On 14 November 2014 Fulford LJ dismissed an application by the Serious Fraud Office for a voluntary bill of indictment (“VBI”) against a solicitor, Eric Evans, and five others including Stephen Davies QC, alleging conspiracy to defraud in relation to the transfer of title to four open cast coal mines in south Wales to BVI company.
With a criminal silk and junior, Patrick Harrington QC and Ben Douglas-Jones, John de Waal QC acted for Eric Evans in response to the SFO’s application, which followed the successful dismissal of other charges arising out of the same transaction by Hickinbottom J on 18 February 2014 (reported at  1 W.L.R. 2817) when John also acted.
In criminal law there is no provision for an appeal against the dismissal of criminal charges nor can the decision of the judge to do so be judicially reviewed. However there is the “exceptional procedure” of a VBI. The procedure is available when there is new evidence or when the judge had made a basic and substantive error of a serious procedural irregularity.
Fulford LJ observed that in an attempt to get the prosecution home the SFO had put their case in three distinct different ways. He went on to criticse them for failing to put their case in a coherent way – and specifically observed that the SFO had “repeatedly reformulated its case in the course of more than one set of proceedings in an attempt to identify a sustainable basis in law for the charges” to the real prejudice of the defendants (para 87). To allow the VBI would have been to allow the Prosecution to treat the original proceedings as a dummy run.
This decision, made by a judge of the Court of Appeal sitting as a High Court Judge, is a valuable addition to the jurisprudence in this complex area of criminal law.
For further information, please refer to the judgment in R v Evans  EWHC 3803 (QBD).