R v Paul James Merrell

In sentencing for illegal downloading, distribution or streaming of subscription-only content, the court should consider the difficulty of detection, cumulative harm to rights owners, duration of offending, offender profit, potential losses and personal mitigation. Deterrent sentences are generally necessary. Where the activity is more than very amateur, minor or short-lived, immediate custody is likely unless mitigation is particularly compelling or exceptional circumstances exist. A sentencing judge may give limited weight to claimed effects on employment or an institution where the evidence does not address the wider consequences of the offending and conviction. If the judge has properly balanced personal mitigation against serious, prolonged and profitable offending, an immediate custodial sentence will not be disturbed unless wrong in principle, unreasonable or manifestly excessive.

The appellant, a deputy headteacher, pleaded guilty in the Crown Court at Birmingham to offences under sections 296ZB(1)(c) and 296ZB(2) of the Copyright, Designs and Patents Act 1988, arising from a four-year business supplying unlawful access to subscription television streams and software facilitating that access. The Crown Court sentenced him to concurrent terms of 12 months’ imprisonment and made a confiscation order.

He appealed against sentence, arguing that the sentence should have been suspended because he posed no danger to the public, had a realistic prospect of rehabilitation, and his imprisonment would have severe effects on his family and the school. The central issues were whether immediate custody was required and whether the judge had properly weighed the personal mitigation.

The appeal against sentence was dismissed. The sentence was not wrong in principle, unreasonable or manifestly excessive.

1. Relevant sentencing factors. Applying R v Evans [2017] EWCA Crim 137, the court identified the relevant factors for illegal downloading and distribution: the difficulty of detection and investigation; the potentially serious and cumulative harm to rights owners; the duration of offending; the profit made; potential losses to rights owners; and personal mitigation. Deterrent sentences are generally necessary.
2. Immediate custody. Unless the activity is very amateur, minor or short-lived, an immediate custodial sentence is likely to be appropriate, unless the mitigation is particularly compelling or there are other exceptional circumstances.
3. Application. The offending had continued for four years, generated significant sums and caused potentially substantial losses. It ended only after test purchases and execution of a search warrant. The judge was entitled to attach overriding weight to immediate custody for punishment, despite the appellant’s good character, rehabilitation prospects, family circumstances and other personal mitigation.
4. Effect on the school. The evidence did not establish that the school would close if the sentence were immediate. It also did not address whether the seriousness of the offending and the appellant’s apparent lack of insight made him unsuitable to lead the school, irrespective of imprisonment. The judge was therefore entitled to be sceptical about the claimed effect of imprisonment on the school’s future.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed. The court held that the sentence imposed below was not wrong in principle, unreasonable or manifestly excessive.
• Crown Court at Birmingham: On 27 October 2023 the appellant pleaded guilty to counts 2 and 3. On 2 February 2024 HHJ Drew KC imposed concurrent sentences of 12 months’ imprisonment and made a confiscation order.