Foreign satellite football saga goes on for pubs

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Related tags: Judge, High court

Satellite football: the European Court of Justice ruled that territorial restrictions on viewing cards was unlawful
Satellite football: the European Court of Justice ruled that territorial restrictions on viewing cards was unlawful
I am sure you will remember the euphoria that surrounded a decision in the European Court of Justice that it was not illegal to use Nova viewing cards. The European Court of Justice advised that, as the supplier and the recipient were both member countries of the EU, any restriction on their supply within the EU would be unlawful.

There had been an unlawful territorial restriction imposed on their use by the provider of the broadcast service (BSkyB).

This victory for publicans was, however, a hollow one considering that the broadcast of Premiership football is material that is still copyrighted to the Premier League.

The latest attempt to prosecute publicans for illegal use of the card (this time supplied from a company in Albania) identified a further problem with such a prosecution, which is far more basic in nature.

The problem is likely to apply to other pending and previously determined cases.

Media Protection Services (MPS) acts on behalf of the Football Association Premier League (FAPL) to “investigate and prosecute infringements of FAPL’s intellectual property rights in relation to broadcasts of Premier League football matches”.

It actively prosecutes those illegally using decoder cards to show matches without payment of licensing fees to BSkyB.

MPS decided to prosecute publicans Andrew and Christine Crawford for the use of a decoder supplied by Tring (an Albanian satellite broadcaster). What happened next is the stuff of legends and relied upon judges not only knowing the law but then upholding it, and ensuring the continued democratic process in our island country.

The district judge hearing the case noted that the “laying of information” (this is the commencement of proceedings in the court) before the Vale Magistrates’ Court was by Raymond Hoskin, who describes himself as the “prosecutions director of Media Protection Services”.

Once the “information had been laid” before the magistrates, MPS instructed solicitors and barristers to progress the prosecution.

The district judge, however (confirmed by Lord Justice Stanley Burnton and Mr Justice Kenneth Parker in the Queen’s Bench Division of the High Court), determined that some basic rules had not been observed, the result being that the prosecution was void from the very beginning.

In order to “lay information before a magistrate” certain requirements have to be followed. The person has to have “rights of audience” (solicitors automatically obtain rights of audience in Magistrates’ Courts by virtue of their qualification), which amounts to an entitlement to carry on “reserved legal activities”.
Alternatively, the person laying the information has to be entitled to carry on the legal activity by way of “an exemption”. An exemption would be necessary to enable the person to have conduct of litigation, of which the laying of information would be the first step.

A substantial reasoned judgement supported by case law identified that Mr Hoskin certainly did not have “rights of audience” and never held himself out to be “exempt” and could therefore not have conduct of litigation.

In practical terms, the case against Andrew and Christine Crawford was dismissed and the court went further to determine that in laying the relevant information before the court there was an inescapable conclusion that MPS had acted “as a solicitor”, contrary to the Solicitors Act 1974.

There have been many prosecutions before the courts by MPS for the inappropriate or unlawful use of decoder cards. What of these prosecutions? For some (who lost their shirt and their business) it is probably too late to get the business back. For all there may well be an opportunity to have the criminal conviction overturned. The facts of each case will determine whether the case is void ab initio (void from the beginning), following the High Court ruling.

You should ask your solicitor or contact Poppleston Allen for further information regarding this judgement and its potential impact on you and your business.

Related topics: Licensing law

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