Zinga & Pillai is a recent Court of Appeal decision following a successful private prosecution brought by Virgin Media Limited. Virgin prosecuted individuals for the offence of conspiracy to defraud in relation to the illegal use of set top boxes, which allowed users to watch programmes offered by Virgin on subscription channels without payment of Virgin’s fees. In October 2012, one of the two convicted appellants (Munaf Ahmed Zinga) argued that the warrants granted by the Magistrates Court were unlawful because at point of application by the constable for the warrants, that police officer did not disclose to the Magistrate that evidence gathered at search would be likely to be used in a private, rather than public, prosecution brought by Virgin.
The Court of Appeal acknowledged that a constable making an application for a warrant has a duty of full disclosure of relevant matters although it was equally apparent that Criminal Evidence Act 1984 s.8, s.15 and s.16 did not require any potential prosecutor be identified. The court emphasised the need for full and frank disclosure when making a “without notice” application. It was considered that if the Magistrate had been told the prosecution was likely to be private, the Magistrate may have
probed the Police to learn the reason that the CPS were not prosecuting.
The Court of Appeal considered that the Magistrate may have taken an interest in why the Metropolitan Police Service thought it appropriate to lend assistance to a large, commercial entity
in this fashion and at that stage.
The Court of Appeal decided that although the police should have informed the Magistrates’ Court of the likelihood of a private prosecution by a private company when applying for arrest and search warrants, the appellant had not demonstrated that the Magistrate would have refused the applications if he/she had known of the intention to privately prosecute the matter.
Ultimately, it was held that the search warrants should not be quashed, because it had not been shown by the appellant that the warrants would not have been granted if full disclosure had been made.”
