Virgin and the Red-hot POCA

January 28, 2014

It always strikes me that Draco has had a bit of a bad press. At least he set out the law clearly even if his idea of making the punishment fit the crime was a bit one-dimensional. He lives on of course (the easiest way to immortality is being bad, cf Jack the Ripper); he invariably gets a name check in any major case involving confiscation of criminal assets, especially when the case concerns its latest draconian form, the Proceeds of Crime Act 2002. The Act is affectionately referred to as POCA, presumably because being hit with it leaves the target wistfully thinking he would rather have been hit with a fire-iron.

All of which introduces the Court of Appeal judgment in {i}R (Virgin Media Ltd) v Minaf Ahmed Zinga{/i} [2014] EWCA Crim 52, available in its full glory on Bailii {here:}. This is a case where Virgin went after a man who was selling set-top boxes with unscrambling software, enabling many purchasers to access premium channels. Virgin claimed that it had missed out on £380 million in revenue.

The route taken by Virgin involved no claim forms, Norwich Pharmacal orders, standard disclosure or pleadings. They opted to proceed against Zinga by way of private prosecution on the basis that he was guilty of conspiracy to defraud. When he was convicted and sentenced to eight years’ imprisonment, Virgin brought out the red-hot POCA and succeeded in obtaining an order that all his available assets, namely £8,771,300, should be paid to the Crown and that he serve an extra 10 years if he failed to pay up.

Zinga appealed, claiming inter alia that POCA was not intended for private prosecutions. He lost on that point and, while the Court of Appeal made some cautious noises about the slightly unseemly nature of the arrangements made between the Met Police and Virgin, the green light has now been given to actions of this nature.

As a means of enforcement, this format of private prosecution coupled with confiscation proceedings is to civil proceedings as sending round Bill Sykes is to posting a 1-star review on Amazon. The POCA regime strips out assets ruthlessly; indeed, prior to the slight softening required by the Supreme Court in {i}R v Waya{/i}, it was stripping away assets that were neither proceeds nor particularly criminal. It is a sledge-hammer and it must seem quite attractive to some responsible for enforcement of IP rights. After all, {i}Zinga{/i} does not limit the private prosecution and POCA route to big-money cases. A few sledge-hammers on a few nuts might have a pretty wide deterrent effect.

But before you dust off your criminal law skills and chase the most recent illegal downloader of Beyonce’s latest album, consider this:
• Virgin started off looking for a compensation order but had to abandon that line. They got none of the £8 million and presumably spent a fortune in costs.
• Despite its recent softening, the POCA regime is due its day of reckoning in the European Court of Human Rights. It might just possibly be shattered when that day comes.
• The big catch with private prosecutions and POCA is juries. You never know what they are going to do. Judges are occasionally mercurial but juries are 100% quicksilver.