Media Protection Services Ltd v Crawford & Anor [2012] EWHC 2373 (Admin)

[2012] EWHC 2373 (Admin)Case No CO/12474/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/08/2012
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE KENNETH PARKER
Between
MEDIA PROTECTION SERVICES LTDAppellant(1) ANDREW CRAWFORDRespondents(2) CHRISTINE CRAWFORDRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Patricia Robertson QC and Miles Bennett (instructed by Russell-Cooke LLP) for AppellantsAndrew Bodnar (instructed by Molesworths Bright Clegg) for RespondentsHearing Hearing date: 10 July 2012
Judgment

Introduction

[1]This is an appeal by way of case stated by Media Protection Services Ltd against the order of District Judge (Magistrates’ Court) Sanders, sitting at Chester Magistrates’ Court, on 25 October 2011, dismissing the information that had been laid against the Respondents alleging that they had dishonestly received a programme included in a broadcasting service from a place in the United Kingdom, namely the Barclays Premier League football match between Liverpool and Chelsea Football Clubs with intent to avoid the payment of any charge applicable to the reception of that programme, contrary to section 297(1) of the Copyright Designs and Patents Act 1988.

The relevant facts

[2]The Respondents are licensees of the Railway Inn Public House in Helsby, Frodsham, Cheshire. They faced a private prosecution brought by the Appellant on behalf of the Football Association Premier League Ltd (“FAPL”).[3]This case resembles that considered by this Court in Murphy v Media Protection Services Ltd [2012] EWHC 466 (Admin). That case concerned a publican who showed in her public house a broadcast of a Premier League match that she received from a Greek satellite broadcaster. Her conviction, for the same offence as that charged against the present Respondents, was quashed because the geographical restriction sought to be enforced by the prosecutor was incompatible with European Union law. The present case differs from Murphy because the Respondents received the broadcast that they showed in their public house from an Albanian satellite, and Albania is not a member of the European Union.[4]The relevant facts are set out in the District Judge’s clear and careful judgment. “4. It is agreed that MPS was at all material times a private limited company trading for profit and, as part of its company business, was retained by the Football Association Premier League Limited (‘FAPL’) to investigate and prosecute infringements of the FAPL’s intellectual property rights in relation to broadcasts of Premiership Football matches. MPS was remunerated by FAPL for those services. 5. MPS is not a public body and does not act under any statutory powers. In its company accounts dated 12 July 2010 it stated:
“The principal activity of the company continues to be that of providing legal services in relation to Copyright theft” 6. At all material times MPS’ company website stated that: “Media Protection Services is a non-statutory investigative and prosecution body… we are the prosecution body for the Premier League Limited (sic) in matter relating to infringement of broadcasting rights involving the illegal use of imported decoder cards.” 7. At the relevant time, FAPL asserted that they owned the intellectual property rights to Premiership Football Matches being played in England and Wales. They entered into an agreement with BSkyB so that those football matches could only be shown live in the UK via the Sky broadcasting platform. As part of that commercial agreement with BSkyB, FAPL were required to ‘take action’ to prevent those football matches being shown by means other than through Sky so as to protect BSkyB’s considerable investment ‘Taking action’ in this context meant taking legal action. 8. In order to discharge their contractual duty to BSkyB, and from approximately 2005 onwards, FAPL contracted with MPS to provide them with an ‘investigation and prosecution service’ for such criminal offences. Under this contractual relationship, MPS conducted investigations into public houses showing live Premiership football using foreign satellite services. Having gathered evidence, Mr Hoskin would lay an information on behalf of MPS leading to a summons being issued and served on the defendants. 9. The allegation against the Defendants is that they dishonestly paid for a service provided though a different provider (in this case by ‘Tring’, an Albanian satellite broadcaster) in order to avoid paying the much higher charges to Sky, it being the prosecution case that this is an offence under Section 297(1) Copyright Designs and Patents Act 1988. 10. Proceedings in both cases before me were started by summons following the laying of an information before the Vale Royal Magistrates’ Court on 8 February 2011 by Mr Raymond Hoskin who describes himself as the ‘Prosecutions Director of Media Protection Services Ltd’. Both informations were in similar terms and introduce the facts as follows: Media Protection Services Ltd are (sic) retained by the Premier League Ltd to investigate and prosecute criminal breaches of their copyright and that of their licensee, BSkyB.” 11. All parties agree that this information is factually wrong. Premier League Ltd is an entirely different company to FAPL, being registered in Scotland, and having nothing whatsoever to do with these proceedings. 12. Mr Hoskin was acting on behalf of MPS in laying the information. MPS, in turn, was acting pursuant to its retainer with, and on behalf of, FAPL. 13. Following receipt of the information, and the draft summons which was also prepared by MPS, the summons was issued by the court on 9 February 2011 and returned to MPS for service. The summons was served by MPS with a return date at Vale Royal Magistrates’ Court of 4 April 2011, and the defendants subsequently appeared in court to answer that summons. 14. At that hearing, and thereafter, Russell Cooke solicitors appeared on behalf of MPS and instructed Counsel where appropriate. All legal work undertaken by Russell Cooke for MPS was invoiced to MPS, but thereafter all payments by MPS to Russell Cooke were reimbursed by FAPL. FAPL retained a contractual right to instruct MPS to challenge any such invoice. In addition, FAPL directed MPS to use specific barristers’ chambers for prosecution work and jointly sought to agree fixed fees for work undertaken. 15. FAPL provided an indemnity to MPS “against all damages and/or legal costs which (MPS) are ordered by a court of competent jurisdiction to pay to any third party, together with any reasonable legal costs incurred in defending any claim”
.

