QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
| THE QUEEN ON THE APPLICATION OF
ALSAT UK LIMITED
|- and -
|(1) BRENT MAGISTRATES' COURT
(2) BRENT AND HARROW TRADING STANDARDS SERVICE
MR JAMES MELLOR QC and MR ANTHONY HUCKLESBY (instructed by Brent and Harrow Trading Standards Service) for the Second Defendant.
The First Defendant did not appear and was not represented.
Hearing dates: 29th & 30th May 2012
Crown Copyright ©
Lord Justice Davis:
"The Service is investigating a business named Alsat UK Limited, which trades as Atlas Satellite, and its sole director, one Helidon Vuciterni, whose date of birth is 13/02/71.
The offences being investigated have been brought to the attention of this Service by an organisation, Media Protection Services Limited (MPS), which investigates infringements of the intellectual property rights of the Barclays sponsored football Premier League Limited.
The Premier League Limited licence the broadcasting rights of their competition's matches all over the world. The licences issued are normally specific to set territories. In Albania, the licensee is Tring TV. The decoder cards that Tring TV supply in Albania are for sale only within Albania, and therefore cannot be sold legally within the UK. Further, the Tring cards are only permitted for domestic use within Albania. A supply of the Tring TV cards within the UK would likely be a breach of banned practice number 9 of the Schedule 1 list of banned practices under the Consumer Protection from Unfair Trading Regulations 2008.
The supply of these decoder cards within the UK also likely constitutes offences under s.297A of the Copyright, Designs and Patents Act 1988.
MPS have received information that Alsat UK Limited have been supplying Tring cards widely within the UK, and have advised me that offending Tring TV cards are being used broadly within UK commercial premises.
MPS have covertly test purchased a Tring TV decoder card from the Alsat UK Limited premises at 84 Willesden Lane, London, NW6 7TA. This card has been examined by a representative of BSkyB Limited, who are licensed within the UK to show Barclays Premier League football matches. The expert was able to use the Tring TV card to watch Barclays Premier League football matches. These included matches played during the UEFA closed viewing window, which comes into effect between 14.45 and 17.15 on Saturday match days, and is designed to protect the gates at UK lower league football matches which are also played at this time across the country. During this closed viewing period, the Barclays Premier League football matches are broadcast outside of the UK, but are not permitted, by any means, to be shown or broadcast within the UK.
The Tring card and a decoder box cost the covert test purchaser £450.
The Alsat website has also, until very recently, been advertising the Tring TV cards on its website, stating that the cards can be used to view Premier League football matches.
Helidon Vuciterni resides at 16 Barnham Court, Barnham Close, Wembley, Middlesex, HA0 2EB. He has used this address on the Companies House paperwork relating to his directorship of Alsat UK Limited. The Brent council tax records also show him as the tax payer for the address. Further, a check of the Land Registry shows that Mr Vuciterni is the owner of the freehold in the property. In similar intellectual property infringing cases investigated by this Service, we have regularly found evidence of offending at the home of the suspects as well as at their business premises. This is the reason, therefore, that we desire to enter 16 Barnham Court, Barnham Close.
It is the intention of this Service to execute two warrants simultaneously at the business address as well as at the home address of Mr Vuciterni on 22nd March 2011."
The legal framework
(1) A person commits an offence if he
a) Makes, imports, distributes, sells or lets for hire or offers or exposes for sale or hire any unauthorised decoder;
b) He has in his possession for commercial purposes any unauthorised decoder;
c) Instals, maintains or replaces for commercial purposes any unauthorised decoder;
d) Advertises any unauthorised decoder for sale or hire or otherwise promotes any unauthorised decoder by means of commercial communications.
2) A person guilty of an offence under subsection (1) is liable:
a) on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or both;
b) on conviction or indictment, to imprisonment for a term not exceeding ten years, or to a fine, or both.
3) It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for believing, that the decoder was an unauthorised decoder.
