Thanks to Peter
Before LORD JUSTICE MAURICE KAY and MR JUSTICE NEWMAN
Wednesday 24 February, 2005 At half past 10
Appeal by way of Case Stated
CO/2652/2004 Interfact Limited v Enviromental Health And Trading Standards
Appeal by way of Case Stated
CO/3403/2004 Pabo Ltd v Liverpool City Council
The High Court is being asked to decide whether adult-only pornographic
videos and DVDs can be sold by licensed sex shops on the internet. Two
senior judges were told today that overseas sex industry rivals would
benefit and “the local economy” suffer if sales by mail order and on the
telephone by UK companies were ruled unlawful.
Two test cases are being brought by licensed sex businesses fined thousands
of pounds after prosecutions were brought against them by Liverpool City
Council’s trading standards department.
Interfact Ltd, an Essex-based mail order shopping company, and Pabo Ltd,
based in Birmingham, were both found guilty at Liverpool Magistrates’ Court
in April last year of contravening the 1984 Video Recordings Act by
supplying, or offering to supply, the “R18” classified videos featured in
their website catalogues.
The prosecutions occurred following investigations by trading standards
officer Allan Auty, who made test purchases of explicit films, with titles
such as Bikers’ Gang Bang and Top Marks for Effort, which can
only be sold to those aged over 18.
The district judges held that, under the 1984 Act, the videos were
restricted to customers calling “in person” at licensed sex establishments,
and not for sale on the internet.
At today’s High Court appeal in London both sides accepted that R18 videos –
primarily explicit videos of consenting sex between adults – could only be
lawfully supplied to customers “in licensed sex shops”.
The sex video companies contended that, in a mail order transaction, the
funds were received, and the product packaged, “in the licensed sex
establishment”. That was the point of supply, so no offence was being
committed. Delivery amounted to a further service, and not the supply of the
But Liverpool trading standards contended that the point of supply was “the
place of delivery” – in this case Auty’s address in Liverpool – and the
wesbsite sales were therefore unlawful.
David Pannick QC, appearing for Interfact, said:
Plainly this case is
brought as a matter of general importance. Asking Lord Justice Maurice
Kay and Mr Justice Newman, to overrule the Liverpool convictions, he said:
It makes no sense to allow sales to adults physically present, but to
prohibit sales to adults by mail order.
There was “no sensible purpose” in preventing adults from obtaining R18
videos by mail order from within the UK when Customs allowed goods of a
similar nature to be imported from abroad by mail order. Indeed, the only
purpose which such an interpretation of the law would serve would be to
damage the local economy in favour of the economy in France or the
Netherlands, said Pannick. We say that to prohibit mail order
sales for videos which are accepted by the regulatory body to be appropriate
for viewing by adults would breach Article 10 (the right to freedom of
expression) of the European Convention on Human Rights.
Interfact, based in Barking, was convicted of breaching the 1984 Act by
District Judge Curtis at Liverpool magistrates court in April 2004. The
company was fined £3,000 for supplying four R18 videos – Club Reps, Riviera,
Bikers’ Gang Bang and Cathula. It was also fined £2,000 for “offering to
supply” 44 films in its catalogue.
Pabo Ltd, a mail order and catalogue shopping company based in Roman Way,
Coleshill, Birmingham, was found guilty of similar offences at the same
court on April 7 by District Judge Morris. The judge fined the company
£2,500 and ordered it to pay £22,314 prosecution costs for supplying four
videos – Shameless Desire, Shane’s World, Titano and Top Marks for
Effort – and offering to supply 53 films in its catalogue. Pabo is also
challenging the “grossly disproportionate” costs order.