[2025] EWCA Crim 1289

Analysis:

We begin by setting out principles of general application in cases in which a private prosecution is undertaken by an individual or entity other than the police or a state prosecuting authority (a term which, for present purposes, includes those entities which have statutory power to conduct prosecutions).

When Parliament established the CPS, it preserved (in all but some reserved cases) the right of other persons to bring a private prosecution: see s6 of the POA 1985 (quoted at paragraph 16 above). A person who wishes to bring a private prosecution is under no legal duty first to report the matter to the police and/or the CPS (or any other state prosecuting authority), and under no legal duty to invite the CPS to conduct the prosecution, either before it has been commenced or whilst it is proceeding. The CPS, save in the reserved cases, has a power to take over the conduct of the proceedings at any stage, but is under no duty to do so.

Parliament also provided, by s17 of the POA 1985, for criminal courts to have a discretionary power to order that an amount reasonably sufficient to compensate for the expenses properly incurred by a private prosecutor be paid out of central funds. That power may be exercised, in an appropriate case, whether or not the private prosecution results in any conviction. Furthermore, as this case illustrates, no statutory provision prevents the court from ordering the payment out of central funds of expenses incurred in relation to a discrete application or appeal, even though the case has not reached trial and it would not be possible for an award under s18 to be made against the accused at that stage of the proceedings.

The general rule is that an order under s17(1) in favour of the private prosecutor must be made, unless there is some good reason not to do so: see Crim PR r45.4(6) and paragraph 6.2.1 of the Costs Practice Direction (see paragraphs 22 and 25 above). We should make clear that, because no award of costs against the respondents could be sought at this stage of the present case, we do not here address the question of whether a failure to apply for an order for costs against a convicted defendant would of itself be a good reason not to make an order under s17(1).

The consequence of these provisions is that every private prosecution carries with it the potential for a claim for the costs of the prosecutor – in some cases, very substantial costs – to be made against the public purse. And, for the reasons explained by the Lord Chief Justice in Zinga (in the passages which we have cited at paragraphs 39-41 above), the cost to the state is likely to be far greater than it would be if the prosecution were undertaken by the state. We respectfully agree with, and adopt, those observations. The public funding of the criminal justice system is inevitably subject to a limit. It follows that, if an order under s17 of the POA 1985 results in a cost to the state which is greater than would have been incurred if the state authorities had undertaken the prosecution, the public funds available for other criminal cases are likely to be reduced. If the appropriate state authority was able and willing to undertake a particular prosecution, or would have been if it had been given a reasonable opportunity to do so, an obvious question arises as to whether the cost to the public purse should be increased by a private prosecutor choosing to pursue his own course. The asking of that question does not limit the right of an individual to undertake a private prosecution: it relates simply to the extent to which he can recover his costs from central funds.

We therefore emphasise the importance of what was said at paragraph 22 of Zinga about the need for a court, when considering in relation to a significant prosecution whether to make any, and if so what, order under s17(1) of the POA 1985, to have regard to the steps taken by a private prosecutor to involve the state prosecuting authorities and to test the market for appropriate legal representation. True it is, as counsel for the private prosecutors submits in this case, that the Lord Chief Justice was not there laying down inflexible rules, any breach of which would necessarily result in the refusal of an order under s17(1). But in our view, any private prosecutor who fails to take appropriate steps, or fails sufficiently to inform the court about them in his application for an order under s17, puts himself at risk that the application will be refused, or that any award will be reduced by an order under s17(2A) to the level of costs which would have been incurred if the state authorities had prosecuted the case.

The reasons why that is so include the following.

First, as is clear from TM Eye at [51]-[53] (quoted at paragraph 46 above), the court must first consider whether in the exercise of its discretion to make any order under s17(1) of the POA 1985 at all. If it does make such an order, it must be for the payment in full of such sum as the court considers reasonably sufficient to compensate the private prosecutor for the expenses he has properly incurred in the proceedings (for convenience, “the reasonably sufficient sum”). The wording of s17(1) plainly contemplates that the reasonably sufficient sum may be less than the sum claimed. But in addition, in an appropriate case, s17(2A) enables the court to award less than the full amount of the reasonably sufficient sum. There may be good reason to make such a reduction even though a private prosecutor has not been guilty of misconduct.

In deciding whether there is good reason for an order under s17(2A), it will always be important, and in some cases decisively so, for the court to know whether the state prosecuting authorities were given a reasonable opportunity to make an informed decision as to whether they could undertake the prosecution and, if so, whether they wished to do so. If the state authorities have decided that they lack the resources or expertise to undertake a particular prosecution, or prefer not to do so, the private prosecution may be the only way in which the public interest in the prosecution of those against whom there is evidence of serious crime can be served. But the extent to which a private prosecutor may recover compensation for his expenses from the public purse may be reduced if he has chosen to pursue the case without reference to the state authorities.

