The 1709 Blog could easily have missed the ruling of Mr Justice Sharp in Scopelight Ltd and others v Chief Constable of Northumbria and the Federation Against Copyright Theft  EWHC 958 (QB) in the Queen’s Bench Division (High Court, England and Wales) a couple of months ago, were it not for the fact that I spotted it in the newly-published issue 4/2009 of the European Copyright and Design Reports (Sweet & Maxwell, 6 times a year). In short, this was a ruling that the police had no power to retain property under the Police and Criminal Evidence Act 1984 s.22 against the wishes of the person otherwise entitled to possession of it, once a decision not to prosecute has been taken, in order that a private body (in this case FACT) could consider whether to bring a prosecution, or indeed while that private prosecution was being brought.
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On Tuesday 21st April Kieron Sharp, Director General FACT (Federation Against Copyright Theft) visited St John’s Chambers to meet Adrian Maxwell of the Regulatory Enforcement and Crime Team and Andrew Manners of Hugh James Solicitors (Cardiff) to discuss a model to handle FACT private prosecutions in the South West and Wales.
Under discussion was the role of the police and CPS in private prosecutions, parallel civil proceedings and the impact of Scopelight Ltd & Ors v Chief of Police for Northumbria & Ors 2009 in relation to the powers of FACT to seize and retain material for a criminal prosecution.
Cases on privacy, police retention of evidence, powers of search and release of information to a third partyJuly 15, 2009
Cases on privacy, police retention of evidence, powers of search and release of information to a third party
In the matter of Scopelight Limited & Others v Chief Constable of Northumbria and Another  EWHC 958 (QB), the police obtained a search warrant to enter the claimants’ premises, which they did, accompanied by the second defendant, a private commercial party interested in the outcome of the search.
During the search a number of items were seized. The Crown Prosecution Service subsequently decided that no criminal proceedings would be taken against the claimants. However, the second defendant decided that they would bring a private prosecution against the claimants, and, with the police, sought to retain the items for that purpose. The court held that there was no power to do so, and that the claimant’s property should be returned.
In so doing it did not rule out the possibility of the situation being different were the prosecuting body a public authority, although one would expect that this could only be done in accordance with the law.
Notably, S.8(2) PACE only authorises the power of retention to the police. It is common for the police to act with other agencies and clearly if in so doing they pass on evidence to other agencies without a legal basis they are not only interfering with other’s rights, but are providing grounds for an abuse of process argument.
In both the W and the Scopelight decisions the court relied on authorities which predated the Human Rights Act, and neither engage with the issue of Art.8 or the DPA. This is disappointing given the court’s duty to consider human rights issues in making a decision.
As it would be likely to be the claimant relying on the Art.8, this is perhaps irrelevant given that the judgments went in the claimant’s favour in any event, however in both cases the decision turned very much on the facts.
When we browsed this site, it made unauthorized changes to our test PC. http://www.siteadvisor.com/sites/surfthechannel.com
64 exploit(s), 14 trojan(s), 7 worm(s) but still the site is ‘not currently listed as suspicious.’