Private prosecutions and civil proceedings

In a number of recent decisions, the courts have considered the relationship between private prosecutions and civil proceedings. A key question arising from these cases was whether private prosecutions were being brought for a proper purpose, or whether the objectives of the litigation should instead be pursued (solely) in the civil courts.

These judgments include cases where private prosecutions were dismissed, having been brought improperly to litigate issues following on from civil proceedings, or to exert unfair pressure on a party in circumstances where civil proceedings offered a more appropriate route for seeking redress. In other cases, private prosecutions were permitted to proceed where they were being pursued for proper reasons despite the alleged criminality taking place in the context of a civil dispute, or where it was at least arguable that criminal proceedings fell outside the scope of a prior settlement agreement.

These cases are a useful reminder that any private prosecution must be properly motivated, and meet the requirements of the public interest test. A party will need to give particularly careful thought before bringing an action related to a dispute that may be more properly addressed in the civil courts, or has already been the subject of extensive consideration by other judicial forums. It is also worth considering whether there are any grounds for questioning the party's own conduct.

Costs reform

Anticipated costs reforms may go some way to discouraging would-be prosecutors from bringing unmeritorious or inappropriate actions. Following a Justice Select Committee Report on Safeguards in Public Prosecutions, the Government announced in March its intention to amend existing legislation to cap the costs recoverable from central funds by a private prosecutor at legal aid rates. It has also indicated that costs recoverable from a convicted defendant should be similarly limited, either by being capped at legal aid rates or by reference to what the CPS would have sought, and that it intends to reflect further on whether there should be a wider discretion to reduce or withhold payment of costs from central funds to private prosecutors in the event of an acquittal. However, for aggrieved prosecutors with deep pockets, recovering the costs that may be incurred in bringing such an action may not be of great importance. In those cases, the risk of judicial criticism may provide a stronger deterrent effect.

For further insights into the issues which may arise where private prosecutions and civil proceedings interact, listen to our webinar which we hosted together with the Private Prosecutors’ Association.

“Continuing the battle in the criminal courts”

In the case of R (on the application of Deripaska) v the DPP, the Claimant issued a claim form seeking judicial review of the DPP’s decision to take over and discontinue his criminal prosecution of Vladimir Chernukhin for perverting the course of justice. This offence was alleged to have been committed during the course of hard fought and complex arbitration and civil proceedings to which they were both parties, and in which Mr Chernukhin was ultimately successful. Permission to apply for judicial review was refused on the papers by a High Court Judge, after which the Claimant renewed his application at an oral hearing in the Administrative Court. The Administrative Court upheld the outcome of the on-paper application and dismissed the claim.

The DPP had taken over and discontinued the prosecution because, whilst there was sufficient evidence against Mr Chernukhin to provide a realistic prospect of conviction (the first stage of the full test set out in the Code for Crown Prosecutors), a prosecution was not needed in the public interest (the second stage of the test). A key reason for this decision was the finding of Mr Justice Teare in the prior Commercial Court proceedings that “…there was good reason to doubt the honesty of each of the principal actors in this case”. Also relevant was the fact that the harm to Mr Deripaska by the alleged act was, arguably, negligible. Although legal costs would be borne by the parties, the expense to the public purse incurred by the use of Court time, the empanelment of a jury and a comprehensive independent review of the case would be disproportionate. The Administrative Court agreed with the High Court Judge, who noted in particular that “the claimant’s private prosecution had all the hallmark[s] of a party in the civil courts continuing the battle in the criminal courts”.

Private prosecutions for an improper purpose

In Asif v Ditta and Riaz, the Court of Appeal upheld a Crown Court decision to stay criminal proceedings initiated by private prosecution as an abuse of process. In this prosecution, Mr Asif alleged various offences including fraud, theft and concealing or transferring criminal property, in relation to business dealings he and a Mr Gohir had carried out with the defendants. Notably, neither Mr Asif nor Mr Gohir had brought civil proceedings against the defendants, although the facts alleged gave rise to civil causes of action.

