Newsletters Private Prosecution 17th Sep 2018

Mixed & Ulterior Motives

The statutory right to bring a private prosecution, under s.6(1) of the Prosecution of Offences Act, is a rapidly expanding area of criminal law, particularly in matters involving economic crime where white collar private prosecutions allow aggrieved parties to seek redress in the criminal courts, often in tandem with civil proceedings.

Prospective defendants are, however, alive to oblique or ulterior motives behind a private prosecution and will criticise such motives to try and bring a private prosecution to a premature end either by seeking to persuade a magistrate not to issue a summons or to withdraw it; applying to stay the proceedings as an abuse of process; or inviting the CPS to take over the case and discontinue it.

The Courts have, however, been clear that a private prosecutor’s personal interest in a case need not spell the end of a private prosecution. In R. v Bow Street Metropolitan Stipendiary Magistrate Ex p. South Coast Shipping [1993] Q.B. 645, for example, it was argued that the private prosecutor, the husband of a victim of the Marchioness disaster, wanted a full public inquiry and, therefore, had an improper motive in launching the prosecution. That was rejected on the basis that a desire to see the defendant prosecuted was not an improper motive and, even if the prosecutor’s motives were mixed, “the court should be slow to halt a prosecution unless the conduct of the prosecution is truly oppressive.

The concept that mixed motives were permissible was developed in the oft cited case of Dacre v City of Westminster Magistrates’ Court [2008] EWHC 1667 (Admin) in which it was emphasised that the mere presence of an indirect or improper motive in launching a private prosecution did not necessarily vitiate it. Parallel criminal and civil proceedings may, therefore, be permissible provided to do so is fair and proportionate and the decision is not based solely on an improper motive.

The issue of ulterior motives as a basis for staying applications as an abuse of process have recently been reconsidered by the Court of Appeal which has emphasised that this is a distinct argument from allegations of improper conduct by a private prosecutor. In D Limited v A and Others [2017] EWCA Crim 1172 the applicant, a limited company, appealed a terminating ruling staying a private prosecution alleging fraud against a number of individuals. The proposed defendants had succeeded in staying the proceedings at first instance relying on fierce criticism of the motives and conduct of the applicant, specifically that it had “a lack of open mind, bias, prejudice and vindictiveness”.

In staying proceedings the trial judge appears to have had concerns that the public interest was not being furthered by the pursuit of what were essentially highly complex commercial proceedings, in relation to matters dating back a number of years, and when civil proceedings were available.

The Court of Appeal recognised that there had been a growth in recent years in private prosecutions particularly in complex fraud cases where, in reality, the public authorities sometimes lack the resources to commence a public prosecution. The Court of Appeal noted that the applicant had the statutory right to bring the private prosecution, had only commenced it after the Police and Serious Fraud Office had both declined to investigate further and observed that mixed motives may often be present in many prosecutions – public prosecutions will be brought in the public interest but the actual complainant may be accused of ulterior motives, such as seeking revenge after a relationship has failed.

The Court of Appeal emphasised that the question of why an applicant initiated a private prosecution is distinct from the issue of how they are conducting it – the predominant motive in this case of seeking retribution from defendants who the applicant was convinced had engaged in a substantial criminal fraud was not improper; on the contrary the punishment of alleged criminality was a facet of the pursuit of justice which is itself the rationale for the statutory right to bring a private prosecution.

The Court further emphasised that a mixed motive in bringing the prosecution was a separate consideration to any alleged improper conduct by the private prosecutor in the course of the investigation such as failing to disclose material – in the latter case, the question will be what prejudice has arisen and whether this can be cured during the trial process such that a prospective defendant can have a fair trial.

Where there are parallel civil proceedings or indirect motives, however, it is crucial that the private prosecutor makes full and frank disclosure thereof when applying for a summons and fully complies with its disclosure obligations in respect of material which may undermine the prosecutor’s case or assist the defence case (R (on the application of Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin)).

In R(G) v S and S [2017] EWCA Crim 2119 the Court of Appeal further distinguished mixed and ulterior motives clarifying that “mixed motives are to be distinguished from an oblique motive which is so dominant and so unrelated to the proceedings that it renders them an abuse of process”. The Respondents argued that the fact that the applicant did not request the police to undertake the burden of the investigation could support a stay of proceedings. This was wholly rejected by the Court of Appeal which noted that the applicant had approached the police and CPS who found the evidential and public interest tests satisfied but did not seek to take over the prosecution. The applicant’s primary concern was that the CPS should not take over and terminate proceedings but he was content for them to take over and continue the proceedings whilst being prepared to continue them himself. The Court of Appeal stated that “the applicant was entitled to run the proceedings though his own lawyers if he wished and not to call upon the police to investigate further if he thought fit” and a court would be slow to interfere with the CPS’s assessment where it had properly considered the matter and decided not to take it over.

The case law illustrates that defence practitioners are alive to the potential for vexatious or improper private prosecutions and will be quick to attempt to derail such prosecutions. The possibility of a private prosecution being prematurely ended through one of the methods set out above can be guarded against by an experienced, independent legal team ensuring compliance with the duty of candour, being alive to any oblique motives, ensuring disclosure is properly managed and that the prosecutor-client understands why this approach is ultimately in her/his best interests. Advocates and litigators must abide by their professional codes and duties owed to the court and observe the highest standards of integrity, of regard for the public interest and duty to act as a Minister of Justice (Zinga [2014] 1 Cr. App. R. 27). If such steps are followed a mixed motive on the part of the lay client or tandem civil proceedings will not spell the end of the private prosecution.

Jonathan Rees QC & Fiona Robertson

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