Paolo, R (on the application of) v City of London Magistrates Court [2014] EWHC 2011 (Admin)

Case No CO/12218/2013[2014] EWHC 2011 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/06/2014
Before
LORD JUSTICE LAWSMR JUSTICE CRANSTON
Between
The Queen on the application of Craig PaoloClaimantCity of London Magistrates CourtDefendantThe Commissioner of Police for City of LondonInterested Party
Paul Jarvis (instructed by Howard Kennedy) for ClaimantDijen Basu and Catriona Hodge (instructed by Berrymans Lace Mawer LLP) for Interested PartyHearing Hearing dates: 13 June 2014
Judgment
[1]This is the judgment of the court, prepared by Mr Justice Cranston.

Introduction

[2]In this judicial review the claimant challenges the issue of a warrant which the first defendant, the City of London Magistrates’ Court, issued on the application of the interested party, the Commissioner of Police for the City of London. The grounds of challenge are non-disclosure by the police to the court granting the warrant, and error on the part of the magistrate that he could have a reasonable belief that there was material at the claimant’s address which was likely to be of value to the investigation.[3]The claim form in this case was filed out of time. An application for an extension of time in which to file the claim form has been lodged. For the reasons we give later in this judgment, we have concluded that the justification given in it for the extension of time is misleading. On that basis we take the draconian step of refusing an extension of time and dismiss the claim.

