The first relates to costs, and the potential downside of bringing a prosecution. One of the reassuring features of bringing a private prosecution is that the prosecutor may benefit from substantial costs protection: as a general rule, in serious cases the prosecutor can recoup the reasonable costs of investigation and prosecution from central funds (i.e. HM Treasury) even if the defendant is acquitted, provided that they have not acted in bad faith. However, the other side of the coin is amply illustrated by a recent case involving former Leeds United MD David Haigh.
Mr. Haigh, a former deputy CEO of Dubai-based investment firm GFH, was arrested and detained in Dubai in 2014 over claims he falsified invoices in connection with the sales of Leeds United (then owned by GFH) that year. He was ultimately sentenced to two years in jail in Dubai. Unhappy at how events had unfolded, he sought to bring a private prosecution against a law firm partner and two GFH executives, claiming that they were guilty of 'luring him to Dubai under false pretences'. He instructed commercial solicitors and a QC to represent him. The Defendants took a similarly robust approach to their representation, and soon enough, substantial costs were incurred all round.
The case was dismissed and Mr. Haigh was ordered to pay £230,000 towards defence costs. In his ruling, the District Judge left no doubt about his view of the case: “The applicant had choices at the outset and he chose to seek the issue of summonses on a private prosecution whilst in custody in Dubai facing proceedings there. He did so knowing that he would have to conduct proceedings with the possibility that he would remain in custody there. He could have instead gone to law enforcement agencies but chose not to. I am of the clear view that it was wholly improper to launch these proceedings.” Mr. Haigh has indicated that he intends to appeal 'vigorously' and will continue to pursue GFH on his return to the UK.
The case is instructive for prospective private prosecutors and those who would advise them. While the right to bring a private prosecution is relatively expansive, the right is not untrammelled, and the courts will be swift to safeguard against potential abuses and cases which might be perceived as being brought improperly. For some prosecutors such as Mr. Haigh, the drawbacks may be substantial.
The second case relates to the CPS's discretion to take over a private prosecution and bring proceedings to a halt. In February 2012 two doctors were the subject of an undercover operation organised by the Daily Telegraph which alleged that they had agreed to arrange abortion because the foetuses were girls. The evidence obtained was passed to the police. The CPS concluded in 2013 that, while there was sufficient evidence to prove the offences, this was a finely balanced decision and it was not in the public interest to prosecute.
Subsequently, a campaigner named Aisling Hubert commenced a private prosecution against the doctors. The doctors asked the CPS to intervene and stop the prosecutions. The CPS procedure in such cases is to consider whether the case meets the Code for Crown Prosecutors. In March 2015, the CPS concluded that the evidential test was not met, since the prosecution brought by Ms. Hubert relied on a single unsigned and undated witness statement from her which was not supported by the more comprehensive evidence obtained as part of the earlier police investigation.
Notwithstanding this, in order to give the case the fairest possible consideration, the CPS decided to consider the charge in light of all evidence known to exist (including the original case papers considered by the CPS in 2013). Ultimately, the CPS concluded that there was 'just sufficient evidence' to provide a realistic prospect of conviction but that the public interest factors against a prosecution outweighed those in favour, for the reasons previously given. The CPS noted that an important consideration to both the evidential and public interest tests was the fact that there was, at the time, no professional guidance as to how doctors should go about the comparative risk assessments, and experts instructed to consider the case had differing views on the issue. Ms. Hubert was subsequently ordered to pay £25,000 towards defence legal fees.
In an interesting postscript to the case, one of the doctors was very recently suspended from practice for three months by the Medical Practitioners' Tribunal Service for agreeing to record a false reason for the patient wishing to terminate her pregnancy. The case highlights the difficulties in bringing prosecutions which the CPS have already actively considered, and illustrates that not only will the courts become involved to ensure that prosecutions are brought properly, but that the CPS also takes its role as the public prosecutor seriously.
The final case illustrates the range of offences and potential prosecutors. Last month, as part of a crackdown on attacks by dogs on postal workers, Royal Mail brought a successful prosecution for owning a dog dangerously out of control against a woman whose dog mauled the arm of a postman, leaving him with 'skin hanging' from a deep, six-inch wound. It is understood that the dog had been involved in previous incidents. The case resulted in the defendant (who expressed significant remorse and volunteered to have the dog, which she had adopted as a stray four years previously, put to sleep) being subjected to a curfew, banned from owning a dog for 18 months, and having to pay costs and compensation.
According to Royal Mail, attacks on postal workers average ten a day, with there being approximately 3,000 bites a year. Royal Mail's policy highlights that, while many prosecutors may be individuals seeking to address a private grievance through the criminal process, organisations such as Royal Mail and the RSPCA will continue to use the right to bring a private prosecution to deter criminality and to enforce conduct and issues which affect their work and their employees.
In a time of budget cuts and state retrenchment, private prosecutions have often been described as a 'growth area', and more high profile cases are likely to emerge soon (the Guardian recently reported that three directors of Compass Group, the FTSE 100 catering company, are due to appear in court over allegations that they committed fraud in relation to how they dismissed an alleged whistleblower in 2013, and there have bene press reports that families of individuals who died in the Glasgow bin lorry crash may seek a private prosecution of the driver). The cases discussed here illustrate some of the benefits, but also some of the pitfalls of the often misunderstood right to bring a private prosecution.
David Northfield is part of Fieldfisher's Private Prosecutions team which specialises in regulatory, intellectual property and fraud cases. To discuss criminal prosecutions, please contact David or any of the other specialists listed on our Private Criminal Prosecutions page.