Murphy v Media Protection Services Ltd

Where a criminal conviction depends on the application of domestic legislation to cross-border broadcasting, and the outcome turns on unresolved European Union law, the appellate court should obtain authoritative guidance before finally disposing of the appeal. A reference is appropriate where the questions are material, genuinely unclear, supported by an adequate factual basis and important beyond the individual case.

European Union law may require domestic legislation to be disapplied to the extent of an irreconcilable conflict, but it does not render the legislation invalid. Outside the field governed by European Union law, the domestic provision remains applicable.

The appellant had been convicted by Portsmouth Magistrates’ Court of two offences under section 297(1) of the Copyright, Designs and Patents Act 1988, after receiving Premier League broadcasts in a public house using a genuine NOVA decoder card obtained from Greece rather than subscribing to BSkyB. The Crown Court dismissed her appeal but reduced the fines.

A differently constituted Divisional Court had answered earlier questions in the case stated, subject to unresolved arguments concerning the free movement, services and competition provisions of the EC Treaty. The present court considered whether those issues, including the meaning of “illicit device”, the legality of territorial restrictions and the applicability of the BSkyB charge, should be referred to the ECJ.

1. Reference required. The appeal could not fairly be disposed of until the unresolved questions of European Union law had been determined. The issues were material to the convictions, were not acte clair or acte éclairé, and had substantial implications for broadcasting, intellectual property licensing, competition and consumers.
2. Conditional Access Directive. The court provisionally agreed with Kitchin J in FA Premier League v QC Leisure & Ors that an “illicit device” probably meant a pirated device whose inherent physical nature had been designed or adapted to bypass the service provider’s charging arrangements. The court nevertheless referred the interpretation and related validity questions to the ECJ.
3. Free movement and competition. The court referred questions concerning Articles 28 to 30, 49 and 81 of the EC Treaty. These included whether prosecution under section 297(1) restricted the importation or use of a genuine foreign decoder card, whether the section was discriminatory, and whether the contractual export restriction underpinning BSkyB’s territorial exclusivity infringed Article 81.
4. Effect of European Union law. If section 297(1) conflicted irreconcilably with a directly effective European Union right, it would have to be disapplied to the necessary extent. It would not thereby become invalid. The court relied on Fleming v HMRC [2008] UKHL 2 and ICI v Colmer [1998] ECR I-04695 in explaining that distinction.
5. The court would settle the questions for reference after considering the parties’ drafts. It did not finally determine the convictions. If the geographical restriction were unlawful, the prosecution conceded that the finding of dishonesty would have to be set aside; the court expressed no view on whether dishonesty could be established on another basis.

1. High Court (Administrative Court): A differently constituted Divisional Court gave judgment on 21 December 2007 on the first part of the case-stated appeal, answering several questions but leaving the European Union law issues open.
2. High Court (Administrative Court): In the present judgment, the court ordered a reference to the ECJ on the unresolved European Union law questions. Final determination of the appeal was deferred.