The legal issues

[5]The issue was raised before the DJ whether Mr Hoskin acted unlawfully in preferring the informations against the Respondents, in that in so doing he carried out a reserved legal activity within the meaning of the Legal Services Act 2007 when he (and the Appellant) were not authorised nor exempt in relation to that activity. The DJ held that he had acted unlawfully, and that as a result the criminal proceedings had to be dismissed. He stated the following questions for the High Court:(1) For the purposes of Paragraph 4(1) of Schedule 2 to the Legal Services Act 2007, was I right in concluding that the laying of the information by Mr Hoskin on 8 February 2010 amounted to either:a. The issuing of proceedings before any Court in England and Wales;b. The commencement….. of such proceedings; orc. The performance of any ancillary functions in relation to such proceedings and that (subject to paragraph 5(2) below) this was therefore the “conduct of litigation” in accordance with that Schedule, and a ‘reserved legal activity’ within the meaning of Section 12 of the said Act?(2) If the answer to this question is ‘yes’ and where an unregulated prosecutor seeks to conduct litigation not on their own behalf but on behalf of a third party for reward, was I right to conclude that [Paragraph] 4(2) of Schedule 2 to the Legal Services Act 2007 does not alter this conclusion and that the laying of an information remains the ‘conduct of litigation’ within the meaning of the said Act?(3) If the answer to this question is also ‘yes’, was I also right to conclude that, where there was such a breach of the Legal Services Act 2007 when proceedings were commenced, the proceedings are to be considered void ab initio and therefore dismissed? a. The issuing of proceedings before any Court in England and Wales; b. The commencement….. of such proceedings; or c. The performance of any ancillary functions in relation to such proceedings

