Case Stated by the Crown Court at Warwick (1995)

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Note: I have acquired a large number of unpublished writings from the late David Webb’s NCROPA (National Campaign for the Reform of the Obscene Publications Acts). I will upload these as often as I have time to spare. This document largely speaks for itself in terms of how the obscenity laws used to work - and may work again, unless we are careful. In legal form, it is a set of questions raised by a Crown Court for answer by the High Court. 

Particularly entertaining is this: "The Court was invited by the appellant to view the magazines but not the video tape recordings and the court adjourned for this purpose. The Court found that the magazines depicted a range of sexual activities, which they found to be obscene. They were also of the opinion that, as none of the video tape recordings had been presented as evidence, they must also be found obscene."SIG

Case Stated by the Crown Court at Warwick

On 7 April 1995 a complaint was made at Solihull Magistrates' Court by Anthony Trafford, an officer of Her Majesty's Customs and Excise, by order of the Commissioners of Customs and Excise for the forfeiture of certain goods, namely: 4 magazines respectively entitled "Teenager," "Teenagers," "Teenagers from Holland" and "Seventeen," 13 magazines entitled "Sweet Little 16" comprising 12 different editions, 4 magazines entitled "Seventeen Special" comprising 4 different editions and 24 video tape recordings respectively entitled "Teacher's Favourite Pet," "Debbie Does Dallas Ill," "Autopsy," "Special SS Women," "Night of the Bloody Apes," "Reservoir Dogs," "Forest of Fear," "Django the Runner," "EIsa Fraulein SS," "Carnage," "Der Sadistische Rechter," "Terror Eyes," "Terminator 2, Judgment Day," "Blood Orgy of the She Devils," "Madhouse," "Devil Times Five," "Cannibal Holocaust," "Blood and Lace," "Dr. Black and Mr. Hyde," "Death Wish," "De Laatste Kannibalen," "Dracula's Great Love," "Frozen Scream" and "Death Dream", imported by the appellant, Mark Richard Wright, from the Netherlands on 19 October 1994. On 11 July 1995 the justices decided that the goods should be condemned by virtue of their either being obscene and prohibited by section 42 of the Customs Consolidation Act 1876, or goods mixed, packed or found with goods which are obscene and liable to forfeiture by virtue of section 141 (1) of the Customs and Excise Management Act 1979.

An appeal by the appellant to the Crown Court at Warwick was heard and dismissed on 21 December 1995. There were four distinct and separate points argued by the appellant: (1) article 36 of the Treaty of Rome has no scope for prohibiting personal importation; (2) the statutory test of obscenity contained in section 1 (1) of the Obscene Publications Act 1959 has no ambit over personal possession; (3) the goods did not satisfy the statutory test of obscenity and were not obscene; and (4) article 36 of the Treaty of Rome has no scope for prohibiting the importation of non-obscene material.

The court found the following facts: (1) the appellant had been a collector of both imported and domestically produced videos of a similar nature for some years, had imported the material for personal use only and had already viewed the magazines in the Netherlands prior to importation; and (2) the appellant had since moved to the Netherlands in order to gain freer access to material of this sort.

It was contended by the Customs and Excise that: (1) the Customs and Excise are entitled to seize obscene articles by virtue of section 42 of the Customs Consolidation Act 1876; (2) although the importation prohibition is contrary to article 30 of the Treaty of Rome, article 36 allows derogation from this on grounds of public morality, a right for which the United Kingdom fought, and it is for each member state to deal with the concept of morality in its own way; (3) the High Court ruled in Reg v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Noncyp Ltd [1990] 1 QB 123 that importation restrictions are justified if there is no lawful trade in the materials imported. Personal possession does not have to be unlawful for the seizure to be justified and a law against personal possession is unnecessary if supply is unlawful; (4) even though the imported articles were solely for the personal use of the appellant, the statutory test of obscenity contained within section 1 (1) of the Obscene Publications Act 1959 can still be applied to the articles with the appellant being the only likely audience; (5) the House of Lords ruled in DPP v. Whyte [1972] AC 849 that the Obscene Publications Act 1959 can be used to protect an addict of obscene material from himself and that the appellant has shown himself to be an addict by virtue of his collecting this type of material and his having moved to the Netherlands for freer access to it; (6) section 141(1) of the Customs and Excise Management Act 1979 allows the Customs and Excise to seize any items mixed, packed or found with unlawfully imported items even though they may not in themselves be subject to any restriction. In the event of an obscene video or magazine being imported it would be prohibitively expensive for the Customs and Excise to have to sort through all other materials imported to see which could be returned and the Treaty of Rome allows for importation restrictions on grounds of economics.

