Costs Against Private Prosecutor Upheld by Divisional Court, as Will Martin Successfully Represents Interested Parties in Judicial Review Proceedings
This case is likely to be of significant interest to all practitioners who prosecute or defend private criminal prosecutions.
Will appeared for the interested parties in both the Divisional Court and the Crown Court. Through a claim for judicial review, the private prosecutor sought to quash an order made in the Crown Court which required him to pay the costs incurred by the interested parties in defending the private prosecution.
The order for costs was made following a successful application pursuant to s.19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986. The regulations enable a court to order a party to criminal proceedings to pay the costs of another party to the proceedings if satisfied that the costs were incurred as a result of an unnecessary or improper act or omission.
The private prosecutor had alleged offences of blackmail and conspiracy to blackmail in connection with the sale of a residential property. Shortly after the plea and trial preparation hearing in the Crown Court, and following written representations made on behalf of the interested parties, the DPP had taken the case over and offered no evidence against them, having concluded that there was no realistic prospect of conviction. The interested parties were consequently acquitted of the charges and sought costs.
The claim before the Divisional Court turned on whether the private prosecution ever had a realistic prospect of conviction. Will argued, on behalf of the interested parties, that it did not, and had been brought without an objective assessment of the evidence. Will argued that in those circumstances the commencement of proceedings constituted an ‘improper act’ under the regulations.
The Divisional Court agree and the private prosecutor’s claim for judicial review was dismissed.
The Court found that a private prosecutor, just like a CPS prosecutor, has a duty to undertake an independent and objective analysis of the evidence before commencing proceedings to determine whether there is a realistic prospect of a conviction. The court emphasised the importance of private prosecutors striving to act objectively, and, in that regard, the relevance of a private prosecutor failing to report the allegations to the police, or engage impartial legal advice:
20… Because a private prosecutor will often have a private interest in the proceedings, he may lack the objectivity required to undertake such an analysis. Indeed, the objective private prosecutor will recognise the danger of his own lack of objectivity. It will often be prudent, therefore, to bring a proposed prosecution to the attention of the police or prosecution authorities and to take legal advice. While this is not a legal precondition to bringing a private prosecution, and a failure to do so is not in itself “improper”, it may give rise to an inference that a private prosecutor was determined to go ahead regardless of the prospects of success or, more mundanely, may simply indicate that no proper analysis of evidential sufficiency has been carried out.
However, and importantly, the Court cautioned against hindsight when assessing whether a case ever had a reasonable prospect of success:
17… We all have a tendency to suppose that what did happen was always going to happen, but all lawyers will have experienced cases which appeared at the outset to have good prospects of success, but which in the event proved to be utterly hopeless. hindsight.References in the cases to situations where the prosecution never had any prospect of success should be understood to mean that it was always clear on any reasonable view of the case, avoiding the perils of hindsight, that the prosecution could not succeed.
The case further emphasises the importance of private prosecutors engaging independent, impartial legal advice at the earliest possible stage.