Background

[4]The Premier League licenses broadcasters to transmit its football matches. At the relevant time Sky and ESPN were the only licensed broadcasters in the United Kingdom. Subscribers, including commercial subscribers such as public houses, are issued with decoders enabling them to access the encrypted signal which Sky and ESPN broadcast. The Premier League also licenses foreign broadcasters, typically on a territorial basis. A foreign broadcaster issues dedicated decoder cards to residents of the relevant territory. A foreign broadcaster is forbidden under the license to transmit signals for viewing in the United Kingdom and to provide anyone else with the means to do so.[5]At the relevant time Tring TV was the licensee for Albania. A letter dated 26 August 2010 from Tring TV to its licensees stated that it was not authorised to broadcast Premier League matches outside Albania and that it would switch off any of its decoder cards found to be used unlawfully in the United Kingdom.[6]The marketing and use in the United Kingdom of decoder cards issued abroad, but able to give access here to Premier League matches, had been before the courts well before the events dealt with in this judgement. One concern was that the cards were being offered in the United Kingdom at more favourable prices than those available from the United Kingdom licensed broadcasters. In two sets of proceedings in2009 the High Court referred questions to the Court of Justice of the European Union for a preliminary ruling concerning the legality of foreign decoder cards: [2008] EWHC 1411 (Ch); [2008] EWHC 1666 (Admin). The decoder cards in those cases were mainly from Greece. In one of the two cases referred the manager of a public house had been convicted of two offences under section 297 (1) of the Copyright, Designs and Patents Act 1988, namely for “dishonestly receiving a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme”.[7]The questions referred to the European Court were, in broad outline,(1) whether the Conditional Access Directive (EC) 98/84 rendered the foreign decoder cards as “illicit devices” under it and precluded national legislation to inhibit their use;(2) whether the free movement provisions of the Treaty on the Functioning of the European Union (“TFEU”) prevented legislation of a Member State making it unlawful to use them to access an encrypted satellite broadcasting service from another Member State;(3) whether limits on the supply of foreign decoder cards in exclusive licence agreements were a restriction on competition prohibited by article 101 of the TFEU; and(4) whether European Union law on copyright had any purchase.[8]Advocate General Kokott delivered her opinion on the two United Kingdom references on 3 February 2011 and concluded, inter alia, that foreign decoder cards were not “illicit devices”.[9]On 20 May 2011, Media Protection Services Limited made a complaint to the City of London Police concerning the claimant’s practice of selling foreign decoder cards in the United Kingdom. Media Protection Services Limited is employed by the Premier League to investigate and prosecute infringements of copyright and allied matters. About 6 weeks later DS Kumar of that police force was assigned responsibility for handling the complaint as a money laundering investigation. He discovered that Tring TV decoder cards were being sold on eBay for £299 by a seller acting under the username ‘sharplcd45’.[10]A claim form in the case of R (on the application of Helidon Vuciterni) v Brent Magistrates Court was issued on 14 June 2011 against warrants issued earlier in the year at the request of Harrow Trading Standards Department. HH Judge Thornton QC granted permission to bring the judicial review on the papers on 27 July 2011.[11]On 12 August 2011 Oliver Weingarten, an in-house solicitor with the Premier League, signed a witness statement setting out the details of the complaint Media Protection Services had against the claimant in this case. In the course of the witness statement he referred to section 297 of the Copyright Designs and Patents Act 1988, to the two United Kingdom references to the Luxembourg Court (but omitting mention of the Advocate General’s opinion), and to the Administrative Court judgment responsible for one of the references indicating that decoder cards from non-EU states were not covered so that section 297 prosecutions in those non-EU cases could continue. Mr Weingarten’s witness statement also explained that since 2007 he and the claimant had had communications about the Premier League’s policy of having decoder cards deactivated if used outside the relevant territory.[12]On 15 August 2011, DS Kumar made an application to the City of London Magistrates’ Court for a warrant to enter and search the claimant’s premises. The material identified in the application as likely to be relevant evidence covered “documents relating to the sale and purchase of Tring satellite cards, personal banking documents, computers, mobile phones, any data communications device with the ability to access Ebay and/or to store electronic data and relating documents which may prove offences under the Fraud Act 2002 [sic]”. In his written application to the court DS Kumar swore that “there are reasonable grounds for believing … that indictable offences, namely Money Laundering has been committed contrary to s329 POCA [Proceeds of Crime Act 2002]”. Under the section entitled “Further Information”, DS Kumar set out the basis of his suspicion as follows: “The foreign/non-UK cards are not permitted to be used in the UK …The offences that are being committed under these circumstances are section 107 of the Copyright Designs and Patents Act 108…Further offences under the Fraud act 2002 [sic] and under section 7 covering the supply of articles will be considered. Offences under S329 of the Proceeds of Crime 2002 covering possession and acquisition of criminal property will also be considered, as the suspect, [the claimant] is known to have sold over 64 illegal Tring satellite cards on Ebay alone in the last 2 months, for £299 each, and will be in possession of the proceeds of crime”.[13]A magistrate granted the search warrant that same day, 15 August 2011.[14]On the 18 August 2011 DS Kumar and three other police officers went to the claimant’s house. One of the officers was DC Joanne Walsh of the City of London Police Economic Crime Directorate Money Laundering Division. The claimant allowed the officers entry. DS Kumar said to the claimant:
“I am arresting you under (1) suspicion of possession of articles to infringe copyright, (2) possession of criminal property, and (3) supplying articles to commit fraud”
. DS Kumar then cautioned the claimant, to which he replied:
