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:

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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.