Police right to hand over seized hardware, says judge

The police were acting within the law when they handed evidence to a private company after the CPS declined to pursue a public prosecution, a judge has ruled
Written by Tom Espiner, Contributor

Solicitors are seeking to go to the Supreme Court, after an appeal court ruling that the police were acting within the law when they handed hardware and financial records to a private copyright-enforcement company.

A judge found that Northumbria police were right to hand the equipment to The Federation Against Copyright Theft, a private industry coalition, even after the Crown Prosecution Service had declined to pursue a public prosecution, legal site Out-Law reported on Monday.

Following a raid by police and the Federation Against Copyright Theft (Fact) on Scopelight, which operates the SurfTheChannel.com video site, in 2008, the Crown Prosecution Service (CPS) declined to prosecute the company.

However, Fact wrote to the police requesting the seized articles, saying it was considering a private prosecution. The police then sent equipment including servers, financial records and mobile phones to Fact late in 2008. Fact still holds the equipment, and was recently granted permission by a court to forensically test the hardware.

In the meantime, the owners of the property, Anton and Kelly-Anne Vickerman, have been seeking the return of their servers and financial records, plus damages. On 22 January, 2009, Scopelight and the Vickermans launched their case against Fact and Northumbria police.

In April a court found that Fact should return the property to its owners. However, Fact and the police appealed the decision.

The Court of Appeals handed down its judgement two weeks ago, saying the police were right in law to hand the property to Fast.

"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," said Lord Justice Leveson in his judgement. "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."

Leveson added that given the burden on public prosecutors, the police should be able to hand evidence to private companies if the case is in the public interest.

"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 Leveson.

Leveson added that there were safeguards in law to guard against "vexatious claims", which are claims designed to obstruct a person or organisation.

The Vickermans' solicitor, Nick Brett of Lewis Nedas, told ZDNet UK on Tuesday that the Vickermans would petition the Supreme Court to appeal by December.

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