What Is Abuse of Process in a Private Prosecution?
Abuse of process in a private prosecution occurs when a case is brought in bad faith, for an improper motive (such as when it is part of an attempted vendetta or extortion), or when a fair trial is impossible.
The court can stay proceedings that are an affront to justice, which may occur when there is significant delay, a failure to disclose evidence or the criminal court being used to gain tactical leverage in civil disputes.
The Court’s Power to Prevent Unfair or Improper Prosecutions
If an application is made to stay proceedings (which means to halt them) on the grounds that there has been an abuse of process, a prosecutor must first review the case.
The Code for Crown Prosecutors states that: “Prosecutors should not start or continue a prosecution where their view is that it is highly likely that a court will rule that a prosecution is an abuse of its process, and stay the proceedings.”
The court in Guest v DPP [2009] EWHC 594 (Admin) [58] put it as follows:
“A decision to stay proceedings is a rare outcome. In a case in which, in accordance with the Code for Crown Prosecutors, the evidential and public interest tests are otherwise met, it will thus be in only the most exceptional case, where the Prosecutor can say with a high degree of certainty that a court will rule that a prosecution is proved to be an abuse of its process, that a decision not to prosecute is likely to be valid.”
As a result, prosecutors should not bring proceedings where it is highly likely that the court will find that:
- the defendant cannot have a fair trial or
- that a stay of proceedings is necessary to protect the integrity of the Criminal Justice System
Abuse of process arguments are particularly common in private prosecutions, with the subject of such a prosecution putting reasons forward as to why it should not be allowed to go ahead. This means that the courts have to consider such arguments, as their focus has to be on fairness, the integrity of the justice system and preventing misuse of criminal proceedings.
Why Abuse of Process Is a Key Issue in Private Prosecutions
With private prosecutions being brought by individuals, companies and organisations rather than by state agencies - as is the case with “normal’’ prosecutions - they are subject to greater levels of scrutiny. This is partly because private prosecutions have not gone through the conventional route of the evidence being assessed before any decision is made to prosecute, as happens with other prosecutions. There is, therefore, a need to assess the strength of the evidence, the facts that have prompted the prosecution and the motivations of those who have brought it.
Those bringing a private prosecution are not independent state authorities - like, for example, the Crown Prosecution Service (CPS) or the Serious Fraud Office (SFO) - and are less likely than them to take the same objective approach when considering whether there are sufficient grounds to bring a private prosecution.
While it will certainly not always be the case, there is the risk of private prosecutions bring brought to:
- Obtain some form of tactical advantage in a dispute.
- Gain commercial leverage over another party.
- Raise the stakes in a personal dispute.
It is because of this that the courts apply greater vigilance with private prosecutions to ensure there is no misuse of the criminal law. Judicial concern over the reputational and coercive impact on defendants is a factor in the courts scrutinising private prosecutions.
Common Grounds for Abuse of Process in Private Prosecutions
If a private prosecutor is acting without any independence or objectivity, their conduct may fail to meet the standards required by the court. This can provide grounds for a private prosecution to be stayed on the grounds of abuse of process.
Grounds for abuse of process in private prosecutions exist when proceedings are brought in bad faith, for an improper motive or where a fair trial is impossible. Applications to stay proceedings can be made at any stage of the prosecution.
The main grounds for claiming abuse of process include:
- Improper motive / ulterior purpose: That a private prosecution is being brought to the criminal court to achieve an advantage rather than to bring to justice someone who had committed an offence. Such action can be carried out, to give two examples, in retaliation for something that the subject of the private prosecution has done or to apply pressure on them.
- Malicious prosecution: That charges are being brought against someone as part of a vendetta, knowing that the person being prosecuted is innocent or ignoring evidence that the person has already been cautioned for the conduct that is the reason for the private prosecution.
- Advancing interests in a civil dispute: This reason can go hand in hand with the previous two, with the prosecution being brought to further the prosecutor’s own interests - such as an improper financial motive - rather than to obtain justice.
