Court orders delivery of seized satellite equipment to owner after police failed to prove illegal use.

THE DISTRICT COURT

DISTRICT COURT AREA OF LIMERICK DISTRICT NO.13

IN THE MATTER OF THE POLICE (PROPERTY) ACT 1897, THE CRIMINAL JUSTICE ACT 1951 AND AN APPLICATION FOR THE DELIVERY OF PROPERTY IN THE POSSESSION OF AN GARDA SIOCHANA MIKHAIL YUSHCHENKO CLAIMANT

- AND - AN GARDA SIOCHANA RESPONDENT Judgment delivered by Judge Brian O’Shea at Limerick District Court on the 5th day of October 2020

1. The property in issue in this application comprises a significant amount of satellite television and electrical paraphernalia whose total value is in or about €17,000.

2. The Claimant seeks delivery of the property to him on the basis that he is the owner thereof within the meaning of the Police (Property) Act 1897.

3. The property came into the possession of the Respondent following the execution of a search warrant. The legality of the warrant and the search are not in issue.

4. The Respondent furnished the property to SKY for analysis. SKY is a complex corporate entity, but I will refer to it simply as SKY, as its structure is neither relevant nor is it a party to the application. The property has remained in secure storage in the physical possession of SKY.

5. It is necessary, for reasons that will become apparent later, to set out the property in detail. It comprises:

“30 MSQ; 17 Amikos; 4 Revel boxes; 2 Cloud boxes; 2 Dream boxes; 3 SKY boxes; 2 Open boxes; 17 Gemmas; 1 Arriba; 2 Mini X; 7 Mags; 4 Jinx boxes; 1 Android box;

2 Cloud iBox; 1 Cyclone; 1 Smart box; 1 Digital Dragon; 1 VU; 32 SKY+HD boxes;

8 SKY Mini boxes; 4 SKY Q2 TB; 1 SKY Q1 TB; 1 Digi Box; 12 On Demand connectors; 10 SKY+ remotes; 23 loose SKY+ remotes; 1 fake remote; 14 SKY Q remotes; 12 SKY Q touch remotes; 28 SKY Wifi boosters; 4 boxes of LNBs; 33 boxes of LNBs; 7 Mini on Demand connectors; 5 dual LNBs; 4 quad LNBs; 14 Octo LNBs; 7 SKY Q LNBs; 3 loose LNBs; and 1 diary.”

6. The court heard testimony from the investigating garda that on 15 December 2017 she was granted a search warrant by a judge of the District Court pursuant to section 143 of the Copyright and Related Rights Act 2000. The warrant authorised a search and seizure at premises located at 12 Lower Gerard Griffin Street, Limerick. The premises houses a business known as SatCity. That business is owned and operated by the Claimant. All the property in issue was seized as a result of the search of the premises. The reason for the seizure was stated in evidence to be that “the property was believed to be allowing unauthorised access to SKY”.

7. Under cross-examination the garda confirmed that it was the gardai and not SKY who seized the property. That it was SKY that approached the gardai with a prepared report and that the content of the report led to the application for the warrant. The report indicated what were described in court as “breaches of the law” in the sense that it concluded that some of the items seized under the warrant allow unauthorised access to SKY television. The garda agreed that the criminal investigation is complete and that there is no prosecution arising out of the garda investigation.

8. The court also heard testimony from an expert engaged by SKY. He testified that he conducted a “test purchase” at SatCity. He testified that at the point of sale he was informed by a person working in the shop that the satellite box he bought would allow access to SKY television. He subsequently analysed the device and determined that it was “loaded” with software that would allow access to SKY television. He stated that the seized property was determined to belong to three categories: (1) items suspected of being “loaded”; (2) counterfeit remote controls not authorised by SKY; and (3) stolen SKY property.

9. The Claimant also testified. He acknowledged that he runs the business known as SatCity. He referred to it as a “registered business”. He testified that he is registered with “multiple service providers”. He stated that many of the seized boxes are “free-toair” and have no software on them. He stated that he used the second-hand SKY HD boxes for parts, specifically he reutilises their hard drives, although he did not say for what purpose. He described this process as “recycling”. He testified that these are boxes that SKY are no longer interested in because of their antiquity. With regard to the remote controls he said that SKY do not have a monopoly on remote controls and that they are readily available. By way of example he said the same remote controls that he had are available at Harvey Norman stores. He said it would be impossible for him to know if items were counterfeit. He stated that he did not intend to sell all of the seized property.

