Defending a private prosecution

Earlier this year, Peter Gray, the former partner of Gibson Dunn & Crutcher LPP, received a substantial costs award after Hammersmith Magistrates Court dismissed a private prosecution brought against him and others concerning allegations of human trafficking. District Judge Tan Ikram reportedly described the private prosecution as “wholly improper”. The Judge’s rebuke is a reminder that private prosecutions, which have swung into fashion in recent times, need to be carefully handled.

The statutory right to bring a private prosecution is a valuable one, and many private prosecutions brought in the courts are properly managed. However, the case serves as a counterpoint to the more questionable advantages sometimes claimed for private prosecutions: when it is appropriate to bring them; the benefits compared to a State prosecution or civil proceedings; and the synergies in running a private prosecution and civil proceedings in tandem. These claims have fuelled, at least in part, an increasing number of private prosecutions. Despite this phenomenon, very little has been said about how to defend a private prosecution. This article seeks to redress this imbalance. The essential question is as follows: what are the features specific to a private prosecution – as opposed to a State prosecution – which a defendant may be able to challenge?

Challenging the sufficiency of the evidence

In a State prosecution, the defendant who challenges the sufficiency of the evidence has one option: to apply to the Court to dismiss the case. In a private prosecution, the defendant has an additional option: to invoke section 6(2) of the Prosecution of Offences Act 1985, which entitles the Director of Public Prosecutions (“the DPP”) to take over a private prosecution so as to discontinue it. The DPP’s policy on private prosecutions states that she will discontinue a private prosecution if the evidential test from the CPS Code for Crown Prosecutors (“the CPS Code”) is not satisfied, i.e. there is no realistic prospect that the defendant would be convicted. The lawfulness of the DPP’s policy was affirmed by the Supreme Court in R v Gujra.[1] Their Lordships regarded the DPP’s power to discontinue a private prosecution on evidential grounds as an important safeguard against abuse of the right to prosecute.

Making representations to the DPP to discontinue on evidential grounds is a potentially advantageous route for the defendant, and will usually prove more effective than applying to the Court to dismiss the case. That is because the Court, in accordance with the test in R v Galbraith, is limited to considering the strength of the evidence served by the private prosecutor, and whether this evidence discloses a case to answer, regardless of any defence.[2] In contrast, the CPS Code enjoins the DPP to consider how the prospects of conviction may be affected by all of the evidence of which the DPP is aware, including evidence gathered in any antecedent State investigation and the defence case. Because the DPP can consider this broader range of material, the DPP is more likely than the Court to stop an evidentially weak private prosecution.

Challenging the public interest

The DPP’s policy on private prosecutions states that she will intervene, take over and discontinue a private prosecution if the public interest test from the CPS Code is not satisfied. This aspect of the DPP’s policy is untested in the Courts. There are several cases pre-dating the formation of the CPS in which the Courts upheld the DPP’s decision to discontinue a private prosecution that was deemed to amount to an attempt to interfere with a pending State prosecution (e.g. to intimidate a witness). For example, Raymond v Attorney General.[3] However, apart from these pre-CPS cases, there is no authority which affirms that the DPP can lawfully intervene in order to discontinue a private prosecution on only public interest grounds; the Supreme Court in Gujra did not address this point.

If such a case were to arise, the private prosecutor would no doubt argue that permitting the DPP to intervene on public interest grounds would emasculate his right to prosecute which the courts have repeatedly upheld as a fundamental or constitutional one. He would argue that the DPP is not the final arbiter of the public interest, and that it is lawful that allegations which the CPS has decided not to prosecute should be tried. On the other hand, it is not difficult to contemplate a private prosecution which, whilst evidentially strong, is one which the State would never prosecute for public interest reasons, e.g. the prosecution of a terminally ill defendant for a trivial offence. In these circumstances, it is difficult to see why the DPP should be deprived of the power to intervene and discontinue, notwithstanding that the defence have the alternative remedy of applying to the Court to stay the prosecution. Section 6(2) of the Prosecution of Offences Act 1985 did not restrict the DPP’s power to intervene solely to evidential reasons.

Assuming that the DPP’s policy on this point is lawful, the circumstances in which the defence might be able to persuade the DPP to discontinue on public interest grounds are probably fairly narrow and limited to exceptional cases, e.g. interference with the prosecution of another charge. The vast majority of challenges to the motives or conduct of the private prosecutor should, it is submitted, be determined by the judiciary rather than the executive.

