Memorandum on the Video Recordings Bill
submitted by the Department of Culture, Media and Sport |
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 Until the 1984 Act is repealed and revived by the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
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
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
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.
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.
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",
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.
In view of all the above considerations, it is considered
that the Video Recordings Bill is compatible with the Convention.
168 Handside v UK (1979) 1 EHRR 737. Back
 LGR 1. Back
Salabiaku v France (1988) 13 EHRR 379, at paragraph 27. Back