Karen Murphy v Media Protection Services Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON |
| Judgment Date | 24 February 2012 |
| Neutral Citation | [2012] EWHC 466 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7295/2007 |
| Date | 24 February 2012 |
[2012] EWHC 466 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
ON APPEAL BY WAY OF CASE STATED
FROM PORTSMOUTH CROWN COURT
Royal Courts of Justice
Strand
London
WC2A 2LL
Lord Justice Stanley Burnton
CO/7295/2007
MARTIN HOWE QC (Instructed by Molesworth Bright Clegg) appeared on behalf of the Appellant
JAMES MELLOR QC (Instructed by Russell-Cooke) appeared on behalf of the Respondent
The appellant was convicted by Portsmouth Magistrates of two offences under Section 297(1) of the Copyright Design and Patents Act 1988. Those convictions were to the effect that on 19 August 2006 and on 25 September 2006, she:
"Dishonestly received 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."
The essential facts may be taken from the judgment of this court, differently constituted, the neutral citation of which is [2007] EWHC 3091 (Admin). The Premier League owns the intellectual property rights in relation to the screening of live Premier League football matches. It grants exclusive licences to licensees to screen live Premier League matches in the licensees' respective territories. In the United Kingdom and Ireland, at all relevant times, the sole licensee was BSkyB. In Greece, the licensee is a Greek television programme provider called NOVA. Programmes received by the appellant had been up-linked to the NOVA satellite by NOVA. NOVA provides viewers with a satellite dish, decoder and decoder card. Both BSkyB and Nova use conditional access technology via satellite, which means that the viewer needs a decoder card to watch the live Premier League games. These cards are authorised by the licensee—in this case BSkyB or NOVA—for use in the territory of licensee. Thus BSkyB, by its contracts with subscribers, restricts the use of its decoder cards to this country, while NOVA restricts the use of its cards to Greece.
The appellant's convictions relate to her showing to her customers in her public house, the Red White and Blue in Southsea in Hampshire, two Premier League matches. When these matches were transmitted and received, Ms Murphy did not have a subscription with BSkyB. She had cancelled that subscription on the grounds of expense on becoming the licensee of the Red White and Blue. She did have a satellite dish, a decoder box and a NOVA viewing card that enabled her to receive and view programmes originating from the NOVA satellite, the footprint of which extended to United Kingdom. She had purchased that card but was using it in contravention of the geographical limitation, to which we have referred.
The appellant's appeal against her convictions was dismissed by the Crown Court sitting at Portsmouth, but it stated a case for the opinion of the High Court and a number of legal questions raised by her defence. For present purposes it is sufficient to refer to the fifth question on which the opinion of the High Court was sought:
"Does the requisite 'intent to avoid any charge applicable to the reception of the programme' within Section 297(1) apply to circumstances where the appellant paid a charge to AV Station, an entity selling NOVA decoders and cards in the United Kingdom, and then receives a programme from NOVA, a foreign broadcaster, but does not pay any other fee to any broadcaster—in this case BSkyB—as the domestic broadcaster in question?"
The questions of domestic law raised in the case stated were answered by the Court, insofar as they were relevant, adversely to the appellant, on 21 December 2007 in its judgment to which I have referred. The...
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