Antony Bates, R (on the application of) v Highbury Corner Magistrates’ Court (District Judge Brennan)

The court quashed the issue of a magistrates' court summons and the decision to send the defendant to Reading Crown Court. The Claimant succeeded in judicial review because the private prosecutor had failed to comply with the duties incumbent on a prosecutor, including the duty of candour, and the application for a summons did not comply with the Criminal Procedure Rules (CrimPR r.7): it lacked coherent particulars and a proper outline of grounds (r.7.2.6; r.7.3(1)(b)). The material served with the application was unreliable and, in some respects, misleading; key adverse material (including the SFO conclusion and the Chancery Division restructuring proceedings) was not disclosed. The District Judge was wrong to issue the summons ex parte on the material before him and wrong to refuse to set the summons aside when cogent arguments were raised at the magistrates' hearing. The application for a summons was found to be misconceived, vexatious and an abuse of process.

Background and parties:

• The Interested Party, a former Hibu shareholder and director of Hibu Shareholders Grouping Ltd, applied ex parte for a magistrates' court summons in May 2023 alleging complex fraud and embezzlement by the Claimant, who had been Hibu's chief financial officer. The application reached District Judge Brennan in May 2024.
• The application pleaded ten dishonesty offences and relied on pasted extracts from public financial reports and assertions that approximately 1bn of assets had gone missing; it contained no coherent particulars or evidential analysis and omitted material adverse information.

Procedural posture and relief sought:

• The Claimant applied for judicial review seeking quashing of the decision to issue the summons and the decision to send the matter to the Crown Court. Interim relief staying the criminal proceedings had been granted by Ritchie J on 27 September 2024.

Issues for the court:

• Whether the private prosecutor complied with the duties of a prosecutor (including the duty of candour) and with the Criminal Procedure Rules when applying for a summons;
• Whether the District Judge was entitled to issue the summons ex parte on the material before him and whether, having issued the summons, he should have set it aside at the 29 August 2024 hearing; and
• Whether the application for a summons was vexatious or an abuse of process such that it should be quashed.

Court's reasoning and findings:

• The court applied the authorities and principles governing private prosecutions and prosecutorial duties (as explained in R (Kay) v Leeds Magistrates' Court) and emphasised the duty to disclose material that might assist the defence and to consider what the defendant would say.
• The Interested Party had not undertaken any proper evidential analysis before making the application, had failed to disclose material which was plainly material to the court's decision (including the SFO's conclusion and the Chancery Division restructuring approvals), and had in places provided misleading information.
• The written application did not meet the requirements of CrimPR r.7: it did not provide coherent particulars of offence nor a proper outline of the grounds for asserting the defendant's guilt (r.7.2.6; r.7.3(1)(b)).
• At the magistrates' hearing the prosecutor still produced no coherent evidence; the limited material later put before the court by the Claimant (for example, audited accounts for Yell Finance BV) undermined the central assertion that large sums had been concealed or transferred improperly.
• Issuing a summons in relation to an alleged 1bn fraud on the basis of the material before the District Judge was irrational; the judge should not have issued the summons ex parte and ought to have set it aside when the substantive arguments were raised.
• Overall the application was misconceived, vexatious and an abuse of process; the appropriate relief was to quash both the issue of the summons and the decision to send the matter to the Crown Court.

Other matters:

• The Interested Party consented to quashing the proceedings but contested costs; the court heard full argument to provide a reasoned judgment that may have implications for other private prosecutions and for potential further applications by the Interested Party.

The claim for judicial review succeeds. The court quashed both the issue of the summons and the decision to send the Claimant to Reading Crown Court for trial because the private prosecutor failed to comply with the duties of a prosecutor (including the duty of candour), the CrimPR requirements for an application were not met, and the application was misconceived, vexatious and an abuse of the court's process. The District Judge was wrong to issue the summons ex parte and to refuse to set it aside at the magistrates' hearing.

The claim for judicial review was issued on 20 September 2024. Interim relief staying the criminal proceedings was granted by Ritchie J on 27 September 2024. Lang J directed a rolled-up hearing for permission and the substantive hearing on 28 October 2024. The Interested Party attempted to discontinue the criminal charges by a notice purporting to rely on section 23A of the Prosecution of Offences Act 1985, but that notice was not valid as section 23A applies only to public authorities. The present judgment disposes of the substantive judicial review claim.