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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Media Protection Services Ltd v Crawford & Anor [2012] EWHC 2373 (Admin) (16 August 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2373.html Cite as: (2013) 177 JP 54, [2013] 1 WLR 1068, [2013] Crim LR 155, [2012] CP Rep 48, [2012] EWHC 2373 (Admin), [2012] CTLC 82, [2012] WLR(D) 250 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE KENNETH PARKER
____________________
MEDIA PROTECTION SERVICES LTD |
Appellant |
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- and - |
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(1) ANDREW CRAWFORD (2) CHRISTINE CRAWFORD |
Respondents |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Andrew Bodnar (instructed by Molesworths Bright Clegg) for the Respondents
Hearing date: 10 July 2012
____________________
Crown Copyright ©
Lord Justice Stanley Burnton:
Introduction
The relevant facts
"4. It is agreed that MPS was at all material times a private limited company trading for profit and, as part of its company business, was retained by the Football Association Premier League Limited ('FAPL') to investigate and prosecute infringements of the FAPL's intellectual property rights in relation to broadcasts of Premiership Football matches. MPS was remunerated by FAPL for those services.
5. MPS is not a public body and does not act under any statutory powers. In its company accounts dated 12 July 2010 it stated: "The principal activity of the company continues to be that of providing legal services in relation to Copyright theft"
6. At all material times MPS' company website stated that: "Media Protection Services is a non-statutory investigative and prosecution body… we are the prosecution body for the Premier League Limited (sic) in matter relating to infringement of broadcasting rights involving the illegal use of imported decoder cards."
7. At the relevant time, FAPL asserted that they owned the intellectual property rights to Premiership Football Matches being played in England and Wales. They entered into an agreement with BSkyB so that those football matches could only be shown live in the UK via the Sky broadcasting platform. As part of that commercial agreement with BSkyB, FAPL were required to 'take action' to prevent those football matches being shown by means other than through Sky so as to protect BSkyB's considerable investment 'Taking action' in this context meant taking legal action.
8. In order to discharge their contractual duty to BSkyB, and from approximately 2005 onwards, FAPL contracted with MPS to provide them with an 'investigation and prosecution service' for such criminal offences. Under this contractual relationship, MPS conducted investigations into public houses showing live Premiership football using foreign satellite services. Having gathered evidence, Mr Hoskin would lay an information on behalf of MPS leading to a summons being issued and served on the defendants.
9. The allegation against the Defendants is that they dishonestly paid for a service provided though a different provider (in this case by 'Tring', an Albanian satellite broadcaster) in order to avoid paying the much higher charges to Sky, it being the prosecution case that this is an offence under Section 297(1) Copyright Designs and Patents Act 1988.
10. Proceedings in both cases before me were started by summons following the laying of an information before the Vale Royal Magistrates' Court on 8 February 2011 by Mr Raymond Hoskin who describes himself as the 'Prosecutions Director of Media Protection Services Ltd'. Both informations were in similar terms and introduce the facts as follows:
Media Protection Services Ltd are (sic) retained by the Premier League Ltd to investigate and prosecute criminal breaches of their copyright and that of their licensee, BSkyB."
11. All parties agree that this information is factually wrong. Premier League Ltd is an entirely different company to FAPL, being registered in Scotland, and having nothing whatsoever to do with these proceedings.
12. Mr Hoskin was acting on behalf of MPS in laying the information. MPS, in turn, was acting pursuant to its retainer with, and on behalf of, FAPL.
13. Following receipt of the information, and the draft summons which was also prepared by MPS, the summons was issued by the court on 9 February 2011 and returned to MPS for service. The summons was served by MPS with a return date at Vale Royal Magistrates' Court of 4 April 2011, and the defendants subsequently appeared in court to answer that summons.
