LAW REPORT: Camelot should bring private prosecution

Regina v Director of Public Prosecutions, ex parte Camelot Group plc; Queen's Bench Divisional Court (Lord Justice Simon Brown, Mr Justice Curtis) 14 April 1997

Where it was sought to challenge, by way of judicial review, the refusal of the Director of Public Prosecutions to mount a prosecution, the court should adopt a flexible approach, the only rigid rule being that civil courts should not intervene once criminal proceedings had begun. Criminal disputes were, however, best decided in criminal courts between the parties most directly affected by their outcome, and the availability of an alternative remedy such as a private prosecution was always relevant.

The Divisional Court granted Camelot Group plc's application for leave to move for judicial review of the decision of the Director of Public Prosecutions not to prosecute 49's Ltd for running an illegal lottery, but dismissed the substantive application.

Camelot had referred the proposed scheme to the Director of Public Prosecutions, requesting the institution of criminal proceedings. The Crown Prosecution Service did not, however, consider that the scheme constituted an unlawful lottery, and were not prepared to prosecute its promoters. The Attorney- General had also refused Camelot's request to be allowed to bring a relator action.

Anthony Temple QC, David Pannick QC, Andrew Fletcher (McKenna & Co) for Camelot; Stephen Richards (Crown Prosecution Service) for the Director of Public Prosecutions); Michael Beloff QC, Tim Kerr (S.J. Berwin & Co) for 49's Limited.

Lord Justice Simon Brown said that the basis of the proposed challenge was that the Director's refusal to prosecute was founded on an error of law, namely a failure to recognise that 49 Ltd's scheme constituted an unlawful lottery. The central question was whether it was a case which Camelot ought properly to be allowed to argue in the context of a judicial review challenge to the refusal to prosecute.

Camelot acknowledged that judicial review would be granted "only where there was no other equally effective and convenient remedy" (see per Lord Widgery CJ in R v Hillingdon London Borough Council, ex p Royco Homes Ltd [1974] QB 720 at 728), but submitted that a private prosecution would not provide such a remedy.

The Director disputed that. Camelot was not concerned about the quality of the Director's decision-making, but rather the continuation of the 49's scheme. The direct and obvious way of ending that was by Camelot itself prosecuting rather than by seeking to force the Director's hand .

49's Limited submitted that the court should not entertain Camelot's challenge, since if successful it would inevitably result in stigmatising a third party's conduct as criminal.

The decision was not one of high principle. The court should adopt a flexible approach to the exercise of its declaratory jurisdiction in this field. The only rigid rule was, following Imperial Tobacco Ltd v Attorney- General [1981] AC 718, that once criminal proceedings had begun the civil courts should not intervene.

Criminal disputes, even upon pure issues of law, were best decided in criminal courts between the parties most directly affected by their outcome. The civil courts should be wary of embarking on the jurisdiction otherwise than at the suit of the Attorney-General (not least where he had refused his fiat for relator proceedings), and when existing, not merely prospective, conduct was involved and a declaration of criminality was sought, rather than one of non-criminality.

The availability of an alternative remedy was always relevant, and might be decisive. Not only was a private prosecution as effective and convenient a remedy as judicial review for pursuing Camelot's true grievance, but it was indeed their only proper remedy. It seemed undesirable for the court to be invited to declare C a criminal in proceedings brought by A against B, even where C was made a party to the application.

In short, but for one consideration the application for leave to move would have been unhesitatingly refused. However, the contrary view was properly arguable and the point might be thought to be of some importance.

A refusal of leave would spell the end of the matter. Leave would therefore be granted, and the substantive challenge dismissed. Camelot could then, if they wished, seek to carry their argument forward.