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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Iqbal & Anor v City of Wolverhampton Council [2025] EWCA Crim 498 (17 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/498.html Cite as: [2025] EWCA Crim 498 |
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202401258 B5 & 202401376 B5 |
ON APPEAL FROM THE CROWN COURT AT WOLVERHAMPTON
HER HONOUR JUDGE JACOBS
T20217291
Strand, London, WC2A 2LL |
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B e f o r e :
MR. JUSTICE WALL
and
HIS HONOUR JUDGE EDMUNDS KC
The Recorder of Kensington and Chelsea
____________________
MAJID IQBAL (1) MUHAMMAD IQBAL (2) |
Appellants |
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- and - |
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CITY OF WOLVERHAMPTON COUNCIL |
Respondent |
____________________
Michael Gomulka (instructed by Blackfords) for the Second Appellant
Mark Jackson (instructed by City of Wolverhampton Council) for the Respondent
Hearing date: 9 April
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Crown Copyright ©
LORD JUSTICE HOLGATE :
Summary of the evidence
(i) The ordering, advertising and sale of counterfeit goods through various eBay accounts and eBay online shops operated by or linked to the appellants;
(ii) A number of test purchases resulting in the sale of counterfeit goods from eBay shops operated and controlled by the appellants;
(iii) Searches of each of the appellant's homes and business premises, resulting in the seizure of substantial quantities of counterfeit goods.
(iv) The appellants' use of numerous personal and business bank accounts and the transfers of cash from PayPal accounts into various bank accounts before being spent or transferred into other accounts or withdrawn as cash. A1's accounts made over 33,000 sales valued at over £375,000, Naz's accounts made over 21,000 sales valued at £230,000, A2's accounts made over 12,000 sales valued at £214,000 and an account linked to Aamir sold 958 Sky remote controls and 541 products infringing Apple copyrights. In addition, very substantial sums of money were received into bank accounts from Amazon, indicating that that platform was also used to sell counterfeit products.
"Majid Iqbal and Hina Naz, between 5th April 2017 and the 1st January 2021, conspired together with Mohammad Iqbal, Fatima Aamir, in the course of business and without the consent of the proprietor Apple, to offer, put on the market, import, export, or use the product, or stock it for one or more of those purposes, goods, namely earphones, of the registered design 'AirPods', produced exactly to the 'AirPod' design, or with features that differed only in a immaterial detail from the 'AirPod' design, being a registered design of Apple (Europe) Ltd."
(i) Earphones seized in the searches of the appellants' premises;
(ii) Images supplied by Apple of its AirPods which the jury was invited to compare with earphones seized in the searches;
(iii) eBay advertisements on accounts linked to the appellants offering earphones infringing Apple's copyrights and described as "Wireless Bluetooth AirPods" and "Genuine Earphones for Apple iPhone";
(iv) The sale of earphones through various eBay accounts with references to Apple;
(v) Invoices and delivery notes to prove the sale of the earphones and the description of those items on the invoices;
(vi) Evidence from bank accounts relating to the purchase of earphones;
(vii) Feedback from customers who bought goods from the appellants' eBay shops, indicating that those customers had bought the earphones believing them to be genuine Apple products.
Submission of no case to answer and the judge's ruling
" the law as it currently stands is that, for property which is unidentified at the time of the agreement, there is no requirement for the prosecution to prove that the "fact or circumstance" existed in this case, that the earphones infringed a copyrighted design. For property which is identified at the time of the agreement, there is such a requirement. This reflects the judgment in Saik as set out at paragraphs 24-26. I do not agree with the submissions made by defence counsel, that reliance on evidence of a course of conduct means that the case automatically falls within that second category. The law is simply drawing a distinction between a conspiracy where to use the example of handling stolen goods in situation A a defendant agrees with another that he will handle the goods which are to be stolen in a planned burglary, and situation B where a defendant is shown or told about goods which have already been stolen in a burglary and then agrees to handle them. Situation A would not require proof, by the prosecution, that the goods were in fact stolen as they did not exist at the time of the agreement and the defendant could not, therefore, "know" they would be stolen goods. The fact that the prosecution subsequently relied on evidence of the defendants conduct to show the agreement would not change the state of his knowledge at the time of entering the conspiracy. Situation B would require the prosecution to prove that the goods shown to the defendant and subsequently handled were stolen; this seems to me to be common sense."
