CODE FOR PRIVATE PROSECUTORS

7.

Abuse of process

7.1

General principles

7.1.1

Inevitably, private interests will play a role in the bringing of many private prosecutions. For that reason, there is more scope for scrutiny of private prosecutors than public prosecutors, something of which private prosecutors should be made aware¹⁴.

7.1.2

However, the legal principles relating to the abuse of process jurisdiction apply in the same way to private prosecutions as they do to public prosecutions. This chapter therefore does no more than identify some areas which those acting on behalf of a private prosecutor should consider.

7.2

Motive

7.2.1

Many private prosecutions will be motivated by both private and public considerations, most obviously where the prosecutor claims to be a victim of the alleged misconduct. Such mixed motives may result in heightened scrutiny of the process, to ensure that the case is conducted fairly, but they are not, of themselves a bar to a private prosecution. The Courts have, however, distinguished mixed motives from “an oblique motive which is so dominant and so unrelated to the proceedings that it renders them an abuse of process¹⁶”.

7.2.2

Therefore, where the primary motive for the prosecution is unrelated to properly constituted criminal proceedings, it is likely to render the prosecution a misuse or an abuse of the Court’s process. A useful touchstone for consideration of the issue may be to ask whether the criminal legal process is being used against another primarily to accomplish a purpose for which it is not designed.

7.2.3

A Court will consider whether a prosecutor is using the criminal proceedings as a means of establishing and punishing criminal conduct or whether the prosecutor is in truth using them for some other purpose¹⁷.

7.2.4

Those acting for a private prosecutor will consider whether there is any public interest rationale for the proceedings. While a dominant public interest is not required, as the authorities make very clear, the absence of any expression of a public interest rationale, taken together with the clear expression of an oblique motive, will be telling.

7.3

Delay

7.3.1

Detailed consideration of the abuse jurisdiction is outside the scope of this Code. Some of the key factors to consider at the outset may be:

1. When did the prospective private prosecutor first (i) become aware of the facts or issues which give rise to the prosecution and (ii) realise that a criminal offence may have been committed?
2. What, if any steps has the prospective private prosecutor taken to deal with the matters giving rise to the prosecution before applying for a summons?
3. Is there a reasonable explanation for any delay?
4. Is there any evidence which no longer exists or which is no longer available as a result of the delay?

7.4

Adverse publicity

7.4.1

Legal advisers should warn private prosecutors for whom they act that adverse and/or excessive media publicity can cause the fairness of the ensuing trial to be called into question and can potentially become the subject of legal argument.

7.4.2

This warning may be particularly important in cases that are crowdfunded and which are therefore wholly or heavily reliant on publicity. Given the detrimental effect that adverse publicity can have on a prosecution, crowdfunding must be approached with caution.

7.4.3

Private prosecutors should consider identifying an appropriate media spokesperson, particularly where proceedings are likely to generate significant public or media interest.

7.5

Disclosure

7.5.1

The private prosecutor should be aware/advised by his or her legal representative that a failure by the prosecution to comply with its duties of disclosure may lead to the proceedings being stayed as an abuse of process.

7.6

Concurrent civil proceedings

7.6.1

Parallel criminal and civil proceedings may be pursued so long as to do so is fair, proportionate and properly motivated. It would not be appropriate to launch criminal proceedings purely to influence extant or prospective civil proceedings.¹⁸

7.7

Professional standards

7.7.1

Where the private prosecutor is the client of a law firm, they may be entitled to receive their solicitor’s file¹⁹. Where the private prosecutor is also a witness in the case, complying with a request of this nature may leave the prosecution open to criticism. The private prosecutor must be advised that there are circumstances in which information/material will not be shared with them and where disclosure and decisions about the case will be made without reference to them.

7.7.2

If any witness familiarisation process is undertaken it should be regulated in accordance with the guidance of the Court of Appeal in Momodou (Practice Note) [2005] 2 All ER 571 and disclosed to the defence. The CPS also provides guidance on witness familiarisation.

7.8

Previous disposals

7.8.1

So far as possible, a prosecutor should establish the factual background of any previous disposal before initiating proceedings. If a potential defendant has been told that an out of court disposal would act as a bar to further proceedings, a prosecution may be an abuse.

7.9

Costs

7.9.1

A successful abuse of process application is likely to result in an award of costs against the private prosecutor. Private prosecutors should be advised of this risk prior to the commencement of the case.