The duty of candour applies to represented and unrepresented private prosecutors

On the 26^th 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.

Background facts

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:

1. That the parties had entered into a Settlement Agreement on 26 July 2012 in which the private prosecutor had undertaken not to prosecute for the matters which were the subject of the summons in 2016.
2. The matters had previously been raised twice by the private prosecutor in Poland, where the Polish Public Prosecutor and the Polish Regional Court determined that there was no evidence of the Claimants having committed any criminal offences.
3. The private prosecutor only initiated the Polish proceedings after finding himself at risk of losing approximately £560,000 in arbitration proceedings and in an attempt to stay the arbitration proceedings, to which his company, Adriana ultimately lost.
4. In 2016, when applying for the summonses in the UK, Adriana was subject to a second Polish arbitration where the claimants were seeking more than £4million in unpaid commission and damages.
5. The private prosecutor’s intention in issuing criminal proceedings in the UK was to suspend the on-going Polish arbitration.

The Claimants applied for the summons to be dismissed and/or proceedings stayed, as an abuse of process on four grounds, namely:

1. The private prosecutor had failed to disclose material that would have undermined the application for summonses, specifically the Settlement Agreement.
2. The private prosecutor’s motive in applying for the issue of summons in the UK was to advance his position in the Polish arbitration proceedings.
3. The Claimants  had relied on the assurances in the Settlement Agreement that no criminal charges would be brought against them on the subjects that were contained in the summons.
4. The only appropriate venue to resolve the issues was in Poland.

However, the above grounds were rejected by the Court leading to the Claimants’ application for judicial review at the High Court.

Costs

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”.

Legal Framework

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.

Legislative changes

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:

1. Concisely outline the grounds for asserting that the defendant has committed the alleged offence or offences;
2. disclose—
   1. details of any previous such application by the same applicant in respect of any allegation now made, and
   2. details of any current or previous proceedings brought by another prosecutor in respect of any allegation now made; and
3. include a statement that to the best of the applicant’s knowledge, information and belief-
   1. the allegations contained in the application are substantially true,
   2. the evidence on which the applicant relies will be available at the trial,
   3. the details given by the applicant under paragraph (6)(b) are true, and
   4. the application discloses all the information that is material to what the court must decide.

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.

Commentary

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.

About the authors

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.