The potential pitfalls for a Private Prosecutor

July 3, 2020

By Richard Littler QC

Introduction

1. Prosecutions are commenced ordinarily by the police and the Crown Prosecution Service (CPS) or by the officers of governmental or quasi-governmental organisations (such as local authorities, the Environment Agency and the Department for Work and Pensions). Prosecutions may also be commenced by other persons, including commercial organisations. Furthermore, a private prosecutor can recover their costs from central funds, but the costs must be reasonable in order to be recoverable. Private Prosecutions are certainly on the rise generating caselaw, Codes, new Criminal Procedure Rules and we now have the Criminal Frauds (Private Prosecutions) bill 2017-19 to look forward to.

The rise of the Private Prosecution

2. In R. v Zinga (Munaf Ahmed)[1] Lord Thomas C.J. (at 57) observed that: “At a time when the retrenchment of the state is evident in many areas, including the funding of the Crown Prosecution Service and the Serious Fraud Office, it seems inevitable that the number of private prosecutions will increase.” Davis L.J. in D Ltd v A[2] (at 40) confirmed: “[I]n recent years there seems to have been something of a growth in private prosecutions … One particular area of growth … may lie in complex fraud cases: where, in reality, the public authorities sometimes may lack the resources and/or inclination to commence a public prosecution”. The pandemic and the inevitable future budgetary restraints on the public prosecuting bodies will only fuel private prosecutions; they may in fact become the obvious and only route for large economic crime cases.

Advantages of a Private Prosecution

3. There are advantages in a private individual/commercial organisation bringing a private prosecution. They may be a specialist of the area in question. They are not reliant on public bodies deciding on the merits the case. They are not reliant on public funds. Their decisions are not influenced by politics. They have more control over when to proceed. They have control over evidence gathering. They have control over disclosure. They can bring about swifter justice than in the civil arena. They can bring about a more effective outcome, namely one preventing the further conduct complained of (a director disqualification or particular prevention order) or obtain compensation.

Disadvantages

4. A private prosecution is unique. You are effectively the complainant, the police, the CPS and Minister of Justice rolled into one. You will shoulder the costs and responsibility of the entire investigation. You may have to employ private investigators and outside expert advice. You will not have the powers of the police and cannot therefore apply for search warrants[3] or carry out a citizen’s arrest. You must obtain at the outset the trust of the court as the court will be your vehicle to secure oral and documentary evidence through summonses, sometimes from third parties. You cannot interview a defendant under caution but only invite the defendant for a voluntary interview and you cannot invite an adverse inference if the defendant answers “no comment”. The effective private prosecutor will be a creative lawyer finding ways to obtain evidence via alternative routes. This will include building a relationship and working with, not against, the police and CPS in order to gather evidence. Certainly, in its infancy the police and CPS may willingly assist when they imagine there is a possibility they will inherit the case and take it over in due course.

The Threat of Discontinuance by the DPP

5. One major penalty for any private prosecutor is the fact they are at the mercy of the DPP who can take over the case at any time and discontinue it.[4] The Supreme Court held it was lawful for the DPP to apply to private prosecutions the same tests (namely, evidential sufficiency and public interest) which apply to cases brought by the CPS. You could attempt to judicially review a DPP decision to discontinue a private prosecution, but only if that decision is based on an irrational or unlawful application of the provisions of the Code for Crown Prosecutors which govern the decision to prosecute (R. (on the application of B) v DPP [2009] EWHC 106 (Admin); [2009] 1 W.L.R. 2072 ). It is therefore unlikely the Divisional Court will interfere simply because the DPP came to a different but nevertheless reasonable decision on the same facts. The private prosecutor can be silenced therefore before the case even gets to court.

No Appeal to the Court of Appeal

6. Not only that, once the Divisional Court refuse the judicial review, there appears to be no appeal. In Thakrar v Crown Prosecution Service [5] a claimant brought judicial review proceedings challenging the DPP’s decision to discontinue the private prosecution he had commenced. Permission to apply for judicial review was refused by the Divisional Court. The claimant then sought permission to appeal this decision to the Court of Appeal. The Senior Courts Act 1981 s.18(1) provided that no appeal should lie to the Court of Appeal “except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter“. Realistically one could not argue that there was no “criminal cause or matter” involved because the decision under challenge was a decision of the DPP sought to be challenged on public law grounds in judicial review proceedings. The court concluded it was necessary to have regard to the underlying subject matter of the proceedings in question.[6] [7] In that case there could be no realistic argument that the subject matter was not criminal. Therefore, the Court of Appeal had no jurisdiction to entertain the proposed appeal (see paras 20-27 of judgment). If you happen to be defending in a private prosecution it would be worth considering writing to the DPP making representations as to why a private prosecution should be discontinued on grounds of evidential insufficiency. It is akin to an extra application to dismiss but this time to the DPP.

