Attorney General v Ebert

Under section 42 of the Supreme Court Act 1981, a Criminal Proceedings Order may be made where a person has habitually and persistently, and without reasonable ground, instituted vexatious prosecutions. The court must assess the whole picture and the cumulative effect of the conduct. A prosecution is vexatious where it has little or no legal basis, subjects others to disproportionate inconvenience, harassment or expense, and abuses the court process. The court must also consider whether a lesser restriction would adequately protect defendants and court resources. An order of indefinite duration may be proportionate where the evidence shows that lesser measures would have no significant effect.

The Attorney General applied for a Criminal Proceedings Order against the respondent under section 42 of the Supreme Court Act 1981. The respondent had previously been made subject to a Civil Proceedings Order and had subsequently initiated numerous criminal complaints against persons connected with his civil litigation, judges, court staff and others.

The magistrates’ courts had repeatedly refused to issue summonses or had stayed proceedings because the allegations disclosed no reasonable suspicion of criminal offences and repeated issues already determined in civil litigation. The central issues were whether the statutory conditions were satisfied, whether the respondent had been given a proper opportunity to be heard, and whether an order of indefinite duration was proportionate.

1. The court was satisfied that the respondent had habitually and persistently, and without reasonable ground, instituted vexatious prosecutions within section 42 of the Supreme Court Act 1981. The statutory reference to instituting proceedings included laying informations and applying for the issue of summonses.
2. Applying the description in Attorney General v Barker [2000] 1 FLR 759, the relevant features were the absence of any discernible legal basis, disproportionate inconvenience, harassment or expense, and use of the court process for an improper purpose.
3. In accordance with Attorney General v Matthews [2001] EWCA Civ 254, the court considered the whole picture and cumulative effect of the respondent’s conduct. The repeated allegations were substantially connected with civil proceedings and had repeatedly been found to be misconceived, unsupported or previously determined.
4. The respondent had been given the hearing required by section 42. Any late service of the applicant’s skeleton argument caused no prejudice because he knew the substance of the case and received the skeleton at the hearing.
5. The court exercised its discretion to make a Criminal Proceedings Order of indefinite duration. It concluded that no lesser measure would protect potential defendants and court resources. The order prohibited the respondent from laying an information before a justice of the peace, or applying for leave to prefer a bill of indictment, without the leave of the High Court.

The court also rejected the respondent’s contention that section 42 was impermissibly vague, overly broad or incompatible with the European Convention on Human Rights.