UK Legal News

 2004

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28th December

    Anti Social Anti Justice Orders

From The Guardian

The courts are sending people to prison for breaching the terms of antisocial behaviour orders even though their original offences, such as begging or prostitution, do not carry a prison sentence, according to a new survey.

The report on the use of antisocial behaviour orders by the probation union, Napo, also reveals that a geographical lottery is operating, with wide variations in practices around the country.

The survey shows that the number of Asbos has escalated since they were introduced in April 1999, when 104 orders were issued against individuals in the first eight months. More than 2,600 have been issued since November 2003.

The police or local authorities can apply for an antisocial behaviour order against an individual or a group of people whose behaviour causes alarm, distress or harassment to others. Although a court will grant an order on the balance of probabilities - the civil standard of proof - it is a criminal offence to breach its terms, with a maximum penalty of up to five years.

Home Office ministers have told parliament that more than 30% of the conditions laid down by the courts in the orders issued since November 2003 were breached by offenders.

The latest published figures show that in 2001, 114 of the 322 Asbos that were issued ended in the offender being jailed. In 2002, the figure rose to 212 imprisoned out of 403 orders that were issued. The figures for 2003 have not yet been published.

The probation union said it had evidence of cases in which people had been sent to prison for breaches of Asbos issued for offences which did not carry a prison sentence in the first instance.

The union says that it also has cases in which a prostitute was told she could not carry condoms in a prohibited area despite the fact that the drug clinic which provided her with free condoms was in that zone.

The survey also reveals variations in the use of Asbos, with courts in Manchester far more likely to issue them than courts on Merseyside. In the first six months of 2004, 155 people were made subject to an Asbo in Greater Manchester, compared with 27 over the same period on Merseyside.

Harry Fletcher, Napo's assistant general secretary, said his union's survey showed there was an urgent need to re-evaluate the use of Asbos: Far too many people are being jailed where the original offence was itself non-imprisonable. There is evidence that people with mental health problems are being made the subject of antisocial behaviour orders when what is needed is treatment."

He said he found it worrying that what was in effect a civil injunction carried a criminal sanction of up to five years in prison.

 

2nd December

    Derry Blues

The owner of a sex shop in Derry has vowed to go to the European Court to be allowed to continue selling adult products in the city. Ian Brown promised to drag Derry City Council through the legal system after he was refused a licence in autumn of 2004 for his premises in Waterloo Street. The shop is now facing closure after local councillors dismissed Brown's application on the grounds that his shop was in an inappropriate location.

Ian Brown has his say on The Melon Farmers

European court buildingsHere we go again, turned down in Derry, no surprise there then!! We were turned down on relevant locality, which is a farce.

In Waterloo Street are two pubs,1 club, 1 bookies, two derelict buildings, a tanning studio, a mans barbers, a hairdressers, a trendy indie record shop, florists, independant record shop, bike shop and an Irish tourist shop,it is at least three streets away from the main shopping area of Derry 500 yards from a chuch 500 yards from any school on a partially pedestrianised area.

We were and are trading for the last 36 months and this turn down was expected, even though we presented a signed petition from the traders in the street, showing no objection at worst, and at best, some of the traders saying we were needed as foot-fall has increased in the street and their trade has gone up.

The council still felt there was reason to turn this application down , again leaving no licence available in the whole of N.Ireland (still part of the UK), How long will this go on?

How long must I fight the system to allow adults the right of freedom of choice in their own town, how long will councils act as the censors of the censors?.

I believe my fight is justified and right, I should be allowed to sell legal highstreet products legally in this country to an adult population with the right to make their own decisions.

The fight goes on....................

INTRODUCTION

Approximately two and a half years ago Fantasy at 10 Waterloo Street was opened.

Before we opened, we talked to the P.S.N.I. at Strand Road to ascertain if we were trading in any way illegally and, as explained, due to the fact that Derry council had never adopted the Misc. Provision order 1984/85 in relation to licensing of Sex Establishments, we were in-fact breaking no laws.

Until the council brought in the order this would continue. Up to and until the actual hearing of an application, we could continue to trade legally in the eyes of the law.

Derry Council put the legislation in place during summer 2002 and after making an application and fulfilling all the various criteria for same, including lodging ?3000 with the application, we are now in Nov 2004 hearing the application.

We opened the shop in good faith with comments from trading standards chiefs implying that the way to trade legally in N.I. was with a licence available in this country under U.K. legislation, with the final decision being made at council level.

As R18 DVD's/Videos are a legal classification in this country, it was assumed that a local council, given the authority to licence, would use this opportunity wisely.

It is our opinion that it is in the best interests of the council to remove, or at least diminish, the underground sale of unclassified, counterfeit and illegal material whilst providing a legal, controllable and legitimate outlet for the sale of adult material to the consenting adult population of this city who can exercise their freedom to choose.

We further believe that it would be in the interests of the elected representatives of the council, to protect the community from the indiscriminate, under-the-counter sales of adult material to anyone, including minors, who have the money to buy this material. Furthermore this revenue would find its way into many and various pockets without any of the government agencies receiving a penny: Derry City through rates and licence fee; Customs and Excise through Vat and Inland Revenue through salary and wages.

We think the Council should take these considerations into account when making a responsible decision.

THE GENERAL PUBLIC

The issue of the adult shop in Waterloo Street, we believe, should also be clarified.

