
“My Lord.”
“Mr. Black, will you please stop saying that.” The Judge almost shouted. He looked at the two terrified young barristers. “I’m sorry, I’m afraid that I don’t know your names, but you are here on a watching brief for the Defendants Levy and Simmons, are you not?
“Yes, My Lord.” They chorused as they rose to their feet..
“And you have been briefed by their respective solicitors?”
“Yes My Lord.”
“Do you have any objection to the charges against your clients being dismissed.”
They looked at each other and then at Lappin who was looking across the bench, smiling at them encouragingly. She shook her head.
“No, My Lord.”
“Mr. Evans, I am minded to discharge Mr Levy and Mr. Simmons, and avoid their attendance at Court and a further waste of public money. Is there anything that you wish to say before I do so? You may wish to take instructions from those sitting behind you.”
A defeated Evans turned round to the two ladies. He didn’t say anything but raised his eyebrows in question. They looked at each other and shook their heads.
“My Lord, in view of what Your :Lordship has said, no.”
“Very good, the charge of conspiracy against Jonathan Levy and Simon Simmons, is also dismissed. Is there anything else.”
Lappin whispered to the two young barristers, who nodded their heads. She rose to her feet. “My Lord, there is the question of costs. In the circumstances I am permitted to make this application on behalf of my client, Mr. Newberry, and those represented by my learned friends, to save repetition.”
The Judge smiled at the way that she had rescued the two young barristers from the terror of doing something that they were totally unprepared for.
“Your Lordship has described this prosecution as sour grapes by the National Bank. Unfortunately as the status of the Bank is merely that of the Complainant in this case; it is not a party to these proceedings. Unless Your Lordship is able to correct me, as such no application for costs can be made against the Bank.”
“Yes, Miss Lappin, I think that that must be right.”
“On the other hand it is quite clear that this prosecution should never have been brought. I appreciate that the Prosecution has apparently been let down at the last minute by Mr. Black, but the writing has been on the wall for some time.”
The Judge nodded. “Particularly your Instructing Solicitors letter to the Crown Prosecution Service.”
“Particularly that, which did not receive any or any adequate response. That letter of course referred to the question of costs if the Prosecution proceeded and the case was dismissed. In my respectful submission, and with all respect to my Learned Friend, the Crown Prosecution Service have merely rubber stamped this case without giving these matters any thought. Accordingly, they should pay the Defendant’s costs in this matter.”
“What would be the normal position. Miss Lappin?” asked the Judge.
“My Lord, the costs will be paid by the taxpayer, out of Central Funds.”
“Will it still not be the taxpayer who ultimately pays, if I accede to your application?”
“Indeed, My Lord.” Conceded Lappin.
“Mr. Evans?”
“My Lord, I of course must resist that application. In this case the Crown Prosecution Service was presented with evidence from a Chartered Surveyor from a well known and respected firm of Chartered Surveyors. They relied, as they are entitled to on his evidence.”
“But did they not adequately consider the letter from Mr. Newberry’s solicitors.”
“My Lord, that was considered at conference with Senior Counsel, and Mr. Black stood by his evidence.”
“Well he hasn’t stood by it now. What about the letters from Redshaw Linden and Steele to Suttons.”
“They were not considered germane to the case by those who instruct me, My Lord.”
“Well that was an error of Judgement on somebody’s part.”
“My Lord.”
The Judge looked irritated. “Very well.” He sat back for some minutes and made notes before delivering his decision.
“In this case I am asked to award costs against the Crown Prosecution Service. My power to do so comes from section 19 of the Prosecution of Offences Act 1985. I do not think that there is any doubt that a Crown Prosecutor falls within the category of legal representative on behalf of a party to proceedings. In my view the test that I ought to apply is whether the Crown Prosecution Service have been ‘improper, unreasonable or negligent.’ That indeed is set out for me in section 19, subsection A, sub sub section 3 of the Act.
On the first point I am unable to find that there has been any impropriety by the Crown Prosecution Service, nor do I think that Miss Lappin would suggest that.”
Lappin nodded.
“On the second point again I do not think it can be said that these proceedings were unreasonable, if only in the sense that it is not unreasonable to consider a prosecution where substantial sums of money have been lost in what, if proved, could be a fraud.
This leaves me with the final head; negligence. Negligence in the general meaning of the word, means “behaviour that is culpable because it falls short of the legal standard required of a reasonable person in protecting an individual against the harmful acts of other members of society or themselves.”
Put in the context of this case, the question I must ask myself is whether the conduct of the Crown Prosecution Service put the Defendant Newberry in a position he would not otherwise have found himself in. In other words, does Mr. Newberry’s appearance in Court stem from something which was done, or which was not done, as the case may be by the Crown Prosecution Service.
I am unable to answer that question in the affirmative. The Crown Prosecution Service were faced with a complaint of the loss of a substantial
amount of money by a large bank, supported by what at first blush, is compelling evidence from Mr. Black.
In my view on the basis of that evidence they were right to bring this prosecution.