It was contended by the appellant that: (1) article 36 of the Treaty of Rome cannot be used to justify an importation prohibition on grounds of public morality if the materials imported are for personal use only as public morality cannot be read as including personal morality and there must have been an intentional distinction as the word 'public' would otherwise be superfluous. The European Court of Justice ruled in Leclere v. Au ble vert (Case 229/83) [1985] ECR 1 that article 36 is exhaustive and, accordingly, since personal morality is not mentioned in article 36 it cannot be used as justification. Furthermore, British law makes a distinction between public morality and personal morality and article 36 must be read in that context; (2) public morality is not at issue in the case of a personal importation of goods for personal use; (3) even if the personal morality of the importer is at issue, the seizure of 'obscene' goods from a person who has them in his possession and has already seen them cannot be justified on grounds of his personal morality; (4) the European Court of Justice ruled in Sandoz (Case 174/82) [1983] ECR 2445 that national authorities who seek to rely on the justification afforded by article 36 to prohibit importation must check in each instance that the prohibition is actually justified. Applying a blanket ban on importation to a broad class of materials (those which are 'obscene') with no consideration of the differences in circumstances and relevant legislation between commercial and personal importation cannot be justified and a distinction should be made between commercial and personal importation; (5) for a prohibition to be justified it must be so in relation to other domestic legislation. The European Court of Justice ruled in Reg. v. Henn (Case 34/79) [1981] AC 850, 898 that a member state may impose prohibitions on the importation from another member state of articles which are of an indecent or obscene character as understood by its domestic laws. Since there is no domestic legislation which prohibits personal possession simpliciter of obscene material, there is no domestic legislation which 'understands' obscene material imported for personal use and there is no legislation with which to justify the prohibition. With this regard Reg. v. Henn, inasmuch as it concerns commercial importation and authorizes the application of the Obscene Publications Act 1959 to imported materials, is distinguishable. Conegate v. HM Customs and Excise (Case 121/85) [1987] QB 254 ECJ is similarly distinguishable; (6) the Court of Appeal held in Reg. v. Barker [1962] 1 WLR 349 that in the case of publication of obscene material to a named individual the test of obscenity contained within section 1(1) of the Obscene Publications Act 1959 should be applied only to that individual. It is not, therefore to be applied to the publisher who is already in possession of the material and in the case of personal possession the test should not be applied at all. To extend the ambit of the Act to cover personal possession solely to justify an importation prohibition is incorrect and amounts to an abuse of the law; (7) the Court of Appeal held in Reg. v. Clayton and Halsey [1963] 1 QB 163 that material cannot be considered so inherently obscene that even an experienced viewer must be susceptible to some corruption from its influence. With this regard material that has already been seen by the likely audience cannot be held to be obscene if the statutory test is being applied correctly; (8) DPP v. Whyte [1972] AC 849 is distinguishable as the Obscene Publications Act 1959 is not concerned at all with personal possession and it cannot protect persons from material already in their possession. It can only offer protection by preventing people from being able to purchase the material domestically. In any case having an interest in a certain type of material does not render a person an addict of that type of material, addiction being far too strong a state to simply imply from an interest. The appellant's choosing to see this material is no more proof of his addiction to it than a person's subscription to 'Playboy' is proof of his addiction to that; (9) the contention by the Customs and Excise that possession of obscene material need not be subject to control if supply is unlawful is fallacious as regards the instant case in two respects: (i) If a person obtains obscene material by personal importation, the possession is lawful if the importation is lawful. Laws pertaining to domestic supply are irrelevant. The fact that importation is prohibited cannot be used to justify the prohibition since a measure cannot justify itself, it must be justified in the context of other relevant legislation. If the United Kingdom wishes to justify the importation prohibition it must make possession simpliciter unlawful. (ii) This contention is utterly contradicted by the United Kingdom's passing of section 160 of the Criminal Justice Act 1988, amending the Protection of Children Act 1978, thereby making it a criminal offence to possess child pornography as defined in the latter act, at a time when it was already an offence both to distribute and import it. This has the effect of condoning, albeit implicitly, the possession of any other obscene material; (10) the European Court of Justice has ruled in Duphar v. Netherlands (Case 238/82) [1984] ECR 523 that importation restrictions cannot be justified solely on economic grounds and the seizure of non-obscene material cannot, therefore be justified. Furthermore, this amounts to a disguised restriction on trade as materials which could be freely traded within the United Kingdom can be seized on importation.

