UK Legal News

 2005

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20th December

    Unscrupulous Licensed Rival

From the News and Star A Carlisle porn shop boss was fined £4,000 with more than £1,000 costs today after admitting possessing unlicensed sex videos after around 1,000 tapes were seized in a raid.

Trading SubStandards and police took 33 bags of DVDs and videos, worth around £50,000 from The Parade in William Street in November last year after a tip-off from a rival.

Peter Burns admitted eight charges under the Video Recordings Act. Magistrates heard how his shop, off Botchergate, stocked unlicensed and unclassified videos.

The court heard that an undercover trading standards officer bought a video in the shop on November 16 last year which had no classification certificate.

Later that day, trading standards, police and licensing officials visited the shop and seized 941 videos and 228 DVDs, 296 video cases and 137 DVD cases. Of those, 929 had no classification certificate or were classed as R18 – which only licensed sex shops can sell The Parade does not have a licence.

Geoff Clapp, defending Burns, told magistrates that the case was down to business rivalry: There are two licensed sex shops in Carlisle and two unlicensed. Mr Burns runs one of the unlicensed shops as manager. It was a complaint from one of the licensed shops which led to this. Burns could not afford a licence to sell R18 tapes because it would cost around £11,000.

He said Parade had been selling tapes for around 17 years without any objections. The videos had no British classification because they were imported: Mr Burns has been in this business for a number of years and knows what it is right to sell . Everything he sells is above board and legal except that it hadn't got the certification.

 

17th November

    Adding to the Climate of Fear

This is an absolute nightmare. Note the use of the word indecent, this is a much milder legal adjective than obscene. Many perfectly legal films with 15/18/R18 rated sex scenes can be considered as indecent even if they would never be considered anywhere near obscene.

This is seriously worrying. The problem is that the courageous decision to fight the case as far as Crown Court has proved counter-productive. We now have a judicial ruling constituting a legal precedent which will hold until it is overruled by a higher court. Since the importer isn`t going to lay out further money on an appeal, the only ways to get this nonsense stopped will be a challenge by an importer big enough to fight a future case to the Court of Appeal or above or to find some MP prepared to introduce primary legislation to amend the law. Not easy!

By Littleman from Inquisition 21st Century

A landmark decision taken by judges at Maidstone Crown Court on the 9th of November 2005 has created a legal precedent that even if a DVD, video, magazine or whatever was legally obtained in the UK, but in your possession while traveling, Customs can seize it, if it contains a single image that they consider to be indecent. This could mean that you lose your home because you own something you bought legally in a high street shop.

Let us imagine for one second a typical scene. You are going on holiday to the continent in your car with your family. In order to while away the journey, your teenaged (18+) children have brought along a portable DVD player with a DVD of, say, 9 songs, which they intend to play on the way. This DVD was bought quite legally in the UK high street and has been classified (censored) by the BBFC and your children are old enough to watch it legally. On the way back you get stopped by customs officers at Dover and, having seen the DVD, they decide that it contains a scene (or even a single image) that could be regarded as indecent. They quote the Customs and Excise Management Act of 1876 to you as justification for its seizure, but then they also quote the Customs and Excise Management Act of 1979 as justification for seizing your car and all its contents. They even strip search you and your family. You all now find yourself standing at the side of the road in Dover with just the clothes you stand up in trying to get home.

You naturally contest the seizure, but you have to travel to over Magistrates at Penchester Road Magistrates Court, which must rate as one of the worst run courts in the whole British Legal system – they have no staff except a security guard and, crucially, no law books or knowledge of the law; even the clerk of the court admits that he has no knowledge of condemnation proceedings so they just wing it based on 'advise' tendered by the Customs Barrister. You have to go here, because even though CEMA 1979 allows Customs to move the hearing to a court nearer your home they won't. They want to cause you the maximum inconvenience in order to try and provoke you into dropping the case.

But you don't drop it, because (a) you feel you are legally in the right, as the DVD was legally obtained in the UK and (b) your car and all its contents are at stake, which can be worth many thousands of pounds. You find yourself confronted by a barrister in court, who shows a still of the indecent image from the video and asks the magistrate to judge whether or not it is indecent (not obscene note – just indecent which is a VERY low hurdle to cross and one that Customs have previously said they wouldn't be using in future: in other words they lied). Dover magistrates almost invariably find in favour of Customs (I've never heard of a single case where an appellant – i.e. you – has ever won). So not only do you lose your car and contents, but you also get hit with thousands of pounds in costs (Customs Barristers charge 150 pounds for each letter they read).

