Failure to act as a ‘Minister of Justice’ will have costs implications for the private prosecutor

19 July 2019

A private prosecutor and the lawyers who act on their behalf must meet the same high standards of conduct expected of a public prosecutor.  The High Court has recently handed down judgement in a case where the issue of the objectivity of the private prosecutor was subject to scrutiny.  The case is a salutary reminder to the putative private prosecutor of the benefits of taking independent legal advice on the merits of their case before commencing proceedings.

The Queen (on the application of Ayodeji Holloway) and Harrow Crown Court and Adamneet Singh Bhui, Jimneet Singh Bhui and Gurpinder Singh Bhui [2019] EWHC 1731 (Admin)


The original prosecution was brought by Mr Holloway (Mr H), a solicitor, against individuals on the other side of a home purchase dispute. Mr H and his partner lived in a home which belonged to Messrs’ Bhui. They had paid £90,153 which was regarded by the parties as payments made towards the purchase. In 2014 it is agreed the value of the home was £400,000. In October 2015 Mr H asked for a further 6 months to complete payments and acknowledged that if he failed to purchase the home in this time the vendors would be able to return his previous paid monies and sell on the house.

Mr H remained in the house until 2016 when he informed the vendors he was able to complete the transaction for £400,000. However, the property had risen in value in the intervening period and the vendors were no longer willing to sell for this price. A verbal agreement was made for £480,000 and Mr H obtained a mortgage for this amount.

The material issue was that the vendors also demanded a further £70,000 in cash (to be documented within the contract). Further, the vendors stated that if this amount was not paid, Mr H and his family would have to vacate the property.

Mr H wrote a letter to the parties headed ‘strictly without prejudice’ in which he stated that the agreed price was £480,000 and the additional request (plus interest) amounted to extortion and a variety of criminal offences, some of which are no longer in force. As a result of this letter the vendors allowed the sale to go ahead without the payment of the £70,000.

On the 6th of November 2017, Mr H laid a summons at the Magistrates Court for blackmail and conspiracy to blackmail in the following terms:

on several occasions by telephone calls and text in May and June 2017 made an unlawful demand of £76,325.39 in cash …. for an unlawful payment”

The information provided by Mr H at the time of laying the informations was:

  • the contract for sale of the property for £480,000;
  • a valuation of the property for the same amount;
  • an unsigned option agreement from 2014;
  • a letter confirming the payment of the previous £90,000;
  • the text messages demanding the additional £70,000; and
  • previous text messages from the vendors stating the property was worth £600,000.

Mr H failed to include emails from December 2016 which appeared to suggest that the agreed sale price was in fact £550,000 and the sum of £70,000 plus interest had been agreed to cover the shortfall between the mortgage finance and the agreed sale price.

The matter was eventually brought before Harrow Crown Court. The day before the Plea and Trial Preparation Hearing (PTPH) was due to be heard, the Director of Public Prosecutions (DPP) took over the case and discontinued it.

In a letter dated 15 June 2018, the Crown Prosecution Service (CPS) explained that it had concluded that there was insufficient evidence to provide a realistic prospect of conviction on a charge of blackmail or conspiracy to blackmail:

Referring to the ingredients of the offence of blackmail, the CPS said that there was evidence of a demand with a view to gain and that this was backed by a “menace”, namely the threat of pulling out of the sale of the property, but concluded that the evidential test could not be met to show that the demand was ’unwarranted’."

As a result of the intervention, the defendants were acquitted and they sought costs in the sum of £23,470.73 pursuant to s.19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986. The Regulations provide that a court may order a party to criminal proceedings to pay the costs of another party to the proceedings if satisfied that the costs were incurred as a result of an unnecessary or improper act or omission.

HHJ Morrison held that the commencement and continuation of the prosecution was an improper act which had caused the vendors to incur costs, describing the requests made by the vendors as robust bargaining which “may be repugnant to some, especially those on the receiving end, but is perfectly legal”. He did not find that there had been an ulterior motive, but that the prosecution had been hopeless from the start.

