Majid Iqbal & Anor v City of Wolverhampton Council [2025] EWCA Crim 498

[2025] EWCA Crim 498

Case No 202400266 B5 & 202400272 B5

202401258 B5 & 202401376 B5

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT WOLVERHAMPTON

HER HONOUR JUDGE JACOBS

T20217291

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/04/2025

Before

LORD JUSTICE HOLGATE

MR. JUSTICE WALL

HIS HONOUR JUDGE EDMUNDS KC

The Recorder of Kensington and Chelsea

Between

MAJID IQBAL (1)Appellants

MUHAMMAD IQBAL (2)Appellant

CITY OF WOLVERHAMPTON COUNCILRespondent

Sonal Dashani (instructed by Bivonas Law) for First Appellant

Michael Gomulka (instructed by Blackfords) for Second Appellant

Mark Jackson (instructed by City of Wolverhampton Council) for Respondent

Hearing Hearing date: 9 April

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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[1]On 20 December 2023 in the Crown Court at Wolverhampton before Her Honour Judge Jacobs, Majid Iqbal (to whom we will refer as A1) and his brother Muhammad Iqbal (to whom we will refer as A2) were both convicted unanimously of four counts of conspiracy to sell, offer, expose for sale or distribution goods bearing a sign identical to a registered trademark (counts 1, 3, 5 and 7), four counts of conspiracy to possess goods bearing a sign identical to a registered trademark (counts 2, 4, 6 and 8), one count of conspiracy to market, import, export or use products copying a design registered under the Registered Designs Act 1949 (count 10) and one count of conspiracy to transfer and/or convert criminal property (count 11). In addition, A1 was convicted of one count of unauthorised possession of goods bearing a sign identical to a trademark contrary to s.92(1)(c) of the Trade Marks Act 1994.

[2]The underlying substantive offences were s.92(1)(b) of the Trade Marks Act 1994 for counts 1, 3, 5 and 7, s.92(1)(c) of the 1994 Act for counts 2, 4, 6 and 8, s.35ZA(3) of the Registered Designs Act 1949 for count 10, and s.327(1) of the Proceeds of Crime Act 2002 for count 11.

[3]On 15 March 2024 the same judge sentenced both A1 and A2 to imprisonment for 31 months, passing concurrent sentences of that duration on each count of which A1 and A2 stood convicted.

[4]In addition the jury convicted A1’s wife, Hina Naz, on counts 1 to 6 and 11 and A2’s wife, Fatima Aamir, on counts 1 to 4 and 11. They both received suspended prison sentences.

[5]With the leave of the single judge, A1 and A2 both appeal against conviction on count 10. They also appeal against sentence on all counts, in A2’s case limited to ground 2.

Summary of the evidence

[6]The prosecution’s case was that the appellants were involved in a criminal agreement to sell, and to offer to sell, counterfeit goods (the trademark cases in counts 1 to 8) and copyright-infringing goods (the non-trademark cases in count 10) and a criminal agreement to transfer and/or convert the proceeds of that illegal trade.

[7]The counterfeit goods related to Sky remote controls, Samsung products, Apple products and CND nail varnish. The copyright-infringing goods were earphones which were to be passed off as Apple Airpods.

[8]The prosecution relied upon the following areas of 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.

[9]Each of the appellants accepted invitations to provide responses to interview in writing under caution. A1 denied that he knowingly traded in counterfeit goods or that some of the items seized were counterfeit at all. He denied that Naz had had anything to do with the business. A2 provided written responses which were substantially to the same effect as those of his brother. Neither appellant gave evidence at trial.

[10]The “Particulars of Offence” for Count 10 read as follows:

“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.”

[11]The prosecution relied upon the following evidence in support of count 10:(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.

[12]In his responses to written interview, A1 denied that the earphones he possessed or sold infringed Apple’s Airpod design. He said that they were significantly different. He sold unbranded earphones for about £3 to £6.