He could not explain what was said by the sales assistant at the time of the test purchase.

10. There were no exhibits presented to the court, save for a list of the items seized, in ease of notetaking. At the conclusion of the evidence. Counsel for the Claimant submitted that there is nothing to say whether the SKY boxes were out of contract. He reminded that court that the Claimant testified that he only uses the SKY boxes for hard drives. He contended that SKY do not actually own the boxes and have no interest in collecting them after the elapse of time. He argued that the Claimant was at a disadvantage by not having access to the report that led to the warrant. On this point, following an inquiry by the court, he agreed that the proceedings were not criminal in nature and that his solicitor had not sought disclosure of the report. Thereafter he did not pursue the matter. He informed the court that the property represented a significant investment by the Claimant. He argued, although it was not put to the witnesses, that SKY “dislikes” shops such as SatCity because SKY is “driven by maintaining market share”. He argued that the Claimant had established ownership. He concluded by referring to the fact that no prosecution had arisen from the investigation.

11. The Respondent made no submissions.

12. Subsection 1(1) of the 1897 Act provides: “Where any property has come into the possession of the police in connexion with any criminal charge … a court of summary jurisdiction may, on application, either by an officer of the police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the … court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the … court may seem meet.”

13. With regard to the applicability of section 1 of the 1897 Act, in The King (Patrick Curtis) v The Justices of County Louth [1916] KB 616, Cherry LCJ opined as follows (page 619 of the judgment): “The section is very general in its terms, and is merely intended to relieve the police, while leaving unsettled any question as to true ownership … it applies whenever the property is in the possession of the police for the purpose of criminal prosecutions, no matter from whom or in what way it comes into their hands.”

14. Subsequently, section 25 of the Criminal Justice Act 1951 provided that the court may make an order pursuant to subsection 1(1) of the 1897 Act “although no person has been charged with an offence in connection with it.”

15. With regard to ownership in the context of the 1897 Act, in O’Neill v. Roe (unreported, Circuit Court, 8 November 2012), Groarke P concluded that the real question for the court is whether the court “believes” the Claimant owns the property. Presumably this must be taken to mean “believes to the standard of proof in civil matters.”

16. The matter was put beyond doubt by the Court of Appeal in Donoghue v O’Donoghue and Others [2018] IECA 26. Ryan P opined (at page 10 of the judgment) that proof of ownership, as opposed to possession, on the balance of probabilities is what section 1 of the 1897 Act requires. The learned President (at pages 9 to 10 of the judgment) adopted Widgery CJ’s dicta in Lyons & Co Ltd v Metropolitan Police Commissioner [1975] 1 QB 321, that “owner” should be given its ordinary meaning as “a person who is entitled to the goods in question, a person whose goods they are, not simply the person who happens to have them in his hands at any given moment.”

17. The starting point for any analysis of the instant case must be that the Claimant, and every citizen for that matter, has constitutionally-based property rights. These rights may only be interfered with in accordance with the law. The law, more particularly section 143 of the Copyright and Related Rights Act 2000, provides for the seizure of property pursuant to warrant. The legality of the warrant and the seizure in this case is accepted by the Claimant. The 1897 Act as amended provides for the disposal of that property in certain circumstances. As this is a “delivery” application by the purported owner rather than a “disposal” application by the police, the onus of proof is on the Claimant.

18. The height of the evidence offered by the Respondent is that:

a) A report authored by the SKY expert indicated “breaches of the law” in the sense that is concluded that some of the items seized under the warrant would allow unauthorised access to SKY television.

b) A test purchase was conducted at SatCity and the sales assistant informed the purchaser that the box they purchased would allow access to SKY television.

c) This box was “loaded” with software that allowed access to SKY television.

d) The property comprised of items suspected of being “loaded”, counterfeit remote controls, and stolen SKY property.

19. The Claimant countered all of the above evidence with seemingly legitimate explanations, that is to say, explanations that were as consistent with innocence as with guilt. The only exception related to the purported conversation that occurred at the point of sale in relation to one of the boxes, which he was expressly asked to explain, but could not. The shop assistant was neither identified nor testified.