He invited submissions as to quantum, which has not yet been held by virtue of the claim for judicial review.

HHJ Morrison was criticised by the High Court for not engaging with either side’s arguments; nonetheless, in determining the case and coming to the same outcome as the learned judge, Lord Justice Males made the following observations:

19: Two points relevant to the position of private prosecutors deserve emphasis. First, in their role as “ministers of justice” prosecutors have a duty to undertake an independent and objective analysis of the evidence before commencing proceedings to determine whether there is a realistic prospect of a conviction. This requires an assessment not only of what evidence exists, but also of whether it is reliable and credible, and whether there is other evidence which might affect the position…

20: It was common ground before us that a private prosecutor is under the same duty, or at any rate is more likely to be treated as having committed an improper act or omission if he fails to carry out such an analysis. That leads on to the second point, which was not common ground. Because a private prosecutor will often have a private interest in the proceedings, he may lack the objectivity required to undertake such an analysis. Indeed, the objective private prosecutor will recognise the danger of his own lack of objectivity. It will often be prudent, therefore, to bring a proposed prosecution to the attention of the police or prosecution authorities and to take legal advice.

Culminating at paragraph 63, Lord Justice Males concluded that the decision to prosecute in the instant case was one which no reasonable prosecutor, who had carried out anything approaching a proper assessment of the evidence, could have come to. The commencement and continuation of the prosecution was an improper act within the meaning of section 19 of the 1985 Act. Undoubtedly it caused the vendors to incur the costs of defending those proceedings.


What is plain from this judgement is the overwhelming need for the private prosecutor to act as a Minister of Justice. Whilst the courts have made clear that it is not a pre-requisite for private prosecutors to involve the police, it is strongly advisable that independent advice is sought to avoid criticism and adverse costs at a later stage by reason of failures such as in the instant case. In short, the evidence presented and the reasons for bringing a private prosecution must be able to withstand the same robust scrutiny as public prosecutions.  If these high standards are not met then there may be serious cost implications for the private prosecutor. 

About the author

Shannett Thompson is a Senior Associate who specialises in helping individuals and organisations who have been the victim of crime hold offenders to account. She was recognised by Brummel Magazine as ’30 Ones to Watch' list of London’s City stars for 2018.

Latest blogs & news

Mythbusting: Recovery of Costs in Private Prosecutions

Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act.   Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty.  Conducted badly they can be an expensive mistake with far reaching consequences. 

In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions.  In this blog we look at whether the private prosecutor is entitled to recover their full investigation and legal fees at the end of the case.

Best practice for organisations using private prosecution powers

The House of Commons Justice Committee has made a series of recommendations in its report published today which are likely to have a significant impact on the future of private prosecutions in England and Wales. 

Victims’ Right to Review Scheme: does a victim have a right to make representation?

A victim has a right to request review of a decision not to prosecute or to discontinue a prosecution, but do they have a right to make representations?

Best practice guide for charities conducting private prosecutions

The Charities Commission has recently warned that fraudsters are exploiting the spread of coronavirus (COVID-19) in order to carry out fraud and cybercrime against charities.  Unfortunately, in our experience, the likelihood of the police taking action against these individuals is low. In the current climate it is easy to understand why the use of private prosecutions is firmly on the rise. In the past, some charities have been criticised for having an overzealous approach to the conduct of their private prosecutions.  In this blog, we highlight the importance of taking a few simple steps to ensure that charities who conduct private prosecutions are beyond reproach.

Failure to act as a ‘Minister of Justice’ will have costs implications for the private prosecutor

A private prosecutor and the lawyers who act on their behalf must meet the same high standards of conduct expected of a public prosecutor. The High Court has recently handed down judgement in a case where the issue of the objectivity of the private prosecutor was subject to scrutiny.  The case is a salutary reminder to the putative private prosecutor of the benefits of taking independent legal advice on the merits of their case before commencing proceedings.

Launch of the Code for Private Prosecutors

On 18 July 2019 the Private Prosecutors’ Association (the PPA) the UK’s only association for professionals with expertise in the bringing of private prosecutions, published the first Code for Private Prosecutors (the Code).  

