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Private prosecutions—abuse of process (Asif v Ditta and Riaz)

Posted on 17 September 2021. Source: Lexis Nexis

Corporate Crime analysis: The Court of Appeal refused a renewed application by the private prosecutor (Mr Asif) for permission to appeal against the Crown Court judge’s terminating ruling, pursuant to section 58 of the Criminal Justice Act 2003. The ruling in question was a stay of the proceedings, the lower court having determined that the circumstances of the case were such that it would be an abuse of the court’s process to permit the prosecution to continue. In so deciding, the Court of Appeal made a number of significant findings and observations to which those advising private prosecutors will want to have due regard, including in relation to: parallel civil proceedings; the impact of a private prosecutor’s motive; the court’s approach when dealing with a ‘proxy’ prosecutor; and the court’s power to award costs against parties, their legal representatives and third parties, in accordance with, respectively, sections 19, 19A and 19B of the Prosecution of Offences Act 1985. 

Muhammed Asif v Adil Iqbal Ditta and Noreen Riaz [2021] EWCA Crim 1091

What are the practical implications of this case?

This was very much a case decided on its own facts (which Lord Justice Davis, the single judge who initially refused permission to appeal, called ‘on any view…a remarkable case’) and, as an appeal against a terminating ruling, was determined on the basis that the court concluded that the judge erred neither in law nor in principle in his analysis and reached a decision that was ‘not unreasonable’.

Nonetheless the way in which existing principles were applied to the facts has some important wider implications. The case is a further reminder that the courts will be vigilant to ensure that the criminal justice system is not being used for an improper purpose.

The court referred to two factors in particular that had informed its decision, namely:

  • the question of the proxy prosecutor. On the facts of the case there were indications that the person aggrieved was a Mr Gohir, who had chosen not to be the prosecutor for various collateral reasons, including his own bad character. The Crown Prosecution Service (CPS) may, on account of this case, be even more alert to the possibility of abuse using a proxy prosecutor, and
  • the decision in this case not to bring civil proceedings. We add that compensation, restitution and confiscation are all properly parts of the criminal sentencing process, and we do not take the Court of Appeal to be saying that seeking what one has lost is an improper motive or that civil proceedings should or must be brought in every case in which there is an element of loss

It is of note that the court found that:

‘While a dominant public interest is not required, as the authorities make very clear, the absence of any expression of a public interest rationale, taken together with the clear expression of an oblique motive is telling.’

This, we would say, reinforces what has for some time now been regarded as good practice, which is the consideration of the Full Code Test by private prosecutors at the point of commencing proceedings. The court’s decision to communicate its analysis and conclusions through the language of the Full Code Test (its strict non-application to private prosecutors notwithstanding) is therefore one of the many important takeaways from this judgment.

In addition, the case serves as a reminder of the costs orders that the court can make, against a prosecutor, third parties and, where appropriate (which was not the case here) against legal representatives.

What was the background?

The facts are unusual and what follows is a heavily abridged summary.

Two separate frauds were alleged as well as other counts including money laundering. The first fraud related to a joint venture investment in land and the second concerned shares in a company. The evidence and underlying material (including evidence of attempts to negotiate a settlement of the asserted debt) indicated that it was Mr Gohir, and not Mr Asif, who claimed that monies were owed, who featured in the negotiations and who had conducted the investigations that led to the commencement of the private prosecution.

Mr Gohir had previously been found by a VAT tribunal to have played a ‘subordinate role’ in an £18m VAT ‘missing trader’ fraud (Missing Trader Intra-Community (MTIC) fraud) in relation to mobile phones. He had also been convicted in Germany of being ‘the ringleader’ in a €136m MTIC fraud and sentenced to three years’ imprisonment. Mr Gohir was based in the UK, but the prosecution was brought by Mr Asif, who was not.

In refusing an application for a restraint order, the initial Crown Court judge noted some concerning features of the case, including the fact that, on the prosecution’s case, a solicitor, Mr Bunting, was said to be complicit in the fraud and civil proceedings against him had been brought but related only to allegations of negligence. No civil proceedings were brought in relation to the allegations of fraud, or the resulting debt claim itself, or against the defendants in the prosecution. The judge therefore questioned the motives of the prosecutor.

In due course an application was made to His Honour Judge Tomlinson who concluded that the proceedings should be stayed as an abuse of process (under the second category: to protect the integrity of the criminal justice system). The Court of Appeal hearing dealt with the prosecutor’s renewed application for permission to appeal the stay.

What did the court decide?

The following are significant points from the court’s decision:

  • a stay of proceedings is an exceptional step, and is not a substitute for other powers available to the court, for example, to dismiss the charges or to refer a private prosecution to the CPS to be reviewed in accordance with the test in the Code for Crown Prosecutors
  • mixed motives are not of themselves a bar to a private prosecution but here the prosecution was ‘being brought primarily to accomplish a purpose for which it was not designed’ (para [81])
  • the absence of civil proceedings was, in all the circumstances, a ‘striking anomaly’
  • it was appropriate to consider (as the single judge had done) whether ‘the prime unambiguous motivation is leverage to enforce a person’s liability’ (para [80]). We note that the absence of civil proceedings was coupled with the fact that there had been extensive attempts to negotiate a settlement. The prosecutor could not claim that he had simply decided that the criminal law offered the most appropriate recourse
  • • the judge was entitled to consider on the evidence before him that Mr Gohir was the moving force behind the prosecution and Mr Asif was no more than a proxy prosecutor. This was a matter going to conduct, and an attempt to ‘pull the wool over the Court’s eyes’ (para [90])

As a consequence, the Court of Appeal concluded that ‘this prosecution is being used for private tactical and oppressive reasons and the judge made no arguable error in staying the proceedings as an abuse’ (para [94]).

Practitioners should also note the various decisions on costs, including the order made against Mr Gohir as a third party, which we do not attempt to deal with here.

Case details:

  • Court: Court of Appeal (Criminal Division)
  • Judge: Mr Justice Jay (President of the Queen’s Bench Division), Mrs Justice Cockerill
  • Date of judgment: 15 July 2021

This analysis was first published on Lexis®PSL on 10 September 2021 and can be found here (subscription required).

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