The People vs HM Customs

Dear John,

I refer to my letter of 9 June in which I undertook to write to you again once my officials had looked into the points raised by Mr Shaun Hollingworth concerning the seizure by customs and excise of Digital Versatile Disks containing pornographic material which he had purchased over the Internet from a company in Belgium.

As a general point, the basis for legislative controls in this country is not the imposition of the tastes and morals of one section of the community upon the majority, but the prevention of harm to society, and in particular the protection of the vulnerable, especially
children. It is recognised that, in making these judgements, consideration of what material may be freely available in our society requires a delicate balance to be struck between freedom of expression and public protection.

As you know, the general test of obscenity in the 1959 Obscene Publications Act - the "deprave and corrupt" test - has been the subject of much debate since the legislation was introduced. It continues to provide a flexible regulatory tool applying equally now, to material published on the internet as it does to other media. Its strength lies in the fact that it is flexible and allows for changes in society's moral standards. It is a general test that requires harm to be shown, rather than merely offensiveness.

UK obscenity legislation is regarded as meeting the requirements of article 10 of the European Convention on Human Rights, as it provides for the right to freedom of expression which includes the freedom to hold opinions, and receive and impart information and ideas without interference by public authority. However criminal prosecution may be justified for the prevention of crime, or for the protection of morals. ECHR case law has found that state authorities are better placed than the international judges to assess the necessity for a restriction designed to protect morals.

As Customs and Excise explained in their letter of 6 April, Section 42 of the Customs Consolidation Act 1876 prohibits the importation of indecent and obscene material. The prohibition on indecent and obscene material is made possible by Article 30 of the treaty establishing the European Community (ex article 36 of the treaty of Rome) which allows a member state to prohibit such material provided that similar material is not made or marketed in that country.

Mr Hollingworth asserts that dealers of illicit, unclassified videos in Soho are not being subject to prosecution. It is the responsibility of the police to decide whether there are sufficient grounds to launch a criminal investigation, and that of the Crown Prosecution Service to decide whether to prosecute those alleged to be responsible. Mr Hollingworth may be interested to know that the 1959 act is not ineffective. In 1997 there were 275 prosecutions under the act in Magistrates Courts and 189 findings of 'guilty' were established. Trading standards officers also prosecute these dealers under the Video Recordings Act 1984 which makes illegal the supply of videos (other than exempt works) which have not been classified by the BBFC. As you may know, there is no legal obligation for trading standards officers to notify the office of fair trading of all prosecutions under this Act. However I understand for the period of January 1993 to March 1998 there were at least 547 prosecutions under both the Video Recordings Act, and the Video Recording (Labelling) Regulations 1985

I understand from Customs and Excise, that the DVDs ordered by Mr Hollingworth contained scenes that were considered by them to fall within their import prohibition on obscene material. Mr Hollingworth had the opportunity to argue the point in front of a magistrate but declined to do so. I understand that he also failed to take up the offer to view the material himself as you suggested.

Information on any Customs and Excise matter is available from their Advice Centres who can and do refer enquiries to the policy group based in London. I understand that officials from Customs and Excise Head office have had several lengthy conversations with Mr Hollingworth, in which they explained to him the law, his rights following the seizure of the DVDs and the type of material which might be considered to be indecent or obscene. Ultimately of course the final decision within the meaning of the law is a matter for the courts. The government will continue to keep the obscenity laws under general review and is determined to ensure they remain effective in protecting the rights and freedoms of different people both to have access to, and be protected from certain types of material. Whilst I appreciate that Mr Hollingworth may not agree with the arguments I have put forward, or with the decision by Customs and Excise to seize material purchased by him which breached import prohibitions, I am nevertheless grateful to him for writing to express his view.

 

Shaun replies:

None of this of course gives any 'strict' justification for the restrictions placed on my freedom of expression. Harm is alleged but
not proven. A home office spokesperson said that it had never been properly proved that this (consenting adult explicit erotic material) harmed anyone. If the worry is the protection of children, make it an offence to show to children. There is no need to also deny the freedom of expression of adults. The admittance that the OPA interpretation varies over time, must logically mean that it cannot be 'clear' and absolute, so the citizen knows what that law actually is. According to Lord Bingham, this is a requirement for legislation.