14. At that hearing, and thereafter, Russell Cooke solicitors appeared on behalf of MPS and instructed Counsel where appropriate. All legal work undertaken by Russell Cooke for MPS was invoiced to MPS, but thereafter all payments by MPS to Russell Cooke were reimbursed by FAPL. FAPL retained a contractual right to instruct MPS to challenge any such invoice. In addition, FAPL directed MPS to use specific barristers' chambers for prosecution work and jointly sought to agree fixed fees for work undertaken.
15. FAPL provided an indemnity to MPS "against all damages and/or legal costs which (MPS) are ordered by a court of competent jurisdiction to pay to any third party, together with any reasonable legal costs incurred in defending any claim".
The legal issues
(1) For the purposes of Paragraph 4(1) of Schedule 2 to the Legal Services Act 2007, was I right in concluding that the laying of the information by Mr Hoskin on 8 February 2010 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 paragraph 5(2) below) this was therefore the "conduct of litigation" in accordance with that Schedule, and a 'reserved legal activity' within the meaning of Section 12 of the said Act?
(2) If the answer to this question is 'yes' and where an unregulated prosecutor seeks to conduct litigation not on their own behalf but on behalf of a third party for reward, was I right to conclude that [Paragraph] 4(2) of Schedule 2 to the Legal Services Act 2007 does not alter this conclusion and that the laying of an information remains the 'conduct of litigation' within the meaning of the said Act?
(3) If the answer to this question is also 'yes', was I also right to conclude that, where there was such a breach of the Legal Services Act 2007 when proceedings were commenced, the proceedings are to be considered void ab initio and therefore dismissed?
The legislative framework
13 Entitlement to carry on a reserved legal activity
(1) The question whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of this Act.
(2) A person is entitled to carry on an activity ("the relevant activity") which is a reserved legal activity where–
(a) the person is an authorised person in relation to the relevant activity, or
(b) the person is an exempt person in relation to that activity.
(3) Subsection (2) is subject to section 23 (transitional protection for non-commercial bodies).
(4) …
Offences
14 Offence to carry on a reserved legal activity if not entitled
(1) It is an offence for a person to carry on an activity ("the relevant activity") which is a reserved legal activity unless that person is entitled to carry on the relevant activity.
(2) In proceedings for an offence under subsection (1), it is a defence for the accused to show that the accused did not know, and could not reasonably have been expected to know, that the offence was being committed.
(3) A person who is guilty of an offence under subsection (1) is liable–
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).
(4) A person who is guilty of an offence under subsection (1) by reason of an act done in the purported exercise of a right of audience, or a right to conduct litigation, in relation to any proceedings or contemplated proceedings is also guilty of contempt of the court concerned and may be punished accordingly.
(5) …
Meaning of "reserved legal activity" and "legal activity"
(1) In this Act "reserved legal activity" means–
(a) the exercise of a right of audience;
(b) the conduct of litigation;
(c) reserved instrument activities;
(d) probate activities;
(e) notarial activities;
(f) the administration of oaths.
(2) Schedule 2 makes provision about what constitutes each of those activities.
(3) In this Act "legal activity" means–
(a) an activity which is a reserved legal activity within the meaning of this Act as originally enacted, and
(b) any other activity which consists of one or both of the following–
(i) the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes;
(ii) the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes.
(4) But "legal activity" does not include any activity of a judicial or quasi-judicial nature (including acting as a mediator).
(5) For the purposes of subsection (3) "legal dispute" includes a dispute as to any matter of fact the resolution of which is relevant to determining the nature of any person's legal rights or liabilities.
(6) …
Rights of audience
3(1) A "right of audience" means the right to appear before and address a court, including the right to call and examine witnesses.
(2) But a "right of audience" does not include a right to appear before or address a court, or to call or examine witnesses, in relation to any particular court or in relation to particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to exercise that right.
Conduct of litigation
4(1) The "conduct of litigation" means–
(a) the issuing of proceedings before any court in England and Wales,
(b) the commencement, prosecution and defence of such proceedings, and
(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).
