You wouldn't steal a policeman's helmet
August 17, 2012 9:56 AM   Subscribe

SurfTheChannel.com: A Very British Miscarriage Of Justice is a [long - here's an Ars Technica summary] account of the MPAA's investigation of SurfTheChannel's owner Anton Vickerman and the ensuing court case. It was published on http://surfthechannel.com/, but that's now down and given English libel law it probably isn't coming back up. It is, frankly, a harrowing read, although FACT argue to the Guardian that much of what was stated is biased.
posted by jaduncan (70 comments total) 6 users marked this as a favorite

 
Instapaper copy of the surfthechannel article
posted by adamrice at 10:03 AM on August 17, 2012


Previously leaked memo with MPAA response.
posted by zabuni at 10:04 AM on August 17, 2012


At the site's peak in mid-2009, STC attracted hundreds of thousands of users per day, earning Vickerman up to £50,000 ($78,500) per month in advertising revenue.

I don't think 4 years in jail is necessarily an appropriate sentence, but there's no doubt that Vickerman profited enormously off the unlicensed use of other people's creative works. I have a hard time seeing him in any kind of positive light.
posted by modernnomad at 10:05 AM on August 17, 2012 [1 favorite]


I've also mirrored the statement here just in case other places get C+Ded or drop the text for time cache reasons. To be clear, there's no added value over Instapaper or Google cache, this is just for another option as the thread gets older.
posted by jaduncan at 10:10 AM on August 17, 2012 [1 favorite]


I'm more than a little confused by this. He didn't upload copyrighted materials; he just linked to the streams for them which had been uploaded on other sites (Youku, Youtube, MegaVideo, etc), right? Is that an illegal thing now? Wouldn't that make things like this equally illegal?
posted by specialagentwebb at 10:11 AM on August 17, 2012 [1 favorite]


I don't think 4 years in jail is necessarily an appropriate sentence, but there's no doubt that Vickerman profited enormously off the unlicensed use of other people's creative works. I have a hard time seeing him in any kind of positive light.

It depends on the light you see this in. I don't have a huge view on the sentence, but I find the due sentence and evidence chain issues horrific.
posted by jaduncan at 10:11 AM on August 17, 2012


*due process, obviously.
posted by jaduncan at 10:11 AM on August 17, 2012


I'm more than a little confused by this. He didn't upload copyrighted materials; he just linked to the streams for them which had been uploaded on other sites (Youku, Youtube, MegaVideo, etc), right? Is that an illegal thing now? Wouldn't that make things like this equally illegal?

The view that it is of questionable illegality certainly was the view taken by the CPS when they refused to prosecute. This isn't a court of note, and I find it hard to think that much of the legal reasoning will stand. If Vickerman was genuinely uploading to the Chinese video servers he was linking to, he's clearly culpable. This was a terrible quality judgment though, so it's hard to clearly distinguish a lot of the legal issues at hand.

Given that two lower courts have disagreed on the legality of linking, there's clear scope for an appeal on it as a point of law though.
posted by jaduncan at 10:15 AM on August 17, 2012


It depends on the light you see this in.

But what are the different 'lights'?
posted by modernnomad at 10:25 AM on August 17, 2012 [1 favorite]


The judge's sentencing remarks.
posted by Skeptic at 10:26 AM on August 17, 2012


It depends on the light you see this in.
But what are the different 'lights'?
There are three lights.
posted by k5.user at 10:34 AM on August 17, 2012 [2 favorites]


And, reading the remarks, I clearly get a feeling that the judge may have let his (possibly justified) personal animosity towards Vickerman influence his judgment.
posted by Skeptic at 10:34 AM on August 17, 2012 [1 favorite]


I didn't realize that in the UK a private individual could prosecute a criminal case. That isn't possible here in the US, and I think it's grotesque.
posted by Chocolate Pickle at 10:43 AM on August 17, 2012 [1 favorite]


United Kingdom law differs. There, private parties can initiate criminal prosecutions if they're willing to cover the costs out of their own pockets. FACT was, and so it bypassed CPS and brought criminal charges against Vickerman directly.

