R v Sarabjit Khera & Ors [2024] EWCA Crim 1086

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2024] EWCA Crim 1086Case No B5202400164; B5/202400166; B5/202400167;B5/202400168; B5/202400169 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
HHJ ROCHFORD
T20210542, T20227054, T20210561
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 31 st July 2024
Before
VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION(Lord Justice Holroyde)MRS JUSTICE MAY DBEMR JUSTICE BRIGHT
Between
REXApplicants1) SARABJIT KHERARespondents(2)JAMES MICHAEL TIERNEYRespondent(3) JOSIP MAGICRespondent(4) PHILIP ASHLEY WHYMANT MORRISRespondent(5) HELMUT CHARNERespondent
Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
Mr R Whittam KC and Ms R Chalkley KC appeared for Applicants.Mr N Rudolf KC and Ms S Deshani as lead counsel for Defendants, together withMr A Langdale KC and Mr T Bell, who made additional submissions for Defendants.J U D G M E N T

VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMANAL DIVISON:

[1]The Registrar has referred to the full court this application by the prosecution pursuant to section 58 of the Criminal Justice Act 2003 for leave to appeal against a ruling by HHJ Rochford (“the judge”), sitting in the Crown Court at Birmingham, that the prosecution of the respondents should be stayed as an abuse of the process.[2]The provisions of section 71 of the 2003 Act apply to these proceedings and reporting restrictions are in place accordingly. The names of the respondents have therefore been anonymised in the listing of this application. We will review the reporting restrictions at the conclusion of this hearing.[3]The applicants are John and Heidi Hassenfeld, to whom we shall for convenience refer as "the private prosecutors". They have brought these criminal proceedings against the five respondents to whom we shall refer for convenience as "the defendants". When referring to individual defendants, meaning no disrespect, we shall use surnames only.[4]The defendants are charged on an indictment containing 19 counts as follows: on count 1, Khera, Tierney and Magic are charged with conspiracy to defraud Dr Leonard Wietzke; on count 2, Khera, Tierney and Whymant-Morris are charged with conspiracy to defraud Alexander Iannacio; on counts 3 to 7, Khera is charged with money-laundering offences; on counts 8 and 9, Tierney is charged with money-laundering offences; on counts 10 to 17, Magic is charged with money-laundering offences; and on counts 18 and 19, Charne is charged with money-laundering offences.[5]From a long chronology of the factual and procedural history, we highlight the following.[6]In early 2020, the private prosecutors loaned $2 million to their nephew, Alexander Iannacio, who in January that year had been introduced to Tierney and had been led to believe that an investment of that amount would quickly produce a very substantial return. Iannacio made the investment, but the money was lost.[7]In June 2020, Iannacio appears to have assigned to the private prosecutors at least some of his contractual rights against Tierney, though the documents which we have seen in this respect are less than clear. The private prosecutors thereafter instructed investigators to enquire into two of the defendants and their associates.[8]In September 2020, the private prosecutors served a statutory demand on Tierney seeking to enforce the guarantee. No reply was received.[9]In October 2020, although it was not then known to the private prosecutors, a group of Swiss investors, who also alleged fraud by some of the defendants, obtained a summary judgment in civil proceedings. The private prosecutors learned of this some months later, when their investigators found that, at the time when Iannacio was persuaded to make his investment, the defendants Tierney and Khera had been subject to worldwide freezing orders obtained by the Swiss investors.[10]As investigations continued, letters of claim sent to the defendants indicated that the private prosecutors reserved their rights to bring civil or criminal proceedings. Our attention was particularly invited to one such letter sent on 3 March 2021 to the defendant Whymant-Morris, in which solicitors acting for the private prosecutors asked the defendant to provide certain information and documents and concluded by saying:
“In the absence of a response from you or your failure to provide the materials and information requested, we are instructed on behalf of the Hassenfelds to commence civil or criminal proceedings against you and to seek the costs of those proceedings from you”
[11]In early 2021, the private prosecutors learned of another investor, Dr Wietzke, who complained that he had been defrauded by Tierney, Khera and Magic. No mention had been made of Dr Wietzke in any of the letters before action, because the private prosecutors were not then aware of him.