Joy v Federation against Copyright Theft Limited

Date

14 January 1993

Legislation

Police and Criminal Evidence Act 1984 s78
Copyright Designs and Patents Act 1988 s107(c)

Keywords

interview; counterfeit goods; copyright offences; private investigators; duty of investigating offences; private prosecution

Counsel

Peter Hunt for the Appellant, Julian Christopher for the Respondent

Solicitors:

Holden & Co (Hastings), Titmus Sainer & Webb

Judge:

Kennedy LJ, Clarke J.

Court:

Queen's Bench Division (Crown Office List)

Reported:

unreported, case CO/0102/92

Summary:

Appeal from a Magistrates Court decision in East Sussex concerning four informations each alleging that Joy had in his possession pirate video cassettes contrary to s107(c) of the Copyright Designs and Patents Act 1988. The police raided Joy's house and were accompanied by a Mr Hoskin who was an investigator for FACT. Mr Hoskin told Joy that he was not a police officer but an employed investigator and then conducted an interview with the Joy about the video cassettes. He started his interview before administering a formal caution but did make a note of the interview. However, the note was not timed or witnessed and Joy refused to sign it. Mr Hoskin did not ask any police officer to sign it or witness it and no officer did so, either at the scene or subsequently at the police station.

At the close of the prosecution case, it was submitted that there was no case to answer on the basis that Mr Hoskin's evidence was obtained in breach of s78 of PACE. or alternatively that it was for the prosecution to show that Mr Hoskin was lawfully on Joy's premises at the time of the interview.

Decision:

The Magistrates held that s78 did not apply to Mr Hoskin because he was employed as an investigator by a private company by virtue of a contract of employment. They further observed that neither he nor the company had or have a quasi-official statutory duty to either investigate or prosecute and that these proceedings were brought by way of private prosecution.

Upon reviewing the authorities on s78 PACE the Appeal Court held that the question which the magistrates in the present case should have asked themselves was, first of all, was Mr Hoskin a person who was charged with the duty of investigating offences? That was a question of fact which they had to decide in the light of all of the information before them. So far as that information goes, the Court was inclined to the view that the Magistrates conclusion would have been, had they asked themselves the proper question, that Mr Hoskin was such a person because he was employed by FACT, it would seem, for that precise purpose. The key question in any particular case is whether it was the duty of the person concerned to investigate criminal offences. If it was, he falls within the subsection. If it was not, he does not fall within the subsection. The Court noted that the duty may be any type of legal duty, whether imposed by statute, or by the common law, or by contract.

The Appeal was allowed and the case remitted to a different panel of magistrates.