Scopelight Ltd & Ors v Chief of Police for Northumbria & Anor

At the commencement of the trial of an action brought by Scopelight Ltd (“Scopelight”) and its owners, Mr Anton and Mrs Kelly-Anne Vickerman, against the Chief Constable of Northumbria Police (“the Northumbria police”) and the Federation Against Copyright Theft Ltd (“FACT”) seeking the return of property seized by police officers, assisted by FACT, pursuant to their powers under the Police and Criminal Evidence Act 1984 (“PACE”), Sharp J agreed to determine a preliminary issue as to the proper interpretation of section 22 of PACE which was the statutory basis upon which the Northumbria police placed reliance in justifying its continued retention. Unfortunately, however, the precise facts in respect of which the provision was to be construed were not agreed and no formulation of the preliminary issue has ever been reduced into writing. Sharp J expressed her conclusion in these general terms:

“I am not persuaded the police are entitled to retain property seized under PACE against the wishes of the person otherwise entitled to possession of it once a decision not to prosecute has been taken, so that a private body can consider whether to bring a prosecution, or whilst that private prosecution is being brought, in the absence of a continuing independent justification for retention.”

The consequence of this ruling, if correct, is substantially to erode the role of private prosecutions in England and Wales where those prosecutions rely on evidence obtained by the police during a PACE authorised search and to limit the discretion which previously the police believed vested in them as to the use to which seized material might be put. With the leave of the learned Judge, the Northumbria police and FACT appeal against that decision and this Court has permitted the Royal Society for the Prevention of Cruelty to Animals (“RSPCA”) to intervene which it has done through the medium of written submissions.

I summarise the facts mainly (but not entirely) from the judgment of Sharp J. Having been incorporated in February 2007, since October of that year Scopelight has run a website called “SurfTheChannel.com” (“STC”). STC claims to be a video search engine website consisting of thousands of links to third party websites which host videos covering a wide range of categories. It is said on behalf of Scopelight and the Vickermans that the user does not use any software on STC to access any material. Once a user clicks on a link, the user leaves STC and is taken to the host site. Scopelight’s revenue is apparently derived from advertising on the site. It is common ground that STC is not a “torrent” or file sharing site.

In the light of what it learned, in July 2008, FACT made a complaint to the Northumbria police as a result of which, on 28^th July 2008, an information was laid before Gateshead Magistrates in support of an application to search Mr and Mrs Vickerman’s home for “Internet server equipment and paraphernalia [sic] associated with this” on the ground that extensive investigation by FACT had revealed that Mr Vickerman was “…hosting two internet torrent sites from which copyright material is downloaded. The sites are hosted on servers at his home address…”. This included a request for authorisation for “representatives from FACT” to accompany the police.

On 16^th August 2008 the Northumbria police obtained a warrant under section 8 of PACE to enter and search the home of Mr and Mrs Vickerman on the basis that there were reasonable grounds for believing that indictable offences had been committed. The offences specified were conspiracy to defraud and money laundering. The application also stated that persons to be authorised to accompany the officers executing the warrant would be “...technicians from FACT …financial investigators and local authority staff from Bedford local Authority”. The grounds were put in these terms:

“Substantial enquiries have been made by the Federation against Copyright Theft into two internet companies who are defrauding the film industry and obtaining substantial profit from the distribution of films, movies not yet within the public domain. The subjects of this application are identified as running these companies from the identified premises.”

Pursuant to this warrant, on 18^th August 2008, the Northumbria police went to the home of Mr and Mrs Vickerman. They were accompanied by two FACT investigators and an employee of a specialist computer forensic examination company, 7Safe Ltd (“7Safe”). 7Safe had entered into a contract with FACT on 31^st July 2008 to examine and capture data on site. The precise role played by 7Safe, and whether or not 7Safe were entitled to be present during the search is a matter of controversy between the parties. It is said by Scopelight and the Vickermans (but disputed by the Northumbria police and FACT) that all of the information on Mr Vickerman’s computer was copied by 7Safe onto a USB hard drive at the time of the raid while on the premises. As Sharp J explained, although it is not relevant for present purposes, it is said on behalf of Scopelight and the Vickermans that by this route, the Northumbria police and FACT had complete information on the design, structure, operation and customer base of the website.

During the search, Mr and Mrs Vickerman were arrested and taken to Gateshead police station where they were interviewed by police officers assisted by personnel from FACT. Thereafter, both were released on unconditional bail. Subsequently, and it is said with some difficulty, Mr Vickerman managed to get STC up and running again, and, at least at the time of the hearing before Sharp J, its website remained in operation.

During the search of the house, 31 items belonging either to Scopelight or the Vickermans (“the property”) were seized by the Northumbria police as part of the investigation. The items seized (or most of them) are listed on a draft Northumbria Police Property Disposal/Receipt form and include information-holding items such as computer towers, servers, and memory sticks, together with monitors, cables, a keyboard, a mouse, mobile phones and financial paperwork.