Submission of no case to answer and the judge’s ruling

[13]At the close of the prosecution’s case, Ms. Sonal Dashani provided to the judge her written submissions dated 4 December 2023 on behalf of A1 that there was no case for him to answer in relation to count 10. Those submissions were adopted by A2. At that stage they advanced a single point, namely that there was either no evidence, alternatively insufficient evidence (R v Galbraith

[1981] 1 WLR 1039

), to establish that the earphones marketed and sold by the appellants were exactly the same as, or immaterially different from, the registered design for Apple’s AirPod. It was submitted that the jury was simply being asked to compare for themselves the design drawings for the AirPod with earphones marketed by the appellants. Counsel said no factual or expert evidence had been called making any such comparison and that the images of the AirPod design were insufficient for that purpose.

[14]At the hearing on 5 December 2023 counsel for the appellants made oral submissions which relied for the first time on the decision of the House of Lords in R v Saik

[2007] 1 AC 18

. In a nutshell, it was said that the prosecution’s case relied upon evidence that the conspiracy had been implemented by a course of conduct which included the marketing and sale of actual items said to infringe Apple’s copyright. As a result, the Crown was required to prove that those items were the same or not materially dissimilar from Apple’s AirPod and also that the appellants knew that fact.

[15]The prosecution responded that it did not have to prove that the items marketed for sale did actually infringe Apple’s copyright designs or that the defendants knew that fact. Instead, it was enough for the prosecution to prove an agreement and intent to market and/or sell copyright-infringing items. Saik states that the offence of conspiracy is complete at the point when a criminal agreement is made and is necessarily forward-looking. The jury would be entitled to infer what was in the minds of the appellants at the time of that agreement from their subsequent conduct.

[16]The judge gave her ruling in writing on 6 December 2023. She decided that:

“… 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.”

[17]The judge then considered how those principles applied to the present case. Here, the appellants were alleged to have conspired to market numerous batches of earphones which had been imported, notably from China and Hong Kong. She then referred by way of example to invoices and other documents sent to A1 and to A2’s wife for 6 orders during the period August to October 2019. The judge also referred to deliveries of boxes of earphones in October 2019 to A2’s home and to his office. They were “but a few examples”. She said that the evidence appeared to show a number of orders for earphones being made by different defendants on different dates over the course of conspiracy from different suppliers in different countries. According to count 10 the conspiracy ran from April 2017 to 1 January 2021.

The judge then said:

“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.”

[19]Next the judge considered the sufficiency of the evidence to go before the jury on count 10, on the basis of her application of the principles in Saik:

“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.”

[20]So the judge rejected the Galbraith submission which had originally formed the basis of the written argument dated 4 December 2023. Although A1 obtained leave from the single judge to challenge this part of the ruling, Ms. Dashani confirmed during the hearing before us that she was not pursuing the point. She was correct not to do so. Mr Gomulka on behalf of A2 took the same stance.

[21]Two issues are raised by the appellants:(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.

[22]On 6 December 2023 Mr. Gomulka made a written submission to the judge on the implications of the ruling she had given that day. He made the following points:(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.

[23]Mr. Jackson on behalf of the prosecution filed a written submission dated 6 December 2023 in which he explained why the trademark offences (counts 1 to 9) should be treated differently from count 10 in that the Crown had to prove that a defendant knew that the goods were counterfeit. In the light of that explanation the judge agreed to direct the jury accordingly. In due course she did so and no issue arises in that respect on those counts. During the hearing before us, the appellants’ counsel accepted that the legal directions given on the trademark offences in this case do not affect the merits of the grounds of appeal on count 10. Whether the judge erred in her reading on the legal ingredients of the conspiracy under count 10 is a separate matter which depends upon the application of the principles in Saik to that alleged conspiracy.