Where they have failed, is in examining the evidence more closely when invited so to do by Mr. Newberry’s solicitors. They also failed to appreciate the significance of the correspondence that they had available to them between Mr. Black’s firm and those acting for potential buyers.
However all this occurred after the institution of proceedings, and has not brought them about. For this reason, and may I say, with some reluctance, I am unable to grant this application for a wasted costs order.
Mr. Newberry will not be out of pocket. I will order his costs and those of all the Defendants to be paid out of public funds.
The application will therefore be dismissed.”
He wrote a few more notes in his book, stood up and bowed his way out of Court.
“Phew” said Lappin turning round. “That was a close one. Still it’s all over Mr. Newberry.”
Newberry began making what looked like being a long speech.
“Let’s go outside”, said Lappin. She collected her papers, and lead the way into the foyer, where she took off her wig.
“Thank you, thank you so much.” gushed Newberry with Kate next to him. “Can I take you all out to lunch?” he gestured around him.
Lappin smiled. “Thank you very much, Mr. Newberry. That is extremely kind of you, but apart from the fact that there isn’t anywhere decent to eat in this part of London, I ought to get back to Chambers. My Clerk tells me that there is a lot of paperwork waiting for me.”
Brakespeare suspected that she was being slightly ungracious, but he knew that it was best to keep clients at arm’s length. Still if she didn’t want a meal, he did. In fact he could do with a good drink!
“Oh, all right.” said Newberry. “You would have been most welcome, well I guess that’s the end of it.”
“Well it may be the end for you,” replied Lappin, “but I expect that a few searching questions are going to be asked of Mr. Black.” She looked at Brakespeare as she spoke. He tried not to move a muscle.
“Anyway” continued Lappin, “I really am pleased for you that this matter has been sorted out so easily. You can now get on with the rest of your career.”
“Thank you very much again.”
“Oh, don’t thank me, thank Jonny here and Lisa. If they hadn’t cracked this case - well, it would have been a hard slog. Goodbye”. She shook his hand. “Goodbye Mrs. Potter. Good bye Jonny. I’ll get my Clerk to return the brief and all the papers in the post. Goodbye Lisa, and I’ll see you soon.”
“Goodbye Rosie.” said Lisa and kissed her on the cheek. “and thanks” she said.
With a wave of her hand Lappin left to go to the barrister’s robing room.
“Well” said Brakespeare, “after all this time, it’s a bit of an anticlimax. I never expected the case to collapse like that.”
“I can’t quite believe it.” replied Newberry. “I can’t believe that I won’t have it hanging over my head any more. You can’t know how relieved I am. Come on let’s have that meal.”
Lisa put on a contrite act. “Look I’m sorry Paul – another time perhaps, but I really need to get back to Worcester, and poor Jonny has left his car in Milton Keynes, and needs to get back there before driving back to Worcester. We also need to cancel our hotel booking otherwise we’ll get charged.”
“We can do that now.” said Brakespeare pulling the mobile phone out of his pocket.
“Do you know the number?” asked Lisa quickly.
“I don’t even know the hotel. I left that to you.”
“Oh, it’s in my bag somewhere. Look Paul, Kate, I’m really, really sorry, but as you can see we do have things to do.”
Brakespeare was going to protest. Another hour or two wasn’t going to hurt, but Lisa seemed so insistent, and the attraction of any meal would be her presence; he didn’t want to have to eat with Newberry and Kate alone. This was annoying. What a way to celebrate a successful outcome to the case. What an anticlimax.
Newberry looked at Brakespeare enquiringly. Brakespeare shrugged his shoulders deprecatingly. “You two go and have a really good meal together. I’m sure that you’ll be able to relax far more without us.”
Newberry looked at Kate who clearly had no opinion on the subject. He stuck out his hand. “Thanks Jonny, thanks a lot, and I really mean it. Lisa, the same goes for you.” and after shaking Lisa’s hand he kissed her.
“Thanks Jonny.” Kate gushed as she gave him a hug. “See you soon.” She repeated the exercise with Lisa, and then she and Newberry walked out of the Court door, their arms wrapped round each other.
“Well let’s get going,” said Brakespeare with resignation, picking up his bags. “Better find that hotel. We need to try and cancel the bookings, or Mortimer will charge us.”
They walked out onto the front steps of the Court.
Lisa stopped him. “It’s too late to cancel for tonight. We should have done it by eleven o’clock if we were going to.”
“Well we’ll have to cancel for the rest of the week. How many nights did you book?”
“We can see to that when we get there. Oh, and there’s another problem.”
“What?”
“They didn’t have any single rooms. I had to book a double.”
Brakespeare looked at her with astonishment, changing to amusement. She looked at him hopefully.
“Well Jonathan Brakespeare, I sort of thought that the Minge Lane Partnership might have some unfinished business to transact. If you’re free to that is. The hotel will be as good a place as any.”
Brakespeare put his bags down, and on the steps of the Court Jonny Brakespeare took Lisa Barnes into his arms.