- Making a fair trial impossible: This covers the actual conduct during the private prosecution process rather than the reasons for the prosecution. A failure to disclose evidence by the private prosecutor or unjustified delays that harm the defendant can be considered reasons why it is not possible for a fair trial to be conducted.
- Interference with a public prosecution: If the private prosecution interferes with an ongoing or planned investigation (and possible prosecution) by the Crown Prosecution Service (CPS).
The burden of proof rests with the defendant to establish that there has been an abuse of process.
Using a Private Prosecution as Leverage in Civil or Commercial Disputes
While Section 6(1) of the Prosecution of Offences Act 1985 allows individuals or organisations to bring their own prosecutions when public bodies such as the Crown Prosecution Service (CPS) or Serious Fraud Office (SFO) will not act, there are limits on the use of private prosecutions.
To take some examples, a private prosecution should not be used as a means of:
- Pressuring another party in a financial dispute.
- Escalating an employment dispute into a criminal matter.
- Forcing another to accept a particular agreement or to undertake a particular action.
The courts are alert to such scenarios and recognise the possibility of such problematic actions being brought. While it is possible that a private prosecution may help a civil case that is based on some of the same circumstances, the courts will view the bringing of a prosecution to force a settlement or gain some form of advantage in civil litigation as abuse of process. To take one example, in the case of Morjaria v Westminster Magistrates' Court, a prosecution was stayed because correspondence showed it was being used to put "unjustifiable pressure" on a party.
Disclosure Failures and Abuse of Process
It is important to remember that abuse of process is not something that has to be done intentionally.
When it comes to disclosure, a failure by those bringing the prosecution to meet their obligations can be viewed by the court as an abuse of process, regardless of whether the prosecutor’s failures were deliberate or accidental. Disclosure in private prosecutions is a technical issue. But it can be a decisive issue when it comes to abuse of process.
Private prosecutors have the same disclosure obligations as public prosecutors. Any withholding of unused material, selective / partial disclosure and poor record keeping can undermine the chances of a fair trial and can lead to the court staying the proceedings.
How Courts Decide Abuse of Process Applications
Courts will decide if there has been an abuse of process by determining if a party has misused or manipulated the legal system, rendering a fair trial impossible or making further proceedings unfair. Judges will assess whether the actions are vexatious, frivolous or intended to cause unnecessary delay.
The factors and principles that a court will consider in such a situation include:
- The two-limb test (criminal): Whether a fair trial is no longer possible due to circumstances such as significant delay, destroyed evidence or extreme prejudicial publicity. And whether it is unfair to try the defendant regardless of a fair trial, for example if the prosecution breaks a promise not to prosecute, acts oppressively or brings a case in bad faith.
- Whether the private prosecution is an attempt to reopen issues that have already been determined by a court.
- Whether the case has been delayed deliberately to gain a tactical advantage.
The court will assess each private prosecution for any sign that the proceedings are unfair and / or undermine the integrity of justice. As a result, those who bring private prosecutions are being held to a high standard by the court, which will look to ensure proportionality and fairness.
Consequences of a Finding of Abuse of Process
If a court finds there has been an abuse of process, this is viewed as a serious matter. This is reflected in the action that the court may take in such a situation.
The inherent jurisdiction of the court to stop a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances. (Attorney General's Reference (No 1 of 1990) [1992] QB 630 CA; Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72 HL.)
In criminal proceedings, a judge may stay (stop) a case if the defendant cannot receive a fair trial due to immense delay, lost evidence or prosecutorial misconduct or if the prosecution has broken a promise that led the defendant to believe they would not be prosecuted. In such circumstances, it is possible for the case to be dismissed, regardless of the strength of the evidence that the prosecutor may have assembled as part of their legal action.
It is also possible for cost orders to be made against the private prosecutor if a court finds there has been an abuse of process. A finding of abuse of process can also cause severe damage to the reputation of anyone whose private prosecution has failed because of it.
Can Abuse of Process be Raised at any Stage of a Private Prosecution?
Abuse of process is something that can be raised at various stages of a private prosecution.