The investigation continued. It is said that, on 19^th August 2008, a representative of FACT attended Gateshead police station and inspected some of the financial documents that had been seized, removing a number. On 29^th August 2008, some of the property was released by the Northumbria police into the possession of FACT and transported to their premises for the purposes of the police investigation. Finally, between September and December 2008, forensic examination of the property was undertaken by FACT and 7Safe in FACT’s offices and at 7Safe’s offices, again, as part of the Police investigation. Meanwhile, on 27^th August 2008, Mr Vickerman wrote to FACT asking for the return of the property. On 1^st September 2008, FACT’s Director of Internet and Intelligence replied, refusing to do so.

Albeit that Sharp J records that there is some controversy surrounding subsequent events, there is no dispute that on 12^th December 2008, there were two important communications. First, Det. Con. Watkin of the Northumbria police, and the officer with day-to-day management of the investigation, contacted the solicitors then acting for Mr and Mrs Vickerman and informed him that the Crown Prosecution Service (“CPS”) had decided not to commence a prosecution; he told the solicitors that the property could be returned. At that time, part of the property was at FACT’s storage premises, part was at 7Safe’s premises and certain financial documents were still with the Police. On the same date, FACT sent an e mail to the same police officer reporting “our view that we will commence a private prosecution”, asking that any evidence in the possession of the police relating to this case be secured and not returned “until such time as its relevance or not is decided”. Since then, Sharp J understood that the property was all passed into the physical possession of FACT.

Having been pressed to make arrangements for the return of the property, on 18^th December, Det. Con. Watkin told the solicitors for Mr and Mrs
Vickerman that it was in the possession of FACT, and that FACT was not going to return it because it was considering whether to bring a private prosecution. There was further correspondence and on 29^th December, Det. Con. Watkin sent them a fax in these terms:

“On 12^th December I informed you of the decision to take No Further Action against the Vickermans following a meeting with the CPS. I explained the reason for this was in preference to a lengthy period of police bail while case law regarding an alleged breach of Section 107(2A) CD&PA 1988 by a linking website is established in another case. The CPS thought it unnecessary to embark on another prosecution in the meantime. I pointed out that the decision did not preclude any future CPS prosecution or the possibility of civil or criminal prosecution by FACT.

I did not, as you claim, state that the advice from the CPS was that there was no evidence that the Vickermans had done anything wrong. ...”

On 5^th January 2009, in response to a letter from solicitors who were separately representing Scopelight, in which they had sought the return of the property, solicitors instructed by FACT wrote that following the decision of the police to take no further action, they were instructed to advise upon whether the enquiry should give rise to a private prosecution. They denied any breach of Scopelight’s intellectual property rights asserting:

“The property ... has been lawfully seized and it will be retained so long as is necessary in all the circumstances pending any necessary further forensic examination and once it is apparent that it will be relied upon as evidence at trial for an offence, it will continue to be retained for that purpose.”

Events then moved very quickly. On 22^nd January 2009, Scopelight and the Vickermans began these proceedings, claiming delivery up of the property and damages for conversion and issuing an application seeking the interim delivery up of the property. On 23^rd January 2009 FACT wrote to the Police confirming their decision to bring a private prosecution. On 28^th January 2009, an application was made to Sharp J, without notice (albeit that the Northumbria police were aware of it and FACT attended by counsel), for an interim order for delivery up, or, alternatively, for an order that pending delivery up FACT should not examine or deal with the property. Sharp J granted the alternative order and, additionally, on an unopposed application by FACT, made an order for a speedy trial.

On 6^th February 2009, the Particulars of Claim were served and, on 12^th February, FACT began a private prosecution of Mr and Mrs Vickerman on charges which include offences under section 107(2A) of the Copyright, Designs and Patents Act 1988 (communicating a work to the public in the course of a business knowing that by doing so they were infringing copyright in that work), conspiracy to defraud and money laundering contrary to section 327 of the Proceeds of Crime Act 2002. On 17^th March 2009, at a hearing at Gateshead Magistrates Court, the case was transferred to the Crown Court pursuant to section 51 of the Crime and Disorder Act 1998 where it is proceeding.

On 2^nd April 2009, the civil action came on to be tried. Although a number of issues were raised by the pleadings (and others may have emerged in the subsequent skeleton arguments), at its core, the action revolved around whether section 22 of PACE permitted the Northumbria police to retain the property (as opposed to requiring them to return it) when the CPS decided not to charge the Vickermans with any criminal offence. Scopelight and the Vickermans contended that retention after 12^th December 2008 was wrongful, and amounted to a conversion. The Northumbria police and FACT argued that continued retention of the property was lawful under section 22(2)(a)(i) and (ii) of PACE because it was being retained for use as evidence at a trial and/or for forensic investigation in connection with an offence (namely that being prosecuted by FACT).

At the trial, it was contended that full resolution of all issues would take 3-4 days but, as I have indicated, it was agreed that the core issue was whether, as a matter of construction, the purpose for which the property was now being retained fell within a purpose permitted by statute. It was accepted that the issue could be determined by way of judicial review, but also agreed that it could equally arise in a case where a private law action is brought for conversion and the police have to justify their continued retention of property as against the person claiming a superior right to possession. In the event, without formulating in precise language what the preliminary issue should be, the learned Judge acceded to the submission and (in a careful reserved judgment) determined it in favour of the arguments advanced by Scopelight and the Vickermans.

Part II of PACE provides a detailed scheme which prescribes the circumstances in which the police may seize and retain property thereby infringing the fundamental right of a lawful owner to enjoy his or her property free from interference. Such seizure does not vest any title in the police “but only a temporary right to retain property for the specified statutory purposes” (see Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437 per Lightman J at para 11). Unless justified under the statute or by virtue of some other statutory provision, the fact that it might be in the public interest to retain property, such as the proceeds of drug trafficking (Webb v Chief Constable of Merseyside Police [2000] QB 427) or because the police suspect, without being able to prove, that it is stolen (Gough v The Chief Constable of the West Midlands Police [2004] EWCA Civ 206) is not good enough.

The statutory regime is as follows. Section 8(1) of PACE provides that if, on the application of the police, a justice of the peace is satisfied that there are reasonable grounds for believing that (a) an indictable offence has been committed; (b) that there is material on premises which is likely to be of substantial value to the investigation of the offence; (c) that the material is likely to be relevant evidence; (d) that it does not include certain types of specified material (irrelevant for the purposes of this case); and (e) that any of the subsection (3) conditions are satisfied (one of which is that entry will not be granted without a warrant), then a warrant authorising the police to enter and search may be granted. By section 8(2) the police may seize and retain anything for which a search has been authorised under section 8(1).

The power of seizure is not, however, limited to property relevant to the offence specified in the search warrant. Section 19 gives a police officer lawfully on any premises certain general powers of seizure. Thus, by section 19(2), he may seize anything if he has reasonable grounds for believing that it has been “obtained in consequence of the commission of an offence” and that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed. Equally, by section 19(3) he may seize anything if he has reasonable grounds for believing that it is “…evidence in relation to an offence he is investigating or any other offence” , and that it is necessary to seize it for the same reasons as in section 19(2). Finally, by section 19(4) he may require “any information which is stored in electronic form and is accessible from the premises to be produced in a form in which it can be taken away and which it is visible and legible or from which it can readily be produced in a visible and legible form” if (following the same language) he has reasonable grounds for believing that it is “…evidence in relation to an offence he is investigating or any other offence” or has been obtained in consequence of the commission of an offence as identified in section 19(2). The emphasis in each case is mine.

Pausing there, it is important to consider the extent of this power. On the face of it, “any other offence” covers a range of conduct of enormous width, identified only by the fact that whether by common law or by statute, it is considered of sufficient significance to justify the imposition of a criminal sanction, whoever might be interested in prosecuting breach of the law to obtain such a sanction through the courts. Thus, if, while executing a search warrant for stolen goods, the police come across an assembly line of odometers being turned back or ‘clocked’, or evidence of ill treatment of animals, the warrant entitles them to seize that evidence even though prosecution of the former may well fall to Trading Standards and of the latter to the RSPCA. Many other examples could be given of offences with which the police are not primarily interested (even if, in the first example, the application of a false trade description might also be evidence of conspiracy to defraud) but which other organisations have the expertise and assume the responsibility of prosecuting if the evidence is made available to them. That, of course, assumes that it can be.

Section 22 of PACE provides:

“(1)

Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances.

(2)

Without prejudice to the generality of subsection (1) above –

(a)

anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below –

(i)

for use as evidence at a trial for an offence; or

(ii)

for forensic examination or for investigation in connection with an offence; and

(b)

anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence. ...

(4)

Nothing may be retained for either of the purposes mentioned in subsection (2) (a) above if a photograph or copy would be sufficient for that purpose ...

(7)

The reference in subsection (1) to anything seized by a constable includes anything seized by a person authorised under section 16(2) to accompany a constable executing a warrant.”

Again, it is important to emphasise the breadth of language and, in particular, the fact that there are no words of limitation by reference to the offence the investigation of which led to the warrant being granted in the first place. Subject to the words “so long as is necessary in all the circumstances” (to which I shall return), all that is required is that the evidence was seized during the execution of the warrant (that is to say, whether or not the relevant offence was one for which the police obtained the warrant). Without prejudice to the generality of those words, subsection (2) provides examples in relation to a criminal investigation (i.e. whether or not by the police) which come within the retention provisions namely for use as evidence at a trial for an offence (entirely unspecified) or for forensic examination or for investigation in connection with an offence (entirely unspecified).

Both before Sharp J and this Court, Mr Richard Spearman Q.C. argued that the Northumbria police lawfully seized the property for the purposes of a criminal investigation into Scopelight and the Vickermans. It is now being retained for use as evidence at a trial for an offence or for forensic examination in connection with it, and it is irrelevant that the prosecution is being undertaken by FACT. On the other hand, Mr Donald McCue (who acted for Scopelight and the Vickermans before Sharp J) argued that the starting point had to be the purpose for which the powers to seize and retain property were given to the police under PACE and that, on the authorities, section 22 only conferred the draconian powers of seizure, use and retention of private property for limited public purposes directly connected to the functions of the police, or other emanations of the state and not for private purposes; it was no part of the public functions of the police to assist in private prosecutions; and property could be retained by them for that purpose alone. Mr Iain Purvis Q.C. (who now appears for Scopelight and the Vickermans) went further than the argument of Mr McCue in relation to the purpose of the powers given under PACE and submitted that retention could only be justified so long as it was necessary and that once the CPS had decided, in the exercise of their statutory responsibilities, not to institute criminal proceedings, it could not be considered necessary.

