Top blogging barrister warns Birkbeck law grad that her crowdfunded Dominic Cummings prosecution is doomed
Revised legal advice to Mahsa Taliefar is expected to row back on prospects of success
A criminal barrister has used his popular legal blog to warn a Birkbeck law grad that her attempt to privately prosecute Dominic Cummings “has no prospects of success whatsoever”.
Matthew Scott writes on his BarristerBlogger site that 25-year-old Mahsa Taliefar has possibly received “duff advice” which overlooks the fact that breaches of coronavirus regulations can’t be prosecuted privately.
Taliefar’s solicitor says the advice in question was only preliminary and that new analysis by the same counsel does reflect the problem identified by Scott. The legal team now think there is not a “reasonable prospect of success” of prosecuting Cummings for breach of the lockdown regulations specifically.
Her crowdfunding page has been updated to say that the legal team is “focusing resources towards establishing whether other criminal offences have been committed”. The new legal advice has not yet been published.
Taliefar, a former paralegal studying to become a legal executive, launched her crowdfunder on 5 June, seeking £300,000 to pursue criminal charges against the Downing Street advisor for alleged breach of lockdown laws. Legal Cheek was first to the news.
The crowdfunder has raised over £40,000 so far — enough to pay for two rounds of legal advice on whether a private prosecution is feasible.
Preliminary advice by two top criminal barristers was published on 27 June. It advised that Cummings’s actions “involved the commission of two prima facie offences contrary to Regulation 6″ of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
The advice, penned by Benjamin Douglas-Jones QC of 5 Paper Buildings and Nathaniel Rudolf of 25 Bedford Row, was published via the crowdfunding page and subsequently reported by the BBC.
But Scott reckons there’s a problem.
The Regulations were issued under the authority of the Public Health (Control of Disease) Act 1984. Section 64 of that Act says as follows:
“(1) Proceedings in respect of an offence created by a provision of, or regulations under, this Act may not be taken by any person other than—
(a) a relevant health protection authority,
(b) a body whose function it is to enforce the provision or regulation in question, or
(c) a person who made (or whose predecessors made) the regulation in question.”
As Scott writes, “this section poses a problem for Ms Taliefar… unless Mr Douglas-Jones and Mr Rudolf have some bright ideas that are not included in their advice, the law unambiguously prevents her from bringing a private prosecution”.
Scott — described by the best-selling Secret Barrister as “the doyen of criminal legal bloggers” — credits fellow criminal lawyer Philip Sinclair of Maidstone Chambers for spotting the problem first.
Scott’s blog post — well worth a read for the experienced barrister’s self-deprecating bantz alone — attracted widespread praise on legal Twitter overnight. Joshua Rozenberg commented that “one or two people have some questions to answer”.
Approached for comment by Legal Cheek, Taliefar’s solicitor, Tasnime Akunjee, said that “we chose to instruct Ben Douglas-Jones, not Mr Scott”.
But he added that the published advice by Douglas-Jones and Rudolf was only “preliminary”. A second round of advice had already been commissioned, “in which the interplay of Regulation 11 [on who has the authority to prosecute] and section 64 was considered with some alacrity”.
That updated advice concludes that a prosecution for breach of Regulation 6 actually has a “lower than reasonable prospect of success”, Akunjee said. He added that the legal team would publish the updated advice.
In the meantime, he pointed Legal Cheek to an update to the crowdfunding page, published on 1 July. It says:
“We have liaised with other legal teams concerned with the prosecution of Dominic Cummings. The teams have recognised that some of our approaches have led to duplication of work. Having assessed the approach of other teams we are content for they to carry on in their pursuit of a prosecution of Mr Cummings for breach of section 6 of the Covid Regulations using their more advanced approach. Our legal team are now focusing resources towards establishing whether other criminal offences have been committed by Dominc [sic] Cummings and whether those offences may be pursued by way of private prosecution. A further legal advice exploring these issues will follow shortly.”
There are two crowdfunders targeting Cummings on the CrowdJustice platform, although neither have a private prosecution as their primary objective. Both want to take legal steps to persuade the police and Crown Prosecution Service to reconsider their decision not to prosecute Boris Johnson’s right-hand man.
Douglas-Jones and Rudolf state in their preliminary advice that they were instructed to “invest no more than five hours’ work each”. Sinclair says that he found the section 64 problem in 20 minutes.
Douglas-Jones told Legal Cheek that “we cannot comment in relation to a matter in which [we] are instructed”.
Scott’s blog post warns Taliefar not to risk ending up like Marcus Ball, whose attempt to privately prosecute Boris Johnson has left him facing “financial ruin” thanks to a six-figure costs order against him.
Be careful @MTaliefar, do be careful. Instructing the finest QCs does not guarantee success, and is a route to financial ruin if you go down the Marcus Ball road. https://t.co/zZLmBwrMRk pic.twitter.com/fXdtz7ktFP
— Matthew Scott (@Barristerblog) July 2, 2020