I would also dispute the assertion of government that similar material is not legally traded in this country,  eg visit: www.rxxx.com

I did not go to court, because it would have cost me hundreds of pounds if I had lost, and I would have had to travel to Dover. Even if I had won, I was advised by Customs, that it would set NO legal precedent whatsoever for other similar videos. Therefore there would be little point to it, in any case, the magistrate would have simply rubber stamped the decision of customs perpetuating the circular reasoning for the prohibition.

 

And Shaun replies to John Healey MP

Thank you for your most recent reply, and the copy of the letter from Ms Kate Hoey, the Under Secretary of State at the Home Office. It was a most interesting read, but I believe that nothing contained in it could be regarded as any form of justification for the seizure of my DVD disks, or the prohibition of legal sale of none violent consensual adult material.

I particularly object to the comments by the Under Secretary of State that I "could have argued the matter in front of a magistrate", or "viewed the material." There would be very little point in viewing the material unless I was to argue the matter in court. To do so would have cost me hundreds, and then on certain appeal to a higher court perhaps thousands of pounds, without setting any legal precedent whatsoever, and I received no offer from the British State which would assist me financially in presenting my arguments to the Magistrates court or any other British court.

I would again like to remind those who are responsible for the legislation in regard to this matter, of the wording of Lord Bingham in his discussion on the European Convention on Human Rights:

Lord Bingham of Cornhill expressed the view early in 1998:

The European Court of Human Rights has imposed a strict test of necessity, relying on such concepts as pluralism, tolerance and broad-mindedness. The overriding principle is clear: since the right in question is to be regarded as fundamental, any restriction of it must be strictly justified.

The full text can be found on the web at: webjcli.ncl.ac.uk/1998/issue1/bingham1.html

I find no strict justification or any necessity WHATSOEVER for the restrictions imposed on me, within Ms Hoey's reply to you.

I also quote Lord Bingham's views on any law which restricts various rights including freedom of expression: First it must ask whether the restriction or obstruction is "prescribed by law". This means that it must be governed by legal rules, which are sufficiently clear and accessible to enable the individual citizen to find out what the rules are. This, generally speaking, limits the freedom of the authorities to make the rules as they go along,

If you please view the file on the computer disk I have enclosed, entitled the 'porn wars' (on a modern PC Win98 computer) you will see that last year the various authorities *themselves* were (and still are) in disagreement about how to interpret the 1959 obscene publications act. What hope for the 'individual citizen' then ? It is on this point, and also on the arbitrary nature of the Act, and the fact that its interpretation changes with the mood of the Home Secretary, that I believe this Act DOES directly and blatantly contravene the human rights convention. This programme was shown on BBC television late last year.

The BBFC are to fight an appeal by video distributors on the failure of the BBFC to award an R18 certificate to some adult videos. I have learned that they are no longer prepared to fight their case (of unwarranted and draconian censorship of a free people) based on their view that the videos are obscene (because the Video Appeals Committee and much of the general public would disagree on the fact ) but on the basis of harm to children. I have two children of my own, Nathan a boy aged eight, and Sarah a girl aged five, and I STRONGLY resent the use of MY children as a poor and lame excuse for censorship and restriction of so called free born ADULTS. I also resent the Home Office using them as an excuse to maintain their (now untenable) censorship regime in this country, which HAS NOT been justified. I ask those involved in it to closely examine the experiences of other countries who do not find this repressive action 'necessary'.

If children need to be protected against certain videos, especially those of an explicit adult nature, there are ways that this can be achieved without impinging on the right to free born adults to purchase and view this material in private. We do not prohibit matches, alcohol, tobacco, medicines, motor vehicles etc, to adults on the grounds that they are harmful (and often so terribly harmful) to children. Instead we impose a duty on adults to ensure that these materials are not used by children. Such an imposition in the case of adult videos, if it is really needed would be far more effective, and would ensure that children would be protected from the explicit material already in circulation, including that broadcast by satellite and available on the black market. It is simply not necessary to try and censor free born British people from viewing depictions of acts which would be perfectly legal to perform, and depictions of acts which are perfectly legal to purchase almost everywhere else in Europe, and most of the USA New Zealand, Australia etc. However I believe that protection of children is not the real mission. It is the intention of certain factions of society, especially those involved in religion, to impose their narrow minded will upon us, and they seek to do so by hook or by crook, using my children as an excuse if necessary. This is clearly unacceptable. What too, of the rights of those people without children ? Some 70% of British homes fall into this class.

