R v Gross (Neville Emmanuel)

Date

20 December 1995

Legislation

Copyright Designs and Patents Act 1988 s107
Trade Marks Act 1938 s58A(1)(c)

Keywords

warrant to search; counterfeit video tapes; criminal offences; sentencing; custodial threshold; Federation Against Copyright Theft

Counsel

G King for Gross

Solicitors:

unknown

Judge:

Auld LJ; Ebsworth, Langley JJ.

Court:

Court of Appeal (Criminal Division)

Reported:

[1996] 2 Cr App R (S) 189

Summary:

On April 19, 1995 at the Crown Court at Southend the appellant, Neville Emmanuel Gross, pleaded guilty to two counts of copying a copyright work contrary to section 107(1)(a) of the Copyright Design and Patents Act 1988 and two counts of fraudulently using a trade mark contrary to section 58A(1)(c) of the Trade Marks Act 1938.

Police officers executed a search on Gross's home and were accompanied by a senior investigative officer from the Federation Against Copyright Theft (generally known as FACT) whose chief objective is the protection of the interests of its members against any infringement in the United Kingdom of their copyright in films, television programmes and all forms of audio visual recording. When the appellant was asked if he had any equipment used in the commission of crime involving video recording he replied, "Yes, it's upstairs". In the bedrooms the police found no less than 50 video recorders set up in banks, shelving containing numerous video tapes, printed labels and correspondence associated with video recording. The appellant freely admitted that the equipment was his. When he was arrested and cautioned he said that he understood all that and made it clear that he intended to plead guilty.

The police seized 971 video tapes, 753 of which were later found to contain unauthorised copies of work marketed or distributed by companies such as Walt Disney or Warner Brothers who were members of FACT, 270 video boxes and a large number of video inlay sleeves and topside labels. It was apparent that it was a professional operation on a significant scale carried on for profit at the expense of the owners of the copyright.

Gross had committed a series of offences, and one which was grossly aggravated by the rapidity with which it followed upon a conditional discharge for similar matters imposed only a few months earlier.

The Court of Appeal noted that it was apparent from the sentencing remarks that Judge Lockhart clearly understood the nature of this enterprise. It was, he remarked, an operation which had tremendous potential for profit, which required a great deal of investment, effort and planning. The appellant would have gained greatly had he not been caught and the industry and public would have been the losers. He said that it was behaviour for which only a custodial sentence could be justified, particularly in the light of the conditional discharge imposed for offences on a much lesser scale but a few months earlier. He also observed that this was a growing and illegal method of trading.

Gross, by virtue of the commission of the offences which he admitted, was in breach of a three-year conditional discharge imposed on February 9, 1994 at Redbridge Magistrates' Court for possessing a video recording of unclassified work for the purpose of supply and possessing a total of 65 copies of cinematograph films which he believed or had reason to believe were infringing copyright contrary to section 107(1)(c) of the Copyright Design and Patents Act 1988. In respect of those matters Judge Lockhart imposed sentences concurrent inter se of six months' imprisonment on each of the four offences, but consecutive to the sentence of 18 months, making a total sentence of two years' imprisonment. Gross then appealed against that sentence.

The Court of Appeal considered Gross's antecedents and personal circumstances and also considered the weight given by the trial judge to Gross's early guilty pleas. The Court of Appeal considered that, whilst the sentence was wholly correct in principle, it was too long overall. Taking account of the fact that the original offences were of a lesser magnitude, it came to the conclusion that sentences of six months imposed in respect of those sentences were too long and that a sentence of 18 months for the main offences also failed to take sufficient account of all the relevant factors in this case.

Decision:

It concluded that the sentences of 18 months should be quashed and there should be substituted for them concurrent sentences of nine months' imprisonment, that the sentences of six months' imprisonment in respect of the breach matters should be quashed and there should be sentences of three months concurrent inter se substituted. The three-month sentences was to be consecutive to the nine-month sentence, making a total sentence of 12 months, thereby reducing the sentence overall from two years to 12 months. To that extent the appeal was allowed.