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

2 February 2018

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.

R (G) v S and S

In the case of R (G) v S and S [2017] EWCA Crim 2119 the Court of Appeal considered whether the judge in the Crown Court had been correct in reaching his decision that the private prosecution should be stayed as an abuse of process due to it being ‘tainted by an oblique motive’, namely using the private prosecution to exert additional pressure on the respondents to pay a debt in a linked civil case. 

The respondents were jointly charged with four counts of fraud contrary to the Fraud Act 2006. Civil proceedings were served in March 2016 and in the summer the prosecutor began to consider a private prosecution for fraud. The judge took into account several factors which led him to believe there had been an improper motive for commencing the private prosecution. These were examined closely by the Court of Appeal:

 

Crown Court

 

Court of Appeal

Exchange with prosecuting counsel

When the judge asked prosecuting counsel what would happen if the respondents repaid the debt in full, counsel said it would raise a costs issue. The judge concluded that if the respondents’ repaid the debt, the criminal proceedings would be dropped. This in turn led him to believe that the sole purpose of the criminal proceedings was to apply pressure in the civil proceedings.

This exchange was at the heart of the judge’s decision in finding that there was an improper purpose. The Court of Appeal noted that counsel’s response did not justify the judge’s conclusion. The judge had failed to acknowledge relevant facts lending against this conclusion, for example, that the applicant had previously sought a stay of the civil proceedings until the conclusion of the criminal proceedings.

 

Exchange with the police and CPS

The judge questioned why the applicant had not expressly requested that the police investigate or the CPS to take over the case. The judge concluded that the reason was that the prosecutor wanted to personally control the prosecution and choose how it proceeded.

 

The Court of Appeal did not accept the judge’s finding that the applicant wanting to personally control the prosecution was of itself a factor of any significant weight. Further, it noted that private prosecutors are not under a duty to request police permission or to inform the CPS that they wish to commence a private prosecution. It also highlighted that under section 6(2) of the Prosecution of Offences act 1985 the Director of Public Prosecutions, through the CPS, could take over criminal proceedings at any stage, for example where a private prosecutor was not going to proceed for whatever reason. 

In this case, the prosecutor did not at any stage indicate that he would not take the prosecution forward. Conversely, the applicant was prepared to proceed with the prosecution and was merely concerned that the CPS should not take over and then terminate the proceedings. The Court of Appeal found that the judge had overstated matters in saying that the applicant had not tried to get the police and CPS to prosecute. There was a clear misapprehension of the duties of the prosecutor in respect of the police and CPS.

Using the same solicitors

The Crown Court judge concluded that because the applicant’s solicitors were the same in both the civil and criminal litigation, there was no independence in conducting the private prosecution.

 

The Court of Appeal said that this was not a material issue, but was used by the judge to support his conclusion that there had been an improper motive due to counsel’s response. While this was a factor that the judge was entitled to consider, the Court of Appeal saw no reason why the applicant could not be represented by the same solicitors in both the civil and criminal litigation.

The matters had a common factual background and the applicant was entitled to avoid the additional expense of hiring separate firms particularly when both solicitors and counsel are bound to adhere to professional standards.

Wrongful use of material disclosed in separate litigation and irrelevant personal attacks

The judge took into account that the applicant’s solicitors had disclosed documents from a separate litigation in which the applicant was not a party. The judge had also considered that the applicant had made personal attacks against individuals in submissions that were not relevant to the issues.

The Court of Appeal noted that the judge was entitled to consider these issues when making his decision but that such issues could have been simply been dealt with by applications to exclude the evidence.  

Absence of fraud claim in civil proceedings

The judge also took into account that fraud was not pleaded in the civil proceedings.

The Court of Appeal found that the judge had not been correct to attach weight to this as it was not necessary for the civil proceedings to characterise the respondents’ conduct as fraud and the CPS had already concluded that the evidential test for fraud in the criminal proceedings had been established.

 

Comment

The Court of Appeal found that the judge’s approach and decision was flawed. The ruling was reversed and there was an order that the proceedings on the indictment be resumed in the Crown Court. Judge Thomas QC took the position that mixed motives are to be distinguished from an ‘oblique’ motive which is so dominant and so unrelated to the proceedings that it renders them an abuse of process.  Parallel criminal and civil proceedings are permissible so long as to do so is fair and proportionate and the decision is not based solely on an improper motive. This case provides a useful examination of the case law on improper motives and analysis of what the relevant considerations are when determining whether or not an improper motive should be deemed to exist.

This blog was written by Melinka Berridge, partner, and Emily Greig, trainee solicitor, in the regulatory department.

Melinka leads the team at Kingsley Napley responsible for conducting regulatory and private prosecutions. She also a founding member of the UK’s first Private Prosecution Association.  

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