You could of course challenge the magistrate's court decision and appeal to the Crown Court. But by now you are aware that you have to provide a barrister of your own at a cost of thousands of pounds, and of course if you lose then Customs will heap on extra costs so you could end up tens of thousands of pounds out of pocket: indeed you could even lose your home because Customs will obtain a court order within 14 days of the hearing to send the bailiffs in to recover their debt. You could end up financially ruined and living in a hostel.

Sounds a bit far fetched doesn't it? Britain is (was) the envy of the world in that its legal system is fair and if you bought the DVD in a high street shop then you assume its legal to own and re-import.

Well you'd be wrong.

In a landmark decision taken by judges at Maidstone Crown Court on the 9th of November they have created a legal precedent that even if the DVD (video, magazine or whatever) was legally available in the UK, Customs can still seize it if it contains a single image that could be considered to be indecent.

So what is the legal definition of indecent? A leading barrister is quoted as saying:

"No easy definition of indecency exists. The courts have said that this is something that 'offends against the modesty of the average man, offending against recognized standards of propriety at the lower end of the scale'. It depends on the circumstances and current - and in some cases local -
standards. This vagueness is dangerous. Posters for causes such as animal rights, which are deliberately intended to shock their audience, have sometimes had to contend with indecency prosecutions. Indecency is easier to prove than obscenity because there is no defense of public good, there is no need to consider the article as a whole and there is no need to satisfy the 'deprave and corrupt' test."

In other words, it can mean anything that the Customs Officer decides offends his standards of propriety and ultimately it is him (or her) who decides that it is indecent, and you have to appeal against that decision. And what is more, the case is decided on the balance of probabilities (in other words the subjective prejudices of the officer and the magistrate) as to whether it is indeed indecent. Do you still think you'd win if they showed a single still image from the DVD (which is what the judge at Maidstone allowed) completely out of context? Particularly as there is absolutely no defense: you can't quote public good or the fact you bought it from WH Smiths, so the article and the fate of your car and possessions and indeed even your future are weighted on whether the magistrate finds that single image indecent. That, in my opinion, is a huge miscarriage of justice.

Now it is possible that Customs will not use this legal precedent in future cases, but I wouldn't bank on it. They have not shown themselves to be wooly minded liberals in the past and they are going to glory in their new found powers, which are over and above their already draconian powers.

For instance, they could use it not only to confiscate your car but also in order to obtain a search warrant to search your home and computer and who knows what they might find there - there is a lot of child porn going round at present primarily distributed by the FBI and the LAPD (who brazenly admitted that they now control the cp market), so there could well be a CP image lurking on your system that you didn't know about. The next thing you know you are branded a pervert and appear on the violent sex offenders register. Now that's a cheery thought isn't it?

The judge himself had misgivings about his ruling, that much is clear, as he said:

"Mr. Jones [Customs Barrister] submitted that the fact that items were lawfully available in the UK did not mean that they could be necessarily imported and it is this aspect of the case that caused us the most trouble. Although we are satisfied that broadly comparable movies are available in the UK, Parliament has seen fit to maintain the prohibition on the importation of indecent or obscene articles which, of course, include the DVDs in question. Since it is an offence under Section 170(2) of the 1979 Act [CEMA] to be knowingly concerned in attempting to evade the prohibition on the importation of indecent or obscene articles imposed by section 42 of the 1876 [the original Customs and Excise Management Act] we are driven to conclude there is no lawful trade in existence in the UK with regard to articles which are judged to be indecent or obscene and that, accordingly, section 42 is saved by the exemption provided by article 36. It, therefore, follows that this appeal must be dismissed although we recognize that this decision may cause some surprise to the proprietors of the many licensed sex shops in the United Kingdom."

'Surprise' is in my opinion a judicial understatement and it is not only licensed sex shops that will be 'surprised'. The majority of 18 and R18 rated DVDs are pressed overseas, primarily in the Far East where costs are cheaper and they have spent vast sums on automation. Under this ruling the Customs can seize a consignment of these DVDs (or Video Cassettes) if they contain a single frame that Customs consider to be indecent. And it could be months before, assuming the importer/distributor wins the appeal against the seizure, they get them back which could end up breaking the smaller distributors in court costs alone never mind the loss of trade.

