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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> British Board Of Film Classification, R v Video Appeals Committee Of British Board Of Film Classification [2000] EWHC Admin 341 (16 May 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/341.html Cite as: [2000] EWHC Admin 341

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VIDEO APPEALS COMMITTEE OF BRITISH BOARD OF FILM CLASSIFICATION (EX PARTE BRITISH BOARD OF FILM CLASSIFICATION), R v. [2000] EWHC Admin 341 (16th May, 2000)

IN THE HIGH COURT OF JUSTICE CO /4074/99
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
The Strand
London WC2A 2LL
Tuesday 16 May 2000

B e f o r e:

MR JUSTICE HOOPER
- - - - - -
R E G I N A
-v-
THE VIDEO APPEALS COMMITTEE OF THE
BRITISH BOARD OF FILM CLASSIFICATION
Respondent
(EX PARTE THE BRITISH BOARD OF FILM CLASSIFICATION)
Applicant
- - - - - -

Statutory background

6. Pursuant to a direction made under section 4(1) of the Video Recordings Act 1984 (the "VRA"), the BBFC is the authority charged with the responsibility for making arrangements-
"(a) for determining for the purposes of this Act whether or not videos works [defined in section 1(2)] are suitable for classification certificates to be issued in respect of them, having special regard to the likelihood of video works in respect of which such certificates have been issued being viewed in the home ... ."
The letter of designation specifically enjoined the BBFC from classifying videos which are obscene under the Obscene Publications Acts or otherwise infringe the criminal law. The letter makes it clear that this is not the sole criterion.
7. Certain video works are exempted from classification
"(1) Subject to subsection (2) below, a video work is for the purposes of this Act an exempted work if, taken as a whole-
(a) it is designed to inform, educate or instruct;
(b) it is concerned with sport, religion or music;
(c) or it is a video game.
(2) A video work is not an exempted work for those purposes if, to any significant extent, it depicts-
(a) a human sexual activity or acts of force or restraint associated with such activity;
(b) mutilation or torture of, or other acts of gross violence towards, humans or animals;
(c) human genital organs or human urinary or excretory functions;
or is designed to any significant extent to stimulate or encourage anything falling within paragraph (a) or, in the case of anything falling within paragraph (b), is designed to any extent to do so."

The videos with which this case are concerned are not exempt.

8. By virtue of section 4(3), no direction under section 4(1) may be made unless the Secretary of State is:
"satisfied that adequate arrangements will be made for an appeal by any person against a determination that a video work submitted by him for the issue of a classification certificate-
(a) is not suitable for a classification certificate to be issued in respect of it, or
(b) is not suitable for viewing by persons who have not attained a particular age,
or against a determination that no video recording containing the work is to be supplied other than in a licensed sex shop."
The necessary "adequate arrangements" are those setting up the respondent, the VAC.
9. The VRA was amended by section 90 of the Criminal Justice and Public Order Act 1994, which inserted section 4A:
"Criteria for suitability to which special regard to be had
(1) The designated authority shall, in making any determination as to the suitability of a video work, have special regard (among the other relevant factors) to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with-
(a) criminal behaviour;
(b) illegal drugs;
(c) violent behaviour or incidents;
(d) horrific behaviour or incidents; or
(e) human sexual activity.
(2) For the purposes of this section-
"potential viewer" means any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued;
"suitability" means suitability for the issue of a classification certificate or suitability for the issue of a certificate of a particular description;
"violent behaviour" includes any act inflicting or likely to result in the infliction of injury;
and any behaviour or activity referred to in subsection (1)(a) to (e) above shall be taken to include behaviour or activity likely to stimulate or encourage it."
The sub-paragraph of section 4A (1) relevant to the videos in question is (e)- "human sexual activity".
10. Section 7 of the VRA provides:
"Classification certificates
(1) In this Act "classification certificate" means a certificate-
(a) issued in respect of a video work in pursuance of arrangements made by the designated authority; and
(b) satisfying the requirements of subsection (2) below.
(2) Those requirements are that the certificate must contain ....
(a) a statement that the video work concerned is suitable for general viewing and unrestricted supply (with or without any advice as to the desirability of parental guidance with regard to the viewing of the work by young children or as to the particular suitability of the work for viewing by children); or
(b) a statement that the video work concerned is suitable for viewing only by persons who have attained the age (not being more that eighteen years) specified in the certificate and that no video recording containing that work is to be supplied to any person who has not attained the age so specified; or
(c) the statement mentioned in paragraph (b) above together with a statement that no video recording containing that work is to be supplied other than in a licensed sex shop."
This case is concerned with videos which, if they fall into any category, fall into the latter category: supply in a licensed sex shop.
11. The VRA makes it a criminal offence (subject to defined exceptions) to supply a video recording of an unclassified work or in breach of a classification.
