QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE EDIS
| THE QUEEN
(ON THE APPLICATION OF AYODEJI HOLLOWAY)
|HARROW CROWN COURT
|(1) ADAMNEET SINGH BHUI
(2) JIMNEET SINGH BHUI
(3) GURPINDER SINGH BHUI
William Martin (instructed by Guillaumes LLP) for the Interested Parties
The Defendant took no part in the proceedings
Hearing date: 2 July 2019
Crown Copyright ©
Lord Justice Males:
"The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs."
"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?"
"… the word 'improper' in this context 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. …"
"148. It would be helpful to summarise the propositions I have derived from the statutory provisions, the authorities and principle, so far as section 19 applications for costs against public prosecutors are concerned.
i) When any court is considering a potential costs order against any party to criminal proceedings, it must clearly identify the statutory power(s) upon which it is proposing to act; and thus the relevant threshold and discretionary criteria that will be applicable.
ii) In respect of an application under section 19 of the 1985 act, a threshold criterion is that there must be "an unnecessary or improper act or omission" on the part of the paying party, i.e. an act or omission which would not have occurred if the party concerned had conducted his case properly or which could otherwise have been properly avoided.
iii) In assessing whether this test is met, the court must take a broad view as to whether, in all the circumstances, the acts of the relevant party were unnecessary or improper.
iv) Recourse to cases concerning wasted costs applications under section 19A or its civil equivalent, such as Ridehalgh, will not be helpful. Similarly, in wasted costs applications under section 19A, recourse to cases under section 19 will not be helpful.
v) The section 19 procedure is essentially summary; and so a detailed investigation into (e.g.) the decision-making process of the prosecution will generally be inappropriate.
vi) Each case will be fact-dependent; cases in which a section 19 application against a public prosecutor will be appropriate will be very rare, and generally restricted to those exceptional cases where the prosecution has acted in bad faith or made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him. The court will be slow to find that such an error has occurred. Generally, a decision to prosecute or similar prosecutorial decision will only be an improper act by the prosecution for these purposes if, in all the circumstances, no reasonable prosecutor could have come to that decision."
"16. … I consider that the principles to be applied in respect of an application under s.19 and Regulation 3 are as follows:
(a) Simply because a prosecution fails, even if the defendant is found to have no case to answer, does not of itself overcome the threshold criteria of s.19 (R v P, Evans).
(b) Improper conduct means an act or omission that would not have occurred if the party concerned had conducted his case properly (Denning).
(c) The test is one of impropriety, not merely unreasonableness (Counsell). The conduct of the prosecution must be starkly improper such that no great investigation into the facts or decision-making process is necessary to establish it (Evans).
(d) Where the case fails as a matter of law, the prosecutor may be more open to a claim that the decision to charge was improper, but even then, that does not necessarily follow because 'no one has a monopoly of legal wisdom, and many legal points are properly arguable' (Evans).
(e) It is important that s.19 applications are not used to attack decisions to prosecute by way of a collateral challenge, and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecution decisions (R v P, Evans).
(f) In consequence of the foregoing principles, the granting of a s.19 application will be 'very rare' and will be 'restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him' (Evans)."
"35. Both Evans and Cornish concerned public prosecutors. What of private prosecutions? First, as reiterated in R (Gujra) v Crown Prosecution Service  UKSC 52;  1 AC 484, by Lord Neuberger of Abbotsbury PSC (at ):
'There is no doubt that the right to bring private prosecutions is still firmly part of English law, and that the right can fairly be seen as a valuable protection against an oversight (or worse) on the part of the public prosecution authorities, as Lord Wilson JSC acknowledges at paras. 28 and 29, and Lord Mance JSC says at para. 115.'
On this footing, the law should guard against inadvertently discouraging the bringing of private prosecutions because of a fear of adverse costs consequences.