[12]The case against the defendants can then be summarised by quoting from the judge's ruling as follows: “The Defendants Khera, Tierney and Whymant-Morris conspired to defraud Mr lannacio of $2m by dishonestly representing to him that if he paid over that money it would be used to perform financial trades that would result in a return to him, within a very short timeframe, of $10m. Documentation was provided and assurances given to Mr lannacio which led him to believe that the scheme was sound. He persuaded Mr and Mrs Hassenfeld to lend him this money. That loan was properly and formally documented. The money was paid over in accordance with instructions given to Mr lannacio. But rather than being invested as agreed, it was paid away and lost. That is Count 2 (conspiracy to defraud). In due course, the Hassenfelds learnt of a similar scheme. That is reflected in Count 1. The Defendants are Khera, Tierney and Magic. The victim there was Dr Wietzke, a German national and resident … Dr Wietzke was told that an investment of €1m would yield a profit of €3.5m. He transferred €1m on 23rdMay 2019. He was later told that the trade had been successful and was offered an opportunity to invest €4.5m (ie the original investment plus alleged profit) to yield €18m, which he agreed to do. In June 2019, he invested a further €2.5m. The total promised return was €200m. He in fact received only two payments: €1m in August 2019 and €500,000 in December 2019. The balance of his money has been paid away and lost. The remaining counts, 3 to 19, are allegations of money laundering made against Mr Khera, Mr Tierney, Mr Magic and Mr Charne".[13]In June 2021, on an application by the private prosecutors, summonses were issued against four of the defendants: Tierney, Magic, Whymant-Morris and Charne. The charges against those defendants were transferred by a magistrates' court to the Crown Court at Birmingham. At a plea and trial preparation hearing in September 2021, the defendants pleaded not guilty. Their trial was fixed for 9 January 2023.[14]As a result of further evidence being obtained, in particular from Dr Wietzke, the private prosecutors applied for a summons against the defendant Khera, which was issued in January 2022. Khera appeared before the Crown Court in February 2022 and indicated he would plead not guilty.[15]In March 2022, the private prosecutors applied to join Khera to the indictment against the other defendants. No defendant objected to that being done.[16]There were a significant number of hearings in the Crown Court at Birmingham, many of them before the judge. In particular, there were hearings in connection with an application by the private prosecutors to commit Tierney to prison for breaches of a restraint order which had been issued against him. Ultimately, in May 2022, the judge committed Tierney to prison for seven months.[17]A few days before that committal, all defendants had appeared at a directions hearing in the Crown Court. The parties were informed that the court was unable to accommodate the fixed trial date. The trial was relisted for 11 March 2024.[18]In July 2022, the defendant Tierney, whose appeal against his committal for seven months had been dismissed by the Court of Appeal, asked the Crown Prosecution Service ("CPS") to take over the prosecution and discontinue it. He relied upon the case of Asif v. Ditta [2021] 2 Cr App R 21.[19]Over the following months, the defendants Magic, Whymant-Morris and Charne served defence statements. Each of them did so after the relevant time limit imposed by the court had expired. The remaining defendants, Khera and Tierney, have never served defence statements.[20]Further hearings followed before the judge. At a directions hearing in March 2023, directions were given with a view to hearing legal arguments on a number of topics in December 2023. Around this time, Tierney gave informal notice to the private prosecutors that he would be making an abuse application, but no written application was in fact lodged until October 2023, more than three weeks after the deadline imposed by the judge had expired. The defendant Khera served an abuse application even later, only four days before the hearing in December. It does not appear that any of the other defendants ever served a written application.[21]Before coming to the hearing in December 2023, it is necessary to go back a little to 25 August 2023, when a senior specialist prosecutor with the CPS, Mr Dickson, sent to the parties his response to the request which had been made by Tierney. In a notably careful and thorough analysis, Mr Dickson expressed the following views:(a) both the evidential sufficiency stage and the public interest stage of the Full Code Test were met in relation to each of the defendants;(b) there were no factors making it in the interests of justice for the CPS to take over the case and close it down. In particular, Mr Dickson rejected the suggestion that the private prosecutors were not appropriate persons to prosecute because they were not victims of the alleged offences. He further commented that Asif v. Ditta could be distinguished and that it was unlikely that an application to stay the prosecution as an abuse would succeed.(c) He was satisfied that the private prosecutors' motive was not purely to seek financial retribution, but to seek justice per se and to protect other victims from harm. That, he indicated, could be inferred from the counts not involving Iannacio, from the references to the claim by the Swiss investors, if that were admitted in evidence, and the potential evidence of a third victim. From this, Mr Dickson observed, "It is clear there is a pattern of behaviour here which needs to be stopped".(d) He considered whether there was a need for the CPS to take over the case and continue it. He concluded that there was not. This was a serious case which he was satisfied had been properly investigated and was being properly prosecuted by the private prosecutors, who were assisted by experienced and very capable counsel and solicitors.