The appropriate test in this case
12. Although section 4A refers to all potential viewers, it was agreed that, for the purposes of this case, it would be sensible to concentrate on the children and young persons category of potential viewer, rather than on vulnerable adult potential viewers. During the course of argument before me it became clear that the parties were in agreement that section 4A required first an answer to the following question:
Was a child or young person likely to view the video in question, i.e. was he/she a potential viewer?
If the answer to that question is "Yes" - and it was agreed before me that the VAC concluded that it was likely - then the next question to be asked is:
May such a potential viewer (or such potential viewers) be harmed (or may, through their behaviour, harm be caused to society) by the manner in which the video deals with human sexual activity?
If the answer to this question is "Yes" - and it was agreed before me that the VAC had concluded that such a potential viewer may be harmed- then the BBFC or the VAC on appeal had to "have special regard (among the other relevant factors) to" that factor in determining whether the video in question was suitable for a classification certificate to be issued in respect of it (section 4(1)(a)).
13. It is the Applicant's case that section 4A requires the authority to have "special regard" to an unquantified risk of harm as well as quantified. Sheptonhurst does not dispute that. It is further the Applicant's case that the VAC approached the appeal on the basis that "unquantified risk cases" fell outside section 4A. Sheptonhurst disputes that the VAC approached the case in that manner.
14. It is the applicant's case that if there is "no evidence which allows one safely to quantify exactly how many potential (child) viewers would be affected or how seriously" "the proper course is to refuse to classify until such times as the risk of harm is quantified and shown to be acceptable in the light of other factors" (skeleton argument, paras. 6 and 7). Sheptonhurst disputes that this is a proper interpretation of section 4A. According to Mr Pannick: "There is no legal basis for [this] contention". He submits that if this were right the result would be "very surprising". "... [T]here would be no duty to refuse a certificate when the degree of harm was considered ... to be outweighed by other factors, but there would be a duty to refuse a certificate when the concerns were more speculative" (para. 16(6) of his skeleton argument). He submits (paras. 16(3) and (4)):
"The weight to be attached to [the harm that may be caused to potential viewers] is a matter for the judgment of the Appeals Committee. Section 4A does not suggest that such harm is the only factor. On the contrary, it requires such harm to be given special regard "among the other relevant factors". Indeed, it would be absurd if it were the only factor: there may (in the judgment of the Appeals Committee) be only a very small, or theoretical, risk .... Section 4A does not suggest that the existence, or risk, of such harm means that a certificate must be refused. ...
The Appeals Committee is entitled to conclude that the weaker the evidence of such harm (in relation to how likely it is that harm will occur, and if so to how many potential victims, and with what degree of injury), the less weight it will attach to this factor among other relevant factors. ..."

The R18 classification

15. Mr Robin Duval is the Director of BBFC, having taken up that post in January 1999. In a statement prepared for the appeal to the VAC, Mr Duval explained the BBFC's approach to the R18 classification (page 117 and following):
"12. The R18 classification is the BBFC's most restrictive classification. It means that videos may only be sold in licensed sex shops. When the classification was devised, it was expected that there would be a large number of licensed sex shops. In fact, numbers have declined, and there are only about 80 in the country.
13. There are 3 main factors which arise in relation to RI8 classification, which have always informed the BBFC's approach, and which it is appropriate to identify at the outset. They are as follows:
(a) By reason of s.4 of the VRA the BBFC must, when deciding whether a video work is suitable for classification, have "special regard to the likelihood of video works being viewed in the home" and in making any determination "have special regard (among other relevant factors) to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which it deals with .... (e) human "sexual activity".(s.4A).
(b) The BBFC is also obliged to avoid classifying material which may be unlawful. The BBFC was specifically reminded of this obligation in its Letter of Designation dated 26th September 1985. As a result, the BBFC maintains regular contact with the law enforcement agencies and with the Home Office about R18 classification. The main forum for this is the Home Office Sub-Group on which sit representatives of the police, Customs & Excise, the CPS, the Internet Watch Foundation as well as the BBFC. More informal contacts are also maintained. In areas where the limit of legality is uncertain, the BBFC errs on the conservative to ensure there is no material risk of classified material being found unlawful.
(c) Finally, the BBFC considers itself bound by the provisions of Article 10 of the European Convention. I know the VAC is familiar with this provision which guarantees the right to freedom of expression "subject to such ... restrictions .... as are necessary .... for the prevention of disorder or crime or for the protection of health or morals ....". The BBFC seeks to exercise its discretion in a fair and reasonable manner having proper regard to all material factors."
16. Mr Duval then explained the historical development of the BBFC's approach to the R18 classification.
"RI8 classification 1983- 1997
15. The R18 classification was first introduced in 1983 for films with the agreement of the Cinema Consultative Committee and the Home Office (the R18 category was only to be screened in specially licensed clubs). From 1985, the R18 category was introduced on video (under the terms of the VRA) which allowed "R18" classified video recordings to be supplied only in licensed sex shops.
