Evans, R. v

Sentencing for unlawful distribution of copyright-infringing articles requires an individual assessment of the offending and the offender. Relevant considerations include the difficulty of detection, the need for deterrence, the duration and persistence of the activity, profit, identifiable loss to copyright owners, wider industry harm, and personal mitigation.

Although no definitive guideline governs these copyright offences, a fraud guideline may assist where it applies to another count or as a check in an appropriate case. Unless the activity is amateur, minor or short-lived, or compelling mitigation or exceptional circumstances exist, immediate custody is likely to be appropriate.

The appellant pleaded guilty in the Crown Court at Liverpool to two offences of distributing copyright-infringing articles contrary to Copyright, Designs and Patent Act 1988, Section 107(1) (e), and one offence of possessing an article for use in fraud contrary to Fraud Act 2006, Section 6(1). He received concurrent sentences, producing a total of 12 months’ immediate imprisonment.

He had operated websites which facilitated access to torrent downloads of copyrighted music. The activity continued after cease-and-desist notices. Although he had made little financial gain and had substantial personal mitigation, the prosecution relied on the scale and sustained nature of the activity and its harm to copyright owners and the music industry.

He appealed against sentence, contending that it was excessive and should have been suspended or shorter.

Appeal dismissed. The total sentence of 12 months’ immediate imprisonment was not excessive.

1. The sentencing judge had properly taken account of the appellant’s early guilty plea, previous good character, depression and other personal mitigation. Those matters did not outweigh the seriousness of sustained offending which continued after cease-and-desist notices and employed sophisticated equipment.

2. The absence of substantial personal profit did not remove the harm. There was real loss to copyright owners and performers, together with a wider detrimental effect on the music industry which was difficult to quantify. The difficulty of detecting and investigating this form of intellectual-property offending justified a deterrent element in sentence.

3. For offences under Copyright, Designs and Patent Act 1988, Section 107(1) (e), sentencing courts must retain flexibility and assess the particular offence and offender. Material considerations include detectability and deterrence; duration and continuation after notices; the defendant’s profit; calculable loss and wider industry impact; and the ordinary mitigating features, assistance and plea.

4. No definitive guideline applied directly to the copyright counts. A court may nevertheless use the fraud, bribery and money-laundering guideline as a check where it assists. It was directly relevant here because the Section 6(1) Fraud Act 2006 count fell within it.

5. Unless the unlawful activity is very amateur, minor or short-lived, or there is particularly compelling mitigation or another exceptional circumstance, immediate custody is likely to be appropriate for illegal distribution of copyright-infringing articles.

• Court of Appeal (Criminal Division) — leave to appeal against sentence was granted and the appeal was dismissed: [2017] EWCA Crim 139.
• Crown Court at Liverpool — on 7 October 2016, the appellant was sentenced to concurrent terms resulting in 12 months’ immediate imprisonment.