The Court of Appeal was satisfied that the criminal proceedings were an abuse of process, primarily on the basis that the overriding aim of the prosecution was to exert leverage on the defendants. Leading counsel for the prosecutor had in fact admitted to the Court in a hearing for a restraint order that “at the end of the day … he wants his money back and … the criminal courts are ideally suited to catering for the ultimate remedy of the return of his funds …”. While it is well-established that a private prosecutor can have mixed motives, here there was no evidence that the prosecutor had any intention to serve the public interest. Where the sole aim of litigation is to recover damages, the civil courts are the correct forum. In addition, it was clear that Mr Asif was acting as a “front man or proxy prosecutor” for Mr Gohir, the true moving force behind the prosecution, which added to the abuse. The Court of Appeal ordered that both Mr Asif and Mr Gohir were liable for costs, in view of the improper primary purpose of the prosecution, the deceptive approach taken in relation to Mr Gohir’s role, and the failure by Mr Asif to meet the high standards of conduct required of private prosecutors.

Private prosecution not vexatious despite background civil dispute

In R (on the application of Smith-Allison) v Westminster Magistrates’ Court, the Administrative Court overturned a decision of the Justice of Peace (JP) to refuse to issue summonses instituting a private prosecution. Here, the prosecutor alleged offences of false imprisonment and assault during an altercation relating to a civil dispute. The JP, having found that the threshold test for issuing a summons was met, including that the elements of the offences were prima facie present, nevertheless concluded that the application for the summonses was vexatious. The grounds for this decision included that the JP consider the matter to be civil in nature – the Claimant had told the police on the scene that it was a civil matter, the incident was in issue in related civil proceedings, and the police and the CPS had declined to support or bring the prosecution.

The Administrative Court took a different view, emphasising that where the threshold test is met, the courts will be expected to issue a summons unless there are compelling reasons not to do so. The background dispute between the parties, and the related civil proceedings, did not prohibit the Claimant from accessing the criminal courts where (as the JP had found) the matters alleged amounted to criminal offences. What the Claimant had told the police at the time, and the view taken by the police in relation to the prosecution, were relevant context but could not be determinative. By contrast to Asif, this was not a case of improper motives, and the Administrative Court was satisfied that the public interest test was met.

The impact of failing to disclose a settlement agreement on a private prosecution

In R (on the application of Asim and Raed Siddiqui) v Westminster Magistrates’ Court, the Administrative Court overturned a decision to set aside a summons for a private prosecution and to stay the criminal proceedings that resulted from that summons. The Claimants in this case alleged that they were the victims of fraud, involving the forgery of documents. They had issued civil proceedings in the High Court to recover their losses, which were subsequently comprised under the terms of a settlement agreement. The agreement stated that the compromise payment would amount to full and final settlement of “all claims” the Claimants may have against the Defendant.

Later, the Claimants successfully applied for a summons to commence a private prosecution in relation to the same fraud. In the ex parte hearing of that application (i.e. a hearing where the Defendant was not present), the Claimants failed to disclose the settlement agreement to the Court, although this appears to have been on advice that doing so was unnecessary rather than a deliberate attempt to mislead the Court. The Defendant then applied for the summons to be set aside, and the District Judge agreed, on the basis that the Claimants had failed to comply with the duty of candour that applies in ex parte applications by neglecting to disclose the settlement agreement, and that the agreement arguably prohibited the Claimants from bringing criminal proceedings against the Defendant.

When the Claimants applied for a judicial review of the District Judge’s decision, the Administrative Court took the view, firstly, that the fact that the settlement agreement might preclude the Claimants from bringing criminal proceedings was not sufficient to set aside the summons. The District Judge would have had to make a positive determination that “all claims” under the agreement included a private prosecution, which he had declined to do. Further, while the Claimants were wrong not to bring the settlement agreement to the District Judge’s attention, this was not so fundamental an omission as to cause the criminal proceedings to become unfair or to prevent the Defendant from having a fair trial, not least because he had a copy of it and could deploy it in the proceedings. The Administrative Court considered that the strong public interest in having the Claimant’s serious allegations tried outweighed the breach of the duty of candour on the facts.

This article forms part of our Parallel Proceedings Autumn 2021 update.