16. I understand that before making any determinations in the R18 film category, the BBFC consulted with, among others, its legal advisors to draw up outline guidelines which might govern the issue of "R18" certificates. These were drafted by Mark Carlisle QC, Richard Du Cann QC and Geoffrey Robertson and in consultation with the Home Office. A copy of these outline guidelines is at Annex 3 to this statement. The outline guidelines set down the principles which were to form the substance of the BBFC's policy on standards at "R18".
17. Based on these outline guidelines, the BBFC prepared more detailed internal guidelines for R18 classification. These were applied to the classification of R18 material on both film and video and remained at the heart of the BBFC's classification policy on these issues for many years. Indeed, I understand that from the introduction of these guidelines in 1983 until early 1997 the BBFC applied a consistent policy to material classified R18 based on these guidelines.
Review of the approach in 1997
18. In 1996, a Home Office Minister advised the BBFC that the strictness of the "R18" guidelines had led to a flourishing black market which could only be contained if customers were induced to patronise licensed premises by the introduction of rather more explicit sex videos than had so far been legally available.
19. In the light of this and following internal but not external consultation, the BBFC concluded that the R18 standards should be more permissive. New interim guidelines were proposed at an Examiners meeting on 29th January 1997. These standards allowed for the classification of considerably more explicit material than previously including, for example, shots of penetration.
20. On 4th February 1997, the new guidelines were applied for the first time to a video called "the Pyramid" which was approved for classification at R18. From February 1997 the more permissive standards were applied on a trial basis.
Reversion to original guidelines
21. In the summer of 1997 concern was expressed by H M Customs & Excise, the Police and the Home Office about the standards being applied by the BBFC in this area. The Home Office wrote to the BBFC on 10th October 1997. The concerns raised by the Police, Customs & Excise and the Home Office centred on whether the material permitted by the more permissive standards would be considered obscene by courts. That was clearly a matter of very considerable concern to the BBFC, who did not wish to classify material where there was a material risk that it would be determined by the courts to be obscene.
22. As a consequence the BBFC decided to review the new guidelines and from early October 1997 it suspended the interim guidelines. At an Examiners meeting on 5th November 1997, the BBFC decided to revert to its earlier R18 criteria.
Consultation and publication of R18 guidelines
23. In early 1998, the BBFC decided to publish its R18 guidelines for consultation. This involved some redrafting and updating which took place at a series of internal focus groups and weekly meetings (which are described more fully in the 1998 Annual Report at p. 19).
24. In April and May 1998, the BBFC undertook a major consultation exercise which involved public meetings at regional centres and in London. For these purposes the BBFC published for the first time written guidelines for classifying films and videos which were made available to those attending the public meetings. They were also published in their final form in the 1997-8 Annual Report and re-printed with some minor adjustments in the 1998 Annual Report (Appendix 1 pages 1-16 [see below]). The final guidelines were published on the website of the BBFC from 16th November 1998.
25. My understanding of the development of these guidelines and the consultation is derived from discussions with members of the BBFC, and I believe the 1998 Annual Report fairly reflects the process. It reads:
"Two months were spent drafting and re-drafting the Guidelines, with all examiners contributing through focus groups and weekly meetings. Management input was constant, and various drafts were discussed with the President. At the end of the process, the entire document was rewritten in the interests of clarity and emphasis, and the resulting draft was submitted first to a focus group of members of the public and then to the Plain English Campaign to ensure that the language was simple, clear and effective. After that, the draft was again rewritten to incorporate their suggestions. The goal throughout was to ensure that the document would communicate across the widest spectrum of public interest and concern.
The next stage was to take the Guidelines on the road to be tested through a nationwide series of public meetings at which BBFC policy could be presented and the Guidelines debated. There were nine such meetings, attended by a total of 742 members of the public, in Liverpool, Glasgow, Belfast, Southampton, Cardiff, Birmingham and London, where three meetings were held. In every city, the meetings were widely advertised, and special invitations were extended to teachers, psychologists, journalists, members of the film and video industries, and representatives of church groups, pressure groups, and interested parties. All the meetings began with an illustrated presentation of the Guidelines by the Director, during which the audience was invited to view clips from films and videos and to comment on the appropriate category or say where they would draw the line. Discussions were lively, often vociferous. Some wanted more freedom, some less. Some felt strongly that the freedom of adults must be sacrificed for the welfare of children or of society. Others wanted more freedom for adults, particularly in sex material, and felt that it was the responsibility of parents to look after their own children. All the examiners had the opportunity to speak at one or more meetings, and everyone gained from the experience and the testing of BBFC practice against the strength and diversity of public debate. Questionnaires were filled in and collated, and members of the BBFC had the opportunity at every stage to return to the Draft Guidelines and ensure their effectiveness in the light of comment and criticism."