36. Secondly, however, those bringing and conducting a private prosecution must conform to the highest standards, as "Ministers of Justice". In R v Zinga  EWCA Crim 52;  1 WLR 2228, Lord Thomas of Cwmgiedd CJ said (at ):
'…. Advocates and solicitors who have conduct of private prosecutions must observe the highest standards of integrity, of regard for the public interest and duty to act as a Minister for Justice (as described by Farquharson J) in preference to the interests of the client who has instructed them to bring the prosecution. As Judge David QC, a most eminent criminal judge, rightly stated in R v George Maxwell (Developments) Ltd  2 All ER 99, in respect of a private prosecution:
'Traditionally Crown counsel owes a duty to the public and to the court to ensure that the proceeding is fair and in the overall public interest. The duty transcends the duty owed to the person or body that has instituted the proceedings and which prosecutes the indictment'.'
See too, the observations of Buxton LJ (giving the judgment of the Court) in R v Belmarsh Magistrates' Court, ex parte Watts  2 Cr App R 188, at p.200, as to private prosecutors being subject to the same obligations, as a minister of justice, as are the public prosecuting authorities.
37. Thirdly, because private interests are, to some degree, almost invariably inherent in the bringing and conduct of private prosecutions, there is more scope for scrutiny of private prosecutors than public prosecutors. As Sir Richard Buxton observed, in The Private Prosecutor as a Minister of Justice,  Crim LR 427, at p.427:
'A private prosecutor will almost by definition have a personal interest in the outcome of a case.'
As an important constitutional principle, public prosecutors enjoy a wide and independent prosecutorial discretion, including, under the Code for Crown Prosecutors, a focus on the public interest. They are not immune from scrutiny (see, for instance, the Victims Right to Review ("VRR") Scheme) but the Court will be astute to avoid the jurisdiction under s.19 of the Act being misused by becoming an appeal from a prosecutorial decision: see, R v P (supra), at . While the private prosecutor too must enjoy a wide measure of discretion and s.19 must not be abused so as to have a chilling effect, realistically there will likely be more room for questioning the initiation and conduct of a private prosecution. This is, perhaps, especially so where individuals, in effect, seek to prosecute or turn the tables on their accusers: R (Dizaei) v Westminster Magistrates' Court  EWHC 4039 Admin, esp. at ,  and  - where the contrast with the independence and detachment of a public prosecutor is particularly noteworthy. That said, when scrutinising private prosecutors, the principles set out in Evans and Cornish (both supra) will be applicable, mutatis mutandis. A private prosecutor will not be liable for costs merely because the prosecution fails or is withdrawn, still less because it is a private prosecution."
"When deciding whether there is enough evidence to charge, Crown Prosecutors must consider whether evidence can be used in court and is reliable and credible, and there is no other material that might affect the sufficiency of evidence. Crown Prosecutors must be satisfied there is enough evidence to provide a 'realistic prospect of conviction' against each defendant."
"Adam, I'm fine with a completion deadline after which you can sell the house and return the deposit."
"Papers signed but we've instructed our solicitor not to go ahead yet. Please get cash ready and let me know when we can collect. Completion once cash is collected."
"We will come on Wednesday evening. Interest until Tuesday will be added so I will give you the new figure shortly. Please note highest denomination should be £20. Anything higher will be a headache for us to use. It is not like London here!"
The criminal proceedings
"on several occasions by telephone calls and text in May and June 2017 made an unlawful demand of £76,325.39 in cash on Ayodeji Holloway and Hannatu Kokwain for an unlawful payment to allow the legal conveyancing transaction of 1 Oakhampton Road, NW7 1NG to Ayodeji Holloway and Hannatu Kokwain or he would unlawfully cause them to lose their home in which they had settled into as their marital home with their newborn baby."
"It cannot be reasonably argued that the defendants believed they had reasonable grounds for making a demand for £76,325.39 cash payment outside the conveyancing transaction in order to allow the conveyancing transaction proceed [sic.]. This is made even more evident by their condition, contained in the clear unambiguous texts sent by the defendants to us, that the payment be made in small cash denominations."
Review of the CPS decision
"We confirm that the sale price based on our mortgage offer is £480,000, and that the deduction of the £50,000 from the market value of £600,000 from your estate agent, makes the total price to be paid £550,000.
