Sanjay Thakrar v Crown Prosecution Service

JurisdictionEngland & Wales
JudgeLord Justice Davis,Lord Justice Irwin
Judgment Date21 May 2019
Neutral Citation[2019] EWCA Civ 874
Docket NumberCase No: C1/2018/1401
CourtCourt of Appeal (Civil Division)
Date21 May 2019

[2019] EWCA Civ 874

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT)

MRS JUSTICE CHEEMA-GRUBB

CO/51/2018

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Davis

and

Lord Justice Irwin

Case No: C1/2018/1401

Between:
Sanjay Thakrar
Claimant/Applicant
and
Crown Prosecution Service
Defendant/Respondent

Lee Schama (instructed by Cubism Law) for the Applicant

John McGuinness QC (instructed by the Crown Prosecution Service) for the Respondent

Hearing date: 8th May 2019

Approved Judgment

Lord Justice Davis

Introduction

1

The claimant in this case, Mr Sanjay Thakrar, who is the applicant in this court, commenced criminal proceedings, by way of private prosecution, in 2016 against a number of individuals. On 10 November 2017 the Director of Public Prosecutions (DPP), by the Crown Prosecution Service (CPS), issued a decision letter to the effect that, under the powers conferred by s.6 (2) of the Prosecution of Offences Act 1985, it had been decided to take over the conduct of the prosecution. The same letter gave notice, under s.23A of the 1985 Act, to the effect that the CPS did not wish the proceedings to continue. Full reasons for such decision were given.

2

The claimant was much aggrieved at the decision to discontinue. He commenced judicial review proceedings, challenging such decision, on 13 December 2017. Permission to apply for judicial review was refused by Butcher J on the papers on 30 April 2018. Following that refusal, the claimant renewed his application at an oral hearing before Cheema-Grubb J. The applicant was represented by leading and junior Counsel: the DPP was not represented. In her full judgment dated 7 June 2018 the judge refused the application.

3

The claimant sought permission to appeal to this court, by appellant's notice filed on 14 June 2018. The point was then taken that, by reason of s.18(1) of the Senior Courts Act 1981, the Court of Appeal had no jurisdiction to entertain the proposed appeal, on the basis that the judgment was in a criminal cause or matter. By directions given on the papers by my Lord, Irwin LJ, on 23 October 2018, it was directed that the issue of jurisdiction be the subject of an oral hearing in this court.

4

At the conclusion of the hearing before us, this court announced its decision that the application for permission to appeal was refused on the basis that this court had no jurisdiction to entertain it. We indicated that we would give our reasons for such decision in writing at a later date. These are my reasons for so deciding.

Background Facts

5

Since the present issue relates to jurisdiction, the background facts need only an outline summary for present purposes.

6

The claimant is a businessman. At the relevant times he had controlled a company called Century Finance Limited (Century), a company registered in New Zealand.

7

By written contracts of sale dated 18 and 28 June 2012 a company called Expopet Green International Limited (Expopet) agreed to purchase from a company called Jamtoff Trading Limited (Jamtoff), part of a Russian group, two consignments of plastic designed to make containers for food and drinks. The total price was approximately €800,000, the first consignment being for €257,700 and the second for about €550,000. The consignments were shipped from Kaliningrad. Expopet took delivery at Felixstowe in July 2012.

8

As was to be found, errors were made by the relevant staff of Jamtoff in arranging delivery. Thus the two consignments were dispatched prior to confirmation that the relevant letters of credit had been issued and received; further, although it was intended that there be no named consignee on the bills of lading, by error or misunderstanding each bill of lading designated Expopet as consignee and, what is more, each was then forwarded to Expopet. At all events Expopet was able to take, and did take, delivery of the consignments without payment being made. Subsequently Expopet sold the consignments on. But still it did not pay for them.

9

Jamtoff looked to Century for payment as issuer of the relevant letters of credit. Those letters of credit were then rejected by Century; but its rejection of the second letter of credit was ultimately accepted to be defective. Thus Century was at all events liable for €550,000: but by the time of that acceptance (if not before) it could not pay.

10

Jamtoff commenced civil proceedings in the High Court in London (Mercantile Court) against Century, the claimant and an individual called Paresh Thakkar, who was the commercial director of Expopet. The matter came on for trial before Judge Waksman QC. Among other things Jamtoff claimed that Century, the claimant and Mr Thakkar had conspired from the outset to defraud Jamtoff by causing loss intentionally without, from the outset, ever intending that payment for the two consignments would be made. Alternatively, it was said that the defendants variously had made fraudulent misrepresentations designed to procure the two consignments: in particular in representing that Century was a bank (when it was not) and that the letters of credit had been duly issued and were genuine.

11

The judge, by judgment delivered on 14 August 2015, rejected the claim in conspiracy. He found that Expopet did at the start intend to pay for the plastic at the time of purchase. But he upheld the claim against the defendants for fraudulent misrepresentation. He awarded damages representing the value of the goods accordingly. The judge in reaching his conclusions was very critical of the evidence of the claimant (described as “generally unreliable and evasive”) and of Mr Thakkar.

12

Thereafter, in November 2016 the claimant instituted proceedings by way of private prosecution, initially against Mr Thakkar. He claimed to be much aggrieved that he (the claimant) had suffered loss but that Mr Thakkar, through Expopet, had in effect obtained the goods and the proceeds of sale of the goods without paying for them. The initial counts were of theft, fraud and fraudulent trading; but subsequently these were reduced to two counts of theft. By this time, three other individuals – all closely connected with Expopet — had been added as co-accused defendants. The proceedings were by now continuing in the Harrow Crown Court.

13

The defendants in due course indicated that they would be applying to stay the proceedings on the ground of abuse of process and also to dismiss. The Crown Court judge understandably then directed that the case be considered by the CPS.

14

That resulted in the letter from the CPS dated 10 November 2017. It was signed by a specialist Crown Prosecutor. It was detailed. As for the decision to discontinue, the letter stated that the reason for discontinuance was that there was “insufficient evidence to provide a realistic prospect of conviction on either charge”. It was pointed out that in the civil proceedings Judge Waksman QC had found that Expopet had intended to pay for the plastic from the outset. There was, it was said, no admissible evidence to support the allegation that Expopet had intended to commit theft; the assertions of the claimant to the contrary did not suffice and in any event he had been the subject of adverse credibility findings by Judge Waksman QC and also by another judge in another, unrelated, case. It was further said that the claimant's evidence was the sole evidence against the defendants; and his evidence could not be relied upon.

The proceedings below

15

A decision not to prosecute, or a decision to pursue a prosecution, is in principle amenable to judicial review. Nevertheless responsibility for such a decision is assigned to the DPP or CPS, as the case may be, who of course have the appropriate expertise; and it is well established that it is in only in a rare case that the courts will interfere. That said, if a conventional public law ground of challenge is made good the courts may then interfere.

16

The grounds set out in the judicial review claim filed on 13 December 2017 and brought against the CPS (strictly, it should have been the DPP) are not, it has to be said, very well focused: and in many respects might be said to involve mere disagreement with the CPS' evaluation of matters. But in essence they involve an assertion that the assessment of the CPS, which had been to the effect that there was insufficient evidence to provide a realistic prospect of conviction, was wholly unreasonable and was flawed. It was also argued that it was wrong to say that the evidence of the claimant was the “sole” evidence against the defendants.

17

Butcher J, on 30 April 2018, refused permission on the papers. He could find no arguable basis for saying that the decision to discontinue the prosecution was perverse or unreasonable: to the contrary, he concluded that the assessment that there was insufficient evidence of dishonesty such as to provide a realistic prospect of conviction was one which the CPS was entitled to reach. He further considered that the claimant's evidence was potentially “central to any prosecution”; and the previous adverse judicial findings against his reliability were properly taken into account.

18

Cheema-Grubb J, in her judgment of 7 June 2018, reached essentially the same conclusion. She among other things took the view that the CPS had “expressed [itself] badly in stating, for example, that the claimant's evidence is the ‘sole evidence’ against the interested parties”; but she held that it remained central evidence and that whether the actions of the accused were to be interpreted in the inculpatory way contended for “must be influenced by evaluation of the claimant's own credibility.” She also reminded herself that it was exceptional for the courts to disturb a decision of this kind made by an independent prosecutor. She concluded:

“…I do not hesitate to...

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