Media Protection Services Ltd v Crawford (Andrew) and Crawford (Christine)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Mr Justice Kenneth Parker |
| Judgment Date | 16 August 2012 |
| Neutral Citation | [2012] EWHC 2373 (Admin) |
| Date | 16 August 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12474/2011 |
[2012] EWHC 2373 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Stanley Burnton
Mr Justice Kenneth Parker
Case No: CO/12474/2011
Patricia Robertson QC and Miles Bennett (instructed by Russell-Cooke LLP) for the Appellants
Andrew Bodnar (instructed by Molesworths Bright Clegg) for the Respondents
Hearing date: 10 July 2012
Introduction
This is an appeal by way of case stated by Media Protection Services Ltd against the order of District Judge (Magistrates' Court) Sanders, sitting at Chester Magistrates' Court, on 25 October 2011, dismissing the information that had been laid against the Respondents alleging that they had dishonestly received a programme included in a broadcasting service from a place in the United Kingdom, namely the Barclays Premier League football match between Liverpool and Chelsea Football Clubs with intent to avoid the payment of any charge applicable to the reception of that programme, contrary to section 297(1) of the Copyright Designs and Patents Act 1988.
The relevant facts
The Respondents are licensees of the Railway Inn Public House in Helsby, Frodsham, Cheshire. They faced a private prosecution brought by the Appellant on behalf of the Football Association Premier League Ltd ("FAPL").
This case resembles that considered by this Court in Murphy v Media Protection Services Ltd [2012] EWHC 466 (Admin). That case concerned a publican who showed in her public house a broadcast of a Premier League match that she received from a Greek satellite broadcaster. Her conviction, for the same offence as that charged against the present Respondents, was quashed because the geographical restriction sought to be enforced by the prosecutor was incompatible with European Union law. The present case differs from Murphy because the Respondents received the broadcast that they showed in their public house from an Albanian satellite, and Albania is not a member of the European Union.
The relevant facts are set out in the District Judge's clear and careful judgment.
"4. It is agreed that MPS was at all material times a private limited company trading for profit and, as part of its company business, was retained by the Football Association Premier League Limited ('FAPL') to investigate and prosecute infringements of the FAPL's intellectual property rights in relation to broadcasts of Premiership Football matches. MPS was remunerated by FAPL for those services.
5. MPS is not a public body and does not act under any statutory powers. In its company accounts dated 12 July 2010 it stated: "The principal activity of the company continues to be that of providing legal services in relation to Copyright theft"
6. At all material times MPS' company website stated that: "Media Protection Services is a non-statutory investigative and prosecution body…we are the prosecution body for the Premier League Limited (sic) in matter relating to infringement of broadcasting rights involving the illegal use of imported decoder cards."
7. At the relevant time, FAPL asserted that they owned the intellectual property rights to Premiership Football Matches being played in England and Wales. They entered into an agreement with BSkyB so that those football matches could only be shown live in the UK via the Sky broadcasting platform. As part of that commercial agreement with BSkyB, FAPL were required to 'take action' to prevent those football matches being shown by means other than through Sky so as to protect BSkyB's considerable investment 'Taking action' in this context meant taking legal action.
8. In order to discharge their contractual duty to BSkyB, and from approximately 2005 onwards, FAPL contracted with MPS to provide them with an 'investigation and prosecution service' for such criminal offences. Under this contractual relationship, MPS conducted investigations into public houses showing live Premiership football using foreign satellite services. Having gathered evidence, Mr Hoskin would lay an information on behalf of MPS leading to a summons being issued and served on the defendants.
9. The allegation against the Defendants is that they dishonestly paid for a service provided though a different provider (in this case by 'Tring', an Albanian satellite broadcaster) in order to avoid paying the much higher charges to Sky, it being the prosecution case that this is an offence under Section 297(1) Copyright Designs and Patents Act 1988.
