Summonses & Settlements: A Road Map Through the Thicket
Guidance from the High Court on the duty of candour in applying for a criminal summons; abuse of process, and whether a party can contract out of its right to bring a private prosecution
In June of this year, the High Court (Mr Justice Garnham, with whom Lord Justice Popplewell agreed) handed down its judgment in The Queen (on the application of Asim Siddiqui and Raed Siddiqui) v Westminster Magistrates’ Court v Bakhtiar Abbasi  EWHC 1648 (Admin).
The Claimants are brothers, Mr Asim Siddiqui and Mr Raed Siddiqui, who allege that they are victims of a fraud perpetrated by a member of their extended family, Mr Abbasi. They claim that, in reliance on Mr Abbasi’s false representations that he was a successful property trader, they transferred £7.66 million to him to be invested. Of this, it is said they received back some £3.6 million and accordingly lost approximately £4 million as a result of his fraudulent scheme.
The Claimants sought to recover their losses by a claim for damages in the High Court. Those proceedings were compromised by a settlement agreement dated 22 February 2018, which stated that it was “in full and final settlement of…all claims” that the two brothers had against Mr Abbasi and/or his company. It also stipulated the amount to be paid over by Mr Abbasi in order for the settlement to be concluded.
On 6 February 2019, the Claimants, via their solicitors, Scarmans, laid an information before Westminster Magistrates’ Court, alleging charges of fraud and forgery against Mr Abbasi. In applying for the summons, they did not disclose the settlement agreement to the District Judge. It was subsequently accepted by the Claimants that they should have done so. Their case was that Scarmans, having viewed the document, advised that it did not need to be disclosed to the Court on the application for the summons. That application was granted and Mr Abbasi subsequently applied to set the summons aside on the ground that the settlement agreement, which he contended precluded any prosecution, had not been disclosed to the Court.
The application to set aside
On 5 December 2019, the same District Judge who had heard the original application for the summons, heard the application to set it aside. On 24 January 2020 he handed down his ruling. In summary, he held that the Claimants (ie. the respondents to the application to set aside) had been in breach of their duty of candour by failing to bring the settlement agreement to his attention when applying for the summons. If he had been aware of this agreement, he would not have issued the summons. He found that it is open for a private prosecutor to restrict their right to bring a prosecution against a party by a written agreement, and that Mr Abbasi’s argument that this is what had been agreed was “not fanciful”. The District Judge went on to stay the criminal proceedings as an abuse of process.
The Claimants appealed by way of judicial review.
The High Court
The three grounds of challenge advanced by the Claimants in the High Court were that the District Judge had erred in law:
- by interpreting the term “all claims” in a settlement agreement between the parties as extending to criminal proceedings;
- by characterising the failure to disclose as fundamental in circumstances where he made no finding as to how this had come about, and where all the evidence before the Court was that this was not a deliberate attempt to suppress the agreement; and
- by finding that the remedy of a stay was a proportionate outcome (once the settlement agreement had been disclosed, there was no unfairness in allowing the proceedings to continue).
Although the High Court agreed with the District Judge that it was open to the Claimants to restrict their ability to commence a private prosecution, it found that they had not done so in this particular case.
In addition, the approach taken by the District Judge (namely that in order to set the summons aside, it sufficed that it was arguable that the settlement excluded the ability to bring a private prosecution) was not, as a matter of law, enough to set the summons aside.
Whilst the High Court found that the failure to disclose the settlement agreement had been deliberate, “in the sense that it was the result of a deliberate decision” (para 52), there was no proper basis for the District Judge to conclude that the Claimants or their solicitors intended to mislead him by keeping back a document they knew was relevant to the decision.
Whilst the High Court accepted that the failure to disclose the agreement could be seen as fundamental, in the sense that it went to the “heart of the obligation of candour in this case”, it could not fairly be said to have been “fundamental to the fairness of the proceedings”. In reality, “Mr Abbasi had a copy of it and would have been able to deploy it at subsequent stages of the proceedings” (para 53).
On this ground, the Court found that the District Judge’s conclusion that this breach of the duty of candour was fundamental, so to require the quashing of the summons, was an error of law.
The Court found that the Claimants’ failure to disclose the settlement agreement did not mean that Mr Abbasi could not have a fair trial. The Court noted there was nothing to suggest the Claimants intended permanently to keep the settlement agreement from the Court, and in any event they could not have done so as Mr Abbasi already had a copy.
The Court further ruled that “the fact that it was not disclosed when it should have been when the summons was first sought, could not taint the conduct of the subsequent trial” (paragraph 58) and observed that a stay “is not imposed as a disciplinary measure against a prosecutor, except in the most serious of cases”, which this was not (paragraph 59).
The judgment supports the contention that parties can contract out of the right to bring a private prosecution, although the same clearly does not apply to a public prosecution. It also reiterates the importance of the duty of candour on any applicant for a criminal summons, but indicates that a breach of this duty is not necessarily fatal. Much in the end will depend on whether the failure to disclose was accidental, negligent or designed to mislead. The judgment further emphasises, in a review of the relevant case law at paragraphs 55 and 56, that a stay of criminal proceedings is a remedy of last resort.
An important decision for all criminal practitioners.