(2) But the "conduct of litigation" does not include any activity within paragraphs (a) to (c) of sub-paragraph (1), in relation to any particular court or in relation to any particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to carry on that activity.
Conduct of litigation
2 (1) This paragraph applies to determine whether a person is an exempt person for the purpose of carrying on any activity which constitutes the conduct of litigation in relation to any proceedings ….
(2) The person is exempt if the person–
(a) is not an authorised person in relation to that activity, but
(b) has a right to conduct litigation granted by a court in relation to those proceedings.
(3) The person is exempt if the person–
(a) is not an authorised person in relation to that activity, but
(b) has a right to conduct litigation in relation to those proceedings granted by or under any enactment.
(4) The person is exempt if the person–
(a) is a party to those proceedings, and
(b) would have a right to conduct the litigation, in the person´s capacity as such a party, if this Act had not been passed.
(5) The person is an exempt person in relation to any activity which is carried on in or in connection with proceedings on an appeal from the Comptroller-General of Patents, Designs and Trade Marks to the Patents Court under the Patents Act 1977 (c. 37), if the person is a solicitor of the Court of Judicature of Northern Ireland.
As indicated above, the Appellant does not suggest that any of these paragraphs apply to it.
20. Unqualified person not to act as solicitor.
(1) No unqualified person shall -
(a) act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction; or
(b) act as a solicitor in any cause or matter, civil or criminal, to be heard or determined before any justice or justices or any commissioners of Her Majesty's revenue.
[...]
(2) Any person who contravenes the provisions of subsection (1)—
(a) shall be guilty of an offence and liable on conviction on indictment to imprisonment for not more than two years or to a fine or to both; and
(b) shall be guilty of contempt of the court in which the action, suit, cause, matter or proceeding in relation to which he so acts is brought or taken and may be punished accordingly;
Issue (1): Is the laying of an information the commencement of proceedings in the magistrates' court?
(1) On the summary trial of an information, the court shall, if the accused appears, state to him the substance of the information and ask him whether he pleads guilty or not guilty.
(2) The court, after hearing the evidence and the parties, shall convict the accused or dismiss the information.
…
(1) On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justice may issue—
(a) a summons directed to that person requiring him to appear before a magistrates' court to answer the information, or
(b) a warrant to arrest that person and bring him before a magistrates' court.
In general, however, an arrest warrant may not be issued in relation to an offence that is punishable only by a financial penalty: section 1(4).
(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.
My Lords, perusal of these and other sections which I have not thought it necessary to set out, make two matters abundantly clear. First, in the criminal jurisdiction, what magistrates' courts have jurisdiction to try summarily is an information, and what is required to give them that jurisdiction is that an information has been laid before them. … Their jurisdiction in criminal cases does not depend on a summons or a warrant being issued and their civil jurisdiction does not depend upon a summons being issued. As to the former, as was pointed out in argument, where a defendant is brought before a magistrates' court next morning, there is neither a summons nor a warrant. He is charged. The information is thus laid before the magistrates' court at the latest when the charge is read in open court, and in practice, often earlier when, no doubt, the clerk to the justices, or his or her subordinate, is informed by the police of the charge which it is proposed to bring against the defendant later that morning. …
My Lords, it is of crucial importance to appreciate that the laying of an information is a matter for the prosecution just as the making of a complaint is a matter for the complainant. In each case it is for the prosecutor or the complainant to decide how the information or how the complaint shall be formulated. I agree with the Divisional Court in the present cases that the commencement of criminal proceedings lies in the hands of the prosecutor. It is, in my opinion, the prosecutor's duty, if he wishes to prosecute, to prepare and lay the information before the magistrates' court, which means a justice of the peace or the clerk to the justices. … Accordingly, once the information has been received at the office of the clerk to the justices, which today in most cases is likely to be at the magistrates' court house, the information will, in my view, have been laid. No more is required of the prosecutor to launch the intended criminal proceedings. …
At 344, Lord Roskill summarised the position:
… it is the laying of an information … which is the foundation of the magistrates' court's jurisdiction to try an information summarily ..., and not the issue of any summons which may or may not follow the laying of an information or the making of a complaint.