Seriously? I can bring a criminal case if I'm willing to fund it?
posted by ChurchHatesTucker at 10:45 AM on August 17, 2012 [1 favorite]


Dammit, Pickle!
posted by ChurchHatesTucker at 10:45 AM on August 17, 2012


Jesus... one of a dozen things that happened in this case would have had it summarily tossed in a US court. Not that it would have gotten there as the actual authorities declined to prosecute and I'm pretty sure you can't privately sue someone into jail...

I also don't know what F.A.C.T. was trying to gain arguing to The Guardian that the story was biased, given that The Guardian usually does exactly-what-it-says-on-the-tin in a conflict between a David and a Goliath subsidiary.
posted by Slackermagee at 10:47 AM on August 17, 2012


Seriously? I can bring a criminal case if I'm willing to fund it?

You can. Charities do it a lot, and it's occasionally done by hugely irritated rich fathers when their daughter is deflowered at fifteen and three quarters.

Jesus... one of a dozen things that happened in this case would have had it summarily tossed in a US court. Not that it would have gotten there as the actual authorities declined to prosecute and I'm pretty sure you can't privately sue someone into jail...

Yes, that's what I find shocking about it. It's a terrible breach of due process on several levels combined with an apparently surprisingly incompetent judge, and the seriousness of that isn't affected at all by Vickerman's guilt or otherwise.
posted by jaduncan at 10:50 AM on August 17, 2012


Also, it WASN'T four years. Its eight. Its four years per convicted offense... Christ, yeah the guy would seem arrogant at sentencing if he knew he wasn't doing any illegal (unethical, sure, but that isn't the fucking law here) and continued living accordingly.
posted by Slackermagee at 10:50 AM on August 17, 2012


No, it's four. Four years per offence, served concurrently.
posted by modernnomad at 10:53 AM on August 17, 2012 [1 favorite]


I didn't realize that in the UK a private individual could prosecute a criminal case. That isn't possible here in the US, and I think it's grotesque.

Actually, it is possible in quite a few countries, and not such a bad idea per se, as public prosecutors are vulnerable to political pressure. The Pinochet case, for instance, was brought forward by a private prosecution (Spain's public prosecution service didn't just prefer to drop the case, but actively sought to undermine it). But in civil law countries, there is the figure of the investigating magistrate to oversee the work of any prosecution, public or private.
posted by Skeptic at 10:53 AM on August 17, 2012 [4 favorites]


k.5 i think there are 4 lights
posted by sio42 at 10:54 AM on August 17, 2012 [1 favorite]


No, it's four. Four years per offence, served concurrently.

OOPS. Yeah, missed the concurrently part. Still a PoS trial though.
posted by Slackermagee at 10:56 AM on August 17, 2012


I'm more than a little confused by this. He didn't upload copyrighted materials; he just linked to the streams for them which had been uploaded on other sites (Youku, Youtube, MegaVideo, etc), right? Is that an illegal thing now? Wouldn't that make things like this equally illegal?

No, because the charge was conspiracy to defraud, not violating copyright. This is a very important distinction. He was not charged merely with linking to copyrighted material, but overseeing/coordinating a very large operation that actively hunted out said material and encouraged others to make copyrighted material freely available, knowing that that it would have the effect of depriving the true copyright owners of revenue. This is why Vickerman's defence was mainly "I didn't know we were linking to movies, i thought we were just linking to TV shows", because it would have been harder to prove that the copyright owners of 40 year old TV shows were losing revenue as a result of STC.

So the issue is not whether linking to copyrighted material in the UK is illegal or not, which is why the location of the server is in fact irrelevant to a legal analysis as the judge said, despite Vickerman's apparent surprise at this fact in his statement.
posted by modernnomad at 11:05 AM on August 17, 2012 [2 favorites]


Well, at least the fuckers didn't really accomplish anything other than petty vengence with this horrible miscarriage of justice. TV and Movie streaming has never been better, is what I would say if, umm, I actually did that sort of thing, because of course I never would...
posted by Chekhovian at 11:09 AM on August 17, 2012


So they'll be going after YouTube next, right? Because they have actually HOSTED mega-shit-tons of infringing material over the last ten years...
posted by oneswellfoop at 11:13 AM on August 17, 2012


public prosecutors are vulnerable to political pressure.

I am not completely convinced that the solution to this is to just allow the monied interests who might have to otherwise make bribes or purchase influence to just had direct access to criminal prosecution instead.