But at least they have a trade association which may or may not provide legal/financial backing to fight the case. The individual, i.e. you, has no recourse to such backing and must fight this alone, in court, against a very experienced barrister that knows every trick in the book to make you lose. No blame attaches to him, he is just doing his job; it's the system that is unfair and so archaic in the 21st century. This law was brought in as a result of a moral panic in the late 1800s, led by the tabloid rag of the time the Pall Mall Gazette, that was worried about the importation of smutty images from the continent (Belgium mainly for some reason – the Pall Mall Gazette contended that Belgium was a hotbed of white slavery, which was the moral panic at that time). It has very little relevance to the modern day where the public (but not it seems our political masters) have become a lot more tolerant towards adult material. Customs still inhabit this bygone world and see anything that smacks of smut as being a danger to society. Indeed if you query them on their nonsensical application of this law they say they are 'protecting the public'. Against what exactly? Broadmindedness? Tolerance? A deeper understanding of their own sexuality?

The ramifications attaching to this judgment are immense, particularly in the civil liberties front and as such you'd have thought that there was some sort of legal precedent that actually allowed you to import material that had been classified (censored) by the BBFC. There is of course the case of Conegate V Customs and Excise (2WLR39). This case was brought by David Sullivan (of Asian Babes fame) against a seizure of inflatable sex toys which were considered obscene by Customs. He had to fight his way all the way to the High Court before (after a ruling by the ECHR) he won the case on the basis that the prohibition meant a restraint of the free passage of goods contrary to the Treaty of Rome on the basis that similar articles were legally manufactured and/or available in the UK. However the Customs Barrister successfully claimed that a later ruling in Noncyp heard by Bow Street Stipendiary Magistrate (1989 2WLR39) stated that the prohibition on the importation of obscene/indecent articles was permitted under the Treaty of Rome (in that a state could decide to ban the importation on the basis of protecting public morals) and that Conegate referred to sex toys and could not be applied to this case. The judge decided that even though the articles had been passed by the BBFC there still couldn't be a lawful trade in indecent material in the UK.

The case in question was appealed by an artist who wanted to import certain videos so he could use them as models for a series of drawings he had been commissioned to produce. The videos were recommended to him by the commissioning editor. He checked to see if the videos (which were about spanking) were likely to be seized and was confident that they wouldn't be. The legal advice he got was that they'd be covered by Article 12 of the Human Rights Act as they were to be used in the production of artistic works and anyway there was no sex in them (they were deemed obscene on the basis of a 10 second long piece of footage). The judge ruled out the application of the HRA in customs cases. Customs are evidently above the Human Rights Act, which is bizarre and very worrying. And it also calls into doubt the very future of the BBFC. Do they, in future have to get Customs clearance before they can issue a certificate or will they just issue a warning that you could be held legally liable if you are dumb enough to try and re-import a video you legally purchased in the UK which they passed (censored)?

So what can be done about it? Well it could be appealed, but the appellant does not have the legal expertise or the finances to appeal it (he did well to get that far as a private individual and indeed was praised by the judge for the submission he made) and the reason for him wanting this material has long since gone and he didn't want to get hit with more costs (the judge in this case reduced the costs claimed by Customs by a considerable amount) and no-one in the video distribution industry or any Human Rights Group seem interested so it is doubtful whether it will be. So we are stuck with it.

So the next time you find yourself standing in your holiday clothes at the side of a wet and rainy road on the outskirts of Dover, together with your granny and screaming kids, trying to hitch a ride while Customs are rummaging through your house, then praise the Almighty that you are a citizen of the 'most tolerant nation in Europe'.

You can contact the appellant via the www.inquisition21.com website.

Report from an observer in court

Further to the above account of the Customs trial, I have a number of additional notes by way of appendage as it would be nice to include just one of the most blatant absurdities in this case.

A twist in the tail

As Customs had seized the material, the artist duly notified the party who had commissioned his work to say there was a problem. No doubt aware of the strange practices by UK customs, uninvited, they simply made a new shipment. The video in question was intercepted and viewed by Customs and this time cleared for onward delivery to the artist.

The artist therefore presented the video to the judge as part of his legal case against Customs & Excise together with the original packaging which indicated it had been duly approved for importation by Customs & Excise.

At the end of the trial, the judge ruled that Customs & Excise made a lawful seizure, and that if any part of any article was deemed indecent, the entire shipment is subject to confiscation. These goods were therefore not given to the artist. The judge, gave back the video the artist had submitted as evidence, as it was entirely lawful, knowing this was the very same video that Customs & Excise had objected to and had just been seized.

It would seem the legal precedent that had just been set had been based on a contradiction, as the judge had ruled one video to be indecent and therefore unlawful and withheld it, and judged the other video to be lawful and returned it to the artist. The two videos were the same; this was known to the court, which rather begs a question or two!

There may yet be a sting in the tale as I observed that Customs & Excise made a note of the artist's license plate as he set off on his long journey home.

Court witness

Second report from an observer in court

Comedy in court

The Bench consisted of a judge flanked by two magistrates. The judge who was normally a barrister had no idea as to what the law actually was and kept asking the Customs Barrister what he should rule on.