The legislative framework

[6]So far as relevant, sections 13 and 14 of the 2007 Act are as follows: 13 Entitlement to carry on a reserved legal activity(1) The question whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of this Act.(2) A person is entitled to carry on an activity (“the relevant activity”) which is a reserved legal activity where– (a) the person is an authorised person in relation to the relevant activity, or (b) the person is an exempt person in relation to that activity.(3) Subsection (2) is subject to section 23 (transitional protection for non-commercial bodies).(4) … Offences 14 Offence to carry on a reserved legal activity if not entitled (1) It is an offence for a person to carry on an activity (“the relevant activity”) which is a reserved legal activity unless that person is entitled to carry on the relevant activity. (2) In proceedings for an offence under subsection (1), it is a defence for the accused to show that the accused did not know, and could not reasonably have been expected to know, that the offence was being committed. (3) A person who is guilty of an offence under subsection (1) is liable– (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both). (4) A person who is guilty of an offence under subsection (1) by reason of an act done in the purported exercise of a right of audience, or a right to conduct litigation, in relation to any proceedings or contemplated proceedings is also guilty of contempt of the court concerned and may be punished accordingly.(5) … (a) the person is an authorised person in relation to the relevant activity, or (b) the person is an exempt person in relation to that activity. Offences (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).

Offences

[7]“Reserved legal activity” and “legal activity” are defined in section 12: Meaning of “reserved legal activity” and “legal activity”(1) In this Act “reserved legal activity” means– (a) the exercise of a right of audience; (b) the conduct of litigation; (c) reserved instrument activities; (d) probate activities; (e) notarial activities; (f) the administration of oaths.(2) Schedule 2 makes provision about what constitutes each of those activities.(3) In this Act “legal activity” means– (a) an activity which is a reserved legal activity within the meaning of this Act as originally enacted, and (b) any other activity which consists of one or both of the following– (i) the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes; (ii) the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes.(4) But “legal activity” does not include any activity of a judicial or quasi-judicial nature (including acting as a mediator).(5) For the purposes of subsection (3) “legal dispute” includes a dispute as to any matter of fact the resolution of which is relevant to determining the nature of any person’s legal rights or liabilities.(6) … Meaning of “reserved legal activity” and “legal activity” (a) the exercise of a right of audience; (b) the conduct of litigation; (c) reserved instrument activities; (d) probate activities; (e) notarial activities; (f) the administration of oaths. (a) an activity which is a reserved legal activity within the meaning of this Act as originally enacted, and (b) any other activity which consists of one or both of the following– (i) the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes; (ii) the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes.

Meaning of “reserved legal activity” and “legal activity”

[8]Schedule 2 to the 2007 Act includes the following provisions: Rights of audience 3(1) A “right of audience” means the right to appear before and address a court, including the right to call and examine witnesses. (2) But a “right of audience” does not include a right to appear before or address a court, or to call or examine witnesses, in relation to any particular court or in relation to particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to exercise that right. Conduct of litigation 4(1) The “conduct of litigation” means–(a) the issuing of proceedings before any court in England and Wales,(b) the commencement, prosecution and defence of such proceedings, and(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions). (2) But the “conduct of litigation” does not include any activity within paragraphs (a) to (c) of sub-paragraph (1), in relation to any particular court or in relation to any particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to carry on that activity. Rights of audience Conduct of litigation (a) the issuing of proceedings before any court in England and Wales, (b) the commencement, prosecution and defence of such proceedings, and (c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

Conduct of litigation

[9]It was accepted before the District Judge, and before us, that neither Mr Hoskin nor the Appellant is an authorised or an exempt person within the meaning of the 2007 Act. In this connection, it may be relevant that paragraph 2 of Schedule 3 to the Act provides: Conduct of litigation 2(1)This paragraph applies to determine whether a person is an exempt person for the purpose of carrying on any activity which constitutes the conduct of litigation in relation to any proceedings …. (2) The person is exempt if the person–(a) is not an authorised person in relation to that activity, but(b) has a right to conduct litigation granted by a court in relation to those proceedings. (3) The person is exempt if the person– (a) is not an authorised person in relation to that activity, but (b) has a right to conduct litigation in relation to those proceedings granted by or under any enactment. (4) The person is exempt if the person– (a) is a party to those proceedings, and (b) would have a right to conduct the litigation, in the person´s capacity as such a party, if this Act had not been passed. (5) The person is an exempt person in relation to any activity which is carried on in or in connection with proceedings on an appeal from the Comptroller-General of Patents, Designs and Trade Marks to the Patents Court under the Patents Act 1977 (c. 37), if the person is a solicitor of the Court of Judicature of Northern Ireland. As indicated above, the Appellant does not suggest that any of these paragraphs apply to it. Conduct of litigation (a) is not an authorised person in relation to that activity, but (b) has a right to conduct litigation granted by a court in relation to those proceedings. (a) is not an authorised person in relation to that activity, but (b) has a right to conduct litigation in relation to those proceedings granted by or under any enactment. (a) is a party to those proceedings, and (b) would have a right to conduct the litigation, in the person´s capacity as such a party, if this Act had not been passed.

