Federation Against Copyright Theft Ltd v Stanley Richard Ashton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,My Lord Irwin J,Mr Justice Irwin |
| Judgment Date | 07 June 2013 |
| Neutral Citation | [2013] EWHC 1923 (Admin) |
| Docket Number | CO/12742/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 June 2013 |
[2013] EWHC 1923 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Irwin
CO/12742/2012
Mr Jonathan Caplan QC and Mr Miles Bennett (instructed by Russell-Cooke LLP) appeared on behalf of the Appellant
Mr Andrew Bodnar (instructed by Molesworths Bright Clegg) appeared on behalf of the Respondent
This is an appeal by way of case stated against the decision of the South & West Devon Justices sitting at Plymouth on 4 September 2012 by which they dismissed three informations laid against the respondent alleging offences contrary to section 297(1) of the Copyright, Designs and Patents Act 1988 ("the CDPA"). Section 297(1) provides:
"A person who dishonestly receives a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale."
The respondent was the premises licence holder and designated premises supervisor of the Friary Vaults Club in Plymouth. Each of the informations alleged that the respondent dishonestly received at the club a programme, namely a BSkyB TV broadcast of a Premiership football match
"… provided from a place in the United Kingdom, with intent to avoid payment of a charge applicable to the reception of that programme, namely payment of a fee in accordance with a non domestic viewing arrangement. Contrary to section 297(1)…"
The first information related to the Stoke City v Chelsea match on 14 August 2011; the second to the West Bromwich Albion v Manchester United match, also on 14 August 2011; and the third to the Liverpool v Manchester United match on 15 October 2011. As the case stated recounts at paragraph 2 the proceedings were initiated by solicitors instructed by the Federation Against Copyright Theft Limited ("FACT") by summons on 9 February 2012. The trial took place on 3 and 4 September 2012. We have the magistrates' court's reasoned judgment as well as the case stated to which the judgment was annexed. I will take the facts from the case stated. The magistrates state as follows:
"8. The court found that Mr Ashton was the Premises Licence Holder and Designated Premises Supervisor for the Friary Vaults Social Club in Plymouth. The Social Club is a members' only establishment.
9. Mr Ashton had entered into a non domestic television contract with B/Sky/B to show its Sky Sports Live programmes in the licensed area of the Friary Vaults between the following dates:
• 23rd July 2004 —20th July 2006
• 10th August 2007 —16th March 2010
The contract was terminated on each occasion by B/Sky/B because of non payment of the non domestic monthly subscription fee.
10. Acumen investigators visited the Friary Vaults on the following dates:
• 2007 — Mr Minchinton attended to advise on the requirement to have the correct contract to show Sky Sports Live programmes in the non residential area of the premises.
• 14th April 2010 — visit by Mr Shaddick which was followed by a warning letter outlining the requirement to have the correct contract to show B/Sky/B programmes in the non residential areas.
• 14th May 2010 — Mr Minchinton gave a presentation to Miss Johnson (an employee of Mr Ashton) of the B/Sky/B 'Key Facts' document. On 10th June 2010 a copy of the 'Key Facts' document was sent to Mr Ashton by recorded post.
• On 26th October 2010, 20th November 2010 and 16th January 2011 further visits took place and Sky Sports was being shown on televisions and projector screens within the licensed area.
11. It was accepted on the relevant dates referred to within the Informations [that] televisions and projectors, in the licensed area of the Friary Vaults, were showing pictures of premiership football games which B/Sky/B had exclusive rights to show. It was further accepted that the broadcasts originated from the United Kingdom. The pictures seen on the screens did not have the logos which would indicate that they were being received under a commercial contract with B/Sky/B.
12. Further, it was accepted that there was not a non domestic contract between B/Sky/B and Mr Ashton at the time of the alleged offences.
13. Mr Ashton did have at the time of the relevant offences a residential Virgin media package including Sky Sports Live to his residential flat which was situated above the licensed area.
14. The parties accepted that there is generally a substantial price difference between the monthly cost of a B/Sky/B television subscription package which includes Sky Sport Live for domestic and non domestic customers."
As regards the "substantial price difference" there referred to, the undisputed evidence was that at the time of the alleged offences a BSkyB non-domestic contract for the Friary Vaults would have cost £547.20 per month whereas the Virgin Media residential contract which the respondent had was costing him £102.40. The Virgin contract of course was for domestic use only. It is beyond contention that at the material times the respondent was showing Sky Sports Live programmes in a licensed (thus of course non-residential) area of the Friary Vaults but he did not have, and was not paying for, a non-domestic contract to permit him to do so. The programmes were received and shown through the facility of his Virgin Media residential contract which did not permit him to do that.
The court's findings are shortly set out in the case stated at paragraph 24 under the heading "Was there sufficient evidence on which the Court could properly find that the respondent did make payment to Sky via his Virgin contract including Sky Sports Live?" The court stated:
"The Court found that payment was made for the following reasons:
A. It was the evidence of Ms Norman that the Sky had the exclusive rights to show live premiership football in the United Kingdom and to receive the Sky Sports Live signal a payment would have been made.
B. It was accepted by all the parties that Mr Ashton did not have a domestic or non domestic contract with B/Sky/B at the relevant time of the alleged offences. Mr Ashton did have a contact [sic] with Virgin Media to supply television services to his flat. Therefore, we found the only method which Sky Sports Live was shown in the licensed area was via the Virgin Media Contract which included Sky Sports Live."
Then in the judgment annexed to the case, it is stated at paragraph 25:
"The court, therefore, concludes that Mr Ashton did make payment to Sky via his Virgin Media contract which included Sky Sports Live."
In the circumstances the respondent was acquitted.
The magistrates posed three questions for the opinion of this court as follows:
"Q1. Whether section 297(1) Copyright Designs and Patents Act … on its proper construction proscribes the reception of a programme in circumstances where within the United Kingdom:
I. A person (A) subscribes to a company (B) which is only entitled to provide programmes for domestic use; and
Ii. (B) provides those programmes at a charge which is lower than the charge applicable for their reception in non-domestic/commercial premises; and
Iii (A) knows that the price charged by (B) is lower than the charge applicable for the reception of the programmes in non-domestic/commercial premises and (A) also intends to avoid payment of the higher charge; and
Iv. (A) knows that the higher charge is payable to company (C) which has exclusive rights to broadcast the programmes in non-domestic/commercial premises.
Q2. Were we right to find that the payment for the 'domestic use only' service to Virgin Media in the above circumstances was the payment of any charge applicable to the reception, of the programme(s) in commercial premises (the showing of the live Premiere League football matches)?
Q3. Having regard to the evidence that was agreed and the live evidence called was there any evidence to support our conclusion at paragraph 25 of our written ruling, namely: '…that Mr Ashton did make payment to Sky via his Virgin Media contract which included Sky Sports live.'"
Mr Bodnar has been instructed for the respondent late in the day. He produced a skeleton argument and has addressed us this morning with conspicuous skill and economy. We are indebted to him. He referred to the Murphy cases, including Murphy C-403/08 in the European Court of Justice. In that case the prosecution was laid against the defendant who used a decoder to receive football programmes in her public house via a satellite which beamed the programmes from a provider in Greece. The allegation made by the defence was that this was in effect an attempt to enforce a geographical restriction which was contrary...
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