I will return to the argument that stems from effect of the exercise by the CPS of their discretion but I must first deal with the authority which was relied upon both by Mr McCue and Mr Purvis for the distinction between public and private prosecution and which Mr Purvis submits is the starting point for any analysis of section 22. In Marcel and ors v Commissioner of Police of the Metropolis and anor [1992] Ch 225, the issue was whether it was lawful for the police to hand over documents lawfully seized under PACE and retained for the purposes of a criminal investigation to a private individual either voluntarily or as a result of a subpoena duces tecum so that the individual could pursue a civil action for damages in fraud against the owners of the documents. The Court of Appeal determined that it was unlawful for the police to hand the documents over voluntarily, but lawful for them to do so pursuant to a subpoena.

The starting point (and high water mark) is the analysis of Sir Nicolas Browne-Wilkinson V.C. at first instance. He regarded section 22 as dealing with the duration and not the purpose of retention and said that the Act contained no express provision regulating the purposes for which documents once seized can lawfully be used. He went on (at page 234C):

“However, there manifestly must be some limitation on the purposes for which seized documents can be used. Search and seizure under statutory powers constitute fundamental infringements of the individual’s immunity from interference by the state with his property and privacy – fundamental human rights. Where there is a public interest which requires some impairment of those rights, Parliament legislates to permit such impairment. But, in the absence of clear words, in my judgment Parliament cannot be assumed to have legislated so as to interfere with the basic rights of the individual to a greater extent than is necessary to secure the protection of that public interest. In the case of this Act, it is plainly necessary to trench upon the individual’s right to his property and privacy for the purpose of permitting the police to investigate and prosecute crime; hence the powers conferred by Part II of the Act. But in my judgment Parliament should not be taken to have authorised use of seized documents for any purpose the police think fit. For example, could the police provide copies of seized documents to the Press save in cases where publicity is necessary for the pursuit of their criminal investigations? ...

In my judgment, subject to any express statutory provision in other Acts, the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner. Those investigations and prosecutions will normally be by the police themselves and involve no communication of documents or information to others. However, if communication to others is necessary for the purpose of the police investigation and prosecution, it is authorised. It may also be, though I do not decide, that there are other public authorities to which documents can properly be disclosed, for example to City and other regulatory authorities or to the security services. But in my judgment the powers to seize and retain are conferred for the better performance of public functions by public bodies and cannot be used to make information available to private individuals for their private purposes.”

In the Court of Appeal, these observations received general (but not unqualified) support. Thus, having set out the above observations, Dillon LJ said (at 256D) that he agreed with these views “solely in relation to the voluntary use by the police of documents seized under the Act”. Nolan LJ agreed that there was no reason why the owners of the documents should be able to stop the police from producing them at court in obedience to a summons. He went on (at page 260H):

“The responsibilities which are by law and custom entrusted to the police are wide and varied. The powers conferred upon them must be considered against the background of those responsibilities. If the hands of the police were too strictly tied with regard to the use of documents and information acquired under compulsory powers then the public interest would suffer. ... The statutory powers given to the police are plainly coupled with a public law duty. The precise extent of that duty is, I think, difficult to define in general terms beyond saying that the powers must be exercised only in the public interest and with due regard to the rights of individuals.”

It is important to appreciate that Marcel did not concern the prosecution of any crime but the claim to use the documents retained for civil litigation. I accept and am bound by the ratio of the case that the powers to seize and retain cannot be used to make information available to private individuals for their private purposes. What the case does not address, however, is the use of information by private individuals (placing every private prosecutor into that category for these purposes) for public purposes, not to recover damages, but in order that the state might determine whether a criminal offence had been committed. Neither does the later reference to regulatory authorities or the security services assist for the Vice-Chancellor does not suggest that he was there referring to the use of the material by them for the purposes of criminal prosecution.

Further, I entirely endorse the view of Sir Christopher Slade that the phrase “so long as is necessary” means necessary for carrying out the purposes for which the powers given by sections 19 and 20 have been conferred. Reference back to sections 19 and 20 only serves to underline the power of the police to seize material evidence in relation to any offence (not limited to the offence the police are investigating) and without limitation as to whether such an offence would necessarily fall to the CPS to prosecute. On the face of it, that suggests that the limiting feature within the examples set out in section 22(2) of the principle described in section 22(1) is the investigation of any criminal offence and the use of the material in any criminal trial. Subject to an alternative formulation, however, Mr Purvis contends that the effect of the legislation concerning the responsibility of the CPS in the prosecution of crime investigated by the police is to limit the right of retention to cases which the CPS prosecutes. It is to this argument that I now turn.

