R v Mark Gould

In sentencing for conspiracy to defraud, legitimate subscription income may provide a practical indication of loss caused or risked. Detailed contractual or copyright analysis is not required where the criminal conduct involved unlawfully supplying broadcast content. The proprietary-right requirement must not be defined narrowly: no right in rem is necessary. Where the extent or likelihood of risked loss is particularly high, the higher harm category may be retained. Consecutive sentences may be imposed for similar conspiracies where material changes in method and participants establish separate agreements and concurrent sentences would not reflect the overall criminality. The resulting sentence must remain just and proportionate.

The appellant pleaded guilty to two conspiracies to defraud relating to illicit television streaming and admitted contempt by breaching a restraint order. The Crown Court at Birmingham imposed consecutive sentences totalling 11 years, including 10 months for contempt. The appellant challenged the assessment of loss, the use of consecutive sentences and the contempt sentence. The Court of Appeal extended time for the contempt appeal and considered the applications on their merits. The central issues were how loss and risked loss should be assessed, whether the two conspiracies were separate for totality purposes, and whether the contempt sentence was safe.

1. Disposition. The court extended time for the appeal against the contempt sentence, refused the renewed application for leave to appeal against the conspiracy sentences, and dismissed the contempt appeal. The overall sentence was not manifestly excessive.
2. Loss. The judge was entitled to use the value of legitimate subscriptions as an indication of loss caused or risked. The court accepted that confiscation valuation and loss caused by fraud were not identical, but regarded the approach in R v Rose [2008] 1 WLR 2113 as providing a relevant parallel. R v Waya [2012] UKSC 51 had disapproved one aspect of R v Rose but approved the open-market approach to valuation in confiscation proceedings. An alternative measure was what the conspirators would have had to pay legitimate broadcasters to do lawfully what they had done unlawfully. Contractual and copyright technicalities should not obscure the practical loss.
3. Proprietary rights. The court rejected an unduly strict reading of the proprietary-right requirement for conspiracy to defraud. The approach derived from R v Scott [1975] AC 819 was too narrow when applied strictly. Adopting the reasoning in R v H [2015] EWCA Crim 46, the court held that no beneficial or equitable interest, or right in rem, was required.
4. Risked loss and totality. Even if the case were approached as one involving risked loss, the extent of the risk was so high that moving down a harm category was inappropriate. Under the totality guideline, concurrent sentences are not required merely because offences are similar or form part of a single broad course of conduct. Consecutive sentences may be proper where overall criminality would not be sufficiently reflected by concurrency. The different methods, participants and operational structures showed that the two conspiracies were separate, although directed to the same end. The court applied the reasoning in R v Fletcher [2024] 1 WLR 1433 and the analogous approach in R v Schools [2023] EWCA Crim 422.
5. Contempt. The sentencing judge misstated the amount dissipated, but the error did not affect the assessment of the continuing and serious nature of the contempt. The sentence was therefore upheld.

• Court of Appeal (Criminal Division): On 6 June 2024, extended time for the contempt appeal, refused leave to appeal against the conspiracy sentences, and dismissed the contempt appeal: [2024] EWCA Crim 669.
• Crown Court at Birmingham: On 30 May 2023, imposed consecutive sentences totalling 11 years for two conspiracies to defraud and contempt by breach of a restraint order.