Private Prosecutions and the Need for Compelling Reasons Not to Issue a Summons
The Queen on the application of Smith-Allison v Westminster Magistrates’ Court (Defendant) and Mark Burn, Max Bull (Interested Parties) [2021] EWHC 2361 (Admin)
In a recent decision, the High Court upheld a claim for judicial review of a legal adviser’s decision to refuse to issue a summons in a private prosecution. The judgment emphasised the need for “compelling reasons” not to issue a summons where the threshold requirements had been met.
This is a useful decision for those considering bringing a private prosecution as it considers the issue of a “vexatious application” and what factors are and are not relevant to that.
It may also mark a shift in judicial attitudes to private prosecutions against the backdrop of a series of cases in which summonses have been quashed. However, the judgment also makes clear, as others have done before, that consideration of whether a summons can or should be issued will be highly fact specific.
The Facts
The claimants and interested parties became embroiled in a dispute following a Spice Girls exhibition in 2018. The claimants were involved in running the exhibition; the interested parties were the head of security and director of the venue. The dispute was sparked by debt issues and culminated in an allegation that the interested parties had assaulted the claimant and locked him (and others) in the venue.
The police attended but took no further action. The CPS declined to bring charges. Civil proceedings were initiated in respect of the money said to be owed by the claimants. Their response to the civil claim included reference to the circumstances of the incident.
The claimant sought to bring a private prosecution against the interested parties for offences of false imprisonment, aiding and abetting false imprisonment and assault. The court’s legal adviser authorised to consider the application refused to issue the summons[1].
The legal adviser’s reasoning appeared to closely follow the steps set down by the court in R (Kay) v Leeds Magistrates’ Court [2018] 2 Cr App R 27, at least in structure. He considered the “threshold requirements” had been met: he was satisfied that the offence was known to law, the essential elements of the offences were prima facie present, it was not time barred, the court had jurisdiction and the offences were not ones requiring any authority to prosecute. He concluded, however, that the application was “vexatious”, firstly with regard to “the evidential issues” and secondly because he considered it relevant that the incident had initially been described to the police at the scene as a “civil matter”.
The claimant applied for judicial review of the refusal to issue summonses on the basis that:
- The decision was perverse and Wednesbury
- The decision was vitiated by the fact that it took into account factors that were irrelevant to a lawful consideration of the claimant’s application.
The Ruling and Key Takeaways
The High Court upheld the application for judicial review.
The court reiterated the relevant test, namely that if the “threshold requirements”[2] have been met the summonses should be issued unless there are “compelling reasons” not to[3]. The test itself is not new but the particular focus on the nature and sequence of it is significant. The court found the legal advisor had failed to “expressly remind himself that the test he was bound to apply was whether there were compelling circumstances for not doing so”[4] (emphasis added).
Furthermore, the court found that the legal adviser had fallen into error in taking into account “irrelevant” factors. Although he had found that the evidence was sufficient to make out the offences, he had wrongly placed weight on its supposed inadequacies, observing “it will be difficult to obtain a conviction”. The court found that “such evidential issues as might arise could not demonstrate compelling grounds for not issuing the summons” (although the parties may have other remedies before the court in those circumstances). The court held that to have regard to the prospects of conviction was wrongly to equate consideration of an application for a summons with the Code for Crown Prosecutors and to “import a higher test”[5].
The court also held that the background of the civil dispute did not amount to a “compelling reason” to refuse the application. However, the court did not go so far as to say that a background of civil litigation would always be irrelevant. Whilst insufficient to amount to a “compelling reason”, the civil background was “part of the relevant circumstances [the legal adviser] was entitled to consider” [6].
The court also observed that the legal adviser had also considered “entirely relevant considerations” [7] such as the delay in bringing proceedings and the decision of police not to pursue the matter (the latter deemed relevant but not determinative). However, it held that reference to relevant considerations could not cure a decision that had been “tainted” by irrelevant ones[8].
What This Means for Prospective Private Prosecutors
Those considering bringing a private prosecution will be encouraged by elements of this judgment, especially given the emphasis on the need for “compelling reasons” not to issue a summons. Furthermore, the decision endorses previous dicta that “mixed motives do not of themselves necessarily vitiate the prosecution”[9] and makes clear that the background of a heated civil dispute is no bar to a private prosecution.
However, the judgment also makes clear that a determination of whether an application for summons is vexatious will be highly “case specific” [10] and is not easy to predict. Those contemplating bringing such proceedings will benefit from advice from those with experience and expertise in the area.
[1] The legal adviser was acting under rule 2.8(5A) of the Criminal Procedure Rules 2015 (as amended). The rule change, giving power to an “authorised Court Officer” to issue (or refuse to issue) a summons, was brought into effect on 6 April 2020, by the Criminal Procedure (Amendment) Rules 2020/32 r.3(e).
[2] As set out in Kay, 2018 and summarised above
[3] Para 58
[4] Para 57
[5] Para 58
[6] Para 61
[7] Para 64
[8] Para 64
[9] Para 48
[10] Para 64
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