CA warning to private prosecutors

In Virgin Media Ltd v Zinga [2014] EWCA 52 the Court of Appeal was faced with a fascinating conundrum. As has become increasingly common amongst media companies in particular, Virgin had brought a private prosecution against the Appellant who had been selling set top boxes with software to enable premium services. The Appellant was convicted of conspiracy to defraud. Virgin, which had entered into an agreement with the Metropolitan Police, to make a cash donation of 25%, recovered through compensation applied for both a compensation order and to commence confiscation proceedings under POCA 2002. It later abandoned its compensation claim but obtained (ostensibly in the name of the Crown) a confiscation order in the sum of £8.77 million with a ten year default sentence attached. The principal ground of appeal was founded on the definition of the word "prosecutor" within the Proceeds of Crime Act 2002. The Court of Appeal held that the definition included a private prosecutor though it refused to endorse the contention on behalf of Virgin that it was acting in the name of the Crown. It explored some interesting issues along the way but most significant were the general observations made by the Lord Chief Justice that the reduction of public funds would inevitably lead to an increase in private prosecutions. Having stated firstly that ACPO must give urgent consideration to what is acceptable in terms of the relationship between the police and commercial enterprises, the Court went on to explore the dichotomy between private prosecutors filling a void brought on by spending cuts and the fact that the state is entitled to pay them costs in compensation. The use of prosecutions in place of civil proceedings in this way was a matter for the executive it said. The court went on to say that "there is no place in such a prosecution for what some have claimed as 'end to end' case management on behalf of the client who has initiated a private prosecution". The Judgment concluded by emphasising the duty of the Court imposed by the decision in Waya and called on the DPP to assist in appropriate cases.