In the privately prosecuted case of AB, CD, EF and GH v XY, ‘XY’ was the director and sole shareholder of a number of corporates which were alleged to have mis-sold investment bonds to high-net worth individuals, sophisticated investors and specialist investment professions.

It was alleged that the two series of bonds were sold by the corporates, each with an aggregate value up to £50,000,000 (£50 million), i.e. a total value in the region of £100 million.  By the time XY had been charged, the corporates were in liquidation and the defendant had been adjudged bankrupt.

Benjamin Waidhofer was instructed by Viviane Bablin at Janes Solicitors to represent XY who, following substantial civil litigation, was before the criminal courts in respect of an indictment alleging a total of 7 counts targeting a series of purported fraudulent representations to investors including:

1. That a corporate he controlled was expecting a sum of $15,000,000, with further trades anticipated to generated £49,000,000 over the following 3 months;
2. That a corporate held rare earth metals valued in the region of €500,000,000;
3. That a creditor to the business owed $1,510,000,000 (1 Billion, 510 Million USD).

The case was privately prosecuted by 4 particular investors who purportedly invested more than £6 million between them into the bonds concerned, but received not a penny in return.

Throughout the course of proceedings, the defence highlighted substantial concerns about the manner in which the prosecution was being conducted.  The concerns raised by the defence, including unexplained substantive changes in the framing of the indictment, were eventually distilled into a substantive abuse of process application, alleging:

1. That the defendant could not receive a fair trial due to the manner in which the case had been investigated;
2. That those conducting the private prosecution litigation had an improper motive and a conflict of interest by the pursuit of litigation citing R v Scott [2019] EWCA crim 205, [2020] 4 WLR 2;
3. That the complainants had brought the prosecution for an improper purpose citing Asif v Ditta [2021] EWCA Crim 1091, [2021] 2 Cr App R 21 and R (on the application of Handa) v Westminster Magistrates’ Court [2025] EWHC 538 (Admin); and
4. That litigation itself was being undertaken by those not qualified to do so, amounting to an abuse of process of itself (citing the recently publicised decision of Mazur v Charles Russell Speechlys LLP [2025] EWHC 2341 and Media Protection Services Ltd v Crawford [2012] EWHC 2373 (Admin), [2013] 1 WLR 1068.

Shortly before the abuse argument was listed to be heard, the private prosecutors despatched a purported notice of discontinuance pursuant to section 23A of the Prosecution of Offences Act 1985 to both the defence and Southwark Crown Court.  In response, the defence highlighted that, in accordance with the clear language of R v Jessemey [2021] EWCA Crim 175, the power the prosecution sought to exercise could not be exercised:

1. By a private prosecutor; or
2. After an indictment had been preferred.

In the present case, both obstacles prevented the prosecution from discontinuing in the manner proposed.

In the course of a final hearing before HHJ Perrins at Southwark Crown Court, the private prosecutors attempted to persuade the Court that the indictment should lie on the file in entirety, refusing to ‘offer no evidence’ against the defendant.

In the course of argument, Benjamin Waidhofer, while conceding that neither the defence nor the Court could compel the prosecution to offer no evidence, urged the Court to stay the prosecution on each and every one of the provable heads averred.

The learned Judge, in the course of argument, accepted that the private prosecutors could not properly resist the defence application to stay the proceedings.

That observation led the private prosecutors to offer no evidence on each and every count of the indictment against XY, resulting in the learned Judge entering a verdict of ‘Not Guilty’ on each count pursuant to section 17 of the Criminal Justice Act 1967.  Those verdicts concluded the proceedings and prevent any fresh proceedings from being resurrected as the verdicts had the same effect as if the defendant had been tried and acquitted.  Unusually, the private prosecutors confirmed that no application for the costs of the private prosecution were to be sought by the prosecution.

Benjamin Waidhofer is frequently sought out to advise upon the most high-profile cases of considerable factual and legal complexity which straddle the criminal/civil jurisdiction.  He is ranked as a leading junior in both Chambers & Partners and the Legal 500.  He specialises in representing both private individuals and corporations  facing allegations or investigation for substantial dishonesty or money laundering including the most complex cross-border investigations.

This case, privately prosecuted, further demonstrates the care with which private prosecutions must be undertaken and conducted.  Benjamin has particular expertise in both the bringing of a private prosecution (through to conviction) and successfully defending private prosecutions pursuant to the provisions of the Fraud Act 2006 or specific legislation relating to particular alleged misconduct.  Any queries about this matter or any other ought to be addressed to .