News Private Prosecution 10th Oct 2019

Private Prosecution Group Newsletter

Welcome to the Autumn 2019 edition of 2 Hare Court’s Private Prosecutions Group Newsletter.

A range of topics is covered by members of 2 Hare Court’s experienced Private Prosecution practitioners in this latest edition.

 

Oliver Glasgow QC and Hannah Thomas look at recent changes aimed at the regulation of private prosecutions in the Criminal Procedure Rules, the ‘Code for Private Prosecutors’ and the new PTPH 2 form in the Crown Court.

Brian O’Neill QC and Lewis MacDonald consider the Divisional Court’s reasoning for quashing the issue of summons against Boris Johnson.

Christopher Coltart QC and Grace Forbes look at the investigatory hurdles that confront the private prosecutor and examine how they can be overcome by a creative and more careful approach.

Julia Faure Walker examines the case of Re Somaia in which it was held that a private prosecutor may not recover from central funds costs incurred in enforcement proceedings brought under section 80 of the Criminal Justice Act 1988.

Leon Kazakos and Gavin Irwin explore the ramifications for private prosecutors of the Court of Appeal (Civil Division) judgment in Thakrar v Crown Prosecution Service.

As always we welcome feedback and suggestions for future editions which can be submitted to our Marketing Manager, Julia Fox. Equally, please do forward this newsletter to any colleagues who may be interested. They will be able to subscribe to future editions by clicking here.

We hope that you find the edition of interest.

David Whittaker QC
Editor


Increasing Regulation of Private Prosecutions

Oliver Glasgow QC and Hannah Thomas

We are currently living in an era where private prosecutions are fast becoming commonplace.

The past few years have seen a significant rise in the number of prosecutions brought privately, particularly in cases involving fraud. Whether this is the result of police indifference to financial crime or whether the private prosecutor simply has more energy to devote to their case is unclear; but what is clear is that private prosecutions are becoming a regular sight in Crown Court lists.

As the frequency of private prosecutions has increased, so too – understandably – has the regulation of them. Over the last 18 months the courts and the law have been adapting to private prosecutions and ensuring that they are properly controlled.

This article will explore three relatively recent changes aimed at the….

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No Go v Bojo

Divisional Court’s reasoning for quashing issue of summons against Boris Johnson

Brian O’Neill QC and Lewis MacDonald

On 3 July 2019 the Divisional Court (Rafferty LJ and Supperstone J) handed down its reasons for the decision to overturn the issuing of a summons against Mr Boris Johnson in one of the most high profile decisions in a private prosecution to date.

By way of background for those mercifully divorced from political news, the crowd funded private prosecutors, Brexit Justice Ltd and Marcus Ball, sought to prosecute Mr Johnson for the offence of misconduct in public office in relation to his oft repeated claim during the EU referendum that the UK sends £350 million a week to the EU.  It was said that Mr Johnson was perfectly aware that this was a grossly inflated figure, and therefore he had committed the offence.

Rather than issuing the summons on the papers, District Judge Coleman held a full oral hearing, before deciding to….

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Investigatory Powers in Private Prosecutions: Hurdles and Opportunities

Christopher Coltart QC and Grace Forbes

The tension: Greater profile, no greater powers

Private prosecutions are on the up, both in terms of volume and profile. This is in part thanks to high profile private prosecutions, such as the headline-grabbing but ill-fated prosecution of Boris Johnson. It is also the consequence of the cuts that have worn away at the CPS, police and other agencies: where a void has been left, private prosecutors have stepped in to fill it.

Whilst not escaping all criticism (many worry that attempts such as Ball v Johnson, [2019] 5 WLUK 457 may actually damage credibility), private prosecutions have been recognised as playing a welcome and important role in criminal justice, particularly in times of austerity.

The Court in Scopelight v Chief Constable of Northumbria Police Force [2010] QB 438 emphasised the public interest that exists in private prosecutions and those involved in the court system have observed an increase in the number of private prosecutions in recent years.

However, there is a tension in this area because…..

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Re Somaia and the recovery of costs in enforcement proceedings in the High Court

Julia Faure Walker

Introduction

It is clear that private prosecutors may pursue confiscation proceedings in the Crown Court: see David Whittaker QC’s article.  Furthermore, if successful, they can expect to recover from central funds costs incurred in such proceedings and in appeals against confiscation orders (although reference should be made to R (Virgin Media Ltd) v. Zinga for guidance on the amount likely to be recovered).

The position, however, is different in enforcement proceedings, according to the recent case of Re Somaia.  Although a private prosecutor may apply for a receiver to be appointed in respect of the defendant’s assets, he cannot recover from central funds any costs incurred in doing so.  Such proceedings are civil proceedings, and so there is no power to award costs from central funds.

Re Somaia concerned enforcement proceedings in the High Court, brought under section 80 of the CJA 1988.   As explained below, an argument could be advanced that…..

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Thakrar and the Ramifications for Private Prosecutions

Leon Kazakos and Gavin Irwin

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….

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