Confiscation in Private Prosecutions? Court of Appeal Gives Key Decision

In Virgin Media Ltd, R (on the application of) v Zinga [2014] EWCA Crim 52 (24 January 2014) the Court of Appeal has determined important issues concerning private prosecutions, including whether a private prosecutor was entitled to bring confiscation proceedings under the Proceeds of Crime Act 2002 even if it had no financial or personal interest in the outcome, and the propriety of a private prosecutor procuring assistance from the police in return for a "donation" to police funds. 

The Court acknowledged that "there was an urgent need for consideration of the circumstances in which the police should assist in confiscation proceedings brought by private prosecutors."

Kennedy Talbot for the DPP. Download the judgment here

Following conviction of the appellant (Z) in a private prosecution by the respondent media company (V), the court was required to determine important issues concerning the operation of private prosecutions.

V had lost around £380 million when Z and others sold equipment and software enabling customers to obtain V's media services without payment. V decided not to take civil proceedings, but to bring a private prosecution. It enlisted the help of the police, who applied for arrest warrants on V's behalf. V then entered into an agreement with the police, agreeing to donate to police funds 25 per cent of any sums recovered under a compensation order. It also began confiscation proceedings under the Proceeds of Crime Act 2002 s.130.

Z sought to stay both sets of proceedings on the basis that the pursuit of compensation and confiscation by a private prosecutor was permitted neither by legislation nor by established authority, and that it was an abuse of process. V abandoned its claim for compensation because it accepted that there were problems with quantification. It pursued the confiscation proceedings, which stood to benefit only the Crown. The issues were (i) whether a private prosecutor was entitled to bring confiscation proceedings under the Act, even if it had no financial or personal interest in the outcome; (ii) the propriety of the agreement with the police. 

Appeal dismissed:

  1. The right to bring a private prosecution was preserved in wide terms by the Prosecution of Offences Act 1985 s.6. Sentencing was part of "criminal proceedings" referred to in s.6; it followed that confiscation proceedings were also part of "criminal proceedings". Charitable or public interest bodies regularly engaged in private prosecutions and the right to pursue confiscation proceedings had never been challenged, R. (on the application of Gujra) v Crown Prosecution Service [2012] UKSC 52, [2013] 1 A.C. 484, Jones v Whalley [2006] UKHL 41, [2007] 1 A.C. 63 and R. v Rollins (Neil) [2010] UKSC 39, [2010] 1 W.L.R. 1922 considered.

    The question was whether the 2002 Act specifically provided for such proceedings to be instituted solely by a state prosecutor. The words used in s.6 of the 2002 Act, together with the content of s.40(9)(b) were clear that a prosecutor was to be read in a wide sense as meaning any person permitted to prosecute. It therefore included private prosecutors.

    Although s.40(9) derived from a drug trafficking context, there was no need to construe it as not being of general application. The fact that there was no reference to private prosecutors in s.72(9) of the 2002 Act did not mean that Parliament had intended to exclude them.

    Clearly there was an omission from the statutory scheme for compensation in the event of a serious default by private prosecutors, but to deem them excluded from the plain meaning of "prosecutor" simply by the failure of statute to provide a remedy in the Crown Court would be an impermissible inference.

    It did not matter that private prosecutors could not conduct financial investigations into a defendant's circumstances and supply the statement of information required by s.16. The 2002 Act distinguished between those who could investigate and those who could prosecute.

    The fact that prosecutors could not investigate did not impair their ability to fully participate in confiscation proceedings provided that an appropriate officer, as defined in s.378(1), assisted by exercising the investigatory powers (see paras 12-32 of judgment). There was no decisive support for V's proposition that a private prosecutor bringing confiscation proceedings acted in the name of the Crown. There was great force in such a contention, but it arose as a subsidiary point and there was no need for the instant court to resolve it. Whatever a private prosecutor's status, it was the court's duty to ensure that the confiscation order was not disproportionate, R. v Waya (Terry) [2012] UKSC 51, [2013] 1 A.C. 294 followed (paras 33-36). 

  2. V had entered into the agreement with the police because the confiscation proceedings could not proceed without an appropriate officer. The "donation" was to be accepted under the Police Act 1996 s.93(1) so as to give effect to the court's views in R. v Hounsham (Robin Edward) [2005] EWCA Crim 1366, Times, June 16, 2005. As the confiscation proceedings were for the sole benefit of the state, it could not be said that the agreement between V and the police was an abuse of process, but it did run some of the risks identified in Hounsham because it provided an incentive for the police to devote resources to assisting V in its claim for compensation and gave rise to a perception of compromised police independence.

    It was not appropriate for the court to comment upon the circumstances in which the police should assist in confiscation proceedings brought by private prosecutors. Such issues were for careful and very urgent consideration by the Association of Chief Police Officers, the Association of Police and Crime Commissioners, and the Home Office in the light of the observations in Hounsham and the changed financial circumstances in which the police currently operated.

  3. The court commented on the reasons for, and implications of, the pattern of increases in the number of private prosecutions including cases presenting a conflict of interests from the interrelationship between the public interest and the benefit to the private prosecutor (paras 55-63).