Karen Murphy’s costs

When I wrote a couple of weeks ago about Karen Murphy’s successful appeal against conviction for dishonestly receiving a broadcast with intent to avoid payment under section 297(1) of the Copyright, Designs and Patents Act, I mentioned that there was a long argument about costs:

Martin Howe QC, for Ms. Murphy, argued that the case should be treated as civil proceedings … and that under the relevant provisions of the Civil Procedure Rules, costs should “follow the event” and be paid by the loser … James Mellor QC for MPS argued that the case was criminal, and so under the relevant practice direction should only be payable by the prosecutor if the case has been wrongly brought – which he said could not be the case since it involved the plain application of legislation.

Well, today Lord Justice Stanley Burnton and Mr Justice Barling have given judgment on the question of costs, largely in favour of Ms. Murphy. They’ve decided that the civil regime should be applied (paras. 15-19):

15. Clearly, save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime. However, the present case is unusual. The prosecution was brought by the respondent in order to protect a very substantial profit stream for the Football Association Premier League Ltd (“the FAPL”) …

17. The reality is that these proceedings were part of a broader campaign to protect a private interest of the FAPL. Of course, private prosecutors may prosecute cases that affect their private interest. Shoplifting prosecutions are an obvious example. But those cases involve general dishonesty rather than the question whether the defendant genuinely relied on a solicitor’s legal advice. Indeed, the finding of the Crown Court that the appellant “hid behind the legal advice as a convenient shield behind which to hide her dishonesty” is questionably adequate. The factual findings made by District Judge Sanders in the judgment to which we have referred fortify us in this conclusion, in particular his finding that FAPL retain overall control of the prosecutions brought by MPS and that FAPL has given MPS an indemnity against any award of damages and any order for costs made against it. It is finally difficult to believe that a public prosecutor, concerned that a defendant should not be wrongly convicted, would have resisted the application for a reference to the Court of Justice, and would have submitted, as the respondent did in its skeleton argument for the 2007 hearing in this Court, that “There is no matter of EU law for the Court justifying a reference under Article 234 EC. …. this court can reject the Appellant’s case on EU law with complete confidence …”…

19. In our judgment, these circumstances justify the application of the civil costs regime.

Ms. Murphy hasn’t been awarded all her costs, quite: some non-EU legal issues were argued in the Magistrates’ and Crown Courts on which she lost and for which the judges have ruled she should bear the cost, which amounts to a quarter of the costs of those two hearings.

But the bulk of the costs involved in the case were those of this appeal, which of course she has won. So Media Protection Services (underwritten, as the judges say, by the FA Premier League) will have to pay all her costs for that, and three quarters of her costs in the courts below – the vast majority, surely, of the total costs bill claimed by Karen Murphy of nearly £700,000. The actual amount they pay will depend on agreement, or detailed assessment.

In my view this is a reasonable result – although I don’t say a fair one, because I could understand if Karen Murphy felt she should recover all her costs, since the criminal law was used against her by private commercial interests, without a proper legal basis.

The amount of costs at stake here shows two things. First, how eye-wateringly expensive and risky it can be for an individual to take on powerful commercial interests, even when criminal charges are at stake; and second, how relatively small the downside risk is for those powerful commercial interests trying to exploit the criminal law against individuals, even if they’re on dodgy legal ground from the start.

Is even six hundred-odd grand that much, if you’re backed by “big football”?