Private Prosecutions - Case Update

Posted on 04 December 2018 by Gareth Minty & Kate Newson

Private Prosecutions - Case Update

In an important judgment for practitioners and victims of crime, the High Court has granted an application pursuant to Civil Procedure Rules ('CPR') rule 31.22 for permission to use documents disclosed by the defendants in a civil claim as evidence in a private prosecution.

Background

The civil claim arose from a commercial agreement in which the claimant alleged that he was entitled to a 50% share of two of the defendant's commercial properties as part of an alleged joint venture agreement. The criminal case is a private prosecution that is being brought against two of the five defendants in the civil proceedings, Mohammed Saddiq and Babar Saddiq, for mortgage fraud and for transferring one of the properties to a company owned by the Saddiq brother's sons without the claimant's consent.

Fraud was not pleaded in the civil case but some of the factual matters that gave rise to the civil claim were also present in the criminal proceedings.  

The law

CPR 31.22 provides as follows:  

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which

it is disclosed, except where –

(a) …

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

In determining whether to grant permission under CPR 31.22 HHJ Cooke found that the discretion was "a general one, to be exercised in the interests of justice in all the circumstances of the case, having particular regard to the fact that documents are disclosed under compulsion and are prima facie to be kept confidential and used only for the purpose of the proceedings so that some good reason has to be shown for permitting any other use, but this does not mean that the grant of permission is rare or exceptional if a proper purpose is shown, and use in other proceedings such as criminal proceedings brought in the public interest may be such a purpose. The court must be satisfied there is no injustice to the party compelled to give disclosure."

Guidance for future applications

In granting the application, the Judge determined that the following factors were relevant to the exercise of his discretion in accordance with CPR 31.22:

  • That there is considerable public importance in facilitating the effective prosecution of serious crimes such as fraud, whether or not it amounts to 'serious fraud' per the legislation relating to the SFO;
  • The fact that a private prosecution is not a private matter and a private prosecutor is bound to have regard to the public interest;
  • That there was no allegation that the private prosecution might be being brought improperly;
  • The duty on a prosecutor to provide all the evidence to the criminal court in relation to the charges and the hindrance that would be caused if relevant evidence is withheld by the civil court;
  • The question of the impact, if any, on the defendants' privilege against self-incrimination, as well as any injustice to the defendants that would result from a decision giving permission to use the documents; and
  • The fact that the proposed use in criminal proceedings could not be said to constitute, in any sense, use for an 'improper' purpose. 

The case therefore provides helpful guidance to those seeking to use documents that have been disclosed in related civil proceedings in support of a private prosecution.  Nevertheless, given the issues that such applications raise and the balancing act that the Court must perform when exercising its discretion, it will be important to obtain legal advice as early as possible. 

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