When private prosecutions are brought for political purposes they very rarely end well. In fact, I cannot think of a single example which has done so.
Readers will remember the fate of Marcus Ball who amidst great fanfare launched a private prosecution against Boris Johnson over the Vote Leave campaign bus slogan. Boris Johnson was accused of misfeasance in public office. The case ended in the Administrative Court on 3rd July 2019 when Lady Justice Rafferty and Mr Justice Supperstone ruled that he had failed to reveal any criminal conduct by Mr Johnson. Mr Ball’s prosecution, they strongly implied, was “vexatious.”
Like the limbless knight in Monty Python and the Holy Grail Mr Ball vowed to fight on, and the crowd-funding continued until by October 9th 2019 11,421 people had contributed a total of £456,088, according to Mr Ball’s main Crowdfunder page.
The page now contains a confusing set of messages: at the top a picture of Mr Ball with the explanation:
“We DO NOT have enough money to complete this legal challenge. The Magistrates Court ruled in our favour. The High Court did not. We’re now trying to get our case into the Supreme Court. This is going to be a long and hard fight. We must challenge lying in UK politics.”
Below this is a cryptic and rather plaintive announcement:
“Message from Marcus: DO NOT FUND THIS PAGE.
Please wait for an update from me, I’ve encountered a serious problem. Please await news. Do not fund for the time being.
Thank you and kind regards,
Marcus J Ball
Crowdfunded Private Prosecutor”
Below this again, repeated 8 times, is yet another message:
PLEASE IGNORE BELOW INFORMATION:
The “below information” is the original detailed explanation of Mr Ball’s case against Mr Johnson, the one that crashed and burned in July 2019. Why Mr Ball has left all this information up on his crowdfunding page under an eight times repeated injunction to ignore it rather than simply deleting it is one of the minor mysteries of the case. There is less mystery over what the “serious problem” that he has encountered: he instigated a prosecution with virtually no chance of success and now faces an enormous bill for costs.
In fact, Mr Ball has, or had, several other crowdfunding pages, and says he has raised in total over £700,000 in donations, all of which appears to have gone down the plughole, mostly paid to his lawyers including at various times three different QCs. How he must wish he had listened to David Perry QC who wisely told him he didn’t stand much chance rather than Lewis Power QC who told him he had “reasonable prospects” of obtaining a conviction. He says he now owes approximately £246,000 in “court costs,” though presumably they are in fact the costs of Mr Johnson’s defence. A serious problem indeed.
As for Mr Ball himself: he announced last October that his “personal bankruptcy” and “company insolvency” was “going ahead,” although as of today his company “Stop Lying in Politics Ltd” (formerly known as Brexit Justice Ltd) is still active according to the Companies House website, and Mr Ball himself does not appear on the register of bankrupts. In the meantime, he has complained, unsuccessfully, about the impartiality of the judges and announced that he is now intending to bring a private prosecution in Scotland, although he will represent himself in court rather than instruct lawyers. It is hard to be optimistic about his chances of success.
All this should be a salutary warning for a law student called Mahsa Taliefar who now wants to bring a private prosecution against Dominic Cummings for breaching the lock-down regulations.
Ms Taliefar has followed in Mr Ball’s well-trodden steps and instructed some impressive legal talent of her own, including a classy firm of solicitors, Waterfords (who claim to provide “sensible and practical solutions to legal problems”), and barristers Benjamin Douglas-Jones QC and Nathaniel Rudolf. Mr Douglas Jones is described by the Legal 500 – a publication, I might say, that has never so much as mentioned Barristerblogger, even as a reasonably safe pair of hands in a pub punch-up where not too much is at stake – as “extremely bright … with the ability to marshall cases of the utmost complexity.” No less gushingly, Chambers and Partners directory describes him as “fantastic and incredibly hard-working.” Mr Rudolf is just as highly praised. He has, according to the Legal 500 “a phenomenal grasp of the law and procedure,” and it notes that “prosecutors fear having him as an opponent.” He is, according to Chambers and Partners directory – yet another legal version of Trip Adviser in which Barristerblogger is inexplicably overlooked – “an intellectual with excellent technical knowledge who also has the common sense and confidence to drive that knowledge in a helpful and practical way for clients. … He is extremely thorough and has in-depth knowledge of the law.”
Last week Ms Taliefar received the 48 page joint “Preliminary Advice” from these barristers and she has published it online. She had asked for an opinion on the chances of successfully prosecuting Mr Cummings for a number of offences apart from those under the Coronavirus Regulations, including careless driving, fraud, misconduct in public office and even outraging public decency.
The barristers – who were asked to confine themselves to just 5 hours work each on the advice – gave a firm thumbs down on the driving, fraud and misconduct in public office, even citing R (on the application of Boris Alexander De Pfeffel Johnson) v Westminster Magistrates’ Court  1 WLR 6238 (better, albeit slightly inaccurately known as Ball v. Johnson) in support of their view that Mr Cummings was not guilty of misconduct in public office.
