The copyright industry is cheating the British taxpayer out of millions of pounds every year by using a legal loophole that allows them to recoup any legal costs they pay out when pursuing alleged copyright infringers through the courts. This practice is the rarely used right of any UK citizen to bring a Private Prosecution – rare that is until the copyright industry realised that they could make the taxpayer pay for their copyright legal actions. Private prosecutions had all but died out but they are now making a comeback thanks to the copyright industry and their vigilante groups such as FACT and the BPI.
A recent newsletter produced by SJ Berwin, the law firm which MP Jonathan Djanogly is a partner of, has exposed the cynical way in which the copyright industry is exploiting the private criminal prosecution route at the expense of the British taxpayer. Although the private individual or company who is prosecuting the alleged offender has to initially pay for their legal costs they are able to recoup the entire costs for their prosecution from "central funds" which are public funds paid for by the UK tax payer. They are able to do this not only when they are successful in convicting a person but also in certain circumstances when they are not successful. When these costs are added to the time of the Judge, clerks and any other associated financial burden the case causes the final bill can be huge yet no-one benefits from these cases except the already very rich copyright companies that FACT, the BPI and others represent.
Not only can copyright holder companies recoup costs associated with the prosecution of a person but also (in certain circumstances) the costs that they have spent on their investigation of that person. FACT and the BPI have large private police forces with many investigators who sometimes work for months on end in investigations before they bear fruit; the total amount the tax payer is shelling out for this practice could be appallingly huge.
This means that cases that serve the private and commercial interests of these hugely rich multibillion pound companies are being paid for by the British taxpayer at a time when few of us can afford it.
Supporters of the Legal Aid system have for some time now been warning that the system is close to collapse due to the low rates of pay that barristers get paid compared to private work. This "minimum wage" rate for Legal Aid barristers has been blamed for an exodus of the best barristers away from the scheme leaving the poor with access to a less capable standard of barrister and the rich with access to the best.
It is because of this lack of funding for Legal Aid that the public will be furious to learn that money that could be going towards making sure poor people have a right to proper representation is instead being used to line the pockets of the copyright industry; frequently the the copyright industry use the most expensive barristers in the country for private prosecutions and then the cost is recouped from public funds.
The final insult is that most of the time these copyright industry companies are not even British! They are simply UK subsidiaries controlled by mega rich corporations in the United States yet still they use the British taxpayers money for their own private gain.
To fully understand how this situation has arose we will explain in detail below how this situation has arose.
History and Background
Any citizen of the United Kingdom has the right to bring a Private Prosecution against another citizen (or company). This legal right dates back hundreds of years to the seventeenth and eighteenth centuries when there was no public official designated as a public prosecutor. The attorney general of England could initiate prosecutions but did so only in cases of special importance to the Crown. It was therefore the general rule that for justice citizens had to rely on privately prosecuting others.
Nowadays we live in more modern times where the responsibility for prosecuting individuals for alleged criminal offences lays very firmly with the Crown Prosecution Service. The right of Private Prosecution remains an avenue open to citizens but has been called an "anomaly" by very senior law lords. Private prosecutions are usually only heard of nowadays when an injured party disagrees with a decision by the CPS not to prosecute the individual accused of the alleged offence. Needless to say the injured party is biased and it is for this reason that Private Prosecutions are often seen as ill founded, malicious or self serving.
In a recent ruling by the House of Lords in a case that was concerned about the role of Private Prosecutions (Jones v Whalley 2006) Lord Bingham said:
“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. “
It is apparent that in the opinion of the House Of Lords the Crown Prosecution Service is the proper public body that should decide whether or not to prosecute an individual. This is primarily because of their independent and unbiased nature but also because of the way in which a case is assessed.
Normal use of private prosecution?
It is still a valid right of the UK citizen to bring a private criminal prosecution against another but this is very rare. Usually the public gets to hear about private prosecutions when a citizen believes that the decision by the CPS not to prosecute a person or company is the wrong decision and therefore considers mounting their own criminal prosecution.
Famous cases in this area are the prosecution brought by relatives of victims of the Hillsborough disaster against the two senior officers they blamed, a similar action by the father of a person killed in the Marchioness pleasure boat disaster and most recently the family of Jean Charles de Menezes considered bringing a private prosecution to get justice for their son's murder at the hands of police officers.
These cases illustrate why the right of private prosecution still exists, it is a safeguard that allows citizens to seek justice themselves if they feel that the public prosecutor has not acted properly. It is not meant to be a tool with which the copyright industry can circumvent the public prosecutor and instead prosecute people themselves. We will look at this abuse of the system in this way in the next section.
Use by the copyright industry
The reasons the copyright industry uses private prosecutions is very simple – money, control and exposure. In civil proceedings if one person sues another and they lose they are liable not only for the full costs of their own side and the other side but also any damages incurred by the defendant as a result of the claimant's failed action. In a case where a defendant has/had a successful business that was damaged or destroyed by the claimant's court action the claimant can be left with a huge damages claim by the defendant.
In a Private Prosecution there is no scope for damages should the defendant be found not guilty and therefore carry far less risk for the claimant. This means that a private prosecution can be used as a weapon to put a person through extraordinary stress and, if that person is found innocent, the private prosecutor gets to walk away with no liability. A person could have their life and business ruined by an incorrect or malicious private prosecution and on proving his/her innocence their would be no way for them to recoup damages from the prosecutor for the emotional and financial damage done to them.
It is patently obvious that the copyright industry is abusing the right of Private Prosecution to further their own commercial interests at a substantial cost to the taxpayer. What is worrying about this trend is that "the industry" feels it can dispense with the proper state prosecutor and run its own prosecutions. This shows a transparent lack of respect or regard for the UK legal system and the UK taxpayer. Why should the copyright industry be allowed to plunder public funds for cases that are civil matters dressed up as criminal? Why should multibillion pound companies be able to bring malicious prosecutions against small businesses whose only crime was to create a new competing business model?
It is a national scandal. On the back of the MPs' expenses scandal our government needs to pay attention to this and shut the door on these inappropriate uses of the private prosecution system.