The Customs Barrister was none the wiser, and despite quoting some criminal laws that did not directly apply to the case in question and he admitted as much, he attempted to look up the law during one of the breaks from court by
borrowing a book from the bench. Nevertheless, the judge seemed to always follow the directions of the barrister, despite the fact they were not based on the actual laws that applied to this case. The barrister even said he was happy for the judge to use the ordinary dictionary in deciding what was
obscene or indecent. It appeared there wasn't a dictionary in the court.

There were many breaks in court proceedings, primarily due to the fact that the Customs censor, a young girl called Sarah, could not either find the right video or find the frames of the video she wanted to show. In the case of the third video, it would not play at all and when something was shown in its place, even the Judge noticed this was the first video being played again.

After most of the time had been wasted while Sarah was playing with the video machine, the Judge simply requested the Customs censor take the stand and asked her if she had reviewed all the material to which she responded with a rather unconvincing yes. He then said he presumed that Customs had shown the worst material to start with which Sarah agreed with. The video with what was deemed to contain the worst scene was the same as the video
the judge gave back to the artist as perfectly legal, that is, presuming the judge did not break the law.

What was most bizarre of all was the fact that it all appeared to be done with with a splash of comedy. Some Hungarian history videos included some spanking and most of the time in court was spent looking for the spanking. No one in court looked either entertained or disturbed by the video, though
the judge was too disturbed by the descriptions of videos readily available in the shops to want to see them, despite the fact that one of them was simply rated 18. The Customs Barrister was unable to define any relevant law, the Bench did not have a clue, but the defendant quoted relevant law, provided supporting evidence, had taken every precaution not to break the law, and despite Customs & Excise suggesting that he had not quoted the Customs & Excise website that made rather a strong case against them, a
printed copy was presented by the artist to the judge and read out in court.

It all appeared to be a one off victory for the little man against the power of the state, but from what unfolded in court, it was as if the judge had ruled that white was black. Customs & Excise changed its website and an artist had a bill with menaces for £1500. What had he done wrong?

Absolutely nothing. What had Customs & Excise done wrong? According to the judge, absolutely nothing.

 

6th October

Updated 7th October

Updated 9th November

    SubStandard Research by Trading SubStandards

Internet video streaming and downloads are not covered by the Video Recordings Act nor by TV broadcasting regulations. It would be interesting to know what dubious research led to the idea that Derby Trading SubStandards could restrict websites from carrying video content.

See Piss Poor Standards at Derby Trading Standards for a fuller transcript of the meeting.

Thanks to Ian

Derby Trading Standards had us in this week about certain aspects of our site which we will gladly change in relation to distance selling regulations but hid their real agenda which is as follows:

They told us that we had to take all download content of our site, citing the Video Recording act of 1984, They seemed really pleased with themselves until challenged about their dubious interpretation of the law.

Anyway they phoned me back to  tell me that they do have the power, I eventually told them that no way were we going to take any notice of them and that they'd better do some proper research first before taking us to court over our downloads as they threatened.

But I did wonder if Derby Trading Standards have tried these unfounded bully boy tactics with any success on the less well informed.

7th Oct

    Update : Thanks to Shaun for following up the story

I rang Derby City council and suggested they do their homework before harassing decent upstanding internet traders, for possible breaches of the law. I also lamented the waste of council tax money spent on this issue.

They said that this had come to their notice because of other issues with the trader.

I suggested they were trying to impose censorship on the internet, and that was not their job. The boss of Derby City Council Trading Standards took umbrage at this, and said that censorship was not the right word and that they were just trying to make sure the law was being complied with, whatever it happened to be , and I also told them that neither the VRA nor Broadcasting regulations applied to internet content, and only the statutes pertaining to obscenity law, and protection of children applied. I said censorship was absolutely the correct word to use , and by trying to bend the law, that was exactly what they were doing. I also pointed out, that even if their position was correct, they would STILL be censors acting for the state, and they might be in conflict with the Human Rights Act.

I also said that the government had a deliberate policy of NOT wanting to impose the kind of censorship used for Video Recordings and Broadcasting, upon internet content.

It is also clear that these people, simply do not like being labeled as "censors", but that is exactly what they are, and if necessary, we should ensure that they know that truth.
9th November

    Update:

Trading standards finally came back to us, and after doing some research and have acknowledged that we are not breaking any laws and are going to leave us alone.

 

2nd November

    Belfast Rights Abusers Brought to Book

From The Irish Independent From Newsletter

The Northern Ireland Court of Appeal has ruled that Belfast City Council ignored a businessman's human rights under the European Convention when it refused to grant him a licence for a sex shop.

