R Craig Paolo v City of London Magistrates Court The Commissioner of Police for the City of London (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 20 June 2014 |
| Neutral Citation | [2014] EWHC 2011 (Admin) |
| Date | 20 June 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12218/2013 |
[2014] EWHC 2011 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Mr Justice Cranston
Case No: CO/12218/2013
and
Paul Jarvis (instructed by Howard Kennedy) for the Claimant
Dijen Basu and Catriona Hodge (instructed by Berrymans Lace Mawer LLP) for the Interested Party
Hearing dates: 13 June 2014
This is the judgment of the court, prepared by Mr Justice Cranston.
Introduction
In this judicial review the claimant challenges the issue of a warrant which the first defendant, the City of London Magistrates' Court, issued on the application of the interested party, the Commissioner of Police for the City of London. The grounds of challenge are non-disclosure by the police to the court granting the warrant, and error on the part of the magistrate that he could have a reasonable belief that there was material at the claimant's address which was likely to be of value to the investigation.
The claim form in this case was filed out of time. An application for an extension of time in which to file the claim form has been lodged. For the reasons we give later in this judgment, we have concluded that the justification given in it for the extension of time is misleading. On that basis we take the draconian step of refusing an extension of time and dismiss the claim.
Background
The Premier League licenses broadcasters to transmit its football matches. At the relevant time Sky and ESPN were the only licensed broadcasters in the United Kingdom. Subscribers, including commercial subscribers such as public houses, are issued with decoders enabling them to access the encrypted signal which Sky and ESPN broadcast. The Premier League also licenses foreign broadcasters, typically on a territorial basis. A foreign broadcaster issues dedicated decoder cards to residents of the relevant territory. A foreign broadcaster is forbidden under the license to transmit signals for viewing in the United Kingdom and to provide anyone else with the means to do so.
At the relevant time Tring TV was the licensee for Albania. A letter dated 26 August 2010 from Tring TV to its licensees stated that it was not authorised to broadcast Premier League matches outside Albania and that it would switch off any of its decoder cards found to be used unlawfully in the United Kingdom.
The marketing and use in the United Kingdom of decoder cards issued abroad, but able to give access here to Premier League matches, had been before the courts well before the events dealt with in this judgement. One concern was that the cards were being offered in the United Kingdom at more favourable prices than those available from the United Kingdom licensed broadcasters. In two sets of proceedings in 2009 the High Court referred questions to the Court of Justice of the European Union for a preliminary ruling concerning the legality of foreign decoder cards: [2008] EWHC 1411 (Ch); [2008] EWHC 1666 (Admin). The decoder cards in those cases were mainly from Greece. In one of the two cases referred the manager of a public house had been convicted of two offences under section 297 (1) of the Copyright, Designs and Patents Act 1988, namely for "dishonestly receiving a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme".
The questions referred to the European Court were, in broad outline, (1) whether the Conditional Access Directive (EC) 98/84 rendered the foreign decoder cards as "illicit devices" under it and precluded national legislation to inhibit their use; (2) whether the free movement provisions of the Treaty on the Functioning of the European Union ("TFEU") prevented legislation of a Member State making it unlawful to use them to access an encrypted satellite broadcasting service from another Member State; (3) whether limits on the supply of foreign decoder cards in exclusive licence agreements were a restriction on competition prohibited by article 101 of the TFEU; and (4) whether European Union law on copyright had any purchase.
Advocate General Kokott delivered her opinion on the two United Kingdom references on 3 February 2011 and concluded, inter alia, that foreign decoder cards were not "illicit devices".
On 20 May 2011, Media Protection Services Limited made a complaint to the City of London Police concerning the claimant's practice of selling foreign decoder cards in the United Kingdom. Media Protection Services Limited is employed by the Premier League to investigate and prosecute infringements of copyright and allied matters. About 6 weeks later DS Kumar of that police force was assigned responsibility for handling the complaint as a money laundering investigation. He discovered that Tring TV decoder cards were being sold on eBay for £299 by a seller acting under the username 'sharplcd45'.
A claim form in the case of R (on the application of Helidon Vuciterni) v Brent Magistrates Court was issued on 14 June 2011 against warrants issued earlier in the year at the request of Harrow Trading Standards Department. HH Judge Thornton QC granted permission to bring the judicial review on the papers on 27 July 2011.
On 12 August 2011 Oliver Weingarten, an in-house solicitor with the Premier League, signed a witness statement setting out the details of the complaint Media Protection Services had against the claimant in this case. In the course of the witness statement he referred to section 297 of the Copyright Designs and Patents Act 1988, to the two United Kingdom references to the Luxembourg Court (but omitting mention of the Advocate General's opinion), and to the Administrative Court judgment responsible for one of the references indicating that decoder cards from non-EU states were not covered so that section 297 prosecutions in those non-EU cases could continue. Mr Weingarten's witness statement also explained that since 2007 he and the claimant had had communications about the Premier League's policy of having decoder cards deactivated if used outside the relevant territory.
On 15 August 2011, DS Kumar made an application to the City of London Magistrates' Court for a warrant to enter and search the claimant's premises. The material identified in the application as likely to be relevant evidence covered "documents relating to the sale and purchase of Tring satellite cards, personal banking documents, computers, mobile phones, any data communications device with the ability to access Ebay and/or to store electronic data and relating documents which may prove offences under the Fraud Act 2002 [sic]". In his written application to the court DS Kumar swore that "there are reasonable grounds for believing … that indictable offences, namely Money Laundering has been committed contrary to s329 POCA [Proceeds of Crime Act 2002]". Under the section entitled "Further Information", DS Kumar set out the basis of his suspicion as follows:
"The foreign/non-UK cards are not permitted to be used in the UK …The offences that are being committed under these circumstances are section 107 of the Copyright Designs and Patents Act 108…Further offences under the Fraud act 2002 [sic] and under section 7 covering the supply of articles will be considered. Offences under S329 of the Proceeds of Crime 2002 covering possession and acquisition of criminal property will also be considered, as the suspect, [the claimant] is known to have sold over 64 illegal Tring satellite cards on Ebay alone in the last 2 months, for £299 each, and will be in possession of the proceeds of crime".
A magistrate granted the search warrant that same day, 15 August 2011.
On the 18 August 2011 DS Kumar and three other police officers went to the claimant's house. One of the officers was DC Joanne Walsh of the City of London Police Economic Crime Directorate Money Laundering Division. The claimant allowed the officers entry. DS Kumar said to the claimant: "I am arresting you under (1) suspicion of possession of articles to infringe copyright, (2) possession of criminal property, and (3) supplying articles to commit fraud". DS Kumar then cautioned the claimant, to...
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