20. The property in issue is currently in the physical possession of SKY. This possession is purely practical, as SKY carried out the analysis and was in a position to securely store the property. The actual possessor of the property is the Respondent, who is presently the only party in a position to exercise control over it. This is because the property was seized by the Respondent as part of a lawful search and seizure on foot of a validly issued warrant. On the facts of this case, possession is not important. Ownership, as opposed to possession, is at the core of applications of this nature.

21. The evidence presented to resist the claim primarily consists of suspicions. The testimony of the witnesses for the Respondent was vague, to say the least. At no stage during the application was there any effort by Respondent to set out which of the items were used to seek to gain access to SKY television. Indeed, the evidence is that the “loaded” item would allow access to SKY. The Respondent made a broad accusation that some of the items seized were suspected of being “loaded”. He stated some of the remote controls were counterfeit. Finally, he asserted that some of the property was suspected to be stolen. He did not specify why the items were suspected of being “loaded”; he did not specify which items were “loaded”; he did not make any effort to cross-reference the alleged items with the list of items presented to the court. Neither did he say what caused him to conclude that the remote controls were counterfeit. He did not say which remote controls were allegedly counterfeit. He did not cross-reference any of the suspected counterfeit items with the list of items presented to the court. He did not testify as to why he concluded that some of the property was stolen. He did not testify which items were stolen. He did not cross-reference any allegedly stolen items to the list of property in issue. None of the items were produced to the court.

22. Although section 25 of the 1951 Act allows for the disposal of property notwithstanding the lack of any criminal charges, it is a factor, on the facts of this case, that a full criminal investigation in this matter is now complete and the Claimant has not been charged with any offence, in circumstances where the SKY expert sought to categorise some the property as counterfeit and stolen. It is noteworthy that the investigating garda did not expressly testify that any of the property was counterfeit or stolen. That suspicion was solely contained in a report that the SKY expert prepared for the Respondent to enable the Respondent to secure a search warrant. While it would have been inappropriate to seek to admit the report itself into evidence, the expert author of the report, who testified in the application, would have been entitled to set out the basis for his conclusions, but he never did.

23. On the evidence, on balance, I am satisfied that the Claimant owns the property within the meaning of the 1897 Act. The Respondent seeks to divest the owner of his constitutionally guaranteed rights on the basis of the evidence presented to the court. If the property rights of the owner are to be restricted to the extent that the court would decline to order delivery to the owner, or subsequent disposal of such property, then there must be more cogent evidence presented to the court than was presented by the Respondent in the instant case. While the Claimant has established ownership on the balance of probabilities, the Respondent has done no more than make vague unproven assertions based on suspicions and other material that was not presented to the court, and which is therefore not in evidence. On the evidence, it is impossible for the court to reconcile any of the individual items of seized property with any alleged illegality or even impropriety.

24. I must say that I have a slight reservation about the inability of the Claimant to properly explain the allegations surrounding the test-purchase. As already stated there were certain evidential issues surrounding this aspect of the application. However, the testpurchase procedure and its surrounding circumstances were not contested. Significantly, the Respondent did not create any evidential nexus whatsoever between the testpurchase item and the seized property. Indeed, it is not clear whether the test-purchase item is even on the list of seized property. The Respondent also failed to link the testpurchase item to any other item or items on the list of seized property that were purported to allow access to SKY television. It is also somewhat curious, but no more than that, that the Claimant testified that he would not be able to identify a counterfeit remote control, given his level of understanding and expertise of his profession.

However, assessing all the evidence in the round my reservations in this regard are insufficient to cause me any significant pause, and are certainly insufficient enough to cause me to come to a different conclusion to the one that I have reached.

25. The Claimant is the owner of the property within the meaning of the 1987 Act. The Claimant has met his burden of proof. There is no specific competing claim of ownership.

The Respondent’s opposition to the application is vague and lacks specificity, to say the least. Accordingly, the application for delivery of the property to the Claimant is granted.

I use the word “delivery” in the context of the 1897 Act, as opposed to imposing any practical obligation on the Respondent. The order of the court must be complied with within twenty-one days. Having decided the case on its particular facts it is inappropriate to impose a stay on these orders.