Tuesday, August 25, 2009

Video nasties and a government cover-up!

In our peculiarly English way, we have attempted to suppress sex shops by creating a system of regulation that makes them instantly identifiable; the grey shop front with lurid letters "SEX SHOP", and the unspeakable things lurking within.

If that little paragraph doesn't boost my Google ranking, I don't know what will. And if you're looking for titillation, so to speak, I suggest you look elsewhere...here lies only a discussion about technical regulations.

The EEC Technical Standards Directive (83/189/EEC) requires that technical regulations are "notified", i.e. that a formal letter is sent by the member state to the EU. Simple.

The Video Recordings Act 1984 regulated the sale of age-rated videos and restricted certain material to certain establishments, usually ones with no windows and grey shopfronts. That perfect tense conjugation will be important in just a minute.

The Video Recordings (Labelling) Regulations 1985 were the regulations that the Tory government of the day failed to notify. Astonishingly, no-one has noticed in the intervening 25-odd years. Until now. No notification, no enforcement, says the European Court of Justice.

So all offences under the Act and Regulations are "non-enforceable". The Parliamentary Under Secretary in charge of the Department for Culture, Media and Sport (DCMS), the Rt Hon Barbara Follett, yesterday wrote to Keir Starmer QC, the DPP.

She pointed out that the current EU regulation, the Technical Standards Directive 98/34/EC (thrilling, isn't it?), requires a 3 month pause when new regulations are notified. The upshot of which is that for the next three months, it's open season on uncertified porn, and no age restrictions; so fill your boots, and be sure to sell it to kids.

"In relation to past prosecutions, it is our understanding that there would be no positive obligation on the Government to re-open these; however we would welcome any comments you may have in this regard."

No obligation other than fair play, that is. Those who have been imprisoned for contravening non-existent laws may feel hard done by. Those who were fined could at least be reimbursed.

The BBC news website was covering the issue at length, as were all the usual outlets in their varying trademark tones. Despite this, the Rt Hon Ms Follett mentioned the unavoidable gap in "enforceability", and said:

"I am particularly concerned that advantage may be taken of this lacuna to flood the market with unclassified DVDs. I therefore ask you to consider carefully what reasons are given to the court in relation to any discontinuations."

Now, just a minute. This is a Parlimentary Under Secretary, asking the DPP, albeit in a roundabout way, to conceal the true reason for discontinuing proceedings. This would be misleading the court, and, to put it mildly, is an absolute disgrace. From an MP, it is beyond belief.

I am not sure which concerns me more; the attempt to cover-up the cock-up, or the fact that the DCMS thought that it was O.K. to lean on the CPS to get us to mislead the court.

There's more in the very carefully worded letter, in relation to other un-notified regulations. I've edited any references to that out, because I don't want to take the piss. I have uploaded some chunks of letter for you, though...

Part One
Part Two
Part Three
Part Four


I apologise for the cumbersome images, I was not able to edit the PDF of the letter.

I'd be astonished if some enterprising red-top didn't get the full text online shortly. If they do, I'll link it in, but for now, I'm keeping my head ever-so-slightly below the parapet. I hope you understand.


  1. This appears to me be a great brouhaha about nothing.

    Sure, the labelling regulations might have to be resubmitted. But s11 of the Act specifies the offence in terms of the certificate issued, not the labelling. Provided the certificate was issued and says what it is supposed to say, it seems to me that there should be no problem proceeding with *existing* prosecutions.

    But it is late at night, and this isn't my field. I'll have another look tomorrow.

  2. phisheep, the "labelling" regulation deals with little stickers on the video. The certificate is indeed a different issue, but much pornography is simply not certified by the BBFC.

    The whole system was based on certain offences existing; they don't! The prosecutions are all being dropped.

  3. Oh, and I forgot to say: I wouldn't fancy being the solicitor who is now explaining to his or her client why the case has been dropped, and why they hadn't noticed...

    Unless they're the one solicitor who figured it out and "broke the story", as a journalist would say. In which case they'd feel very smug indeed.

  4. This is one more to add to the list of hidden laws:

    1) Chambers, R [2008] EWCA Crim 2467 - confiscation on the basis of powers that did not exist. Compensation has been ordered.

    2) Kenning, R [2008] EWCA 1534 - lets make up a law - conspiracy to aid and abet - and prosecute someone ('cos we don't like 'em) and see if we can get away with it. Hey, why not? It isn't as though there are any repercussions.

    3) Video stuff as highlighted in the post above ... over one thousand prosecutions.