Secondly, if an order is made under s17(1), the reasonably sufficient sum will be assessed by the appropriate authority: often a determining officer rather than the court which makes the order, though the court may make observations about matters which it considers should be considered by the determining officer. We agree with counsel for the private prosecutors that that process of assessment by an experienced officer will enable the court to exclude from the award any compensation for expenses which were unnecessarily incurred, or were unreasonable in amount. Any doubts as to the reasonableness of a particular item of expenditure will be resolved against the applicant private prosecutor: see reg 7(3) of the Costs General Regulations, quoted in paragraph 21 above. But that process of assessment comes after the court has decided whether to order, pursuant to s17(2A), that the reasonably sufficient sum (whatever it may be assessed to be) must for good reason be reduced in a specified way or to a specified extent. The court which is invited to make an order under s17(1) must therefore have the information it needs to decide whether, in the circumstances of a particular case, a reduction should be ordered under s17(2A).

Thirdly, in deciding whether to make any comments for consideration by the determining officer assessing costs pursuant to an order under s17(1), or to order a reduction pursuant to s17(2A), the court will wish to consider whether a private prosecutor has acted reasonably in instructing particular legal representatives. In our view, the reasonableness of the choice of legal representatives does involve consideration of their charges by comparison with others working in the same market. At paragraph 53 above, we have referred to the decision of the Costs Judge in Allseas that as the choice of solicitors was a reasonable one, it followed that the decision not to undertake a tendering process was also a reasonable one. It seems to us that that decision must have been based on the particular circumstances of that case, including the concession which was made. If it was not, then, with all respect to the experience of the costs judge, we cannot agree with him.

Fourthly, the case law shows that a private prosecutor may act reasonably by choosing to instruct, for the purpose of the prosecution, legal representatives who are already acting for him in the investigation which has led to the decision to prosecute, or in associated civil or regulatory proceedings. But the strength of that argument in favour of the private prosecutor will be diminished, and may be lost altogether, if he has chosen not to give the state authorities a reasonable opportunity to decide whether to commence, or to take over, the prosecution.

Fifthly, the principle stated by Leggatt J which we have quoted at paragraph 43 above, though expressed in the context of an award of costs between parties in civil litigation, is relevant to an application under s17. The decision to instruct particular legal representatives may be a reasonable one from the private prosecutor’s point of view; but the court must make an objective decision, and it will be assisted by knowing what was done to test the market.

What is reasonably required of the private prosecutor, by way of providing evidence of testing the market, will depend on the circumstances of the particular case. We note that in some of the cases cited to us, the view was taken that only a very limited number of solicitors and counsel would be competent to conduct the private prosecution, and that charging rates would differ little within that small group. We accept that, in some highly specialised areas of the law, that may be so. In our view, however, clear evidence will be needed before a court would decide that the choice was limited in that way, and that the public purse must accordingly bear a substantial cost. We observe, for example, that in fraud cases there are a significant number of expert counsel with experience of prosecuting; there are a significant number of large solicitors’ firms whose expertise in defending such cases could be deployed on the prosecution side; and such expertise can be found both in London and in other cities.

Lastly, we accept that if a private prosecutor has acted reasonably in undertaking the prosecution, either because there were particular circumstances which made it reasonable for him not to give the CPS an opportunity to prosecute, or because such an opportunity was given but the CPS chose not to take it, then it will be necessary for the reasonableness of the expenses incurred to be assessed by reference to the market rate for legal representatives privately instructed, rather than solely by reference to CPS rates. We would, however, make two points. First, CPS rates may properly be considered if a private prosecutor acted without regard to whether the state was willing and able to prosecute (cf Fuseon, referred to at paragraph 45 above). Secondly, even it was reasonable for the private prosecutor to undertake the prosecution, it may still be relevant to consider what expenses would have been incurred if the case had been conducted by the appropriate state prosecuting authority: not least if the case was of a kind (such as fraud) often prosecuted by the CPS (or the Serious Fraud Office – “SFO”), in which it might be said that there clearly were competent counsel available who would conduct such a case at CPS (or SFO) rates. A determining officer, when assessing what expenses would have been incurred by the appropriate state prosecuting authority, is able to seek assistance from Ministry of Justice officials as to what those expenses would have been.

We note that in an unreported Crown Court case to which we were referred, R v Agada (8 September 2023), which the trial judge stated to be a simple case of fraud and theft, in which no contact had been made with the police or the CPS, the court made an order under s17(1) of the POA 1985 but reduced the award by ordering pursuant to s17(2A) that the determining officer cap or restrict costs by reference to CPS rates.

Having set out those general considerations, we return to the facts and circumstances of the present case. In doing so, we shall focus on the present application, which relates only to the costs of the abuse application and the appeal against the judge’s ruling. However, since the private prosecutors have chosen to make that application at this stage, it will be necessary to consider some features of the prosecution as a whole.

