D Ltd v A & Ors (2017)
A judge's decision to stay private criminal proceedings as an abuse of process could not stand where there was an error of law and principle in her approach in reaching the decision she reached, and in consequence her ruling was one which it was not reasonable for her to have made.
The appellant company appealed against a decision staying its private criminal proceedings against the respondents as an abuse of process.
The appellant, a company specialising in the legal expenses insurance business, had commenced a private prosecution against the respondents for fraud and money laundering. The first and second respondents were senior employees of the company; the third, fourth, fifth and sixth respondents were their wives and their friends. The appellant considered that it had been the subject of a sustained fraud by the first and second respondents, starting in 2000 and successfully concealed until 2014. It referred the matter to the police, but they declined to investigate further for a number of reasons including lack of evidence at that time. The appellant decided on a private prosecution and summonses were issued. After the matter was sent to the Crown Court, the applications to stay on the ground of abuse were made. The individual having responsibility within the appellant for supervisory disclosure had been its control risks manager (E) of whom the respondents were fiercely critical. They took the view that the principal individuals involved on behalf of the appellant had a mind-set entirely fixed against them; that they had lost all sense of impartiality; and that they could not be relied upon to behave with the fairness and objectivity required of a prosecutor. The judge determined that the appellant had set out to look for evidence which implicated the respondents and wilfully ignored, or tried to suppress, evidence which did not assist in that goal. So far as their solicitors were concerned, the judge found that, as solicitors to the appellant, they had pursued an "ultimately pernicious" course of conduct which had "irredeemably tainted" the whole process "particularly with respect to witnesses", and that what had happened could not "be remedied through the trial process".
The appellant submitted that the judge conflated the two different limbs to the exercise of the court's jurisdiction to stay, which were legally distinct and had to be considered separately.
Limb One : A fair trial
Suppression of evidence - There was no sufficient evidential basis for the judge's unequivocal finding, which was, on the available evidence, not fair to the appellant or to E. That error had "infected" the whole ruling and ultimate decision. That of itself entitled the instant court to interfere with the judge's exercise of discretion and overall evaluation (see paras 54-56 of judgment).
Motives - There was no basis for a finding of improper motives such as to vitiate the entire prosecution. The predominant motive was clear: to seek just retribution from respondents who, the appellant was convinced, had engaged in a sustained criminal fraud (paras 57-60).
Solicitors' conduct - To say that the solicitors' approach was "ultimately pernicious" went too far. There was room for criticism of the partner with overall responsibility. However, it was not possible to see how those criticisms of her conduct would have caused a fair trial not to be possible or would have caused irredeemable prejudice to the defence (paras 61-68).
Witnesses - There were unsatisfactory features in the evidence gathering. However, the respondents' stated concerns, for the purposes of assessing the fairness of a future trial and whether irredeemable prejudice had been created, were exaggerated. To a very great extent, the current prosecution case - and the witnesses' prospective evidence - was demonstrably document-based. It was very doubtful at this stage whether the way in which the witnesses' evidence had been obtained or interviews conducted ultimately would have any significant materiality or would result in significant and irreversible prejudice (paras 69-75).
Disclosure - The respondents could point to no specific instance of non-disclosure of relevant documentation. There was nothing to show any substantive or material want of disclosure at this stage (paras 76-88).
Conclusion - The judge's finding that the appellant had wilfully suppressed evidence was not open to her, on the material available. The judge's finding that the solicitors' conduct was "ultimately pernicious" such that what happened could not be remedied through the trial process was not open to her, on the material available. Further, the judge's approach to limb one brought in and gave undue emphasis to certain matters, such as motives and aspects of conduct, which would more relate to limb two. The judge overall erred in law and in principle and reached a conclusion which was not a reasonable one for her to reach, R. v R  EWCA Crim 1941 followed (para. 89).
Limb Two : It would not be fair for the respondents to be tried
Adopting the requisite balancing process, the instant court was not persuaded that a stay should be granted on the basis of the appellant's motive or its, and its solicitors', prosecutorial conduct. Such a course was exceptional; and the circumstances of the instant case did not call for such a conclusion. The motives and conduct of the appellant and its solicitors did not justify a stay, when set against the public interest in upholding a person's statutory right to initiate and pursue a private prosecution and the public interest in alleged serious criminality in the form of a sustained and major fraud being the subject of prosecution. Accordingly, the respondents' arguments based on limb two were rejected. The integrity of the justice system was not impugned by permitting the case to go to trial (paras 90-95).