Lord Chief Justice Kerr also ruled that the council had breached correct procedures when it accepted late objections to a proposal by Misbehavin' Ltd for a sex establishment in Gresham Street in Belfast.

The court heard that Misbehavin' Limited had applied for a sex establishment licence on May 13 2002 but this had been refused in March 2003 after the council ruled that there was a blanket ban on sex shops in the Gresham Street area.

The council also said it was unacceptable that the proposed outlet would be near to churches and family-orientated shops.

Last September, Misbehavin' Ltd's battle with the council appeared to have been cut short after a judge turned down an application for a judicial review into the decision. Misbehavin' Ltd appealed that ruling and yesterday the Court of Appeal agreed that Belfast City Council's decision was unlawful.

Lawyers acting for Misbehavin' Limited had argued that the council was guilty of procedural unfairness in allowing late objections after the 28-day cut off period. They also claimed it had failed to allow the applicant to properly address the council on its proposal. They also argued that the council had ignored Misbehavin' Ltd human rights under the European Convention.

The court said that only one of 70 objections was received within the 28-day time limit.

The legal costs of the case will have to be paid by the city council, and these are expected to be close to £100,000.

The city council has already fined three sex shop traders for continuing to trade after they were refused a licence.

Belfast Council is now considering a challenge to the Northern Ireland Court of Appeal over its ruling in favour of a Belfast sex shop. Belfast City Council's director of legal services, Ciaran Quigley, has urged members to appeal the decision to the House of Lords. Now facing legal costs of up to £100,000, the city council is investigating the possibility of appealing the Court of Appeal decision.

Richard Gordon QC, a leading expert in human rights legislation, was instructed by Quigley to provide an opinion on the merits of an appeal to the House of Lords. He has told members he is "optimistic" about the prospects of success. A report to members states: It is Mr Gordon's view that the House of Lords is likely to grant leave to appeal even if this is refused by the Court of Appeal in Northern Ireland. The decision of the Northern Ireland Court of Appeal has potentially very serious adverse consequences for the administration of local Government and indeed for public administration as a whole.

In his summary, Gordon cites that there is a "valid argument" that Belfast City Council properly exercised its discretion to admit late objections. Members have agreed in principle to support plans for an appeal. The committee decision is due to be ratified at tonight's monthly council meeting.

 

1st November

    Misleading Justifications for Crap Law

What a crap situation we have in the UK. Mean minded and rights abusing legislation prevents people from conveniently obtaining hardcore. Then the country has to spend money on enforcing the bad law that nobody but nutters and politicians want.

It sounds like BBFC cuts to R18 were simply not reflected on DVD/video covers. It doesn't quite sound like the old trick of passing softcore off as hardcore that we has suffered for the last 30 years.

From www.surreycc.gov.uk

Dorking Magistrates heavily fined a mail order company recently (21st October) following an investigation by Surrey County Councils Trading Standards Service.

Pabo Ltd is a Birmingham based mail order company that supplies 'adult' toys and sexually explicit videos. However, it is an offence to sell R18 restricted videos by mail order, they should only be sold in a licensed sex shop.

In July 2004 a Surrey consumer purchased three R18 videos from Pabo Ltd by mail order and complained to Trading Standards that the videos were misdescribed, both in the catalogue and on the video sleeves, in that they were not as explicit as indicated. The company had not shown any interest in the consumer's complaint so the purchaser turned to Trading Standards for action.

In reality to achieve a BBFC certificate the videos had to be cut from their original European content. It was, of course, the very explicit scenes that were removed but that was not reflected in the catalogues or on the video sleeves.

The Company pleaded guilty to four offences of supplying R18 videos by mail order and were fined £10,500. They were also fined £4,000 for applying a false description to the videos. In addition they were ordered to pay £74.98 compensation to the complainant plus £2044.75 prosecution costs, a total of £16,619.73.

Peter Denard, County Trading Standards Officer, said; Consumers are often embarrassed to complain about purchases such as these and companies can therefore take advantage of them. It is up to Trading Standards to protect consumers from misdescribed goods, whether that be a 'clocked' car or a counterfeit garment, and all legitimate complaints will always be investigated and appropriate action taken.

The legislation concerning the sale of R18 videos is designed specifically to ensure that these products do not fall into the hands of underage children and therefore it is illegal for them to be sold by mail order. We view these offences very seriously and clearly, so do the Magistrates.
[so why don't they allow variations on mail order where age can be properly verified? this legislation was designed to impose state control on what adults can view...the issue of children is just an excuse].

 

15th October

    Censorship by Mail

The House of Lords has refused leave to appeal in the case of Interfact vs Liverpool Trading SubStandards reported here previously, see State Remain Licensed to Oppress . Liverpool Trading Standards are contending that mail order R18s are illegal even when the transaction occurs in a licensed sex shop.

So Interfact are now going to pursue this case in the European courts.

Lets hope this can actually challenge the very fabric of the Video Recordings Act. I have no idea how the VRA can survive in a country that is supposed to have freedom of speech. How can any media be banned just because it is not sanctioned by Government appointed censors? More like China or Burma than a supposedly free country.

 

11th October

    The Only Vice is a Waste of Police Time and Money

Based on an article from Harrow Times

A Stanmore man has been sent down for keeping brothels for prostitution at Southwark Crown Court on Friday last week.

Johnny Romana pleaded guilty and was sentenced to 15 months imprisonment. Officers from the Metropolition's Clubs and Vice Unit had arrested Johnny along with three other men for their involvement in prostitution. This followed a ten-month intelligence led operation codenamed Operation Parque, where officers issued nineteen search warrants at addresses in north and northwest London.

Johnny was charged along with three other men on February 24 after police uncovered their involvement in controlling prostitution.

Superintendent David Eyles, in charge of operations for the Metropolition's Clubs and Vice Unit said: The Clubs and Vice unit will continue to crack down on the structures that support and coerce London's vice trade. I hope that this sentence will send out a message to those people who continue to drive this trade in London.

We are committed to channelling our work in to disrupting and eradicating the exploitation and victimisation of vulnerable women who are used as a commodity for others to make money out of.

 

17th September

    Human Rights Abusers Found Out In Belfast

The Belfast Council made it clear that they were putting there own moral views ahead of the law by operating a blanket ban and have rightfully been found out to be abusers of their authority. They should also be forced to compensate the shop for trade lost due to the unlawful licence refusal. Perhaps the councilors themselves should be surcharged and made to pay out of their own pockets.

Based on an article from News Letter

An appeal court ruling in favour of a Belfast sex shop owner could set an important precedent, a city councillor warned last night. Belfast City Council was found to have ignored a businessman's human rights when it refused to grant him a licence for his sex shop, Miss Behavin'.

Lord Chief Justice Kerr also told the Court of Appeal that the council had not followed the correct procedure when it accepted late objections to a proposal by Miss Behavin' for a sex establishment in Gresham Street.

The shop's owner applied for a licence in May 2002 but it was refused in March 2003 when Belfast City Council announced a blanket ban on sex shops in the Gresham Street area.

The council also said it was unacceptable that the proposed outlet would be near to churches and family-orientated shops.

In September last year, Miss Behavin's battle with the council appeared to have been cut short after Mr Justice Weatherup turned down an application by the company for a judicial review into the decision.

But Miss Behavin' appealed the ruling and, yesterday, Lord Chief Justice Kerr, Lord Justice Shiel and Mr Justice Hart agreed that Belfast City Council's decision was unlawful. The Lord Chief Justice said legal costs will have to be paid by the city council and these are expected to be in the region of £100,000.

Yesterday lawyers acting on behalf of Miss Behavin's owner welcomed the ruling but the shameful Ulster Unionist Jim Rodgers said a deeply worrying precedent had been set. The human rights excuse is being used left, right and centre and I will be asking for a report on this. It is absolutely horrendous. Human rights has gone mad. I'm all for human rights being protected but.. I don't think this ruling is in the best interests of the city.

A spokesman for Belfast City Council said: The council only received the judgment earlier today. It is a lengthy and complicated document, which currently is being considered by the council. Therefore, the council has no comment to make at this time.

 

7th August

    Substandard Persecution

Persecuted for what? The films were perfectly legal, no-one has suggested that they were sold to children and no-one seems bothered by any copyright issues. So all the small minded people of trading substandards achieve is to re-enforce state censorship restrictions that surely are illegal under European Human Rights and which: foster an environment of dodgy council decisions; encourage a black market in a very popular product; and result in peoples lives being unnecessarily ruined by unjust persecutions.

Based on an article from the Yorkshire Post Today

Trading substandards officers in West Yorkshire made their biggest-ever seizure of pornography after raiding a commercial unit where a businessman was running his own porn duplication operation.

Copying equipment and 4,800 DVDs and video tapes were confiscated either from the commercial unit used by David Smith, in Wakefield, or his home when officers followed an anonymous tip-off.

Leeds Crown Court heard paperwork found also revealed Smith had built up a potential client list of more than 14,000 people across Britain and had made an estimated £200,000 in income over seven years.