[24]The appellants were correct to take that stance in the hearing before us in view of something else which happened during the trial on 6 December 2023. Mr Gomulka made concessions on behalf of A2. He said that in the light of the analysis in Mr. Jackson’s written submission to the court that day, he accepted that because of the nature of the goods being ordered under count 10, the prosecution was relying upon a conditional conspiracy. At the point the goods were ordered, whilst the alleged intention was for them to be “sufficiently design-infringing to be marketable as AirPods”, until they arrived it could not be known “whether they will be sufficiently design-infringing to allow for that to take place”. Accordingly, the alleged conditional conspiracy in count 10 was to be differentiated from the trademark offences in counts 1 to 9. For that reason he no longer asked for the Crown to call further evidence as to the dates on which goods were traded for the purposes of count 10. He also accepted that the trading of a particular commodity by one defendant before they started to sell together “is not material to the Crown proving intent rather than knowledge of the fact”. Ms. Dashani on behalf of A1 agreed with what Mr. Gomulka had said (transcript for 6 December pp.18H to 19E). The judge’s legal directions and route to verdict

[25]The judge discussed her draft legal directions with counsel. On the assumption that her ruling on the legal ingredients of count 10 was correct, they agreed with the directions she proposed to give. There was no outstanding issue in that respect during the trial.

The judge directed the jury on count 10 as follows:

“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.” 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.

[27]The route to verdict for count 10 posed the following three questions for the jury:

“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.” • 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. • 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. • 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

[28]The main ground of appeal advanced by A1, and the sole ground of appeal advanced by A2, was that the judge misapplied the principles laid down by Lord Nicholls in Saik by ruling that the earphones represented unidentified rather than identified property, so that the prosecution only had to prove that a defendant intended to market and sell earphones which were copies of AirPods and not that the items were copies and that he or she knew that to be the case.

[29]Ms. Dashani submits that “the prosecution relied on a series of substantive offences to prove the agreement and therefore the earphones were identified property” (para.30 of perfected advice). Similarly, “the prosecution case relied on an identified course of conduct to prove the agreement” (ibid. para 27). On that basis the judge was wrong to find that the property in this case was unidentified property and therefore wrongly assessed the mental element required to be intention as opposed to knowledge. The case fell within [25] to [26] of Lord Nicholls’ speech in Saik (ibid. paras.31 to 32). She submits that the distinction “sought to be drawn by the prosecution and accepted by the court between the trademark offences and marketing copies in breach of a registered design was an improper one resulting in unsafe convictions” (ibid. para.40). However, that was a distinction which A1 and A2 had accepted during the trial (see [24] above).

[30]Mr. Gomulka on behalf of A2 adopted Ms. Dashani’s submissions. The analysis in his perfected advice was again mainly based on the speech of Lord Nicholls in Saik and in particular, the distinction drawn between identified and unidentified property.

Discussion

[31]Section 1 of the Criminal Law Act 1977 provides: “(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." (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,

[32]The judge was correct to draw counsels’ attention to the context in which Saik was decided. The mens rea for the substantive offence of converting or transferring the proceeds of crime (under what was then s.93C(2) of the Criminal Justice Act 1988) could be satisfied by showing that the defendant either knew or had reasonable grounds to suspect that any property represented the proceeds of criminal conduct. The issue was whether such a suspicion was sufficient for the mens rea of a statutory conspiracy to contravene s.93C(2) (see e.g. the certified questions of law at [46]). The House of Lords held that it was not, applying s.1(2) of the 1977 Act. In the circumstances of that case, the court had to quash the conviction resulting from the defendant’s basis of plea that he only suspected but did not know that the sterling banknotes he was converting in his bureau de change into foreign currency represented criminal proceeds. His basis of plea did not go so far as to admit intention as an alternative to knowledge.

[33]Lord Nicholls (with whom Lord Steyn agreed) laid down the following principles relevant to this appeal:(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].

[34]Mr. Saik had simply agreed to convert the bank notes he received. By itself the nature of that property did not indicate that it represented the proceeds of crime, the fact or circumstance relevant to the particular conspiracy alleged in that case. Whereas an intention to convert bank notes as the proceeds of crime would have sufficed, a mere suspicion on his part that the origin of the cash was illicit could not.

[35]Lord Hope said at [75]:

“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.”

