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.