But Smith's solicitor advocate Richard Reed told the court that the former porn dealer was financially ruined following the collapse of his legitimate sunbed firm and physically and mentally shattered as a result of suffering injury in a nightclub assault.

Smith was given a four-month jail sentence suspended for 18 months after he admitted three charges of supplying unclassified videos and five offences of possession with intent to supply.

Sentencing him yesterday, Judge Rodney Grant said they were serious offences. It is perfectly plain that in the 1990s you decided to turn your considerable organisational ability to crime because that is what it was.
But he said he had taken into account that the films would have been granted appropriate classification had it been applied for, apart from some title changes, that Smith was now financially ruined and through his physical condition in no position to repeat his offending.

Nick de la Poer, persecuting, said a trading standards officer made a test purchase of three videos at Smith's unit on the Wakefield Commercial Park at Horbury Bridge in July last year following an anonymous complaint.
The films should have been properly classified for potential viewers, which they were not, he said, and such pornography could only be sold through licensed sex shops. Smith had no licence and would not have been granted one.

 

15th July

    Mail Order R18s Sent Packing

I have heard that Pabo and Interfact have been denied leave to appeal to the House of Lords (ie they've been denied leave by the High Court). However, they can still apply to House of Lords directly and I understand this is what they plan to do.

In fact they need to do this before they can take their cases to Europe, which I believe they will do if they fail in the Lords (which is pretty likely). Getting the case heard in Europe will take at least two years and could conceivably take considerably more time than that. In the meantime, the mail order prohibition will remain unchanged.

 

17th March

Updated 1st May

Updated 16th May

Updated 26th May

Updated 27th June

Updated 21st July

    Intent to Supply Injustice?

Presumably the material available on SexView that is deemed obscene by the authorities is fisting and urolagnia (pissing in a sex scene).  Surely harmless and consensual activities, particularly as these were recordings are from European licensed channels. I guess juries could still declare these to be obscene but the authorities never really seem to like to push it to a contested trial as maybe they don't like the precedents set if they lose.

Also not that politicians, prosecutors and police bang on about the protection of children. In this case children simply have no bearing on the case. Yet this proves no mitigation to the persecutors. I don't think the establishment have much interest in children , they just use the kids as a convenient handle to justify their vindictive and repressive laws.
Merged from Braintree's posts on the Melon Farmers Discussions

I was selling DVDs recorded from Sexview, SCT etc. This was over a year ago. Extasi was not even there at the time. They rumbled me by answering my newspaper ad. Everything they bought or was offered was blank discs with satellite recordings. They were charging me with 7 satellite recordings under the VRA. 3 of the satellite recordings they deem to be obscene, but counsel and I have to view them to see what they are calling obscene.

However, when they raided they found one scat and one animal DVD in addition to about 30 Ben Dover type titles. They have charged me with possession with intent to supply of the scat/animal ones, even though I never supplied, or offered to supply any pre-records, let alone material of that extreme nature. Their "evidence" is that as I supplied those TV recordings I was obviously going to sell the prerecords (3 obscene ones) despite never supplying prerecords EVER, and never supplying material of this extreme nature (all supplied stuff was from satellite).

6 months later the police raided again, having moved from VRA to OPA and they found 16 satellite recordings that I had done after the initial raid. However, they were never offered or intended for sale, but they have still charged me with 4 of them "intent to supply".

The whole thing stinks. I have held my hands up and admitted the 7 charges of selling satellite recordings but that's not enough. The CPS refused to accept my Guilty plea of 7 charges of supplying DVD's recorded from various Euro porn channels. The other 14 charges relate to DVD's seized by the police 6 months later and a bag of prerecorded discs found in my house.

Even my counsel was implying that pleading guilty to all charges and saving the cost of a trial was a good way to go, as I could not rely on any jury being sympathetic towards me. I am lead to believe that if I am found guilty after trial I may go to prison if I do not give early guilty pleas. I can see how miscarriages of justice happen if this pathetic charade of "Justice" is what happens in courts everyday.

I do not want to plead guilty to offences I am not guilty of. The fact that I bough a new DVD recorder one month after my original one was seized "implies" that I continued selling, according to Plod. How can you escape this kind of moronic thinking?

Counsel seemed to think the banning of EXTASI works in my favour as it shows that Ofcom and the Government have never said that any of the channels I recorded from were unacceptable-so how can they be showing obscene material?

The frightening thing is, from what counsel says, it all depends on the jury. Great. The fact there is zero evidence to support the charges of intent to supply the obscene discs or the 16 subsequent satellite recordings from my garage (apart from the fact I replaced the DVD recorder and satellite receiver) does not seem to matter. Counsel says its circumstantial evidence. But surely that does not prove" beyond a reasonable doubt" that they were for supply.

