Costs of private prosecution should be assessed under civil costs regime

The recent trend whereby media corporations seek to further their commercial disputes in the criminal courts by exercising the right to bring a private prosecution could now be checked in light of the recent decision in Karen Murphy v Media Protection services Ltd [2012] EWHC 529. Karen Murphy, lest it be forgotten, was the pub landlady who had been using a Greek TV decoder to show Premier League matches rather than subscribing to sky. Media Protection services Ltd describes itself as a ˜non-statutory investigation and prosecution body whose objectives are to seccombat counterfeiting and infringement of intellectual property rights. In effect, therefore it is a private limited company which, inter alia, acts as a prosecuting body on behalf of clients. It is not authorised by the state to prosecute but is able to do so because of the residual anomaly that exists through section 6(1) of the Prosecution of Offences Act 1985. Rather than seek remedy through the civil courts, where costs follow the event, MPs Ltd obtained summonses for Ms Murphy to answer criminal allegations under section 297(1) Copyright Designs and Patents Act 1988. In the Magistrates Court, Ms Murphy was convicted. she appealed to the Crown Court by way of re-hearing and she lost again. she asked the Crown Court to state a case to the High Court and lost again before the matter was referred to the ECJ where she won. Her convictions were ultimately set aside and she contended that MPs Ltd ought to pay her costs pursuant to the civil, rather than the criminal, costs regime. The essential difference is that under the former costs were payable by MPs Ltd and under the latter costs were payable by the taxpayer. Lord Justice stanley Burnton stated: the reality is that these proceedings were part of a broader campaign to protect a private interest of the FAPL. Of course, private prosecutors may prosecute cases that affect their private interest. shoplifting prosecutions are an obvious example. But those cases involve general dishonesty rather than the question whether the defendant genuinely relied on a solicitors legal advice. Indeed, the finding of the Crown Court that the appellant ˜hid behind the legal advice as a convenient shield behind which to hide her dishonesty is questionably adequate. The factual findings made by District Judge sanders in the judgment to which we have referred fortify us in this conclusion, in particular his finding that FAPL retain overall control of the prosecutions brought by MPs and that FAPL has given MPs an indemnity against any award of damages and any order of costs made against it. It is finally difficult to believe that a public prosecutor, concerned that a defendant should not be wrongly convicted, would have resisted the application for a reference to the Court of Justice. so corporate private prosecutors should beware that they no longer have the protection formally provided through the criminal costs regime.