It does skip a step however and is rather more efficient for that reason at least. SUPREME PROSECUTOR'S OFFICE, brought to you by SAMSUNG. I could see that taking off someday.
posted by Winnemac at 11:18 AM on August 17, 2012 [1 favorite]


The four years' imprisonment isn't the sum of his punishment, though;

from the opinion (which is worth reading):

"In addition and having regard to the way in which you conducted yourself as a director of the company Scopelight Ltd, which you utilised to give effect to this business, I’m satisfied that it is appropriate to disqualify you from holding the office of a director or from acting as the receiver of a company’s property or in any way either directly or indirectly being concerned or taking part in the promotion formation or management of a company without leave of this court or having regard to your expressed intention to become a lawyer from acting as an insolvency practitioner for a period of 5 years."
posted by oneironaut at 11:26 AM on August 17, 2012


The thing I find odd is whether this really counts as "conspiracy", as if so, why not prosecute any site or person that in any way makes it possible to find copyrighted material? If you neither have to upload the material, nor communicate or arrange with those who do, what's the bar here that the site passed? The material could surely be found without the website, so surely you could argue that the website's use by an individual was only incidental and not contingent? It would seem to be that because the website could be "characterized" as having this purpose. But so does Youtube, in all fairness, where I myself listen to reasonable large amounts of music with no copyright information, and which has been allowed to stand for years.


I didn't realize that in the UK a private individual could prosecute a criminal case. That isn't possible here in the US, and I think it's grotesque.
The private prosecution isn't the issue here, and it's not really a worry overall assuming you get a competent judge. It might be foreign to you, but that's no reason to think it "grotesque". Indeed if it allows a prosecution to go ahead that otherwise would not, the harm only comes when a judge fails to recognize a worthwhile prosecution from a spurious one. Your reaction is unwarranted, or at least not well thought out.
posted by Jehan at 11:27 AM on August 17, 2012


what's the bar here that the site passed?

It appears that it was his active efforts to organize large numbers of individuals to collect the links, translate the necessary Chinese sites, etc, while knowing at some point the copyright in those works had to be infringed in order for the links to be generated, even if he himself did not do it. It's not that dissimilar to the way racketeering charges are used in organized crime to go after people at the top, even if they've never touched a gun.
posted by modernnomad at 11:39 AM on August 17, 2012


Meanwhile on YouTube...
posted by mullingitover at 11:39 AM on August 17, 2012


...the harm only comes when a judge fails to recognize a worthwhile prosecution from a spurious one. Your reaction is unwarranted, or at least not well thought out.

Uh, given the judgement, the reaction seems warranted.
posted by ChurchHatesTucker at 11:40 AM on August 17, 2012 [1 favorite]


The distinction with YouTube is that (as far as we know), nobody at YouTube is actively encouraging people to upload copyrighted materials, and they have a pretty rapid takedown policy in place when it happens. You're not going to see full copies of "The Dark Knight Rises" on youtube for any lengthy amount of time. Again, the charge was not copyright infringement, it was conspiracy to defraud.
posted by modernnomad at 11:42 AM on August 17, 2012


The private prosecution isn't the issue here, and it's not really a worry overall assuming you get a competent judge. It might be foreign to you, but that's no reason to think it "grotesque". Indeed if it allows a prosecution to go ahead that otherwise would not, the harm only comes when a judge fails to recognize a worthwhile prosecution from a spurious one. Your reaction is unwarranted, or at least not well thought out.

You don't see any potential problems with for profit corporations conducting and prosecuting their own criminal cases? A government is at least theoretically supposed to operate under the pretense of being fair to everyone and working in the public's best interests. Whereas a corporation represents no interests other than that of themselves. They are paying for the laws to get written in the first place in the form of lobbying, paying for private investigators to investigate possible cases of the law being broken, and paying for the cases they manufacture to be prosecuted. Seems like a significant subversion from the ideal way that criminal laws are created and enforced.
posted by burnmp3s at 11:50 AM on August 17, 2012 [1 favorite]


For there to be a "conspiracy to defraud" shouldn't there have to be some actual or potential fraud involved?
posted by hattifattener at 11:50 AM on August 17, 2012


burnmp3s, I think you're speaking from an american perspective, assuming that the English legal system is exactly the same as the American, save for this one aspect re the possibility of private prosecutions. It isn't. In addition to distinctions between barristers and solicitors (meaning FACT can't have "in-house counsel" that could represent them in court, as say the MPAA could in the US - FACT can't even communicate directly with their representative in court (their barrister) in England), the Crown Prosecution Service also still has the ultimate say over any private prosecution, and if they see a prosecution as malicious or unfounded or otherwise contrary to the public interest they can take it over and then discontinue it.