(e) He was satisfied that the prosecution was not being used to manipulate the process of the court and that, whilst there may be mixed motives behind it, it was not a mere device to secure the equivalent of a civil settlement.[22]Returning to the hearing in December 2023, the judge heard applications relating to the court's jurisdiction in relation to the defendant Magic; the disclosure to other defendants of material arising from the committal proceedings against Tierney; and, finally, abuse of process.[23]All defendants submitted that the proceedings should be stayed on the grounds of a category 2 abuse of process. They did not submit that no fair trial was possible but argued that a stay was necessary to protect the integrity of the criminal justice system. Their argument, resisted by the private prosecutors, was that their prosecution was an abuse of the process for two reasons: first, because the primary purpose of the criminal proceedings was not to achieve retribution for a wrong done, but to recover the money that Iannacio had paid; and secondly, because the Hassenfelds were acting as a proxy prosecutor for Dr Wietzke[24]The judge gave a written ruling on 10 January 2024. We summarise the contents of that ruling as follows.[25]The judge explained that there are two broad categories of case in which proceedings my be stayed as an abuse: namely, cases where it is not possible for the accused to have a fair trial, and cases where a stay is necessary to protect the integrity of the criminal justice system. The defendants relied on the second category. The judge noted that a stay is an exceptional order, which will only rarely be granted, and that it is for an applicant to establish the grounds for a stay.[26]The judge referred to case law. He accepted that many private prosecutions will be pursued for a mix of reasons and that the right to bring a private prosecution is confirmed by statute and should not readily be undermined.[27]From the case law, the judge concluded that: "… a stay can be granted where either the primary motive for bringing and continuing proceedings is to secure afinancial settlement or where this is, if not the primary motive, at least an oblique motive that is so dominant and unrelated to the proper purposes of the proceedings as to render them an abuse; and in either case this motive renders the continuation of the proceedings as trulyoppressive. If these conditions are satisfied, the question of whether there should then be a stay is one that engages at least a residual discretion".[28]We observe that, in using the phrase "truly oppressive", the judge was echoing what was said by the High Court in the Queen (Dacre and another) v. City of Westminster Magistrates' Court and others [2009] 1 Cr App R 6.[29]The judge noted the defendants' argument that the private prosecutors' real motivation was apparent from the following: a statement by Mr Hassenfeld, a statement by a private investigator which spoke of the Hassenfelds seeking to trace and recover their funds, an email from the private prosecutors' solicitors asking a defendant if he intended to co-operate with their attempts to recover the funds, and the letters before action. The judge said that, in his judgment: "the clear tone and import of the letters before action to Mr Singh and Mr Whymant-Morris are to the effect that proceedings, both criminal and civil, can be avoided (or [at] least perhaps delayed) by the provision of information that might lead to the recovery of funds".[30]The judge referred to, and ultimately accepted, a submission on behalf of the defendants that, if a case is being prosecuted with the sole or principal aim of recovering money, it follows almost inevitably that the proceedings are in themselves oppressive and lead to oppression. He referred to the absence of any civil proceedings. He concluded that there was an irresistible inference that the private prosecutors were intent on using the threat of the civil and criminal proceedings to recover their money, and that the threat of criminal proceedings was being used as a lever to secure co-operation.[31]The judge rejected defence submissions that the Hassenfelds had "turned themselves into victims" and were "proxy prosecutors" for Dr Wietzke. He regarded the facts of this case as being "a world away" from those in Asif v. Ditta.[32]We must quote in full the concluding paragraphs of the judgment: "61 Accordingly, although it is very possible that a small part of the motivation of Mr and Mrs Hassenfeld in commencing and continuing these proceedings is to secure punishment of those who they believe defrauded their naive nephew of money they lent to him, their primary and overwhelming motivation and purpose was and remains to recover that money from the defendants so that it can be restored to them and, more generally, the family. The intention is to use these proceeding both directly through the confiscation proceedings that would inevitably follow any conviction (assisted by restraint orders that have been made), but also through the powerful levers that criminal proceedings can bring to bear upon defendants. Those levers are, of course, likely to be especially powerful where the prosecution is by private prosecutors who can themselves make decisions about the progress of the case. That is not the purpose for which criminal proceedings are designed or intended.62. Further, in those circumstances I consider that use of criminal proceedings in that way does amount to oppression. The simple matter of being a defendant to serious Crown Court proceedings is in itself distressing and inconvenient and, especially