SFO denied ‘voluntary bill of indictment’ to resurrect conspiracy case against lawyers and others

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19 November 2014

High Court: ruling ends prosecution

The Serious Fraud Office (SFO) has failed in an unusual bid to resurrect a prosecution against six people, including three solicitors and a QC, over an alleged conspiracy to defraud three local authorities in Wales and the Coal Authority.

After Mr Justice Hickinbottom dismissed the case in February, the SFO applied to the High Court for a ‘voluntary bill of indictment’, the only procedure available to the Crown to keep a case going as it has no right of appeal.

However, on Friday Lord Justice Fulford, sitting as a judge of the Queen’s Bench Division, refused the application.

Serious Fraud Office v Evans & Ors [2014] EWHC 3803 (QB) concerned allegations that the six conspired to set up companies in the British Virgin Islands and transfer to them from Celtic Energy the freehold title of four coal mines so as to avoid having to pay to restore the sites once coal extraction ended.

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Celtic Energy’s owner, Richard Walters, and finance director, Leighton Humphreys, were charged, as were their then solicitors – now-retired Eric Evans, his then partner Alan Whiteley, and assistant solicitor Frances Bodman, all at the time with M&A Solicitors in Cardiff – and Stephen Davies QC, who had advised on the legality of the scheme.

Hickinbottom J dismissed the original case on the application of the defendants after ruling that the deal was lawful, that it cannot be dishonest to act lawfully, and that an agreement to achieve a lawful object by lawful means can never amount to a conspiracy to defraud. He also found that the authorities had no interest that allowed them to prevent the transfers. As a result there was no prospect of a jury convicting them and he dismissed the charges.

The voluntary bill of indictment procedure is available when there is new evidence, there has been a serious procedural irregularity, or the judge has erred in law, or it is in the interests of justice to grant it.

Lord Justice Fulford said the SFO had failed to show that Hickinbottom J had made any error of law, meaning the only reason to accede to the application was if it was in the interests of justice to do so.

He concluded that it was not. The effect of granting a bill of indictment would be to allow the prosecution to bring virtually the same case again in a form which it should have done originally had the SFO given the matter “proper thought” at the time.

“This would constitute a misuse of this exceptional procedure: the trial process should not be used, deliberately or otherwise, to explore in repeat proceedings – from a range of profoundly different options – the most sustainable legal basis for prosecuting alleged criminals.”

But in refusing the application, he added: “However, I stress this decision should not be taken as any kind of comment on my part as regards the suggested criminality of the proposed defendants. Whether or not any of them committed a criminal offence is a question that falls wholly outside the remit of this application.”

The SFO said it had considered it “right” to seek a voluntary bill of indictment, but added: “We accept the court’s judgment, which now brings the prosecution to an end.”

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