Legislative scrutiny: Constitutional Reform and Governance Bill; Video Recordings Bill - Human Rights Joint Committee Contents


Memorandum on the Video Recordings Bill submitted by the Department of Culture, Media and Sport

Introduction

This memorandum is provided by the Department for Culture, Media and Sport in respect of the Video Recordings Bill. It sets out the reasons why the Department considers that the Bill is compatible with the European Convention on Human Rights. A declaration of compatibility has been made by Mr Sion Simon, Minister for Creative Industries, in respect of the Bill.

General Assessment of compatibility with Convention rights potentially engaged by the Bill

The Bill consists of two clauses and a Schedule and its sole aim is to repeal and revive provisions of the Video Recordings Act 1984 (the "VRA 1984"), following notification of that Act to the European Commission in accordance with the Technical Standards Directive (83/189/EEC, the "Directive"), as amended by 88/182/EEC and 94/10/EC; and codified by 98/34/EC. The purpose of the Directive is to facilitate the free movement of goods in the EU. It lays down a procedure for the provision of information in the field of technical standards and regulations. Under the Directive Member States are required to notify draft technical regulations to the Commission before they are brought into force to enable the Commission and the Member States to have an opportunity to propose amendments to a draft measure in order to remove or reduce barriers which it might create to the free movement of goods. Certain provisions of the VRA 1984, and the labelling regulations made under section 8 of that Act, comprise "technical regulations" as defined in the Directive and are therefore required to be notified to the Commission via the procedure set out therein.

The Bill provides for the repeal of sections 1 to 17, 19, 21 and 22 of the Video Recordings Act 1984, which are revived again on commencement of the 2010 Act, following notification of those provisions to the European Commission on 10th September 2009. The Schedule to the Act makes transitional provision.

The offences set down in the VRA 1984 are currently unenforceable. Until the 1984 Act is repealed and revived by the Bill no new prosecutions may be brought, current prosecutions have had to be dropped and prosecutors cannot oppose appeals made in time against past prosecutions. It is therefore considered imperative that the 1984 Act is revived quickly in order to close the gap in enforcement powers, and the fast track procedure is adopted for this Bill.

The Bill is short and limited in purpose, and on consideration of its clauses and the Schedule, the Department does not consider any issues arise as regards compatibility with the European Convention on Human Rights. In so far as any ECHR issues arise with regards to the Video Recordings Act 1984 itself, these are set out below.

The Committee is provided with this Memorandum, and with a copy of the Explanatory Notes to the Bill, which set out the Departments' analysis of the individual clauses, and also gives details of the Departments' analysis of the overall compatibility of the Bill with the European Convention on Human Rights.

Overview of the Video Recordings Act 1984

The Video Recordings Act 1984 (c.39) (as amended by the Video Recordings Act 1993 (c24) and by the Criminal Justice and Public Order Act 1994 (c.33)) provides a system for the classification of films and some video games, contained on physical media such as DVD's, or video cassettes (or other storage media). The Act also provides for the regulation and control of the distribution of such "video recordings" in the UK with the object of limiting the extent to which they may be allowed to depict certain matters as specified in sections 2(2) and (3) of the VRA 1984. Section 2(2) and (3) concern depictions of matters such as human sexual activity, acts of gross violence, human genital organs or urinary or excretory functions, or techniques likely to be useful in the commission of offences.

The regulation of video recordings under the VRA 1984 is effected by a system of classification and labeling and the prohibition, subject to exemptions, of the supply of recordings without a classification certificate or in breach of a classification certificate, to persons under a certain age elsewhere than in specified premises or in breach of labeling requirements.

The issue of classification certificates as defined by section 7 of the VRA 1984 is the responsibility of the "designated authority" being a person or persons designated by the Secretary of State in accordance with section 4 and 5 of the Act. Matters to which the designated authority is to have special regard in making any determination as to the suitability of a video work for a classification certificate are specified by Section 4A. Provision for the review by the designated authority of determinations made by them before the coming into force of section 4A as to the suitability of a video work is made by section 4B. Section 8 of the VRA 1984 empowers the Secretary of State to make regulations requiring an indication as to the classification certificate issued to be included on a video recording containing that work on the recording's container or casing. Unless the video work or supply is exempted under section 2 or 3 respectively it is an offence to supply, or offer to supply, and to have in possession for the purpose of supplying, an unclassified video recording. The VRA 1984 creates further offences in relation to the supplying of a recording in breach of classification certificate; the supply of a recording otherwise than in licensed sex shop; the supply of a recording in breach of labeling requirements and the supply of recording with a false indication as to its classification. Section 14A creates a general defence to offences under the 1984 Act and sections 15 to 16D deal with time limit for prosecutions, offences by bodies corporate, enforcement and extension of the jurisdiction of magistrate's courts. Powers of entry, search and seizure are contained in section 17 and section 21 provides for forfeiture of video recordings by the court.