where used to secure payment in the circumstances that exist here, oppressive.63. To the extent that it is necessary to make findings of fact, I find that the primary motive of the prosecutors in bringing and pursuing these proceedings is to recover the sums paid over by or on behalf of their nephew and thus to recover the money they lent him. Punishment and retribution is a subsidiary motive, of far less significance to them than the primary motive.64. I take full account of the fact that a stay is an exceptional course. My assessment and analysis of the case, based on the factual findings and conclusions I have made and set out, is that the case should be stayed. To the extent that, given my findings and conclusions, I have any real discretion as to the matter, I unhesitatingly consider it can, and indeed must, be exercised in favour of the grant of a stay".[33]The private prosecutors gave immediate notice of their intention to appeal against that ruling. All necessary formalities have been complied with, and what is commonly referred to as the "acquittal undertaking" required by section 58(8) of the 2003 Act has been given. The judge declined to order expedition.[34]So the matter comes before this court.[35]Section 58 of the 2003 Act gives a right of appeal in respect of rulings of this nature. Section 61(1) states the power of this court to confirm, reverse or vary the ruling to which the appeal relates and section 61(4) contains provisions as to what the court must do if it reverses or varies the ruling.[36]Section 67 is in these terms: "Reversal of rulings The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied— (a)that the ruling was wrong in law, (b)that the ruling involved an error of law or principle, or (c)that the ruling was a ruling that it was not reasonable for the judge to have made".[37]Before summarising the submissions, it is convenient to refer to some of the case law which was put before the judge and to two very recent decisions of this court. The differing outcomes of the abuse applications in these cases reflect the need for a fact-specific analysis in each case. We focus on the expressions of principle.[38]In D Ltd v. A [2017] EWCA Crim. 1172, the court stated that the legal principles relating to a stay on the grounds of abuse apply equally to private prosecutions and to public prosecutions. It was also emphasised in that case that the second category of abuse requires a balance of competing interests, including the statutory right to bring a prosecution and the public interest in serious criminality being prosecuted, whereas the first category of abuse does not.[39]In The Queen v. George MaxwellDevelopments Limited (1980) 71 Cr App R 83, it was observed that: "A prosecution in the Crown Court is a very serious matter and may have very serious consequences. It is brought in the public interest to punish an offender and not, except indirectly, to compensate the victim. The Crown Court is not an appropriate forum to ventilate a private grievance or to pursue a personal vendetta".[40]In Asif v. Ditta, the court confirmed that mixed motives on the part of a private prosecutor are not in themselves a bar to the prosecution:
"a private prosecutor can have another motive as well as being motivated by a public interest factor"
. At paragraph 72, the court stated that a stay on the grounds of category 2 abuse should be granted where it is necessary to protect the integrity of the criminal justice system.[41]In The Queen v. Taktouk [2022] EWCA Crim. 1254, this court said, in relation to the second category of abuse, that "the touchstone is whether the court concludes that in all the circumstances a trial will offend the court's sense of justice and propriety".[42]The court also said that the trial judge in that case had made no error of principle in his ruling, which included the following: "The desire for compensation for loss suffered and the wish to see justice done sit readily alongside one another, and the combination would be a commonplace in crimes involving property. Even if one categorises the motive of achieving a settlement as indirect or improper, it would have to render the proceedings 'truly oppressive'".[43]In Morjaria v Westminster Magistrates' Court [2023] EWHC 2936 (Admin.), the High Court confirmed that improper motive in bringing criminal proceedings can provide the basis for staying the proceedings as an abuse of the process. In a passage relied on by the defendants, the court referred to the evidence in that case that the private prosecutor's primary motivation in issuing criminal proceedings had been to bring his opponent to his knees and make him want to settle. At paragraphs 48 and 49, the court went on to say: "This was not a proper use of criminal proceedings. Whilst it is correct that restitution for the victim may be a proper objective of the criminal justice system, this assumes that the criminal process is to be used directly for that reason. In this instance, the criminal proceedings were to be used as a means to an end. The purpose of the criminal process is not to serve the private interests of any individual. The fact that there was and is prima facie evidence of fraud on the part of CM and others cannot legitimise criminal proceedings when their purpose was to threaten … Where a prosecution lacks any true public interest rationale, the use of the criminal process prima facie will be oppressive".