In 1739 a London attorney called John Theobald fell into a dispute with a man called John Drinkwater, widely regarded as ‘the most litigious Fellow in London’. Theobald met with Drinkwater’s enemies in a Holbourn tavern, and they decided ‘the Way to perplex Drinkwater and bring him to Terms, was to indict him for Barretry – the offence of bringing vexatious lawsuits.

On Theobald’s complaint Drinkwater was indicted and taken to a debtors’ prison. But the jury acquitted him on every count. Drinkwater then in turn indicted Theobald on 15 counts of barratry, with the same result: Theobald was acquitted, with the jury, not for the last time in legal history, demonstrating more common sense than the lawyers.

The offence of barratry fell into obsolescence and was finally abolished in 1967 along with eavesdropping, challenging to a fight, and ‘being a common scold’.

With the arrival of crowdfunded criminal litigation it may be that there is a case for its revival. Hundreds of thousands of pounds and valuable court time has been wasted in recent years on attempts to bring crowdfunded private prosecutions.

Of course, not every crowdfunded legal case is without merit. Gina Miller’s partially crowdfunded civil cases have been very successful, and established points of constitutional law of unquestionable importance, despite her undisguised political motivation.

But every crowdfunded campaign to bring about a private prosecution has ended in failure. Just two have reached a jury, both organised by the Cyclists’ Defence Fund. Coincidentally, in both cases the jury acquitted after just 17 minutes deliberation.

Despite this litany of failure, the fashion for crowdfunding private prosecutions seems to be growing. 18th century barristers prosecuted to vex and perplex their business rivals. 21st century exponents do it to vex their political opponents.

Boris Johnson, Dominic Cummings and Jolyon Maugham have all been targeted by crowdfunded prosecutors. In each case the political motivations of the putative prosecutors have been thinly disguised.

Johnson’s prosecutor, Marcus Ball, has devoted four years of his life trying to prosecute the Prime Minister for ‘misconduct in public office’. The offence was committed, according to Mr Ball, when Johnson campaigned in a bus emblazoned with the pro-Brexit slogan: ‘We send the EU £350 million a week let’s fund our NHS instead.’

Mr Ball told Business Insider in 2016:

‘The dream scenario would be a series of Leave politicians being prosecuted for undue influence and misconduct in public office…’

His dream has become a nightmare. He has nothing to show for the £700,000 donated except ‘crushing debt’. His prosecution was dismissed by the Administrative Court, which decided that it had no chance of success.The prosecution, the judges said, was ‘vexatious’ and politically motivated.

The next best thing to prosecuting Boris Johnson is prosecuting Dominic Cummings, as several crowdfunded campaigns are currently attempting. At the more sensible end of the spectrum is a campaign organised by Nazir Afzal, the former Chief Prosecutor for North West England, who lost his brother to coronavirus.

The campaign, which has raised over £57,000, does not demand a private prosecution but simply asks ‘Durham Constabulary to explain their process/actions in their investigation of Mr Cummings, a Metropolitan Police specialist team to investigate all his actions and the CPS to consider a public prosecution’ In reality, most of the contributors are likely to expect a prosecution, and the crowdfunding site explains why:

‘If the evidence demonstrates possible criminal conduct then we think that Mr Cummings, like any other citizen, ought to be tried in front of a Court to decide on this.’

Despite being endorsed by a former Crown Prosecutor, that statement is surely untrue. Any other citizen in Mr Cummings’s situation would almost certainly not have been investigated, and if investigated would have been offered the chance to pay a fixed penalty, thus avoiding prosecution. The CPS’s published charging practice points out that any decision to prosecute for breach of the regulations ‘is likely to have been a matter of last resort.’

But Mr Afzal’s endorsement of a statement of dubious accuracy is nothing compared to the howler committed by the specialist criminal QC and junior barrister who advised law graduate Mahsa Taliefar that Dominic Cummings could be privately prosecuted. In a 48 page ‘preliminary opinion’ they told her that she had ‘reasonable prospects’ of bringing a private prosecution over two breaches of the lockdown regulations.

Embarrassingly, the two counsel overlooked S.64 of the Public Health (Control of Disease) Act 1984 which explicitly prevents private prosecutions for breaches of the regulations. The original advice has now disappeared from the internet, replaced on Ms Taliefar’s Gofundme page by a short statement:

‘Updated advice … there is no reasonable prospect of bringing a Private Prosecution under the The Health Protection (Coronavirus) Regulations 2020)

We are currently investigating various issues with respect to Dominic Cummings – currently funds raised will be employed in part for investigative purposes.’

Ms Taliefar has always said that any money not paid to her lawyers will go to Vision Aid Overseas, a charity helping people with sight problems in Ghana. It looks as though it may soon be news, then, for Ghana.

The Remainer QC Jolyon Maugham – himself a titan of crowdfunding through his irritatingly named ‘Good Law Project’ – discovered that crowdfunding could be used against him after he killed a fox.

Never mind that many Brexiteers until then had always been fairly sanguine about the need for pest control; Jolyon, they decided, must be prosecuted.

An organisation called Vote Watch run by an ex-Ukip politician, Jay Beecher, joined a campaign to ‘bring Jolyon to justice’.

Within days they raised £1,075. Vote Watch said it would give the money to the RSPCA, or if they decided not to prosecute, obtain further legal advice. If it turned out that there was ‘zero chance of a prosecution’ the money would be donated to a fox protection charity. Donees were offered the opportunity to get their money back.

In March the RSPCA decided not to prosecute.

I emailed Mr Beecher to see what had happened to the £1,075. He had, he said ‘spent months’ waiting for Guido Fawkes, who were also seeking advice on a private prosecution, ‘to respond to our offer of donating the cash to them.’ As matters stand, however:

‘VoteWatch is currently on hold due to the Coronavirus and having been scammed by a web designer. The money raised is to be donated to a fox protection charity… once the new website is up and running.’

The Vote Watch website is no longer working, and the @vote_watch Twitter account appears to have been suspended for violating Twitter Rules.

Ball and Beecher are more alike than either would admit. Both have used crowdfunded prosecution to waste time and money. There is a strong case for the reform, and possibly the abolition, of the right to bring private prosecutions. There is also a strong case for stricter regulation of crowdfunding sites. In the meantime, would anyone care to give me some money so I can campaign to resurrect the crime of barratry?<//>

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