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

A private prosecutor must approach an application for a summons with the same fundamental obligations as a public prosecutor, including candour, proper analysis of the proposed charges and disclosure of material information. The application must provide coherent particulars and a proper outline of the grounds for alleging that the proposed defendant committed the offences. A serious summons, particularly on an ex parte basis, cannot rationally be issued without a proper evidential foundation. The magistrates’ court must fully consider a defendant’s application to set aside or stay a summons. Sending the matter to the Crown Court is not a substitute for resolving defects that show the prosecution to be misconceived, vexatious and abusive.

James Westhead applied to Highbury Corner Magistrates’ Court for a summons alleging that Antony Bates, a former chief financial officer of Hibu PLC, had committed multiple dishonesty offences arising from the company’s insolvency and shareholders’ losses. The District Judge issued the summons and sent the matter to the Crown Court for trial.

Mr Bates applied for judicial review after the District Judge declined to set the summons aside. The Interested Party later accepted that the criminal proceedings should end. The central issues were whether the summons had been lawfully issued, whether the magistrates’ court should have set it aside, and whether the proposed private prosecution was an abuse of process.

1. Claim allowed. Permission to apply for judicial review was granted. The decisions to issue the summons and to send the matter to Reading Crown Court for trial were quashed.
2. A private prosecutor is subject to the same fundamental obligations as a public prosecutor, including the duty of candour and the duty to ensure that relevant material is made available to the court and the defence. An ex parte applicant must consider and disclose what the proposed defendant would say to the judge. The Interested Party failed to comply with those duties and did not undertake any proper analysis of the proposed charges or supporting evidence: [2018] EWHC 2018 (Admin).
3. The application failed to comply with the Criminal Procedure Rules 1998. It did not provide sufficiently coherent particulars of the alleged offences under rule 7.3(1)(b), nor a proper outline of the grounds required by rule 7.2(6). The material supplied did not provide a rational evidential basis for an alleged £1 billion fraud. The summons should not have been issued, and at the very least the proposed defendant should have been given notice and an opportunity to make representations.
4. The right to apply to the magistrates’ court to set aside or stay a summons is an important safeguard. The District Judge wrongly treated the merits of the objections as matters for the Crown Court. The arguments had to be fully considered in the magistrates’ court, and sending the case to the Crown Court would merely waste its resources.
5. The prosecution was misconceived, vexatious and an abuse of process. The Interested Party’s additional motives, including seeking litigation funding, did not by themselves make criminal proceedings inappropriate; the decisive defect was the absence of any proper evidential basis. Costs were not determined at this hearing.

The claim for judicial review was issued on 20 September 2024. Ritchie J granted interim relief staying the criminal proceedings on 27 September 2024. Lang J directed a rolled-up hearing on 28 October 2024. The present court granted permission and allowed the substantive claim.