Conduct of litigation

[10]Section 20 of the Solicitor’s Act 1974 (in the form in which it stood prior to amendment by the 2007 Act) provided as follows: 20. Unqualified person not to act as solicitor.(1) No unqualified person shall - (a) act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction; or (b) act as a solicitor in any cause or matter, civil or criminal, to be heard or determined before any justice or justices or any commissioners of Her Majesty's revenue. [...](2) Any person who contravenes the provisions of subsection (1)— (a) shall be guilty of an offence and liable on conviction on indictment to imprisonment for not more than two years or to a fine or to both; and (b) shall be guilty of contempt of the court in which the action, suit, cause, matter or proceeding in relation to which he so acts is brought or taken and may be punished accordingly; (a) act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction; or (b) act as a solicitor in any cause or matter, civil or criminal, to be heard or determined before any justice or justices or any commissioners of Her Majesty's revenue. (a) shall be guilty of an offence and liable on conviction on indictment to imprisonment for not more than two years or to a fine or to both; and (b) shall be guilty of contempt of the court in which the action, suit, cause, matter or proceeding in relation to which he so acts is brought or taken and may be punished accordingly;[11]It is common ground that neither Mr Hoskin nor MPS was an authorised or exempt person within the meaning of section 13. They were therefore not entitled to carry on a reserved legal activity. Accordingly, the first question to be addressed is whether the preferment of an information is the commencement of proceedings (within the meaning of paragraph 4(1) to Schedule 2 to the 2007 Act) in the magistrates’ court. If it is, the second question is whether, before the 2007 Act came into force, “in relation to any particular court or in relation to any particular proceedings … no restriction was placed on the persons entitled to carry on that activity”, “that activity being the laying of an information. If there was no such restriction, the activity of laying an information is taken outside the scope of reserved legal activities.[12]For MPS, Ms Robertson QC submitted that proceedings such as those in the present case were commenced by the issue of a summons. She relied on the fact that the laying of an information does not automatically result in the issue of a summons. It does so only if a magistrate, having considered the information, decides that it is appropriate to do so. The issue of a summons in a criminal case in the magistrates’ court therefore involves the exercise of a judicial function.[13]I cannot accept this submission. The applicable legislative provisions as well as a decision of the House of Lords make it clear that the laying of an information is the commencement of proceedings in the magistrates’ court. What is tried by the magistrates is not the summons, or the description of an offence in a summons, but the information itself. See, for example, section 9 of the Magistrates’ Courts Act 1980 (the MCA), which so far as relevant provides:(1) On the summary trial of an information, the court shall, if the accused appears, state to him the substance of the information and ask him whether he pleads guilty or not guilty.(2) The court, after hearing the evidence and the parties, shall convict the accused or dismiss the information. …[14]The issue of a summons may be the common means of securing the attendance of a defendant, but it is not the only way. He may be brought before the court by the issue of a warrant for his arrest: see section 1 of the MCA: (1) On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justice may issue— (a) a summons directed to that person requiring him to appear before a magistrates' court to answer the information, or (b) a warrant to arrest that person and bring him before a magistrates' court. In general, however, an arrest warrant may not be issued in relation to an offence that is punishable only by a financial penalty: section 1(4). (a) a summons directed to that person requiring him to appear before a magistrates' court to answer the information, or (b) a warrant to arrest that person and bring him before a magistrates' court.[15]Section 127(1) is also relevant: (1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.[16]Since it is the laying of an information that stops time running and permits the magistrates’ court to try the information, it is difficult to conclude that the information does not amount to the commencement of the proceedings.