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.

Smith was instructed by a lay client (MBS) on a direct access basis to advise on bringing criminal proceedings against MBS’s former business partner (MK) for various matters, including an allegation that MK had fraudulently withheld money from him. Smith advised MBS that the police would probably consider this to be a civil matter that did not warrant their involvement, but that he could bring a private prosecution instead.

Smith was clearly right that MBS could bring a private prosecution: Section 6(1) of the Prosecution of Offences Act 1985 expressly allows any individual or company to do so. However, he did not go on to advise his client about the risk that the CPS could take over the prosecution in order to discontinue it or that an award of costs could be made against MBS. Unhappily for MBS, this is exactly what happened. MK’s Solicitors, Hill Dickinson, referred the prosecution to the CPS, who took it over and discontinued it on the basis that there was no realistic prospect of conviction. Smith and MBS were given a £40,000 costs order for their trouble (MBS paid a third but was compensated by the Bar Mutual Indemnity Fund).

The Bar Tribunal Service found that Smith “…did not consult the Code for Crown Prosecutors in terms of the proper test for bringing the private prosecution. Furthermore, he did not turn his mind to the potential adverse consequences of pursuing a private prosecution which included a possible adverse costs order against the client.

While there is no legal requirement for private prosecutors to satisfy the Code for Crown Prosecutors or to apply the Full Code Test when deciding whether to commence a prosecution, a private prosecutor should always endeavour to meet the same high standards expected of a public prosecutor, and in our view should apply the Full Code Test when making a decision on charge. If, as in this case, the private prosecution does not satisfy that test, it is liable to being discontinued by the CPS.

The Full Code Test has two stages: (1) the evidential stage: is there sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge? (2) the public interest stage: is a prosecution required in the public interest?

In this case, the CPS discontinued the prosecution on the basis of the first limb of the Full Code Test: they decided that the evidence did not disclose a reasonable prospect of conviction. However, had they considered that there was a realistic prospect of conviction, the CPS may have discontinued the prosecution on the basis of the second limb: that it was not in the public interest. Prior to launching the private prosecution, MBS brought civil proceedings against MK which were struck out. Smith “got the impression” that the criminal proceedings were “being used as a negotiating tool against MK”. However, Smith appears not to have acted on this red flag. A private prosecution may be stayed for abuse of process where there is an improper motive. As explained in our previous blog there will often be mixed motives for bringing a private prosecution and that, in itself, would not amount to an abuse of process. However, where the prosecution is brought entirely for an improper motive (for example, as leverage in civil proceedings or as a means to blackmail or punish another), the CPS may discontinue the prosecution on the basis that it fails the public interest test.

In this case, not only was the prosecution halted by the CPS, but a five figure costs order was made against MBS and Smith. A costs order may be made under s. 19 of the Prosecution of Offences Act 1985: “where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.

The fact that a costs order was made in this case demonstrates that, not only was there no realistic prospect of a conviction, but the court were satisfied that (1) there had been an unnecessary or improper act or omission by MBS/Smith and (2) as a result, MK had incurred costs. A lawyer who is overly optimistic in advising a client about the prospects of success in a private prosecution could reasonably foresee that the prosecution may not be successful, but may not expect to be found guilty of professional misconduct and suspended from practice. The approach taken by the Bar disciplinary tribunal in this case underlines the need for legal representatives to explain the risks, as well and the rewards and the importance of applying the Full Code test when advising on a potential private prosecution.