2 Hare Court Private Prosecutions’ Group Newsletter
Welcome to our first Private Prosecutions’ Group newsletter of 2021.
Brian O’Neill QC
No newsletter at the start of a new year would be complete without a review of the preceding one. And whilst 2020 was truly an annus horribilis, it was not without its developments in the world of private prosecutions as Fiona Robertson and Laura Stephenson explain.
Angus Bunyan and Grace Forbes discuss the role of the public interest in private prosecutions, including CPS interventions and challenges thereto, including the decision in Deripaska, in which Angus was one of the team of counsel representing the applicant.
And, Chris Foulkes undertakes a detailed review of the leading cases in the world of costs in private prosecutions, including a consideration of the Justice Select Committee’s recommendations on that topic.
As always, should you or any of your colleagues require any assistance or advice in this specialist area please do not hesitate to contact Julian Campbell or any member of the Private Prosecutions’ Group.
2020: The Year in Review
2020 was a year book ended by key judgments on costs in private prosecutions in which the courts were keen to emphasise the public interest in individuals and companies being able to pursue private prosecutions.
At the start of the year, in Fuseon Limited v Senior Courts Costs Office  EWHC 126 (Admin), Lane J ruled that it was reasonable in all the circumstances for a London firm, specialising in private prosecutions, to have been instructed by the prosecution, rather than using a local cheaper firm. Further, there was no legal justification for pinning the prosecutor’s recoverable costs to the level which would have been incurred by the CPS, although the use of such rates may be justified if the private prosecutor makes no attempt at the outset to involve the police and/or the CPS.
In July 2020, in R (on the application of Wollenberg) v Southwark Crown Court  EWHC 1915 (Admin), s.17 Prosecution of Offenders Act 1985 was considered and the following principle confirmed that costs should be paid from central funds (unless a lesser sum is appropriate) in a sum reasonably sufficient to compensate the prosecutor for any expenses properly incurred. There is a discretion to decline to make an order if for example the prosecution was started or continued unreasonably or there has been misconduct. The touchstone is objective reasonableness and proper conduct.
In October 2020 the issue of costs again arose in Murli Mirchandani v The Lord Chancellor  EWCA Civ, in which the Court of Appeal considered whether, on a true interpretation of s.17, a private prosecutor may recover out of central funds costs incurred in the enforcement of a confiscation order and costs which the prosecutor has been ordered to pay to a third party in the enforcement proceedings. Lord Justice Davis concluded that confiscation proceedings are part of the overall sentencing process and unquestionably “in respect of” an indictable offence. Enforcement proceedings designed to give effect to the confiscation order are thus also “proceedings in respect of an indictable offence.” An alternative interpretation would render confiscation orders “toothless” in the absence of adequate enforcement proceedings.
It is notable, in light of the conclusions of the Justice Select Committee Report, below, that the Court in both Fuseon and Mirchandani noted the public interest in the right to bring private prosecutions and that it would be a substantial deterrent to a private prosecutor initiating confiscation proceedings in the first place if they….
BREXIT MEANS BREXIT? The Private Prosecution of Foreign Defendants in the Post Covid and Post Brexit World
The Criminal Justice Act 1993 provides for wide rules of jurisdiction in prosecutions for acquisitive offences such as theft and fraud. To give one example, in a conspiracy to defraud, any act in furtherance of the conspiracy occurring in England and Wales (E&W) will give the court jurisdiction to try the whole conspiracy.
The Act therefore presents a powerful tool for the private prosecutor, given that a fraud of any substance in the 21st century is likely to be committed across jurisdictional borders. There are however enduring practical barriers if the defendant is not resident in E&W.
If the defendant can be served in the jurisdiction, no difficulty arises. Prosecutors will wish to consider whether there is any address in the jurisdiction which would be suitable for service under the Criminal Procedure Rules, or if the intended defendant might travel to E&W and be served personally here. If the summons can be served in E&W the defendant will have to attend court or face a domestic warrant.
If not, service abroad remains an option under the Crime (International Co-operation) Act 2003. The difficulty arises because a summons served abroad must not include any notice of penalty, no obligation to appear is imposed, and failure to comply with the summons will not result in a contempt of court and is not a ground for issuing a warrant.
An individual cannot be sent to the Crown Court without appearing in the Magistrates’ Court. If an individual defendant based abroad does not come to court and the case is not suitable for….
Private Prosecutions and the Public Interest
Those contemplating bringing a private prosecution may (and those instructed to conduct such proceedings will) be aware that the Director of Public Prosecutions (‘DPP’) has the power to take over the case and discontinue it at any stage by virtue of section 6 of the Prosecution Offences Act 1985.
However, accurately predicting (and advising upon) whether the DPP will or might exercise his discretion to intervene and discontinue in a particular case can be difficult. Whilst the application of the evidential test in these circumstances engages clear and familiar principles, which means that the likely outcome may be anticipated with a degree of confidence, forecasting whether a private prosecution is or may be vulnerable to discontinuance on public interest grounds can be particularly problematic. Successfully challenging adverse decisions taken on this ground is especially tricky. These issues are considered briefly below.
The test for discontinuance
What is the DPP’s stated policy? Guidance issued to CPS lawyers in 2009 makes it clear that the familiar two-limb test found in the Code for Crown Prosecutors (‘the Code’) should be applied:
‘a private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met’.
In the landmark case of Gujra, the Supreme Court held (albeit only by a 3-2 majority) that it was lawful for the DPP to apply the Code evidential test to private prosecutions and, therefore, to discontinue proceedings where the evidence is considered insufficient to make a conviction more likely than not (the ‘reasonable prospect’ or ‘better than evens’ test). Prior to 2009, the DPP would only halt private prosecutions on evidential grounds if no sufficient case was disclosed for the defendant to be called upon to answer, but the….
Recent developments in costs
A central consideration for anyone contemplating a private prosecution is the question of cost.
The cost of investigating and bringing a private prosecution may be very substantial. Even those with the deepest pockets will be keen to understand whether they are likely to be able to recover any or all of the funds expended in the event of a successful, or indeed an unsuccessful, prosecution. They would also be well-advised to be aware of the possibility that they may be liable for the defendant’s costs in certain circumstances.
2020 saw some significant developments in the field of costs in private prosecutions, both in the courts and in the Palace of Westminster.
The general principle
The fundamental governing principle on the recovery of a private prosecutor’s costs is that in relation to indictable offences, the court may order the payment out of central funds of such amount as it considers reasonably sufficient to compensate a private prosecutor for any expense properly incurred by them in proceedings: (Section 17(1) Prosecution of Offences Act 1985 (“POA”)). Where the court considers that there are circumstances that make it inappropriate for the prosecution to recover the full amount mentioned in section 17(1), an order must be made for the payment out of central funds of such lesser amount as the court considers just and reasonable (section 17(2)).
Any prosecutor may alternatively recover costs from a convicted defendant pursuant to section 18 POA. However, this is contingent upon the defendant being….