[17]The question is put beyond argument by the decision of the House of Lords in R v. Manchester Stipendiary Magistrate, ex parte Hill [1983] 1 AC 328. That case concerned the question whether section 127 was satisfied where the information was laid within 6 months from the date of the alleged offence but was not considered by a magistrate, and no summons was issued, until after the expiration of the time limit. Lord Roskill said, at 342, in a speech with which all of the other Lords of Appeal agreed: My Lords, perusal of these and other sections which I have not thought it necessary to set out, make two matters abundantly clear. First, in the criminal jurisdiction, what magistrates’ courts have jurisdiction to try summarily is an information, and what is required to give them that jurisdiction is that an information has been laid before them. … Their jurisdiction in criminal cases does not depend on a summons or a warrant being issued and their civil jurisdiction does not depend upon a summons being issued. As to the former, as was pointed out in argument, where a defendant is brought before a magistrates’ court next morning, there is neither a summons nor a warrant. He is charged. The information is thus laid before the magistrates’ court at the latest when the charge is read in open court, and in practice, often earlier when, no doubt, the clerk to the justices, or his or her subordinate, is informed by the police of the charge which it is proposed to bring against the defendant later that morning. … My Lords, it is of crucial importance to appreciate that the laying of an information is a matter for the prosecution just as the making of a complaint is a matter for the complainant. In each case it is for the prosecutor or the complainant to decide how the information or how the complaint shall be formulated. I agree with the Divisional Court in the present cases that the commencement of criminal proceedings lies in the hands of the prosecutor. It is, in my opinion, the prosecutor’s duty, if he wishes to prosecute, to prepare and lay the information before the magistrates’ court, which means a justice of the peace or the clerk to the justices. … Accordingly, once the information has been received at the office of the clerk to the justices, which today in most cases is likely to be at the magistrates’ court house, the information will, in my view, have been laid. No more is required of the prosecutor to launch the intended criminal proceedings. … At 344, Lord Roskill summarised the position: … it is the laying of an information … which is the foundation of the magistrates’ court’s jurisdiction to try an information summarily ..., and not the issue of any summons which may or may not follow the laying of an information or the making of a complaint.[18]Lord Roskill cited with approval what had been said by Hawkins J in Reg. v. Hughes (1879) 4 Q.B.D. 614: The information, which is in the nature of an indictment, of necessity precedes the process; and it is only after the information is laid, that the question as to the particular form and nature of the process can properly arise. Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place (unless under special statutory enactment). …[19]It followed that the fact that the informations that were the subject of the appeals in R v. Manchester Stipendiary Magistrate, ex parte Hill were laid within 6 months of the alleged offences in question was sufficient compliance with section 127, irrespective of when the informations were or could have been considered by a magistrate and a summons issued.[20]Lastly, I refer to section 15(2) of the Prosecution of Offences Act 1985: For the purposes of this Part [i.e. Part 1], proceedings in relation to an offence are instituted (a) where a justice of the peace issues a summons under section 1 of the Magistrates Court Act 1980, when the information for the offence is laid before him; … This definition is limited to Part 1 of the 1985 Act, but it is consistent with the provisions of the MCA to which I have referred, and which are of general application.[21]I would add that the fact that an information may not lead to the issue of a summons is no objection to my conclusion. Much the same applies to a claim form, which may not be served, or may never be served, yet it undoubtedly commences the civil proceedings in which it is issued.[22]The Appellant relies on the ruling of His Honour Judge Trevor-Jones, in the Crown Court at Wolverhampton, in R v Malin (unreported, 11 May 2011), another case in which Mr Hoskin preferred the information. The judge held that the laying of an information did not amount to the issuing of proceedings, and that the proceedings in question had been commenced by the issue of a summons. The judge did not refer to R v. Manchester Stipendiary Magistrate, ex parte Hill, which presumably was not cited to him, and his citation of section 15(2) of the Prosecution of Offences Act was truncated and misleading, omitting the crucial words “when the information for the offence is laid before him”. His ruling on this point was in my judgment wrong. So too was that of His Honour Judge James, sitting in Canterbury Crown Court, in In the matter of the Appeal of Deborah Lamb, unreported, 7 June 2011, who similarly did not refer to, and presumably was unaware of, the speeches in ex parte Hill.[23]It follows that by laying the information against the Respondent, Mr Hoskin was carrying on a reserved legal activity, unless “in relation to any particular court or in relation to any particular proceedings … no restriction was placed on the persons entitled to carry on that activity”.