There are several common law jurisdictions that allow private prosecutions, all with this Crown or govt oversight, without the rampant abuse of law by corporations that you envision. I'd be more worried about the results of decisions like Citizens United to pervert democracy and justice than the concept of private prosecutions as they structured elsewhere in the world.
posted by modernnomad at 12:00 PM on August 17, 2012 [1 favorite]


Justice Gap has an article on private prosecutions, which are said to be "a valuable constitutional safeguard against inertia or partiality on the part of authority". The Crown Prosecution Service has the right to take over any private prosecution and either continue with the prosecution or discontinue it. If the case was dodgy, but the CPS did not intervene and judge and jury convicted, then the fault really lies with those individual decision-makers, not with a system that allows private prosecutions.
posted by wilko at 12:01 PM on August 17, 2012


The private prosecution isn't the issue here, and it's not really a worry overall assuming you get a competent judge. It might be foreign to you, but that's no reason to think it "grotesque". Indeed if it allows a prosecution to go ahead that otherwise would not, the harm only comes when a judge fails to recognize a worthwhile prosecution from a spurious one. Your reaction is unwarranted, or at least not well thought out..

In what sense is it just for such prosecutions to be undertaken solely for individuals who can afford to "fund" (read: bribe) the necessary agencies?
posted by Sys Rq at 12:04 PM on August 17, 2012 [1 favorite]


You don't see any potential problems with for profit corporations conducting and prosecuting their own criminal cases? A government is at least theoretically supposed to operate under the pretense of being fair to everyone and working in the public's best interests. Whereas a corporation represents no interests other than that of themselves. They are paying for the laws to get written in the first place in the form of lobbying, paying for private investigators to investigate possible cases of the law being broken, and paying for the cases they manufacture to be prosecuted. Seems like a significant subversion from the ideal way that criminal laws are created and enforced.
Exactly, and the state provides both the laws, the police, and the courts. If they've already subverted one of more of them (as you claim), it makes no difference who's pursuing the case. But launching a private prosecution in itself, is not a worry. In jurisdictions where private prosecutions don't exist, businesses can still buy laws, bully the police, and skew courts. If the conditions for making a private prosecution unfair exist, then they make public prosecutions also unfair.
In what sense is it just for such prosecutions to be undertaken solely for individuals who can afford to "fund" (read: bribe) the necessary agencies?
If you're reading "bribe", then private prosecutions are not the problem. In a system where bribes effect the enforcement of the law, it makes no difference. Either the system is corrupt, or it is not. Private prosecutions have no bearing on this.

If businesses can buy laws themselves, it doesn't matter who enforces them. That's the point.
posted by Jehan at 12:08 PM on August 17, 2012


The distinction with YouTube is that (as far as we know), nobody at YouTube is actively encouraging people to upload copyrighted materials, and they have a pretty rapid takedown policy in place when it happens. You're not going to see full copies of "The Dark Knight Rises" on youtube for any lengthy amount of time. Again, the charge was not copyright infringement, it was conspiracy to defraud.
The problem I have with this argument is that copyrighted material remains on Youtube for substantial lengths of time (years), and the very inactivity in removing it kinda works towards its implicit acceptability.
posted by Jehan at 12:11 PM on August 17, 2012 [1 favorite]


There's a big area between "so bad it should be taken over and discontinued" and "not normally a matter for prosecution". See the 15 and three quarter year old deflowered girl with a rich father.

The CPS will only intervene in the following circumstances:
A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test [short version - too terrible quality a case to stand] is not met.