The main contention is the sale of R18 DVD /Video under licence to the general public.

We contend the adult public covering male, female, couples , singles, gay, straight, have the right of choice and they should be offered their right of choice as in the rest of the UK.

We fully appreciate not everyone likes what we sell and we understand that the products to some people are offensive. However, they are no more offensive than red meat to some vegetarians or cigarettes to some reformed smokers. This should not stop people having access to these products in a suitably controlled environment.

We believe most strongly in this day and age that people are entitled to the right of choice, and people are responsible enough to exercise that choice. If someone doesn't like a TV programme, it can be turned off. If someone disapproves of alcohol, they will not go into a pub. If someone doesn't like what we sell, they won't come in.

Now, more than ever, with both satellite and terrestrial television reducing their censorship criteria, the argument for not licensing our store becomes weaker.

We agree wholeheartedly with advising and protecting those that need it but we balance that with a belief in allowing the rest to have their rights of choice and go about their personal life without any interference.

These products have already been censored by our government and passed suitable for resale. For a council to vote no for no other reason than personal taste is, in our opinion, an incorrect exercise of power.

Let me address some of the other issues.

We fully understand the protection of the innocents and I personally have spoken out many times about this in the media. It troubles me that I should have to reference sex and children in the same sentence but it is a link that is often mentioned.

Let me make our position absolutely clear. Our shop and our products are for over 18s only. This is a policy we strictly enforce. We will not serve anyone we suspect of being underage.

We find it troubling that the first line of argument presented by churches against our store often makes reference to children. We have nothing to sell to children, are not interested in doing so and certainly have no products that in any way could be construed as a corrupting influence.

Additionally, it should be noted, there are no papers, surveys, or any substantiated reports claiming adult shops are the cause of any undesired activity. We also point out there is no evidence of sex attacks in the Waterloo Area having increased since the opening of the shop those many years ago.

We believe the Council should give a lot of thought to avoid falling into the trap of being perceived as a secondary censor. We would remind the Council that even before an application was made, Channel 9 news, Foyle Radio, Q102, the NW Telegraph, The Journal, Derry News, Foyle News and Highland Radio covered the store opening - there were no individual complaints lodged to Derry Council. Complaints only came about as a result of some determined lobbying after the event. These complaints were centred on objectors from the Pennyburn area, a full 3/4 mile from the shop. We would dispute what effects, if any, this shop would have on these particular residents.

In consideration of the admission of current objections, we currently have a list of well over 16,000 individuals from the local area who have welcomed the shop, purchased goods from the shop and have signed our petition to keep the shop open.

We also have a letter from the traders in the area that have no objection to the shop being open.

TRADE AND COMMERCE

The trader view should also be explored further.

Since opening, we can prove and offer supporting evidence that additional business has come into the street, thus keeping money in the city and Waterloo Street that may have travelled to other cities or towns.

Our client base is many and varied.

As mentioned earlier we have shopping for hen and stag nights, the wedding industry being one of the largest industries in NI.

We have tourist trade both Euro and Dollar.

We have a varied base of other clients including those wanting to address problems in their sex life, where we can offer a wide range of possibilities.

We provide adult toys and sex aids recommended by every agony aunt in print.

We provide devices recommend by the medical trade to those with various sexual dysfunctions.

We provide a number of different ranges of glamour wear, bedroom wear and fun fancy dress.

We promote sexual wellbeing and safe sex with a full range of condoms. We actively promote safe sex, both in the shop and at sponsored events.

Our customers represent the full spectrum of our community, drawn from all backgrounds. They are normal, upstanding citizens who are spending money in this city and are also coming from as far away as Omagh, Sligo, Letterkenny, Buncrana, Strabane, Lifford, and from many other areas too numerous to mention.

Recently a similar shop opened in Letterkenny. Some might say, let everybody shop there. We are sure the public would travel out of this city to do just that and whilst there spend money in other Letterkenny retail outlets. Driving retail trade out of the city rather than encourage it to increase is a disservice to our retailers.

Our staff, our suppliers for the shop such as painters, printers, shop fitters, stationers, floorers, oil suppliers, electricians, banks, electrical suppliers, alarm companies, newspaper advertising, radio advertising all contribute to this business putting money back into the local economy. All benefit financially from our presence.

We have always been actively involved with anything to do with the quality of the shopping environment, indeed support any local authority initiative to improve the area. We are always updating and improving the appearance and layout of the shop. Council will note we have changed the name of the shop from Fantasy to Bliss in order to present a more generic face to the public.

Further to this, Council should note we have now opened another shop in Waterloo Street. This business is unrelated to the business under discussion but employs a further three part-time staff, provides further revenue to the city and gives another reason for people to use this area.

We have an established party-plan business directly related to the shop. This aspect of the business provides part-time employment to eight individuals in the greater North West area and, by the very nature of the party-plan, allows individuals to earn money who might not have the chance to take up employment elsewhere.

SUMMARY

We are in business because there is a demand for what we sell.

We chose the location of the shop to fall inside the guidelines of the Misc. Prov. order on relevant locality. We are not near a church, school nor bus stops where children gather. Our impact on the street and surrounding district has been minimal. We have brought jobs and revenue to the city.

