Most people will have encountered people who sell streaming devices that allow them to access paywalled content, often for a one-off fee as low as £100. Given that many people pay in excess of that for a single month of SKY TV access, it is no wonder that the sale of such devices is a growing industry.

Few will be surprised to learn that the sale of such devices is a criminal offence (see s 296ZB of the Copyright, Designs and Patents Act 1988) punishable by a maximum of two years imprisonment.

Paywalled TV content is big business, but the providers also have to pay huge amounts of money for the rights to broadcast some content, £5.1 billion for Premier League football, for example.

Even those in seemingly reputable positions are not exempt from the law. A recent case in the Court of Appeal involved a defendant who, despite being of previous good character and a Deputy Headmaster, ran a sideline in the sale of streaming devices.

The court dismissed an appeal against a sentence of 12 months imprisonment and rejected the suggestion that the sentence ought to have been suspended:

‘We cannot fault the balance that the judge struck. He was entitled to conclude that this offending was so serious that overriding weight should be given to the imposition of immediate custody in order to achieve appropriate punishment. His judgment was neither wrong in principle nor unreasonable. Accordingly, the sentence was not manifestly excessive and the appeal must be dismissed.’

So, despite the pressures on the prison estate at present, even this man of impeccable character was unable to avoid an immediate custodial sentence. The court clearly endorsed a deterrent sentence in this case.

What factors will a court consider?

The relevant sentencing principles are:

(1) First, illegal downloading and distribution is very often difficult to investigate and detect. It can give rise to serious problems and losses (none the less real for not being readily quantifiable) to the music and entertainment industry. Deterrent sentencing in such a context is appropriate.

(2) Second, the length of time (and including also any continuation after service of cease and desist notices) of the unlawful activity will always be highly relevant.

(3) Third, the profit accruing to the defendant as a result of the unlawful activity will always be relevant.

(4) Fourth, and whether or not a significant profit is made by the defendant, the loss accruing to the copyright owners so far as it can accurately be calculated will also be relevant: as will be the wider impact upon the music industry even if difficult to quantify in precise financial terms: because wider impact there always is.

(5) Fifth, even though this particular type of offending is not the subject of any Definitive Guideline there may be cases where it will be helpful to a judge to have regard to the Definitive Guidelines on fraud, bribery and money laundering offences. In some cases, such as the present, that will positively be required because one or more of the counts on the indictment, as here, will be a count which comes within the ambit of the guideline itself. But even where that is not the position there may be some cases where a judge, at least if only as a check, may wish to refer to the Definitive Guideline to get a feel, as it were, for the appropriate sentence. However, there will be other cases where the Definitive Guideline may be of marginal, and perhaps no, assistance at all. That will be a matter for the assessment of the judge in the individual case. Where the Definitive Guideline is required to be taken into account because one of the counts on the indictment is within the ambit of the guideline, that of itself will no doubt lend assistance in deciding what the appropriate overall sentence will be.

(6) Sixth, personal mitigation, assistance to the authorities and bases and pleas of guilt are to be taken into account in the usual way.

(7) Seventh, unless the unlawful activity of this kind is very amateur, minor or short-lived, or in the absence of particularly compelling mitigation or other exceptional circumstances, an immediate custodial sentence is likely to be appropriate in cases of illegal distribution of copyright infringing articles.


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