“If this is about the Tring cards, they aren’t illegal”
. He co-operated with the search by pointing to a small box on top of a filing cabinet where the Tring decoder cards were kept. He was taken to a police station where he was interviewed the same day. He did not request the presence of a lawyer during the interview and he answered the questions. At one point he said this to the officers:
“And you know Tring is easy to get, it's a cheap card, it’s an affordable card … they have the rights for the Premier League, don't let the EPL [the Premier League] tell you differently, they cannot sell a contract to Albania and then say to Albania you can't sell that outside Albania, they can make them sign it, they can put in there but it’s illegal at source, this is everything that we've won in the court cases so far and that has been from the Magistrates courts to the County courts the … Crown courts, the High Court and a hundred and twenty seven recommendations last year from the UK High Court to Europe that proves beyond any reason, and even now the General Advocate give an opinion on it for the judges to rule and we get that verdict on the 3rd October. Now you guys have just lost a case with Heledon [sic] [Vuciterni] on the same, on the same rumour on these Tring cards. You know you, you're believing everything that the EPL tell you and that is simply not true, they're not allowed to make contracts like that, you know their switching Sky Italia cards off, they are, its illegal for the EPL to sit to, to give a contract to Sky Italia in Italy and then say you can't sell to any other European outside Italy.”
Other passages in the interview indicated that the claimant knew Mr Vuciterni well.[15]On 4 October 2011 the Grand Chamber of the Luxembourg Court handed down its decision on the High Court references: Joined cases C-403/08 and C-429/08, Football Association Premier League Ltd v QC Leisure; Murphy v Media Protection Services Ltd [2011] ECR-I-9083; [2012] Bus LR 1321; [2012] All ER (EC) 629. It held that the term “illicit devices” in the Conditional Access Directive (EC) 98/84 did not cover foreign decoding devices, placed on the market with the authorisation of the service provider, but used abroad without its permission. However, the Directive did not preclude national legislation which prevented the use of foreign decoding devices in breach of a contractual limitation permitting their use for private purposes only. The court also held(1) that article 56 TFEU (freedom to provide services) precluded legislation of a Member State which made it unlawful to import into that state foreign decoding devices which gave access to an encrypted satellite broadcasting service from another Member State and that(2) article 101 TFEU (competition) meant that the exclusive licence agreement concluded between a holder of intellectual property rights and a broadcaster might constitute a restriction on competition. The court also considered the reach of the Copyright Directive, 2001/29/EC and the Satellite Broadcasting Directive, 93/83/EEC.[16]In early December 2011 the City of London Police offered to caution the claimant in respect of offences contrary to section 297A of the Copyright, Designs and Patents Act 1988 (“unauthorised decoders”). He declined that offer and in late January 2012 he was charged with two offences under that section. Ultimately, in May 2012, the Crown Prosecution Service discontinued the prosecution.[17]On 21 July 2012 this court handed down judgment in R (on the application of Helidon Vuciterni) v Brent Magistrates’ Court [2012] EWHC 2140 (Admin). In that case the claimant was the person the claimant in this case mentioned in his police interview. Vuciterni’s main business was described as retailing and wholesaling satellite products, a product called a Spider HD box. He also sold Tring decoder cards. Before this court he was successful in applying for orders quashing the warrants. The application for the warrants was some six weeks after the Advocate General gave her opinion in Joined Cases C-403/08 and C-429/08 in February 2011. In support of the application for the warrants, Harrow Trading Standards had asserted that the supply of the decoder cards within the United Kingdom was likely to constitute an offence under section 297A of the Copyright Designs and Patents Act 1988 as well as being the banned practice of stating or otherwise creating the impression that a product could be sold legally when it could not, contrary to the Consumer Protection from Unfair Trading Regulations 2008, SI 2008, No 1277.[18]In his judgment, Davis LJ noted that the application for the warrant had been presented to the district judge as a straightforward case, when it was far from being so: [23]. Davis LJ held that it could not fairly be represented to the magistrates’ court at the time the warrant was obtained that there was “likely” to be a section 297A offence, given the significant doubts which had been expressed by the Advocate General and the English courts in referring matters to the Luxembourg court: [29]. If that had been identified, it was difficult not to think that matters might have taken a different course. The district judge may well have considered that some less draconian sanction than a warrant was appropriate, that the position should be left to be decided in civil proceedings and that the issue of interim relief should be considered by a specialist Chancery Division judge: [34]. Davis LJ said:
“[36] In my view, in what would inevitably have been an application in a rather esoteric field for the District Judge, there was a very significant failure to give full disclosure or to draw attention to the potential difficulties in establishing criminal or unlawful conduct on the part of the claimants. I think that was causative of injustice.”
Irwin J agreed.[19]There was no letter before claim in the present case. The judicial review application was made on 14 November 2012. With it there was an application for an extension of time which read, in part:
“In this case the claimant had only become aware that he had grounds to challenge the decision of the Justice when he discovered the judgment of the Divisional Court in R (on the application of Vuciterni) v Brent Magistrates’ Court [2012] EWHC 2140 (Admin). “ Collins J refused permission on the papers, on the basis that there was no good reason to extend time: “The claimant had legal advice and it is no excuse for a failure to make a claim that an authoritative decision had not been made until Vuciterni: that case was based on a claim made in 2011.”
In granting permission on the renewed application in late January this year, Wilkie J deliberately left open the issue of delay.