Mr Purvis argues that, in the light of Marcel, the phrase “necessary in all the circumstances” in section 22(1) of PACE must be construed as meaning “necessary in all the circumstances to secure the protection of the public interest”. He then analyses the duties of the Director of Public Prosecutions (“DPP”) and the CPS and submits that they are the ultimate arbiter and determinative of the public interest; the CPS having decided not to institute a prosecution, it cannot be in the public interest for the case to be prosecuted and thus it cannot be “necessary” for the police to retain documents to use for a prosecution.

The argument proceeds in this way. Section 3(2)(a) of the Prosecution of Offences Act 1985 (“the 1985 Act”) places a duty on the DPP to take over the conduct of all criminal proceedings instituted on behalf of the police and section 10 of that Act requires the DPP to issue a Code for Crown Prosecutors. The 2004 edition of the Code requires the CPS to assess each case by what is described as ‘the Full Code Test’ which breaks down into a decision that there is enough evidence to provide a “realistic prospect of conviction” (para 5.2) and a public interest test which includes the observation:

“5.7

... Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour ...

5.8

Crown Prosecutors must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action would be better. ... The factors that apply will depend on the facts in each case.”

Mr Purvis submits that every case investigated by the police must be sent to the CPS and if the CPS decide not to pursue a prosecution, it can never be in the public interest that a prosecution is brought by anyone else irrespective of the status of the prospective prosecutor because the CPS are the ultimate arbiters of that question. Further, a prosecution not in the public interest would be damaging not only because of the impact on a prosecuted defendant and his potential need for public funding in the form of legal aid; precious and hard-pressed court resources would also be used.

This argument has an impact which is far wider than the limited issue at stake in this case and I reject it. Section 3(2)(a) deals with criminal proceedings instituted by the police and not investigations conducted and Section 6 of the same Act specifically permits prosecution by others besides the CPS and makes it clear:

“(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.”

The purpose of taking over proceedings is (or at least could be) to offer no further evidence and one might have thought, if Mr Purvis’ argument had any merit, that if the CPS was the ultimate arbiter of the public interest, an almost inevitable consequence of the commencement of a private prosecution would be that course. On the contrary, it is not the view of the DPP that a private prosecution is necessarily not in the public interest and should be stopped. In R v. Director of Public Prosecutions ex parte Duckenfield [2000] 1 WLR 55, an application was made judicially to review the decision of the DPP not to take over the private prosecution of two senior police officers concerned with the police management of the Hillsborough football match at which 96 people die. He had decided that there was insufficient evidence to prosecute any officer for any criminal offence. The DPP explained his policy in these terms (at 63C):

“The policy where proceedings have been commenced by a private prosecutor builds on that contained in the Code for Crown Prosecutors. The right to bring a private prosecution is preserved by section 6(1) ... subject to the power under section 6(2). The CPS will take over a private prosecution where there is a particular need for it to do so on behalf of the public ... In the instant case where we have been asked by the defendants to take over the prosecution in order to discontinue it, we would do so if one (or more) of the following circumstances applies: there is clearly no case to answer. A private prosecution commenced in these circumstances would be unfounded, and would therefore be an abuse of the right to bring a prosecution; the public interest factors tending against prosecution clearly outweigh those factors tending in favour; the prosecution is clearly likely to damage the interests of justice. The CPS would then regard itself as having to act in accordance with our policy. If none of the above apply there would be no need for the CPS to become involved and we would not interfere with the private prosecution. Clearly there is a distinction between the ‘realistic prospect of conviction’ test in the Code ... and the ‘clearly no case to answer’ test mentioned above. Accordingly we recognise that there will be some cases which do not meet the CPS Code tests where nevertheless we will not intervene. It has been considered that to apply the Code tests to private prosecutions would unfairly limit the right of individuals to bring their own cases.”

The Court held that section 3(2)(b) of the 1985 Act did not qualify the right of private prosecution preserved by section 6(1) and was not relevant to the exercise of the DPP’s discretion to take over the prosecution; that there was no presumption that the DPP should normally take over and discontinue a private prosecution where there had been no prior inertia, partiality or improper action by the public prosecutor or where he would not himself have instituted proceedings in accordance with the Code; and that the DPP’s stated policy was consistent with the statutory objects, proper and lawful. Thus, there are, or at least may be, circumstances in which it is perfectly consistent for the DPP to decide not to prosecute, yet for him to decline to decide that a private prosecution is not in the public interest so as to justify his interference with it: in other words, he does not consider himself (or, in less significant cases, the CPS) the sole arbiter of the public interest and neither does the court.

Duckenfield was not, of course, addressing the consequences of section 22 of PACE but if the DPP is not the determinative arbiter of the public interest so as to require intervention in a case which he considered did not satisfy the Code test, it is difficult to see why his decision (or that of the CPS) not to prosecute should be determinative in relation to the question of what is necessary in all the circumstances (or in the public interest) in relation to retention of seized material, particularly if the police are satisfied that it is required for a bona fide investigation or prosecution of crime (albeit by some institution or body other than the CPS).