A step too far – a warning for Private Prosecutors

We have previously written on the matter of likelihood of cost recovery in respect of private prosecutions, but return to this topic in light of the recent decision Re Somaia v Lord Chancellor [2019] EWHC 1227 (QB). 

What will happen next in the prosecution of Boris Johnson?

Rarely can the saying that a week is a long time in politics have been more true than in the case of Boris Johnson.  The telescoped timetable for the election of the next Conservative leader, which was announced last week, clearly favoured him, given the large lead he has over his closest rivals. But the decision of District Judge Margot Colman has turned that advantage on its head. For there is no realistic chance that the prosecution against Johnson can be despatched before Conservative MPs decide on the two candidates to go before the membership.  

The duty of candour applies to represented and unrepresented private prosecutors

On the 26th of October 2018 the High Court  consisting of Gross LJ and Sweeney LJ granted an order for costs against the private prosecutor in R (on the application of Kay and Scan-Thors (UK) Limited) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin) to the sum of £250,000.

Victim Impact Statement for Business: your opportunity to be heard

We often act for businesses who have been the victims of crime. The Code of Practice for Victims of Crime (‘the Victims’ Code’) allows an opportunity for the voice of the business to be heard by way of an Impact Statement for Business (ISB).

Justice delayed is not justice denied in a recent slip and trip case successfully prosecuted by Aviva

On 3 April 2019 Bradford Crown Court has given a 21 months suspended jail sentence and six-months curfew order to Farida Ashraf, who pleaded guilty to fraud in a slip and trip case.

Sexual Abuse Compensation: Civil Claims for Criminal Allegations

The #Metoo movement, which started just over a year ago, has brought to the surface the prevalence of sexual abuse.  Led by the entrainment industry, and fuelled by social media, the movement has empowered individuals around the world to speak out against sexual assault and harassment.

Does a victim of crime have an unfettered right to review?

A case summary of R (AC) v DPP [2018] EWCA Civ 2092

Private prosecutions – Lawyers must explain the risks as well as the rewards to their clients

Last month, Barrister Mark Smith was found guilty of professional misconduct and suspended from practice for one month for failing to advise his client about the risks of bringing a private prosecution The finding by the Bar Disciplinary Tribunal serves as a stark reminder of the importance of the prosecuting lawyer having a full and frank discussion with their client about the prospects of success before commencing a private prosecution.  As explained in our previous blog, whilst private prosecutions offer an excellent legal remedy, they are typically subject to greater scrutiny than public prosecutions and lawyers who run these cases must take care to ensure they explain the risks, as well as the rewards, to their clients.

Malicious prosecution and the risk to private prosecutors

A series of blunders and mishaps, such as London’s soaring murder rate, the collapse of a number of rape cases  and associated disclosure failings, have incited strong criticism of the CPS and police forces in recent months. 

Private prosecutions for crimes against wildlife

Badger baiting and bat nest destruction, seal shooting and raptor persecution are just some of the wildlife crimes that are becoming increasingly common in the UK, according to the recent Wildlife and Countryside Link’s Wildlife Crime report. These cruel and grotesque acts include forcing badgers to fight with dogs for sport, or enabling the illegal trade of products harvested from CITES-listed species. Sadly, successful prosecutions for these offences may represent only a fraction of the number of atrocities committed.

Caution Needed - Private Prosecutions and Criminal Cautions

A simple caution is an out-of-court disposal intended for low level, mainly first time, offending. Accepting a caution has never been a straightforward decision however, one significant benefit was the reassurance that – in the usual course of events - a person would only be prosecuted for an offence when they had been issued with a simple caution, if...

DPP consent in private prosecutions

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.  

The good, the bad and mixed motives: when will the private prosecutor’s motives justify stopping the prosecution?

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 [2009] 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. 

Supreme Court overrules the Ghosh test - The Implications for Professional Disciplinary Proceedings

Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Close Load more

Skip to content Home About Us Insights Services Contact Accessibility