26. In addition to this, during 1998, the Home Office convened a series of meetings between the BBFC and the various law enforcement agencies, in particular, the police, the Crown Prosecution Service, and H M Customs & Excise. The meetings continued on a quarterly basis throughout 1998 and considered in particular the issue of what material would be found obscene as a consequence of a prosecution under s.2 Obscene Publications Act (OPA), or a forfeiture under s.3 OPA, the standards applied by the Police and the CPS in this area and those applied by Customs & Excise when seizing material on importation.
The Makin' Whoopee appeal
27. In April 1998 Sheptonhurst appealed against the refusal by the BBFC to classify the video work "Makin' Whoopee!' The hearing before the VAC was held on the 28th/29th July 1998. The arguments in that appeal centred solely on the issue of obscenity, and the recently published guidelines were not considered at all. The BBFC put forward the case that the video should not be classified because there was a material risk the video would be considered to be obscene. The Police had advised the BBFC that if a warrant was issued under s.3 of the OPA a magistrate would be likely to forfeit the video as obscene. The VAC reached their decision on this video, exercising their own judgment and "applying contemporary standards to decide whether it was obscene". The VAC concluded it was not obscene and therefore an R18 certificate was appropriate.
28. In October 1998, following the decision on "Makin' Whoopee!' the BBFC sent a copy of the decision of the VAC to the Home Office, Customs & Excise, Police and CPS. In November 1998, following a consultative meeting with these bodies, the Director, James Ferman, concluded that material of a nature similar to that contained in "Makin' Whoopee!' would, on the basis of the advice he received at that meeting, not face the risk of being found obscene. As a result, in November and December 1998 and in the first few days of January 1999, a small number of more explicit videos were classified at R18 including Carnival International Version all of which were in breach of the BBFC's own recently published guidelines.
29. In passing I should comment that the approach adopted here seems to me to be wrong. Decisions were apparently made on the basis solely of whether or not the material was obscene and this ignores the statutory remit of the BBFC. Although the question of where to draw the line for R18 must take into account the issue of legality the BBFC must exercise its judgment in accordance with the provisions of the VRA.
My arrival at the BBFC
30. Following my arrival at the BBFC in January 1999, it became clear to me very early on that material had recently been passed by the BBFC which was not in accordance with the BBFC's own published guidelines. Accordingly, I put an immediate stop on all R18 certificates being issued. This allowed me the opportunity to review the position and consult on the suitability of the R18 guidelines.
31. I then proceeded to review the BBFC's published R18 guidelines. I consulted with the Home Office, Police, CPS and Customs & Excise, and spoke at length with the BBFC's own staff. I decided that the BBFC's published R18 guidelines were appropriate and should be applied as the relevant guideline.
32. In reaching this decision, my reasoning may be summarised as follows:
32.1 I started from the position that it was the BBFC's responsibility to determine whether material is suitable for classification. In reaching that decision the VRA directs us to have special regard to the likelihood of any video being viewed in the home and any harm that may be caused to potential viewers.
32.2 Having regard to this, and the nature of R18 material, it appeared to me that the BBFC needed to give careful consideration to the potential for under-age viewing (or viewing by vulnerable adults) and the effect the material may have on such viewers. There is no research in this area but the BBFC's view is that given the pervasive presence of video, there is a realistic risk that R18 videos will be seen by young children, will find their way into the hands of adolescents and will, inevitably, be viewed by vulnerable adults.
32.3 It seemed to me that very explicit pornographic videos carried a risk of harming these viewers. It is a characteristic of these particular videos, and for the vast majority of videos which contain pornographic material, that sex is displayed entirely as a matter of satisfying an immediate desire where the other person is regarded as an impersonal object and considerations of mutual commitment or any context of love or affection -indeed of personal or moral responsibility - are entirely excluded. This, together with the extremely crude and explicit nature of the material, risks having a harmful effect on an adolescent viewer. It needs to be kept in mind that adolescence is a crucial period of physical, social and psychological development, including the development of that individual's relationships with others, including intimate sexual relationships. The absence of human considerations, stable relationships, and the crude level of the sexual activity in these videos could affect the more vulnerable adolescent's development. He, or she, will no doubt assume that the absence of any context of responsibility is acceptable. This message may be thought to be endorsed by society by reason of the fact that the video is classified by the BBFC, seen by some as the upholder of the values of society and the protector of those vulnerable to harmful effects of films and videos. Similar considerations apply in relation to viewing by some adults who are not well adjusted or are sexually dysfunctional. The material in this type of video may maintain and justify unacceptable sexual behaviour or, in extreme cases, offending behaviour.
