R (G) v S and S

A private prosecution is not an abuse of process merely because the prosecutor also has a financial interest or civil claim arising from the same events. A stay under the second form of abuse of process requires a dominant oblique motive that is so unrelated to the criminal proceedings that their continuation would misuse the court’s process. Mixed motives do not suffice.

A private prosecutor may fund and conduct a prosecution through lawyers without seeking a police investigation. The court should attach proper weight to a CPS decision that the evidential and public-interest tests are met. Irrelevant material or material obtained through improper civil disclosure can ordinarily be addressed through evidential rulings, rather than a stay, unless it justifies the exceptional remedy.

The private prosecutor alleged that the respondents had dishonestly transferred two properties and misused them as security after he had invested about £400,000 in a joint venture. Civil proceedings concerning his asserted beneficial interest in the properties were already under way.

At Birmingham Crown Court, the judge stayed the indictment as an abuse of process. He found that the prosecution had been brought for the improper purpose of putting pressure on the respondents in the related civil litigation.

The private prosecutor sought leave under the Criminal Justice Act 2003 to appeal that ruling. The central question was whether the judge’s conclusion that the prosecution was fatally tainted by an oblique motive was one he could reasonably reach.

1. Appeal allowed. The court held that the stay was a ruling which it was not reasonable for the judge to have made within section 67(c) of the Criminal Justice Act 2003. It granted leave, reversed the ruling, and ordered the indictment to be resumed.

2. The relevant distinction, explained through R (Dacre) v City of Westminster Magistrates’ Court [2009] 1 Cr App Rep 6, was between ordinary mixed motives and a dominant oblique motive so unrelated to the criminal proceedings that it makes them a misuse of process. Private prosecutions may commonly involve mixed motives. The exceptional remedy of a stay was therefore not justified simply because the prosecutor sought to recover money and pursued parallel civil proceedings.

3. The judge’s central inference from counsel’s guarded answer to a hypothetical question about repayment was unjustified. It overlooked the prosecutor’s unsuccessful attempt to stay the civil proceedings while the criminal case progressed, and the absence of evidence that he had offered to settle the criminal case in return for payment. The circumstances differed materially from R v Gloucester Crown Court, ex p Jackman [1992] Lexis Citation 2517.

4. The judge also attached excessive weight to the prosecutor’s dealings with the police and CPS. A private prosecutor needed neither police permission nor a further police investigation, and was entitled to use his own lawyers. The CPS had reviewed the material, found both stages of the Full Code Test satisfied, and saw no need to take over the prosecution. A court would be slow to interfere with that assessment.

5. The court upheld the conclusion that documents obtained solely through disclosure in other civil proceedings could not be used merely because they had appeared in a court bundle. However, some documents had been provided independently, and any evidential impropriety could be addressed through exclusion applications under section 78 of the Police and Criminal Evidence Act 1984 or other evidential grounds. The use of the same solicitors in both civil and criminal proceedings did not itself establish a lack of independence or an oblique motive.

6. Proceedings on the indictment were resumed in the Crown Court. The court invited the resident judge to assign a fresh judge because the terms of the original ruling could create a perception of bias.

• Court of Appeal (Criminal Division). In [2017] EWCA Crim 2119, the court allowed the private prosecutor’s appeal under the Criminal Justice Act 2003, reversed the stay, and ordered the indictment to resume.
• Crown Court at Birmingham. On 11 August 2017, the judge stayed the private prosecution as an abuse of process on the ground of an oblique and improper motive.