Majid Iqbal & Anor v City of Wolverhampton Council

For statutory conspiracy, the relevant fact or circumstance is assessed when the agreement is made. Where it is then unidentified, Criminal Law Act 1977 section 1(2) requires an intention that it will exist when the substantive conduct occurs; it does not require proof that it later materialised. Subsequent implementation may prove the agreement and intention, but does not alter the agreement’s essential elements or convert a single conspiracy into separate conspiracies.

Under sentencing guidance for trade-mark and analogous design offences, the higher retail value of genuine goods is ordinarily built into the harm assessment. A reduction is discretionary and exceptional where that value is grossly disproportionate to the actual value. The assessment is evaluative and an appellate court will intervene only if it is unreasonable and produces a manifestly excessive sentence.

The appellants were convicted in the Crown Court at Wolverhampton of conspiracies concerning counterfeit trade-mark goods, copied products and criminal property. They each received concurrent sentences of 31 months’ imprisonment.

They appealed their convictions on the count alleging conspiracy to market earphones infringing Apple’s registered AirPods design. They contended that the prosecution had to prove both that the particular earphones infringed the design and that they knew this. They also challenged the harm assessment used in sentencing.

The central issue was whether the earphones were identified property when the alleged conspiracy agreement was made, so that knowledge rather than intention was required under section 1(2) of the Criminal Law Act 1977.

1. Appeals dismissed. The convictions on count 10 were safe and the concurrent sentences of 31 months were just and proportionate.

2. Section 1 of the Criminal Law Act 1977 makes conspiracy complete when the parties make an agreement to pursue criminal conduct with the requisite intention. The agreement is directed to future conduct and may be conditional. Applying R v Saik [2007] 1 AC 18, where a fact or circumstance required for the substantive offence is unidentified when the agreement is made, section 1(2) requires proof that the conspirator intended it to exist when the conduct occurred. Where it was identified at that stage, knowledge is required.

3. The appellants’ error was to equate later inspection of received earphones with the making of the agreement. The relevant time was when the conspiracy was agreed. The evidence permitted the jury to infer an earlier agreement governing how the business would be run, which at least predated the 2019 orders. Later orders, inspections, marketing and sales could evidence that agreement and the necessary intention, but did not alter its nature or create a new conspiracy for each batch.

4. The judge therefore correctly directed the jury that it had to be sure that each appellant joined an agreement intending that goods infringing the AirPods design would be marketed in the course of business. The prosecution did not have to prove that earphones actually sold matched the design. Their similarity to the design was evidence from which intention could be inferred. Read as a whole with the route to verdict, the use of “should” in one sentence of the direction neither misstated the law nor could have affected the result.

5. On sentence, the judge was entitled to assess harm by reference to the retail value of genuine AirPods. The applicable guidance anticipates that this value will substantially exceed the value of counterfeit goods. An adjustment is discretionary only in exceptional cases of gross disproportionality. That open-textured assessment was for the sentencing judge. It was not unreasonable here, and the overall sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and sentence in [2025] EWCA Crim 498.
• Crown Court at Wolverhampton: on 20 December 2023, convicted both appellants of the relevant conspiracies; on 15 March 2024, imposed concurrent sentences of 31 months’ imprisonment.