If there was no demand for our products there would be no need for the shop. Our customers are normal people representing all aspects of our community. We are experienced retailers who wish to service that demand and operate our business in a responsible and open manner

I t is our opinion and, we believe, that of the many people who shop with us that the adult population of this city should be treated as such and allowed to exercise their own choice as to whether to shop with us or not.

 

31st October

    Identity Theft

From www.lorna-morgan.com

Topless Glamour Model Lorna Morgan loses legal right to her own name

In a final appeal decision by the UK Treasury Solicitor, model Lorna Morgan has been denied the right to use her birth name as a trademark for clothes she sells through her fanclub and website.

Following a decision by the European Court of Justice, massive French clothing firm Morgan De Toi has been able to block Lorna from using her name in future. Lorna had already won the right in a previous judgment by the UK patent office, but in a turn around judgment following an appeal by the Paris based giant, she cannot now use her name.

This is a landmark legal decision, because it is the first case of its kind since the European Court of Justice judgment changed the way that the trade marks registry views people's names. Previously a person's birth name was given a special importance that allowed them to defend their use of the name in their business. From now on the UK will have to look at names in a more European way, and "Lorna Morgan" will be barred from her name because of a previous company called "Morgan".

The Law is the Law and I will have to abide by it, but it seems that the world has gone crazy when a French company can force me not to use the name I was born with! Lorna continues: I actually love to buy clothes at the Morgan stores, and I'm going to continue to do so; but not only has this decision blocked me from my own name ... the judgment forces me to pay Morgan De Toi thousands of pounds in legal fees.

 

25th September

    Blanket Rejection of Rights

So the judge was not satisfied the councils were operating a blanket rejection of licences for sex establishments on social or moral or other grounds. He was probably right, it was probably on religious grounds which are hardly moral or social

From The Belfast Telegraph

A ban on sex shops in Belfast and Bangor was upheld in the High Court today.

Belfast City Council and North Down Borough Council both operate a blanket ban on sex shops and their policy was challenged by way of an application for judicial review.

But the applications were dismissed by Mr Justice Weatherup who said he was not satisfied the councils were operating a blanket rejection of licences for sex establishments on social or moral or other grounds.

"Further I am satisfied the respondents (the councils) have established that a fair balance has been struck between the applicants' interests and the public interest," he said.

The challenges were brought by Misbehavin' Ltd in respect of premises at Gresham Street, Belfast, and Ian Brown, who applied for a licence for premises at Bingham Mall, Bangor.

Fighting the Good Fight

Many thanks for the first hand view from Ian Brown, the sex shop owner bringing this case.

Hi Melonfarmers,

My name is Ian Brown, and for two years I have been fighting for Northern Ireland councils anywhere to grant just ONE sex shop licence. I currently trade under the name Fantasy.

Over here councils have been turning down licence applications on the grounds of relevant locality in NI. Part of there 'misc prov' order is that the shop must be 500 yards from a church of or 500 yards from a school. Given the fact that we have been fighting over here on religion for 300 years the chances of being 500 yards from a church IN THIS COUNTRY puts the point 150 yards offshore or in the middle of Logh Neagh! Its very difficult to satisfy the criteria when the 'pass mark' is 110%.

I opened a shop in Bangor and in Derry NI, and have been trading very successfully for two years I have applied for a licence had the application turned down in Bangor, been called, the antichrist, a pervert, and a paedophile, by local council members.

We have no appeal at county court level over here so I have had to take my fight to the High Court under a judicial review.

My arguments among others is article one protocol one under the human rights act. Further that the NI population has the same rights to freedom of choice to use ANY ADULT shop as their counterparts in the UK, AND ARE BEING ILLEGALLY CENSORED BY COUNCILS IN THIS COUNTRY.

Tomorrow 23/09/04 the judgement by Mr Justice Weatherup will be announced.It will not be in our favour, for many reasons, one of which in my opinion is that no judge regardless of the legalities will ever want to be known as the one who allowed licensed sex shops into N.I. Either Bangor or Belfast or wherever.

THE BASIC HUMAN RIGHT OF CHOICE IS BEING DENIED.

On Monday of this week I was on a BBC radio show putting my case, a straw pole was done by text voting, and at one point the vote to allow sex shop licences into NI WAS 2/1, this announcement by the radio show host prompted a surge by the good christians of this ill fated isle of ours but they still couldn't turn the vote it ended up 52% for 48% against. Which in my opinion is a resounding success, the fact that the faceless buyers of the general public actually stood up and were counted, in a PRO sex shop vote.

BUT as with anything in Northern Ireland it will by the moral minority who will control the majority.

I would like to say that we will not be going away, there are other owners (like me) fighting for their right to trade with products which are legal in this country, I will continue this fight, this crusade, until we have licences in this remote corner of the United Kingdom, and we are treated the same as the UK mainland!!!!

Our Day will come! (The Melon Farmers certainly hope so)

 

24th July

    SubStandard Attitude

So can we be proud of a system that lets the state approve all of our video viewing. Its about time that we stopped letting the authorities treat us as shit.

From ic Solihull

A shopkeeper appeared at Solihull Magistrates' Court accused of having "adult" films for sale. He ran a newsagents and general store in Colebrook Road, was given a conditional discharge and ordered to pay 800 costs. The prosecution was brought by Solihull Council.

The court heard that during a routine visit to the shop, trading standards officers discovered unclassified videos and DVDs on sale.