[44]In The King v BKR [2023] EWCA Crim. 903, the court pointed out that category 2 abuse does not arise unless the accused can receive a fair trial. That being so: "it seems clear that something out of the ordinary must have occurred before a criminal court may refuse to try a defendant charged with a criminal offence when that trial will be fair".[45]Finally, in The King v Ng and O'Reilly [2024] EWCA Crim. 493, the court at paragraph 21 confirmed that a stay of criminal proceedings as an abuse of the process is an exceptional remedy, to be exercised with care and restraint, and a measure of last resort. In relation to category 2 abuse, the court at paragraphs 24 and 25 set out a two-stage approach:"24. First, it must be determined whether and in what respect the prosecutorial authorities have been guilty of misconduct, such as very serious examples of malpractice and unlawfulness (as opposed to state incompetence or negligence). Secondly, it must be determined whether such misconduct justifies a stay on the ground of abuse of process. This requires an evaluation on the particular facts and circumstances of each case, weighing in the balance the public interest in ensuring that those charged with crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system"25. Unfairness to the defendant is not required; rather the focus should be on whether the court’s sense of justice and propriety is offended or public confidence in the criminal justice system would be undermined. Equally, a stay should not be imposed for the purpose of punishing or disciplining prosecutorial misconduct. The focus must be on whether a stay is appropriate in order to safeguard the integrity of the criminal justice system".[46]We turn to the submissions of the parties. We encapsulate them extremely briefly, but we have taken into consideration all the points made on each side.[47]Mr Whittam KC and Miss Chalkley for the private prosecutors put forward a single ground of appeal, namely that there were errors of law and principle in the judge's approach to reaching his decision and, in consequence, his ruling was one which it was not reasonable for him to have made. In support of that ground, they put forward nine specific criticisms of aspects of the ruling. They submit that, if factors amount to an abuse of the process, the wrongdoing will usually be obvious, but here it is submitted the private prosecutors have acted entirely properly in complying with their duty of candour, making appropriate disclosure and complying with all their duties as prosecutors. The judge did not find them to have done anything wrong, and they have over a lengthy period pursued these proceedings at personal cost on behalf of the victims of the alleged crimes.[48]Mr Rudolf KC and Ms Deshani made submissions as, in effect, lead counsel for all the defendants, with further submissions being added by Mr Langdale KC and Mr Bell. Counsel argue against each of the specific points advanced on behalf of the private prosecutors. They submit that the judge considered all relevant matters, correctly directed himself in law and reached findings which were properly open to him. They rely on familiar case law, such as The Queen v. B [2008] EWCA Crim. 1144 and The Queen v. M & T [2009] EWCA Crim. 2848, which establishes that this court should only intervene if errors of law and principle are clearly made out. Here, they submit, there was no such error.[49]We are grateful to all counsel for their assistance. Having reflected on their submissions, we think it best to approach our analysis in stages.[50]First, we are troubled by the timing of the applications by the defendants to stay the proceedings as an abuse. It does not appear that either the parties or

the judge considered rule 3.28 of the Criminal Procedure Rules, which provides:

"Application to stay case for abuse of process (1) This rule applies where a defendant wants the Crown Court to stay the case on the grounds that the proceedings are an abuse of the court, or otherwise unfair. (2) Such a defendant must— (a) apply in writing— (i) as soon as practicable after becoming aware of the grounds for doing so, (ii) at a pre-trial hearing, unless the grounds for the application do not arise until trial, and (iii) in any event, before the defendant pleads guilty or the jury (if there is one) retires to consider its verdict at trial …"
[51]It is clear from the structure of that rule that the starting point is a requirement to make the application promptly when a defendant has become aware of the grounds for it. An application at the later stages mentioned in subparagraphs (2) and (3) will need to explain why the primary obligation was not fulfilled.[52]In this case, all or virtually all of the material facts were known to the defendants by the time the summonses were issued. Given the heavy reliance placed by the defendants and the judge on the terms of the letters before action, it is, in our view, clear that any application to stay should have been made promptly after the commencement of proceedings or at least promptly after the proceedings had been transferred to the Crown Court. The defendants' counsel were unable to provide any satisfactory explanation for why that was not done. We reject the submission that no such application could be made until after the CPS had been invited to take over the prosecution. The request to the CPS was not made by Tierney until July 2022, more than a year after the charges against him had been transferred to the Crown Court and six months after the last of the summonses, against Khera, had been issued. If the concern was that the defendants should first be seen to have exhausted all alternative remedies, the obvious answer was for them all to make a request of the CPS many months sooner than any of them did.