I was at the High Court this morning to see the quashing of Karen Murphy’s conviction under section 297(1) of the Copyright, Designs and Patents Act for dishonestly receiving a broadcast with intent to avoid payment.
There was no real doubt that this had to be the outcome following the European Court of Justice’s ruling in her favour last year: the ECJ ruled that it breached the EU freedom to provide services to criminalise the showing in her pub of Greek broadcasts, rather than Sky broadcasts, of Premier League football matches. Lord Justice Stanley Burnton and Mr. Justice Barling were quite clear that they had to disapply section 297(1) in a case like this, and the private prosecutor, Media Protection Services Ltd., made no argument to the contrary.
There was quite a long technical argument about costs: Martin Howe QC, for Ms. Murphy, argued that the case should be treated as civil proceedings (because it was in the High Court) and that under the relevant provisions of the Civil Procedure Rules, costs should “follow the event” and be paid by the loser, in this case MPS. James Mellor QC for MPS argued that the case was criminal, and so under the relevant practice direction should only be payable by the prosecutor if the case has been wrongly brought – which he said could not be the case since it involved the plain application of legislation. The costs argument involved several aspects including whether there should be an interim costs order, the extent to which costs related to issues at various stages of the case (which has been before the Portsmouth Magistrates, the Crown Court, to the High Court on this “case stated” appeal and of course on reference to the European Court) could be divided up depending on which side won which issue, the relevance of insurance and whether one or the other side should have raised EU law points earlier.
Two slightly interesting things happened during this argument: first, at one point Stanley Burnton LJ put it to MPS’s counsel that his clients must have known from the beginning that real EU law issues law behind the apparently clear UK legislation here. James Mellor appeared to be saying they did not – which I find extraordinary. Second, at first Stanley Burnton LJ seemed uncertain about whether magistrates can make a reference to the European Court – they can, of course.
After all that technicality, the judges retired briefly before returning to quash the conviction – they’ve reserved judgment on costs.
There was a separate civil claim by the FA Premier League, Sky and others (the two cases were heard together in Europe), related to the intellectual property aspects of these “parallel broadcasts” – judgment was given in that case earlier this month. Stanley Burnton LJ also made clear that this judgment does not go so far as effectively repealing section 297: it still applies in the case of broadcasts sourced from outside Europe and, more prosaically, to entirely British cases in which a Sky card is obtained and used dishonestly.
But it’s clear that this legislation must be disapplied in relation to publicans who do what Karen Murphy did: they commit no offence when they show matches in their pubs sourced from licensed broadcasters based elsewhere in the EU.