There is no prospect of bringing a private prosecution against Dominic Cummings.

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.

Mahsa Taliefar: would be private prosecutor

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 [2019] 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 [2008] 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.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

32 thoughts on “There is no prospect of bringing a private prosecution against Dominic Cummings.”

  1. In view of what you say Matthew, I would suggest that the two learned counsel should waive their remuneration for acting and the whole of the funds raised should be donated to VAO. Do you agree?

      1. I have to be honest and say that most lawyers with a background in local government law would have looked this ‘standing’ point at the outset rather than focussing on the plenary offences. I must confess that this was my first thought when I first read about the proposed prosecution. If Mr Sinclair is right, then both Counsel have made a “rookie” mistake. Most legislation of this kind is thus restricted. As to “person aggrieved” there is plenty of case law on it, but I am not sure that a law student who has suffered no discernable loss would qualify.

  2. I’m of the understanding that in any case the CPS can step in and stop a private criminal prosecution at any time. Is that the case? And if so, does it mean that a citizen is at significant risk of financial loss when bringing a private criminal prosecution, as if the prosecution is halted by the CPS, there will be no prospect of success but the costs incurred thus far won’t magically go away?

  3. This fallacy was exposed on Legal Cheek on 10th June. Counsel’s opinion is dated 24th June.
    It is astonishing that counsel, advising on secondary legislation, did not check the primary legislation which governs the regulations. I hope both counsel will donate their fees to the charity.
    This foolish student has wasted £300,000.

  4. I always suspected that inclusion in Chambers and Legal 500 said more about a lawyers ego than about their abilities.

    1. Getting into Chambers and Legal 500 is a career move. I got into Chambers a few years ago by telling them that I was better than most of the people they listed. Cheeky, but it got me a profile which I then used in my PR !

  5. I note that prior to it being amended by the 2008 Health and Social Care Act, section 64 (1) of the Public Health (Control of Diseases) Act 1984 said something rather different:
    “64 Restriction on right to prosecute

    (1)Subject to subsection (2) below, proceedings in respect of an offence created by or under this Act shall not, without the written consent of the Attorney General, be taken by any person other than—

    (a) a party aggrieved, or

    (b) a local authority or a body whose function it is to enforce the provision or byelaw in question, or by whom or by whose predecessors the byelaw was made. ”

    I feel sure Ms Taliefar considers herself to be aggrieved.

    1. That certainly gives slightly more scope for argument. I’m not sure what “a party aggrieved” means in that context, though I suspect it probably means someone directly affected by a provision of the Act or a regulation rather than just a member of the public who doesn’t like to see others getting away with it. However, under the original wording it also needed the written consent of the Attorney General. Can you see Suella Braverman agreeing to a prosecution of Dominic Cummings?

      1. If ” person aggrieved” meant anyone in the UK who felt annoyed, then it would cease to have any meaning as a limit on unmeritorious private prosecutions. That is, it must relate to a limited category of persons only. I could look it up, by my books on this are at the bottom of a box somewhere.

      2. Not the best example of the draftsman’s art I suggest. I think the sentence in the previous version of subsection (1) could be construed to mean “proceedings […] shall not be taken without the written consent of the Attorney General by any person, other than— …”. In other words, an aggrieved person / local authority did not need the Attorney’s permission but others outside that closed list did. I know it’s academic in this instance, but perhaps m’learned friends consulted an out-of-date Halsbury’s when compiling their advice.

    2. On the matter of ‘a party aggrieved’, cf. the definition of a complainant under the Police Reform Act 2002, which governs the handling and investigation of complaints about the police. Section 12 of the act specifies who can make a public complaint about the actions of officers. It restricts complainants to following categories of people:

      1. A member of the public who claims the conduct took place in relation to him or her.
      2. A member of the public who claims to have been ADVERSELY AFFECTED by the conduct, even though it did not take place in relation to him or her.
      3. A member of the public who claims to have witnessed the conduct.
      4. A person acting on behalf of someone who falls within any of the three categories above – though they would require written authority to act on that person’s behalf.

      The IOPC Statutory guidance (2020), section 29 defines the term ‘adversely affected’ being:

      ‘A person will be considered to have been adversely affected if they have suffered any form of loss, damage, distress or inconvenience as a result of the matter complained about, if they have been put in danger or otherwise unduly put at risk of being adversely affected’.

  6. Hi Matthew. I am Martin who is already in the middle of a Judicial Review proceedings against the DPP for failing to act and/or obtain reasoning from Met Police about their failure to act on the various alleged offences by Cummings during lockdown. Are you advising me to abandon any idea of pursuing a private prosecution if the DPP don’t act on the case as an appropriate authority? Aren’t you concerned that the little word ‘may’ is open to some interpretation? After all, hastily drafted legislation is often clarified by the judiciary in ways that the legislators never imagined. This Cummings affair is a matter of great public interest and the words ‘Cummings Effect ‘ is already entering the lexicon of excuses which has already caused a shift in public perception about taking care and staying safe during this pandemic….and no doubt other similar occurences in future.

    1. Yes I am so advising you and anyone else who might be tempted to throw money at lawyers. The size of a word bears no relationship to its importance, and in context it reads: “may not be taken by any person other than ….” The section is even headed “Restriction on right to prosecute.” It really is hard to think of a legal point which is less open to argument, although I take your point that judicial interpretation can sometimes be surprising, and of course I am just as fallible as Messrs Douglas-Jones and Rudolf. But I have the advantage which they didn’t have, which is that Phillip Sinclair pointed out S.64 to me. I am as sure as I can be that he is right and they are wrong.

  7. “… Ms Tielfar 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.”

