Newsletters Criminal Prosecution - Private 17th Sep 2018

Private Prosecution Newsletter

Welcome to this inaugural edition of 2 Hare Court’s Private Prosecutions Group’s newsletter; we hope that it finds you refreshed after a summer break.

In this edition:

Oliver Glasgow QC and Lewis MacDonald write about the gathering of evidence with a view to bringing a private prosecution, suggesting that private prosecutors should have greater investigatory powers, possibly under the supervision of the court to do so;

David Whittaker considers another early stage topic, namely restraint proceedings in private prosecutions;

Julia Faure Walker and Hannah Thomas review the various authorities on whose name a private prosecution may or should be brought in;

Christopher Coltart QC and Sarah Przybylska write on disclosure analysing how those representing the private prosecutor should ensure that full disclosure obligations are met;

Jonathan Rees QC and Fiona Robertson consider the recent case law on mixed and ulterior motives and how the private prosecutor can stay on the right side of the line; and,

Vivienne Tanchel reflects upon the lessons to be learned from defending in a major private prosecution, Allseas v Sultana in which she and Martin Hicks QC defended, being prosecuted by Jonathan Laidlaw QC.

We hope you find this an interesting and informative document and should you require any further information about our expertise in this field please do not hesitate to contact our Director of Clerking, Julian Campbell.

Best,

Brian O’Neill QC
Head, 2 Hare Court, Private Prosecutions Group


Private Investigations

Oliver Glasgow QC & Lewis MacDonald

While many private prosecutors will already have all of the evidence they need to commence proceedings some will need to supplement it through further investigatory measures. Whilst private prosecutors may not enjoy the plethora of powers available to their public counterparts, they still have access to an important armory which can be effective when properly and carefully used. In order to ensure that any evidence obtained is admissible, it is essential, therefore, that such steps to obtain further evidence are undertaken promptly and with a sound knowledge of the law and procedure which will govern the use of that material in a criminal prosecution. It is essential to take legal advice at the earliest possible stage…

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Restraint, Confiscation and Compensation in Private Prosecutions

David Whittaker

Confiscation / Compensation

In R (Virgin Media Ltd) v Zinga [2014] EWCA Crim 52, the Court of Appeal confirmed that a private prosecutor could institute confiscation proceedings by inviting the court to proceed under section 6 of the Proceeds of Crime Act 2002 (POCA).

Virgin Media Ltd had commenced a private prosecution against the defendant who was illegally selling set top boxes which allowed customers to obtain their media services without payment. It was estimated that Virgin’s lost revenue as a result of the fraud was £380 million. The defendant was convicted of conspiracy to defraud and sentenced to 8 years’ imprisonment…

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Who is the Private Prosecutor?

Julia Faure Walker & Hannah Thomas

By section 6 of the Prosecution of Offences Act 1985, Parliament reaffirmed, albeit in qualified terms, the right of “any person” to bring a prosecution. Part 7 of the Criminal Procedure Rules 2015, providing for the commencement of a prosecution, refers to “a prosecutor” laying an information.

A named individual

At first blush, it appears as though the prosecutor must be an individual. Common practice dictates that these provisions do not preclude a corporate body or limited company from initiating a private prosecution – but does the prosecutor, named on the Charge Sheet or Indictment have to be an individual person?

Schedule 1 to the Interpretation Act 1978 defines “person” as including a “body of persons unincorporate […] unless a contrary intention appears.” However, in Rubin v DPP [1990] 2 QB 80 the court concluded that the above provision of the Interpretation Act 1978 did not apply to the laying of an information and therefore to the bringing of a prosecution…

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Disclosure In Private Prosecutions

Christopher Coltart QC & Sarah Przybylska

Disclosure responsibilities

There are two areas of responsibility: the responsibility to record and retain prosecution material and the responsibility to review and disclose prosecution material. “Prosecution material” is defined in section 3(2) of the Criminal Procedure and Investigations Act 1996 [‘CPIA’] as material:
(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or (b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.

Where the state prosecutes a case, the recording function is undertaken by a police disclosure officer and the reviewing function by a government lawyer, sometimes advised by prosecution counsel…

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Mixed & Ulterior Motives

Jonathan Rees QC & Fiona Robertson

The statutory right to bring a private prosecution, under s.6(1) of the Prosecution of Offences Act, is a rapidly expanding area of criminal law, particularly in matters involving economic crime where white collar private prosecutions allow aggrieved parties to seek redress in the criminal courts, often in tandem with civil proceedings.

Prospective defendants are, however, alive to oblique or ulterior motives behind a private prosecution and will criticise such motives to try and bring a private prosecution to a premature end either by seeking to persuade a magistrate not to issue a summons or to withdraw it; applying to stay the proceedings as an abuse of process; or inviting the CPS to take over the case and discontinue it…

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Defending Private Prosecutions: Lessons To Be Learned

Vivienne Tanchel

On 11th June 2018, after a re-trial lasting some six weeks, Mr Paul Sultana was convicted of one count of conspiracy to defraud Allseas SA Limited. The allegations arose out of a convoluted scheme which had offered Allseas significant returns on an investment of €100 million in 2011. When the deal unravelled, Mr Sultana was arrested by the police and interviewed. The CPS went on to charge and prosecute one of his co-conspirators for money laundering but decided not to proceed against Mr Sultana. Allseas, was dissatisfied with this decision and decided to bring its own prosecution. This became the largest private prosecution ever brought in the United Kingdom.

Private Prosecutions for fraud have increased exponentially in the last five years as financial pressures on the justice system have taken hold and the growing trend has raised concerns of a “two-tier” system of justice for complainants in which if you have the funds to prosecute a case which the State has not pursued you have the opportunity to do so; if you do not, you are stuck with any decision made that the matter should not be prosecuted…

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