Ms Hoey appears to contradict herself in her reply: As a general point, the basis for legislative controls in this country is not the imposition of the tastes and morals of one section of the community upon the majority, but the prevention of harm to society,

Then she writes:

However criminal prosecution may be justified for the prevention of crime, or for the protection of morals. ECHR case law has found that state authorities are better placed than the international judges to assess the necessity for a restriction designed to protect morals.

If the Government seeks to protect children, and the 'vulnerable' what cases of serious harm have there been, and why cannot the problem of that harm be dealt with in ways that do not compromise freedom and human rights as happens in most other "free" countries ?

She also mentions a point about customs prohibition being against the law if similar material is made or marketed in our country. Firstly I would suggest it is not currently illegal to make pornography in private in this country. There are cases of pornography production I've heard of. Secondly, there IS legally tradeable material so similar in nature to the DVDs I have had seized, this probably renders the prohibition illegal under the Treaty of Rome mentioned by the Under Secretary of State in her letter. She used the word "Similar material", not identical material, and there is no mention how many different types of articles of "similar material" legally traded in this country there must be for the import prohibition to be illegal. Thus the few quite explicit R18 videos legally on sale here could be sufficient to make import prohibition of similar material illegal under EU law.

I cite one particular video as the basis of my argument: 'Carnival The International Version' which has a BBFC R18 certificate and is legal for sale in the UK. has many of the acts which would fall under the draconian prohibition of the UK Customs and Excise. I do not regard the certificate alone as reason for the restriction as other films can be imported without a BBFC certificate.

If you have access to the Internet, I refer you to the Website: www.rxxx.co.uk which sells R18 videos including the above, and also magazines dispatched from Birmingham, and some of the contents of the magazines can be seen over the internet on the Web site. The images in the magazines certainly illustrate explicitly acts which are on the customs seizure list. ( Remember I believe it is customs that is wrong, not the web site owner)

I therefore still await the strict justification for draconian censorship of explicit adult erotic videos which are available just about everywhere else in the free world. Even if human rights law isn't part of British law, I still feel that the government really ought to provide proper justification based on verifiable facts, and so far they have failed to do so. In the Panorama programme, Professor Kevin Browne states clearly that the viewing of such material provided there is no violence etc. is harmless. So did the Williams committee, and the Cumberbatch and Howitt study for the Home Office, now so conveniently unavailable to the public. The government really must justify its position in the continued prohibition to adults, of material considered by many respected learned people as being harmless. I am afraid I can only believe it IS an unjustified " imposition of the tastes and morals of one section of the community " and particularly by one senior member of the government who will apparently use any mechanism available to him, to ensure we all stick to his standard of morality etc, based purely upon his BELIEF rather than the facts. This applies even when the video appeals committee and the public start to believe the law should be relaxed.

If human rights are to be properly respected belief is no justification for prohibition. I wonder how much it costs we the taxpayer for Customs to open some 95% of DVDs etc arriving into the country ? What does it cost my children, when the money could be used for education and health ? Do you know, I believe that the prohibition is actually harmful.. Our attitude to such matters is not good. Then we wonder why we have BY FAR the worst teenage pregnancy problems in Europe....

To be honest, I am now so incensed by all of this, I feel strongly compelled to leave the UK, and take up residence elsewhere in the EU in a country that really does care about human rights to free expression.  That in my view, would be a small loss to the UK, considering my own small but not inconsiderable contribution to the wealth of our nation over the years. But it seems my rights to freedom can only be found elsewhere in Europe. I am reminded of the time years ago, when a very pleasant elderly lady told me that her husband had fought for my freedom. Today I wonder how real that freedom actually is. They used to say "An Englishman's home is his castle". Today I would suggest: "An Englishman's home is his prison".