15/05/24

Private Prosecution | Abuse of Process

Private Prosecution | Abuse of Process
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Prosecutions of alleged criminal offences are ordinarily brought by the Crown Prosecution Service (‘the CPS’) upon evidence provided by a public authority, such as the Police, HMRC, the Serious Fraud Office, but can also be through Private Prosecutions.

If the CPS chooses not to undertake a Prosecution, for any reason, an individual or organisation may decide to initiate a Private Prosecution instead.

As a criminal defence solicitors, KANGS is well versed in defending a wide variety of private criminal prosecutions on behalf of individual and corporate clients.

Pursuing a Private Prosecution is a serious and difficult procedure and those doing so are controlled by, amongst other things, the Criminal Procedure Rules. Part 7.2 of such Rules controls the issue of a summons in a Magistrates’ Court and by virtue of Paragraph 14, a court can decline to issue a summons where it is considered that ‘the prosecutor’s dominant motive would render the prosecution an abuse of the process of the court’.

We are able to advise clients on the legality of any summons received and to formulate a defence strategy which can include challenging the validity of the summons on the grounds of an abuse of process.

In Morjaria v Westminster Magistrates' Court [2023] EWHC 2936 (Admin), it was decided that seeking consent to pursue a Private Prosecution designed to impose unjustifiable pressure on an opponent in an ongoing claim amounted to an abuse of process.

John Veale of KANGS explains the circumstances of this case.

The Case in Focus | Private Prosecution

The circumstances leading to the proceedings.

Two families, the Morjarias and the Mirzas, jointly owned a property development in West London. Tydwell Ltd, a company owned by the Mirzas, was contracted to replace flammable cladding.

The Morjarias alleged that the Mirzas had made a secret profit of £1.6m which should have been shared with them. The Morjarias issued a civil claim in the Civil Courts against the Mirzas and Tydwell Ltd.

Correspondence disclosed by the Morjarias

The Morjarias had instructed separate solicitors to represent them for the civil claim and the proposed Private Prosecution.

The conduct of the proceedings required both sets of solicitors to disclose their correspondence with the Morjarias. The Mirzas claimed that this revealed that the Morjarias had, as a matter of tactics, intended to seek leave to commence the proceedings for a Private Prosecution alleging fraud to coincide with the start of Mediation Proceedings in the civil claim with a view to imposing leverage on them settle the civil claim.

The correspondence produced by the solicitors to the Morjarias included the following:

  • ‘the threat of jail time directly or indirectly needs to be hinted,’
  • ‘… we need serious fire power and threat of maximum JAIL term,’
  • ‘… the more of his [Camran Mirza’s] family we can attach to this case the stronger our position becomes and the quicker they will come to the table to settle,’
  • I will say it again Camran will ONLY take notice of these numbers if he knows that the criminal case is REAL and there is a good chance of him going inside.’

The Application for a Judicial Review

It was put to the court on behalf of the Mirzas that the correspondence which had been disclosed showed the Morjarias’ primary motive to issue Private Prosecution proceedings was to use the threat of a prison sentence to leverage them into a civil settlement.

The High Court held that the true motive to bring the Private Prosecution amounted to an abuse of process. It agreed that, in deciding whether to hear a Judicial Review, allowing a prosecution to proceed on this basis would be ‘truly oppressive.’

The Morjarias were refused permission for a Judicial Review with the result that they were unable to proceed with their proposal to pursue a Private Prosecution.

How Can We Help?

Involvement in any form of litigation, whether civil or criminal, will be fraught with numerous complexities, expense, and stress. It is essential that professional expertise is sought from the outset.

We represent individual and corporate clients being pursued by way of Private Criminal Prosecution. Often, there are parallel civil litigation proceedings, and we are able to assist in the defence of such civil claims as well, including claims for civil fraud.

If we can be of assistance, our Team will be delighted to hear from you and please do not hesitate to contact us. We welcome enquires by:

Telephone: 0333 370 4333

Email: info@kangssolicitors.co.uk

We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through video conferencing or telephone.

Hamraj Kang

Hamraj Kang
Senior Partner

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John Veale

John Veale
Partner

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Tim Thompson

Tim Thompson
Partner

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