Redcar v Dady & Ors

Exceptional circumstances are required before a voluntary Bill of Indictment is permitted after a Crown Court judge has dismissed charges. The Crown bears the burden of showing those circumstances. Where the alleged conduct is precisely covered by a statutory offence, the prosecution should ordinarily proceed under that offence, rather than by a broad common law conspiracy charge, particularly where the statutory scheme provides important procedural safeguards. The Crown cannot avoid time limits, consent requirements or the lower sentencing consequences of the statutory offence by recasting the conduct as conspiracy to defraud. A voluntary Bill was therefore refused where the alleged conduct was caught by section 297 of the Copyright, Designs and Patents Act 1988 and no good reason justified the common law charge.

The defendants were sent for trial on conspiracy to defraud and related money-laundering charges. The Crown Court dismissed the charges. The Crown then applied to prefer a voluntary Bill of Indictment repeating the same counts.

The alleged conspiracy concerned a website which, for payment, enabled subscribers to access unauthorised internet streams of Premier League football matches. The Crown relied principally on common law conspiracy to defraud, although sections 107(2A) and 297 of the Copyright, Designs and Patents Act 1988 potentially applied. The central issue was whether the statutory offence under section 297 made it improper to maintain the wider common law conspiracy charge.

1. Application refused. The court refused permission to prefer the voluntary Bill. Since the money-laundering counts were parasitic upon Count 1, they also fell away. The restraint orders were discharged.
2. A voluntary Bill may be used where charges have been dismissed by a Crown Court judge before arraignment. The decision below must nevertheless be treated with the greatest respect, and exceptional circumstances are required before prosecution is permitted. The burden lies on the Crown, applying Brooks v DPP [1994] 1 AC 568 and R v Glyn Thompson and Brian Hanson [2006] EWCA Crim 2849.
3. Section 297 of the Copyright, Designs and Patents Act 1988 caught the alleged conduct. The defendant was said to have provided subscribers, for payment, with a means of circumventing encryption. The court was prepared to treat that conduct as capable of amounting to conspiracy to commit offences under section 297.
4. Proceedings for conspiracy to commit a statutory offence were subject to safeguards under section 4 of the Criminal Law Act 1977, including a six-month time limit and the need for the Director of Public Prosecutions’ permission. The offence was summary-only and carried materially lower sentencing consequences. Those safeguards were matters which Parliament had regarded as important.
5. Following the guidance in R v Rimmington and R v Goldstein [2005] UKHL 63, conduct falling within a specific statutory provision should ordinarily be prosecuted under that provision unless there is good reason to do otherwise. The Crown’s desire to avoid the procedural and sentencing consequences of section 297 was not a good reason. It would be wrong to use the broad common law offence to circumvent those protections.
6. The court made an additional, non-essential observation that charging subscribers a fee would have distinguished the case from a mere-conduit argument under section 107(2A). That issue did not affect the result because the Crown no longer relied on section 107.

The judgment was a first-instance decision on the Crown’s application to prefer a voluntary Bill of Indictment after the Teesside Crown Court had dismissed the charges. The Crown Court decision was handed down on 18 December 2012.