Zinga & Anor v R

An applicant for a search warrant on an ex parte basis owes a duty of full and frank disclosure. The duty is not exhausted by demonstrating the statutory conditions for a warrant. It extends to information which the circumstances require, including an agreed expectation that a complainant will conduct a private prosecution. A warrant will not, however, be quashed unless the error or omission would in fact have made a difference to its grant. A speculative possibility that the justice might have made further enquiries is insufficient. The breadth of the trial judge’s discretion under section 78 of PACE also makes exclusion of evidence difficult where the omission caused no material unfairness.

The appellants were convicted at Snaresbrook Crown Court of conspiracy to defraud arising from the sale of set-top boxes and firmware which enabled Virgin Media’s encrypted television channels to be viewed without payment. Zinga received eight years’ imprisonment and Pillai six years.

The prosecution was brought privately by Virgin Media after police officers had obtained search warrants. The magistrates were not told that Virgin Media was expected to prosecute. Zinga appealed his conviction, contending that this non-disclosure required a stay for abuse of process or exclusion of the resulting evidence. Pillai challenged the length of his sentence, particularly the assessment of his role in the conspiracy.

1. Zinga’s conviction appeal was dismissed. Although the statutory warrant provisions did not expressly require the applicant to identify a prospective prosecutor, that did not exhaust the disclosure obligation. An ex parte warrant application requires full and frank disclosure, as explained in R v Stanford [2010] 1 WLR 941. The police and Virgin Media should have disclosed the agreed expectation that Virgin Media would bring a private prosecution.

2. The omission did not invalidate the warrants. The fact that a private prosecution was contemplated did not bear upon the statutory criteria concerning whether relevant material of substantial value to the investigation was likely to be found. Applying R (on application Rawlinson and Hunter Trustees et al) v Central Criminal Court et al [2012] EHWC 2254 (Admin), the question was whether the omission would in fact have made a difference to the grant of the warrants. The appellants had not shown that the magistrates would have refused them if informed. There was no finding of mala fides.

3. An application to exclude the evidence under section 78 of PACE would have had no realistic prospect of success. The trial judge’s discretion was wide, and the non-disclosure did not provide an arguable basis for challenging a decision not to exclude the evidence.

4. Pillai’s sentence appeal succeeded to a limited extent. The sentencing judge was entitled to find that Pillai had played a crucial technical role. However, the available confiscation information showed that the difference between his role and Zinga’s was greater than the two-year difference between their sentences reflected. The six-year sentence was quashed and a sentence of four years’ imprisonment substituted. Consequential orders remained unchanged.

• Court of Appeal (Criminal Division) — by [2012] EWCA Crim 2357, dismissed Zinga’s appeal against conviction and allowed Pillai’s sentence appeal to the extent of substituting four years’ imprisonment.

• Crown Court at Snaresbrook — on 29 June 2011 convicted both appellants of conspiracy to defraud; on 14 July 2011 sentenced Zinga to eight years’ and Pillai to six years’ imprisonment.