4) In this section
"apparatus" includes any device, component or electronic data (including software);
"Conditional access technology" means any technical measure or arrangement whereby access to encrypted transmissions in an intelligible form is made conditional on prior individual authorisation;
"decoder" means any apparatus which is designed or adapted to enable (whether on its own or with any other apparatus) an encrypted transmission to be decoded;
"encrypted" includes subjected to scrambling or the operation of cryptographic envelopes, electronic locks, passwords or any other analogous application;
(a) any programme included in a broadcasting service which is provided from a place in the United Kingdom or any other member state; or
(b) an information society service (within the meaning of Directive 98/34/EC of the European Parliament and of the Council of 22nd June 1998, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20th July 1998) which is provided from a place in the United Kingdom or any other member state; and
"unauthorised", in relation to a decoder, means that the decoder is designed or adapted to enable an encrypted transmission, or any service of which it forms part, to be accessed in an intelligible form without payment of the fee (however imposed) which the person making the transmission, or on whose behalf it is made, charges for accessing the transmission or service (whether by the circumvention of any conditional access technology related to the transmission or service or by any other means)."
Section 297A was (as is common ground) designed to give effect to provisions in EC Directive 90/84/EC, the Conditional Access Directive.
"Rights and remedies in respect of apparatus &c. for unauthorised reception of transmissions
1) A person who -
a) makes charges for the reception of programmes included in a broadcasting service provided from a place in the United Kingdom or any other member State;
b) sends encrypted transmissions of any other description from a place in the United Kingdom or any other member State; or
c) provides conditional access services from a place in the United Kingdom or any other member State,
is entitled to the following rights and remedies.
2) He has the same rights and remedies against a person
i) makes, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire,
ii) has in his possession for commercial purposes, or
iii) installs, maintains or replaces for commercial purposes
any apparatus designed or adapted to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so, or
(b) who publishes or otherwise promotes by means of commercial communications any information which is calculated to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so,
as a copyright owner has in respect of an infringement of copyright.
3) Further, he has the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such apparatus as a copyright owner has in relation to an infringing copy.
4) Section 72 of the Supreme Court Act 1981, section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property) apply to proceedings under this section as to proceedings under Part 1 of this Act (copyright).
5) In section 97(1) (innocent infringement of copyright) as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reason to believe that copyright subsisted in the work shall be construed as a reference to his not knowing or having reason to believe that his acts infringed the rights conferred by this section.
6) Section 114 applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (3) above.
7) In this section "apparatus", "conditional access technology" and "encrypted" have the same meanings as in section 297A, "transmission" includes transmissions as defined in that section and "conditional access services" means services comprising the provision of conditional access technology."
"commercial practice means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product;
"consumer" means any individual who in relation to a commercial practice is acting for purposes which are outside his business;
"product" means any goods or service and includes immovable property, rights and obligations."
"9. Stating or otherwise creating the impression that a product can legally be sold when it cannot."
Although not perhaps strictly admissible on the question of interpretation, we were referred to the OFT Guidance Notes on the 2008 Regulations. These suggest, as an example of a breach of paragraph 9 of Schedule 1, a trader offering goods for sale in circumstances in which the consumer cannot legally become the owner by buying them, for example because they would have been stolen and there is no legal title to pass on.
"21. 1) A duly authorised officer of an enforcement authority may at all reasonable hours exercise the following powers-
a) he may, for the purposes of ascertaining whether a breach of these Regulations has been committed, inspect any goods and enter any premises other than premises used only as a dwelling;
b) if he has reasonable cause to suspect that a breach of these Regulations has been committed, he may, for the purpose of ascertaining whether it has been committed, require any trader to produce any documents relating to his business and may take copies of, or of any entry in, any such document;
c) if he has reasonable cause to believe that a breach of these Regulations has been committed, he may seize and detain any goods for the purpose of ascertaining, by testing or otherwise, whether the breach has been committed; and
d) he may seize and detain goods or documents which he has reason to believe may be required as evidence in proceedings for a breach of these Regulations.
2) If and to the extent that it is reasonably necessary to secure that the provisions of these Regulations are observed, the officer may for the purpose of exercising his powers under paragraphs (1)(c) and (d) to seize goods or documents
a) require any person having authority to do so to break open any container or open any vending machine; and
b) himself open or break open any such container or open any vending machine where a requirement made under sub-paragraph (a) in relation to the container or vending machine has not been complied with.
3) An officer seizing any goods or documents in exercise of his powers under this regulation shall
a) inform the person from whom they are seized, and
b) where goods are seized from a vending machine, inform
i) the person whose name and address are stated on the machine as being the proprietor's; or
ii) if there is no such name or address stated on the machine the occupier of the premises on which the machine stands or to which it is affixed,
that the goods or documents have been seized."