Issue (2): was there a relevant restriction immediately before the appointed day?

[24]On this issue, the Appellant’s submissions would go a long way to emasculating, in relation to criminal proceedings, the regulatory regime now contained in the 2007 Act. It is pointed out that there is a long-standing right to bring a private prosecution. A prosecutor does not need to have any personal interest in the subject matter of the prosecution. It follows that prior to the 2007 Act there was no restriction on persons commencing and conducting a private prosecution, and thus such activity is not a reserved legal activity.[25]The right to bring a private prosecution was once considered to be a valuable constitutional safeguard: see the speeches in the House of Lords in Gouriet v Union of Post Office Workers [1978] AC 435. That is however now an outdated view. In Jones v Whalley [2006] UKHL 41 [2007] 1 AC 63, Lord Bingham said, at paragraph 16: A crime is an offence against the 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. In times past, with no public prosecution service and ill-organised means of enforcing the law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is no longer so. The surviving right of private prosecution is of questionable value, and can be exercised in a way damaging to the public interest.[26]Furthermore, if the Appellant’s contentions are well-founded, Mr Hoskin and MPS were entitled not merely to lay the information, but also to conduct the ensuing prosecution (albeit that in this case solicitors and counsel were instructed to conduct the proceedings subsequent to the laying of the information), though they could not exercise any right of audience. I do not think that the regulatory objectives set out in section 1 of the 2007 Act, 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.[27]In order to address the Appellant’s submissions, it is necessary to consider the applicable legislation in force immediately before the 2007 Act came into force. Section 6 of the Prosecution of Offences Act 1985, which authorised the creation of the Crown Prosecution Service, preserved the right to bring a private prosecution:(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage. However, this provision says nothing about the legal representation of the private prosecutor.[28]The Courts and Legal Services Act 1990 contained provisions, repealed by the 2007 Act, in similar terms to the later Act. Section 28 provided as follows: 28. Rights to conduct litigation.(1) The question whether a person has a right to conduct litigation, or any category of litigation, shall be determined solely in accordance with the provisions of this Part.(2) A person shall have a right to conduct litigation in relation to any proceedings only in the following cases— (a) where— (i) he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body; and (ii) that body's qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to [...] that right; (b) where paragraph (a) does not apply but he has a right to conduct litigation in relation to those proceedings granted by or under any enactment; (c) where paragraph (a) does not apply but he has a right to conduct litigation granted by that court in relation to those proceedings; (d) where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed. ... (4) Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right to conduct litigation in relation to a particular court, or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person. (a) where— (i) he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body; and (ii) that body's qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to [...] that right; (b) where paragraph (a) does not apply but he has a right to conduct litigation in relation to those proceedings granted by or under any enactment; (c) where paragraph (a) does not apply but he has a right to conduct litigation granted by that court in relation to those proceedings; (d) where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed.[29]The right to conduct litigation was defined in section 119: (1) In this Act— “litigation services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to any proceedings, or contemplated proceedings, to provide; ... “right to conduct litigation” means the right— (a) to issue proceedings before any court; and (b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions). “litigation services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to any proceedings, or contemplated proceedings, to provide; (a) to issue proceedings before any court; and (b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions).[30]MPS was not within section 28(2)(a), (b) or (c). MPS is a party to the present proceedings, but the question remains whether it would have had the right to conduct the litigation if the 1990 Act had not been passed. A company’s director or employee had, and has, no general right of audience in a court, and so could not exercise that category of litigation.