Neeraj Handa, R (on the application of) v Westminster Magistrates' Court

On an application to issue or set aside a summons for a private prosecution, the court must consider whether the essential ingredients of the alleged offence are prima facie present and whether the prosecution would be vexatious, improper or an abuse of process. A private prosecutor owes the court a personal duty of candour and must present a fair and balanced account of material adverse information. That duty cannot be discharged by burying adverse material in supporting papers or delegating responsibility to solicitors. Mixed motives do not by themselves make a prosecution abusive. However, a dominant motive to harm the proposed defendants, unrelated to the proper pursuit of criminal justice, may do so. The Administrative Court will not conduct a full rehearing, but will intervene where the magistrates’ decision is unlawful, irrational or legally erroneous.

The claimant sought judicial review of a decision by a Deputy Senior District Judge at Westminster Magistrates’ Court to set aside summonses issued for a private prosecution against two family members concerning alleged fraud involving company invoices. The magistrates’ court found deliberate breaches of the duty of candour and concluded that the claimant’s dominant motive was to harm the proposed defendants, making the prosecution an abuse of process.

Permission was granted on grounds including irrationality, improper motive, lack of integrity and error of law. The central question was whether the decision to set aside the summonses was unlawful because the findings lacked an evidential basis or applied the wrong legal approach.

1. The judicial review application was refused. The Administrative Court was not conducting a full rehearing of the merits. Its task was to decide whether the magistrates’ decision was wrong in law, irrational or otherwise unlawful.
2. The claimant had breached his duty of candour. It was insufficient that some adverse information might have been contained somewhere within approximately 800 pages of material. The magistrates’ court was entitled to find that the claimant had failed to present a transparent and balanced account, and had positively misrepresented the position.
3. The claimant remained personally responsible for compliance with the obligations of a private prosecutor. He could not avoid those obligations by delegating the preparation of the application to solicitors.
4. The finding that the breaches were deliberate was rational. The court was also entitled to rely on the evidence of longstanding hostility and family conflict in assessing motive. A private prosecutor may have mixed motives, and mixed motives do not automatically amount to abuse. In this case, however, there was an ample evidential basis for finding that the dominant motive was to damage the proposed defendants. That motive rendered the prosecution an abuse of process.
5. The court noted an unresolved conflict in the authorities as to whether non-disclosure must have “would” or “might” have made a difference to the issue of a summons. It was unnecessary to resolve that conflict because the magistrates’ court found that the non-disclosure could have made a difference and independently concluded that the dominant improper motive justified setting aside the summonses.
6. The magistrates’ court therefore acted within the law in setting aside the summonses under the principles governing private prosecutions and abuse of process.

• Westminster Magistrates’ Court: On 12 January 2024, a Deputy Senior District Judge set aside summonses issued for the claimant’s proposed private prosecution.
• High Court (Administrative Court): Permission to apply for judicial review was granted by Lavender J. The claim was refused.