In that regard, it is well recognised that, in addition to the CPS, many other bodies, public and private, investigate, institute and prosecute crime. In R v Stafford Justices ex parte Customs and Excise Commissioners [1991] 2 QB 339, Watkins LJ set out section 6 of the 1985 Act and observed (at 350H):

“These provisions clearly envisage that persons other than the Director may institute proceedings and prosecute. As Mr Lawson said, and I accept, it would indeed be surprising if that were not so. One has only to consider the role of the Post Office, the Department of Health and Social Security, the Inland Revenue Commissioners, local authorities, the RSPCA, apart altogether from the Customs and Excise Commissioners, in the process of investigation and prosecution of offences to appreciate immediately that the Crown Prosecution Service, under severe strain as it is, could not bear their burdens too. Parliament cannot possibly, in my view, have intended to bring about such a consequence.”

Thus, if it is in the public interest that other bodies should be able to investigate and prosecute because of the strain that the CPS would otherwise face, it is equally difficult to see why such a prosecutor should not be able to use material seized by the police whether while investigating the offence to which the material is relevant or some other offence. Not all other prosecutors have powers of search but provided that there is appropriate disclosure on any application for a warrant, their general interest in the investigation of all and any crime could well justify the police obtaining a warrant and executing a search under PACE. In my judgment, there is no basis either in the statutory framework, the authorities or policy to justify the proposition that a decision by the CPS not to prosecute conclusively determines that a prosecution is not in the public interest.

Before passing on to the nature of the private prosecutor, in deference to Mr Purvis, I ought to deal with the support which he sought from The Director’s Guidance on Charging. This is issued under section 37A (3) of PACE and deals with the power, granted to a custody officer under section 37(7) of PACE, to charge in certain circumstances. This Guidance (3^rd edn 2007) requires the case to be referred to a Crown Prosecutor for a charging decision and, at para 11.1, makes it clear that if the decision of the Crown Prosecutor is to charge, caution, obtain additional evidence or take no action, “the police will not proceed in any other way without first referring the matter back to a Crown Prosecutor”. This guidance deals with a specific situation and circumstances, namely not to take any of the other three of those four alternative steps, without further reference; for my part, I do not consider it helpful or relevant.

Mr Purvis made it clear that his submissions were not an attack on the ability to bring a private prosecution but rather an enunciation of the wider principle that the powers of the state given to the police in PACE can only be used for the purposes of investigating crime to be filtered and prosecuted through the statutory mechanism of the CPS. Having said that, he points to the disagreement as to the value of private prosecutions which was demonstrated in Jones v Whalley [2007] 1 AC 63.

This case concerned the right to commence a private prosecution for assault after the police, rather than prosecuting, had administered a caution. The wider question of the general value of private prosecutions was first raised in argument before the House of Lords but both Lord Bingham and Lord Mance referred to it. Thus, it was acknowledged that Lord Wilberforce considered the right to bring a private prosecution “a valuable constitutional safeguard against inertia or partiality on the part of authority” (Gouriet v Union of Post Office Workers [1978] AC 435 at 477) and that Lord Diplock (at 498) similarly spoke of the right as “a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law”. Lord Bingham (at para 9) went on to refer to other commentators as suggesting that the right was one of “little, or even no, value” and considered it hard to regard it as an important constitutional safeguard. He concluded (at para 16):

“A crime is an offence against the good order of the state. It is for the state by its appropriate agencies to investigate alleged crimes and decide whether offenders should be prosecuted. In times past, with no public prosecution service and ill-organised means of enforcing the law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is no longer so. The surviving right of private prosecution is of questionable value and can be exercised in a way damaging to the public interest.”

Lord Mance, on the other hand, referred with approval to the statements in Gouriet and went on (at para 43):

“Further, as the Law Commission pointed out ... it cannot always be assumed that, if it is wrong to bring a public prosecution, then it is also wrong to bring a private prosecution.”

It is important to underline that Lord Bingham acknowledged that the right of private prosecution continued to exist and could have a continuing role; neither was he suggesting that the surviving right was itself and necessarily damaging to the public interest (which could be the case if the CPS were determinative of the public interest) but only that it might be exercised in such a way that did damage the public interest.

This problem of the public interest in private prosecutions impressed Sharp J. She said:

“46.

A private prosecution isn’t necessarily therefore in the public interest. A person or body contemplating or bringing a private prosecution might or might not be acting in good faith. A private prosecution (unlike a prosecution by the CPS) does not have to satisfy an evidential and public interest test (see R (on the application of Charlson) v Guildford Magistrates Court and ors [2007] 3 All ER 163); and where a private individual initiates a prosecution, he does not truly do so as a representative of the public.”

Not only is the converse of this proposition also true (many private prosecutions being unarguably in the public interest), but it is also important to note that there are many mechanisms for bringing a prosecution to an end if a conclusion is reached that it is not. Thus, any potential prosecutor thought to be generally vexatious can be made the subject of a criminal proceedings order on application by the Attorney General under section 42 of the (now renamed) Senior Courts Act 1981. In relation to a particular prosecution, a justice of the peace must be satisfied that it is a proper case to issue a summons; if it is vexatious, no summons need be issued (see R v West London Metropolitan Stipendiary Magistrate ex parte Klahn [1979] 1 WLR 933 at 936). Similarly, at any time, the DPP can take over the prosecution (section 6(2) of the 1985 Act) and discontinue (section 23 of the 1985 Act as amended) or ultimately, offer no evidence. Finally, it is open to any defendant to make application to the court to stay the prosecution on the ground that it is an abuse of process.

