Holloway, R (On the Application Of) v Bhui & Ors

In a claim challenging a criminal costs order, a private prosecutor may be ordered to pay the defendant’s costs where the prosecution resulted from a clear and stark error. The relevant question is whether, avoiding hindsight, it was always clear on any reasonable view that the prosecution could not succeed. A private prosecutor must independently and objectively assess the evidence, including its reliability, credibility and material adverse evidence, before commencing proceedings. A private prosecution is not improper merely because it fails or is withdrawn. Failure to notify the police or obtain legal advice is not itself improper, but may demonstrate that no proper evidential assessment was undertaken. Where only one lawful exercise of the Crown Court’s discretion is possible, the Administrative Court may determine the issue rather than remit it.

The claimant brought a private prosecution alleging that the interested parties had committed blackmail and conspiracy to blackmail during negotiations concerning the sale of a property. The Crown Prosecution Service later took over the prosecution and offered no evidence. The interested parties applied for their costs under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986.

The Deputy Circuit Judge concluded that the prosecution had been hopeless because the parties were free to negotiate before exchange of contracts. He did not address the claimant’s case concerning the cash demand and threats, or the interested parties’ case concerning undisclosed emails. The claimant sought judicial review of that decision.

1. Disposition. The claim for judicial review was dismissed. The matter was remitted to the Crown Court to determine the amount of the interested parties’ costs.
2. Regulation 3, made under section 19 of the Prosecution of Offences Act 1985, requires a three-stage analysis: whether there was an unnecessary or improper act or omission; whether it caused another party to incur costs; and whether the court should exercise its discretion to make an order. The discretion remains distinct from the threshold question.
3. “Improper” means an act or omission which would not have occurred if the party had conducted the case properly or which should otherwise have been properly avoided. The threshold is impropriety, not mere unreasonableness. Applications against prosecutors are rare and generally require a clear and stark error. The court must guard against hindsight: the issue is whether it was always clear on any reasonable view that the prosecution could not succeed.
4. These principles apply, with appropriate modification, to private prosecutors. A private prosecutor acts as a minister of justice and must conduct an independent and objective assessment of the evidence before commencing proceedings. That includes considering whether evidence is reliable and credible and whether other material may affect the sufficiency of the case. Consulting the police or obtaining legal advice is prudent but is not a legal precondition.
5. The Deputy Circuit Judge failed to engage with the central features of the alleged cash demand, the threatened retention of the claimant’s money, the December 2016 emails and the disclosure issue. His reasoning therefore could not stand. Nevertheless, the emails showed that the agreed price was £550,000, with the £70,000 balance treated as a loan, subject to completion within six weeks. The prosecution could not realistically succeed without explaining away those emails, which the claimant’s contemporary evidence did not permit.
6. The commencement and continuation of the prosecution were therefore a clear and stark error and an improper act causing the interested parties to incur costs. It was unnecessary to find bad faith. Although the emails were disclosable under section 3(1) of the Criminal Procedure and Investigations Act 1996, the court preferred to decide the case on the absence of any proper evidential assessment. The only proper exercise of discretion was to make a costs order.

This was a first-instance judicial review claim. The Administrative Court dismissed the claim and remitted the matter to the Crown Court for determination of the amount of costs.