These were films that had not been examined by the BBFC and given a rating, such as '18' or '15', and some could only be legally supplied by a licensed sex shop.

Many of the covers to the films which were openly for sale showed [totally legal] graphic sexual scenes, although attempts had been made to conceal some pictures.

After the case, Cllr Mrs Diana Holl-Allen, cabinet member for community safety, said: The films offered by this newsagent had not been classified by the proper body and contained disturbing scenes. [how terrible!] Solihull Council will not tolerate retailers who sell such unclassified products. I hope that other traders who may be offered such material will think again following this prosecution.

 

29th June

    Noxious Law Crawls from the Gutters

From ic Birmingham

A kerb crawler has become the first person in Birmingham to be banned from driving as part of a police crackdown on prostitution.

A man was disqualified for six months after being convicted of picking up a known prostitute in the city. Police said they hoped the ban would send a powerful warning to motorists cruising Edgbaston for sex that they could be barred from the road.

They now have the power to seek driving bans under Section 146 of the Criminal Courts Sentencing Act 2000, which came into effect in January.

And Sgt Helen Kirkman today pledged to make full use of the new legislation to clear the leafy residential streets in the Rotton Park area of prostitution and clamp down on the sordid behaviour of kerb crawlers. We will seek a driving disqualification for everyone that we put through the courts for this offence, said Sgt Kirkman, from Lady-wood police. Prostitution is a problem that causes great anxiety and distress to residents forced to live with it. Their lives have been blighted by it.

The man fell foul of the abused new police powers after being nabbed in April in Sandon Road, near the Hagley Road. It was his first offence. He was found guilty of one count of soliciting a woman for the purposes of prostitution from a vehicle, commonly known as kerb crawling, at Birmingham Magistrates' Court on Thursday.

He will not be able to drive until Christmas. He was also order to pay 364 in costs.

The Shameful Gisela Stuart MP (Lab, Edgbaston), who successfully campaigned for the driving ban laws to be introduced, said tackling the kerb crawlers was at the root of solving the prostitute problem. She said: These drivers have no idea the misery they cause to residents. I am pleased police have been able to make use of these new powers. (But this inconvenience is a direct result of crappy and intolerant law that refuses to allow prostitution in a more socially acceptable envirnoment)

 

14th May

    Improperly Used Council Powers

From The BBC

A London council has won a landmark case to turn an unlicensed sex shop which was being used as a brothel into housing for the homeless. The premises in Soho were raided 17 times between 1999 and 2002, and thousands of illegal videos seized. Ainsdale Investments, the landlord, should receive compensation after the victory by Westminster City Council.

The High Court ruling could open the gates for local authorities seeking to take over premises used "improperly".

The owners of the premises had accused the council of acting illegally in a "naked enforcement measure". But the court ruled the council was acting within its powers when it decided to take over the property.

The council's chief housing officer, Frances Mapstone, said after the ruling: We are delighted that a commonsense approach has prevailed. Properties that are often being used improperly - whether as offices, shops or for prostitution - diminish the number of homes that we desperately need in the city.

She added the court had sent a strong message to landlords and owners that improper use of properties was unacceptable and would not be tolerated.

Two women,  objected to the ruling and produced documents to prove they were legal residents. But Romie Tager GQ, appearing for Westminster council, argued there was evidence of a "stream of women" arriving and leaving at different times, "which is not consistent with it being someone's home".

Tager argued there would be a "quantitative gain" if the prostitutes were evicted from the dilapidated building so it could be renovated and turned into housing. Looked at from the perspective of the homeless, or those in very poor accommodation, who would look forward to being housed in premises such as these, the availability of such accommodation is a quantitative gain, he said.

At the hearing, Ainsdale, which is based abroad, said there was no lawful basis for the city council to acquire the property. The judge rejected the argument and said the claimant would receive full compensation for the loss of the property to a compulsory purchase order.

 

11th May

    Illegal Virgins

Excellently well argued, I am sure Melon Farmers everywhere will support Greg's case

From Erotic Trade Only magazine, May 2004 issue

 INTRO: We all know that the law relating to the supply of R18 materials via mail order is a bit of an ass, but three recent court cases have all upheld the view that it is an offence. Here, Greg Hurlstone, Director of Prime Time Promotions (Shifnal) Limited, explains in more detail what this means for the industry and what it could eventually mean for the retail section as a whole.

STARTS: Prime Time Promotions (Shifnal) Limited, myself and my co-director Gary Campbell were recently the subject of numerous charges under the Video Recordings Act 1984 involving the sale and advertising of Restricted 18 classified video works. Whilst the charges themselves were quite complex there were two legal principles which, when determined by the Court, could be applied to the charges to determine guilt.

The two issues of concern were as follows:

a) When a video or DVD is sold where is the place of supply?

b) Does an Internet website constitute an "offer to supply"?

The prosecution submitted that when a video is sold the place of supply is the place of "delivery". It is an offence under the Act to supply a Restricted 18 video at any place other than in a licensed sex shop and in a mail order transaction, as the place of delivery is the home address of the customer, then an offence is being committed.

We argued that our premises are a licensed sex establishment within the meaning of the act and that the place of supply was not the place of delivery but the place of the sale. In a mail order transaction the funds are received, and the product is packaged, within the licensed sex establishment so no offence is being committed. Delivery was in fact the supply of a further service, and not the supply of the product itself.

The prosecution submitted that an Internet website constitutes an "offer to supply" under the Video Recordings Act and that it is an offence for anyone to "offer to supply" a Restricted 18 video other than in a licensed sex establishment. Thus every time an Internet user viewed the website at home or place of work, an offence was being committed.

We argued that a web site cannot be an "offer to supply" but is rather what is commonly referred to as an "invitation to treat". There is no "offer to supply" or "offer to sell", rather the website is a display which the customer peruses prior to making an "offer to buy". This is a legal concept that applies to all shop displays, mail order catalogues etc.

The Court agreed with the prosecution in both instances. We were not surprised at the verdict given that in the past fortnight two similar cases (Pabo and Interfact) had been heard and on both occasions guilty verdicts had been returned.

Prime Time and its Directors intend to appeal the verdict. It is our view that the prosecution and the Court have applied "criminal" definitions to the meaning of "supply" and "offer to supply" and taken Section 12 of the Video Recordings Act in isolation and not considered the wide ranging implications of their decisions.

OFFER TO SUPPLY

It is our view that whilst the Video Recordings Act 1984 imposes criminal penalties it is not in fact a piece of criminal legislation, as if it was it would be completely unworkable (the Companies Act imposes criminal penalties yet is not criminal legislation). Section 12 (1) of the Video Recordings Act states that where a video recording carries a Restricted 18 classification any person who other than in a licensed sex establishment a) supplies the product or b) offers to do so, is committing an offence.

When considering Section 12(1)(b) we should first consider what is actually meant by the phrase "offer to supply" and then consider where the "offer to supply" is made. The prosecution and the Courts concluded that our website was indeed an "offer to supply" and that because it was seen in places which were clearly not licensed an offence was being committed. We do not dispute the latter part of the argument. What we dispute is that the website is an "offer to supply" at all.

The phrase "offer to supply" is also used in Section 11 of the Video Recordings Act and it is this that causes us the most difficulty. Section 11 states that if a video recording has a classification which restricts its supply to persons who have attained a certain age (for example a 15 rated title can only be supplied to persons aged 15 or above) then "a person who supplies or offers to supply" a video recording to a person who has not attained that age is guilty of an offence.

Clearly, if our website constitutes an "offer to supply" then so does every commercial website advertising videos and DVDs for sale. There cannot be one definition for the sex industry and another for more mainstream retailers. The prosecution submitted and the Court agreed that merely viewing the website constituted the "offer to supply". It therefore follows that every time a child sees a 15 or 18 rated video on a site such as Amazon.co.uk an offence is being committed.

In the Pabo and Interfact cases catalogues were construed as being "offers to supply". The courts concluded that every time the catalogue was viewed an "offer to supply" was being made. The offence was committed because the "offer to supply" was being made other than in licensed premises. If I were to display R18 videos at my local car boot sale then this too would constitute an "offer to supply" so there is no doubt that shop displays will, if the same tests are applied, also be seen as an "offer to supply".

What this means is that every time a minor views a commercial website, or reads a catalogue or even enters a retail or rental store, and is faced with product which is age restrictive, an offence is being committed under Section 11 of the Act!

Should we lose our appeal, the result will be that no company can display for sale a video/DVD or computer game with a classification greater than a PG! This would spell the end of the video industry in the UK. Surely this is not the intention of the Video Recording Act. We are therefore firmly of the opinion that the conclusions reached by the Trading Standards Service and the Court to date have to be incorrect and that to apply a criminal standard to the definitions in this Act is a flawed approach.

PLACE OF SUPPLY

The question of the place of supply is rather more complex. The Video Recordings Act defines supply at section 1 (4):

"Supply" means supply in any manner, whether or not for reward, and, therefore, includes supply by way of sale, letting on hire, exchange or loan; and references to a supply are to be interpreted accordingly.

The prosecution submitted that the place of supply is the place of delivery and that the phrase "supply by way of sale" means a supply pursuant to a sale. It is our view that the "sale, letting on hire, exchange or loan" are the supply itself and that if some form of delivery is required pursuant to the original supply then this is the supply of an additional service.

Our view is consistent with the definitions adopted in all contract law, commercial law and most importantly, VAT law and it should be remembered that we are dealing with commercial activities involving legal products. If I were to contact H M Customs & Excise and ask them to clarify the place of supply when I sell a video recording they would, quite rightly, advise that it is the place where the goods are appropriated to the contract of sale. Hence, when we sell product abroad we have to account for VAT on that sale even though the place of delivery is in another country.

One of the key arguments put forward by the prosecution is that the Government would not have enacted legislation that could be circumvented by the use of a third party based abroad (here we are considering the notion of a "primary supplier" based in the UK who sells R18 product to a foreign company which then sells that product back to UK residents). Unfortunately, the Act as it is written cannot prevent this.

If the place of supply is the place of sale then a foreign company which sells back to the UK is not committing an offence as the supply takes place under the jurisdiction of a foreign court. The "primary supplier" based in the UK had originally made an exempt supply under Section 3.(4)(b).