Quite apart from bringing the action to an end, there are other safeguards. First, assuming that section 22 of PACE does not prevent the use by a private prosecutor of material seized pursuant to a warrant, it does not mandate such use: there no obligation on the police to share anything. Second, as Sharp J observed (at para 48), such a prosecution does not confer a right of access to statements, photographs or reports in the hands of the police or the CPS even though the request is a legitimate one, and without them, a prosecution would or could “wither on the vine” (see R v DPP ex p Hallas (1988) 87 Cr App R 340 per Lloyd LJ). Third, the state will assist to prevent unfairness so that the private prosecutor is similarly bound by the provisions of the Criminal Procedure and Investigations Act 1996 in relation to unused material as will the CPS in relation to unused material from the original investigation (R v Pawsey [1989] Crim L.R. 152). Fourth, the court has ample power contained within section 78 of PACE to control the evidence in the case in order to prevent unfairness. Fifth, at any stage, if it is appropriate, the court can intervene and direct an acquittal; in appropriate cases, it can also make adverse orders for costs against a prosecutor.

In that regard, it is worth mentioning the RSPCA which it is not suggested is a state prosecutor but which is responsible for instituting a range of animal welfare private prosecutions. The majority of searches under the Animal Welfare Act 2006 require a warrant to enter or seize property and section 52 of the Act requires a police officer wishing to apply for a warrant to inform the occupier of that decision. This frequently leads to the police entering by consent which, in turn, means that the RSPCA is dependent upon police powers under sections 19 and 22 of PACE. The Wildlife and Countryside Act 1981 permits the police to be accompanied by RSPCA officers but does not provide for seizure or retention; other legislation provides no right to accompany the police. Twenty of the last hundred prosecutions brought by the RSPCA relied on material seized by police pursuant to section 19 of PACE. For the sake of completeness, I ought to add that the RSPCA adopts evidential and public interest tests.

If the test originally advanced by Mr Purvis (namely that the CPS is determinative of the public interest and that it is not open to the police to provide retained material to any private prosecutor where the CPS has decided not to prosecute), some device would have to be created to permit the RSPCA to prosecute in these cases: that device could not simply be to create an exception by reference to the expertise of the RSPCA because, following the argument, that would represent a failure to perform the CPS’s statutory duty and, in any event, would allow a similar argument for a similar private body such as FACT in relation to offences within their expertise. His alternative formulation was that organisations set up under or pursuant to statute to perform public functions could be described as public bodies performing public functions (within the Marcel test). Putting aside how that formulation would work with a public body such as the Financial Services Authority, given its right to prosecute certain offences under the Financial Services and Markets Act 2000 but additionally, as a private prosecutor, prosecuting other criminal offences (held to be within its power in R v Rollins [2009] EWCA Crim 1941), it would not include the RSPCA. To cater for that organisation, Mr Purvis spoke of its charitable aims and the fact that it was not subject to commercial interests (as is FACT).

The difficulty with this argument, as Wilson LJ identified during the course of the hearing, is that as soon as there is any departure from the bright line either of a decision by the CPS alone or by a more generally defined public body, the principle has descended down what he put as a slippery slope which could not be catered for within the legislative concept of “necessary in all the circumstances” without requiring a far wider definition than Mr Purvis was prepared to concede.

The position can be tested by reference to FACT. It is not suggested that there is not a public interest in the prevention of copyright infringement. The real concern is that commercial organisations have formed FACT to protect their own commercial interests and can use criminal prosecution as a club with which to protect those interests. That is clear from the way in which the matter was put in Scopelight’s skeleton argument, which criticises FACT’s failure to commence civil proceedings, having observed (at paragraph 20):

“It is difficult to see where the public interest lies in prosecuting such a difficult case in the criminal courts, clogging up a great deal of court time, simply to satisfy the commercial ends of various multinational companies.”

Quite apart from the fact that the Copyright, Designs and Patents Act 1988 provides for criminal sanctions (meaning that Parliament has determined that criminal proceedings are appropriate in these cases), the premise reveals precisely the difficulty which holders of copyright are likely to face in pursuing cases through the police and the CPS. These cases are complex, specialist knowledge will inevitably be required to pursue them, and each case is likely to be difficult, time consuming and expensive (as was recognised in R v Kemp [1995] 16 Cr App Rep (S) 941 at 943). In a time when allegations of terrorism and other extremely serious crime take up more and more time and involve ever increasing resources, it is inevitable (and appropriate) that the CPS will have to be selective. For my part, I see no reason why the CPS should not be entitled to conclude that it is unnecessary for them to embark on another prosecution while issues of law are being resolved (following the explanation given by Det. Con. Watkin on 29^th December 2008). If there is no merit in the prosecution, that will no doubt be revealed. A preparatory hearing under Part III of the Criminal Procedure and Investigations Act 1996 can, if it is thought appropriate, generate an early resolution of legal issues (particularly if determinative). If the power to prosecute is being used in bad faith, or inappropriately with the true aim of preventing Scopelight or the Vickermans from pursuing a legitimate commercial venture, as I have indicated, there are various mechanisms available to the court to prevent an abuse of its process.

