A court’s power to control a private prosecution was recently considered in judicial review proceedings commenced by an individual (Mr David Haigh) who had sought and failed to obtain permission to launch a private prosecution against three individuals (the “IPs”), whom he had claimed were involved in human trafficking offences against him. The judicial review proceedings followed a District Judge’s decision to award costs of £230,000 in favour of the IPs following Mr Haigh’s withdrawal of his application for permission to issue summonses (to commence criminal proceedings) against the IPs, concluding that they were the subjects of a “wholly improper” attempt at a private prosecution.

Mr Haigh sought to challenge Westminster Magistrates’ Court’s costs award.

Background

Mr Haigh had been employed as the deputy CEO of GFH, an investment house in Dubai. Proceedings were commenced in the Dubai International Financial Centre courts on 26 May 2014 by GFH, who alleged that Mr Haigh had procured the issue of false invoices to divert to his own account some $5m, in breach of his fiduciary duties. Mr Haigh was arrested on suspicion of financial irregularities on his arrival in Dubai, and subsequently convicted of fraud in August 2015. He was released from prison in November 2015.

Prior to that conviction, and rather than approaching the authorities in Dubai, Mr Haigh sought to launch a private prosecution against the IPs in the UK, whom he alleged had committed the criminal offence of human trafficking by luring him to Dubai in order that he could be arrested under false pretences. The first IP was the CEO of GFH, the second IP was a senior executive of GFH, and the third IP was, at the material time, a solicitor and partner in a law firm.

What is a private prosecution?

Under English law, it is possible for a private person to commence a prosecution (i.e. a private prosecution) against another for a criminal offence (subject to certain exceptions). The purpose in commencing a private prosecution must be to achieve justice, not some personal interest, damages award or leverage. Private prosecutors are subject to the same duties as public prosecutors and they must comply with them to avoid the prosecution being taken over by the CPS (and discontinued). The court may make an adverse costs order against a private prosecutor for unnecessary or improper acts.

Mr Haigh applied to issue the criminal summonses against the IP on the basis that this “was likely to be the most expeditious way to bring this matter before the jury”. Following District Judge Tan Ikram’s preliminary view on 9 April 2015 that he was not minded to issue the summonses, Mr Haigh wrote to the IPs on 20 April 2015 stating that rather than pursue a private prosecution, he would instead approach the criminal law enforcement authorities in Dubai. Accordingly, by his ruling dated 12 June 2015, the District Judge dismissed the application for the summonses and adjourned the question of costs.

When the case returned to the Magistrates’ Court in September 2015, the District Judge made the observation that it had been “wholly improper [for Mr Haigh] to launch these proceedings”. The District Judge formed the view that matters should have been brought to the attention of the criminal law enforcement authorities in Dubai at the relevant time, instead of attempting to “turn the tables” against his accusers in the UK courts. After all, this would have been the most expeditious way of dealing with his complaint. Therefore, pursuant to s.19 of the Prosecution of Offences Act 1985 (“the Act”) (complemented by Rule 45 of the Criminal Procedure Rules), the District Judge was satisfied that the IPs had incurred costs as a result of an unnecessary or improper act or omission by Mr Haigh and awarded costs against Mr Haigh. Mr Haigh sought a judicial review of that decision.

Permission to bring the judicial review proceedings was initially granted on the papers in February 2016 with the grounds for challenge being widened following an oral hearing in July 2016 to comprise irrationality and unlawfulness arguments relating to the decisions: (i) that there had been an unnecessary or improper act or omission; (ii) to take account of irrelevant matters; (iii) to fail to allow the claimant a proper opportunity to respond to the claim for costs; and (iv) to fail to take account of proportionality when assessing quantum of those costs (and during the JR, the claimant advanced new arguments that the IPs had claimed for a fraudulent level of costs).

The matter was heard in October 2016 with judgment handed down on 16 February 2017 (R. (on the application of David Haigh) v. City of Westminster Magistrates’ Court [2017] EWHC 232 (Admin)). Lord Justice Gross cited DPP. v. Denning [1991] 2 QB 532 and adopted the reasoning in that judgment that the word “improper” does not necessarily connote some grave impropriety. It is intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly. Gross LJ agreed with the District Judge’s findings and commented that “the application to commence a private prosecution amounted to a clear and stark error … it fell short of the standards required of a minister of justice … launching a private prosecution, with every appearance of an attempt to turn the tables on the claimant’s accusers, was a strikingly inappropriate step to take”. Having reached that view, the court summarily dismissed the other grounds, although some time was spent by the court in assessing the allegation that the IPs had claimed fictitious costs, the court finding that there was no basis for this allegation. Accordingly, the JR failed.

Comment

With media reports of increasing cuts to police and CPS budgets in recent years, there has been a trend, particularly amongst corporates wishing to protect their intellectual property, of ‘taking charge’ of one’s own case by launching a private prosecution, rather than leaving it to the traditional law enforcement agencies.

Recent high profile private prosecutions include that against Ketan Somaia in 2014, who was convicted of nine counts of fraud totalling £13.5m, in the UK’s biggest private prosecution to date. In the same year, Virgin Media Limited launched a successful private prosecution against an individual who was convicted of unlawfully selling set top boxes which allowed free access to Virgin Media’s subscription only TV channels.

Whilst the finding in this judicial review is unlikely to discourage individuals from mounting private prosecutions, which are seen as “valuable protection against an oversight (or worse) on the part of the public prosecution authorities” (per Lord Neuberger in R. (Gujra) v. Crown Prosecution Service [2012] UKSC 52), it should remind prospective prosecutors that they must “conform to the highest standards, as ‘Ministers of Justice’” (Gross LJ). The duties imposed on a private prosecutor are onerous and great care must be taken to comply with them. Such prosecutions should never be brought for any personal or partisan reason or as part of any strategy to extract a financial outcome or settlement.

Those seeking to pursue a private prosecution should bear in mind that because self-interest is to some degree almost inevitably inherent in the bringing and conduct of such prosecutions, their conduct is likely to be under particularly careful scrutiny, not least by the defendant who will be looking to find evidence or other reasons to support an application of abuse of process and to recover their costs as a result.