However, even if the Full Code Test is met, it may be necessary to take over and stop the prosecution on behalf of the public where there is a particular need to do so, such as where the prosecution is likely to damage the interests of justice. Examples include:

* cases where the prosecution interferes with the investigation of another criminal offence;
* cases where the prosecution interferes with the prosecution of another criminal charge;
* cases where it can be said that the prosecution is vexatious (within the meaning of section 42 Supreme Court Act 1981, as amended by section 24 Prosecution of Offences Act 1985), or malicious (where the public prosecutor is satisfied that the prosecution is being undertaken on malicious grounds);
* cases where the prosecuting authorities (including the police, the CPS or any other public prosecutor) have promised the defendant that he will not be prosecuted at all (a promise of immunity from prosecution): Turner v DPP (1979) 68 Cr. App. R. 70. This does not include cases where the prosecuting authorities have merely informed the defendant that they will not be bringing or continuing proceedings;
* cases where the defendant has already been given either a simple caution or a conditional caution for the offence (which remains in being), and the simple caution was appropriately given in accordance with Home Office cautioning guidelines, or the giving of the conditional caution was in accordance with the Director's Guidance on Conditional Cautioning.

The policy in intervening in private prosecutions when there is no case to answer, or where the public interest factors against the prosecution outweigh those in favour, is lawful, but should be applied to each charge individually: R v DPP Ex Parte Duckenfield; R v SAME Ex Parte Murray; R v South Yorkshire Police Authority and Another Ex Parte Chief Constable of South Yorkshire Police [2000] 1 WLR 55; and Raymond v Attorney General [1982] 75 Cr. App. R. 34.

In cases where you decide that taking over a private prosecution in order to stop it is the appropriate course of action, then, unless there are exceptional circumstances, you should write to the private prosecutor explaining the reasons for your decision.
I personally think the option of a private prosecution is a good thing, but I can certainly see the argument Sys Rq is making given that they are all but explicitly to allow parties to criminally litigate in the "not normally a matter for prosecution" grey area where the harm or apparent culpability is not sufficient to be worth spending government money.
posted by jaduncan at 12:15 PM on August 17, 2012


If you're reading "bribe", then private prosecutions are not the problem. In a system where bribes effect the enforcement of the law, it makes no difference. Either the system is corrupt, or it is not. Private prosecutions have no bearing on this.

I'm trying to get that to make nay kind of sense at all, but I just can't wrangle it.

Private prosecutions are, in effect, bribes.

"Investigate this case, please."
"No."
"Here is some money."
"Yes sir!"

That is bribery. That is corruption. That is private prosecution.
posted by Sys Rq at 12:17 PM on August 17, 2012 [3 favorites]


nay any
posted by Sys Rq at 12:17 PM on August 17, 2012


That is bribery. That is corruption. That is private prosecution.
Why is it? You're not making any sense. The prosecution can only be successful if one of two conditions are met:

1) a law was actually broken, in which case you're saying that it is corrupt to prosecute an offense, or
2) the judge is corrupt or incompetent, in which case that is a problem even if a public prosecution is brought.

I can understand, as jaduncan says, that it is a worry in edge cases, but the general blanket cry of "corruption!" is just silly nonsense.
posted by Jehan at 12:22 PM on August 17, 2012 [1 favorite]


Why is it? You're not making any sense.

Because not everyone can afford it. There are two levels of justice: One for those who can pay, and one for those who can't.
posted by Sys Rq at 12:25 PM on August 17, 2012 [2 favorites]


Because not everyone can afford it. There are two levels of justice: One for those who can pay, and one for those who can't.
So it's not corruption at all, but rather inequality or access. What is the difference though between a private prosecution in a criminal case and a civil one?
posted by Jehan at 12:27 PM on August 17, 2012


I'd support private prosecutions if beneficial organizations like the EFF, CDT, CATO, NOW, NAACP, Green Peace, PETA, AFL-CIO, Pirate Party, etc. can effectively prosecute corporate malfeasance, but afaik this never happens in the U.K.

In practice, there is an awful lot about the British legal system designed to serve the upper classes' interests. Examples : Their libel system was built specifically to help the upper class control the lower class. Their copyright system, which America copied, was first developed as a censorship system. etc.

I could imagine creating a category of non-profit organizations with the power to prosecute any organization, but perhaps not individuals, for crimes the state refused to prosecute, but presumably should organizations should prove they serve the public interest by adhering to strict financing rules.
posted by jeffburdges at 12:29 PM on August 17, 2012


Because not everyone can afford it. There are two levels of justice: One for those who can pay, and one for those who can't.


That's just really not at all how CPS works. You're trying to conjure up a scenario where someone has been a victim of an assault or something and goes to CPS and they say, "no, we're not going to do it unless you pay us 5000 pounds", and I've never heard of anything like that. There simply is no such outright bribery in the English prosecution system.

