On 18 November 2024, the political party Reform UK stated that it will press ahead with earlier plans to bring a private prosecution against two men suspected of being involved in a high-profile disturbance at Manchester Airport on 23 July 2024. The matter has been under investigation by the police, but the Crown Prosecution Service ("CPS") has not yet reached a charging decision.
In a video posted on X, Nigel Farage drew comparison with the immediate action taken against individuals involved in riots earlier this year, stating: "this is as clear an illustration of two-tier policing, two-tier justice in two-tier Britain, as you could possibly see... And we promised a few weeks ago that if the Crown Prosecution Service did not lay some charges against these men who, remember, (allegedly) even broke the nose of a woman police officer, that we would take out a private prosecution."
Although private prosecutions are often touted as a "quick fix" solution to a decision by the CPS not to prosecute, the reality is that private prosecutions are fraught with difficulties. In addition to being bound by strict obligations concerning the conduct of the proceedings, private prosecutions are vulnerable to being stopped where it is found that they have been brought with an "improper motive".
I fought the law and the law won – The Clash
The incident at Manchester airport in July attracted a significant amount of media attention, as initial footage appeared to show a police officer kicking and stamping on the head of Fahir Amaaz as he and his brother Muhammed Amaad were restrained by other police officers. A few days later, additional footage obtained by the Manchester Evening News purported to show the moments immediately before the incident, during which two female police officers were thrown to the ground. 2
The Independent Office for Police Conduct ("IOPC") has
launched an investigation into the incident which remains ongoing.
Greater Manchester Police has meanwhile passed a file relating to
the incident to the CPS in mid-August, and four men remain on
police bail in relation to this matter. However, the CPS has yet to
reach a charging decision. Reform UK has criticised the CPS for the
delay in bringing charges against either Amaaz or Amaad in a letter
to the Home Secretary, stating, "We have genuine reason to
be concerned that in fact, the CPS is awaiting for the IOPC to find
some fault with the police officers, which will then give them a
reason not to progress charges against the assailants. This is
totally unacceptable". 3
A safeguard against state inertia or partiality – Lord Wilson
The right of a private person (rather than a state authority) to bring a criminal prosecution is a historic one originating in the earliest days of the English legal system. The need for private persons to bring criminal prosecutions has, however, largely disappeared since the creation of the office of Director of Public Prosecutions ("DPP") in 1879, although the right to do so nevertheless remains and is now enshrined in statute. Under section 6(1) of the Prosecution of Offences Act 1985, any individual or company may bring a private prosecution against another individual or company. Even though the Supreme Court (per Wilson LJ) has observed that "[t]he value to our modern society of the right to bring a private prosecution is the subject of lively debate", it also noted that the "historical right [to bring a private prosecution] remains a valuable constitutional safeguard against inertia or partiality on the part of authority" (quoting Gouriet v Union of Post Office Workers [1978] A.C. 435, at [477] per Wilberforce LJ). 4
Improper motive
Once a summons has been issued by a magistrates' court, a
private prosecution proceeds in the same way as a prosecution
brought by a state prosecuting body. Private prosecutors must
comply with the same obligations and must bear the same
responsibilities as a state prosecutor – the private
prosecutor must act as a minister of justice.
Unlike most state prosecutions, however, a private prosecutor's
motive for bringing the prosecution will often be sharply in
focus.
Rule 7.2 of the Criminal Procedure Rules governs the issue of a summons by a magistrates' court. Under Rule 7.2.14(f), the court may decline to issue a summons or warrant if the prosecutor's dominant motive would render the prosecution an abuse of process of the court. In R (Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin), the High Court set out the core principles to be applied when a magistrates' court is faced with an application for a summons by a private prosecutor or is invited to set aside the same, stating that if the application establishes the offence prima facie and there are no jurisdictional impediments, then:
generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so ... most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper. 5
The test for determining improper motive was confirmed recently in Morjaria v Westminster Magistrates Court [2023] EWHC 2936 (Admin). In order to establish that a motive for bringing a private prosecution amounts to an abuse of process, the defence must show that the private prosecutor's motive was:
- a primary motive and one which is so unrelated to the proceedings that it renders it a misuse or an abuse of the process....;
- an oblique motive which is so dominant and so unrelated to the proceedings that it renders them an abuse of process....;
- even if it were an 'indirect or improper motive' it would have to be one that rendered the conduct 'truly oppressive' or
- That the 'proceedings [were] tainted by mala fides or spite or some other oblique motive....' 6
Although it is acceptable for a private prosecutor to have "mixed motives" for bringing a prosecution,7 it has long been established that the primary or dominant motive cannot be improper.
Can political gain amount to an improper motive?
The classic example of an improper motive is using the criminal proceedings to achieve secure a financial settlement (see, e.g., Asif v Ditta [2021] EWCA Crim 1091). Courts have frequently criticised private prosecutors who bring criminal proceedings hoping that the additional pressure inherent in being prosecuted will leverage a favourable outcome in concurrent civil proceedings, as well as those who bring private prosecutions as a form of debt recovery.
In Reform UK's case, the motivation for bringing a private prosecution is different; it is said to be for the purpose of combatting a perceived 'two-tier policing, two-tier justice in two-tier Britain'.
Whilst ostensibly this conforms to the traditional justification for the existence of private prosecutions as a "constitutional safeguard against inertia or partiality on the part of authority", the prospective defendants will no doubt seek to argue that the CPS was not acting with deliberate lethargy or partiality, and that a political party would not spend donors' or members' funds on a legal case which did not somehow promote the party's political agenda. This poses the question: can wanting to make political gains amount to an improper motive?
The High Court has indicated that political motives for bringing a private prosecution can render the prosecution vexatious and can amount to an improper motive. In 2019, Marcus Ball and his company Brexit Justice Limited brought a private prosecution against Boris Johnson for three counts of misconduct in public office. On 29 May 2019, Westminster Magistrates' Court issued a summons. Upon judicial review of that decision by the High Court little over a week later, the summons was quashed on the basis that the elements of the offence had not been made out (Johnson v Westminster Magistrates' Court [2019] EWHC 1709 (Admin)). The Court also considered evidence relating to Mr Ball's motivation for bringing the prosecution, which included a substantial amount of material published online demonstrating that the prosecution was politically motivated. Although it was not necessary for it to do so, the Court stated that it "would also have quashed the decision on the basis that the finding that the prosecution was not vexatious was flawed."
As a political party, Reform UK exists to advocate a particular political position and, if it does proceed with a private prosecution of the individuals involved in the Manchester Airport incident, it is likely that its motive in doing so will be carefully scrutinised. Whilst Reform UK may point to the inertia of the CPS as a proper reason for bringing the prosecution, it will be interesting to see how the arguments play out should this issue actually come before the courts.
Footnotes
4. See also Fuseon Limited v Senior Courts Costs Office, The Lord Chancellor [2019] EWHC 126 (Admin).
5. R (Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin), at [22].
6. Morjaria v Westminster Magistrates Court [2023] EWHC 2936 (Admin) at [29], approving R v Taktouk [2022] EWCA Crim 1254.
7. Asif v Ditta [2021] EWCA Crim 1091, at 11.
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