The idea that he might be charged with outraging public decency is, sensibly, given even shorter shrift:
“We have considered the replete exegesis of the law concerning that offence in R v Hamilton  2 WLR 107, in which Thomas LJ (as he then was) gave the judgment of the Court of Appeal Criminal Division. Having reviewed the authorities, we are of the view that evidential sufficiency is not made out.”
However, on the main issue of whether there was a possibility of a private prosecution for breach of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 they came to a very different conclusion. Mr Cummings’s conduct, they wrote:
“involved the commission of two prima facie offences contrary to Regulation 6. There is a realistic prospect of conviction in respect of each of them. We do not consider that Regulation 11 of the Regulations prohibits a private prosecution. In the event of a summons being issued, this will be the subject of legal argument, we anticipate.”
I am always reluctant to criticise the work of my fellow counsel, particularly those much more distinguished than myself, as Mr Douglas-Jones and Mr Rudolf undoubtedly both are. However, another barrister, Maidstone based Phillip Sinclair, has done the work for me. He suggested, only slightly tentatively, that Mr Douglas-Jones’s Advice was wrong. Mr Douglas-Jones and Mr Rudolf, he said, had overlooked Section 64 of the Public Health (Control of Diseases) Act 1984.
This all sounds rather technical but if Mr Sinclair is right Ms Taliefar has received duff advice from her barristers.
The question is: who has the right to prosecute for a breach of the Health Protection (Coronavirus, Restrictions) (England) Regulations?
I will not trouble you with a replete exigesis of my own on the law surrounding private prosecutions generally. Those who enjoy that sort of thing can look at paragraphs 57 – 66 of the Douglas-Jones / Rudolf Advice itself where it is discussed in great detail, with numerous references to legislation and Supreme Court judgments. In general – and I am over-simplifying – anyone can bring a private prosecution for any offence, except where it is expressly forbidden.
Douglas-Jones and Rudolf correctly spotted that Regulation 11 provides:
“Proceedings for an offence under these Regulations may be brought by the Crown Prosecution Service and any person designated by the Secretary of State.”
But this, say the barristers, is no bar to Ms Taliefar.
“Had the intention of Regulation 11 been to preclude private prosecutions the word ‘only’ would naturally have been included between ‘may’ and ‘be’ in Regulation 11.
“ … A private prosecution may be classed as a ‘constitutional’ right founded in statute (or common law). It would require the most explicit language to extinguish that right.”
Since the Regulations do not contain such explicit language, they conclude, Ms Taliefar has the right to bring a prosecution herself.
All this would be sound advice were it not for the awkward fact pointed out by Mr Sinclair: S.64 of the Public Health (Control of Disease) Act 1984, which provides:
(1) Proceedings in respect of an offence created by a provision of, or regulations under, this Act may not be taken by any person other than—
(a) a relevant health protection authority,
(b) a body whose function it is to enforce the provision or regulation in question, or
(c) a person who made (or whose predecessors made) the regulation in question.
Since the Regulation which Mr Cummings is accused of breaching was made under the authority of this Act, this section poses a problem for Ms Taliefar.
She is not a relevant health protection authority, she is not a body whose function it is to enforce the regulation in question (rather a vague phrase admittedly, but it obviously includes the CPS and excludes her) and nor is she a person who made (or whose predecessors made) the regulation in question (that would be Mr Hancock, the Secretary of State for Health).
So it seems, unless Mr Douglas-Jones and Mr Rudolf have some bright ideas that are not included in their Advice, the law unambiguously prevents her from bringing a private prosecution. I am even going to stick my neck out in a way that barristers seldom do: her planned private prosecution does not have reasonable prospects of success. It has no prospects of success whatsoever.
In a way this is good news, and not just because private prosecutions have a huge potential for injustice – whatever they may say it is usually very difficult to see how private prosecutors can ever be entirely trusted to put the public interest ahead of their own private interests – but also because Ms Taliefar has promised that any funds not spent on her legal mission impossible will be sent to Vision Aid Overseas, an excellent charity that provides eye care to people in Ghana who could not otherwise afford it.
Needless to say, money is still pouring in to Ms Taliefar’s crowd-funding page: over £41,000 when I last looked.
Messrs Douglas-Jones and Rudolf conclude their Advice:
“If we can be of any further assistance once further funding is in place, please do not hesitate to contact us.”
Well, it seems further funding is now in place and Ms Taliefar might be well-advised to contact them immediately. If Mr Sinclair is right – and I have no doubt that he is – it should take them, as he says it took take him, a mere 20 minutes to discover what, bluntly, they should have spotted when she asked them the first time: that Ms Taliefar has absolutely zero chance of bringing a private prosecution. The sooner she realises it, the more the visually impaired people of Ghana stand to benefit.
In the meantime if you wish to contribute to Vision Aid Overseas might I suggest that you cut out the middle men, the solicitors and the barristers, and donate directly, here. As you will see, just £5.00 can pay for an eye test and a pair of glasses.