Challenging the motives of the private prosecutor

Where the motives of the private prosecutor can be impugned, the defence may be able to pursue two strategies. First, the defence could seek to stifle the private prosecution at its inception, by making representations at an inter partes hearing at the Magistrates Court as to why a summons should not be granted. If those representations are rejected, the defence would still be able to make a submission subsequently, perhaps after the case is sent to the Crown Court, that the prosecution should be stayed as an abuse of process. It has long been accepted that the abuse of process jurisdiction applies to private prosecutions.[4]

Except in egregious cases, neither strategy is likely to be straightforward. The Court of Appeal recognised in Dacre v Westminster Magistrates that many private prosecutors will have “mixed motives”, and lawfully so, in that they will be motivated by a selfish or spiteful desire to punish the defendant, as well as a more high-minded desire to act in the public interest and to see criminal justice enacted.[5] Therefore, a Court is only likely to refuse a summons, or to stay a private prosecution as an abuse of process, where its conscience is offended by the private prosecutor’s motives.[6] Examples might include:

• Where the private prosecutor has litigated (or is litigating) the same allegations in another criminal or civil court, in this jurisdiction or elsewhere.
• Where the private prosecutor is using the private prosecution as a means of gaining a collateral advantage in other legal proceedings, e.g. to intimidate the defendant into settling a civil claim.[7]
• Where the private prosecutor has engaged in “spoofing” before applying for the summons or arrest warrant, i.e. repeatedly threatening the defendant with a private prosecution for an ulterior purpose.
• Where the private prosecutor knows that the defendant has accepted a caution in respect of the same allegations being made in the private prosecution.[8]
• Where there is evidence that the private prosecutor is pursuing a vendetta against the defendant, e.g. by publishing adverse publicity about the defendant on social media and/or by harassing the defendant or his family/work colleagues.

Challenging the conduct of the private prosecutor

Even if the private prosecutor’s motives cannot be impugned, the defence should think about challenging the private prosecutor’s conduct. Again, this applies at the inception of the private prosecution, where, for example, the defence might be able to demonstrate that the evidence in the information laid before the Magistrates Court has been obtained in breach of undertakings given in other legal proceedings, such that no summons or arrest warrant should be issued. Alternatively, at any stage of the private prosecution, the conduct of the private prosecutor could be relied upon as the foundation for an abuse of process submission if the conduct causes unfairness or is unconscionable. For example, the defence should scrutinise the private prosecutor’s compliance with its disclosure obligations, including its duty to obtain relevant material from third parties. A particularly vulnerable issue in a private prosecution will be whether the prosecutor includes on the unused material schedule, and discloses, all draft versions of the principal complainant’s witness statement. Ordinarily, as the client of the lawyers bringing the private prosecution, such drafts would be legally privileged, but if the client is unwilling to waive privilege, the defence could argue that a fair trial is impossible as there is no opportunity to cross-examine the principal complainant on any prior inconsistent statements.

Even if the private prosecutor’s conduct falls short of the high threshold needed to establish an abuse of process, the defence should still gather material about his conduct which might colour the perceptions of the Judge and jury. For example, the defence could seek disclosure of the redacted billing narratives and fee notes being charged by the private prosecutor (these would not be privileged). The defence could explore the extent to which the principal complainant (and client of the private prosecutor) has reviewed or approved the other prosecution evidence, or whether he has been updated regularly about the trial prior to giving evidence. Any material which paints the private prosecutor as someone other than a dispassionate Minister of Justice – as motivated by greed or too easily controlled by his client – could make an important difference to how the factual issues are ultimately judged.

Conclusions

If a private prosecution is properly brought by a legal team who act professionally and with the requisite independence, none of the avenues of defence explored in this article would gain any traction. Defending such a private prosecution would be no different from defending a State prosecution. However, the danger is that, as the private prosecution industry grows, and sometimes questionable claims are made about the benefits of private prosecutions, or the circumstances in which they should be used, more private prosecutions are brought on the basis of unreliable evidence and/or for abusive reasons. Criminal lawyers therefore need to be alert to the means of defending and derailing them.

The Lord Chief Justice and the Attorney General have been less than enthusiastic about the rise of private prosecutions. They are not opposed to the bringing of private prosecutions per se. Instead they are concerned about pursuing private prosecutions as an alternative means of settling matters traditionally litigated in the civil courts, and the abuse of a private prosecutor’s powers. The Lord Chief Justice perceives reform to the costs regime to be one of the principal means of ensuring that private prosecutors tread carefully and in compliance with their professional ethical obligations. The recovery from the State of a private prosecutor’s costs at exorbitant private rates; the availability of compensation orders which would reimburse the private prosecutor; the ability of a private prosecutor to recover some of its costs even if the prosecution is stayed or the defendant is acquitted. These excesses are already being curbed, and are likely to be curbed further in the near future through changes to the law.

The right to bring a private prosecution can be, in the right cases, an extremely valuable power for a corporate or individual victim, particularly in the face of inaction by the State. There is no question that this right should be preserved. But restricting the financial incentives in a private prosecution – and punishing by costs orders those private prosecutors who attempt to bring abusive cases – are positive steps. They should be welcomed by all lawyers who wish to pay more than lip-service to the idea of a private prosecution as a valuable constitutional safeguard.

[1] [2012] UKSC 52

[2] [1981] 2 All ER 1060

[3] [1982] 75 Cr. App. R. 34. See also Turner v DPP (1979) 68 Cr. App. R. 70.

[4] See, for example, R v Birch [1983] Crim. L.R. 93.

[5] [2008] EWHC 1667 (Admin).

[6] Under the species of abuse of process identified by the House of Lords in R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42.

[7] See R v Gloucester Crown Court ex p Jackman [1993] C.O.D. 100.

[8] Jones v Whalley [2007] 1 AC 63.