Farage goes to court – by Joshua Rozenberg

MP Nigel Farage is seeking to bring criminal charges against two people allegedly involved in a brawl at Manchester Airport on July 23 which led to complaints about two-speed policing.

Write in Today's Telegraphthe British Reform leader and his deputy, MP Richard Tice, say they have commissioned a specialist firm to initiate private prosecutions.

TM Eye Ltda private investigations company based in Essex this led more than 1,000 successful prosecutions, from shoplifters to international criminal gangs, has written to Greater Manchester Police and the Crown Prosecution Service (CPS) to get the ball rolling.

The company employs former police officers and other specialist investigators. The evidence they obtain is then submitted to TM Eyes' legal partners for review.

In footage shared online, a police officer appears to kick a man during an arrest. Images subsequently released indicate that officers had already been attacked.

Farage claims that

four officers were struck down by two individuals during a rapid and ferocious attack. A policewoman's bones were broken. The police must have wondered what was happening, why they were being attacked so aggressively. Split-second reactions and judgments were made by officers to save themselves and possibly other members of the public.

The announcement from Britain's Reformed leaders comes as no surprise. It was reported by the Mail on Sunday yesterday. On 7 October, Farages' entire parliamentary party told the Home Secretary that they would organize a private criminal prosecution if charges were not brought by the CPS:

Farage and Tice say today They believe the CPS is awaiting the outcome of an investigation by the Independent Office for Police Conduct before deciding on charges.

But trying to get ahead of police and prosecutors may not be as easy as lawmakers think.

When the PSC was created almost 40 years ago, Parliament specifically preserved the right of any person to bring criminal proceedings in England and Wales.

But there are important exceptions. At that time, more than a hundred Acts of Parliament required a private prosecutor to obtain the consent of the Director of Public Prosecutions or the Attorney General before proceeding. Since then, other such requirements have been introduced.

The Director of Public Prosecutions can take over a private prosecution at any time. He or she can then interrupt him even after the accused was sent for trial. The Attorney General retains the power, under common law, to seize a I don't want to continue which puts an end to the procedure and the courts have statutory power to restrict vexatious criminal prosecutions.

In the telegraphFarage and Tice say:

We are also making clear to the CPS that we will not tolerate them hijacking our prosecutions and then abandoning them for political reasons.

The Director of Public Prosecutions is not required give the accused any indication as to why he does not wish the proceedings to continue. But although the director operates under the superintendency of the attorney generalit could be subject to judicial review if prosecutorial decisions were made for political reasons.

The author of the long-time and knowledgeable Magistrates Blog, a retired district judge last time I checked wrote yesterday that launching a private prosecution was very simple:

In fact, the individual wishing to initiate proceedings sends the court a written summary of the offenses of which he accuses others of having committed. This written information is then examined either by a clerk (or assistant) of the judge, or by a justice of the peace, who issue a summons if they think there might be a case to answer.

At this point, the bar is not very high and as long as the accused is properly identified and a criminal allegation is made, they will likely be subpoenaed.

Times are changing. The judges' clerks were replaced by legal advisors in 2018. Last Wednesday, the High Court rejected a challenge by Ben Whitehead, of Staincross, Barnsley, a prospective private prosecutor whose application to summons had been rejected. His only connection to the alleged offense was that he had seen a recording of it on YouTube. The judgment is so recent and its evidence so similar to that of Farages that TM Eyes' legal associates must have alerted him.

Whitehead ran a company called Legalitic, offering legal advice to the public. He saw footage of a 2020 incident in which a police sergeant from Dorset Police stopped a motorist. Whitehead considered the arrest illegal and requested a subpoena against the officer.

Whitehead's application was submitted to Deputy Senior District Judge Ikram at Westminster Magistrates Court. After receiving detailed oral and written submissions, Ikram rejected the application.

The district judge said:

There must be at first sight evidence regarding each of the allegations made. The defendant was a lone police officer who was dealing with a driver perceived to be uncooperative. Indeed, [the driver] admits his car door didn't unlock. He also states that the officer wanted him to get out of the car to make the situation safe.

I am NOT convinced that there is at first sight evidence of unlawful force or threats/conduct made to [the driver]. I think no at first sight the charge is brought against the accused as to the alleged offenses.

For the reasons I have stated above, I decline to issue a summons ordering the defendant to appear before this court.

Whitehead sought a judicial review. Dismissing his application, Justice Edis and Justice Saini said last week that Ikram was entitled to conclude, based on the facts before him, that the evidence was either absent or weak. His decision was therefore rational and legal.

The two judges set out what the courts called the preliminary test:

The magistrate must verify whether the allegation constitutes an offense cognizable by law and, if so, whether the essential elements of the offense are at first sight here; that the alleged offense is not time-barred; that the court has jurisdiction; and whether the informant has the authority to prosecute.

This derives from one case in 2018 in which a failed private prosecutor was ordered to pay costs of 250,000.

The preliminary test was mentioned by the High Court in 2019 when it overturned a district judge's decision to issue summonses against Boris Johnson because of claims he made in 2016 and 2017 that the cost of EU membership to the UK was 350 million a week. A private prosecutor named Marcus Ball had accused Johnson of misconduct in public office on the grounds that he was a member of parliament and knew the figure was false or misleading.

Allowing Johnson's ChallengeLady Justice Rafferty and Mr Justice Supperstone rejected prosecutors' contention that the threshold test for issuing a summons is low.

After being refused leave to appeal, Estimated ball that he owed up to 200,000 euros even though he had raised 300,000 thanks to crowdfunding.

Even before the Post Office scandal demonstrated the dangers of private prosecutors, courts were increasingly reluctant to hand over the keys to the criminal justice system to individuals in cases already under review by public authorities.

In 1977, Lord Diplock said the right of a citizen to initiate private prosecution constitutes a useful constitutional guarantee against the capricious, corrupt or biased inability or refusal of the police and prosecutor to prosecute offenders. Lord Wilberforce said this remained a valuable constitutional safeguard against inertia or bias. But the two judges rejected a request by Jean Gourieta director of Freedom Associationfor an order requiring the Attorney General to take action against postal workers who refused to process mail destined for South Africa.

And in 2006, rejecting an attempt to bring a private prosecution for causing bodily harm after police decided to issue a warning, Lord Bingham said:

A crime is an offense against the good order of the State. It is up to the State, through its relevant agencies, to investigate alleged crimes and decide whether offenders should be prosecuted.

In the past, in the absence of a public prosecutor's office and poorly organized law enforcement, the prosecution of offenders necessarily depended on the involvement of private individuals, but this is no longer the case.

The right to private prosecution is of questionable value and can be exercised in a manner prejudicial to the public interest.

Anyone who follows the news can see that there are many aspects to the Manchester incident. TM Eyes investigators may be able to meet the threshold test, but they are unlikely to have as much evidence as the police and CPS.

With the Manchester Airport incident still under investigation, any magistrate would think twice before issuing a summons. If such a system were issued, I don't think it would take much time for the CPS to stop it.