The information, which is in the nature of an indictment, of necessity precedes the process; and it is only after the information is laid, that the question as to the particular form and nature of the process can properly arise. Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place (unless under special statutory enactment). …
For the purposes of this Part [i.e. Part 1], proceedings in relation to an offence are instituted (a) where a justice of the peace issues a summons under section 1 of the Magistrates Court Act 1980, when the information for the offence is laid before him; …
This definition is limited to Part 1 of the 1985 Act, but it is consistent with the provisions of the MCA to which I have referred, and which are of general application.
Issue (2): was there a relevant restriction immediately before the appointed day?
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.
(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.
However, this provision says nothing about the legal representation of the private prosecutor.
28. Rights to conduct litigation.
(1) The question whether a person has a right to conduct litigation, or any category of litigation, shall be determined solely in accordance with the provisions of this Part.
(2) A person shall have a right to conduct litigation in relation to any proceedings only in the following cases—
(a) where—
(i) he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body; and
(ii) that body's qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to [...] that right;
(b) where paragraph (a) does not apply but he has a right to conduct litigation in relation to those proceedings granted by or under any enactment;
(c) where paragraph (a) does not apply but he has a right to conduct litigation granted by that court in relation to those proceedings;
(d) where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed.
...
(4) Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right to conduct litigation in relation to a particular court, or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.
(1) In this Act—
"litigation services" means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to any proceedings, or contemplated proceedings, to provide;
...
"right to conduct litigation" means the right—
(a) to issue proceedings before any court; and
(b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions).
Lawful activities: a summary
57. The interrelationship between the [Solicitors Act 1974 and the Courts and Legal Services Act 1990] seems to us to be as follows. … A person who is not an authorised litigator may not exercise the right to conduct litigation within the meaning of the 1990 Act and may not act as a solicitor within the meaning of section 20(1) the 1974 Act and may not draw or prepare an instrument contrary to section 22(1) of the 1974 Act. If he purports to do any of these things, he will not be entitled to recover his costs for doing so. A person who does not have a current practising certificate and who is not an authorised litigator within the meaning of the 1990 Act acts as a solicitor in breach of section 20(1) of the 1974 Act at least if he (a) issues proceedings; (b) performs any ancillary functions in relation to proceedings or (c) draws or prepares an instrument relating to legal proceedings contrary to section 22(1) of the 1974 Act.
17. …it is clear that in these matters MPS are not acting in their own right but on behalf of FAPL, for reward. They were doing exactly what their company accounts say is their principal activity, namely "providing legal services in relation to Copyright theft", in this case to FAPL. This is work which one might more usually expect to be undertaken on behalf of FAPL by a firm of solicitors, who would, of course, be regulated in these activities.
It follows that the Appellant cannot bring itself within paragraph 4(2) of Schedule 2 to the 2007 Act. I bear in mind that there are penal consequences arising from a contravention of section 13, so that the prohibition is to be carefully and narrowly construed. I accept that the fact that a prosecutor is acting for reward is not an express consideration in the legislation. However, it seems to me that any other conclusion would render the prohibition in section 20 of the 1974 Act of no effect, and that it is possible to read that consideration into section 20 of the Solicitors Act 1974.
Issue (3): the consequence
Conclusions
(1) The District Judge was right to conclude that the laying of the information by Mr Hoskin amounted to the commencement of proceedings and was therefore 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.
(2) Paragraph 4(2) of Schedule 2 to the 2007 Act does not alter this conclusion in the present case.
(3) The District Judge was right to conclude that the proceedings were to be considered void and should therefore be dismissed.
A final comment
Mr Justice Kenneth Parker: