CRIMINAL LAW-TRIAL-STAY OF PROCEEDINGS

Queen’s Bench Division, Divisional Court

Latham LJ and Bennett J

16 July 2008

There is no reason in principle why a private prosecution should not be considered an abuse of process if the crime, the subject of the prosecution, is one that has been encouraged by the private prosecutor or when, in some other way, the private prosecutor has essentially created the same mischief as that about which he or she complains. A court should not entertain an application in the criminal jurisdiction for a declaration as to the legality of a future course of action save in a truly exceptional case.

Jonathan Caplan QC and Sarah Palin (instructed by Reynolds Porter Chamberlain) for the claimants. The interested party appeared in person.

The interested party (NT) was involved in acrimonious proceedings with her husband relating to their daughter. NT was aggrieved at the way she was being treated by the court. She became interested in the organisation Fathers 4 Justice (F4J), and commenced a relationship with its founder.

Following a demonstration by members of F4J she was interviewed by three newspapers. NT gave detailed information about court orders in her case and the fact that she had made contact with F4J. She did not refer to or identify the father of the child at any stage of the conversation. Nor did she mention s 97(2)(a) of the Children Act 1989, which provided that no person should publish to the public any material that was intended, or likely, to identify any child as being involved in any proceedings before the courts.

By s 97(6), a person who contravened the section would be guilty of a summary offence. The subsequent article identified NT’s husband. NT brought private prosecutions alleging breaches by the claimants of ss 97 and 103, namely that they were responsible for publishing material likely to identify her child who was at the time involved in proceedings. The claimants applied for a stay of proceedings on the ground that they were an abuse of the process of the court. The district judge found that NT’s motive for launching the prosecution was mixed. It was partly to protect her daughter’s identity and to pursue a national paper for apparently flouting the law, but also with an eye to some potential publicity for F4J. He held that the court’s sense of justice and propriety had not been offended, and accordingly declined to stay the prosecution. The claimants applied for judicial review. NT’s litigation friend also applied for a declaration that s 97(2), (6) and s 103 of the Children Act 1989 did not apply to the reporting of a criminal prosecution (or subsequent appeals) under s 97(2),(6) or s 103, relying on Art 10 of the European Convention on Human Rights. The issue therefore arose as to whether the court should entertain an application for a declaration as to the legality of a future course of action.

The application would be allowed.

LORD JUSTICE LATHAM:
There was no dispute about the jurisdiction of the Magistrates’ Court to stay proceedings on the ground that they amounted to an abuse of the process of the court. One aspect was where it would offend the court’s sense of justice for the prosecution to proceed. In that context, both motive and conduct could clearly be relevant. As far as motive was concerned, proceedings tainted by mala fides or spite or some other oblique motive might fall into that category.

However in R v Bow Street Metropolitan Stipendiary Magistrate, ex p South Coast Shipping Co Ltd [1993] 1 All ER 219 it was held that the mere presence of an indirect or improper motive in launching a prosecution did not necessarily vitiate it; and the court would be slow to halt such a prosecution in the case of mixed motives unless the conduct was truly oppressive.

Private prosecution
Private prosecutions remained one of the means whereby an individual could right what he perceived to be a wrong through the court process. And it was inevitable that many private prosecutions would be brought with mixed motives.

But there was another relevant aspect of conduct. It was trite law that a prosecution could be stayed as an abuse of process if state agents had lured a person into committing a crime: R v Looseley, A-G’s Reference (No 3 of 2000) [2001] 4 All ER 897. There was no reason in principle why a
private prosecution should not be considered an abuse of process if the crime which was the subject of the prosecution was one that had been encouraged by the private prosecutor or when in some other way the private prosecutor had essentially created the same mischief as that about which he or she complained.

The judge below had failed to grapple with the undoubted fact that the interested party, by being prepared to be identified and to describe the circumstances, albeit in general terms, which drove her to become involved with F4J, had provided material willingly and deliberately which was certain to identify her child as being the subject of proceedings at least to a section of the public. His lordship would therefore allow the claim, quash the district judge’s decision and stay the prosecutions as an abuse of the court.

His lordship turned to the application for a declaration that s 97(2), (6) and s 103 of the Children Act 1989 did not apply to the reporting of a criminal prosecution. The court should not entertain a declaration as to the legality of a future course of action except in a truly exceptional case.

It would be wholly inappropriate to entertain the application in the instant case. The more appropriate course was to consider what, if any, reporting restrictions should be imposed. In that regard, s 39 of the Children and Young Persons Act 1933 had no application. But the court retained an inherent jurisdiction to secure the interests of the child. That had to be exercised by striking the balance between the rights of the child under Art 8 of the Convention, and the rights of others who might wish to publish material under Art 10 in the light of the legislative steer from s 97.

The right order was merely to anonymise the interested party who was identified merely as NT.

Mr Justice Bennett agreed.