Scott (Anthony Peter) v Commissioner of Police of the Metropolis
|England & Wales
|Court of Appeal (Criminal Division)
|LORD JUSTICE ROSKILL
|29 January 1974
|Judgment citation (vLex)
| EWCA Crim J0129-6
|29 January 1974
 EWCA Crim J0129-6
IN THE COURT OF APPEAL
Royal Courts of Justice
Lord Justice Roskill
Lord Justice James
Mr. Justice Michael Davies
MR. L.J. BLOM-COOPER, Q.C. and MR. B. WARNER appeared on behalf the Appellant.
MR. WORSLEY and MR. C. HILLIARD appeared on behalf of the Crown.
REASONS FOR JUDGMENT
The reasons for judgment of the Court which I am about to read have been agreed by Mr. Justice Michael Davies, who is unable to be here today.
In October 1973 at the Central Criminal Court before Judge Hines the Appellant Anthony Scott and nine others were arraigned upon an indictment which contained thirty-six counts. The Appellant pleaded not guilty to all the counts in which he was charged. During the long opening of the case for the prosecution, Mr. Blom-Cooper, counsel for the Appellant, informed the Judge that the Appellant was prepared to admit certain facts alleged by the Crown. Those facts were that the Appellant had agreed with employees of cinema owners that in return for payment those employees would, without their employers' consent, tmeporarily abstract cinematograph films for the purpose of enabling the Appellant to make and distribute copies of the films on a commercial basis, such abstraction, copying and distribution being made withoug the knowledge and consent of the owners of the copyright in or distribution rights of such films. Mr. Blom-Cooper invited the Judge to hear submissions that, upon the basis of those admitted facts, count 1 of the indictment was bad in law. Count 1 alleged a conspiracy to defraud. The particulars of the offence were that the Appellant and others "conspired together and with other persons unknown to defraud such companies and persons as might be caused loss by the unlawful copying and distribution of films the copyright in which and the distribution rights of which belonged to companies and persons other than the said persons so conspiring and by divers subtle, crafty and fraudulent means and devices." It was clear that if Mr. Blom-Cooper's submissions failed the Appellant would on the admitted facts have no defence to count 1 and would, reasonably, have no option but to plead guilty to that count. It was further indicated that the Appellant would in that event also be prepared to plead guilty to count 7. That count alleged conspiracy by the Appellant and his two co-accused to contravene the provisions of the Copyright Act 1956 section 21(1)(a), the particulars of the offence being that they "conspired together and with other persons unlawfully to make for sale or hire films which they knew to be infringing copies of works in which copyright then existed."
Although the several offences created by section 21 of the Copyright Act 1956 are summary offences carrying comparatively minor penalties prescribed by subsections (7) and (8) of that section, it was not contended in relation to count 7 - nor could it be contended successfully - that an agreement between two or morepersons to commit such summary offences or any of them could not constitute a criminal conspiracy.
Mr. Blom-Cooper's submission in relation to count 1 was and is that the offences charged did not include any ingredient of deceit, of intent to deceive or of an agreement to deceive the persons and companies allegedly defrauded, and that in the absence of that ingredient in the charge, and in the absence of evidence supporting that ingredient, the count was bad in law. The Judge heard, as this Court has heard, the careful and detailed argument of Mr. Blom-Cooper. But he overruled the submission. The Appellant then changed his pleas to 'guilty' on both counts 1 and 7. The Crown were content not to proceed further upon the other counts in which the Appellant was charged. The conviction of the Appellant upon his own confession in these circumstances in no way prejudices his right of appeal against conviction because the Appellant's argument involves a question of law, namely, that on the admitted facts no charge of conspiracy to defraud properly lay.
There is no need to recite in this judgment the detailed facts which gave rise to the charges. It is frankly admitted on behalf of the Appellant that his conduct was dishonest and involved the deliberate and planned pirating of copyright. It is argued that for such conduct the law provides remedies both civil and criminal without resorting to the criminal offence of conspiracy to defraud. There exist the usual civil remedies for infringement of copyright. There exist the appropriate criminal remedies under section 21 of the Copyright Act 1956. Therefore there is no necessity to seek another remedy. Further it is wrong to resort to the common law offence of conspiring to defraud to meet a situation for which the law already provides sufficient remedies. On the facts admitted the Appellant was clearly guilty of an offence against section 21(1)(a) of the 1956 Act. There is no justification for seeking to invoke the offence of conspiracy to defraud as the remedy for his actions. The argument for the Appellant is that the Crown by resorting to a charge of conspiracy to defraud, is seeking to enlarge the law relating to conspiracy to defraud by applying it to circumstances for which statutory provisions are already made.
The foundation of Mr. Blom-Cooper's argument is the well known passage in the judgment of Mr. Justice Buckley (as he then was in In re London and Globe Finance Corporation Limited 1903 Chancery 728 at page 732. It is well to bear in mind the background to that decision. The company, of which Mr. Whittaker Wright had been managing director, was in liquidation. The Official Receiver was appointed provisional liquidator. As the result of the public examination of Mr. Wright, criminal proceedings were contemplated but the Director of Public Prosecutions, on advice from the then Law Officers of the Crown, declined to prosecute. A member of the committee of inspection then took out a summons for an order that the Official Receiver be directed to take proceedings, the costs of proceedings to be paid out of the assets of the company. The summons was opposed by one substantial creditor. It was suggested that proceedings might be taken under sections 83 and 84 of the Larceny Act 1861 and under section 166 of the Companies Act 1862. Section 83 provided that any director who "with intent to defraud …." (inter alia). "made or concurred in the making of any false entry in any book of any body corporate or public company should be guilty of a misdemeanour." Section 84 provided that any director who "with intent to deceive or defraud" (inter alia) made any written statement or account which he knew to be false in any material particular should be guilty of a misdemeanour. It is important to observe at this juncture that, in the group of sections numbered 80 to 84 in the Larceny Act 1861, it is only in section 84 that the concept of deception or deceit appears. Sections 80, 82 and 83 speak of...
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