Thus, under the VRA 1984, a DVD or other video recording cannot be supplied/sold in the UK unless it complies with the classification and labeling requirements set out in the Act. The penalties vary depending on the particular breach but generally the offender is liable to pay a fine or serve a term of imprisonment. Enforcement of the offences is primarily via local Trading Standards officers; although police and customs and excise officers may also be involved in identifying breaches under the Act, which will then be prosecuted via the criminal courts.

Detailed Assessment of the compatibility with convention rights potentially engaged by the Video Recordings Act 1984

The Articles which are potentially engaged by provisions contained in the Video Recordings Act 1984 are Article 6, Article 8, Article 10, and Article 1 of the First Protocol.

Classification of video works

Article 10 is potentially engaged as follows. The right protected by Article 10 encompasses the freedom to receive and/or impart information and ideas (including negative or offensive information[168]). Article 10 affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. The designated body (currently, the British Board of Film Classification) is concerned with classifying video works, which includes the provision of age ratings to apply to those works and advice on what is contained within the work. It is arguable that the classification requirement interferes with the Article 10 rights of producers and publishers to impart information to the public.

Article 10 is a qualified right, and interference with this right is compatible with the Convention if prescribed by law and necessary in a democratic society in the interests of a legitimate aim (for example the protection of health or morals and/or the prevention of crime and disorder). The system of regulation and control provided by the VRA 1984 form a range of domestic standards which represent an acceptable balance between the rights of producers and publishers to distribute their work and the legitimate interest in the protection of health or morals, and the prevention of crime or disorder. One of the purposes of the classification of video games is to better protect children and young adults from the impact of age-inappropriate material and thus to protect the health and morals of those children.

The provisions of the VRA 1984 also potentially engage Article 1 of the First Protocol. The measures may affect the profitability or viability of the producers and publishers of video works and games, and therefore their economic interests connected with the running of those businesses. Article 1 of the First Protocol is a qualified right, and interference with that right is compatible with the Convention if in accordance with the law and necessary in the public interest. The VRA 1984 strikes an appropriate balance between the rights of businesses to operate freely, and the need to protect public health and morals. The impact of the VRA 1984 is not to prevent businesses from operating freely, but to ensure that they operate freely within a system of regulation that is aimed at better informing parents and consumers about what they will be viewing, having special regard to the ready availability of video recordings and video games to children and young adults. The public interest lies in the protection of children and young adults from viewing games or other video recordings which may be unsuitable for their age or stage of development.

Appeals from classification decisions

Article 6 is potentially engaged as follows. The designated persons who make decisions on classification are the principal office holders of the British Board of Film Classification (BBFC). In designating those persons, the Secretary of State must be satisfied that adequate arrangements will be made for an appeal from classification decisions. The Secretary of State requires that the appeal body set up to hear such appeals is structurally independent of that organisation, in that no members of the BBFC sit on the appeal body. The Department accepts that an appeal from a determination as to whether a video work is suitable for classification and if so, the determination of the classification (age rating) that applies to it, is a civil right for the purposes of Article 6.

The Department has considered whether the appeal system set up falls within the category examined by the European Court of Human Rights in Tsfayo v United Kingdom[169]. However, the Department considers that the system set up in this case can properly be distinguished from Tsfayo. This is primarily because the appeal body is structurally independent from the designated persons who will make the initial decision as to classification. In addition the appeal right in operation under the VRA 1984 is not solely concerned with determinations of fact; and judicial review is also available against the decision of the appeal body.

Offences

The VRA 1984 provides for a series of offences. For those offences the primary burden of proof rests with the prosecution to establish all the elements of each offence; but defences are available to an accused requiring the defendant to prove, on reasonable grounds, his knowledge or belief of certain facts or circumstances pertaining at the time of the offence.