The only inequality is the same as that in the civil system -- those with more money can afford better lawyers. But that is a universal truth, and doesn't have any bearing on this case. The private prosecution thing is a red herring. If people think Vickerman didn't commit conspiracy to defraud, that's fair enough, but it seems like a lot the comments here so far are of the "man i love streaming media fuck the MPAA assholes" type .

Hey, I like streaming media too. I think the big media companies have their heads up their asses when it comes to figuring out the internet. But I don't have a problem seeing guys like Vickerman get punished after raking in half a million dollars. He's not a guy in his mum's basement being sent to jail for downloading a couple of shitty mp3s.
posted by modernnomad at 12:31 PM on August 17, 2012


What is the difference though between a private prosecution in a criminal case and a civil one?

In a civil case you just lose money rather than spend time in a prison. Whether or not I'm free to live my life should not be a question of whether or not rich people dislike me. It's the same reason why debtors' prisons are a bad idea.
posted by burnmp3s at 12:36 PM on August 17, 2012


In a civil case you just lose money rather than spend time in a prison

It's possible to be cited for contempt in a civil case and spend time in prison - and this is used when people don't pay their fines/damages/awards etc. But only in the US, as far as I know.
posted by the man of twists and turns at 12:39 PM on August 17, 2012


In a civil case you just lose money rather than spend time in a prison. Whether or not I'm free to live my life should not be a question of whether or not rich people dislike me. It's the same reason why debtors' prisons are a bad idea.
But prosecution is only successful if you've broken the law, in which case your punishment is your own problem, or the judge is corrupt or incompetent, in which case the problem is larger than private prosecution. We've been through this already.

Further, loss of money can be a greater loss than imprisonment, depending on the situation. Losing your house, savings, all your income and assets, is in many cases worse than punishments for criminal cases, where imprisonment is not the only outcome. The idea of "possible harm" isn't relevant, unless you make the most serious civil cases publicly prosecuted only, and allow private prosecution of minor criminal cases.
posted by Jehan at 12:40 PM on August 17, 2012 [2 favorites]


That's just really not at all how CPS works. You're trying to conjure up a scenario where someone has been a victim of an assault or something and goes to CPS and they say, "no, we're not going to do it unless you pay us 5000 pounds", and I've never heard of anything like that. There simply is no such outright bribery in the English prosecution system.

Aside from the specific charge and amount of money, is that not exactly what happened here?
posted by Sys Rq at 12:42 PM on August 17, 2012


Aside from the specific charge and amount of money, is that not exactly what happened here?
No. The CPS didn't prosecute this case. They took no money, and performed no action. FACT did not buy the CPS.
posted by Jehan at 12:49 PM on August 17, 2012


There are two levels of justice: One for those who can pay, and one for those who can't.

One law for rich and poor alike, which prevents them equally from sleeping under bridges or stealing bread.

--The Tomorrow People
posted by ChurchHatesTucker at 12:49 PM on August 17, 2012 [2 favorites]


No. The CPS didn't prosecute this case. They took no money, and performed no action. FACT did not buy the CPS.

Fair enough. But the effect on the public at large is exactly the same as if they had.
posted by Sys Rq at 12:50 PM on August 17, 2012


Fair enough. But the effect on the public at large is exactly the same as if they had.
Why?
posted by Jehan at 12:51 PM on August 17, 2012


No, it's not. CPS originally declined to bring charges because they felt they lacked the necessary evidence to convict. FACT disagreed. FACT did not pay CPS anything. FACT spent their own money on gathering evidence and brought it before a court.

In court, both parties had access to barristers who argued before a neutral judge, not in the employ of FACT or any related organization, or Vickerman, and a 12 person jury. That jury decided that Vickerman was guilty of conspiracy to defraud..

That is pretty far from what you are calling flat out bribery resulting in a conviction.
posted by modernnomad at 12:51 PM on August 17, 2012


I'd just like to say that I broadly agree with Jehan; it's an edge case where the issue I'm identifying is, and the quality of this case certainly isn't indicative of the broader norm. That said, Sys Rq, you are correct that in this edge case there is clear inequality in how likely the law is to be applied (although I disagree that this is actually corrupt as such, more a potential systemic issue of access to justice).

