Newsletters Private Prosecution 1st Feb 2021

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 summary trial, the Magistrates’ Court cannot send the case to the Crown Court, and cannot issue a warrant.  The prosecutor is faced with a dead end.

The prosecutor must therefore carefully consider what they wish to achieve through the service of such a summons.  It will not necessarily be futile though:

  1. It may be that reputational considerations, or the desire to travel to E&W in the future, will persuade the defendant to appear.
  2. This is made easier by the Coronavirus Act 2020, which temporarily allows for appearance by video link, including from a foreign country.
  3. If the defendant does decide to appear, jurisdiction can be accepted in the Magistrates’ Court, or the case can be sent to the Crown Court. Any subsequent failure to appear is likely to result in a warrant under the Bail Act, and trial in absence.
  4. A foreign company can be tried and sentenced in the Magistrates’ Court, or sent to the Crown Court and tried and sentenced there, without anyone appearing or entering a plea on its behalf (MCA 1980, Schedule 3).

How does the UK’s exit from the European Union affect the situation?  In short, only where it has proved possible by one of the above routes to obtain a domestic warrant for a foreign defendant’s arrest.  It used to be that the authorities could then obtain a European Arrest Warrant (EAW) with a relatively simple procedure, albeit the private prosecutor could not do that themselves and had to rely on the co-operation of a constable or appropriate person under the Extradition Act 2003.

Given the UK’s exit from the EAW system, extradition even from an EU country will now be a more cumbersome process.  Whether the authorities will be willing to undertake it based on a domestic warrant issued in a private prosecution remains to be seen.

This is unlikely to be the end of the story.  The mutual assistance landscape is bound to be reviewed in the foreseeable future.  Could this present an opportunity to reassess the increasing importance of private prosecutions, and address the difficulties outlined above which a court could face where a wrongdoer who has committed an offence in the jurisdiction willingly absents themselves right at the outset of proceedings?

As ever, but particularly in this complex area, the right legal advice obtained early will pay dividends to both potential prosecutors and defendants.


Christopher Coltart QC & Lewis MacDonald


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