32.4 In addition to this, it seemed to me that the approach of the BBFC in seeking to avoid classifying material which may be unlawful was entirely sensible and reasonable. I recognise that this is a grey area. The BBFC should, in my view, tread warily in this area and should ensure that, at the very least, there is a reasonable margin between the material it classifies and the standards which the BBFC understands are routinely and regularly applied by Magistrates throughout the country when material is forfeited as being obscene under s.3 of the OPA. At the very least this is a matter which must weigh with the BBFC when determining acceptable contemporary standards.
32.5 The published RI8 guidelines were developed to deal with both these factors. They prohibited the publication of criminally obscene material. They dealt with the risk of harm by providing that the most explicit pornographic material, which carried the greatest risk of harm would not usually be classified. They provided an effective framework for the BBFC to apply in determining the suitability of material to be permitted in the R18 category. They were tested in the 1998 consultation process referred to earlier with no objection raised to the R18 element. They had been in the public domain for almost a year, without any objection being raised.
32.6 I recognise that R18 classification is a difficult area and different individuals will hold different views. However, I considered that the published guidelines struck a fair and reasonable balance between freedom of expression and the BBFC's obligations to prevent harm and to avoid classifying obscene material. My period of review and consultation led me to conclude there were no good reasons to change them.
33. Two other matters are referred to in the BBFC's Replies in these Appeals and I will briefly explain their relevance to my own thinking.
33.1 Approach of television regulators
As a result of my previous position, I was familiar with the approach of television regulators. The fact that the Programme Code of the ITC does not permit the transmission of RI8 rated material at any time fortified my view that there was no good reason to amend the present guidelines. This view was taken by the ITC after wide public consultation and suggests that the present R18 standards are even now too liberal for even the encrypted satellite and cable channels whose availability to adult viewers is most restricted. Indeed it is normal for overseas channels of this kind, which are beamed into this country and whose content matches or exceeds RI8 standards, to be subject to a proscription order imposed by the Department of Culture, Media and Sport. This suggested to me, and I put it no higher than that, that the scope for liberalising RI8 guidelines was limited.
32.2 Pornographic Magazines
The Appellant maintains in his Notice of Appeal that magazines containing images similar to those contained in the video works are sold without successful criminal prosecution in licensed sex shops. I understand the suggestion to be that the BBFC should therefore classify such video works. I do not accept that the BBFC should necessarily apply the same standards to videos as found in magazines. Firstly, the BBFC applies the VRA not the OPA and, secondly, as the Williams Committee on Obscenity and Film Censorship concluded, the impact of film and video images is of much greater concern. It was for this reason that a statutory censorship was visited upon video distribution which has never been contemplated in respect of books and magazines.
The present Appeals
34. The BBFC's guidelines are of course guidelines only. Each video is considered on its own merits.
35. I viewed all the videos submitted for classification by Sheptonhurst and Prime Time. All are extremely explicit, with many close-up shots of penetration. All are more explicit than the published guidelines permit. There is no pretence of any artistic content, nor educational purpose.
36. Accordingly, applying the BBFC's published guidelines, I concluded that it would be inappropriate to classify these videos. I informed Sheptonhurst of this on 25th February 1999 and Prime Time on 9th April 1999."
17. Appendix 1, referred to in paragraph 24 of Mr Duval's statement, contains the following statement:
"We must also apply the Criminal Law, making sure that none of the Acts below are broken.
The Cinematograph Films (Animals) Act 1937
This Act makes it illegal to show any scene if animals were treated cruelly in the making of that scene (meaning what really happened to an animal during the film-making, not what appears to be happening on screen).
The Protection of Children Act 1978
This Act makes it a crime to produce or publish indecent photographs of a child (meaning a person under the age of 16).
The Obscene Publications Acts 1959 and 1964
We must avoid classifying screen entertainment which is `obscene'. A film video is legally obscene if, when taken as a whole, it has a tendency to deprave and corrupt a significant proportion of those who are likely to see it. (Deprave and corrupt means to make morally bad.)
...
The European Convention on Human Rights is to be made part of British law. Article 10 guarantees the right to freedom of expression, but it also specifies that:
`The exercise of these freedoms ... may be subject to such restrictions as are necessary for ... [among other things] ... the prevention of disorder or crime [or] the protection of health or morals.'
If we cut or reject a film or video, we must always justify our decision by referring to this test."
18. Appendix 1 also contains the following statement about the R18 classification:
" `R18' - TO BE SUPPLIED ONLY IN LICENSED SEX SHOPS TO PERSONS OF NOT LESS THAN 18 YEARS
The `R18' category is a special and legally restricted classification for videos where the focus is mainly on real sexual activity and the purpose is primarily to induce sexual arousal. Such videos may be supplied to adults only in licensed sex shops, of which there are about 80 in the UK. `R18' videos may not be supplied by mail order.
The sex scenes in all `R18' videos must be non-violent and between consenting adults. They must also be legal, both in the acts portrayed and in the degree of explicitness shown. There are no limits on length and strength apart from those of the criminal law. Group sex is allowed and, insofar as the law permits, there is parity as between homosexual and heterosexual sex.
Erections may be shown, as may a broader range of mild fetish material, but no threats or humiliation or realistic depictions of pain are permitted.
There must be no clear sight of penetration, oral, vaginal or anal, or of masturbation.
Ejaculation must not be shown.
Context may justify exceptions."
The judgment of the VAC
19. It is not necessary for me to go through the judgment (pages 5-36 of the Bundle) in great detail. Rather I shall concentrate on those aspects of it which could be material to the application for judicial review.
20. The VAC set out the provisions of section 4A (page 9). Lord Lester Q.C. submits that the VAC's approach to section 4A is not clearly set out in any one place in the judgment- a submission with which I agree.
21. Having considered various ministerial statements, the VAC concluded that if it is likely that the video will be viewed by children that must be taken into account "by attaching the appropriate restriction", and/or by "ordering cuts" or by refusing a certificate altogether. (Page 11)
22. There were conflicting submissions before the VAC as to how many potential child viewers there had to be before the section 4A requirement (to have special regard to the any harm that may be caused to them) applied. Mr Pannick appears to have submitted to the VAC that the number of child viewers must be a significant proportion of the whole. He did not pursue that argument before me and the issue faded away during argument. Lord Lester for the applicant was content to leave it as "some children". Mr Pannick was content to leave it as "a child". It matters not because both agreed that the section 4A requirement to have "special regard" to any harm that may be caused to child viewers, applies in this case. Although the judgment is not perhaps as clear as it could be, it is agreed by the parties (as I have already said) that the VAC made findings of fact that would result in the two questions which I set out in paragraph 12 above, being answered in the positive.
23. Given that the parties are now agreed that the section 4A requirement applies, I turn to the first question which needs to be resolved: "Did the VAC take the view that the section 4A requirement of "special regard" applied?" Whilst accepting that the thrust of Lord Lester's argument is that the VAC applied section 4A incorrectly, I take the view this preliminary question needs to be resolved. Indeed Lord Lester raises it in the last two lines of paragraph 8.2 of his skeleton argument.
24. In answer to Mr Pannick's argument that a significant proportion of the potential viewers must be children, the VAC said that it did not think that it would be enough if only one person under 18 were harmed but "where do we draw the line?" Having quoted from a speech of Lord Cross in Director of Public Prosecutions v. White [1972]A.C. 849, the VAC went on to say:
"We suspect that, in practice, it would not be difficult to recognise in a particular case what is a significant proportion. We do not believe for one moment, especially where children are concerned, that it amounts to 50%, it must be considerably less than that." (`Page 21)
This passage does not make a distinction between what I have identified (in paragraph 12 above) as the two separate questions which should be asked to see whether the section 4A requirement of special regard applies. It leaves open the argument, as does the following passage, that the VAC decided that the section 4A requirement comes into play only if a significant proportion of children may see the video or may be harmed. Under the heading "Who are the likely viewers of these videos if classified R18?", the VAC said:
".. some of these videos inevitably would be watched by children but it is impossible to say how many would be harmed. Indeed, interesting though this exercise may be, it is speculative and, in truth, without cogent research it is not possible to put a figure on the number of child viewers. We cannot even say whether the proportion would be significant"
...
Our view is that although there must be times when children very unfortunately see these videos it happens infrequently and that the percentage who view them is very small." (Pages 21- 22)
25. I have reached the view on a consideration of the judgment, as a whole, that the VAC did apply the section 4A requirement that "special regard" had to be given to the harm that may be caused. The judgment shows clearly that the VAC were conducting a balancing exercise, an exercise that would be unnecessary if the section 4A requirement did not apply. For example, between the two passages which I have quoted in the preceding paragraph is to be found this passage:
"[Mr Pannick] conceded that it must happen that children will see those videos on occasions but it must be on rare occasions and the competing interests must be balanced" (Underlining added.
26. I turn to the next question which I foreshadowed in paragraph 13 above: "Did the VAC approach the appeal on the basis that "unquantified risk cases" fell outside section 4A?" Mr Pannick, as I have already said, accepts that such cases fall within section 4A. I do not therefore need to consider the authorities to which Lord Lester referred me. Mr Pannick submits, howver, that the VAC did not approach the case on this erroneous basis.
27. Lord Lester points to what he describes as "key passages" in support of his argument. One of those is the passage about "significant proportion" which I have already cited. He also points to a passage at page 10 where the VAC set out extracts from a statement made by Earl Ferrers, a Home Office Minister, when introducing into the House of Lords what was to become section 4A. Lord Lester points out that the VAC considered important an extract which contained the words:
"There may be some works which the Board believes would have such a devastating on individuals or on society if they were released that there should be the possibility of their being refused a video classification altogether, and the clause leaves the Board free to do that."
He points to a passage under the heading "Decision" (page 29), where having reviewed the arguments in favour of classification the VAC states:
"Even in these circumstances, refusal to grant a certificate would be justified if there was evidence of devastating damage to more than a small minority of children or indeed other members of the population."
He cites a further passage (page 30):
"We accept the argument that we do not, in general, prevent adults having access to material just because it might be harmful to children if it fell into their hands. We might have taken a different view if there were evidence that the effects were affecting more than a small minority of children or were devastating if this did happen".
28. Lord Lester concludes (para. 9 of his skeleton argument):
"These passages make it clear that the VAC reached the fundamental conclusion that, as a matter of legal analysis, section 4A was only concerned with harm which (1) would be caused to more than a small minority of children or indeed other members of the population (this being derived from the "significant proportion" test); and (2) was serious enough to amount to "devastating damage" (this being derived from Earl Ferrers). Since these tests are necessarily not satisfied in an "unquantified risk of harm" case, it is plain that the VAC concluded that an "unquantified risk of harm" fell outside section 4A."
29. Mr Pannick submits that on a reading of the judgment as a whole the VAC did not decide that section 4A had no application to what the applicant describes as "unquantified risk of harm". In performing the balancing act in section 4A, which requires special regard (but no more than special regard) to be had to the risk of harm, the VAC is entitled to take into account the amount of possible harm and the numbers of children who might be affected by seeing the video.
30. I do not accept the submissions made by Lord Lester. Whilst accepting that the VAC's approach to section 4A is not easy to follow (and that may be because of the manner in which the case was presented to the VAC) , it seems clear to me that they approached it in the manner described by Mr Pannick.
31. Shortly after the start of the judgment can be found the following passage (page 4) , relied upon by Mr Pannick:
"The Board rightly says that it must consider the prospective audience and must have special regard to the likelihood of the work being viewed in the home, by young persons and children and by those who are not well adjusted, and to harm that may be caused to potential viewers." (Underlining added)
This passage is inconsistent with the approach which Lord Lester submits the VAC adopted.
32. The reference to "devastating effect" in the statement of Earl Ferrers (page 10 of the judgment) is more easily explicable as being a very powerful factor to take into account when doing the section 4A balancing exercise rather than a pre-requisite to the application of the section.
33. The BBFC's case was summarised by the VAC in the following way:
"... for less explicit videos, the risk of harm to children may be proportionately dealt with by granting "an R18 classification" but that in respect of very explicit works the risk of harm is so serious that it is not enough to reduce the risk by classifying with an R18 Certificate". (Page 19)
It described the BBFC's "justification for refusing certificates" as being "the substantial risk of harm to children". (Page 19) The judgment is conspicuously lacking in any statement to the effect that the appeal succeeded because section 4A was not applicable.
34. Whilst accepting that the passages of the judgment dealing with potential viewers and harm could have been more clearly expressed, these were matters which, in my judgment, must be relevant when conducting the balancing exercise required by section 4A.
35. The VAC, under the heading "What is the risk of harm to potential viewers?", said:
"It is likely in our view that that some young children would be harmed by watching these videos. We add that that we believe that children could be harmed by some of the video works granted an R18 certificate." (Page 23)
A little later, the VAC said:
"We are satisfied ... that at least a small number of young children can be affected by pornography, some quite seriously. Mr Pannick did not seek to challenge this. The real problem lies in numbers." (Page 24)
In its conclusion the VAC said:
"It is the view of all of us that R18 material in the hands of children- and perhaps also the maladjusted- can be harmful". (Page 31)
36. To my mind, these passages and other passages show that the VAC was accepting that harm may be caused but that it appreciated, rightly in my view, that section 4A required a balancing act to be performed. They do not reveal the error of law for which Lord Lester contends.
37. In the absence of an error of law, this Court can only interfere if the VAC has reached a conclusion which no reasonable decision-maker could reach.
38. Lord Lester, as I have already indicated in paragraph 14 above, submitted that that if there is "no evidence which allows one safely to quantify exactly how many potential (child) viewers would be affected or how seriously" "the proper course is to refuse to classify until such times as the risk of harm is quantified and shown to be acceptable in the light of other factors" (skeleton argument, paras. 6 and 7). It is clear that the VAC understood and considered this principal submission. In its conclusions it said:
"The Board says that the possibility of harm, even though not quantified, is such that we should not take any risk of allowing these works to fall into the hands of children". (Page 31)
39. It seems to me that for the reasons given by Mr Pannick, which I also set out in paragraph 14 above, Lord Lester's submission does not succeed. The approach advocated by Lord Lester may be a perfectly reasonable approach- it cannot be said to be the only approach which a reasonable decision-maker could adopt.
40. Lord Lester attacks two findings as irrational and submits that these formed an important part of the reasoning and justify the quashing of the decision.
41. First, he submits that the conclusion set out in paragraph 24 above is irrational:
"Our view is that although there must be times when children very unfortunately see these videos it happens infrequently and that the percentage who view them is very small."
He submits that it is inconsistent with the earlier "conclusion", also set out in paragraph 24 above:
".. some of these videos inevitably would be watched by children but it is impossible to say how many would be harmed. Indeed, interesting though this exercise may be, it is speculative and, in truth, without cogent research it is not possible to put a figure on the number of child viewers. We cannot even say whether the proportion would be significant"
I accept that there is an element of inconsistency between these two passages. It should be noted that in the second passage the VAC is commenting on the applicant's case about the number of children who might view the videos, notwithstanding their R18 classification. Lord Lester also submits that "such evidence as there was suggested that the number of children who would view the videos would be significant" (para. 33.2 of skeleton argument). He relies on a number of matters in the BBFC's submissions to the VAC including what he describes as the "the evidence that there would be about 10,000 copies of each video with half going into homes with children", the "evidence that almost all children know how to operate videos and used them regularly" and the VAC's own conclusion (page 20) that adults leave videos around the house from time to time.
42. Secondly, the applicant challenges what it says is the VAC's conclusion under the heading "Decision" that "there is no evidence of devastating damage to more than a small minority of children" (para. 34 of skeleton argument). In its conclusions under the heading "Decision", the VAC said, in a passage which I have already cited (in part) in paragraph 27 above:
"... refusal to grant any certificate would be justified if there was any evidence of devastating damage to more than a small minority of children or indeed other members of the population. There is not." (See to a similar effect the last sentence on page 30)
Lord Lester submits that the VAC must have concluded that there was "no evidence at all of such damage" to more than a small minority of children. (Para. 34 of his skeleton argument). This submission can be contrasted with his principal submission that the risk of harm was unquantifiable and therefore the videos should not be classified R18.
43. Lord Lester submits in his skeleton argument that this conclusion that there was no evidence at all of that damage might be caused to more than a small minority of children is irrational for a number of reasons:
"34.1 There was evidence before the VAC that the number of children who would be exposed to the pornographic videos might well be significant (see paragraph 33 above).
34.2 There was evidence before the VAC from Dr Gordana Milavic, a Consultant Child and Adolescent Psychiatrist with 22 years clinical experience. She concluded that she has "not the slightest doubt" that some young adolescents and children would experience serious "unresolvable trauma". She also gave evidence of a real case which she had encountered of a child seriously damaged by accidentally finding pornographic videos and watching them.
34.3 The VAC was taken to the Williams Report on Obscenity and Film Censorship (1979, Cmnd 7772). The Report stated at p. 88:
"The effects of pornography and violent material were widely seen as particularly dangerous to the young, and most of our witnesses wished to see children and young persons protected."
34.4 The VAC was also referred to the Red Hot Dutch case [[1993] 2 C.M.L.R. 333], in which Leggatt L.J. found that it was "indisputable" that the pornographic programme broadcast on that channel would "impair the moral development of minors" (the language of Article 22). The broadcaster in that case did not contend otherwise.
34.5 The VAC itself concluded that "at least a small number of young children can be affected by pornography, some quite seriously" (p. 21); and that "R18 material in the hands of children - and perhaps also the maladjusted - can be harmful" (p. 28).
34.6 There was therefore plainly at least some evidence before the VAC that there might be devastating damage to more than a small minority of children."
44. These submissions must be considered in the light of the central and final conclusion of the VAC under the heading "Decision":
"The majority believe that all the video works and the trailer under appeal are suitable for sale uncut solely to adults in sex shops, and that the risk of any so sold being viewed by and causing harm to children or young persons is, on present evidence, insignificant ..." (Underlining added, page 31)
45. Having earlier summarised the evidence of Dr Milavic, mentioned the absence of complaints from psychiatrists and other health experts and the absence "regrettably, in contrast to the situation with violent images of ... systematic evidence from the research literature", the VAC had said that:
"Thus there is no evidence either of the number of children who might be affected or of the extent to which affected children are damaged." (Page 29)
It also refused to assume "that sexually pornographic films would have a special effect" (page 29) and noted again (on page 33) the absence of evidence that exposure to sexually pornographic material is damaging to vulnerable children and young people.
46. Mr Pannick sets out in paragraph 12(4) of his skeleton argument what he describes in paragraph 22 as the "ample evidence" supporting the VAC's conclusions.
47. Whilst I accept that Lord Lester has shown some inconsistencies in the VAC's reasoning, I have no doubt that the conclusion "that the risk of [the videos in question] being viewed by and causing harm to children or young persons is, on present evidence, insignificant" is one that a reasonable decision-maker could reach. Any inconsistencies do not invalidate that central finding.
48. I therefore dismiss this application for judicial review.