    A couple of other points ... a) the BBC link is rubbish. It doesn't go into the same detail as your post did. In fact, so far, yours is the only source of news that gives details of the directive and SI. Thanks for that; so much for the dead tree press vs blogs debate as to which is the most useful.

    b) Do you think that you would have been able to find the directives / regulations in the absence of the letter you kindly (partly) reproduce?

    b)(i) Is there an SOP for people facing prosecutions to check the EU source of law first, to see whether or not the prosecutor has the power to prosecute? (Note, see Toulson J's four points paragraphs 64 - 68 in Chambers

  5. Would I have been able to find them? Certainly. Would I have bothered to look for them before charging? No. The offences are in practitioner texts, I simply don't have time to check the content of such texts each time I use them.

    Re: (b)(i) -- see above. Failure to notify went unnoticed by the entire legal profession, academia, the domestic legislature, and the European legislature, for almost 25 years. That should tell you all you need to know about the obscurity of the concept.


    1. Of course they do it's called making it up as you go along. Of course if you were being prosecuted under the VRA then material must have been in compliance of section 4a so hard to see how they can consider alternative charges under opa....

      My thoughts only

  7. I'd probably prosecute you under the Misuse of Capital Letters Act 2009. I'll try and interpret your comment:

    "I have previously entered guilty pleas to offences under the Video Recordings Act, which were then vacated as soon as I read the newspapers. However, such was the filth that I was purveying, it also fell within the Obscene Publications Act, and I feel aggrieved that the Crown Prosecution Service wish to continue to prosecute me. I mean, the Prosecution Service, prosecuting? Bringing prosecutions?"

    Seriously, this is not the place to seek legal advice of any description. This may shock you (actually, given what you're apparently being prosecuted for, I doubt anything would shock you), but the Crown Prosecution Service prosecutes alleged offences.

    When it turns out that a mistake has been made, but that the alleged behaviour falls within the remit of more than one Act, an alternative charge can be preferred.

    Seek legal advice, do not rely on anything I say.

  8. Hi,thanks for your reply il try my best for u to read my comments, is it possable after waiting a year to get to court, if the obscene act was there at first, why didnt they charge me with that followed by vra chrages ??

    but because vra has gone pear shape now they fetch it,

  9. Anonymous I think the AP is taking the piss

  10. re your original post

  11. Fact pornography is available without such statutory regulation upon various mediums other than that covered under the VRA and i'm not referring to the internet. Hardcore pornography is on sale on top shelfs from unscrupulous newsagents (the words of a DJ) not mine.

    EU Law and Directive 83/189 require that Technical regulations must not hinder inter community trade. Any such restriction should be proportionate to the aim of the necessary measure.

    The right to property, and likewise the freedom to pursue an economic activity, form part of the general principles of Community law. However, those principles are not absolute but must be viewed in relation to their social function. Consequently, the exercise of the right to property and the freedom to pursue an economic activity may be restricted, provided that any restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed. (see, inter alia, Case 265/87 Schr├Ąder [1989] ECR 2237, paragraph 15, and Case C‑200/96 Metronome Musik [1998] ECR I‑1953, paragraph 21).

    With this in mind it is submitted that any application of sections 9, 10 and 12 of the Video Recordings Act 1984 are considered measures manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. Such measures are only justified, pursuant to Article 36 TFEU, provided that it is necessary and proportionate in relation to the objective pursued.

    Furthermore the European Court of Justice in Case C-6/60 Humblet v Belgium (1960) ECR 599 ,set out the principle whereby ‘(...) [i]f the Court finds that a legislative or administrative measure adopted by the authorities of a Member State is contrary to Community law, that State is obliged by virtue of Article 86 of the ECSC Treaty to rescind the measure in question and to make reparation for any unlawful consequences thereof.’

    Humblet contains the critical direction that member states must annual all unlawful consequences

    Furthermore I'd the Government of the United Kingdom were fully aware prior to 2009 what constitutes a technical regulation see para 30 in Lemmens Case C-226/97 -

    "According to the United Kingdom Government, it follows from the CIA Security International judgment, cited above, that it is the technical regulation itself, which has not been notified, that cannot be enforced against an individual. The Directive, which is aimed merely at removing obstacles to trade, does not have as its purpose to render unlawful the use of a product marketed in accordance with a technical regulation which has not been notified"

    So there you have it the use ie selling arrangements, marketing etc are not unlawful straight from the horses mouth.....

    And the ECJ agreed (see para 35)

    End of......................

    Of course if you have been convicted of supply to persons whom have not yet attained the age of the classification then you will be unlikely to overturn your conviction see Case C-244/06. The Court held that technical regulations concerning the protection of young people can be justified within the context of Article 30 EC.

    1. PS this is not legal advice simply my interpretation of things I could be wrong