Good news, bad news - costs in private prosecutions
We have previously written on the matter of likelihood of cost recovery in respect of private prosecutions, Good news, bad news - costs in private prosecutions, but return to this topic in light of the recent decision Re Somaia v Lord Chancellor  EWHC 1227 (QB).
Costs is an important issue in any litigation and, potentially even more so for the private prosecutor. It is important that private prosecutors and those that act on their behalf incur costs which are proportionate and reasonable such that they can be justified at the point of assessment. To summarise, in matters where there is a public interest in bringing the case, a private prosecutor will likely be entitled to recover their costs from central funds under section 17 of the Prosecution of Offences Act 1985.
The aforementioned aside, the current case examines the position in relation to costs which are ancillary to a private prosecution, and whether those costs are also recoverable.
In the instant case, the private prosecutor (‘Mr M’) brought a private prosecution in relation to fraud offences following which the defendant was convicted and sentenced to imprisonment. Mr M then pursued confiscation proceedings against the defendant in the Crown Court and a confiscation order was made in January 2016.
On application to the High Court for the appointment of a receiver of the defendant’s assets, the outstanding matters were largely settled and the remaining proceedings (concerning the defendant’s wife) were decided against Mr M.
Mr M applied for his costs under section 17, which Mrs Justice Jefford allowed (in her later judgment on 25 May 2018) on the basis that the section is worded in a sufficiently broad manner. At paragraphs 7 and 15, Mrs Justice Jefford stated, “…with some hesitation…” that:
(i) the present proceedings are "in respect of an indictable offence". They are not "criminal proceedings" but the wording of section 17(1)(a) of the POA 1985 is wider and encompasses these proceedings.
(ii) Part VI of the Criminal Justice Act 1988 confers jurisdiction on the Crown Court, under section 71, to make a confiscation order as part of the sentencing process. Section 80 confers jurisdiction on the High Court to appoint a receiver to realise the defendant's assets including by taking the steps in section 80(6). The purpose of the powers is set out in section 82 and the exercise of those powers may involve the identification of realisable property and the assessment of the value of a gift.
(iii) Confiscation proceedings, at least under the Proceeds of Crime Act 2002 ("POCA 2002"), are "proceedings in respect of an indictable offence" and the position should be the same under the CJA 1988 : R (Virgin Media Ltd.) v Zinga  EWCA Crim 2014 . Indeed, in this case, the prosecutor's costs have been ordered to be paid out of central funds both in the Crown Court and in the Court of Appeal proceedings in respect of [Mr S’s] renewed application for permission to appeal against the confiscation order (reported as Ketan Somaia v R  EWCA Crim 741)
(iv) Section 80 of the CJA 1988 provides a mechanism for enforcing the confiscation order in the High Court. The proceedings do not exist in a vacuum but exist solely to enable assets to be seized or received that have been obtained by or represent the benefit of the fraud. The proceedings are, therefore, "in respect of an indictable offence".
Mr M, correctly, sought to recover his costs and the costs he was ordered to pay in respect of the defendant’s wife from the Legal Aid Agency in August 2018. On submission of a bill of costs to the Legal Aid Agency’s Criminal Cases Unit, the Lord Chancellor applied for permission to intervene on the basis that section 17 does not apply to civil proceedings as summarised at paragraph 16 of the judgment.
At the appeal, both parties agreed that the proceedings before Mrs Justice Jefford were civil proceedings. The dispute came over the breadth and interpretation of section 17 and whether or not the proceedings, arising as they did, was from an indictable offence which could in fact be covered by section 17.
Mrs Justice Jefford, in her previous decision in favour of Mr M, had accepted that the wording of section 17(1)(a) was sufficiently wide enough to encompass the confiscation and receivership orders sought despite not being in the strictest sense “criminal proceedings”. The judgement was finely balanced, stating at  that: “…a broader expression "in respect of an indictable offence" is employed. That expression is capable, for example, of referring to criminal proceedings before the Court of Appeal Criminal Division but there is also a persuasive reason why an even broader meaning ought to be ascribed to the words used. As submitted on behalf of the prosecutor, that is because there is a public interest in the enforcement of confiscation orders and under section 80 of the CJA the application for the appointment of a receiver may only be made by the "prosecutor".
However, the matter did not end there. At paragraph 38 Mrs Justice Jefford noted that it did not appear to be contemplated that proceedings in the High Court could result in an order for payment of costs out of central funds under section 17.
Despite the decision in Taylor v City of Westminster Magistrates Court ex p Legal Services Commission  EWHC 1498 which established at  that “confiscation legislation makes clear that enforcement of a confiscation order is deemed to be equivalent to the enforcement of a fine through the Magistrates' Court. That is far from being proceedings in the case of an indictable offence", Mrs Justice Jefford finally concluded that the wording of section 17 is in itself broad enough to encompass civil proceedings in the High Court to enforce a confiscation order, and is not limited only to criminal proceedings. But, the legislative background, as examined in Steele Ford & Newton v CPS  1 AC 22 provides strong indications that the legislative intent was that section 17 should only apply to criminal proceedings and should not have such broader application.
With the appeal from the Lord Chancellor, Mrs Justice Jefford has had the rare opportunity to reconsider her own decision. The outcome of this being that for the moment, subject to any appeal, whilst costs for private prosecutions may be recoverable under section17 – any civil orders arising from a successful private prosecution will not be.
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Private prosecutions, once a “historical right” that was “rarely exercised” (according to Lord Wilberforce in Gouriet v Union of Post Office Workers (1978)), are now thoroughly integrated into our criminal justice system. Whether the result of dwindling CPS resources (see blog by David Sleight CPS and police struggle under the load of sex abuse investigations) or because of the public’s increased familiarity with the process from high-profile convictions such as ‘King Con’ or the Surfthechannel pirate, the number of private prosecutions being brought is on the rise.
Private prosecutions are a useful remedy for victims of crime and the only criminal remedy in circumstances where the state enforcement agencies fail to act. In cases of economic crime there will sometimes be merit in running concurrent civil and criminal proceedings. However, in such cases the motive for commencing criminal proceedings will inevitably be considered. It is established that a private prosecution motivated purely by spite or some other ‘oblique motive’ can lead the court to stay the proceedings as an abuse of process (R (Dacre) v City of Westminster Magistrates’ Court  1 Cr App Rep). However, the Court of Appeal has recently sought to distinguish between mixed motives and ‘oblique’ motives and has provided useful insight into what factors may legitimately be considered in determining whether a private prosecution, alongside civil proceedings, may be upheld.
Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent)  UKSC 67.
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