Regulation 22, headed "Power to enter premises with a warrant", provides in the relevant respects as follows:
"22. 1) If a justice of the peace by any written information on oath is satisfied
a) that there are reasonable grounds for believing that Condition A or B is met, and
b) that Condition C, D or E is met,
that justice may by warrant under his hand authorise an officer of an enforcement authority to enter the premises at all reasonable times, if necessary by force.
2) Condition A is that there are on any premises goods or documents which a duly authorised officer of the enforcement authority has power under regulation 21(1) to inspect and that their inspection is likely to disclose evidence of a breach of these Regulations.
3) Condition B is that a breach of these Regulations has been, is being or is about to be committed on any premises.
4) Condition C is that the admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this regulation has been given to the occupier.
5) Condition D is that an application for admission, or the giving of a notice of intention to apply for a warrant, would defeat the object of the entry.
6) Condition E is that the premises are unoccupied or that the occupier is absent and it might defeat the object of the entry to await his return."
Regulation 23(1) is in these terms:
"23. 1) Any person who
a) intentionally obstructs an officer of an enforcement authority acting in pursuance of these Regulations;
b) intentionally fails to comply with any requirement properly made of him by such an officer under regulation 21, or
c) without reasonable cause fails to give such an officer any other assistance or information which he may reasonably require of him for the purpose of the performance of his functions under these Regulations;
is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale."
The Grounds of Challenge
i) The District Judge (Magistrates' Court) was misled by Trading Standards.
ii) The District Judge could not, on the law, have been satisfied that there were reasonable grounds to suspect that inspection would disclose a breach of the 2008 Regulations.
iii) If provided with the proper material, no tribunal could reasonably have concluded that the grant of a warrant (rather than the deployment of alternative means) was appropriate in this case.
iv) The District Judge was not alerted to the very serious doubt whether the alleged conduct could amount to a criminal offence and the decision was flawed thereby.
v) The application for the warrants was an abuse, having regard to the powers otherwise available under s.296ZC and s.297C of the 1988 Act.
vi) The removal of items from the claimants' premises was unlawful since the inspection and production required under the 2008 Regulations had not been exhausted and a power of seizure had not arisen.
vii) In any event, the removal of such items was wholly disproportionate.
viii) The grant of a warrant to enter the first claimant's home, and the execution of that warrant, was unlawful.
ix) The execution of both warrants was unlawful because they were treated as search warrants when all that was permitted was inspection.
x) The warrant was exercised at the first claimant's home at an unreasonable hour.
Mr Howe also complained, as I have said, of the close involvement of FAPL and BSkyB at almost every stage. But it is not said that there has been any unlawful maintenance (to the extent that there is any life left in such doctrine); and FAPL and BSkyB had and have a clear commercial interest in the activities of the claimants. Nevertheless, it would, I accept (and speaking generally) be a matter of concern if Trading Standards departments were to take enforcement steps at the behest of, and financially assisted by, powerful and wealthy corporations which otherwise might not be taken. But that, in the present case and on the current evidence, does not bear on the outcome here. I also record that Mr Howe very fairly accepted that Mr Ashby himself, even if (on Mr Howe's case) misinformed, acted in good faith.
The Legal Context
"The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person's home. All the material necessary to justify the grant of the warrant should be contained in the information provided on the form "
Reference also should be made to the observations of Kennedy LJ in R (Energy Financing Team Limited) v Bow Street Magistrates' Court  EWHC 1626 (Admin),  1 WLR 1316. Those not only stress the need for full disclosure but also, and importantly, stress the need to consider whether other, lesser, measures sufficient to do justice may be ordered.
The execution of the warrants
i) First, he submitted that under the 2008 Regulations the warrants could only confer power to enter and inspect: not to search.
ii) Second, he submitted that under the 2008 Regulations there was no power to enter a private dwelling at all and accordingly no power to issue a warrant for that purpose.
(a) a person who is lawfully on any premises finds anything on those premises that he has reasonable grounds for believing may be or may contain something for which he is authorised to search the premises "
The statutory provisions expressly refer to authority or power to "search". Mr Howe's faint attempt, by reference to the wording of paragraph 64 of Schedule 2, to limit this to instances of seizure, does not displace that clear indication of the Parliamentary intention: indeed if Mr Howe's argument were right, s.50 could never come into play at all for the purposes of the 2008 Regulations because (on his argument) there is no power to search at all.
Mr Justice Irwin: