We looked earlier this year at the relatively heavy sentence handed to Phillip Danks for illegally uploading ‘Fast and Furious 6’. On 10th November 2014 there was a similar case, but this time with music.
The Dancing Jesus website was owned by Kane Robinson. Richard Graham had posted more than 8,000 links to music that could be illegally downloaded. Mr Robinson pleaded guilty straight off, but it seems that Mr Graham did not plead guilty until the trial. Reading between the lines, it seems that there was legal argument as to whether what Mr Robinson did was a criminal offence and it was only after the Judge ruled that it was that Mr Robinson pleaded guilty.
Thanks to the BPI, we know that the offence to which both people pleaded guilty to was under s107(1)(e) Copyright, Design and Patent Act 1988, which creates a criminal offence for anyone who “without the licence of the copyright owner … distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright“.
This offence is either way, with a maximum sentence of 10 years.
Mr Robinson received 32 months and Mr Graham 21 months.
We don’t have the sentencing remarks, so we’re just guessing here, but the Judge would probably start with the Sentencing Guidelines for Fraud. It’s probably High Culpability for Mr Robinson, and maybe Medium for Mr Graham. After that, the Judge will look at the amount of the fraud. This is pretty hard to calculate – do you take the amount of money the two defendants made (not very much, certainly not Mr Graham)? Or the amount lost by the record companies or artists? If so, how do you calculate this?
All good questions, none of which we have an answer to. Again, with the caveat that we don’t have the sentencing remarks, we would suggest that there is a danger that the Courts are taking these sorts of offences too seriously. Yes it’s serious. Yes it’s fraud. But the sentences passed in this and the Fast and Furious case are out of kilter with other sorts of frauds.
The industry will be able to tell us why it is not just a civil matter and needs the protection of the criminal law, but assuming full credit for a plea of guilty (I would have thought that Mr Graham would have got close to full credit as there was a legitimate legal argument to be had, then the starting point for Mr Robinson would be 4 years, with 3 years for Mr Graham.
These are stiff sentences – higher than for many sexual or violent offences. Have we got our priorities right?
Still, at least we won’t be picking up the tab for all this, eh?
Ah. Not so fast…
This is, it is true, probably a private prosecution by the BPI. Also, as you know, if a defendant pays privately, and is acquitted, well tough – they don’t get their full money back. On that basis, you would probably assume that a private prosecutor would just have to swallow it. You would, however, be wrong.
It’s important to stress that this part of the article deals with a wider issue, and not to this particular case. I don’t know if this was a private prosecution, I don’t know how much was spent and whether any application was made for BPI’s costs (if it was a private prosecution). And I’m certainly not suggesting that BPI have done anything wrong.
Now that’s clear, let’s look at s17 Prosecution of Offenders Act 1985. Under this, a Court can make an order for the payment (in full, unlike a defendant) of the costs of a private prosecutor. If you find that surprising, then you will probably be even more surprised that this is the case even if the prosecution fails and the defendant is acquitted.
The amounts involved can be eye-watering – in a recent case the Court of Appeal did not bat an eyelid at £320 per hour. By way of comparison, a barrister instructed by the CPS would get £430 for a case that pleaded guilty at an early stage, going up to a princely £950 for a case that went to trial.
As I said, I don’t know in this case whether the BPI did get their costs back, or even applied for them, so this part of the article doesn’t relate to them. But it does demonstrate a wider issue – if the Government is serious about saving money, then they should look seriously at the question of payment of private prosecutors from central funds. Why should they get paid if they lose? Why should they get paid more than legal aid/defence rates?