Magistrates

Jurisdiction - Laying of information

Media Protection Services Ltd v Crawford and another: QBD (Admin) (Lord Justice Stanley Burnton and Mr Justice Kenneth Parker): 16 August 2012

The respondents were licensees of a public house in Cheshire. They faced a private prosecution brought in the magistrates' court by the appellant company on behalf of the Football Association Premier League Ltd (the FA) in respect of an alleged breach of section 297(1) of the Copyright, Designs and Patents Act 1988.

The appellant was, at all material times, a private limited company that traded for profit and was retained by the FA to investigate and prosecute infringements of the FA's intellectual property rights in relation to broadcasts of premier league football matches. Further to that contractual relationship, the appellant conducted investigations into public houses that showed live football using foreign satellite services. Once evidence had been gathered, H (a director of the appellant company) would lay an information that led to a summons being issued and then served by the appellant on the alleged infringer.

The appellant had followed that procedure in the instant case. Before the district judge, the issue was raised whether H had acted unlawfully in preferring the informations against the respondents, in that so doing he had carried out a reserved legal activity within the meaning of the Legal Services Act 2007 when neither he nor the appellant were authorised or exempt in relation to that activity. The district judge held that H had acted unlawfully and, consequently, the criminal proceedings had to be dismissed. The appellant appealed by way of case stated.

The questions posed by the district judge were: (i) whether, for the purposes of paragraph 4(1) of schedule 2 to the 2007 act, the judge had been right in concluding that the laying of the information by H had amounted to either (a) the issuing of proceedings before any court in England and Wales; (b) the commencement of such proceedings; or (c) the performance of any ancillary functions in relation to such proceedings; and that (subject to question 2) that had therefore been the 'conduct of litigation' in accordance with schedule 2 to the 2007 act and a 'reserved legal activity' within the meaning of section 12 of the 2007 act; (ii) if the answer to that question was 'yes' and where an unregulated prosecutor sought to conduct litigation not on their own behalf but on behalf of a third party for reward, whether the judge had been correct to conclude that paragraph 4(2) of schedule 2 to the 2007 act did not alter that first conclusion and that the laying of an information remained the 'conduct of litigation' within the meaning of the 2007 act; and (iii) if the answer to that question was also 'yes', whether the judge had been right to conclude that, where there was such a breach of the 2007 act when proceedings were commenced, the proceedings were to be considered void ab initio and therefore dismissed.

It was common ground that neither H nor the appellant had been an authorised or exempt person within the meaning of section 13 of the 2007 act. Consideration was also given to sections 13 and 14 of the 2007 act, section 127(1) of the Magistrates' Courts Act 1980 and section 20 of the Solicitors Act 1974. The appeal would be dismissed.

(1) Both the applicable legislative provisions and a decision of the House of Lords in R v Manchester Stipendiary Magistrate, ex p Hill [1982] 2 All ER 963 made it clear that the laying of an information was the commencement of proceedings in the magistrates' court. What was tried by the justices was not the summons, or the description of an offence in a summons, but the information itself. The issue of a summons might be the common means of securing the attendance of a defendant, but it was not the only way. Since, pursuant to section 127(1) of the 1980 act, it was the laying of an information that stopped time running and permitted the magistrates' court to try the information, it was difficult to conclude that the information did not amount to the commencement of proceedings (see [13], [14], [16], [43] of the judgment).

The district judge had been right to conclude that the laying of the information by H had amounted to the commencement of proceedings and had, therefore, been the 'conduct of litigation' in accordance with schedule 2 to the 2007 act and a 'reserved legal activity' within the meaning of section 12 of that act (see [23], [41], [43] of the judgment).

(2) The regulatory objectives set out in section 1 of the 2007 act and the duties owed to the court and to the defendant by prosecutors, including the duty of disclosure, did not favour recognition of the right of unqualified and unregulated persons acting for reward to institute and to conduct private prosecutions (see [26], [43] of the judgment).

In the instant case, H had commenced proceedings in the magistrates' court. He had not done so as a litigant acting on his own behalf but as director of a company acting for reward for a client, namely the FA. H had acted as a solicitor within the meaning, and in breach, of section 20 of the 1974 act. He had not been an authorised litigator. Consequently, the appellant could not bring itself within paragraph 4(2) of schedule 2 to the 2007 act (see [38], [43] of the judgment).

The conclusion on the first question had not, in the instant case, been altered by paragraph 4(2) of schedule 2 to the 2007 act (see [41], [43] of the judgment).

(3) The reference in section 127(1) of the 1980 act to the laying of an information meant the lawful laying of an information (see [40], [43] of the judgment).

On the facts, no information had lawfully been laid against the respondents. Consequently, their prosecution was incompetent, precluded by section 127(1) of the 1980 act (see [40], [43] of the judgment).The district judge had been right to conclude that the proceedings had to be considered void and should have been dismissed (see [41], [43] of the judgment).

Patricia Robertson QC and Miles Bennett (instructed by Russell-Cooke) for the appellant; Andrew Bodnar (instructed by Molesworths Bright Clegg, Rochdale) for the respondents.

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