Virgin Media Ltd, R (on the application of) v Zinga

A private prosecutor may initiate confiscation proceedings under Proceeds of Crime Act 2002. Confiscation is part of sentencing and therefore part of the criminal proceedings which a private person may conduct under section 6 of the Prosecution of Offences Act 1985.

In Part 2 of the 2002 Act, “prosecutor” includes the person having conduct of the proceedings for the offence. The statutory distinction between prosecutors and authorised financial investigators does not prevent a private prosecutor from proceeding with appropriate investigatory assistance.

The Crown Court remains responsible for ensuring that confiscation is proportionate and that its process is not abused. Funding arrangements which give police an incentive to assist a private claimant may create an appearance of compromised independence, although no abuse arose where confiscation benefited only the state.

Virgin Media Limited privately prosecuted Munaf Ahmed Zinga for conspiracy to defraud arising from the sale of modified set-top boxes which enabled customers to receive subscription television services without payment. He was convicted at the Crown Court at Snaresbrook and sentenced to imprisonment. An earlier appeal against conviction was dismissed: [2012] EWCA Crim 2357.

In confiscation proceedings, HH Judge Bing held that a private prosecutor could initiate proceedings under the Proceeds of Crime Act 2002. He assessed the appellant’s benefit at £11.8 million and made a confiscation order for £8,771,300. Virgin had abandoned its proposed compensation claim.

The appeal raised whether a commercial private prosecutor could pursue confiscation and whether Virgin’s agreement to donate part of any compensation recovery to the Metropolitan Police Authority made the proceedings an abuse of process.

1. Appeal dismissed. A private prosecutor was entitled to ask the Crown Court to proceed to confiscation under section 6 of the Proceeds of Crime Act 2002.

2. Section 6 of the Prosecution of Offences Act 1985 preserves the right of a person to institute and conduct criminal proceedings. Confiscation is part of sentencing and therefore falls within those proceedings. In Part 2 of the 2002 Act, section 40(9) gives “prosecutor” its ordinary and wide meaning: the person whom the court believes has conduct of the proceedings for the offence. That includes a private prosecutor.

3. The omission of a Crown Court compensation remedy for serious default by a private prosecutor under section 72 did not justify reading private prosecutors out of the term. Nor did the fact that only an appropriate officer may exercise compulsory financial-investigation powers. The Act distinguishes investigation from prosecution; a private prosecutor can conduct confiscation with assistance from an appropriate officer.

4. There was no abuse of process arising from Virgin’s agreement with the Metropolitan Police Authority. Virgin no longer sought compensation or other recompense, so the confiscation proceedings benefited the Crown alone. The court nevertheless observed that the agreement created some of the risks identified in R v Hounsham [2005] EWCA Crim 1366, including an incentive to deploy police resources and a perception that police independence could be compromised.

5. The court added that, where a private prosecutor seeks compensation or other personal recompense in confiscation proceedings, the sentencing court must carefully ensure proportionality and guard against abuse. It may seek assistance from the CPS, which may intervene or assist under its statutory powers.

• Court of Appeal (Criminal Division) — The appeal against the confiscation order was dismissed: [2014] EWCA Crim 52.
• Crown Court at Snaresbrook — HH Judge Bing held that a private prosecutor could initiate confiscation proceedings and made a confiscation order of £8,771,300 under section 6 of the Proceeds of Crime Act 2002.