If the place of supply is the place of delivery, then the "primary supplier" sells product to the foreign company and the place of supply is abroad. That supply can then only be prosecuted in the foreign court. At this point in the argument the prosecution will advise that if the "primary supplier" knows the product is going to be shipped back to the UK then he can be charged as he will be aware of an "eventual supply" to the public. The problem here is that the original supply took place abroad and the notion of "eventual supply" is part of British law and cannot be applied to a transaction that can only be prosecuted in a foreign court. The prosecution cannot possibly argue this point as they have long maintained that the only reason foreign companies have not been prosecuted is that they will decline to appear in a UK court. Similarly, the "primary supplier" based in the UK would decline to appear in the foreign court.

Our question then is not, would the Government enact legislation which can be circumvented by using a third party, because it clearly can, but would the Government enact legislation which allows for no control over a "primary supplier" operating within the UK?

If the supply takes place at the point of sale then all UK residents who sell R18 material must abide by the Video Recordings Act. There is little that can be done to stop an individual selling the product on a wholesale basis abroad with a view to it being re-imported, however if the product is supplied within the UK it must be done with a view to the eventual supply to the public taking place in a licensed sex shop.

If the seller wishes to deal direct with the public then that person is controlled by the licensing laws (Local Government Miscellaneous Provisions Act 1982).

If a "primary supplier" wishes to supply a third party within the UK knowing that the R18 product will eventually be sold from an unlicensed premises then it is impossible to do so (unless the "primary supplier" is operating from a licensed sex establishment in which case he is deemed "fit and proper" and we would therefore hope he wouldn't entertain such a transaction in the first place).

However, if the prosecution are correct and the place of supply is the place of delivery then all the "primary supplier" has to do to in order to supply the product, knowing that it is to be sold on illegally, is ship it to the customer's nearest licensed sex shop where the customer would then physically collect it. Supply has thus deemed to have taken place in a licensed premises and the authorities can take no action whatsoever against the "primary supplier". The authorities thus lose what little control they have.

This really is the crux of the matter and the Video Recordings Act as a whole. The legislation isn't designed to stop the distribution of R18 material but rather to control it and to ensure that those who wholesale or deal directly with the public within the UK are deemed fit and proper to do so and can be held to account by the authorities.

There are many other problems that arise by interpreting the place of supply as the place of delivery not least of which is the Government enacting legislation that contains a completely redundant clause. Section 3 of the Video Recordings Act makes it clear that a "supply outside the United Kingdom" is not a "supply to the public". If the place of supply is the place of delivery, and a video is exported then the Video Recordings Act cannot be applied to that transaction. The supply would fall under the legislation of the country where the goods were delivered. This of course assumes that the receiving country has legislation similar to our own. Indeed it may be the case that the applicable legislation clearly states that the place of supply in such a transaction is the place of sale in which case the "primary supplier" cannot be held to account by anyone!

I would not propose at this time to venture into the problems with European anti-competition law, Human Rights legislation, faulty goods and exchanges or the role of H M Customs & Excise in allowing foreign companies to send material into the UK; suffice to say that they all exist and add weight to the argument that the only sensible conclusion is that the place of supply in the Video Recordings Act has to be the place of "sale, letting on hire, exchange or loan".

So what are the implications if the appeal against our convictions fails?

It is certainly the case that any reasonable authority would have to conclude that a display of any video/DVD or computer game rated above the PG level, in any kind of retail environment, would constitute an offence under Section 11 should that display be seen by a minor. It would therefore follow that unless the major retail chains take steps to prevent anyone under the age of 18 entering their premises, the only places where you will be allowed to display an 18 rated video will be a licensed sex shop!

It is also the case that not only would the mail order of R18 material be deemed unlawful but any promotional material which provides a facility to order (eg a website, mail order catalogue, or advertisement which can lead to an off the page order) would also be prohibited. From a publishing point of view, any publication which carried the alleged "offer to supply" could potentially face a charge of aiding & abetting in an unlawful offer to supply. The same would also apply to advertisements for product which contained no classification certificate.

Greg Hurlstone

Director

Prime Time Promotions (Shifnal) Limited

 

26th April

    Generic Persecution

David Byatt, a sex shop owner, trading as Bodytalk, 17 Lower North Street, Belfast, entered a plea of guilty at Belfast Magistrates Court on the 20 April 2004 to a charge of possession of Kamagra, an unlicensed medicinal product produced in India.

Kamagra is a direct copy of Viagra (Pfizer UK), which is licensed for use in the UK but is only available from a pharmacy on the prescription of a medical practitioner. Byatt was fined 250 and ordered to pay 22 costs.

This is the first prosecution of this kind in Northern Ireland and follows a successful joint operation by Medicines Inspectors of the Department of Health, Social Services and Public Safety together with officers of the Police Service of Northern Ireland.

Commenting upon this prosecution, Chief Pharmaceutical Officer for Northern Ireland, Dr Norman Morrow, said: There is a growing concern about the quality and safety of products, which have been illegally imported into the UK. In such cases the Department will take the necessary action to ensure public safety.

 

15th April

    A Very Dodgy Interpretation of Law

So what is this trumped up bollox about not being able to advertise outside of licensed shops. No one has ever suggested that beer cannot be advertised outside of a pub, that bookies cannot advertise their prices in the press and that lap dancing clubs cannot advertise in the local mags.

Based on an article from The Shropshire Star

Two Shropshire company directors were facing a 27,000 bill today for offering to sell hard-core sex films on the internet.

