R v Zinga
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 24 January 2014 |
| Neutral Citation | [2014] EWCA Crim 52 |
| Docket Number | Case No: 2012/05959/C2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 24 January 2014 |
[2014] EWCA Crim 52
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Chief Justice of England and Wales
Mr Justice Foskett
and
Mr Justice Hickinbottom
Case No: 2012/05959/C2
Andrew Campbell-Tiech QC and Muthupandi Ganesan for the Appellant
David Groome and Ari Alibhai (instructed by Wiggin LLP) for Virgin Media Limited as private prosecutor
Matthew Butt for the Commissioner of Police for the Metropolis
Kennedy Talbot for the Director of Public Prosecutions
Introduction and factual background
Virgin Media Limited (Virgin) provides a telephone, broadband and television service by a cable to customers in the UK under contracts under which the customer subscribes to the services, including premium channels. The service is provided through a set top box which unscrambles premium channels to which the customer has subscribed. The appellant with associates sold set top boxes with appropriate software which enabled those who had not subscribed to premium services to obtain these without payment to Virgin.
Virgin began investigations in September 2008. Instead of bringing civil proceedings, it decided on a private prosecution of the appellant and others for the offence of conspiracy to defraud. Virgin enlisted the assistance of the Metropolitan Police for the arrests and obtaining search warrants. On 11 November 2008 Sergeant Smith of the Metropolitan Police applied to the magistrates for warrants; he gave evidence as did an employee of Virgin. No one told the court that it was intended that Virgin would be the prosecutor. The appellant was arrested on 19 November 2008.
A few days later, on 25 November 2008, Virgin then entered into an agreement with the Metropolitan Police Authority under which Virgin agreed to make a cash donation to the Metropolitan Police Authority of 25% of any sums recovered under a Compensation Order. We will refer to that agreement in more detail at paragraph 43 below.
The prosecution brought by Virgin was heard in the Crown Court at Snaresbrook before HH Judge Bing. On 29 June 2011 the appellant and another person were convicted; the appellant was sentenced to 8 years imprisonment. An order was also made under s.143 of the Powers of Criminal Courts (Sentencing) Act 2000 for the deprivation of various computers and other electronic equipment. The appellant and a co-defendant appealed against conviction on the basis of the involvement of the Metropolitan Police in the circumstances surrounding the application for warrants, despite the fact that the judge had found there was no bad faith on the part of Virgin or the police. The appeal against conviction was dismissed on 7 November 2012: [2012] EWCA Crim 2357.
Prior to the hearing of the appeal, Virgin began confiscation proceedings under the provisions of the Proceeds of Crime Act 2002 ( POCA). An investigation into the finances of the appellant was conducted by a team from the Metropolitan Police led by Detective Sergeant Peter Ward. Virgin claimed that it had been deprived of revenue of £380m. It sought a compensation order under s.130 of the Powers of Criminal Courts (Sentencing) Act 2000 to the full value of the appellant's benefit from the proceeds of crime stated to be £26.6m as set out in the statement made under s.16 of POCA and dated 1 March 2012.
The appellant sought to stay the proceedings on the basis that the pursuit of such proceedings for compensation and confiscation by a private prosecutor was not permitted under the terms of POCA and was in any event an abuse of process; he also contended that the claim for a compensation order under s.130 of the Powers of Criminal Courts (Sentencing) Act 2000 could not be advanced on the basis of the authorities (including Stapylton [2012] EWCA Crim 728 and Sheehan [2009] EWCA Crim 1260); s.130 provides in effect only a limited and summary power to order the defendant to repay or compensate for a loss in a straightforward case.
Virgin then abandoned its claim for compensation for itself. It pursued solely the proceedings for confiscation which would inure to benefit of the Crown, subject to the "incentive scheme" we describe at paragraph 50 below. On 19 September 2012, the judge ruled that it was lawful for a private prosecutor to begin confiscation proceedings and that the proceedings brought were not an abuse of the process of the court.
On 25 September 2012, HH Judge Bing assessed the benefit of the criminal conduct at £11.8 million; he assessed the available amount at £8,771,300 and made a confiscation order against the appellant under s.6 of POCA in that sum, to be paid to the Crown within 6 months with a consecutive sentence of 10 years in default of payment.
The first and principal issue raised on this application for leave to appeal was whether a private prosecutor such as Virgin was entitled to bring proceedings for confiscation under POCA, even if it had no financial or other personal interest in the outcome. The appellant contended first that on a proper construction of POCA viewed in the light of the development of the confiscation regimes, the term "prosecutor" referred solely to a prosecutor accountable to the state. Secondly, the confiscation scheme could not be delivered by a private prosecutor. Thirdly, it was not in the public interest that such draconian powers be exercised by anyone other a body accountable to the state. In addition to that principal issue, the second issue raised was the propriety of the agreement with the Metropolitan Police Service. We grant leave.
The issues raised are of importance. First, there is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions. Second, the impugning of the propriety of the agreement between the Metropolitan Police Authority and Virgin has to be considered in the light of the considerable reduction in funds available to the police. Third, there is an obvious and serious conflict of interest inherent in Virgin's original position as a private prosecutor and a company seeking very substantial compensation for its lost revenue through confiscation proceedings. We therefore asked the Director of Public Prosecutions and the Commissioner of Police for the Metropolis for their assistance.
The ability of a private prosecutor to bring confiscation proceedings
Before turning to the terms of POCA, it is necessary briefly to refer to the position of private prosecution within the criminal justice system of England and Wales.
(a) The power to bring private prosecutions
The right to bring a private prosecution is long established: its history is summarised in the judgments of Lord Wilson and Lord Mance in R (Gujra) v Crown Prosecution Service [2012] UKSC 52. Its position has for sometime rested on a statutory basis.
In the most recent legislative provision, the Prosecution of Offences Act 1985, the Director of Public Prosecutions is obliged to conduct certain proceedings and may take over private prosecutions, but the right to conduct private prosecutions is preserved in wide terms by s.6 of that Act:
" Prosecutions instituted and conducted otherwise than by the Service. E+W
(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply.
(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage."
In Jones v Whalley [2007] 1 AC 63 Lord Bingham and others expressed the view that the right to bring a private prosecution should no longer be regarded as an important constitutional safeguard, but as he and the others acknowledged it continued to exist and, as Lord Mance observed in that case, private prosecutions were not uncommon. Further views on the place of private prosecutions in the criminal justice system were expressed in R (Gujra) v Crown Prosecution Service.
As Parliament has authorised the bringing of such prosecutions, we do not consider it desirable to add to the debate. It is evident that private prosecutions by charitable or public interest bodies such as the RSPCA are common. Furthermore public bodies such as the Financial Services Authority also rely for their authority to prosecute on the general power of a private individual to prosecute: see R v Rollins [2010] UKSC 39 at paragraphs 7–14. In the consequential sentencing and confiscation proceedings no one has challenged its right to pursue the obtaining of a confiscation order; the point was never raised: R v Rollins [2102] 1 Cr App R (S) 64.
It is now also evident that commercial organisations regularly undertake private prosecutions. This type of private prosecution is undertaken not only by trade organisations such the Federation Against Copyright Theft (principally the visual media) and the British Music Industry ('BPI') (the music industry) but also ordinary commercial companies. We were told that such prosecutions resulted in consequential confiscation proceedings being undertaken by such private prosecutors. This appeal is concerned with this type of private prosecution brought by a commercial company.
(b) The scope of criminal proceedings...
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