Thakrar and the Ramifications for Private Prosecutors

In Thakrar v Crown Prosecution Service [2019] EWCA Civ 874, the Court of Appeal (Civil Division) ended any hopes of resurrecting a private prosecution for the alleged theft of industrial quantities of plastics and gave guidance as to the limits of appellate jurisdiction in the context of judicial review in private prosecutions.

The case had its roots in a civil action brought by one part of a Russian group of companies (‘Jamtoff’) over the failure of a UK company to pay for consignments of plastics shipped from Kalingrad. Although letters of credit had been sought to guarantee payment, two consignments of plastics were dispatched prior to confirmation that the relevant letters of credit had been issued and received.  A further error or misunderstanding, relating to the bills of lading, meant that the UK company was able to take delivery without payment being made.  Jamtoff commenced civil proceedings against the finance company and officers of the UK company.

The High Court found that the UK company had intended to pay for the plastics at the time of purchase but upheld a claim against the defendants for fraudulent misrepresentation and awarded damages. A private prosecution was brought against an expanded group of defendants.  The private prosector asserted that it had not simply suffered loss but also that the UK company had obtained the goods and the proceeds of sale of the goods without intending to pay for them. Summonses for theft, fraud and fraudulent trading were issued but the charges later reduced to two counts of theft.

The defence asked the Director of Public Prosecutions (‘DPP’) to take the case over and to discontinue because neither limb of the prosecutorial test was met. The DPP took time to consider while the proceedings continued and applications to dismiss and applications to stay on grounds of abuse of process were served.  Eventually, on the eve of trial, the DPP took the case over and discontinued against all defendants

The applicant sought to judicially review the DPP’s decision.  Permission was not granted and the private prosecutor sought to appeal to the Court of Appeal Civil Division.

In July 2018, in R (on the application of Belhaj) v DPP [2018] UKSC 33), the Supreme Court considered the definition of proceedings in a “criminal cause or matter” (in the context of the Justice and Security Act 2013 s.6(11)), holding that it should have its “ordinary and natural meaning”.

Although the High Court has only very limited original criminal jurisdiction, it has an extensive criminal jurisdiction by way of review. Many decisions made in the course of criminal proceedings or in relation to prospective criminal proceedings are subject to judicial review and the jurisdiction extends, in principle, to the exercise of any official’s functions in relation to the criminal process. It also extends to the decisions of magistrates’ courts and to those of the Crown Court other than in relation to trial on indictment.

Considering the Supreme Court’s judgment in Belhaj, in Thakrar v CPS, the Court of Apeal (Civil Division) considered the Senior Courts Act 1981 s.18(1) which provides that no appeal should lie to the Court of Appeal “except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter”.

Of course, it could not sensibly be argued that there was no criminal cause or matter solely because the decision being challenged, on public law grounds, was a decision of the executive – it is necessary to have regard to the underlying subject matter of the proceedings.  Since the DPP’s decision, on any view, related to trial on indictment the Court of Apperal (Civil Division) had no trouble in finding that it had no jurisdiction to hear an appeal against the Administrative Court’s refusal of permission.

However, the Court (Davis LJ and Irwin J) went on to comment that that finding was less than satisfactory and made the following General Observations:

1. there could be no objection to an application for permission to apply for judicial review in a criminal cause or matter being dealt with by a single judge on the papers. Consideration should normally then be given to whether a Divisional Court would be appropriate for the hearing of a renewed application in a case involving a criminal cause or matter, especially where the case might be of potential importance or complexity (paras 42-44);
2. where a single judge of the Administrative Court refused permission on the papers AND certified the claim as totally without merit, that entirely precluded the right to a renewed oral hearing (under r.54.12(7)). Whilst in a civil case that did not preclude an application for permission to appeal to the Court of Appeal (under r.52.8), the situation was reversed in a criminal cause or matter (under s.18(1)). Consequently, in a criminal cause or matter, a single judge considering an application for permission to apply on the papers should be particularly circumspect (“chary”) in certifying as totally without merit (para.46);
3. in referring a matter for oral hearing, without adjudicating on whether permission should be given, the single judge should consider giving a direction or recommendation as to whether the application should be heard by a Divisional Court, particularly where there is to be a “rolled up” hearing (para.47);
4. the parties must identify, at an early stage, whether a criminal cause or matter was or might be involved and to identify the potentially applicable appeal routes. The Court and the court staff should also be alert to the position (para.49);
5. consideration should be given as to whether judicial review cases involving criminal causes or matters should, in modern times, be treated much more restrictively than the general body of civil cases (paras 50-51).

So despite the clarity of the court’s binary decision in relation to its jurisdiction in Thakrar, the lack of balance between the procedures for addressing civil and criminal decisions of the state, is ripe for review.

Martin Hicks QC and Leon Kazakos, instructed by Namita Pawa of Hallinans Solicitors, represented one of the UK company’s directors in the criminal proceedings.  Gavin Irwin, instructed by Katie Kipps of Hughmans Solicitors, represented another.

Leon Kazakos

Gavin Irwin