The Court was invited by the appellant to view the magazines but not the video tape recordings and the court adjourned for this purpose. The Court found that the magazines depicted a range of sexual activities, which they found to be obscene. They were also of the opinion that, as none of the video tape recordings had been presented as evidence, they must also be found obscene. The appellant's submissions that he had previous experience of the type of material imported and that he had already viewed the magazines in the Netherlands were not new and had been considered in earlier cases, in particular DPP v. Whyte [1972] AC 849. The Court were of the opinion that the appellant's obsession with this type of material placed him in the category of addict and that the Obscene Publications Act 1959 had ambit to protect him from the material within the meaning attached to that phrase by the House of Lords in DPP v. Whyte [1972] AC 849, 863 per Lord Wilberforce.

As regards the distinction between public morality and personal morality, the Court were of the opinion that this matter had been decided in Reg v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Noncyp Ltd [1990] 1 QB 123 in that a prohibition on importation is justified if there is no lawful trade in the goods imported. They were also of the opinion that in any case no distinction should be made between public morality and personal morality since the potential for distribution of the materials once in the United Kingdom raises the relevance of public morality.

As regards the seizure of non-obscene material, the Court were of the opinion that the Customs and Excise had properly acted under the powers bestowed upon them by section 141(1) of the Customs and Excise Management Act 1979 in seizing the other material and that the argument submitted by the appellant based on European law had no merit.

The following questions arise for the opinion of the High Court:

1. Is there a distinction to be made between public morality and personal morality with regard to the justification of the prohibition on the importation of 'obscene' articles on grounds of public morality afforded by article 36 of the Treaty of Rome?

2. If there is a distinction to be made between public morality and personal morality, can the prohibition on the importation of 'obscene' articles for personal use be justified by article 36 of the Treaty of Rome on grounds of public morality due to the potential for distribution of the goods once inside the United Kingdom even if no evidence is presented that this is intended?

3. If there is a distinction to be made between public morality and personal morality, can the prohibition on the importation of 'obscene' articles for personal use be justified by article 36 of the Treaty of Rome on grounds of personal morality?

4. Does the ruling of the European Court of Justice in Reg. v. Henn (Case 34179) [1981] AC 850, 898 that a member state may impose prohibitions on the importation from another member state of articles "which are of an indecent or obscene character as understood by its domestic laws" require those domestic laws to ordinarily have ambit on the articles imported?

5. Can the ambit of the statutory test of obscenity contained in section 1 (1) of the Obscene Publications Act 1959 be extended to cover personal possession simpliciter solely to enable its use as justification on grounds of public morality under article 36 of the Treaty of Rome for the prohibition on the importation for personal use of 'obscene' articles?

6. Can the Obscene Publications Act 1959 offer protection from 'obscene' material within the meaning attached to that phrase by the House of Lords in DPP v. Whyte [1972] AC 849, 863 per Lord Wilberforce, to persons who are already in possession of, and have already viewed, the material?

7. Can the seizure of non-obscene materials which are mixed, packed or found with obscene materials be justified by article 36 of the Treaty of Rome on grounds of economics?