Court Warns Police Over Private Affairs

Scopelight Limited & others v Northumbria Police and FACT, 19 June 2009 PoliceReview.com

by Nick Peel nick.peel@weightmans.com

BACKGROUND

The claimant, Scopelight Limited, ran a website (Surfthechannel.com) with a video search engine with thousands of links to third-party website videos. The Federation Against Copyright Theft (FACT) represents the interests of the audiovisual industry.
Investigations by FACT suggested the claimant company and its owners, Anton Benjamin Vickerman and Kelly-Anne Vickerman,a married couple from Gateshead, were hosting internet sites from which copyrighted material was being downloaded. Northumbria Police applied for a section 8 warrant under the Police and Criminal Evidence Act 1984 (PACE) to search the claimants' premises, resulting in 31 items of property being seized, including the computer towers and servers. The force handed some items to FACT.
By 12 December 2008, the Crown Prosecution Service had decided not to prosecute. The force notified the claimants of this, indicating that the property could be returned.All property subsequently came into FACT's possession. Following the CPS decision, FACT decided to bring a private criminal prosecution.
On 22 January 2009, the claimants began proceedings for return of the property and damages for conversion. A day later, FACT alerted the force of its decision to bring a private prosecution. On 28 January, the claimant applied for an interim order for delivery of the property, which Mrs Justice Sharp granted. On 12 February, FACT began the private prosecution.

THE DECISION

The defendants argued that once the property was lawfully seized for the purposes of a criminal investigation, it was immaterial whether any subsequent prosecution was undertaken by the CPS or FACT, as long as the material was retained for use as evidence in connection with the alleged offence. The claimants argued that the private actions of people and bodies form no part of the police service's functions. So once the CPS decided not to prosecute, retaining the property to assist FACT in its private prosecution fell outside the scope of PACE.
On 7th May, at the High Court, Mrs Justice Sharp agreed with the claimants. While acknowledging that the force had a duty to prevent crime, those powers were not unlimited. The judge observed that there was 'an obvious distinction between what may be desirable in a particular case, and what is permissible as a matter of law'

COMMENT

While a disappointment for FACT, this decision draws a clear line between interference with private property for public purposes under PACE and the prosecution of private interests.

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Nick Peel is a sollicitor at Weightmans, specialising in police law