[53]In our view, this dilatory approach to the making of the applications to stay undermines from the outset the defendants' contention that they have suffered oppression such that a stay of proceedings was necessary to protect the integrity of the criminal justice system.[54]Next, we consider whether the judge was wrong to find that the private prosecutors' primary or dominant motivation was the recovery of their money and that they threatened criminal proceedings as a lever to secure co-operation. With all respect to the judge, he attached far too much weight to letters before action written (in terms similar to many such letters) at a stage when the private prosecutors were still investigating what had happened, and were not yet aware of all the evidence indicating that Iannacio was not the only victim of a fraud by one or more of the defendants. We do not accept the defendants' submission that a letter before action ending in the terms we have quoted is in itself an improper threat to issue unjustified criminal proceedings if the defendants did not repay what they had allegedly obtained by fraud.[55]We think it important to emphasise that, in a case such as this involving allegations of dishonesty resulting in financial loss to the victim, the desire of the private prosecutors to recover their money is not inconsistent with or antithetical to a proper desire to bring to justice those who have behaved criminally. Indeed, if the private prosecutors are able to discharge the burden of proving guilt against one or more defendants to the criminal standard, section 57(2)(e) of the Sentencing Code will require the court to have regard to the making of reparation as one of the five purposes of sentencing. Moreover, in the circumstances of this case, the private prosecutors took on that heavy burden of proof in relation to the alleged defrauding of Dr Wietzke. That alleged offending had caused no loss to them and the prosecution of it, therefore, could not bring them any financial advantage. In those circumstances, we cannot accept that an "oblique" motive has been proved.[56]The fact that no civil proceedings have been commenced in this country against any of the defendants was certainly a factor for the judge to take into account, and the judge was right to question why there had been no such litigation. But the absence of civil proceedings could not be decisive in the defendants' favour, and the defendants' submissions on this point had about them a distinct air of the private prosecutors being "damned if they do and damned if they don't".[57]We agree with Mr Whittam's submission that, in general, the conduct which justifies a stay of proceedings as a category 2 abuse of the process is plain and obvious: that is why it would undermine the integrity of the criminal justice system to require an accused to face trial. It cannot be said that this is such a case. We are prepared to accept, at least for present purposes, Mr Rudolf's submission that in category 2 abuse, misconduct or bad faith on the part of the prosecutor are not always necessary, though we are bound to say that we think there will be few cases in which abuse amounting to oppression will be established without showing one of those features. But be that as it may, there is here not only an absence of any misconduct by the private prosecutors, but clear evidence that they have acted with complete propriety in their conduct of the criminal proceedings.[58]For those reasons, the judge's decision that this was not a genuine case of mixed motives and that the private prosecutors' "primary and overwhelming motivation" was to recover money was not one which it was reasonable for him to make.[59]We next consider the judge's conclusion that the private prosecutors' action in commencing criminal proceedings was oppressive. Here we are satisfied that the judge fell into error of law. Oppression is a strong word. The requirement for a defendant who seeks to stay proceedings to show oppression adds materially to the requirement to show an abuse or misuse of the court system. The judge had correctly directed himself to that effect when he said that the securing of a financial settlement must be either the primary or a dominant motive "and in either case this motivation renders the continuation of the proceedings as truly oppressive" (our emphasis). But in the passage which we have quoted from paragraph 62 of his ruling, the judge, perhaps influenced by the submissions of defence counsel, effectively equated the two. He was, of course, correct to say that the simple matter of being a defendant to serious Crown Court proceedings is in itself "distressing and inconvenient", but, plainly, that alone cannot be a sufficient reason to stay proceedings as an abuse of the proceedings.[60]For the reasons we have given when considering the judge's finding of abuse, we are unable to attach much weight to the judge's strengthening words, "especially where used to secure payment in the circumstances that exist here".[61]There is a further reason why that is so. As counsel for the defendants realistically accepted, no application to stay could have been made if, in August 2023, the CPS had decided to take over the prosecutions and continue them. But if that had happened, all the underlying matters now said to point to abuse would have been exactly the same. We are unable to accept that prosecution by the private prosecutors can, in those circumstances, be said to be oppressive. We accept Mr Whittam's submission that the finding of oppression was not open to the judge in the circumstances of this case.