[36]Turning to the money laundering conspiracy and the position of the person converting the bank notes into foreign currency, Lord Hope said at [79] that the application of s.1(2) of the 1977 Act will depend on the facts. The prosecution may be able to show that a bureau de change operator knew that the purpose of the agreement for converting cash was to help someone avoid prosecution for an offence or confiscation. In those circumstances, it might be going too far to say that he also knew that the bank notes would represent the proceeds of crime when he came to deal with them, but it could be inferred that he intended that the cash would have an illicit provenance because he knew that that was the only purpose of the transaction.

[37]Counsel for the appellants sought to emphasise Lord Hope’s observations at [40]-[41]. But they did not form part of the ratio of the case. In any event, those paragraphs are not to be read as indicating that a series of completed criminal acts cannot or should not be charged as a conspiracy. The problem in Saik was simply that the state of mind admitted by the defendant was insufficient to satisfy s.1(2) of the 1977 Act.

[38]Subsequently, the Court of Appeal has treated Saik as deciding that the application of s.1(2) differs according to whether the relevant fact or circumstance was or was not identified at the time when the conspiracy agreement was made, requiring knowledge in the former case and intention in the latter. For example, in R v Ali

[2020] 4 WLR 33

the principle was applied to the status of people being smuggled into the UK in breach of immigration law [20]-[22]. In that case the identity of the people was known and so knowledge had to be proved. But we also note that the Court decided that the nature of the conspiracy and the defendant’s knowledge was demonstrable by reference to what the conspirators actually did [31]-[32].

[39]It is agreed by the appellants that the issue of whether the prosecution has to prove knowledge or intention in relation to the relevant fact or circumstance turns on whether that matter was identified or unidentified at the time of the conspiracy agreement (see Saik at [23] to [25]).

[40]In the present case the relevant fact or circumstance for the purposes of s.1(2) of the 1977 Act was that the earphones to be offered or marketed by the appellants would be copies of the Apple AirPod, that is the products supplied to the appellants would be exactly to the registered design of the AirPod, or with features that differed only in immaterial details from that design. The very nature of that fact or circumstance affects the question of whether the goods were identified or unidentified at the relevant time, that is when the agreement was made.

[41]On 6 December 2023 counsel for the appellants agreed with the prosecution’s position that earphones ordered by the appellants could not be identified as breaching Apple’s registered design of the AirPod until they were received and inspected, because if they were not sufficiently close to that design they could not have been marketed by the appellants as AirPods (para. 26 of Perfected Advice and transcript for 6 December 2023 pp.18-19). They maintained that position in this appeal.

[42]As Ms. Dashani accepted during her oral submissions, the appellants’ case that the prosecution had to prove knowledge of the relevant fact or circumstance depends upon their assertion that there was no conspiracy agreement in relation to any batch of earphones they were intending to sell until they became identified goods, that is when they had inspected those articles and found that they were good copies of the AirPod design.

[43]The error in the appellants’ approach is that they equated the moment when they found that the earphones were good copies of AirPods with the making of a conspiracy agreement. But the agreed principle in [39] above is not that the moment when property becomes “identified” determines when a conspiracy agreement is made. As Saik makes clear, at the moment when that agreement is made the property or relevant fact or circumstance may be either identified or unidentified. Indeed a person may be guilty of participating in a conspiracy agreed at a time when the relevant property or fact is unidentified and never subsequently becomes identified. There is nothing in Saik (including [40]-[41] of Lord Hope’s speech) to support the appellant’s approach.

[44]Indeed, the appellants’ submission lacks any sense of reality. The judge described it as “absurd”. It depends upon saying that the appellants made a series of separate conspiracy agreements, effectively in the same terms, each time they found upon inspecting a delivery that they had received “design-infringing” goods. The submission was no more than a contrivance to justify treating all of the earphones the subject of count 10 as “identified” property when applying the principles in Saik. The judge was not obliged to direct the jury on such a basis, a fortiori when the appellants did not even give evidence that they had acted in such an absurd way.

[45]Instead, the only sensible analysis was that the appellants made an earlier agreement as to how they would run their business which could be inferred from their subsequent course of conduct. The judge was entitled to say that that agreement must at the very least have predated the orders placed in 2019.

