In R (on the application of Siddiqui and another) v Westminster Magistrates' Court [2021] EWHC 1648 (Admin), the Administrative Court held, on an application for judicial review, that there was no proper ground for a summons in a private prosecution to be set aside in circumstances where a settlement agreement, purporting to settle "all claims" between the parties, had not been disclosed.

This blog is based on an article first published by Lexis®PSL on 29 June 2021.

Background

The claimants (in both the judicial review and the private prosecution underlying it) were two brothers who alleged that they had been victims of a fraud perpetrated by Mr Bakhtiar Abbasi, the interested party in the judicial review and the defendant in the criminal proceedings. They had brought civil proceedings in the High Court, and various legal proceedings in Dubai against Mr Abbasi and his company in the High Court. These proceedings had been compromised by a settlement agreement dated 22 February 2018 (the Settlement Agreement), which settled "all claims … in relation to monies loaned/advanced to [Mr Abbasi and his company]" in consideration for the payment by Mr Abbasi of £6.5m.

In February 2019, the claimants laid an information before Westminster Magistrates' Court against Mr Abbasi advancing charges of fraud by false representation and forgery, and seeking a summons against him. In doing so, the claimants failed to disclose the Settlement Agreement. The summons was granted, and Mr Abbasi subsequently applied to have it set aside on the ground that the Settlement Agreement, which he said precluded any prosecution, had not been disclosed. The District Judge set aside the summons and stayed the proceedings.

The claimants sought judicial review of the District Judge's decision on the grounds that:

1. he had misconstrued the Settlement Agreement, which did not preclude a private prosecution;

2. the failure to disclose the Settlement Agreement had been an error of judgement by the claimants' solicitors and was not a deliberate attempt to suppress it; and

3. staying the proceedings was disproportionate in circumstances where the balance of competing public interests supported the prosecution being allowed to continue.

Administrative Court judgment

The court held, remitting the case to the Westminster Magistrates' Court, that there had been no proper basis for the District Judge to set aside the summons and the stay was a wholly disproportionate response to the failure to disclose the Settlement Agreement.

In relation to the Settlement Agreement, the District Judge had said that it was "not fanciful" to suppose that it precluded a private prosecution but that he was "ill-equipped to reach a conclusion" and so declined to do so. Absent a positive finding that the Settlement Agreement did in fact preclude a private prosecution, the court concluded that the threshold for setting aside the summons on the basis that the Settlement Agreement prevented a prosecution had not been reached.

In relation to the failure to disclose the Settlement Agreement, the court was of the view that the breach of the duty of candour had not been "fundamental", not least because Mr Abbasi, being a party to the Settlement Agreement, had a copy of it and could have relied upon it to support an application to set aside the proceedings on the basis of abuse of process. Accordingly, the failure to disclose the Settlement Agreement did not merit quashing the summons.

In relation to the abuse of process / proportionate remedy point, the court held that there was no bright line to determine when a trial should be abandoned due to incompetence or negligence. Proceedings should be stayed as an abuse if (i) the defendant's right to a fair hearing had been compromised; or (ii) regardless of the fairness of the trial itself, maintaining the integrity of the criminal justice system required the accused not to stand trial. To assess this, the court had to balance the seriousness of the prosecutorial misconduct against the seriousness of the allegations. In this instance, the right to a fair trial had not been compromised by failure to disclose the Settlement Agreement and there was an obvious public interest in allowing the trial to proceed.

In the view of the court, quashing the summons and staying the proceedings had been disproportionate in the circumstances. It would be proper for a court to discharge a summons in these circumstances if a settlement agreement had, on its proper construction, precluded a private prosecution; if the breach of the duty of candour embodied in the failure to disclose had been so serious as to require the summons to be quashed; or if that breach had amounted to an abuse of process.

Comment

This case provides helpful guidance in relation to the threshold necessary for a summons in a private prosecution to be set aside due to procedural irregularities involving disclosure, and when such irregularities will constitute an abuse of process. The court noted that while a failure to disclose material can prejudice a defendant's right to a fair trial, this will not always be the case. This is particularly relevant in relation to private prosecutions where both parties may already have sight of the same documents. Where this right has been prejudiced due to failure to disclose, then the proceedings should be stayed. However, where this is not the case, there is a balancing exercise to be undertaken by the court between (i) the public interest in continuing with a prosecution (which is a weighty consideration); (ii) the integrity of the criminal justice system; and (iii) the court's sense of justice and propriety. A stay is not to be imposed as a disciplinary measure against a prosecutor except in the most serious of circumstances.

This decision leaves open the possibility that settlement agreements may (depending on their wording) preclude private prosecutions.

The judgment can be viewed here.