The Duty of Candour: “its importance cannot be overstated”
All right thinking practitioners who work in the field of private prosecutions will welcome this important decision which reaffirms (as if reaffirmation was needed) the duty of candour upon all prosecutors, public and private, when applying ex parte for a summons.
On 23 May 2018 the Division Court (Gross LJ and Sweeney J) gave judgment in the case of R (on the application of Kay and another) v Leeds Magistrates’ Court and Another restating with unmistakable clarity the obligations of a prosecutor (public or private) when applying for ex parte summonses in the Magistrates’ Court. In what can only be described as a clear rebuke to the Private Prosecutor, the court made it crystal clear that when ex parte summonses are being applied for the prosecutor’s duty of candour was “the foundation stone upon which such decisions are taken.”
Mr Marek Karwan (“Mr Karwan”), the Private Prosecutor, sought to have summonses issued by Leeds Magistrates’ Court in respect of four fraud charges. The basis of the allegations were that Mr Karwan, (on behalf of the company Adriana SA (“Adriana”)) and Mr Kay (on behalf of the company, Scan-Thors (UK) Limited (“Scan-Thors”)) had entered an agreement in Poland. At some point the business relationship soured.
Mr Karwan believed that untrue or misleading representations had been made to Adriana, namely that Scan-Thors required a 5% discount upon furniture products that Adriana was supplying because the ultimate customer required such a discount. It was alleged that this was done to make a gain and to expose Adriana to a risk of loss.
A ‘settlement agreement’ was signed before the Private Prosecution was started by Mr Karwan personally, and on behalf of Mr Kay and Scan-Thors, which was intended to settle all civil and criminal claims.
The ‘settlement agreement’ was not brought to the attention of the District Judge at Leeds Magistrates’ Court.
Mr Kay and Scan-Thors applied to have the summonses set aside on the basis that it was an abuse of process. The District Judge refused their application.
The Divisional Court
In his judgment, Sweeney J found that:
- A decision as to whether to issue a summons is a judicial function involving the exercise of a discretion which is subject to control by judicial review. Restating the well known principles in ex p. Klahn it was incumbent on a Magistrate to determine at a minimum that:
- the offence alleged is known to law and that the essential ingredients of the offence are prima facie present;
- the offence alleged is not out of time;
- the court has jurisdiction;
- the informant has the necessary authority to prosecute.
- In addition the Magistrate should consider whether the allegation is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay) or is an abuse of process or otherwise improper and whether the applicant has previously approached the police. Whilst the proposed defendant has no right to be heard the Magistrate has the discretion to hear him if he considers it necessary to do so in order to make a decision.
- 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 including the duty to ensure that all relevant material is made available both for the court and the defence. Importantly, advocates and litigators 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.”
- The duty of candour is “the foundation stone upon which such decisions [the grant of summonses] are taken” adding that “its importance cannot be overstated.” Following a thorough review of the relevant authorities and citing the pithy test expressed by Hughes LJ (as he then was) In Re Stanford International Bank Limited:“…In effect a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge…The guiding principles incumbent upon a prosecutor were restated as follows:
- A duty not to mislead the court in any material way;
- A duty to disclose to the court any material which is potentially adverse to the application or might militate against the grant of a summons; and
- A duty to disclose to the court any matters which indicate that the grant of a summons might be inappropriate.
- In this case the ‘settlement agreement’ which had been reached between Mr Karwan and Mr Kay should have been put before the District Judge because of the undertaking contained within it not to prosecute the issues.
- The District Judge had power to quash the summonses for breach of the duty of candour (whether this fell under the umbrella of abuse of process or ought to have been dealt with in its own right). If the Divisional Court was wrong about whether the District Judge had that power, the Divisional Court would have quashed the decision and the summonses in any event.
This important decision reinforces the importance of the duty of candour when bringing a Private Prosecution. A Private Prosecutor, or his lawyers, who fails to comply with this obligation, and for which the information withheld was material to the exercise of the judicial discretion, is liable to have the summonses issued set aside or quashed.
This judgment is a salutary warning of the danger of failing to make full and frank disclosure and has consequences not just for the Private Prosecutor but also for the advocate or litigator who fails to do so.
Brian O’Neill QC
2 Hare Court
25th May 2018