"I am satisfied, having considered the evidence, that it would be absurd to conclude that the earphones which are the subject of Count 10 amount to property that was in existence at the time the agreement was entered into, such that the prosecution must prove that they did infringe the copyrighted design and that the defendants knew this at the time of the agreement. That would be impossible where items had not even been ordered at the start of the conspiracy, which I find must, at the very least, predate the orders in 2019 I have just referred to, and where the items come from differing suppliers. The course of conduct relied upon by the prosecution is simply evidence from which the jury could infer the agreement, rather than somehow changing the nature of that agreement. I therefore find that, in this case, the prosecution does not need to make the jury sure that the earphones which were marketed by the defendants were produced exactly to the airpod design. The prosecution must prove that the defendants intended to market earphones produced exactly to that design or with features that differed only in an immaterial detail."
"I have further considered whether I should withdraw this count, nonetheless, on the basis that there is insufficient evidence for the jury properly to conclude that such an intention existed. I am not persuaded that I should take that step, for the following reasons. I find that there is evidence of earphones being imported. Those earphones, it is accepted by the defence, were sold via various ebay sellers registered to various defendants. The advertisements for those earphones used the specific word "airpod" to sell the earphones, albeit often alongside other descriptors such as Bluetooth, wireless, earbuds, headphones. Photographs accompanying the advertisements show the earphones to potential customers. The jury have those, as well as further photographs of items seized from the defendants' premises and have even been able to examine some of the seized products themselves. They have the images of the registered Apple design and, I find, are entitled to make a comparison between them to determine whether the defendants intended to market earphones which matched that design. For example, a comparison of the design at pages 211 onwards and photographs of some of the items seized, for example at page 231, shows in my judgment close similarities in the shape of the earphone itself, the shape and placement of speakers and other 'holes' on the earphone, the placement and look of the charging point at the base of the earphone, the shape of the charging case and of the indents inside the lid to accommodate the earphones. This is an exercise which does not require expert evidence, in my judgment, even if the prosecution case might have been stronger if they had relied on an expert comparison as they do with the Sky branded remote controls."
(1) Whether the judge erred in her application of Saik to identify the requirements which the prosecution had to prove for the conspiracy under count 10;
(2) If the judge did not err in that respect, whether she nevertheless misdirected the jury in her legal directions on count 10.
(i) The court was asked to endorse the prosecution's acceptance that for the counterfeit trademarked goods cases (counts 1 to 9), it had to prove that the defendants knew that the goods were counterfeit;
(ii) Counsel relied on the evidence that during the indictment period one appellant started to trade in goods the subject of count 10 before the other. He submitted that when subsequently the appellants entered into a conspiracy agreement, the nature and quality of the goods being ordered had been identified by then and so the prosecution would have to prove knowledge of that fact and not simply intention;
(iii) Because of the impact of that point on the judge's ruling in relation to count 10, A2 asked for the prosecution case to be reopened to adduce evidence of the dates of the trading of goods relevant to count 10.
The judge's legal directions and route to verdict
"It is agreed that the "Airpods Design" is registered to Apple (Europe) Ltd. None of the defendants in this case have the consent of Apple to market or sell products of a protected "Airpods Design."
Before you can convict any of the defendants of this count, you must be sure of the following:
1) That there was an agreement, or common intention, to offer or put on the market earphones which were produced exactly to the "Airpod Design", or with features that differed only in an immaterial detail, and that would be in breach of Apple's protected designs.
2) That the defendant whose case you are considering was part of that agreement.
3) That when the defendant joined in the agreement, s/he intended that the "Airpod Design" infringing goods would be put on the market etc, by themselves or another party to the agreement, in the course of a business.
In relation to this count, the prosecution does not have to prove that the earphones sold did, in fact, match the airpods design exactly or differed only in an immaterial way. They must prove that the defendants intended that the earphones to be sold should do so. Your assessment of whether the earphones did match the "Airpods Design" (exactly or differing only in an immaterial way) is evidence you may take into account in deciding whether you are sure that the defendant had such an intention when s/he joined in the conspiracy."
