REGINA v ELIE TAKTOUK

A private prosecution does not amount to an abuse of process merely because its promoters seek compensation or settlement. The question is whether, in all the circumstances, allowing the trial to continue would offend the court’s sense of justice and propriety. A mixed motive of compensation and bringing an alleged offender to justice will ordinarily be legitimate where the prosecution is supported by substantial evidence and is not truly oppressive, mala fide or dominated by an unrelated oblique purpose.

The private character of a prosecution is irrelevant to a witness’s credibility unless a specific link is established. An appellate court will not interfere with a fraud sentence that reflects properly assessed culpability and harm, takes account of mitigation, and is within the proper range.

The applicant was convicted at the Crown Court at Southwark of fraud by abuse of position, fraud by false representation and using false instruments. The offences arose from his management of a property redevelopment funded in part by the Noel family. The prosecution alleged that he made dishonest cash calls supported by false documents, concealed expensive bridging finance, and diverted investors’ money to personal expenditure.

He renewed applications for permission to appeal against conviction and sentence after refusal by a single judge. The conviction grounds challenged the refusal to stay a private prosecution as an abuse of process and rulings excluding reliance on its private character and on a settlement with a former defendant. The sentence ground challenged the application of the fraud guideline to culpability, harm and mitigation.

1. The renewed applications for permission to appeal against conviction and sentence were dismissed.

2. The court adopted the second-limb abuse-of-process touchstone stated in R v Maxwell [2010] UKSC 48: the question is whether a trial would, in all the circumstances, offend the court’s sense of justice and propriety. Oppressive conduct by a prosecutor may satisfy that test.

3. The judge had correctly treated the evidence as disclosing, at most, mixed motives. A wish to recover losses through settlement could sit alongside a wish to see justice done, particularly in property crime. The alleged settlement objective was neither sufficiently unrelated to the prosecution nor so dominant as to make the proceedings abusive. The strong prima facie evidence of dishonesty also defeated any allegation that the prosecution was oppressive or tainted by mala fides or spite.

4. The fact that the prosecution was private did not, without an identified connection, bear on the truth of the allegations or the credibility of Mr Noel. The applicant could identify no lie or other evidential consequence flowing from the alleged settlement motive. The settlement with Mr Colliac concerned different and more limited issues. Further investigation of its reasons would have been an impermissible fishing exercise.

5. The sentencing judge had properly applied the relevant fraud guideline. Higher culpability arose from abuse of trust, planning and sophistication, and sustained offending. The substantial financial loss and non-pecuniary harm justified a sentence above the starting point. The judge also allowed for the applicant’s personality, mental health evidence and personal mitigation. The total sentence of seven years’ imprisonment was neither manifestly excessive nor affected by error of principle.

• Court of Appeal (Criminal Division): Renewed applications for permission to appeal against conviction and sentence dismissed.
• Crown Court at Southwark: The applicant was convicted on 2 August 2021 and sentenced in his absence on 23 September 2021 to seven years’ imprisonment.