D Ltd v A & Ors

A stay of criminal proceedings for abuse of process is exceptional and a remedy of last resort. The two limbs of the jurisdiction are legally distinct. Under the first limb, the sole question is whether a fair trial remains possible. Under the second, the court balances competing interests to decide whether it is unfair or contrary to justice to try the defendant.

In a private prosecution, improper motives or prosecutorial shortcomings do not by themselves establish first-limb abuse. The court must assess their practical effect on trial fairness. Disclosure and evidential concerns will ordinarily be addressed through disclosure directions, case management, cross-examination and, where appropriate, evidential exclusion. Mixed motives do not of themselves vitiate a private prosecution.

D Ltd commenced a private prosecution alleging a sustained fraud by former senior employees and others through companies used to provide medical-report and legal services. The indictment included conspiracy to defraud, money-laundering, false-information and fraud counts.

At Southwark Crown Court, the defendants obtained a stay as an abuse of process. The judge held that prosecutorial conduct, evidence gathering and anticipated disclosure had irredeemably tainted the process, so that the defendants could not receive a fair trial.

D Ltd appealed. The central issues were whether the stay was justified under the fair-trial limb of abuse of process and, alternatively, whether the conduct and motives of a private prosecutor justified a stay under the separate public-justice limb.

1. Appeal allowed. The Crown Court judge’s stay could not stand. Her conclusion involved an error of law and principle and was not a conclusion reasonably open to her.

2. The two abuse-of-process limbs had to be kept separate. The first asks only whether a fair trial is possible; it does not require a balance of interests. The second asks whether it is fair to try the defendant or whether doing so would offend justice, and requires a balancing exercise. The court applied R v R [2015] EWCA Crim 1941: prosecutorial failings, motives and the integrity of the system are not, without more, first-limb considerations.

3. The finding that D Ltd had wilfully ignored or suppressed adverse evidence had no sufficient evidential basis. Nor was there a proper basis for finding that the solicitors’ conduct was ultimately pernicious or had irredeemably tainted the process. Although aspects of the evidence-gathering and witness-statement process were open to criticism, the relevant records and drafts had been disclosed. Any material consequences could ordinarily be explored by cross-examination or, where appropriate, an application under section 78 of the Police and Criminal Evidence Act 1984.

4. Disclosure concerns likewise did not establish that a fair trial was impossible. No specific material non-disclosure was identified. Case-management and disclosure powers remained available, and a lack of confidence in future disclosure was not the applicable legal test.

5. The court also rejected the alternative second-limb case. A private prosecutor’s mixed motives do not themselves vitiate proceedings, as illustrated by R v Bow Street Metropolitan Stipendiary Magistrate ex p South Coast Shipping Co Ltd [1993] QB 645. There was no allegation of bad faith or dishonesty. Any shortcomings were outweighed by the statutory right to bring a private prosecution and the public interest in trying allegations of serious fraud.

6. The stay was reversed. The proceedings were ordered to resume before a different Crown Court judge, subject to extant dismissal applications.

• Court of Appeal (Criminal Division): Allowed D Ltd’s appeal and reversed the stay of the private prosecution: [2017] EWCA Crim 1172 .
• Southwark Crown Court: On 31 March 2017, HHJ Korner QC stayed the prosecution as an abuse of process under the fair-trial limb. That ruling was reversed.