Can a private prosecution survive the death of the private prosecutor?
This was one of the three questions the Recorder of Westminster (HHJ Baumgartner) had to determine in a recent case. Albeit this is unlikely to be a unique scenario in the history of criminal proceedings, it is an unusual one raising novel issues, which this article delves into.
This private prosecution commenced back in May 2022 when a summons was issued by Westminster Magistrates’ Court for Ms Ghadeer Alsaqabi (“Ms Alsaqabi”) to appear before the Court on 12 April 2022 to answer the following two charges of fraud:
- Ms Alsaqabi dishonestly made a false representation to Ms Bin Khalifa, that if USD 160,000 was paid to her by Ms Khalifa, she would (i) provide her with a genuine UN laissez passer, and (ii) forward the money to the Inter-Governmental Institution for the use of Micro Algae Spirulina against Malnutrition (“IIMSAM”) as a donation; and
- Ms Alsaqabi dishonestly made a false representation to Ms Bin Khalifa that if USD 25,000 was paid to her by Ms Bin Khalifa, she would provide beneficial services to her (i) in respect of the publication of an article in both Forbes and Pioneer magazines, and (ii) by organising a presentation ceremony in Dubai where a genuine UN laissez passer would be presented.
The matter was then committed to Southwark Crown Court, the PTPH was set, and a date fixed for trial in May 2023. However, a further hearing had been set for September 2022 as Ms Alsaqabi challenged the jurisdiction of the Court to hear the case. As a result, Ms Alsaqabi hadn’t been arraigned. Whilst waiting for the jurisdiction hearing, the private prosecutor, Ms Bin Khalifa died.
Significantly, following the then Recorder of Westminster, HHJ Taylor’s, referral to the DPP to consider taking over conduct of the case, the DPP declined to do so. The matter was consequently referred to HHJ Baumgartner.
On the issue of jurisdiction, the Court considered the English courts’ jurisdiction under the Criminal Justice Act 1993 over fraud offences committed partially abroad. In this case, there were two false representations that were spoken over the telephone by Ms Alsaqabi abroad but with the receiving end of the phone call being in England. Therefore, the false representations were received (which is part of the continuum of them being ‘made’) in England. That was enough to found jurisdiction in this case.
At this point it is important to note that Ms Bin Khalifa’s husband, Mr Mohamed Tarabulsi (“Mr Tarabulsi”) had transferred money to Ms Alsaqabi’s account, and it was alleged that he was also a victim of the fraud perpetrated.
Prosecution counsel’s argument on the effect of the death of the prosecutor was that the prosecution was brought on behalf of the King and that the death of the person who happened to have conduct of the prosecution on the King’s behalf was irrelevant and did not bring the prosecution to an end. If it was necessary for a person to continue to have conduct of the prosecution, then that right/duty passed to the prosecutor’s surviving husband, by assignation or as the executor and administrator of her estate.
It seems Prosecution counsel’s primary position, however, until belatedly relying on the ability of the husband to discharge the duties of prosecutor, was that no person needed to occupy the role of private prosecutor. This appears to be an unviable position. Who would be the person responsible for complying with disclosure duties? Who would satisfy any adverse costs order? Solicitors and counsel cannot conduct proceedings without a person to instruct them; they cannot act for nobody. The only viable scenario was that the role of private prosecutor could be assigned.
The judge rejected the argument that the right to bring a prosecution was a right that could be assigned or transferred, such as a personal or proprietary right. Rather, the judge’s analysis was that a person, in having conduct of a private prosecution on behalf of the King, voluntarily assumed a ‘public office’ for that purpose. The public office could be vacated, i.e., if the CPS took over the prosecution (which it had declined to do in this case) or, as in this case, upon death. Thus, the judge held that the prosecution lapsed through abatement.
The key aspect of this case is the decision that a prosecution cannot be ‘assigned’. That means that a prosecutor (individual or corporate) who starts a prosecution must remain alive and able to finish it. If the prosecutor feels that they cannot continue (whether through physical or financial ill-health) they had better try and persuade the CPS to take it on and continue it or the prosecution will, on the prosecutor’s death or other withdrawal from the proceedings, lapse by abatement.
In any event, and subject to any appeal, the case is a very interesting one, analysing a couple of centuries of case law, and which may have wider implications than the death of an individual prosecutor. The case would seem to suggest that, in the case of a corporate prosecutor, the prosecution could not be transferred or assigned to a different company and would not survive the winding up of the company that had conduct of the prosecution. What of a corporate prosecutor that went into administration or liquidation? We would suggest that the company is still considered ‘alive’ during administration or liquidation and so until it has been dissolved, the private prosecution can proceed effectively.
By Natalie Tenorio-Bernal
