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Private Prosecutions: Media Protection services Ltd v Crawford – a case analysis

The Divisional Court, in dismissing MPss appeal by way of case stated (Media Protection services Ltd v Crawford [2012] EWHC 2373(Admin)), decided MPs had acted unlawfully in bringing a private prosecution for reward against the Crawfords in respect of alleged infringement of copyright in a television broadcast of a football match and the district judge had been right to find the proceedings void.  Nick Brett considers the ramifications of the judgment.

Does this judgment clarify the law on bringing private prosecutions?

The residual right to bring a private prosecution preserved by Prosecution of Offences Act 1985, s 6(1) has been brought back to life in recent years by media companies and copyright protection organisations as part of the war on internet freedom/piracy.  While the reasoning in MPs v Crawford is that the laying of an information amounts to a reserved legal activity and thus can only be undertaken for gain by a solicitor or barrister, perhaps the most interesting aspect of the judgment is the commentary by Lord Justice Burnton on the residual power to bring private prosecutions at all: ˜the right to bring a private prosecution was once considered to be a valuable constitutional safeguard. That is however now an outdated view.  Lord Justice Burnton cites with approval the statement of Lord Bingham in Jones v Whalley[2006] UKHL 41, [2006] 4 All ER 113: ˜A crime is an offence against a 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. It is worthy of note, for example, that Anton Vickerman was recently sentenced to four years imprisonment following a private prosecution for his involvement in the surfTheChannel website.

What are the implications for lawyers?

The implications of the judgment will be most keenly felt among the rights protection agencies and media companies and their representatives. Plainly, the laying of an information will have to be undertaken by either solicitor or counsel in future (unless the private prosecution is being brought by an individual for his or her own benefit). It is slightly less clear whether the effect of the judgment extends to organisations laying an information on behalf of its members or itself.  However, those representing such organisations should be wary. It would be beneficial to note the tide appears to be turning against private prosecutions of this nature (see, for example, Murphy v Media Protection services Ltd[2012] EWHC 529, [2012] All ER (D) 70 (Mar)) and justices may be more inclined to refuse to issue summonses upon the laying of informations by private companies.

Do you expect to see further legal action on the issue in light of this?

There are appeals against convictions for serious offences in cases brought by private prosecutors in the pipeline and it will be interesting to gauge whether the opinion of Lord Justice Burnton is shared by all of or even some of his colleagues in the Court of Appeal. The battle for control of the internet, in particular, is fiercely contested and those wishing to restrict its freedom have substantial resources which they are willing to use in civil and criminal litigation.

Are there any patterns emerging in the law in this area?

The pattern emerging is perhaps recognition in the appellate courts that the use of private prosecutions by unregulated private media companies is a matter of concern. The duty of a prosecutor to act fairly and independently has the potential to become undermined. significantly, in this regard, Burnton LJ had this to say at para 26: ˜I do not think that the regulatory objectives set out in s 1 of the [Legal services Act 2007], and the duties owed to the Court and to the defendant by prosecutors, including the duty of disclosure, favour recognition of the right of unqualified and unregulated persons acting for reward to institute and to conduct private prosecutions.

Nick Brett was interviewed by Nicola Laver.  This article originally appeared on Lexis Nexis.


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Articles are intended as an introduction to the topic and do not constitute legal advice.