[62]Finally, and most importantly, we have no doubt that the judge fell into error of law in failing to perform any balancing exercise which took account of the public interest in the prosecution of crime. Even reading the judgment as a whole, and making every allowance for economy of expression, we are unable to accept the submission that the judge did consider this important point, notwithstanding that he did not expressly mention it.[63]We reject Mr Langdale's submission that the relevant public interest is limited to the prosecution of those against whom there is evidence of “grave" crimes, using that as a term of art. That submission is inconsistent with what was said in both BKR and Ng and O'Reilly. The seriousness or otherwise of the crime will, of course, be a factor to consider as part of the necessary balancing exercise. Here the alleged crimes are serious: frauds involving more than one person across national borders, causing losses equivalent to millions of pounds.[64]Further, when considering this aspect of the case, Mr Dickson's careful analysis is, in our view, important. Of course, it was not binding on the judge. It did, however, provide a very solid foundation for the judge to find that both stages of the Full Code Test were satisfied and that it was unnecessary for the CPS to take over and continue the prosecution because the private prosecutors were assessed as prosecuting the case properly and in accordance with their duties as prosecutors.[65]As we have said, if the CPS had taken over the prosecution because they felt that the private prosecutors had fallen short in their conduct, no application to stay the proceedings could have been made. It follows, in our view, that a proper weighing of the public interest could not have resulted in the staying of proceedings. The continuation of the private prosecutions in this case does not put at risk the integrity of the criminal justice system.[66]We bear very much in mind that the judge had had conduct of the proceedings over a considerable time and that we should be slow to differ from the conclusions he reached after diligent consideration of the law and facts. We are, nonetheless, satisfied, with all respect to the judge, that his decision involved errors of law and was one which it was not reasonable for him to make.[67]We will, therefore, grant the private prosecutors' leave to appeal, allow the appeal and exercise our powers under section 61(1) and (4) of the 2003 Act to reverse the judge's order and order that proceedings for each of the offences may be resumed in the Crown Court. Before doing so, however, we must return to the issue of reporting restrictions. LATER[68]We have been assisted by submissions as to consequential matters. Having considered those submissions, we order as follows:a. We grant the private prosecutor's leave to appeal against the judge's ruling.b. We allow the appeal.c. Pursuant to section 61(1) and (4) of the 2003 Act, we reverse the judge's order and order that proceedings for each of the offences against each of the defendants may be resumed in the Crown Court.d. We are satisfied that any publication of any report of this appeal would create a substantial risk of prejudice to the interests of justice in the resumed proceedings in the present case and/or in the trial which we understand is scheduled to be heard in March next year in relation to the matters involving the Swiss investors. We accordingly direct that the reporting restrictions pursuant to section 71 of the Criminal Justice Act 2003 remain in force and we further order, pursuant to section 4(2) of the Contempt of Court Act 1981, that no report of this appeal may be published until the conclusion of the resumed proceedings in this case. We direct that the private prosecutors must notify this court immediately when that stage has been reached so that further directions can be given.e. We direct that the Presiding Judges of the Midlands Circuit be invited to allocate a different trial venue and different judge for the resumed hearings. I will write to the Presiders to tell them about that.[69]Miss Chalkley, we will add this. We can envisage circumstances in which the trial judge at Southwark, whoever that may be, may have good reason to need to know what this court has said. We will make this exception to our general prohibition on reporting, namely, that the solicitors for these private prosecutors may inform the solicitors for the private prosecutors in Southwark that this court has allowed an appeal against an order staying these proceedings and ordered that the present proceedings be resumed. If circumstances ever arise in which those in Southwark feel a need to know more about this hearing, they can apply to the Registrar and it can be considered then. __________ FURTHER NOTE- 14 April 2026 Upon the court being notified by letters dated 25 February 2026 and 20 March 2026 from solicitors for the private prosecutors of the conclusion of all proceedings against the Respondents to this appeal, we gave this further direction:(1) Reporting restrictions imposed under sub-paragraph 4 of paragraph 68 above are now lifted. This appeal may now be reported.(2) This judgment will be published with all anonymisation removed.