The Department has carefully considered these provisions, bearing in mind that the Video Recordings Act was enacted in 1984, prior to the Human Rights Act 1998. The Department has considered, in particular, whether the offences to be applied under the VRA 1984 infringe against the presumption of innocence enshrined in Article 6(2) of the Convention. As part of this consideration, the Department recalls that it is established by Strasbourg and domestic jurisprudence that Member States are permitted to "penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence"[170], and thus Article 6(2) does not create an absolute prohibition against burdens of proof being placed on an accused.

The VRA 1984 is aimed at preventing the supply and distribution of video works, in breach of classification systems set up for the protection of the public, particularly children. The Department considers that in this context it is reasonable to provide a defence to the offences set out in the VRA 1984 that rests on the knowledge or belief of a particular accused at the time he committed the offence. Rights under Article 6(2) are, notwithstanding their importance, qualified rights, and it is acceptable under the Convention to make provisions which potentially infringe those rights as long as they are justified and proportionate measures. The Department considers that placing a burden of proof on an accused to prove his state of knowledge or belief is such a justified and proportionate measure in these circumstances. An accused charged with an offence under the VRA 1984 has a full opportunity to demonstrate his belief or knowledge at the time of the commission of the offence. It is reasonable and proportionate to place this burden upon the accused, given that those matters are solely within his/her knowledge, or are matters to which he/she, more than the prosecution, has access. The facts and circumstances within the accused own knowledge, his state of mind and the reasons why he held the belief in question, his sources of information and supply are known only to him. Conversely it would be unrealistic and unworkable to expect the prosecution to prove such matters. Therefore to place a burden on the defendant to prove on the balance of probabilities that the accused acted honestly, and reasonably believed in the lawfulness of what he did at the time of the commission of the offence is compatible with Article 6(2).

The Department considers further that, given the legitimate aim being pursued, the general public interest in maintaining the robustness of the classification system particularly to protect children from access to inappropriate material, and the nature of the penalties to which a person convicted of one of the offences would be subject, placing a burden of proof on an accused as to his reasonable knowledge/belief is proportionate. The Department considers that the imposition of a burden on the defendant in these circumstances is both necessary and justified; it is defined within reasonable limits; it is proportionate and a proper balance has been struck between the interests of the public and the interests of the defendant.

Enforcement of classification provisions

Article 8 is potentially engaged as follows. Section 17 of the VRA 1984 sets out entry, search and seizure provisions. The purpose of these provisions is to prevent crime and/or to protect the rights of others. Judicial authorisation governs the use of the powers set out in section 17 of the VRA 1984; a justice of the peace must authorise a constable to enter and search premises and he can only do so if he is satisfied on oath that there are reasonable grounds for suspecting that an offence under the Act is being committed, and that there is evidence that the offence is or has been committed are on those premises. A constable may only seize property in these circumstances if he has reasonable grounds to believe that that property may be required as evidence in relation to criminal proceedings under the Act. The Department considers therefore that the VRA 1984 sets out adequate and effective safeguards to ensure that there is no abuse of the powers, and that the law governing the searches and subsequent seizure of property is clear, accessible and subject to judicial oversight. In those circumstances, the Department considers that the provisions amount to an acceptable balance between Article 8 rights, and the public interest in upholding, by criminal sanction if appropriate, the classification system.

Article 1 of the First Protocol is potentially engaged as follows. Section 21 of the VRA 1984 provides for the forfeiture of any video recording where a person is convicted of any offence under the Act and it is ordered by a court that the goods are to be forfeited. Rights under Article 1 of the First Protocol are qualified rights. It is acceptable under the Convention to interfere with such rights provided that the interference is prescribed by law and is necessary in the public interest. Where a criminal offence has been committed and goods are seized that were the subject of those proceedings, it is in the public interest to dispose of such property to further prevent the commission of offences and the spread of illegal material. The court cannot make a forfeiture order unless it gives the owner of the goods (or any person with an interest in the goods) an opportunity to be heard or to say why the order should not be made. An order cannot be made until after the time to appeal against a conviction has expired and, if an appeal has been instituted, that appeal has been determined. The Department considers that this provision represents an acceptable balance between the private rights of persons adversely affected by the loss of their possessions through forfeiture and the public interest in the proper operation of the classification system and the enforcement of that system through proper legal process.

Conclusion

In view of all the above considerations, it is considered that the Video Recordings Bill is compatible with the Convention.

December 2009





168   Handside v UK (1979) 1 EHRR 737. Back

169   [2007] LGR 1. Back

170   Salabiaku v France (1988) 13 EHRR 379, at paragraph 27. Back


 
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