[31]In CharlesP Kinnell & Co Ltd v Harding, Wace & Co [1918] 1 KB 405, the Court of Appeal held that a joint stock company could issue process in the county court without the intervention of a solicitor. However, it could not appear in Court as plaintiff or defendant except by counsel or solicitor: see at 413, and Heene Court Mansions (Worthing) Ltd v Knight, an unreported decision of the Court of Appeal of 15 May 2000 This decision is not applicable to the question whether a company, acting for reward for another company, may institute criminal proceedings without the intervention of a solicitor or counsel.[32]In Rubin v DPP [1990] 2 QB 80, the Divisional Court held that an information should be laid by an individual. It followed that an information stated to be laid by “Thames Valley Police” was defective, although not a nullity. The decision relates to facts that predate the 1990 Act, and in any event concerned not a private prosecution but a police prosecution.[33]However, what I find more difficult is the alternative ground relied upon by His Honour Judge Trevor-Jones in his ruling in R v Malin, to which I referred above. He held that Mr Hoskin was entitled to lay the information in that case because before the coming into force of the 2007 Act the Criminal Procedure Rules 2005 provided that anyone with the prosecutor’s authority might on his behalf serve on a magistrates’ court officer or present to the magistrates’ court an information. It followed that Mr Hoskin could rely on the exception contained in paragraph 4(2) of the 2007 Act, and similarly could have relied on that in section 28(4) of the Courts and Legal Services Act 1990 immediately before the coming into force of the 2007 Act.[34]His Honour Judge Trevor-Jones relied on the provisions of the Criminal Procedure Rules 2005 and in particular rule 2.5.2, which, as summarised by him “provided that anyone with a prosecutor’s authority to do so may, on the prosecutor’s behalf, serve on a magistrates’ court officer or present to the magistrates’ court an information”. The current rule 2.5.2 is to the same effect.[35]I have to say that I find it difficult to describe the absence of any restriction on the laying of any information in any magistrates’ court as relating to “any particular court or in relation to any particular proceedings”. What is asserted by the Appellant is a general right in any magistrates’ court and in relation to all criminal proceedings to carry on the activity of laying an information. “Proceedings” is in the plural, rather than the singular. Laying an information may be a “proceeding”, but it is not “proceedings”. I think that, more naturally, “particular proceedings” refers to a particular kind of proceedings or proceedings in a particular claim or matter.[36]Be that as it may, it is necessary to reconcile the Criminal Procedure Rules 2005 with section 20 of the Solicitors Act 1974, in the form that it was until its amendment by the 2007 Act. The meaning in that section of “act as a solicitor, or as such …. commence, prosecute or defend any … proceeding, in his own name or in the name of any other person, in any court of … criminal jurisdiction”, and in particular of the words I have italicised, is far from clear. The section cannot be limited to acts of unqualified persons who pretend to be solicitors, since such acts are the subject of section 21, and such a narrow construction renders section 20 otiose. On the other hand, a wide construction would largely negate the provisions of the Criminal Procedure Rules to which I have referred.[37]Section 20 was construed by the Court of Appeal in the leading case of Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 [2006] 1 WLR 2126. Dyson LJ, giving the judgment of the Court, summarised the effect of the legislation as follows: Lawful activities: a summary 57. The interrelationship between the [Solicitors Act 1974 and the Courts and Legal Services Act 1990] seems to us to be as follows. … A person who is not an authorised litigator may not exercise the right to conduct litigation within the meaning of the 1990 Act and may not act as a solicitor within the meaning of section 20(1) the 1974 Act and may not draw or prepare an instrument contrary to section 22(1) of the 1974 Act. If he purports to do any of these things, he will not be entitled to recover his costs for doing so. A person who does not have a current practising certificate and who is not an authorised litigator within the meaning of the 1990 Act acts as a solicitor in breach of section 20(1) of the 1974 Act at least if he(a) issues proceedings;(b) performs any ancillary functions in relation to proceedings or(c) draws or prepares an instrument relating to legal proceedings contrary to section 22(1) of the 1974 Act.

