R v Marc Dady and Others
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson |
| Judgment Date | 08 March 2013 |
| Neutral Citation | [2013] EWHC 475 (QB) |
| Docket Number | Case No: T20127370 |
| Court | Queen's Bench Division |
| Date | 08 March 2013 |
[2013] EWHC 475 (QB)
The Honourable Mr. Justice Coulson
Case No: T20127370
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tom Mitchell (instructed by Redcar and Cleveland Borough Council, Redcar) for the Crown
Mr Paul Cross (instructed by David Gray, Newcastle) for Marc Dady
Mr Brian Hegarty (instructed by David Gray, Newcastle) for Carole Dady
Mr Jonathan Cousins (instructed by David Gray, Newcastle) for Graham Dady
1. Introduction
On 22 August 2012, at Teesside Magistrates' Court, the three defendants were sent for trial under section 31 of the Crime and Disorder Act 1998 to Teesside Crown Court. The first defendant, Marc Dady, was charged with an offence of conspiracy to defraud (Count 1) and both Marc Dady and his parents, Carole and Graham Dady, were charged with related money-laundering offences (Counts 2 and 3).
The defendants sought to dismiss the charges. The application to dismiss was heard by Judge Armstrong, at Teesside Crown Court, on 2 November 2012. In a lengthy reserved judgment, handed down on 18 December 2012, the judge dismissed the charges.
The Crown now applies to prefer a voluntary Bill of Indictment, repeating the same three counts. In essence, they say that Judge Armstrong was wrong to dismiss the charges. The application was received in my last week on circuit at Newcastle Crown Court, and had to be dealt with subsequently, at a hearing in London, on 1 March 2013. I am very grateful to all four counsel for coming down to London to make their helpful submissions and to answer my questions.
2. The Correct Approach
Whilst the procedure for preferring a bill of voluntary Indictment is usually engaged when the magistrates fail to commit a case to the Crown Court, there was no serious dispute that the same process can also be utilised when the judge at the Crown Court dismisses the original charges. Authority for that proposition can, I think, be gleaned from paragraphs 1–288 and 1–289 of Archbold 2013 and is confirmed at paragraph 8 of the judgment of the Court of Appeal (Criminal Division) in R v Glyn Thompson and Brian Hanson [2006] EWCA Crim 2849, which reads:
“It follows…that, since the respondents had not yet been arraigned, the dismissal of the charge and quashing of the count did not amount to a formal acquittal of the respondents; and that a voluntary bill of indictment could be sought.”
Authorities on the proper approach to such an application are sparse. In Brooks v DPP [1994] 1 AC 568, the Privy Council, dealing with a dismissal in committal proceedings, said that the decision of the magistrates should be treated with the greatest respect, and stressed that there must be exceptional circumstances to warrant a prosecution. The burden of demonstrating the necessary exceptional circumstances must lie with the Crown.
As to the lay-out of this Judgment, I adopt, and do not here repeat, Judge Armstrong's helpful summary of the facts. In addition, it seems to me that it is unnecessary to set out in great detail Judge Armstrong's reasons for dismissing the charges. That is partly because some of the submissions before me as to the governing law were rather different to those made to the judge. But his approach can be succinctly summarised: he considered that there was at least one relevant statutory offence which might have been charged, but to which the defendant might have had a defence; he therefore concluded that, in all the circumstances, it would be wrong in principle for the wider allegation of conspiracy to defraud at common law to be maintained.
I should also say at the outset that it was agreed before Judge Armstrong, and accepted before me, that the two money laundering counts (Counts 2 and 3) are entirely parasitic upon Count 1, the charge of conspiracy to defraud. Accordingly, it was agreed that, if I concluded that there should be no voluntary Bill in respect of Count 1, then the whole application should fail.
3. The Essential Nature of the Crown's Case
Marc Dady, personally and in conjunction with his companies Live Sport Network Limited (“LSN”) and M.Dady Limited, ran a website, www.free-football.tv, which, for a £10 fee, facilitated the illegal downloading of Sky's Premier League football matches by his subscribers. The matches in question were being “streamed” or illegally re-broadcast over the internet from abroad. The website www.free-football.tv had not been licensed to broadcast, stream or otherwise make available audio visual footage of matches, the copyright of which is owned by Football Association Premier League Limited (“FAPL”), nor had they been authorised by any of FAPL's licensees to do so.
Count 1 of the Voluntary Bill reads as follows:
STATEMENT OF OFFENCE
CONSPIRACY TO DEFRAUD
Contrary to Common Law
PARTICULARS OF OFFENCE
Marc Dady between 30 th August 2006 and 12 th May 2011 conspired together with persons unknown to defraud The Football Association Premier League Limited (“FAPL”), and British Sky Broadcasting Limited (“Sky”) by
• Taking payments from those persons; and
• Providing them with access to links to third party websites which streamed broadcast programs of Premier League football matches via the internet to those persons;
• Thereby assisting those persons to dishonestly receive those broadcast programs; and
• Avoid payment of charges applicable to the reception of those programs;
• Intending that those charges applicable should be avoided.
During the course of his submissions, Mr Mitchell, for the Crown, sought to persuade me that this case would be easy to open to the jury. He argued that he would say to the jury that, by charging a fee to his subscribers, Marc Dady was taking money that belonged to Sky and the Premier League. That amounted to a criminal offence. He would say that whether or not Marc Dady, or his subscribers, thought that they might have been acting legally was ultimately irrelevant.
In one sense, Mr Mitchell's submission that this was a relatively straightforward case was enhanced by the fact that there were at least one, and possibly two, statutory provisions which indicated that a criminal offence had been committed by Marc Dady. Those provisions were:
(a) Section 107(2A) of the Copyright, Designs and Patents Act 1988 (“the Act”) which provides that:
“a person who infringes copyright in a work by communicating the work to the public in the course of a business…commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work”;
(b) Section 297 of the same Act which provides that:
“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…”
However, a short review of the authorities makes plain that the Crown's case is, unhappily, not nearly as straightforward as Mr Mitchell contends.
4. The Complications
I accept Mr Mitchell's broad division of the statutory provisions, namely that s.107(2A) is concerned with copyright, while s.297 is concerned with encryption.
The authorities demonstrate three potential problems with any claim against Marc Dady arising out of s.107(2A):
(a) In R v David Michael Rock and David Paul Overton, Case No. T20097013, at Gloucester Crown Court, HHJ Ticehurst was faced with an eight count indictment where the first count was a count of conspiracy and counts 2–8 charged the defendants with breaches of s.107(2A). In that case the defendants were not charging a fee for the provision of their website because the website was funded through advertising....
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