Counsel for the Lord Chancellor rightly drew our attention to a detailed chronology, from which it is clear that the financial transaction which began the sequence of relevant events was a deposit made, on the instructions of two of the respondents, into a bank account in this country. About four months later, the private prosecutors instructed the investigators to begin enquiring into those respondents; and about three months after that, they instructed the solicitors to bring proceedings to trace what had become of the monies deposited into the UK bank account. As we have previously noted, it was about nine months later that the solicitors began the criminal proceedings.

Thus from the very outset, it was known that a relevant deposit had been made into a bank account in this country, and it must therefore have been obvious that it was at least possible that there had been conduct which could be reported to the police. By the time the summonses were issued, the decision had obviously been taken that criminal proceedings in this country were appropriate, whether or not there also were or might be civil or criminal proceedings in other jurisdictions. It was known that the criminal proceedings in this country were likely to be of some complexity and to involve substantial cost. Yet, so far as the evidence before us shows, nothing was done, before the private prosecution was commenced, to inform the police or to invite the CPS to consider the evidence relied on as proving fraud.

Six weeks then passed before the solicitors wrote to the CPS (see paragraph 6 above). As their letter makes clear, it was written only because the District Judge had said it should be; and it said in terms that the private prosecutors did not wish the CPS to take over conduct of the proceedings. It is regrettable that the CPS did not reply; but in our view, the private prosecutors could reasonably be expected to have sent a chasing letter, particularly when they felt that urgent action was needed. We are unable to regard the one letter which was sent – written weeks after the criminal proceedings had been commenced (and months after the investigation had revealed matters which could have been reported to the police), and expressed in terms which discouraged the CPS from taking over the case – as providing a reasonable opportunity for the CPS to make an informed decision whether to undertake the prosecution. The private prosecutors were entitled to take the approach they did; but, for the reasons we have explained, they thereby put themselves at risk in relation to recovering their costs from the public purse.

The private prosecutors rely on the fact that the request by one of the respondents, made more than a year after the prosecution had been commenced, was rejected by the CPS (see paragraph 11 above). It is submitted that the terms in which the CPS responded show that the CPS would not have undertaken he prosecution even if invited to do so before the summonses had been issued. We reject the submission. The decision taken by the CPS, in responding to a request by a defendant to take over and end the prosecution, cannot be regarded as a guide to what the response would have been if the private prosecutors had given the police and the CPS an appropriate opportunity before the proceedings began.

We accept that the case is a complex one, made more complex by the need to consider events and transactions in other countries. We also accept that it has been well conducted by the private prosecutors and their legal representatives, and nothing we say in this judgment should be taken as suggesting any criticism of the work of those representatives. The private prosecutors were entirely justified in resisting the application to stay the prosecution as an abuse of the process, and in appealing against the adverse ruling by the judge. But it does not follow that the CPS, if given an appropriate opportunity at an appropriate stage, could not or would not have undertaken the prosecution. Complex though the case is, what we have seen of it does not suggest that it poses unique difficulties.

As to the selection of the legal representatives, it is clear from the evidence of the private prosecutors that they did not undertake any form of testing of the market before agreeing to pay the fees charged by the solicitors and by instructed counsel. We accept, of course, that the private prosecutors are citizens of another country, with little knowledge of the English criminal justice system; but they were able to identify two large and very reputable firms of solicitors as being able to undertake all the work which was likely to be needed, and they therefore had a ready source of advice as to what had been said in Zinga as long ago as 2014. It is clear that the private prosecutors made an assumption that charges would differ little as between highly-regarded practitioners. It is understandable that they proceeded on that assumption, and they were entitled to do so; but in our view, it was not a proper basis on which to invite the court to order the payment of very substantial sums from public funds.

We do not accept the submission of the Lord Chancellor that the private prosecutors’ application, and its accompanying appendices, were seriously deficient. But the private prosecutors face, in our view, a more fundamental difficulty. They have failed to show that the police and the CPS, if given an appropriate opportunity at an appropriate stage, could not or would not have undertaken the investigation and prosecution of the crimes alleged against the respondents. They have failed to show, for the purposes of this application under s17, that they have acted reasonably in incurring expenses in excess of those which would have been incurred by the CPS (who have been treated throughout as the appropriate state prosecuting authority in the circumstances of this case). We are satisfied that there are, therefore, circumstances which make it inappropriate for the private prosecutors to recover the full amount of compensation which would otherwise be awarded pursuant to s17(1).

We do not consider it appropriate that we should fix the amount to be paid out of central funds. That must be done by means of a determination made by the appropriate authority. By reg 5(2)(a) of the Costs General Regulations, the appropriate authority is the Registrar, who will no doubt appoint a determining officer to act on her behalf.