Appeal court rejects application to quash convictions over government's non-compliance with EC directive

The prospect of all convictions under the Video Recording Act 1984 being quashed has receded after the Court of Appeal ruled that the government's accidental non-compliance with a European directive was not sufficient to quash convictions based on an Act of Parliament.

The appeals in Interfact Ltd v Liverpool City Council and R v Nikolas Budimir and Nicholas Rainbird involved prosecutions under the Video Recording Act 1984.

Counsel for the appellants in both cases argued that the convictions should be quashed because of – in the words of Lord Judge, the Lord Chief Justice – “an adventitious failure by the UK government” to comply with the Technical Standards Directive, whose purpose is to eliminate restrictions on the free movement of goods.

In the Interfact case, the applicant company was convicted by Liverpool Magistrates’ Court on 44 counts under the 1983 Act. It had been posting to customers from licensed premises R18 videos which had been ordered by post or by telephone, and enclosing with those deliveries catalogues offering to sell and deliver further R18 videos.

The supply or offer to supply was from a licensed sex shop and not in a licensed sex shop. The company was fined a total of £5,000 and ordered to pay costs of £25,617.22 in Liverpool City Council. A subsequent appeal to the Divisional Court was dismissed, with leave to appeal to the House of Lords refused in October 2005.

In the Budimir and Rainbird case, the two defendants had pleaded guilty in 2008 to six counts of having in their possession for the purpose of supply a video recording containing a video work in respect of which no classification certificate had been issued, contrary to s. 10(1) of the 1984 Act.

They also asked for another offence to be taken into consideration, namely that they had 15,631 video recordings in their possession for the purpose of supply – again with no classification or certificate. The defendants were fined £30,000 and each made the subject of £156,370 confiscation order.

The government then announced in August 2009 that offences under the 1984 Act and the related regulations were technical regulations which should have been notified to the European Commission under the Directive. The Act and related regulations had not been notified and – following a series of European Court of Justice rulings – accordingly this failure rendered them unenforceable against individuals.

The then Minister for Culture and Tourism, Barbara Follett MP, wrote to the Director of Public Prosecutions to say that all prosecutions should be discontinued and no new prosecutions undertaken.

The government then notified the Act and regulations made under it in September 2009. The 1984 Act was repealed and re-enacted as the Video Recordings Act 2010; the regulations were also remade.

The applicants in Interfact and Budimir and Rainbird then applied to have their convictions quashed.

However, the Court of Appeal rejected the applications, with Lord Justice Judge saying that the judges were “wholly unpersuaded that the convictions in these cases have given rise to any substantial injustice”. This was on four grounds:

• The purpose of the 1984 Act was to protect the public from the dissemination of pornography. “The classification procedure and the consequential prohibition on supplying unclassified video works were adopted in order to ensure that such supply is properly regulated and controlled,” Lord Justice Judge said, adding that the offences were not simply regulatory and the public interest is clear.
• The applicants “undoubtedly and deliberately performed the acts prohibited by the statute, in the course of their businesses, for substantial profits”. The 1984 Act made it abundantly clear that their conduct was criminal; and it remains criminal under the 2010 Act, which re-enacted the provisions of the 1984 Act in identical terms.
• There was nothing to distinguish these convictions from those of any other defendant convicted of offences contrary to the 1984 Act. “The logic of the applicants’ case is that every conviction for such offences….must be set aside , notwithstanding that in every case those convicted had contravened the provisions of properly enacted primary legislation”.
• Apart from EU law and the possible application of the Convention, “it is impossible in these circumstances to discern the beginnings of an argument that any applicant suffered the slightest injustice”.

Lord Justice Judge added that in the judges’ view there was no obligation on the Court of Appeal, under either EU law or under the European Convention of Human Rights, as given effect by the Human Rights Act 1998, to set aside the convictions.

The judge said: “In view of these conclusions it is not strictly necessary to address the power of the court to re-open a final determination of an appeal to the Divisional Court or to extend the time for appealing against conviction to the Court of Appeal Criminal Division. The arguments could simply be refused.

"Our answer to the question whether the failure by Her Majesty's Government to give an appropriate notification under the Directive has, as a result of the application of EU law and the Convention created any injustice is that it did not."

However, Lord Justice Judge acknowledged that the issue of law raised by the applications was of general interest and the Supreme Court should be given the opportunity to decide whether the issue justified its attention.