A step too far – a warning for Private Prosecutors
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  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and the additional request (plus interest) amounted to extortion and a variety of criminal offences, some of which are no longer in force.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:
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.
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.
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