If I were looking for clear corruption in this case, I'd be pointing at the breaking and entering and utter disregard for the rules of the chain of evidence by FACT investigators, as well as at the inexplicable decision of Bedfordshire Trading Standards Financial Investigations Unit to attempt an utterly ultra vires legal action whilst having their salaries paid by FACT. That's hugely problematic.
posted by jaduncan at 12:53 PM on August 17, 2012


In a Tuesday interview, FACT spokesman Eddy Leviten brushed off any suggestion that the financial ties between FACT and the BTSFIU created a conflict of interest, however.

"The banking industry in the UK funds the check and credit bureau in the Metropolitan Police," he told us. "It's something that happens in the UK where private industry can fund specific units within law enforcement to take on a specific role. Those units still have to withstand the same scrutiny" as any other law enforcement agency.
This is not the ringing endorsement of impartiality that he thinks.
posted by the man of twists and turns at 12:54 PM on August 17, 2012 [2 favorites]


But prosecution is only successful if you've broken the law, in which case your punishment is your own problem

There is some percentage of the population that is currently breaking one law or another. The government has an incentive to use its limited resources to prosecute cases against people in a way that is in the public as a whole's best interests. Private corporations have no such incentive. So a criminal justice system which allows a significant amount of crimes to be investigated and prosecuted using private funds will tend to skew the population of people who are convicted of crimes towards whatever the interests are of the people who are paying for it. If in the UK for example an organization was established to hire private investigators to follow people of a certain race and pay for prosecutions leading from that evidence gathering, it would would create a more systematically racist justice system, even if all of the actual people convicted actually committed crimes.
posted by burnmp3s at 12:55 PM on August 17, 2012


No, it's not. CPS originally declined to bring charges because they felt they lacked the necessary evidence to convict. FACT disagreed. FACT did not pay CPS anything. FACT spent their own money on gathering evidence and brought it before a court.

It also has to be said that it would appear, one way or another, that FACT were correct about this. The issues aren't to do with who actually prosecuted the legal action, they are (IMHO) to do with the poor quality of evidence and argument that resulted in conviction and the apparently documented lawbreaking during investigation.

Even there it should be noted that Vickerman was incorrect to think that RIPA 2000 applies to private parties; it doesn't, and that was a matter of considerable concern in the Cambridge law department when they brought the draft up for consultation.
posted by jaduncan at 12:57 PM on August 17, 2012


Small shout out: Doctor Munday, you were apparently correct that this loophole would be exploited to gather evidence that the police cannot.
posted by jaduncan at 1:00 PM on August 17, 2012 [1 favorite]


If I were looking for clear corruption in this case, I'd be pointing at the breaking and entering and utter disregard for the rules of the chain of evidence by FACT investigators, as well as at the inexplicable decision of Bedfordshire Trading Standards Financial Investigations Unit to attempt an utterly ultra vires legal action whilst having their salaries paid by FACT. That's hugely problematic.
Yeah, the whole "let's get Bedfordshire Trading Standards to do act in Gateshead is indeed highly suspect. What the hell were they even thinking by agreeing to it?
There is some percentage of the population that is currently breaking one law or another. The government has an incentive to use its limited resources to prosecute cases against people in a way that is in the public as a whole's best interests. Private corporations have no such incentive. So a criminal justice system which allows a significant amount of crimes to be investigated and prosecuted using private funds will tend to skew the population of people who are convicted of crimes towards whatever the interests are of the people who are paying for it. If in the UK for example an organization was established to hire private investigators to follow people of a certain race and pay for prosecutions leading from that evidence gathering, it would would create a more systematically racist justice system, even if all of the actual people convicted actually committed crimes.
Again, that speaks to inequality of access, not corruption. Again, it applies equally to civil cases as it does to criminal cases, for which nobody has put up any argument against private actions. Besides, in the US, where there is no private prosecution and only public, the police and courts are, in some places, systematically racist in enforcing drug laws, or example. Further, the CPS can shut down case if it feels certain needs are met, making private prosecution by an outside organization less of a worry than a inwardly corrupt or racist system.
posted by Jehan at 1:06 PM on August 17, 2012


Again, that speaks to inequality of access, not corruption.

If you go back and read my comments I never claimed it was "corruption". You can use whatever terms you want for the negative effects that result from allowing private money to fund a criminal justice system.