10. Proceedings in both cases before me were started by summons following the laying of an information before the Vale Royal Magistrates' Court on 8 February 2011 by Mr Raymond Hoskin who describes himself as the 'Prosecutions Director of Media Protection Services Ltd'. Both informations were in similar terms and introduce the facts as follows:
Media Protection Services Ltd are (sic) retained by the Premier League Ltd to investigate and prosecute criminal breaches of their copyright and that of their licensee, BSkyB."
11. All parties agree that this information is factually wrong. Premier League Ltd is an entirely different company to FAPL, being registered in Scotland, and having nothing whatsoever to do with these proceedings.
12. Mr Hoskin was acting on behalf of MPS in laying the information. MPS, in turn, was acting pursuant to its retainer with, and on behalf of, FAPL.
13. Following receipt of the information, and the draft summons which was also prepared by MPS, the summons was issued by the court on 9 February 2011 and returned to MPS for service. The summons was served by MPS with a return date at Vale Royal Magistrates' Court of 4 April 2011, and the defendants subsequently appeared in court to answer that summons.
14. At that hearing, and thereafter, Russell Cooke solicitors appeared on behalf of MPS and instructed Counsel where appropriate. All legal work undertaken by Russell Cooke for MPS was invoiced to MPS, but thereafter all payments by MPS to Russell Cooke were reimbursed by FAPL. FAPL retained a contractual right to instruct MPS to challenge any such invoice. In addition, FAPL directed MPS to use specific barristers' chambers for prosecution work and jointly sought to agree fixed fees for work undertaken.
15. FAPL provided an indemnity to MPS "against all damages and/or legal costs which (MPS) are ordered by a court of competent jurisdiction to pay to any third party, together with any reasonable legal costs incurred in defending any claim".
The legal issues
The issue was raised before the DJ whether Mr Hoskin acted unlawfully in preferring the informations against the Respondents, in that in so doing he carried out a reserved legal activity within the meaning of the Legal Services Act 2007 when he (and the Appellant) were not authorised nor exempt in relation to that activity. The DJ held that he had acted unlawfully, and that as a result the criminal proceedings had to be dismissed. He stated the following questions for the High Court:
(1) For the purposes of Paragraph 4(1) of Schedule 2 to the Legal Services Act 2007, was I right in concluding that the laying of the information by Mr Hoskin on 8 February 2010 amounted to either:
a. The issuing of proceedings before any Court in England and Wales;
b. The commencement…..of such proceedings; or
c. The performance of any ancillary functions in relation to such proceedings
and that (subject to paragraph 5(2) below) this was therefore the "conduct of litigation" in accordance with that Schedule, and a 'reserved legal activity' within the meaning of Section 12 of the said Act?
(2) If the answer to this question is 'yes' and where an unregulated prosecutor seeks to conduct litigation not on their own behalf but on behalf of a third party for reward, was I right to conclude that [Paragraph] 4(2) of Schedule 2 to the Legal Services Act 2007 does not alter this conclusion and that the laying of an information remains the 'conduct of litigation' within the meaning of the said Act?
(3) If the answer to this question is also 'yes', was I also right to conclude that, where there was such a breach of the Legal Services Act 2007 when proceedings were commenced, the proceedings are to be considered void ab initio and therefore dismissed?
The legislative framework
So far as relevant, sections 13 and 14 of the 2007 Act are as follows:
...13 Entitlement to carry on a reserved legal activity
(1) The question whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of this Act.
(2) A person is entitled to carry on an activity ("the relevant activity") which is a reserved legal activity where—
(a) the person is an authorised person in relation to the relevant activity, or
(b) the person is an exempt person in relation to that activity.
(3) Subsection (2) is subject to section 23 (transitional protection for non-commercial bodies).
(4) …
Offences
14 Offence to carry on a reserved legal activity if not entitled
(1) It is an offence for a person to carry on an activity ("the relevant activity") which is a reserved legal activity unless that person is entitled to carry on the relevant activity.
(2) In proceedings for an offence under subsection (1), it is a defence for the accused to show that the accused did not know, and could not reasonably have been expected to know, that the offence was being committed.
(3) A person who is guilty of an offence under subsection (1) is liable—
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