R v Evans [2017] EWCA Crim 139

In its decision in R v Evans [2017] EWCA Crim 139 the court of appeal has determined the appropriate level of sentence for offences of distributing articles infringing copyright which is a criminal offence under s.107(1)(e) of the Copyright Designs and Patents Act 1988 (‘CDPA’). Such an offence carries a maximum 10 year custodial sentence.

Jail

Mr Evans had been served with cease and desist notices which made clear he was at risk of prosecution, however these were ignored. Further, when initially interviewed, Mr Evans denied having received these notices and alleged that he thought at the time his acts were lawful. This claim was quickly withdrawn following a search of Mr Evans’ property which revealed that he had kept a diary which referenced receiving the cease and desist notices. He pleaded guilty at Liverpool Crown Court to two offences of distributing an article infringing copyright and also a further offence under the Fraud Act 2006.

He was sentenced to 12 months’ imprisonment for the first count of copyright infringement and 6 months’ imprisonment for the second count. An additional 12 months’ imprisonment was handed down for the offence under the Fraud Act; however, all sentences were stated to run concurrently so consequently the total sentence was one of 12 months’ immediate imprisonment.

Mr Evans asked the Court of Appeal to review this sentence, particularly in light of his history of and a diagnosis of depression. It was argued that 12 months was excessive in the circumstances as this failed to sufficiently acknowledge that Mr Evans was not motivated by money and did not account for Mr Evans previous good character and the unlikely possibility that he would reoffend.

The Court of Appeal highlighted that there is no Definitive Guideline issued by the Sentencing Council in respect of offences contrary to s.107 of CDPA 1988. However, they disagreed with Mr Evans’ contentions. The Court stated that, although Mr Evans may not have been motivated by money, there was undoubtedly a real loss to the owners of the relevant copyrights. Further, it was highlighted that such offending has a wider detrimental impact on the music industry and its profitability.

It was held that, as has long been established in the context of intellectual property offending, an element of deterrent sentencing was justified in this context – not least because of the difficulty of tracking down and investigating such offending. The conduct of the defendant was sustained and he persisted in it even after receiving the case and desist notices. Therefore, in the Court of Appeal’s view, the judge had correctly appraised the position and a sentence of 12 months’ imprisonment was appropriate in the circumstances.

The court of Appeal deemed it helpful to provide guidance for sentencing offences under d.107 of CDPA 1988 and said that the non-exhaustive considerations listed below are likely to be relevant. Importantly, unless the unlawful activity is very amateur, minor or short lived, and 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.

Relevant considerations for sentencing under s.107 CDPA 1988:

1. 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. 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. The profit accruing to the defendant as a result of the unlawful activity will always be relevant
4. 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. 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
6. Personal mitigation, assistance to the authorities and bases and pleas of guilt are to be taken into account in the usual way; and
7. 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.

Judgment Date: 14 FEBRUARY 2017

Court of Appeal says an immediate custodial sentence is likely to be appropriate for criminal copyright offences

 

 

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