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Victim Impact Statement for Business: your opportunity to be heard
Shannett Thompson
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.
The Claimants in the High Court matter (the defendants in the private prosecution) made a successful application for judicial review in May 2018 following the refusal by Leeds Magistrates’ Court (‘the Court’) to dismiss the summons issued in a private prosecution. The High Court held that from the outset the private prosecutor had conducted the prosecution unreasonably, leading to a waste of both court time and resources. Specifically, the High Court held that the private prosecutor had withheld relevant information from his application for a summons even though he was represented by a solicitor.
The decision in Kay has led to an important change to the Criminal Procedure Rules for private prosecutions. In this blog we explain what this change means for all putative private prosecutors and those who represent them.
The private prosecutor sought the permission of the Court to issue summons against the Claimants on 7 June 2016 for four charges of fraud between 2007 and 2012, contrary to s.1 of the Fraud Act 2006.
The Information (the charge sheet) laid at the Court revealed that the matter had previously been referred to the Polish authorities who had decided to discontinue their investigation. However, the information supplied to the Court did not reveal:
The Claimants applied for the summons to be dismissed and/or proceedings stayed, as an abuse of process on four grounds, namely:
However, the above grounds were rejected by the Court leading to the Claimants’ application for judicial review at the High Court.
In light of the deliberately selective information that was presented to the Court in the private prosecutor’s June 2016 application for summonses, the High Court was receptive to the Claimant’s submissions that the costs for both the proceedings in the Court and the proceedings in the High Court were open to assessment on the indemnity basis. It was held that the private prosecutor’s submissions for assessment of costs on the standard basis, or payment from Central Funds were inappropriate and misconceived. Had the private prosecutor acted properly and observed the duty of candour and had the District Judge acknowledged the implications of the private prosecutor’s failure to observe this duty, the Claimants would not have incurred the costs tied to the Court or the High Court proceedings.
The High Court ordered costs to be paid to the Claimant in the sum of £250,000 and rejected the private prosecutor’s argument that the costs incurred were unreasonable and excessive, stating that the Claimants “were entitled to instruct lawyers with the necessary skill and experience to deal with such a case”.
The right to bring a private prosecution is preserved in s.6 of the Prosecution of Offences Act 1985. It is judicial function involving the exercise of discretion as to whether or not to issue a summons.
As established by Lord Goddard CJ in R v Wilson ex parte Battersea Borough Council [1948] 1 KB 43, Magistrates’ must ascertain the following four elements before issuing a summons:
(1) whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present;
(2) that the offence alleged is not ‘out of time’;
(3) that the court has jurisdiction; and
(4) whether the informant has the necessary authority to prosecute.
However running alongside the above considerations is at all times the consideration as to whether the allegation is vexatious. Notwithstanding, there is no duty for Magistrates to make further enquiries, although they may do so should they feel it necessary. Magistrates can also order that the defendant be notified of the application by the private prosecutor and/or hear the defendant, if they believe this will assist in their decision making. In this instance, the High Court considered that such enquiries would have been appropriate.
The procedural requirements for applying for a summons were codified in April 2018 as we discussed in a previous blog. Following those changes, the procedure for commencing a private prosecution by those who were unrepresented and not a public authority, was outlined under rule 7.2(6) of the Criminal Procedure Rules as follows:
However, until earlier this year Rule 7.2(5)(a) presented an exception to those requirements from a private prosecutor who was represented by lawyer.
Shortly after the April 2018 amendments to the Criminal Procedure Rules the High Court gave the judgment in Kay. The High Court made it clear in Kay that private prosecutors are subject to a duty of candour when applying for the issue of summonses and acknowledged in their reference to R v Grays Justices, ex parte Low 1988 3 AER 834 that “the withholding of material information is in itself a critical factor in determining whether a summons should be set aside as an abuse of process of the court”. This reinforced the High Court’s decision that the private prosecutor’s withholding of information in the June 2016 application for summonses warranted the dismissal of the summonses, and that the District Judge had erred in his decision to not dismiss the summonses. The duty of candour applied to both public and private prosecutors and was highlighted as being a duty of “full and frank disclosure” to the Court of all material information, including potentially adverse information.
The High Court confirmed the Claimants had been successful in demonstrating that the lines of authority regarding quashing the summonses had been met, in that the inaccurate information and/or non-disclosure by the private prosecutor would have, or may have, made a difference to the Court’s decision.
Following this decision, the Criminal Procedure Rule Committee (‘the Rule Committee’) consulted with the Law Society’s Criminal Law Committee and the Private Prosecutors’ Association and decided that in amending the rule to remove the exception for represented private prosecutors under Rule 7.2(5)(a) would impose no significant burden in relation to disclosure but would also help enforce the duty of candour by aligning the obligations on represented and unrepresented prosecutors at the time of the laying of the information. On 1 April 2019 these further changes to the Criminal Procedure Rules were brought into effect.
This judgement acts as a warning to private prosecutors, represented or not, to fully observe their duty of candour and ensure full and frank disclosure in all of their dealings with the court, as the failure to do so can be a costly mistake to make.
Melinka Berridge leads the team at Kingsley Napley responsible for conducting private prosecutions. She is also a founding member of the UK’s first Private Prosecution Association.
Shannett Thompson is a senior associate solicitor and works with Melinka to assist victims of crime who seek justice through the use of private prosecutions.
Last month, the High Court handed down judgement in R (on the application of T M Eye Ltd) v Southampton Crown Court reinforcing the correct approach to applications for an award from central funds for the costs of a private prosecution. Despite clear ‘Jurisdictional error’ on the part of the Crown Court, the appellant court took the opportunity to warn private prosecutors; applications will not be approved ‘on the nod’.
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 having an ulterior motive in starting a private prosecution can lead to problems down the line.
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.
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.
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?
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.
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.
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).
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).
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.
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.
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).
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.
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.
A case summary of R (AC) v DPP [2018] EWCA Civ 2092
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.
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.
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.
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...
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.
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.
Shannett Thompson
Melinka Berridge
Melinka Berridge
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