Asif v Ditta and another
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWCA Crim 1091 |
| Year | 2021 |
| Court | Court of Appeal (Criminal Division) |
2021 April 15; July 15
Crime - Abuse of process - Private prosecution - Proceedings brought for improper purpose - Private prosecution brought on behalf of third party in order to act as leverage in recovering money owed - Whether stay of proceedings required to protect integrity of criminal justice system - Crime - Costs - Power to award - Private prosecution stayed as abuse of process - Prosecutor renewing application for leave to appeal to Court of Appeal - Whether costs principles applicable to public prosecutions applying equally to private prosecutions - Whether Court of Appeal having power to make order as to costs against prosecutor, wasted costs order against prosecutor’s solicitor and third party costs order against true prosecutor -
The prosecutor brought a private prosecution against the defendants, who were husband and wife. Charges of fraud, theft and concealing or transferring property were sent to the Crown Court, where the judge stayed the proceedings as an abuse of the process of the court on the grounds that the prosecutor had been acting as a proxy prosecutor for a third party and had an improper motive for bringing the prosecution, namely to act as leverage in recovering money which was said to be owed by the defendants. The prosecutor’s application for leave to appeal against the judge’s ruling was dismissed and he renewed his application to the full court. On the application the defendants applied for costs against the prosecutor under section 19 of the Prosecution of Offence Act 1985F1, a wasted costs order against the prosecutor’s former solicitor under section 19A of the 1985 Act and costs against the third party under section 19B of the 1985 Act.
On the applications—
Held, (1) refusing the prosecutor’s application for leave to appeal, that although mixed motives on the part of a prosecutor were not of themselves a bar to bringing a private prosecution, improper motive was relevant to the question whether a prosecution should be stayed as an abuse of process on the ground that it would offend the court’s sense of justice and propriety for the prosecution to proceed; that, in the present case, it had been open to the judge to conclude that there was in relation to the prosecution a primary motive and one which was so unrelated to properly constituted proceedings that it rendered it a misuse or abuse of process; that the judge had also been entitled to conclude that the prosecutor was no more than a proxy for the third party, who was the moving force behind the prosecution, which was also relevant to the question of abuse of process; and that, accordingly, the judge had made no arguable error in staying the prosecution, which had been used for private tactical and oppressive reasons (post, paras 75, 79, 81, 94, 147).
(2) Allowing the applications for costs against the prosecutor and the third party but dismissing the application against the prosecutor’s former solicitor, that the costs principles which applied to public prosecutions applied equally to private prosecutions, mutatis mutandis; that the Court of Appeal had power to make an order as to costs under section 19 of the Prosecution of Offences Act 1985, a wasted costs order under section 19A of the 1985 Act and a third party costs order under section 19B of the 1985 Act; that, in the present case, it was appropriate for all costs issues to be dealt with by the Court of Appeal, rather than remitting the costs relating to the Crown Court back to that court, given that (i) there had been no earlier costs determination by the Crown Court, (ii) there was no specific provision which allowed the Court of Appeal to remit part of the costs to the Crown Court, (iii) as a result of delay in bringing the appeal on for hearing the judge who originally stayed the proceedings was unlikely to have retained much familiarity with the details of the case and (iv) it was sensible that all matters of costs be dealt with in one venue; and that it was appropriate to make an order for costs against the prosecutor, whose conduct had fallen short of the high standards required of private prosecutors, and a third party costs order against the third party, given that there was a primary improper purpose in bringing the case and that he had been the real prosecutor in the case, but it would not be appropriate to make a wasted costs order against the prosecutor’s former solicitor, who had acted properly when conducting the litigation (post, paras 127–136, 140–141, 144–146, 148).
The following cases are referred to in the judgment of the court:
Barrister (Wasted Costs Order) (No 1 of 1991), In re A [
Bentley-Thomas v Winkfield Parish Council
D Ltd v A
Davenport v Walsall Metropolitan Borough Council [
Director of Public Prosecutions v Denning [
Ewing v Davis
P (A Barrister), In re
Practice Direction (Costs in Criminal Proceedings) 2015
R v Baines [
R v Bow Street Metropolitan Stipendiary Magistrate, Ex p South Coast Shipping Co Ltd [
R v Cornish
R v Evans (Eric) (No 2)
R v Gloucester Crown Court, Ex p Jackman [
R v Maxwell
R v Najib & Sons Ltd (No 2)
R v Zinga
R (Dacre) v City of Westminster Magistrates’ Court
R (G) v S
R (Haigh) v City of Westminster Magistrates’ Court
R (Holloway) v Harrow Crown Court
R (Hubert) v Crown Court at Manchester
Ridehalgh v Horsefield [
Serif Systems Ltd, In re [
Warren v Attorney General of Jersey
No additional cases were cited in argument or referred to in the skeleton arguments.
APPLICATION for leave to appeal under section 58 of the Criminal Justice Act 2003
On 21 February 2019, in the City of Westminster Magistrates’ Court, the prosecutor, Muhammed Asif, commenced a private prosecution against the defendants, Adil Iqbal Ditta and Noreen Riaz, who were husband and wife. On 10 April 2019 the charges, which included fraud, theft and concealing or transferring criminal property, were sent to the Crown Court at Southwark, pursuant to section 51 of the Crime and Disorder Act 1998. On 26 July 2019 Judge Tomlinson heard applications on behalf of both defendants to dismiss the charges on the grounds of insufficiency of evidence, or alternatively to stay them as an abuse of the process of the court. On 2 August 2019 he stayed the proceedings as an abuse of process in relation to both defendants and dismissed the charges against the second defendant alone. On 7 August 2019 the prosecutor filed a notice of appeal and application for permission to appeal against the judge’s terminating ruling pursuant to section 58 of the Criminal Justice Act 2003. On 14 November 2019 Davis LJ refused that application. The prosecutor renewed his application for permission to appeal to the full court save that his application in respect of the dismissal ruling in respect of the second defendant was no longer pursued. The defendants sought their costs of the hearing before the Court of Appeal (Criminal Division) and before the Crown Court. On 3 June 2020, the defendants also applied for costs against the third party, Mohammed Safdar Gohir, pursuant to section 19B of the Prosecution of Offences Act 1985 and against Nasir Khan, Muhammed Asif’s former solicitor, pursuant to section 19A of the 1985 Act. On 27 August 2020, the second defendant applied for costs against the prosecutor, pursuant to section 19 of the 1985 Act. On 13 November 2020, the first defendant applied for costs against the prosecutor pursuant to section 19. By application dated 13 November 2020, the defendants specified the amount of costs they sought from the prosecutor Asif; the first defendant sought costs of £217,050 and the second defendant sought costs of £140,925.
The facts and grounds of the application for leave to appeal are stated in the judgment of the court.
Charles Bott QC (instructed by Philip Kazantzis) and Philip Kazantzis (instructed directly) for the prosecutor.
Thomas Price QC (instructed by
James Bourne-Arton (instructed by
Brendan Kelly QC (instructed by
Angus Bunyan (instructed by
The court took time for consideration.
15 July 2021. DAME VICTORIA SHARP P handed down the following judgment of the court.
1 This is the judgment of the court to which all its members have contributed.
Introduction2 On 21 February 2019 a private prosecution was commenced at the City of Westminster Magistrates’ Court by Mr Muhammed Asif. The defendants to those proceedings were Mr Adil Ditta and Mrs Noreen Riaz, who are husband and wife. On 10 April 2019 the charges, including fraud, theft and...
To continue reading
Request your trial