The Approach of the Courts to Private Prosecutions

7. Even if the DPP do not interfere with a private prosecution, the courts will scrutinise it from the outset. Authors in a recent article in the Criminal Law Review [8] fuelled the fear of most courts suggesting private prosecutions are a tool for the rich, often oppressive in nature, brought by wealthy organisations. The courts inevitably in the future will attempt to weed out such cases from courts lists up and down the country, especially given the jury trial backlog crisis. Maybe the judiciary will be more sympathetic to private prosecutions however if it becomes self – evident that the CPS are not sufficiently funded to prosecute them.
8. (Holloway) v Harrow Crown Court[9] warns private prosecutors that they must  conduct themselves to the same standard and with the same diligence as any public prosecutor. A finding of impropriety justifies the exercise of the court’s discretion to make an adverse costs order.[10] The costs regulations allows the court to order a party to pay the costs of another party if satisfied that their costs were incurred “as a result of an unnecessary or improper act or omission.” Failures in the private prosecutor’s duties of disclosure by withholding evidence which “presented a picture flatly contradictory to the prosecution case”, and failing to apply an independent and objective analysis of the evidence before commencing proceedings, were not only capable of grounds to dismiss or stay but held to be “improper” and substantial costs were awarded against the private prosecutor as a result.
9. The motives of the private prosecutor are a central issue. In Holloway, defendants argued that the improper act for the purpose of determining costs was “bringing the prosecution without the skill and calibre to adequately do so, as well as without adequate evidence to establish the offences complained of…to such an extent that an ulterior motive was present other than to administer justice.” This case confirms what is improper can be interpreted in broad terms. Westminster Magistrates Court, ex p Johnson,[11]centred on the political pro remain political motives of the action. Mixed motives do not automatically defeat private prosecutions however[12] and in R (G) v S it was held that mixed motives are to be distinguished from an oblique motive which is so dominant and so unrelated to the proceedings that it renders them an abuse of process.[13]

Parallel Civil/Criminal Proceedings

10. It follows that private prosecutions brought in conjunction with civil proceedings are in a far worse position and much more vulnerable to criticism and challenge. From the very beginning the motivation for the private prosecution is centre stage. Is this private prosecution being used as a weapon in order to secure a favourable settlement of relating proceedings or an act of revenge? The timing of the private prosecution being brought may be crucial when considering motive. As soon as the summons is served and criminal proceedings are commenced in the Magistrates Court, questions will be asked about the motives behind the prosecution, before the evidential questions begin. How can the private prosecutor best protect himself or herself? The answer is being “full and frank at the outset” and certainly the CPR, caselaw and the Code all encourage this.

Criminal Procedure Rules (Full and Frank at the outset)

11. Private Prosecutors are guided by the Criminal Procedure Rules 2015 and the important 2018/2019 updates. A private prosecution is commenced by making an application to a magistrates’ court for the issue of a summons requiring the intended defendant to attend court (“laying an information”). The procedure for applying to a magistrates’ court for a summons is set out in Pt 7 of the Criminal Procedure Rules 2015/1490. A summons or warrant must now contain more detail of the case and early full and frank disclosure is encouraged. It must include—

(a)  concisely outline the grounds for asserting that the defendant has committed the alleged offence or offences;

(b)  disclose—

(i)  details of any previous such application by the same applicant in respect of any allegation now made, and  (ii)  details of any current or previous proceedings brought by another prosecutor in respect of any allegation now made; and

(c)  include a statement that to the best of the applicant’s knowledge, information and belief—

(i) the allegations contained in the application are substantially true, (ii) the evidence on which the applicant relies will be available at the trial, (iii) the details given by the applicant under paragraph (6)(b) are true, and (iv) the application discloses all the information that is material to what the court must decide.

–

The Caselaw (Full and Frank at the outset)

12. In R. (on the application of Kay) v Leeds Magistrates’ Court[14], it was held that a magistrate who is asked to issue a summons “must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction”; if so, a summons should be issued “unless there are compelling reasons not to do so” (for example, “the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper”). The proposed defendant has no right to be heard but the magistrate has a discretion to hear from the proposed defendant.
13. The Divisional Court in Kay went on to confirm the following:

(1) Whilst the Code for Crown Prosecutors does not apply to private prosecutions, a private prosecutor is subject to the same obligations as a Minister for Justice as are the public prosecuting authorities – including the duty to ensure that all relevant material is made available both for the court and the defence.

(2) Advocates and solicitors who have the conduct of private prosecutions must observe the highest standards of integrity, of regard for the public interest and duty to act as a Minister for Justice in preference to the interests of the client who has instructed them to bring the prosecution – owing a duty to the court to ensure that the proceeding is fair.

14. The private prosecutor’s duty to the court is that, when applying for a summons, the prosecutor owes a “duty of candour“. This duty is one of “full and frank disclosure”, and it requires disclosure to the court of “any material which is potentially adverse to the application” or which “might militate against” the granting of the application[15]. A private prosecutor seeking an ex-parte order must put himself in the position of the defence and consider what they and the court would want to know.
15. Effective private prosecutors who have fully prepared a case and followed the CPIA to the letter, would only want to begin a private prosecution when they have their case in a “trial ready” condition. Would serving the “entire case”, primary disclosure, on the court at the outset stand you in the best position to fend off criticism from the DPP, the defence or the court? This would demonstrate open and transparent disclosure and the objective assessment of the evidence. It would be difficult for the DPP or the court or the defence to suggest the private prosecution lacked skill and calibre in its assessment of the evidence and call into question their motives (as in Holloway).

Better “Better Case Management” in Private Prosecutions?

16. Post the pandemic the courts’ will rigorously attempt to flush out those cases which have not met the evidential test or their motives are questionable. Those that survive will bring however a welcome sense of cases efficiency. Ordinarily in publicly prosecuted criminal cases, primary disclosure (indictment; statements; exhibits; interviews: unused material schedule) are served many weeks after a first appearance in the Crown Court. Criminal courts have been pressing defendants in recent years to be arraigned or make applications to dismiss before the evidence is in fact served. The CPS very often will not serve their full expert report, and serve the cheaper “streamlined” version instead, until they actually hear the defendant plead not guilty and a trial is a reality and fixed. It has become the norm in fraud cases for cases to be listed years in advance of the Pre-Trial Preparation Hearing and important evidence to be served well after that hearing. A private prosecution will be a breath of fresh air with front loaded preparation. The private prosecutor will not just want the court to be on side at the outset but also want a swift outcome, thus reducing costs to them and full and frank disclosure at the outset will make an earlier trial date more realistic.

Disclosure to avoid a vacation of plea / application to stay

17. What of a defendant who enters a plea of guilty at the Magistrates Court at a time in a case where the private prosecutor is recklessly or deliberately not disclosing material, possibly from the parallel civil case, which may materially assist the defendant or undermine the prosecution (CPIA). Evidence or material for example showing an inappropriate motive or other relevant undermining evidence. Isn’t this another reason why the defendant needs to have the fullest disclosure at the outset? A failure could lead to a successful vacation of plea or worse still an application for a stay.

Application to Dismiss

18. A defendant is entitled to apply to dismiss under the CDA 1998, sch 3, para2(1) which stipulates ‘The defendant may (after the date when he is served with the documents containing the evidence on which the charge(s) are based, but before the date of arraignment) apply orally or in writing to the Crown Court for the charge(s) to be dismissed.” Is a private prosecutor not obliged to serve the entire case (used and unused) in order to allow a defendant to consider this application? Is the defendant not entitled to expect a private prosecutor to lay all their cards on the table at the outset allowing them to review to review the evidence and scrutinise it?

The Unused Material Schedule

19. The Private Prosecutor, certainly in a parallel civil case, is in a particularly sensitive position. Surely, motive behind the prosecution is centre stage. The most important document will be the unused material schedule. The CPS under the CPIA employ the services of a disclosure officer to manage and oversee the disclosure process. The complainant in a state prosecution would have no business deciding what actions or material should be recorded, retained, reviewed, scheduled and disclosed. The complainant cannot decide what is relevant and what is not. The private prosecutor, especially with a parallel civil case, should be one step removed from this task and would be well advised to employ independent counsel or a specific lawyer in the prosecuting team. Applying the CPIA Code 2015 all material should be brought to this individuals attention and that which may be relevant scheduled; each item listed separately and numbered consecutively. This is done to allow the reviewing lawyer to decide what meets the disclosure test and mark off the schedule accordingly.
20. That “reviewing lawyer” would have a full knowledge of both parallel cases. Ultimately that same lawyer must consider secondary disclosure once the Defence Statement and any s8 CPIA disclosure applications are made pre-trial. That “reviewing disclosure lawyer” should be physically present when the case is heard at court. Disclosure needs to be under constant review. Sometimes it is what a witness might say in evidence which triggers disclosure.
21. To avoid criticism and promote a sense of transparency the unused schedule should be full. The HOLMES system was developed for the police after the case of the Yorkshire Ripper case. The problem encountered with the Yorkshire Ripper enquiry was the vast quantity of information collected and stored (about 40 tons of paper). It became impossible for any one person to have a complete view of the whole enquiry. HOLMES provides a computer system that not only automates the process of collecting and collating the information, but also helps to conduct the investigation in an organised and thorough manner.
22. Itemised actions on the UMS should include communications between the team, the routes and actions taken in the investigation, establishing the clear separation of lawyers working on different aspects of the case, notes of witnesses recorded, setting out who dealt with them, how they were approached and what they were told if anything before they provided the account. The sequencing on the UMS will demonstrate a thorough and professional investigation and it will become clear from the document that fair objectivity has been brought to the disclosure process.

The Importance of the Disclosure Management Document (DMD)

23. An economic crime case will create a volume of material; an economic crime case running parallel with a civil case potentially even more unmanageable. A private prosecutor is encouraged by the Crown Court to use a Disclosure Management Document (DMD). The tactical benefit of the DMD is that it details the approach that the investigation and prosecution has taken with regard to disclosure and sets out the prosecution strategy at the outset.[16] It affords the defence and the court an opportunity to engage and comment on this at an early stage in proceedings and make representations that additional lines of inquiry should be pursued if they are of the opinion that the investigation has been too narrow. The feedback so far from the defence and the judiciary concerning their use is positive about improvements to both the quality of disclosure discussions and ensuring they are happening earlier in the process.
24. But a DMD and a meticulously sequenced unused material schedule (UMS) served on all parties at the outset does something else for a private prosecutor. It places the private prosecutor in a position of control and shifts the burden of cooperation on the defence and court. Furthermore, in a private prosecution it can be served alongside the UMS and the primary disclosure at the outset and it can set out set out the approach of the entire team, the ethos of the team, the systems in place, the motives of the prosecution, why a prosecution is in the public interest, why a prosecution brings something different to a civil action and is necessary. It encourages meaningful engagement and dispute resolution. In a document volume heavy case it can invite suggestions for “key word searches” or third-party disclosure.

Collateral Use of Documents

25. It is inevitable that in parallel civil/criminal cases there will be a request made by a private prosecutor to use a document from the civil case in the criminal one. Such material is restricted from collateral use and can only be used for the purposes of the civil proceedings unless one of the exceptions applies. Put simply, if the material has been read out in open court already, or the party producing the material gives their express consent for it to be used in a prosecution, you can use it. The only alternative is a ruling from the court. A breach can amount to a contempt of court. Where the private prosecutor serves the primary evidence with UMS/DMD at the outset, not only is a court more likely to grant such an application having concluded the evidential test is met and no concerns exist over the motives behind the prosecution, the defendant is more likely to agree collateral usage of material with a prosecution team it can trust. These applications can be time consuming and costly for the private prosecutor.
26. A collateral use issue raised its head in Gilani v Saddiq[17]. Permission was granted for documents disclosed in civil proceedings to be produced as evidence in a private prosecution brought by the claimant against the same defendants, based on materially the same facts as the civil claim but including allegations of fraud. In a civil claim arising from a dispute over a property development agreement, the claimant applied [18] for permission to use documents disclosed by the defendants as evidence in a private prosecution against the same defendants. There was held to be a public interest in facilitating the prosecution of crimes and it was the prosecutor’s duty to lay before the court all the evidence relevant to the offences charged.