We confirm that deposit monies of £90,148.23 has been paid to Jimmy Bhui over the course of 2 years and the £70,000 will be paid over the course of a maximum of 3 years, if not sooner. The repayment will be based on an APR of 6% with instalment being paid every 6 months.
We confirm that the completion will be achieved through the normal conveyance procedures between our respective solicitors.
We therefore look forward the letter from your solicitors justifying the deposit monies of £90,148.23 which you have received from us.
Thank you for appreciating this process falls within winter period and the impending delivery of our baby.
"We write further to our meeting on 1st December with you, Mr Deji Holloway and Mrs Hannah Holloway. In the said meeting we established that the agreed sale price of 1 Oakhampton Road, Mill Hill, London NW7 1NG is £550,000 based on the current market value of the property. However the sale price based on your mortgage offer is £480,000, for which we have already receipted deposit monies of £90,148.23 over the course of 2 years. Based on the above figures there is a shortfall of £70,000, which you, Mr Deji and Mrs Hannah Holloway, have agreed to pay back to Jimmy Bhui and Adam Bhui, over the course of a maximum of 3 years, if not sooner.
This will be looked upon as a loan between the parties, based on an APR of 6%. You have insisted on the instalment being paid every 6 months, to which Adam and Jimmy Bhui have agreed, given your current financial circumstances.
In order for the above to materialise into a contract agreement and become binding on both parties Mr Deji Holloway and Mrs Hannah Holloway must complete the conveyance of the said property within 6 weeks of this correspondence.
If this term of the agreement is not abided with, Jimmy and Adam Bhui will be permitted to place the said property on the market for sale to the public.
Furthermore if you agree to the above said kindly furnish us with your approval email in return of the same to which we will effectively issue an official letter justifying the position of the deposit monies that we have receipted from you in the sum of £90,148.23.
We look forward to hearing from you accordingly.
The application for costs
The parties' submissions
(1) There were factual disputes between the parties as to (a) the existence of an option agreement to purchase the property, (b) the nature and cause of negotiations as to price that took place before exchange of contracts, and (c) the nature and extent of threats made to Mr Holloway and his wife. These would have been a proper subject for evidence and cross-examination at a trial of the criminal proceedings. Whether the proceedings would have succeeded or failed, it was not improper to have brought them. However, the Deputy Circuit Judge had in effect substituted his view for that of the jury without having heard the evidence tested.
(2) There was clear evidence of a demand for £70,000 plus interest in cash, in denominations of no more than £20, outside the formal conveyance. The nature and circumstances of that demand could arguably have supported a finding that it was unwarranted as well as unlawful.
(3) There was equally clear evidence that Mr Holloway was threatened with having to vacate his home if this additional sum was not paid; there was also evidence that he was told that the deposit of some £90,000 which he had paid would be withheld until the Interested Parties had secured another purchaser, which was also capable of amounting to "menaces".
(4) Mr Holloway had taken advice from counsel after the issue of the summons, but before the matter was taken over by the CPS, and had received positive advice; there was no reason to think that the advice would have been different if it had been obtained prior to commencing the proceedings. It could not be improper to rely on counsel's advice in continuing the proceedings.
(5) The December 2016 emails, which Mr Holloway had not disclosed, dealt with a possible loan over three years and not a demand for payment in cash prior to and as a condition of exchange of contracts. Even if they would have become disclosable in the light of any defence statements, the time for disclosure had not arrived and the fact that they had not been disclosed did not amount to an improper act or omission.
"The meeting of 1st of December 2016 and events leading up to it does not form part of the criminal conduct complained of in this case, the demand complained of started after the conveyancing transaction for a valid legal purchase at £480,000 had started and reached the final stage. It started from April 2017 to June 2017 for a demand for £76,325.69 in cash before completion with a threat not to complete unless paid. Jimneet Singh Bhui, Adamneet Singh Bhui, and Gurpinder Singh Bhui's conduct relating to circumstances prior to 10th of April 2017 does not form part of our criminal complaint for blackmail."
Mr Justice Edis: