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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Evans, R. v [2017] EWCA Crim 139 (14 February 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/139.html Cite as: [2018] 4 WLR 140, [2017] 1 Cr App R (S) 56, [2017] EWCA Crim 139

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14 February 2017

1. LORD JUSTICE DAVIS: This is an appeal against sentence, the matter having been referred by the Registrar and for which we grant leave. It raises questions of the proper level of sentence appropriate to offences of distribution of articles which infringe copyright; the offending charged being by reference to section 107(1)(e) of the Copyright, Designs and Patent Act 1988. It has to be said that the offending in this particular case occurred in rather unusual circumstances.
2. The appellant is a man now aged 39 who had no previous convictions of any kind. He pleaded guilty, at what was accepted to be the first practical moment, on 7 October 2016 in the Crown Court at Liverpool to two offences of distributing an article infringing copyright contrary to section 107(1)(e) of the 1988 Act and also to a further offence of possessing an article for use in fraud contrary to section 6(1) of the Fraud Act 2006. On the first count he was sentenced by HHJ Trevor Jones to 12 months' imprisonment. On the second count he was sentenced to 6 months' imprisonment. On the third count, the count of possessing an article for use in fraud, he was sentenced to 10 months' imprisonment. All sentences were stated to run concurrently. Consequently the total sentence was one of 12 months' immediate imprisonment.
3. The background facts are these. Putting it broadly, any person who wishes to provide online distribution, streaming services or downloading services for copyrighted music normally requires a licence from the Performing Rights Society. The appellant did not have such a licence. However, he operated a number of websites which were responsible for the illegal distribution of licensed and copyrighted material. He did not himself have the material on his own websites; but he facilitated internet users by operating websites which permitted them to go elsewhere in order to find digital material via what are called "torrent" websites which permitted such downloading. The appellant himself had three websites which he administered. They were hosted through a proxy server, a computer system or application which facilitated access to material on the internet and which also provided a degree of anonymity to those who were supplying or accessing it and which bypassed other sites which might have been blocked by UK internet service providers. The three website also shared an internet protocol address. They were set up using the same email account registered to the appellant.
4. In due course, cease and desist notices, as they are called, were served on the website administrator (the appellant) and they were served on more than one occasion. We have not ourselves been shown copies of such notices but it is common ground that they would, amongst others things, have made it quite clear that the recipient was at risk of prosecution if he continued with his activities. But continue with his activities is what the appellant did.
5. Thereafter, investigations were undertaken. A number of test purchases were made in order to establish the identity of the website administrator. The first of those test purchases took place on 22 May 2015, which was a test purchase of a cappella music and it was from the appellant's website www.deejayportal.com. That test purchase enabled investigators to establish that the website had over 168,000 users. Further test purchases were made on 16 June 2015 and 15 July 2015. It became evident at that stage that some improvements had been made to the website, including the production of a password system for access to it; and there was evidence of day-to-day maintenance of the sites which he was using to facilitate the torrent downloads.
6. Further forensic inquiries conducted by the various agencies responsible for investigation revealed that a cappella tracks had been available via www.deejayportal.com amounting to over 135,000 downloads from the beginning of January 2014 to the end of June 2015: that is to say, a period of around 18 months. Those matters related to what became count 2 on the indictment.
7. So far as count 1 is concerned, that related to the significantly more popular UK Top 40 singles charts. Those had been downloaded over 523,000 times via a website operated by the applicant and there were downloads of 40 tracks at a time.
8. Following test purchases further inquiries were made in respect of the IP address being used for the websites. As a consequence, a search warrant was executed at the appellant's home address in Liverpool on 3 September 2015. What was discovered there is reflected in count 3 on the indictment. Officers seized a computer and a large number of external hard drives. That, in fact, had been the equipment used to commit the offending under counts 1 and 2. These materials were submitted for forensic examination. Inquiries revealed that he had maintained accessible social media profiles on Facebook, Twitter and LinkedIn and that he had also referred those who visited those social networking sites to his websites. His profile on LinkedIn stated that he was the administrator of the websites and had been since January 2008.
9. There was no evidence to suggest that the appellant had made any significant sums of money out of these activities. His website did have a facility whereby users could make online "donations" via PayPal but there was very limited evidence of any such donations.
10. As appeared from the evidence, a payment of five pence per download was due to the Performing Rights Society had they been downloaded via legitimate means. Accordingly, over 130,000 downloads of a cappella tracks at five pence per download would create a notional royalty value of about £6,790. However, that is perhaps more theory than practice: because it was accepted that by no means everybody who downloaded tracks via the appellant's website would have downloaded those tracks via legitimate means had they not been obtainable through him. Similarly, for the UK Top 40 single chart tracks the number of downloads, each comprising 40 tracks at five pence per track, meant a royalty value lost notionally to the Performing Rights Society of over £1,040,000. But again it was common ground that that was more notional than real because by no means all of those accessing these websites for this purpose would have used otherwise a legitimate source and furthermore the 40 tracks did not necessarily change from week to week.
11. When interviewed, the appellant accepted his involvement. He initially denied having received any cease and desist notices and maintained that he thought at the time that his actions were lawful. However, a search of his home revealed a diary with references to his having received such notices; and at a subsequent interview he did fully admit having received them.
12. Before the sentencing judge there was a detailed witness statement from the Head of Litigation, Enforcement and Anti-Piracy for PRS Music Limited in London. That individual set out in detail the significance and implications of offending of this particular kind and the losses, both actual and prospective, which such activities caused or might cause.
13. A basis of plea was submitted by the appellant. He was to say that he had for many years collaborated with other internet users in the creation of electronic music. He had then begun to upload to the internet, initially via Facebook, rare dance tracks difficult to obtain so that they could be shared by other enthusiasts. He was to say that his business dealt with developing and the sale of user interfaces for DJ software, which he operated through the website deejayportal, albeit unsuccessfully. That website also made available free downloads of a cappella music tracks for which there was no charge and it was said they were not tracks widely downloaded and not likely to be listened to by consumers, since they were limited to vocals only and were not commercial music tracks. It was said that they were types of tracks readily made available for free by the artist and at all events the appellant himself made no money from them.
14. He accepted in his basis of plea that he had made available on his website a link to a "torrent" website making available downloads of the Top 40 singles and he accepted that they would be commercially available. He did not, however, charge for the downloads and such donations as there were would simply be used to pay for the costs of the server. It was further stated in the basis of plea, and not disputed, that he a history of, and diagnosis of, depression.
15. At some stage the prosecution had put in an estimation of the potential loss to the industry resulting from the appellant's activities which was nevertheless accepted as being entirely notional in terms of actual quantified loss.
16. There is no Definitive Guideline issued by the Sentencing Council in respect of offences contrary to section 107 of the 1988 Act. However, the Definitive Guideline issued by the Sentencing Council with regard to fraud, bribery and money laundering offences did apply to count 3 on this particular indictment: that is to say, possessing an article for use in fraud. By reference to that guideline, it was common ground before the judge on this count that this was a case of high culpability and greater harm and that the relevant starting point was one of 18 months' custody for such an offence: with a category range of 36 weeks' custody to 3 years' custody.
17. In the course of his excellent submissions on behalf of the appellant Mr Parry said that a total sentence of 12 months' imprisonment was excessive in the circumstances of this particular case. In particular, it was said that such a sentence failed sufficiently to acknowledge that the appellant was not motivated by financial gain and scarcely did gain. It is said also that he had mental health issues and related personal mitigation. He was of previous good character and was most unlikely to re-offend. In that regard, emphasis was put on the pre-sentence report which contained views precisely to that effect and also explained the difficult personal background of the appellant.
18. In all the circumstances, it was submitted, and whilst this offending did cross the custody threshold, the resulting sentence could and should have been suspended and, further or alternatively, could and should have been a shorter sentence in terms of length.
19. Having considered the matter, our conclusion is that we cannot agree. The appellant may not have been motivated by gain for himself. But there was undoubtedly a real loss to the owners of the relevant copyrights and related performers. Further, quite apart from such loss as could be identified and quantified, such offending always has a wider detrimental impact on the music industry and its profitability: and the music industry is an important economic contributor to society. That detriment is none the less real for being difficult to quantify. As has, in fact, long been established in the context of intellectual property offending, an element of deterrent sentencing is justified in this context; not least also because of the difficulty in tracking down and investigating such offending. Most certainly here the appellant had strong personal mitigation. But his conduct was sustained and he persisted in it even after receiving the cease and desist notices. He carried on his activities for a lengthy period of time and he used sophisticated equipment for the purpose.
20. In our view, the judge in his careful and thorough sentencing remarks addressed all relevant points. He correctly appraised the position. He had due regard to the plea and all other matters available to the appellant in terms of mitigation. We consider that overall the sentence of 12 months' immediate imprisonment was a well-judged sentence; and at all events cannot be said to be excessive.
21. Ms Loftus, appearing for the Crown, has suggested that given there is no definitive guideline relating to such offences under the 1988 Act it may be of some assistance if some guidance is given by this court.
22. The position must be that in offending of this kind the sentencing court must retain flexibility and gear a sentence to the circumstances of the particular offence or offences and to the circumstances of the particular offender. Nevertheless, we would suggest that the following (non-exhaustive) considerations are likely to be relevant in sentencing cases of this particular kind, involving the unlawful distribution of infringing copyright articles:

(1) First, illegal downloading and distribution is very often difficult to investigate and detect. It can give rise to serious problems and losses (none the less real for not being readily quantifiable) to the music and entertainment industry. Deterrent sentencing in such a context is appropriate.

(2) Second, the length of time (and including also any continuation after service of cease and desist notices) of the unlawful activity will always be highly relevant.

(3) Third, the profit accruing to the defendant as a result of the unlawful activity will always be relevant.

(4) Fourth, and whether or not a significant profit is made by the defendant, the loss accruing to the copyright owners so far as it can accurately be calculated will also be relevant: as will be the wider impact upon the music industry even if difficult to quantify in precise financial terms: because wider impact there always is.

(5) Fifth, even though this particular type of offending is not the subject of any Definitive Guideline there may be cases where it will be helpful to a judge to have regard to the Definitive Guidelines on fraud, bribery and money laundering offences. In some cases, such as the present, that will positively be required because one or more of the counts on the indictment, as here, will be a count which comes within the ambit of the guideline itself. But even where that is not the position there may be some cases where a judge, at least if only as a check, may wish to refer to the Definitive Guideline to get a feel, as it were, for the appropriate sentence. However, there will be other cases where the Definitive Guideline may be of marginal, and perhaps no, assistance at all. That will be a matter for the assessment of the judge in the individual case. Where the Definitive Guideline is required to be taken into account because one of the counts on the indictment is within the ambit of the guideline, that of itself will no doubt lend assistance in deciding what the appropriate overall sentence will be.

(6) Sixth, personal mitigation, assistance to the authorities and bases and pleas of guilt are to be taken into account in the usual way.

(7) Seventh, unless the unlawful activity of this kind is very amateur, minor or short-lived, or in the absence of particularly compelling mitigation or other exceptional circumstances, an immediate custodial sentence is likely to be appropriate in cases of illegal distribution of copyright infringing articles.