Gregory Hurlstone and Gary Campbell, who run Shifnal-based Prime Time Promotions, had denied that they and the company offered to supply the R18 classified film Pure Bliss on an internet website.

But yesterday District Judge Carl Teper, sitting at Shrewsbury magistrates, ruled they were guilty as hard-core sex films should only be advertised and supplied at licensed sex shops.

Hurlstone, Campbell and Prime Time Promotions were also found guilty of aiding and abetting Karmanet Entertainment Limited in the offer to supply the hard-core film Cheerleaders' Diaries 3 and the supply of the film Pure Bliss through a business other than a sex shop in January 2002.

Three charges of supplying a mail order company in Oxfordshire with R18 rated films were dismissed.

The two directors and the Broadway Court-based company had denied the allegations brought by Shropshire trading substandards.

The company was fined 6,000, and Hurlstone and Campbell, were both fined a total of 1,500.

They were also ordered to pay 18,000, 10,000 in the name of Prime Time Promotions and 4,000 from each of the two directors.

 

7th April

    More Obscene Law

Pabo have German directors and supply from Holland and hence the supply side seems totally legal. Liverpool Trading Substandards seem to be contending that although the supply is perfectly legal then they are still not allowed to offer to supply by way of mail order or telephone order.

Pabo Limited were found guilty in this respect of 53 Summonses (20 having been previously withdrawn). The District Judge imposed a financial penalty in relation to solely the first Summons, namely 2,500 payable within 28 days. Trading Standards claimed costs of 22,314.29 and these were approved by the District Judge in their entirety.

 

6th April

    Obscene Law

Liverpool City Council v Interfact Limited

The issues of principle to be determined in this case are:

  1. whether a licensed sex shop can supply R18 videos by way of mail order ore telephone order or whether supply can only be made to a person physically present in the licensed sex shop.
  2. whether a licensed sex shop may offer to supply R18 videos by way of mail order or telephone order

Interfact Ltd lost the case, basically judge agreed with prosecution that the word "supply" is wider than "sale" so all the pro-arguments went out of the window

The net effect is:

  • No mail order R18's
  • No offer to supply mail order R18's (in our out of the country)

Surely Interfect will appeal this decision particularly as they hold a licence for mail order supply from the local authority in Barking

Pabo have German directors and supply from Holland and hence the supply side seems totally legal. Point 2 above is therefore crucial in that Liverpool Trading Substandards seem to be contending that although the supply is perfectly legal then they are still not allowed to offer to supply by way of mail order or telephone order.

Pabo are in court in Liverpool today

 

29th March

    Unlawful Use of Statutory Powers

From The Scotsman A High Court battle was launched today over a scheme to turn premises with an unlicensed sex shop and brothel into housing for the homeless. The owners of the premises in Soho, London, told a judge that Westminster City Council's scheme involved an unlawful use of statutory powers .

Ainsdale Investments Ltd, which bought the property at 2 Peter Street in 1996, was challenging Deputy Prime Minister John Prescott's decision last August to confirm a compulsory purchase order (CPO) made by the council in July 2002 following a public local inquiry.

Romie Tager QC, appearing for the council, said the property comprised two buildings linked by a courtyard. He said there would be "a quantitative gain" if the sex shop which had been raided many times and found to be selling illegal pornographic videos was closed down and the whole building repaired and made valuable for use by homeless families .

The front, four-storey building contained an unlicensed sex shop in the ground floor and basement run by Ainsdale, specialising in pornographic videos. It had experienced 17 police raids between 1999 and 2002 in which 6,741 videos were seized, with a retail value of more than 138,000.

The upper part of the front building and the whole of the rear building had for many years been used as a brothel occupied by prostitutes and their "maids". Tager told Mr Justice Owen that Ainsdale's involvement in running the property was unclear, although at the very least it received rent or a share of the profit from the prostitutes or their pimps.

Because Ainsdale, which was incorporated abroad, had failed to register as an overseas company under the 1985 Companies Act and give details of its company directors and UK contacts, Westminster had been unable to serve statutory notices on it. The company was apparently insolvent as it owed Westminster nearly 11,000 in business rates covering the period March 19 1999 – August 28 2001.

At the local inquiry, Ainsdale had not challenged substantial evidence of the unlicensed sex shop illegally selling videos, or that the rest of the premises were used as a brothel. Two objectors at the inquiry, a Miss Cromack and Miss Mardlin, claimed to be residential tenants and produced documents to show that they worked as prostitutes on the property and also lived there.

But Stephen Cottle, appearing for Ainsdale Investments, argued that the city council was not exercising its powers to acquire property for housing on a lawful basis. Cottle said: It is not proportionate to dispossess my client of the commercial part of the premises without giving reasons in sufficient detail for them to know a lawful decision has been reached. It is an unlawful use of statutory powers – a naked enforcement measure.

Reserving judgment, the judge said he would take time to consider his ruling.

 

10th March

    Little Fine in Little Amsterdam

Based on an article from The South Wales Evening Post

A man found guilty of illegally selling porn videos has been hauled back into court by a judge after boasting he had "got off lightly". Piet Manca escaped a prison sentence after being found guilty of illegally selling porn videos from his shop next door to Neath MP Peter Hain's constituency office in Windsor Road

He then bragged outside court that his 4,000 fine was only a week's takings and described how he would flood Neath with hardcore porn sold legally through the Internet.