Misleading the court

[20]In our judgment this judicial review falls at the first hurdle. The application is well and truly out of time. Under section 31(6) of the Senior Courts Act 1981 where the High Court considers that there has been undue delay in making an application for judicial review, it may refuse to grant leave for the making of an application or relief if it considers that “the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.” Under CPR 54.5(1) a claim form for judicial review must be filed promptly and in any event within three months after the grounds to make the claim first arose. CPR 3.1(2) contains the power of the court to extend the time for compliance with any rule.[21]In this case the claim form was filed on 14 November 2012, some 15 months after the magistrate’s decision being challenged of 15 August 2011, to issue the warrant, and over 4 months after the decision of this court on 25 July 2012 in R (on the application of Helidon Vuciterni) v Brent Magistrates’ Court [2012] EWHC 2140 (Admin). The justification given for the extension of time is that the claimant only became aware that he had grounds to challenge the warrant when he “discovered” the judgment in that case. Yet in his police interview on 18 August 2011 it was evident that he was familiar with Mr Vuciterni’s application for judicial review, which was lodged on 14 June 2011. As we have said permission had been granted on the papers to Mr Vuciterni to apply for judicial review on 27 July 2011. That would seem to explain this claimant’s reference in that interview of the police having “lost” a case with Mr Vuciterni.[22]When we put to Mr Jarvis that the police interview suggested that the stated reason for the late filing of the claimant’s application was misleading, he first submitted that there was a difference between a belief on the part of an individual in the justice of his case and the knowledge of a firm ruling of the court favourable to that case. As we explained to Mr Jarvis, we took the view that what the claimant said in the police interview and what was said in the application for the extension of time went well beyond that analysis. In the police interview in August 2011 the claimant indicated that he was aware of Mr Vuciterni’s success at the permission stage, which had an obvious bearing on his case. Mr Jarvis readily conceded the point.[23]Mr Jarvis then invoked the decision of this court in R (on the application of Matthew Goode) v Nottingham Crown Court [2013] EWHC 1726 (Admin). The delay in that case was of the order of 21 months. It too was a challenge to the validity of search warrants. Pitchford LJ (with whom Burnett J agreed) said the application had beengrossly out of time and there was no satisfactory explanation in the claimant's witness statement. Pitchford LJ referred with approval at paragraph [30] to R (Faiseltex) Ltd v Preston Crown Court [2008] EWHC 2832 (Admin), a search warrant case in which the claim had been filed just within the 3 month outer limit, but not promptly. There Keene LJ said that the court would, despite the lack of promptness, examine the nature of the fundamental rights at stake, the merits of the claim and any prejudice suffered by the parties. In the result the court in Goode considered the merits but held that, although there had been non-disclosure to the judge who issued the warrants, the error was a technical one which did not render them unlawful.[24]In this case, Mr Jarvis submitted that there were the same fundamental rights in play as in Goode, not to have one’s home entered, and one’s property seized, without lawful authority. In Goode Pitchford LJ had found that these fundamental interests demanded that the court address the merits, notwithstanding the gross delay. Mr Jarvis submitted that there were the strong merits in this case. Primarily there was the non-disclosure in the application for the warrant about the legal uncertainties surrounding the basis of the police investigation. Mr Jarvis also underlined that in Goode there was no satisfactory explanation for the delay.[25]In our judgment that is not this case. Here there is no unexplained reason for delay as there was in Goode. Here there was an explanation but it was a misleading explanation. The claimant in this case was aware of legal proceedings involving Vuciterni and there was no need for him to “discover” the decision of this court in Vuciterni handed down in July 2012: [2012] EWHC 2140 (Admin), as he claimed in the application for an extension of time. We are acutely aware that there is the fundamental interest of the liberty of the subject in the grant of search warrants: R (G) v Commissioner of the Police of the Metropolis [2011] EWHC 3331 (Admin), [20], per Laws LJ. But there is another fundamental interest at stake in this case. That is the proper and efficient administration of justice.[26]That fundamental interest in the due administration of justice requires that the court be able to place trust in what is placed before it. In judicial review that is of first importance because the evidence is taken from the documents and is only exceptionally subject to cross examination. Claimants who mislead the court in the reasons given for the exercise of a discretion in their favour cannot generally expect the court to look favourably on their application. The claimant’s misleading assertion about his knowledge of the Vuciterni judicial review disqualifies him from a decision under CPR 3.1(2) to extend time to file his claim. Any other outcome would in our judgment be corrosive of the due administration of justice.[27]We refuse the application to extend time for the filing of the claim and dismiss the application for judicial review.