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Court should have been notified that prosecution to be conducted by private entity

In Zinga and Pillai [2012] EWCA 2357 the Court of Appeal was asked to examine the lawfulness of a search warrant obtained by police in a case that would be privately prosecuted by Virgin Media and its impact on the fairness of the subsequent prosecution. Whilst the police had made the application for the warrant, they had not informed the Magistrates that the case would be privately prosecuted. Rafferty LJ, giving the judgment of the Court, said: we do not understand why it was felt acceptable, during an ex parte application with its duty of full disclosure, to keep from the bench that a private prosecution was expected. We would wish to emphasise that the obligation on an applicant for a warrant is the same as that imposed on any person making a without notice application to a court, namely one of full and frank disclosure¦The Bench, once informed, might have probed the reason for the CPs not bringing the case. It might have taken an interest in why the CPs thought it appropriate to lend assistance to a large commercial entity in this fashion at this stage.  However, as the Appellant had failed to show that the application would not have been successful had full and frank disclosure been made the appeal was dismissed.


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