Lawful activities: a summary

[38]In the present case, Mr Hoskin did issue (or rather commence) proceedings in the magistrates’ court. He did so not as a litigant acting on his own behalf, but as director of a company acting for reward for a client, namely FAPL. In my judgment, he acted as a solicitor within the meaning and in breach of section 20 of the 1974 Act. He was not an authorised litigator. As District Judge Sanders put it in his judgment: 17. …it is clear that in these matters MPS are not acting in their own right but on behalf of FAPL, for reward. They were doing exactly what their company accounts say is their principal activity, namely “providing legal services in relation to Copyright theft”, in this case to FAPL. This is work which one might more usually expect to be undertaken on behalf of FAPL by a firm of solicitors, who would, of course, be regulated in these activities. It follows that the Appellant cannot bring itself within paragraph 4(2) of Schedule 2 to the 2007 Act. I bear in mind that there are penal consequences arising from a contravention of section 13, so that the prohibition is to be carefully and narrowly construed. I accept that the fact that a prosecutor is acting for reward is not an express consideration in the legislation. However, it seems to me that any other conclusion would render the prohibition in section 20 of the 1974 Act of no effect, and that it is possible to read that consideration into section 20 of the Solicitors Act 1974.[39]I add that this conclusion says nothing about the activity of a person who does not act for reward. The provisions of the Criminal Procedure Rules must be read subject to those of the 2007 Act. The power of police officers to commence criminal proceedings on behalf of their police force is recognised by sections 3(2) and 6 of the Prosecution of Offences Act 1985. In my judgment, they do not apply in a case such as the present, where the person laying the information is acting on behalf of a company that acts for reward, and is therefore acting as a solicitor.

Issue (3): the consequence

[40]I can take this issue quite shortly. The reference in section 127(1) to the laying of an information must mean the lawful laying of an information. In the present case, no information was lawfully laid against the Respondents. It follows that their prosecution is incompetent, precluded by that provision.

Conclusions

[41]I would answer the questions in the Case Stated as follows:(1) The District Judge was right to conclude that the laying of the information by Mr Hoskin amounted to the commencement of proceedings and was therefore the “conduct of litigation” in accordance with Schedule 2 to the 2007 Act and a “reserved legal activity” within the meaning of section 12 of that Act.(2) Paragraph 4(2) of Schedule 2 to the 2007 Act does not alter this conclusion in the present case.(3) The District Judge was right to conclude that the proceedings were to be considered void and should therefore be dismissed.

A final comment

[42]Finally, I should like to express my gratitude for the clear and well reasoned judgment of the District Judge in this case.[43]I respectfully agree with the conclusions in the judgment of my lord, Stanley Burnton, LJ, and I venture to add only two short points. First, Section 28(4) of the Courts and Legal Services Act 1990 refers to exercising any “right to issue proceedings before any court” (see section 119(1)(a) of that Act), which must be a right “in relation to particular proceedings”. For my part, I believe that the laying of an information in a Magistrates’ Court is captured by the statutory formulation, namely a “right to issue proceedings”, and also that the putative criminal prosecution as a whole, initiated by the laying of the information, fairly falls within the meaning of “particular proceedings”. In principle, therefore, I would find section 28(4) applicable in the present context.[44]Secondly, as to section 20 of the Solicitor’s Act 1974, I saw some force in the submission that if FAPL assumed corporate control of MPS, the business role of MPS would be likely to remain unchanged, and it was not disputed that an executive of such a merged entity, as a party to the proceedings, could lay an information without infringing section 20. However, on the present facts MPS was independent of FAPL and was carrying out its own independent commercial activities in laying the relevant information. In those circumstances the conclusion that it did “act as a solicitor” within the meaning of section 20, as interpreted in the authorities to which my lord has referred, appears to me to be inescapable.

Cited in 2 later judgments