An argument that there has been an abuse of process can be made at the earliest stages of a private prosecution being brought. The issue can also be raised during the disclosure process if the defendant feels that the prosecution has not been fair and open in sharing material that is relevant to the case.
Such an argument can also be made shortly before the trial is about to begin. A court will consider the argument at such a late stage as it has a duty to ensure that all parties in a case are treated fairly at all points of the private prosecution process.
But while abuse of process can be raised at various stages during the private prosecution procedure, this is not something that should be rushed. There are also situations where it may not even be appropriate to raise it at the earliest available opportunity. Maximising the chances of a successful abuse of process argument can require careful research and timing. There may even need to be an element of tactical thinking when devising, preparing and making the argument. It is something that requires detailed consideration, meticulous planning and legal expertise in order to achieve the desired outcome.
How Private Prosecutors Can Avoid Abuse of Process Challenges
While abuse of process can be a major problem for those who bring a private prosecution, it is also something that can be avoided. Any well-planned, carefully-conducted private prosecution can ensure it avoids the abuse of process pitfalls outlined elsewhere in this article.
Such an approach will require the prosecution to be handled by those with the appropriate levels of experience and expertise, who will recognise the areas where particular attention needs to be paid to avoid an abuse of process argument being made.
No two private prosecutions are identical. But there are aspects of private prosecutions that are most likely to lead to an abuse of process argument being raised.
These are:
- Evidential review before proceedings: those bringing the prosecution need to examine the strength of the evidence that supports their case and ensure it has been obtained through lawful means and will be admissible in court.
- Clear separation of civil and criminal objectives: the prosecutor needs to be certain that they are bringing the prosecution to obtain justice rather than to further any other objectives (which have been detailed elsewhere in this article).
- Disclosure: full compliance with all obligations relating to disclosure of evidence and other material relevant to the case is a necessity.
In general terms, a private prosecution has to be driven by objective assessment of the circumstances and decision-making. It is most likely to require legal advice at the earliest opportunity from specialist solicitors.
How Solicitors Advise on Abuse of Process in Private Prosecutions
Specialist legal advice is important in all parts of the private prosecution process. From deciding whether there is a strong enough case to bring a prosecution through all the required preparation and the “day in court’’ - it is important that all matters are handled by those with the relevant expertise.
The importance of abuse of process cannot be over-emphasised in such cases.
The right legal advice is important in:
- Assessing whether any aspects of a planned private prosecution could be vulnerable to abuse of process arguments and, if so, how these could be addressed, reduced or removed.
- Advising defendants on stay applications; including identifying suitable grounds for such an application and how and when to make one.
- Advising prosecutors on risk mitigation – ensuring that all possible arguments, conduct and tactics mean the strongest possible case is put to the court.
- Managing all disclosure and procedural obligations so that the case can proceed smoothly and without delay.
Key Takeaways on Abuse of Process in Private Prosecutions
Abuse of process is just one consideration for those bringing or defending a private prosecution. But it is a major one as it has the potential to stop a private prosecution at various stages in the process.
The courts will scrutinise the motives of those bringing a private prosecution as well as their conduct and the fairness of the prosecution itself. If there are any grounds that the court identifies for there being an abuse of process, that could mean the end of the prosecution – however strong the evidence that has been compiled by the prosecutor.
It is important, therefore, that specialist legal advice is sought by anyone bringing or defending a private prosecution, in order to determine the potential for an abuse of process argument.
Specialist Advice on Private Prosecution Abuse of Process
As this article has explained, abuse of process has to be viewed as a key factor in private prosecutions – one that neither prosecutor nor defendant can afford to ignore.
Seeking informed, confidential legal advice can be key to ensuring that abuse of process is addressed in a way that helps secure the best possible outcome to a private prosecution.
Any private prosecution will require an assessment of procedural risk as early as possible. From that point onwards, there will be a need for intelligent, strategic representation so that matters proceed in a way that sees all potential abuse of process arguments managed appropriately and justice obtained.