After hearing about his comments everyone, including Manca, was called back into court by Judge Christopher Morton who demanded an explanation and told him he was "sailing close to the wind.''

Manca, who runs the Little Amsterdam drugs paraphernalia shop, had pleaded not guilty to two charges of supplying unclassified hardcore porn videos and possessing three similar DVDs with intent to supply.

He was fined 4,000 plus 7,349 costs.

 

7th March

    Unclassified Persecution

It is about time the Video Recordings Act was declared null and void due to it's gross abuse of human rights. It is outrageous that all of our viewing has to be pre-vetted by the Government. If the film is not obscene then there should  be no further restrictions other  than that of the purchasers age.

Based on an article from The South Wales Evening Post

The owner of a Neath store accused of selling unclassified (but not obscene) porn videos has blamed Neath MP Peter Hain, police and Neath Port Talbot Council for waging a campaign of harassment against him. Piet Manca, of the Little Amsterdam store next to Hain's constituency office in Windsor Road, is on trial at Swansea Crown Court charged with selling two unclassified hard core porn videos and possessing three similar DVDs with intent to supply. Manca revealed that he had been visited by police and council officers 20 times since he opened his shop just over a year ago.

The case has been adjourned until Monday for the jury to consider their verdict. Manca is pleading not guilty. Judge Christopher Morton told the jury not to make any decision over five charges against the Little Amsterdam Ltd company, but to concentrate on identical charges against Manca himself.

Little Amsterdam area manager Paul Jarrett gave evidence for the defence. He told the court how he had been given a selection of unclassified videos as samples but had sold three of them and pocketed the money without Manca's knowledge after the sales rep failed to reappear.

Two of the videos were sold to a trading standards officer from Neath Port Talbot Council, which triggered a raid on the store five days later. The court heard how the videos were normally sold on a commission basis through a link on Little Amsterdam's website.

Phillip Harris-Jenkins, defending, said: Nobody is going to go to Little Amsterdam expecting to get a knitting pattern - it's upfront about what it does. What Mr Jarrett did was completely contrary to what the shop is about. It was a legitimate business. Why would Mr Manca set up his own website and then be so rash as to sell these films over the counter anyway?

 

26th  February

    Mail Order Test Case Update

Officially now recognised as a test case at Liverpool Magistrates Court, 2nd April 2004

Liverpool City Council v Interfact Limited

The issues of principle to be determined in this case are:

  1. whether a licensed sex shop can supply R18 videos by way of mail order ore telephone order or wehether supply can only be made to a person physically present in the licensed sex shop.
  2. whether a licensed sex shop may offer to supply R18 videos by way of mail order or telephone order

I have also been informed that Pabo (the mail-order company owned by Beate Uhse) are going to court over the mail-order R18 issue and will appear after the case above. This case is again brought by Liverpool Trading Substandards.

Pabo have German directors and supply from Holland and hence the supply side seems totally legal. Point 2 above is therefore crucial in that Liverpool Trading Substandards seem to be contending that although the supply is perfectly legal then they are still not allowed to offer to supply by way of mail order or telephone order.

It is interesting to follow through some of the ludicrous outcomes that would occur if this point were to be upheld. All sorts of, eg web site intermediaries, may be liable for hassle.  In addition the concept may be extended to the purchase of foreign mainstream DVDs.

I presume our authorities will be proving the harm that would otherwise be caused when justifying their noxious attempts at mass censorship

 

28th January

    Afternoon Closing

Based on an article from the Exeter Express & Echo

An Exeter sex shop, Fantasy World, has sparked angry protests by its appeal to lift a ban that stops it trading when children finish school for the day. The Private Shop, in Fore Street, has to close its doors between 3.30pm and 4.30pm during term time.

The restriction was imposed by Exeter City Council when the shop opened in 1986, to protect children walking through the city after school. It resulted from concerns by schools in the area, which have since closed. Now Darker Enterprises, which owns the shop, has applied for the restriction to be removed as part of its application to renew the licence. Its appeal will be debated by the council's licensing committee on February 3.

Sue Shorman, head of Alphington Combined School, is against the restriction being lifted. She said: Anything that may prevent children from gaining access to these types of goods should stay in place.

City moral rights nutter Dr Adrian Rogers agreed. He said: The difference between now and 15 years ago is that the internet has proved there is a bigger appetite for pornography than ever before. Shops such as this only fuel these appetites and desires which cannot be easily fulfilled. We also know that trends over the last 15 years show more and more sexual interest in children, also related to pornography. Dr Rogers said he was concerned that if the shop was open between 3.30pm and 4.30pm it could encourage children to go in on their way home from school, despite a ban on under 18-year-olds entering the premises. He said: In the same way as children find ways of buying cigarettes and alcohol, they may try to go into these shops. If the citizens of Exeter had any sense they would not allow this shop to be open. They will never stamp this sort of thing out all together, but they can help prevent it by not authorising a licence.

City councillor Barry McNamara said that although he did not object to the shop having a licence, he did not feel it should be permitted to open between 3.30pm and 4.30pm. He said: I am against anything that could be detrimental or offensive to children in the area. It is of concern that if the shop is open during these hours, children could try to walk into the shop on the way home from school. If we allow this to happen we could be responsible for corrupting young minds.

 



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