"Question 1
Are you sure that there was an agreement to market goods with the intention of breaching the Apple "Airpods Design" registered rights?
If the answer is yes, then you must go on to consider Question 2.
If the answer is no, then your verdict for this defendant will be not guilty.
Question 2
Are you sure that the defendant joined that agreement with at least one member of the other couple?
If the answer is yes, then you must go on to consider Question 3.
If the answer is no, then your verdict for this defendant will be not guilty.
Question 3
Are you sure that, when the defendant joined that agreement, s/he intended that goods which breached the Apple "Airpods Design" registered rights would be marketed in the course of a business by at least one person who was party to the agreement?
If the answer is yes, then your verdict for this defendant will be guilty.
If the answer is no, then your verdict for this defendant will be not guilty."
Submissions on the appeals against conviction
Discussion
"(1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question.
(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place."
(i) The offence of conspiracy lies in the making of an agreement that a course of conduct shall be pursued which, if carried out, would be criminal, with the intention of carrying out that agreement. The offence is complete when that agreement is made, even if the parties do not carry it out, or the substantive offence is not committed by any of the conspirators [3];
(ii) An intention to do a criminal act falls within s.1(1) of the 1977 Act even if that intention is conditional upon a circumstance occurring or not occurring [5];
(iii) Section 1(2) of the 1977 Act applies to all offences of conspiracy where an ingredient of the substantive offence is the existence of a fact or circumstance. The subsection requires intention or knowledge that that fact or circumstance shall or will exist when the conduct constituting the substantive offence takes place. This subsumes any lesser mental element, such as suspicion, which is sufficient for the substantive offence in relation to that fact or circumstance [7]-[8];
(iv) A conspiracy looks to the future. It is an agreement about future conduct. When it is made the particular fact or circumstance necessary for the commission of the substantive offence may not have occurred, or its occurrence may be beyond a defendant's control. In such a case, the defendant cannot be said to know at the time when the agreement is made that that fact or circumstance will exist when the criminal course of conduct occurs. But by s.1(2) it suffices that the defendant intends when the agreement is made that that fact or circumstance shall exist [19]-[20];
(v) So if the fact or circumstance (e.g. property representing the proceeds of crime) was not identified at the time the conspiracy agreement was made, the prosecution need only prove that the defendant intended that that would be the case when the substantive offence takes place. There is no need to prove that that fact or circumstance materialises or ever exists. But when the fact or circumstance (e.g. property representing the proceeds of crime) was identified at the time of the agreement, then it must be shown that the defendant knew that that matter will be the case when the substantive offence is carried out [20] and [23]-[26].
"A conspiracy is complete when the agreement to enter into is formed, even if nothing is done to implement it. Implementation gives effect to the conspiracy, but it does not alter its essential elements. The statutory language adopts this approach. It assumes that implementation of the agreement lies in the future. The question whether its requirements are fulfilled is directed to the stage when the agreement is formed, not to the stage when it is implemented."
The appeals against sentence
Submissions
Discussion
"the equivalent retail value is likely to be considerably higher than the actual value of the counterfeit items and this is accounted for in the sentence level." (emphasis added)
Thus, the whole of the sentencing framework in the guideline is constructed on the basis that all of the figures which determine the level of harm into which an offence will fall, are driven by retail values for genuine goods which are considerably higher than the value of the counterfeit goods. This is so even before any upwards adjustment may be made in some cases for "significant additional harm".
"However, in exceptional cases where the equivalent retail value is grossly disproportionate to the actual value an adjustment may be made." (emphasis added)
Thus, the guideline makes it clear that an adjustment may, not must, be made where the relationship between retail value of genuine articles and actual value is not merely disproportionate, but is judged to be grossly disproportionate. The guideline does not say what may be considered to be grossly disproportionate, but that was not an oversight. The assessment of the level of harm is an evaluative judgment for the sentencing judge which will be sensitive to the facts of the case with which he or she is dealing. The same applies to deciding whether gross disproportionality is involved. As the guideline states, this situation will only arise in "exceptional cases" and even then the judge is not obliged to make a reduction.
Conclusion