Legal Research

High Court quashes Crown Court ruling for failure to consider EU law

By scott

Those who read this blog will know I have an interest in the issue of pubs broadcasting Premier League football, and in particular the issue of whether live transmission of Premier League football games in pubs by means of foreign decoder cards (legally purchased) is actually legal in the UK or not.

Last month (see previous blog post on subject) Advocate General (AG) Kokott of the European Court of Justice has issued an opinion in two joined cases C-403/08 and C-429/08 Football Association Premier League Ltd and Others v QC Leisure and Others and Karen Murphy v Media Protection Services Ltd looking at this issue and sided with publicans (The AG opinion does not bind the European Court of Justice, which will deliver its judgment at a later date).

Now the issue has arisen again, but in an interesting legal manner. The High Court has quashed a Crown Court decision to reject an appeal by another publican against a conviction from 2009 (the case had originally been stayed whilst the Murphy v MPS case mentioned above progresses through the English Courts) for a breach of section 297(1) of the Copyright, Designs and Patents Act by showing a Premier League football match at the Pub, without a contract with BskyB ? the exclusive rights holder in the UK. The Publican had ? back in 2005 purchased a satellite system which gave access to the broadcasts of ART, the Football Association’s Premier League licensee for the Middle East and Africa.

Section 297(1) reads: “A person who dishonestly receives a programme, including a broadcasting service, provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme, commits an offence and is liable on the summary conviction to a fine not exceeding level 5 on the standard scale.”

The Crown Court considered that there were two issues, one of dishonesty and one of EU law. Interestingly the Court chose to essentially ignore the EU law aspect stating, and given the pending references to the EU in the cases mentioned above: “We do not feel, however ? that it would be appropriate for this tribunal to consider or to decide the difficult and conflicting issues of community law which arise in the background to this appeal ? We think that the broader and complex issues of the application of EU law are for a different tribunal on a different day?”

The appeal was therefore dealt with only on the point of whether or not there was dishonesty on the publican’s part, totally ignoring the EU aspect with the Court saying it was bound by the first ruling in the Murphy v MPS case, and so it should base its decision on domestic law.

The High Court disagreed, finding the Crown Court’s ruling was a plain misunderstanding of the first ruling in the Murphy v MPS case, which whilst it did deal with domestic law did not give a green light to decide issues under section 297 without considering EU law aspects. According to the Court “It is fundamental that a court, along with other courts who have considered similar points, should include a consideration of the EU law dimension.”

The Court however refused to hear arguments about whether this is a case in which EU law applies at all, considering the Satellite licence was with a Middle East operator. But the court decided that actually whether the case in one that involves EU law is itself a decision which requires consideration of EU law.

Gregory Turner v Stafford Crown Court [2011]

Full post as published by Information Overload on March 22, 2011 (boomark / email).