Police in copyright case can retain evidence and pass to trade body, says Court of Appeal

The Court of Appeal has ruled that the police were entitled to refuse to return company property and pass it on to a trade body for a private prosecution even though they were dropping the case.

Evidence gathered in an investigation into whether Scopelight's online video search business infringed copyright was passed on to video industry trade body FACT. When the Crown Prosecution Service (CPS) decided not to press ahead with a criminal prosecution Scopelight was unable to retrieve the computers, disks and other media that had been taken in a police raid.

Some of the material was already in the hands of the Federation Against Copyright Theft (FACT) and a contractor hired by it to analyse the media. Other material was in the hands of the Northumbria Police, which refused to return it once FACT said that it required the evidence for a private prosecution.

The High Court ruled earlier this year that, under the Police And Criminal Evidence (PACE) Act, the police had no right to keep the material. The Court of Appeal has overturned that ruling, saying that the police's behaviour did not break the law.

When Scopelight's premises were raided FACT staff and staff from a contractor hired by them accompanied the police. When the police told Anton and Kelly-Ann Vickerman, the couple behind Scopelight, that the CPS would not be prosecuting, they asked for their possessions back.

The police initially said that they could be returned, but FACT wrote to the police asking for all evidence to be sent to them to aid in the private prosecution they had decided to bring. All the material was sent to FACT.

Lord Justice Leveson said in his ruling that a previous case which said that police-gathered evidence should not be used for private purposes did not necessarily back Scopelight's case.

"I accept and am bound by the ratio of the case that the powers to seize and retain cannot be used to make information available to private individuals for their private purposes. What the case does not address, however, is the use of information by private individuals (placing every private prosecutor into that category for these purposes) for public purposes, not to recover damages, but in order that the state might determine whether a criminal offence had been committed," he said.

"If it is in the public interest that other bodies should be able to investigate and prosecute because of the strain that the CPS would otherwise face, it is equally difficult to see why such a prosecutor should not be able to use material seized by the police whether while investigating the offence to which the material is relevant or some other offence," said the judge. "In my judgment, there is no basis either in the statutory framework, the authorities or policy to justify the proposition that a decision by the CPS not to prosecute conclusively determines that a prosecution is not in the public interest."

Lord Justice Leveson said that there were basic safeguards in place to ensure that such police-gathered evidence was not abused.

"If the power to prosecute is being used in bad faith, or inappropriately with the true aim of preventing Scopelight or the Vickermans from pursuing a legitimate commercial venture, as I have indicated, there are various mechanisms available to the court to prevent an abuse of its process," he said.

The Court's ruling said that police should assess each case and decide whether evidence can be retained and passed to a private prosecutor.

"As soon as it heard that the CPS did not intend to mount a prosecution, FACT made clear to the police that advice would be sought on a private prosecution which has since been mounted and the police then had the power to determine whether it was necessary in all the circumstances that the property seized should be retained for forensic examination or for investigation in connection with an offence or for use as evidence at a trial for an offence. Such a decision is for the police," said the ruling.

Nick Brett of Lewis Nedas, the firm of solicitors acting for Scopelight, told OUT-LAW.COM that it would seek permission from the Supreme Court to appeal the decision.