Again, it applies equally to civil cases as it does to criminal cases, for which nobody has put up any argument against private actions

It's a necessary evil in a civil legal system because the government tends not to be able to decide which people should be able to litigate against which other people. But anyway the fact that civil law systems disproportionately protect the rights of people who have a lot of money is not a valid argument for purposely allowing the same sorts of biases in a criminal system.

Besides, in the US, where there is no private prosecution and only public, the police and courts are, in some places, systematically racist in enforcing drug laws, or example.

That's because those governments are systematically biased against people of those races. Private prosecution is not the only way to add bias to a justice system, just one particular way.

My overall point is that allowing private prosecutions will skew the justice system toward the biases of whoever has the money to fund those prosecutions. You've basically argued that those private interest biases can't completely negate or supersede the law, that those biases could still be forced upon a different type of system, and that similar biases exist in different types of systems, but none of that is really addressing my claim that it's a source of bias.
posted by burnmp3s at 1:27 PM on August 17, 2012


My overall point is that allowing private prosecutions will skew the justice system toward the biases of whoever has the money to fund those prosecutions. You've basically argued that those private interest biases can't completely negate or supersede the law, that those biases could still be forced upon a different type of system, and that similar biases exist in different types of systems, but none of that is really addressing my claim that it's a source of bias.

In the edge case it absolutely is, as I was mentioning earlier in the thread. This case is an example of that edge subset of cases.
posted by jaduncan at 1:34 PM on August 17, 2012


What the hell were they even thinking by agreeing to it?

Presumably "my actual bosses are FACT, not the county council". It makes me wince.
posted by jaduncan at 1:52 PM on August 17, 2012


Again, it applies equally to civil cases as it does to criminal cases, for which nobody has put up any argument against private actions.

Well, except for every time it comes up.

But this isn't one of those times, so, hey.
posted by Sys Rq at 1:55 PM on August 17, 2012


Don't piss off the rich, steal from the poor
they don't like robinhood type robbers
over there in England.

I'll get this sorted out sooner or later. I hope the movie industry recovers. According to the judge, this guy nearly destroyed every movie maker--cast, crew, theater owner, and video vender in the world--with his enterprise, and the worst part about it was that he's not even sorry.

This would make a great plot for a movie, starring Liam Neeson and Angelina....

...wait.

...never mind.
posted by mule98J at 2:39 PM on August 17, 2012


I'd support private prosecutions if beneficial organizations like the EFF, CDT, CATO, NOW, NAACP, Green Peace, PETA, AFL-CIO, Pirate Party, etc. can effectively prosecute corporate malfeasance, but afaik this never happens in the U.K.

Well, I wouldn't call all those organisations "beneficial" but at least Greenpeace have already successfully prosecuted corporate malfeasance in the UK. Private prosecutions in Canada also appear to be an effective tool to go after environmental offenders, and they are also often used for the same purpose in Spain, where they are cheaper than civil action.
posted by Skeptic at 3:12 PM on August 17, 2012


I think the thing that concerns me about private prosecutions is where the case is distinctly weak. Defending against a criminal prosecution is enormously expensive, not to mention emotionally draining, and even if the CPS eventually stepped in and shut the prosecution down, the defendant could still suffer major, and perhaps unrelievable, damage long term.

In many states of the US we have laws about SLAPP -- Strategic Lawsuits Against Public Participation -- where people use civil suits against those whose politics they don't like in order to shut them up. (The laws are intended to prevent such abuse of the tort system.)

This ability to privately bring criminal lawsuits potentially raises that to an entirely new level. You may not only be able to financially ruin your political enemy, you might be able to get him tossed in prison!
posted by Chocolate Pickle at 9:05 PM on August 17, 2012


Chocolate Pickle, for harassment purposes, somewhat counterintuitively, criminal prosecution is far less practical than a civil lawsuit. Why? Firstly, because in a criminal lawsuit, the burden of proof is squarely on the prosecution's shoulders. The accused has to be proven guilty, whereas in a civil lawsuit both parties enjoy equal standing. Secondly, because in most criminal justice systems I'm aware of, defendants in criminal cases have access to a court-appointed defender if they can't afford a lawyer. This is not quite the case with civil lawsuits.
posted by Skeptic at 5:06 PM on August 18, 2012


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