In the light of the foregoing, having rejected the proposition that the conclusion of the CPS as to the public interest is determinative of what it is appropriate for the police to retain pursuant to section 22 of PACE, I also reject the alternative formulation of Mr Purvis in attempting to rely on the Marcel concept of public bodies performing public functions to include, on an ad hoc basis, other organisations which by virtue of charitable status or otherwise cannot be said to have a commercial interest in pursuing prosecution. In my judgment, more emphasis is being placed on the Vice-Chancellor’s words in Marcel than they were intended to bear, particularly as the circumstances with which this case has been concerned were not before the court.

What then should be the approach? Subject to the ECHR, in my judgment, the phrase “anything which has been seized by a constable ... may be retained so long as is necessary in all the circumstances” requires the police to consider each case on its own individual facts, at each stage in the process of investigation and prosecution. If the CPS is prosecuting the case, whatever is required for forensic investigation or the prosecution will obviously be retained but, even then, consideration will have to be given to ensuring that no more than is necessary for the case (either to pursue it or to rebut a potential defence) is kept. If a prosecution is not to be pursued by the CPS but some other public or private body wishes to pursue a private prosecution, the relevant circumstances include (but are not limited to): the identity and motive of the potential prosecutor; the gravity of the allegation along with the reasoning behind the negative decision of the CPS and thus the extent to which, in this case, the public have a legitimate interest in the criminal prosecution of this conduct; the police view of the significance of what has been retained; and any material fact concerning the proposed defendant. All this falls to be considered so that a balanced decision can be reached upon whether retention is necessary “in all the circumstances”. Such a decision would be capable of challenge on traditional public law grounds.

I add only this. Mr Purvis raised the spectre of the police having to search for anyone interested in pursuing a private prosecution before reaching a decision on retention. I reject that suggestion. In the normal course, it will be perfectly obvious whether anyone is interested in mounting a private prosecution in the event of an adverse CPS decision but there is no obligation on the part of the police to look for a candidate. A request to return property will obviously have to be dealt with timeously and I echo the suggestion of Carnwath LJ in Gough v Chief Constable of West Midlands Police [2004] EWCA Civ 206 at para 44-5 (with which Potter LJ, as he then was, agreed) that if civil proceedings are commenced for return of the property, the police will have to give careful thought as to whether they are in practice able to defend the proceedings and whether section 22(1) enables them to retain the property “for a short period while they consider the position”. He later suggested that, in normal circumstances, that should be “at or about the time for serving their defence”.

For the first time before this court, Scopelight and the Vickermans rely upon Article 1 of the First Protocol to the ECHR (“A1P1”) which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Temporary seizure of possessions comprises “control” within A1P1 and I accept that control must be construed in the light of the overriding principle of peaceful enjoyment set out in the rule. Mr Purvis correctly interprets “general interest” as synonymous with “public interest” although the concepts clearly have a particular meaning within the Convention. Mr Spearman points to Allard v Sweden (2004) 39 EHRR 14 (at para 52), following James v United Kingdom (1986) 8 EHRR 123, as establishing that “a deprivation of property effected in pursuance of legitimate social, economic or other policies may be ‘in the public interest’ even if the community at large derives no direct benefit from that deprivation”. He goes on to submit that if there is a general interest in the control of property, under A1P1, the court undertakes a proportionality exercise (i.e. to determine whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised) which has not been suggested by Scopelight and the Vickermans as having been breached in this case. Finally, he argues that national authorities have a wide margin of appreciation in implementing social and economic policies and that their judgment as to what is in the public or general interest will be respected unless that judgment is manifestly without reasonable foundation (each of these propositions being supported by reference to Human Rights Law and Practice, Lester, Pannick and Herberg, 3^rd edn at paras 4.19.17-19). I accept as accurate this formulation of the position.

This summary of the impact of A1P1 does not affect the balanced approach which I have previously concluded is the correct analysis of section 22 of PACE. Indeed, I consider it entirely consistent with that approach.

In my judgment, the learned Judge was wrong to conclude that section 22 precluded the police from retaining the property seized from Scopelight and the Vickermans. On the contrary, as soon as it heard that the CPS did not intend to mount a prosecution, FACT made clear to the police that advice would be sought on a private prosecution which has since been mounted and the police then had the power to determine whether it was necessary in all the circumstances that the property seized should be retained for forensic examination or for investigation in connection with an offence or for use as evidence at a trial for an offence. Such a decision is for the police, performing the exercise that I have sought to identify in paragraph 53 above and in so doing carrying out the responsibility vested in them by the Act.

In the circumstances, I would allow the appeal and invite submissions as to the continuation of the interim order granted by Sharp J.