Serious Fraud Office v Evans & Ors

A voluntary bill of indictment is an exceptional remedy after dismissal of a charge. It may be granted where there is a clear and substantive error of law, significant fresh evidence providing a sustainable basis for trial, or a serious procedural irregularity.

The procedure must not become a means of appealing an unattractive decision, or of repeatedly reformulating a prosecution case until a sustainable legal basis is found. Repeated changes to the legal foundations of charges, especially where they prejudice the accused, will generally make the procedure inappropriate.

The Serious Fraud Office applied for a voluntary bill of indictment against six proposed defendants after Hickinbottom J dismissed the prosecution’s charge of conspiracy to defraud. The proposed indictment advanced substantially revised legal bases, including alleged offences under the Fraud Act 2006, the Companies Act 2006 and the Insolvency Act 1986.

The SFO argued that Hickinbottom J had made errors of law and that the newly formulated case should proceed in the interests of justice. The central questions were whether the earlier dismissal involved a sufficiently clear and substantive legal error and, if not, whether the prosecution’s repeated changes of legal basis justified this exceptional procedure.

1. Application refused. The court refused the application for a voluntary bill of indictment. The decision did not express any view on whether the proposed defendants had committed criminal offences.
2. Preferment of a voluntary bill after dismissal is exceptional. The recognised situations include a clear or obvious basic and substantive error of law, significant new evidence previously unavailable to the prosecution which provides a sustainable factual basis for conviction, and a serious procedural irregularity. The categories are not exhaustive.
3. The procedure must not be used simply because the prosecution disagrees with the dismissal decision. Nor may it be used as a general appeal or as a means of presenting the same material to another judge for a different view.
4. A change of prosecutorial position may exceptionally justify a voluntary bill, but the court must consider the nature and extent of the change, the reasons for it, the procedural history and the prejudice to the accused. It is inappropriate where the prosecution has repeatedly reformulated its case to find a sustainable legal foundation.
5. Hickinbottom J had not made the alleged error of law. The Fraud Act basis was introduced only after the dismissal submissions had closed. The judge had correctly focused on the particulars of charge and on the defendants’ entitlement to know the case they had to meet.
6. The SFO had repeatedly shifted its legal analysis. Allowing a voluntary bill would have treated the earlier proceedings as a dummy run and caused real prejudice. The interests of justice therefore did not require the prosecution to proceed.
7. Consequential costs issues were remitted to Hickinbottom J. The order under section 4(2) of the Contempt of Court Act 1981 was lifted.

First-instance application. The judgment records that Hickinbottom J dismissed the original charge on 18 February 2014. This court refused the subsequent application for a voluntary bill of indictment.