Newsletters Private Prosecution 26th Feb 2019

Jurisdiction: Substantial Measures and Relevant Events

As readers will doubtless recall, in R. (on the application of Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 Admin, a case concerning a private prosecution, Sweeney J, following R v West London Stipendiary Magistrate, ex parte Khan [1979] 1 WLR 933, DC, and subsequent authority, rehearsed the five key questions about which a magistrate must be certain before exercising his discretion to issue a summons.  These are:

(i) is the offence known to law,

(ii) if so, are the essential ingredients prima facie present,

(iii) is the offence not time-barred,

(iv) does the court have jurisdiction and

(v) does the informant have the necessary authority?

Assuming these five are answered affirmatively, the summons should be issued, absent any particular concerns, for example as to vexatiousness or abuse.

The question at (iv) is perhaps somewhat overlooked.  After all, the criminal jurisdiction of the English courts is a rather dry topic which rarely becomes a real issue in most proceedings.  If a case is investigated by the police and prosecuted by the CPS or SFO, one has some degree of comfort that basic points such as jurisdiction will have been properly and fairly considered.  Can the same be said of all prosecutions brought by a private individual or entity?  Is there not at least a risk of litigants ‘jurisdiction hunting’ and choosing the English court as a venue because of the right preserved by section 6 of the Prosecution of Offence Act 1985 rather than because the matter ought properly to be determined here?  Remember, far from all jurisdictions permit private prosecutions; for example, they are prohibited for federal offences and by many individual states in the USA, and France forbids them for serious offences.

Both those instructed to apply for a summons and draft charges and those representing potential defendants in private prosecutions in which at least some of the acts complained of are or may be extra-territorial must ensure at the very outset that the choice of venue is a proper one based on the available evidence and not on expediency.  This issue is most likely to arise in the context of fraud and like offences owing to their nature and to the fact they are very often the subject of a private prosecution.  What, then, are the essential points to remember?

The primary basis of English criminal jurisdiction remains territorial. This is easy to state, but it has long been acknowledged that real difficulties can arise where some elements of the offence occurred outside the jurisdiction and some within, obviously a common feature of fraud and other financial crime.  The leading modern authority on the point is R v Smith (Wallace Duncan) (No. 4) [2004] EWCA Crim 631, in which the then LCJ approved of the conclusion that English courts should:

“apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.”

In particular, there was, the court decided, no requirement that the ‘last act’ or completion of the offence took place in England.

The ‘substantial measure’ test remains good law, but the statutory provisions of Part 1 of the Criminal Justice Act 1993 are now the starting point for offences of dishonesty and fraud.  Inelegantly drafted, the key point for those offences listed in ‘Group A’ is that if any ‘relevant event’ (defined by s.2 as any act or omission or other event, including any result of one or more acts or omissions, proof of which is required for conviction of the offence) occurred in England and Wales, then the court will have jurisdiction.  What is demanded of those defending is a careful consideration of what the constituent acts of each offence are, paying close regard to the way in which the proposed charges have been particularised.

Special provision is made for offences under the Fraud Act 2006 which, as ‘conduct crimes’, do not include as a constituent element any resulting obtaining or loss; those ‘results’ would therefore not be ‘relevant events’ under s.2.  To address the prospect of a fraud conceived and executed overseas but targeting victims in this jurisdiction escaping criminal sanction, s.2(1A) states that for Fraud Act offences a ‘relevant event’ includes any occurrence of gain or loss.  Note, however, that if a fraudster acting abroad intended to cause loss in England but failed to do so, s.2(1A) will not bite.  Nor does it deal with the position where a victim in England has been exposed to a risk of loss by the activities of a person outside the jurisdiction.

‘Group B’ caters for conspiracies and attempts to commit ‘Group A’ offences and for conspiracies to defraud.  The jurisdiction given to the English court in respect of the latter common law offence is particularly wide: the contemplated fraud does not even have to be intended to take place in England and Wales, so long as its pursuit would involve conduct constituting an offence in the place where it is intended to take place (s.6).  Additionally, it must be proved that a conspirator (or agent) joined the conspiracy, or did something in relation to the agreement before its formation, or did or omitted anything in pursuance of the agreement after its formation whilst in England and Wales (s.5).

What if the evidential footprint within this jurisdiction is slight; if there is some evidence which might on a narrow view satisfy the test in Smith or the statute but the bulk of the relevant activity took place abroad?  If defending, one could appeal to the concept of international comity, per Smith, although seeking to persuade a magistrate that the proceedings might offend the right of another state to enforce the criminal law in its own territory might be judged a somewhat academic approach.

A more fruitful idea in the appropriate case might be to rely on the fact that little of the alleged offending took place within this country as support for any wider submissions that the proceedings are in reality driven by improper motive and that consequently the summons should not be issued or should be set aside / stayed as an abuse of the process of the court.

Angus Bunyan

Sajid Suleman

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