R v Sarabjit Khera & Ors

A category 2 stay of a private prosecution is an exceptional remedy. A prosecutor’s desire to recover money lost through alleged dishonesty is not, without more, inconsistent with a proper public-interest purpose. Abuse and oppression are distinct: distress and inconvenience from serious criminal proceedings do not establish oppression. The court must assess promptness, any prosecutorial misconduct, and balance the public interest in trying serious crime against the integrity of the criminal justice system. A properly conducted private prosecution which satisfies the evidential and public-interest stages of the Full Code Test will not ordinarily threaten that integrity.

Private prosecutors brought proceedings against five defendants on charges including conspiracy to defraud and money laundering. The Crown Court at Birmingham stayed the proceedings as a category 2 abuse of process, finding that the prosecutors’ primary motive was recovery of money and that criminal proceedings had been used as leverage.

The private prosecutors appealed under section 58 of the Criminal Justice Act 2003. The central issues were whether the judge had erred in assessing motive and oppression, and whether he had failed to balance the public interest in prosecuting alleged serious crime against the integrity of the criminal justice system.

1. Appeal allowed. The court granted leave, reversed the stay and ordered that proceedings against each defendant could resume in the Crown Court.
2. Applications to stay for abuse should be made promptly under rule 3.28 of the Criminal Procedure Rules. The defendants knew almost all relevant facts when proceedings began, yet delayed their applications without satisfactory explanation. That delay undermined their contention that oppression required a stay.
3. The judge attached excessive weight to letters before action. In allegations of dishonesty causing financial loss, a desire to recover money is not inconsistent with a proper desire to bring offenders to justice. The Sentencing Code also recognises reparation as a sentencing purpose. The prosecution concerning Dr Wietzke could not provide the private prosecutors with financial recovery, which further weakened the alleged oblique motive. The absence of civil proceedings was relevant but not decisive.
4. Oppression is a strong and distinct requirement. It adds materially to the need to show abuse or misuse of the court system. The distress and inconvenience inherent in being prosecuted for serious Crown Court offences are insufficient. A financial motive must render continuation of the proceedings truly oppressive. The judge effectively equated financial motive with oppression and reached a conclusion that was not open to him.
5. Category 2 abuse is exceptional and requires careful consideration of the public interest. A fair trial remains a prerequisite, but unfairness to the defendant is not itself required. The court must consider any prosecutorial misconduct or bad faith, whether a stay is needed to protect the integrity of the criminal justice system, and the competing public interest in trying those charged with crime. The seriousness of the alleged offending is a factor, not a threshold confined to grave crimes. The private prosecutors had acted properly, the Full Code Test was satisfied, and continuation did not threaten the integrity of the criminal justice system.
6. The ruling involved errors of law and principle and was not reasonable for the judge to make within section 67 of the Criminal Justice Act 2003. Reporting restrictions were continued under section 71, with consequential orders under section 4(2) of the Contempt of Court Act 1981. The court also invited allocation of a different venue and judge. A further note dated 14 April 2026 recorded that the restrictions had been lifted after the proceedings concluded.

• Court of Appeal (Criminal Division): Granted leave, allowed the appeal, reversed the stay and ordered that the prosecutions could resume.
• Crown Court at Birmingham: HHJ Rochford stayed the proceedings on 10 January 2024 as a category 2 abuse of process.