Privilege and the different disclosure regimes

27. Bringing a prosecution in conjunction with a civil claim may result in the client being unable to assert privilege over relevant material to the extent that it otherwise could if it was pursuing the civil proceedings alone. The main difference is private prosecutors must comply with the Criminal Procedure and Investigations Act 1996 [CPIA] and therefore they may need to disclose material not ordinarily disclosed in civil proceedings. Notes of meetings with witnesses or records of accounts from witnesses will all fall to be disclosed in a private prosecution. There may be a need to include details of witnesses apparent from the civil case but not readily visible or used in the new criminal matter. Actions and communications with experts and witnesses may be disclosable. Letters of instruction to experts or the amount of information given to a witness before the account is taken may need disclosing. A failure or refusal by the private prosecutor to produce any of this material and faithfully follow the principles in the CPIA could provide a basis for an abuse of process application by the defence and the inevitable cost penalties associated with bringing such an action.

Prepare the civil case like a criminal one from the beginning

28. You may have a civil case with one eye on a potential criminal prosecution. That first account from a witness in a civil case may give a flavour of a criminal case. It would be advisable to start gathering evidence in that civil case in a criminal case fashion. With very different disclosure obligations in mind it would be sensible going through a criminal preparation and disclosure process on the civil case, building effectively an UMS, sequencing and itemising actions and laying the foundation for a full audit trail.
29. There is a marked difference between how a statement is taken from a criminal witness and a civil witness. The Chancery Division Guide [19] is trying to reduce the gap between what a statement should look like in civil and crime. “A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief. It should therefore be confined to facts of which the witness can give evidence. It is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument, expressions of opinion or submissions about the issues, nor to make observations about the evidence of other witnesses. Witness statements should not deal with other matters merely because they may arise in the course of the trial.” In those circumstances, it makes sense for statements in both the civil and criminal case to be identical. There are obvious advantages to this approach.

Be mindful of Contamination

30. During a civil case you may have reached the point where you are contemplating bringing a private prosecution at a time when you are in continued dialogue with the (civil) defendant. You are going to be open to criticism if you continue to conduct effectively a process with the defendant which is no different to a criminal interview without safeguards in place for him or her. Realistically would a defendant in a civil action engage if a prosecution was on the cards? When settling a claim for a client or drafting of a settlement agreement with a defendant in civil proceedings, are you not obliged to let the defence team know you are contemplating a private prosecution? This is where the UMS will be of use, evidencing when exactly your team held meetings and made decisions to prosecute.

Conclusion

31. There are many advantages in bringing a private prosecution. The numerous disadvantages only exist for those who ignore the Code, the CPR, are driven by inappropriate motive and proceed not in the public interest. In order for the private prosecutor to be the police, the CPS and Minister of Justice, it must show from the outset efficiency, an independence of mind, objectivity, coming to court with clean hands and offering full and frank disclosure.

 

[1] [2014] EWCA Crim 52; [2014] 1 W.L.R. 2228

[2] [2017] EWCA Crim 1172

[3] S8 Police and Criminal Evidence Act 1984

[4] Section 6(2) of the Prosecution of Offences Act 1985 gives the DPP discretion to take over the conduct of criminal proceedings;

[5] [2019] EWCA Civ 874.

[6] Ex p. Woodhall, Re (1888) 20 Q.B.D. 832, [1888] 5 WLUK 14

[7] R. (on the application of Belhaj) v DPP [2018] UKSC 33, [2019] A.C. 593, [2018] 7 WLUK 44

[8] Claire de Than and Jesse Elvin, “Private prosecution: a useful constitutional safeguard or potentially dangerous historical anomaly?, ” [2019] 8 Crim.L.R, 656-683.

[9] [2019] EWHC 1731 (Admin).

[10] Section 17(1) of the Prosecution of Offences Act 1985 (POA 1985) and Pt.III of the Costs in Criminal Cases (General) Regulations 1986 (the Regulations)

[11] [2019] EWHC 1709 (Admin).

[12] Bow Street Metropolitan Stipendiary Magistrate ex p. South Coast Shipping Co. Ltd. [1993] QB 645.

[13] [2017] EWCA Crim 2119, at [27].

[14] [2018] EWHC 1233 (Admin); [2018] 4 W.L.R. 91

[15] Stanford International Bank Ltd (In Receivership), Re [2010]

[16] Att Gen Office Review of the efficiency and effectiveness of disclosure in the criminal justice system Nov 2018

[17] [2018] EWHC 3084 (Ch)

[18] CPR r.31.22

[19] Para 19.3