QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
| R (on the application of AISLING HUBERT)
|- and -
|MANCHESTER CROWN COURT
- and -
(1) DR PRABHA SIVARAMAN
Steven Kovats QC (instructed by Crown Prosecution Service) for the Defendant
Jonathan Barnard (instructed by Hempsons Solicitors) for the Interested Party
Hearing date: 1 December 2015
Crown Copyright ©
MR JUSTICE IRWIN:
"a. On the case now made (as opposed to that advanced to the Magistrates) the prosecution has been launched without Miss Hubert or her advisers having the evidence necessary to establish the conspiracy alleged. Mr Mullins' own document (para 7) says: "The evidence is needed before the PCMH because the prosecution's case relied upon it". It is unprecedented in my experience for a prosecution to be launched without the necessary evidence against the accused bearing in mind the burden and standard of proof.
b. The evidence sought was obtained by a trick as well as a factual claim (as to the sex of the foetus given its immaturity) which could not possibly be true. Thus, even if the prosecution were to have the full recording there would be a powerful defence argument that the prosecution was an abuse and that the evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984. In my view "material evidence" under the 1965 Act means material admissible evidence and not that fatally tainted (sic).
c. The DPP has refused to prosecute and personally articulated his reasons. Although this is no bar to a private prosecution as the case of R (Gujra) v CPS  1 AC 484 SC demonstrates, it is my view relevant to the interests of justice limb in the test for a summons. Furthermore, Miss Hubert has no connection with the facts of the case and is a woman of straw without the means to pay defence costs if the prosecution fails."
"The evidence is material evidence because the full footage of the video of the consultation is needed to demonstrate that an agreement was made with another person when Dr Sivaraman telephoned a colleague. The edited video implies an agreement but the full footage is needed to demonstrate it."
The Interested Party relied on that passage as a "tacit admission" that, in the absence of the full video footage, the private prosecution was unsustainable. Therefore the proceedings had been instituted at a time when the available evidence was insufficient to support a prosecution for any offence at all.
"…where at any time during criminal proceedings [the Court] is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by the other party."
"4.1 Costs Incurred as a Result of unnecessary or Improper Act or Omission
4.1.1 … the Crown Court … may order the payment of any costs incurred as a result of any unnecessary or improper act or omission by or on behalf of any party to the proceedings as distinct from his legal representative… The court may find it helpful to adopt a three stage approach (a) Has there been an unnecessary or improper, act or omission? (b) As a result have any costs been incurred by another party? (c) If the answers to (a) and (b) are "yes", should the court exercise its discretion to order the party responsible to meet the whole or any part of the relevant costs, and if so what specific sum is involved? Rule 76.8 of the Criminal Procedure Rules sets out the procedure. A form of application is set out in Schedule 5 to this Practice Direction.
4.1.2 The court must hear the parties and may then order that all or part of the costs so incurred by one party shall be paid to him by the other party."
"… does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word "unnecessary", it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly."
"24. The core issue on this appeal, in my view, is whether the prosecution ever stood any realistic chance of success and whether, in that sense, it was a reasonable and proper prosecution."
"The evidential test for a prosecution here was never met whether as to any substantive offence, attempt thereat or conspiracy, at least as I understand the evidence. In this I respectfully differ from the opinion of the DPP as expressed in the January 2014 press release and letter of 13 March 2015. The press release appears to contemplate an attempt to procure a miscarriage, the substantive offence being created by Section 58… but the evidence in my mind shows mere preparation at best. A further obstacle as to the "good faith" defence in the Abortion Act 1967 is that the sex of the foetus being carried by the journalist's accomplice had not and could not be ascertained except by invasive techniques which were never in prospect."
"The evidence wholly fails to show that the unknown telephone contact was a knowing and intending partner in such an agreement: it was precisely to overcome this lacuna that the summons was sought against the newspaper."
"Nor does the absence of any public interest in a prosecution justify an award – there has to be an "unnecessary or improper act or omission" to quote the 1985 Act. I have considered the authorities submitted and bear in mind the constitutional importance of private prosecutions as a last resort against the unfair or corrupt use of state power; this was emphasised by the dissenters in Gujra although that case was about the DPP's policy and not costs. By contrast, the Denning case was about costs and Nolan LJ observed that "improper" did not connote grave impropriety."
"10. In my judgment, the most significant feature of the present application is the unexplained abandonment by Miss Hubert of her application for leave to pursue JR. Although Mr Phillips was cagey about the reasons and at one point mentioned privilege, the overwhelming inference is that those advising Miss Hubert considered the case would fail and the DPP's stance be exonerated as reasonable. It was, to my mind, unreasonable to abandon the JR proceedings in which an authoritative decision would be given with reasons by the High Court, particularly in what was said to be an important matter of principle for the medical profession as a whole. By contrast, to start the prosecution process all over again in a summary court where reasons were not given for the issue of the originating summons and waiting eight months to do so was unreasonable. Accordingly, I consider that the test under section 19 of the 1985 Act is met and the application for costs against Miss Huber succeeds."
The Approach to Judicial Review
The Claimant's Submissions
LORD JUSTICE BURNETT