[46]Accordingly, the judge correctly directed the jury that they had to be sure that a defendant joined a conspiracy to offer or put on the market earphones infringing the AirPod design, intending that goods infringing that design would be offered or put on the market, whether by themselves or another participant in the conspiracy.

[47]The distinction made in Saik between identified and unidentified property sprang from the recognition that s.1(2) of the 1977 Act needs to be applied realistically. So, for example in the present case, a conspirator could not know at the time of the agreement that property which had not yet been identified would in the future fall within the scope of s.35ZA of the 1949 Act. But the requirements of s.1(2) are satisfied if he intended to offer or market in the future goods meeting that description. That is an entirely realistic and legally accurate assessment of the evidence presented in the trial. It also accords with the approach taken by Lord Hope in Saik at [75] and [79].

[48]The judge directed the jury that their assessment of whether the earphones matched the AirPod design was evidence from which they could infer a defendant’s intention that goods would be offered or marketed in breach of s.35ZA(3) of the 1949 Act. Similarly, the prosecution invited the jury to infer that the defendants had made a conspiracy agreement from their subsequent course of conduct in the marketing and sale of such earphones. Neither approach involved any error of law. The appellants are wrong to suggest that the prosecution’s reliance upon this course of conduct meant that the earphones had been identified at the point when the conspiracy agreement was made, so that mens rea had to involve knowledge and not simply intention.

[49]Suppose two conspirators agree to offer or market earphones which infringe Apple’s AirPod design with the intention of breaching s.35ZA(3) of the 1949 Act. The offence of conspiracy will have been completed at that stage even if the parties do not implement their agreement. As the judge said, if the conspiracy is carried out as intended, the subsequent conduct in pursuance of that agreement does not change its nature, whether the conspirators receive earphones under only one order which they then market, or whether they repeat that conduct many times. Likewise, the mere fact that that conduct takes place, whether once or more often, does not affect the question of whether the earphones are identified or unidentified property at the time of the conspiracy agreement. The appellants’ argument is fallacious. In effect, it treats a series of substantive offences which follow a conspiracy agreement as if they each comprise a conspiracy. The offence of conspiracy is different and lies in the making of that agreement at an earlier stage with the relevant intention.

[50]For these reasons we conclude that there is no merit in the appellants’ first ground of appeal.

[51]A1’s second ground of appeal only arises if the first ground fails and the judge was correct on the mens rea point. The only complaint here is the judge erred in one part of the legal directions in which she said that the prosecution “must prove that the defendants intended that the earphones to be sold should” match the AirPods design exactly or differ in only an immaterial way. It is said that the judge ought to have used the word “would” rather than “should”. Ms. Dashani told us that no counsel raised this point with the judge when the draft was discussed in court. Furthermore, no criticism is made of the earlier part of the legal direction dealing with intention under count 10 or of the route to verdict. Reading the sentence criticised in the context of the whole direction and the route to verdict we do not consider that the use of the word “should” was erroneous or that it could possibly have made a material difference to the outcome. The convictions on count 10 are safe.

The appeals against sentence

The judge had the benefit of pre-sentence reports on both appellants which we have considered.

[53]In her sentencing remarks the judge said that the counts all formed part of the same overall conspiracy to buy counterfeit branded goods or copied goods cheaply and then to sell them as genuine at a profit. It was therefore appropriate to deal with the offending as a whole reflecting the differing levels of involvement through the assessment of culpability and harm. The judge said that she would therefore pass a global sentence for the conspiracies concurrently on each count for each defendant. The appellants do not criticise that approach.

[54]The judge said that the offences in this case were relatively easy to commit, but complex and time-consuming to detect and prosecute. Therefore, deterrent sentences are often necessary.

[55]The judge applied the Sentencing Guidelines for Trademark Offences in relation to counts 1 to 9 and by analogy for the copyright conspiracy in count 10. The maximum sentences available are the same. The appellants do not criticise that approach.

