Written evidence from FACT, Sky UK Limited, The Football Association Premier League Limited (PPS0016)

RESPONSE TO REQUEST FOR EVIDENCE FROM THE JUSTICE SELECT COMMITTEE CONCERNING SAFEGUARDS AGAINST PROSECUTORIAL ABUSE IN VICTIM-LED PRIVATE PROSECUTIONS

Preamble

This document has been prepared on behalf of the Premier League, SKY and FACT, by Counsel retained by those parties to undertake private prosecutions which concern allegations of intellectual property-based fraud and copyright infringement.

Introduction

Premier League, SKY and FACT [‘The Respondents’] have between them undertaken a significant number of private prosecutions over the past 20 years and have been responsible for bringing some of the most complex and serious allegations of copyright infringement/intellectual property fraud before criminal courts within this jurisdiction. The Court of Appeal has consistently recognised the particular difficulties the public prosecutor faces when attempting to prosecute complex intellectual property crime, see for example Leveson LJ giving judgment in Scopelight v Chief Constable of Northumbria [2010] 1 Cr. App.R. 19 at paragraph 51 specifically referring to intellectual property prosecutions,

“These cases are complex, specialist knowledge will inevitably be required to pursue them, and each case is likely to be difficult, time consuming and expensive”.

In all private prosecutions brought on behalf of The Respondents, independent solicitors are retained who in turn instruct independent members of the Bar to undertake the preparation and presentation of each case.

Intellectual property rights holders (such as Premier League), broadcasters (such as SKY) and anti-piracy organisations (such as FACT [1]) have long recognised the understandable limitations, both in resource and specific expertise within the CPS to conduct such cases and have, where necessary, undertaken private prosecutions, often in cases concerning novel points of law and/or matters of particular importance /seriousness. None of the cases brought by any of the identified parties have been stayed by a judge for an abuse of process, been subject to an adverse costs order for prosecutorial misconduct nor has any conviction ever been overturned on appeal or referred by the Criminal Cases Review Commission.

It is within this context that the Justice Select Committee [‘The Committee’] is respectfully invited to pay specific attention to this particular area of what is technically ‘victim-led’ private prosecution, when assessing the efficacy of the current system.

The scope of the Inquiry

The Committee has indicated its intention to examine the following aspect of private prosecutions

“Whether there are sufficient safeguards in place to limit the likelihood of injustices arising from private prosecutions brought by organisations that act as the investigator and the prosecutor but are also the victim of the alleged offence”

In the remainder of this submission, The Respondents seek to assist the Committee by:

identifying those safeguards already in place;
assessing whether those safeguards are sufficient to protect prospective defendants from prosecutorial abuse;
outlining the importance of the right to bring private prosecutions, from the particular perspective of The Respondents;
illustrating the capability of the existing system to ensure that the Courts can prevent injustice;
highlighting the potential adverse (and unintended) consequences of any erosion of the ability of a victim of crime to bring a private prosecution, from the vantage point of those who have an interest in the protection of intellectual property.

What safeguards exist/are they sufficient?

There exists within the current framework of law a myriad of opportunities for a defendant to challenge the bona fides of a prosecutor and for courts to sanction improper prosecutions, whether they be private or public. With certain exceptions, including the right to petition the DPP (see below), the safeguards in place apply equally to all prosecutions, private or public. The reason so many of the safeguards which exist apply to all prosecutions, is that once a case is brought before the court, the duties and obligations on the prosecutor are identical, whether they be public or private. The reality of the position is that courts are acutely alive to the potential for abuse/partisanship by the private prosecutor, particularly when brought by the victim of an alleged crime, and so will scrutinise with care the conduct of a private prosecutor during the course of proceedings.

The next question for consideration is whether the tools available to the courts effectively to scrutinise a private prosecution are sufficient to ensure prosecutorial malpractice can be identified and sanctioned. The following represents a non-exhaustive list of safeguards in place within the current framework of law to prevent improper prosecutions from being initiated or continued:

A Justice of the Peace may refuse to issue a summons in circumstances where it would be improper to grant one, see R v West London Metropolitan Stipendiary Magistrate ex parte Klahn [1979] 1 W.L.R. 933;
An application can be made by the Attorney General for a Criminal Proceedings Order preventing the bringing of a prosecution by a vexatious prosecutor, see section 42 of the Senior Courts Act 1981;
Any defendant subject to a private prosecution may petition the Director of Public Prosecutions to take over and discontinue a private prosecution, or to take over such a prosecution and prosecute it publicly, see s. 6(2) & 23 of the Prosecution of Offences Act 1985;
An application pursuant to paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 and rule 9.16 of the Criminal Procedure Rules 2015 (‘CPR’) may be made, to dismiss any charges on an Indictment. Paragraph 2(2) provides;

“The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted”.

A court may direct an acquittal of a defendant pursuant to a submission of ‘no case to answer’, following the conclusion of the prosecution case, where it finds that a properly directed jury could not properly convict a defendant, see R v Galbraith [1981] 1 W.L.R. 1039;
Any prosecution can be stayed as an abuse of the Court’s process;
Evidence can be excluded at the discretion of the judge, on the basis that adducing it would lead to unfairness, see s. 78 Police and Criminal Evidence Act 1984;
All prosecutors, whether public or private, have the same obligations with reference to the management of Unused Material. An application can be made by the defence of specific disclosure of Unused Material, should a prosecutor refuse to volunteer it, see s.8 of the Criminal Procedure and Investigations Act 1996 [‘CPIA’];
An appeal against conviction and/or sentence can be made to the Court of Appeal following the conclusion of Crown Court proceedings;
The Court has a wide discretion to award costs against a private prosecutor under section 19 of the Prosecution of Offences Act 1985. Circumstances justifying the granting of such an Order include prosecutorial misconduct, see R (Haigh) v Westminster Magistrates’ Court [2017] 1 Costs L.R. 175.

The safeguards identified at paragraph 9 above demonstrate that there are tools available to a court at every stage of proceedings (and indeed before proceedings are initiated) to protect defendants from prosecutorial misconduct. Any attempt further to restrict the ability of a private prosecutor to bring/conduct a prosecution would have the inevitable effect of restricting access to what was described by Lord Wilberforce (and in similar terms by Lord Diplock) in Gouriet v Union of Post Workers [1978] A.C. 135 as,

“This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences, and though ultimately liable to be controlled by the Attorney-General (by taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or partiality on the part of authority.”

Case Studies

The next question is the extent to which the measures identified above can and are in practice deployed in private prosecutions where a defendant alleges wrongdoing. In order to assess this, a number of private prosecutions brought/concluded, within the past 5 years alone, by victims of crime within the intellectual property arena have been tabulated below. In each example, which either concern litigation recently concluded, or ongoing, the author of this document has been instructed on behalf of the private prosecutor and so is able to speak to the detail of the proceedings from personal knowledge. The purpose of the examples scheduled below is to provide to the Committee evidence from recent intellectual property-based private prosecutions, which illustrate the following:

Serious and complex criminal cases are brought on a regular basis by The Respondents, at Crown Courts across the country, underlining the importance of private prosecutions within the intellectual property arena;
The ‘details’ column of the schedule provides examples of specific and distinct legal arguments raised on behalf of defendants in three of the cases cited. In each case these arguments were founded upon one or more of the existing safeguards in place to guard against prosecutorial abuse/misconduct. The Respondents invite these to the attention of the Committee to demonstrate that the Courts are well-equipped to examine the propriety of a prosecution, be it public or private.

Case name/ citation	Prosecutor	Court	Details
R v Rafiq & others	FACT	Wolverhampton Crown Court	On 14 December 2015 the principal defendant was sentenced to 4 years’ 6 months imprisonment for his role as a ringleader of a sophisticated film ‘release group’ which specialised in hacking digital copies of thousands of major motion pictures before they were released in cinema/onto DVD and distributing them to the public via illicit internet websites/forums. This was the first ever prosecution of a film ‘release group’, representing a landmark in the fight against online piracy.
R v Terrence O’Reilly and another	Premier League	Nottingham Crown Court	On 1 December 2016, O’Reilly was convicted unanimously by a jury, following a 4-week trial, of a conspiracy to defraud the PL and the providers of subscription television. His co-defendant William O’Leary pleaded guilty in advance of trial. O’Reilly was sentenced to 4 years’ imprisonment. This was the first ever prosecution for a fraud based upon the provision of illicit television streams/IPTV. HM Government has identified, through the Intellectual Property Office, the importance of the issue faced by rights holders seeking to prevent the proliferation of piracy through illicit streaming, see UK Government response to the call for views regarding illicit IPTV streaming devices [2], published in 2018 Those representing O’Reilly made an (unsuccessful) application for disclosure of Unused Material under s. 8 CPIA, the judge determining that the private prosecutor had fully complied with its CPIA obligations.
R v John Trevor Dodds and Jason Richards (aka Jason Richard Graham)	Premier League	Newcastle Crown Court	On 4 April 2018, DODDS and RICHARDS were each sentenced to 4 years’ 6 months imprisonment following their guilty pleas to a conspiracy to defraud the PL and the providers of subscription television. The defendants supplied commercial premises with streaming devices, together with subscriptions to an illicit streaming service which they had made by copying numerous broadcasts from around the world. A confiscation order was made against Dodds in the following sums: Benefit £995,000 Available amount £521,692.78 The Court of Appeal refused leave for Richards’ appeal against sentence and Dodds’ appeal against conviction/sentence. Both defendants renewed their applications before the Court of Appeal and were again unsuccessful.
R v John Haggerty & Others	Premier League	Newcastle Crown Court	On 13 July 2018 Haggerty was sentenced to 5 years’ 3 months imprisonment as the ringleader of a complex fraud which concerned the sale of in excess of 8,000 illicit streaming devices which generated over £750,000, and the creation of a bespoke illicit streaming service which the devices were designed to access. This service accessed content from broadcasters around the world, from the UK to New Zealand. In order to maintain the fraud, dummy companies were established overseas including on the Caribbean island of Nevis. The defendants variously raised the following arguments during the course of the proceedings; Petition to DPP to take over the case (refused by DPP on grounds there were no reasons to do so) Application to dismiss (refused by judge following written and oral argument) Application to stay as an Abuse of Process (refused by judge following written and oral argument)
R v Gleave	SKY	Burnley Crown Court	On 14 August 2018 Gleave was sentenced to 16 months’ imprisonment following his plea of guilty to fraudulent trading. Gleave generated approximately £200,000 from the sale of illicit streaming devices which enabled the viewing of pay-tv content without payment being made to the legitimate broadcasters.
R v King & others	Premier League	Warwick Crown Court	On 20 March 2019 King and 2 co-defendants were unanimously convicted by a jury, following a 5-week trial, of a conspiracy to defraud the Premier League and pay-tv providers. The conspiracy concerned the creation and distribution of various illicit television systems designed to enable commercial premises to access subscription broadcasts without payment. King was sentenced to 7 years’ 4 months imprisonment as the ringleader of a sophisticated, protracted and highly lucrative fraud. Confiscation proceedings are ongoing and final figures have yet to be settled by the prosecution, however the figures below set out the approximate sums alleged by the prosecution: Benefit £7m Available amount £1m
R v Mark Schofield	SKY	Bolton Crown Court	On 9 June 2020 Schofield was sentenced to 24 months’ imprisonment suspended for 2 years, with a requirement to complete 240hrs of unpaid work. The defendant had entered guilty pleas to various offences under the Fraud Act 2006 and Copyright, Designs and Patents Act 1988, which concerned his adaptation and sale of devices enabling the viewing of pay-tv without subscription.
R v Michael Hornung	FACT	Manchester Minshull St Crown Court	The defendant, who is currently at large having failed to answer his bail in March 2020, faces trial in September 2020. The allegation concerns his adaptation and sale of devices which enabled access, without payment, of various subscription broadcasters’ content, including that of SKY.
R v Gould & others	Premier League	Birmingham Crown Court	Ongoing- the allegation concerns a multimillion-pound fraud. 6 defendants face trial in March 2021. 1 defendant pleaded guilty on 7 February 2020. The defendants are alleged to have operated one of the UK’s largest illicit streaming services, generating in excess of £5m between December 2016 and June 2018.

The cases summarised above demonstrate the critical importance of private prosecutions within the intellectual property arena. They are all prosecutions technically brought by the victims of the alleged crime, albeit that FACT is one stage removed from identification as the victim of a crime since they represent their members who in turn constitute the actual victims of piracy. Private prosecutions brought by The Respondents and others who represent the Creative Industries are a crucial aspect of an overall strategy to combat intellectual property infringement, an objective which the IPO have described as a matter of priority for HM Government. Crown Court judges and the Court of Appeal have recognised the seriousness of these offences and the validity of the prosecutions which underpin them, as evidenced by the substantial sentences and confiscation orders imposed and the absence of successful appeals against conviction/sentence.

Conclusion

Criminal courts are able to exercise a range of powers/sanctions to prevent prosecutorial abuse, and such measures enable judges effectively to control proceedings and ensure unfairness and misconduct are prevented.

Since ‘victim-led’ private prosecutions encompass the cases brought by and on behalf of the Creative Industries, the committee are invited to consider with care the potential adverse consequences to this important aspect of intellectual property protection of any attempt to restrict the ability of victims to bring a private prosecution.

There is nothing inherently unfair or improper in a victim bringing a private prosecution. Unfairness only results from the inability of a private prosecutor to maintain his/her role as a minister of justice. In the arena of intellectual property, The Respondents have consistently demonstrated their ability to act properly in multiple private prosecutions they have brought over the past 20 years, none of which has led to the identification of prosecutorial abuse/malpractice. To the contrary, the cases brought by these organisations have often been recognised as of crucial importance in anti-piracy.

Ari Alibhai July 2020

QEB Hollis Whiteman Chambers