    I’d have said that the sooner she realises she has zero chance, the SOONER the visually impaired of Ghana will benefit, but that any delay in her realising this is likely to result in raising more funds that they will benefit from eventually to the extent that they those funds are not wasted, faster than her lawyers will be able to get away with wasting those donated funds.

  8. I’m a Scottish lawyer. The chances of a private prosecution for pretty much anything in Scotland are more or less non-existent. This was always thought to be the case and the High Court’s decision in 2016 in the so-called bin lorry case ([2016] HCJAC 122) confirmed it.

  9. If ” person aggrieved” meant anyone in the UK who felt annoyed, then it would cease to have any meaning as a limit on unmeritorious private prosecutions. That is, it must relate to a limited category of persons only. I could look it up, by my books on this are at the bottom of a box somewhere.

  10. In reference to Andrew M’s contribution at 2.35 pm on 2nd July, as a potential private prosecutor of Cummings for alleged breaches of the Coronavirus Regulations in March, I believe I am covered by items 1,2 and 4 of his list. In fact no 4 is the strongest reason because I and my team have received hundred of instructions in the form of emails and tweets etc stating “Go get him..”, “Go for it”, “behind you all the way..” Thank you for taking this on for us who are not in the position to. You can count on my support the whole way through”. The last person is Martha frontline NHS nurse. This is a case of massive Public interest and concern. I do not believe that there would be any excuse for the judiciary to hide behind technicalities. Justice should not only be done, but be seen to be done.

  11. I loved the ending about cutting out the middle man, and your tentative approach to disagreeing with one’s “fellow counsel.” Very British and very barristerial! (My learned friend, etc etc)
    Subscribed 🙂

  12. Martin Redstone references the Cummings Effect, as someone who doesn’t give two hoots for the minor infraction of this gentleman (think of me as representing the silent majority here) does this term mean ‘bitter remainers who are happy to spaff money up the wall of solicitors and are just bullies that are too blind (sorry Ghana) to see how nasty, small-minded and vindictive they are’?

    1. Or is it instead about parents who are angry because they put themselves at risk or through difficulty coping with the virus when they could so easily have travelled to seek outside help from relatives, but chose instead to stick to the letter and spirit of the rules? There’s no point in playing the vindictiveness card when your own comment is so transparently a cynical attempt at point-scoring.

  13. Simon doesn’t really bring anythiing useful to this debate. He doesn’t even spell my surname correctly. For his information this case of mine is about ensuring that the DPP/CPS/Police do tbeir duty and investigate this apparent infringement of the coronovirus regs which had been enacted in March in order to protect public health. Nothing else that may have occurred prior to thiz period is relevant.

  14. There’s one thing that puzzles me. Why have you illustrated your piece with two photos of a barbie doll?

    Shouldn’t you have used photos of Douglas-Jones and Rudolf, so that we know to avoid them? Or tease them, as the case may be.

  15. Ms. Taliefar has restarted the crowdfunding with a revised goal of £70,000 and posted the following:

    “We have identified potential legal avenues worthy of pursuit regarding the prosecution of Dominic Cummings, these routs are thankfully not as resource intensive as a Private Prosecution, consequently we believe we are approaching the outside limit of funds required at this stage to explore and initiate any process flowing from our research. We hope to be able to update the community on developments next week – do watch this space.

    As a consequence we have also decreased the amount we are looking to raise from 300,000 to 70,000 . If all goes well we anticipate a large proportion of the funds will be made available to charity.”

    If she’s not trying for a private prosecution, what does she need the money for and why does she anticipate a large proportion of the funds going to charity? I do hope that Vision Aid Overseas get a substantial donation but why not fundraise just for them and on a platform that allows gift aid?

  16. One more from me; I’ve been keeping an eye on Marcus Ball’s legal and financial woes for quite a while as have a few other people posting on various blogs and Reddit. There’s some interesting insights that have come out of this, for example:

    *Legal fees relating to David Perry QC’s advice were £109,000. Ball severed the relationship in early 2018 accusing him of being wrong and biased.
    *Ball got hit for Johnson’s costs to a tune of £101,130.18 – https://www.qebholliswhiteman.co.uk/cms/documents/20.09.19___Order.PDF
    *However, those are entirely separate from the £246,000 of “court costs” Ball says he owes. From a now deleted website of his, he refers to £240,000 (approx.) of outstanding legal team costs in addition to Johnson’s costs – https://web.archive.org/web/20191219100733/https://www.borisjohnsonprosecution.com/ (scroll down to the “Financial Reporting” section)
    *The above is supported by yet another deleted website of his where he states he is around £340,000 in debt – https://web.archive.org/web/20200214132808/https://www.crowdfunder.co.uk/borisjohnsonpostjcio (scroll down to the “How can you help?” section)
    *We can then deduce that the difference between the numbers is likely due to Ball having settled Johnson’s costs order.
    *That then raises the question of what exactly are the £246,000 of “court costs”? Remember, this is on top of the £700,000+ he crowdfunded.

    I’d question why any solicitor or barrister would let such a vast sum of fees build up without being certain they would be paid. You might if it was Global Megacorp PLC or some high net worth individual, but Ball has gone on record as having no assets and is reliant on crowdfunding to pay for everything. This, and the deleting of websites (which Ball was told by the High Court that he was in breach of his duty of candor for doing so previously) makes me wonder just how true his claim is.

  17. It may be that this move is as much a part of marketing herself and her future career on the part of Ms Taliefar as Messrs Douglas-Jones’ and Rudolph’s Legal 500 / Chambers entries are regarding theirs. In which case I say 9/10 for initiative, hard as it is to secure a Training Contract or Pupillage.

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