[56]The judge decided that both A1 and A2 should be treated as having had leading roles in the overall conspiracy. The offending had taken place over a sustained period of time. The operation was not particularly sophisticated but it did involve significant planning. A1 had used multiple eBay shops to sell the goods. A2 too had operated his own online businesses and managed one of the business premises involved. His culpability was similar to that of his brother. Both fell squarely within category A culpability.

[57]The judge assessed the harm in relation to counts 1 to 8 and 10 as amounting to about £1.9m. The harm under count 10 was assessed as about £1.1m. This was based upon an estimate of the retail value of genuine AirPods. The judge recognised that the value of the copied goods were many times less but did not consider that the higher figure for the value of genuine articles was “grossly disproportionate” so as to amount to an exceptional case in which a downwards adjustment should be made.

[58]For both A1 and A2 the judge therefore placed counts 1 to 8 and 10 in category 1A with a starting point of 5 years based on harm of £2m. She reduced this figure to 4½ years to reflect the slightly lower harm figure. She applied the money laundering sentencing guidelines to count 11 to place that offence into category 4A and arrive at a starting point of 4½ years.

[59]The judge decided that there were no additional aggravating factors. She took into account the different mitigating factors for each brother and reduced the concurrent sentences to 3½ years in each case. She then applied a reduction of 25% for delay so that the overall sentence for each appellant was 31 months.

Submissions

[60]The submissions for A1 and A2 were to the same effect. They do not criticise the assessment of culpability as category A, or the reductions made for personal mitigation and delay. The challenge is to the judge’s assessment of harm on count 10, in the sum of £1.1m. But no criticism is made of the harm attributed to counts 1 to 8 of more than £800,000.

[61]The appellants accept that the normal approach of the guidelines is for the harm to reflect the volume of the goods sold or possessed and the equivalent retail value of genuine versions of those goods. However, it was submitted that this is an exceptional case in which the retail value of genuine goods resulted in a figure which was grossly disproportionate. The appellants pointed out that using the average sale price obtained by the appellants would result in a figure of £80,000 for the 7000 earphones sold or possessed. If instead a unit price of £25 were to be applied (representing an average figure for the sale price of similar-looking, non-branded earphones) the harm figure would be about £176,000. On this basis the overall offending under counts 1 to 8 and 10 would fall into category 2A rather than 1A. It would follow that each of the concurrent sentences passed against A1 and A2 was manifestly excessive.

Discussion

[62]It is necessary to put this ground of appeal into context. There is a considerable overlap between the sentencing ranges for categories 1A and 2A. Category 1A has a range of 3 to 7 years for harm of £1m or more with a starting point of 5 years based on £2m. Category 2A has a range of 2 to 5 years for harm between £300,000 and £1m with a starting point of 4 years based on £600,000.

[63]Taking counts 1 to 8 alone, the appellants accept a harm figure of over £800,000. If the court had taken their figure of £176,000 for count 10 the total harm would have risen to £1m. Even then, the appellants’ figure for count 10 does not purport to represent an alternative value for genuine goods corresponding with the registered design. Therefore, on any view the offending for counts 1 to 8 and count 10 fell within category 1A.

[64]The guideline clearly states that:

“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”.

[65]It is in this context that the guideline goes on to state:

“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.

[66]In these circumstances, we do not agree with counsel’s suggestion that this court should give guidance on, or rather put a gloss upon, the words used by the Sentencing Council. The language used is open-textured and its application to any particular set of facts is a matter for the evaluative judgment of the sentencing judge. This court would not interfere with a judgment reached in an individual case unless it was unreasonable and resulted in a manifestly excessive sentence.

[67]We do not consider that the judge’s evaluation that the estimated harm in this case was not “grossly disproportionate” can be challenged as unreasonable. Standing back to look at the sentences as a whole for all of the offending committed by each appellant, we do not consider that an overall sentence of 31 months could be described as excessive, let alone manifestly excessive. The sentences were just and proportionate.

Conclusion

[68]For the reasons set out above. the appeals of A1 and A2 against conviction and against sentence are dismissed.