If I had faith in the Justice system I would know that only 7 of the 21 charges would stick as they have no evidence of the rest, but as I get further into this mess it seems that the outcome of my trial is based on a system similar to the National Lottery. I need some super high paid London lawyer who can pull their case apart.

One more pertinent fact before I go off to contemplate a prison term, one of my 21 charges was for an offence under the Obscene Publications Act in relation to Ben Dover's Anal Spunkfest . As pointed out before ,this has an R18 certificate in its uncut state. I believe my DVD was a US one. Now some UK Ben Dover titles show girls pissing, but as its not over anyone they pass it. Now even these scenes are cut from the US versions, so could the CPS really be stupid enough to have put it under the OPA due to the extra 4 minute running time resulting from the PAL/NTSC frame rate difference? Its going to be fun asking them to show me what extra footage there is over the R18 version to make it obscene.

I wonder if C4 or the BBC would be interested in this shambles. Can't be many obscenity trials these days

Update 1st May:

Viewed DVD`s today and as expected offending material was fisting and pissing.
3 of the 4 charges (including Sticky Side up and Anal Spunkfest ) were incorrect and the material related to the second film on each of these home recorded discs.

So there was I in Crown Court expected to plead to charges relating to films that were not even in the case. This case should be thrown as for the sheer incompetence of the CPS. So 3 of the charges I cannot plead guilty to anyway, but counsel says they will simply add new charges relating to the correct films.
Disc 1 was a sexview recording with a very brief (less then 5 minutes) of a woman pissing on another man and woman.
Disc 2 was an Ultra Blue recording of a woman fisting herself.
Disc 3 was also sexview and was a man pissing on a woman.
Disc 4 is interesting. While the material contains a man with 2 fists up his arse simultaneously, then a foot, the recording is from Extasi. Now I know that I never had Extasi when TS performed the original raid. When the police came months later, paperwork they stole included a receipt for a new sat receiver and on the same receipt an Extasi card. So the disc was never sold and was recorded after I stopped selling. I`m sure that if Extasi were even broadcasting by 11/02/04 their card ads had not appeared.

Am I right in thinking that R18 allows anal penetration by dildo?

Now if I go to trial and rely on a jury, I`m not sure they would disagree that the urolagnia and fisting are not obscene. While the BBFC happily pass DVD`s of girls pissing, they still class pissing during any sex as obscene. Taking the piss or what!

From The Melon Farmers' Forum , Kit Ryan  27-Apr-2005:

It`s bizarre that they are trying to do you for possessing videos of activities that aren`t illegal to perform in the privacy of your own home. Urolagnia has even been referred to in an episode of Sex and the City for goodness sake. A brief look at the BGAFD site shows how common this activity is in UK-made films (although they are then edited to get an R18 classification). Perhaps it might be useful to get a list of some of these films (including the notes that appear on the site) to show that this is an accepted activity elsewhere in Europe.

Anal penetration with a dildo is certainly allowed under R18. It was even shown quite a few times on the Playboy channels when they had a brief flirtation with showing lesbian R18 episodes (particularly the Sandy Babe Abroad episodes). I don`t think the BBFC make any distinction between vaginal and anal sex.

I presume you know about the case of R. v Perrin that others have referred to. In this case the appellant was found innocent on two counts of coprophilia (far stronger than the material you had in your possession). He was only found guilty on a charge relating to material that was available to anyone (as a trailer). Indeed the judge made reference to the fact that this material was available to the young and vulnerable as part of the reason for dismissing the appeal (this does not seem to apply in your case):

www.bailii.org/ew/cases/EWCA/Crim/2002/747.html

Update 16th May:

I have been "forced" to plead guilty to 3 Obscene Publications Act charges as a final offer to avoid a trial. By forced, I mean my solicitor recommended that this was a way out of the trial, possibly.

As I will face 21 charges if a trial occurs I cut my losses. But it depends if the CPS accept it. If they don't I will plead not guilty to these 3. It is quite obvious that many extraneous trumped up charges have been added, along with extra charges for which there is only circumstantial evidence in order to get me to plead guilty to certain charges. The regulations strictly forbid this practice but it does not help at all.
Innocent until proved guilty is total bollocks, and needing to be proved guilty "beyond a reasonable doubt" is also.
My solicitor said he clarified the law on what is obscene, urination is fine, but if it touches another person at any point then its obscene. Ridiculous. He also clarified the BBFC definition of fisting. So its fine to insert 5 fingers up a woman on screen, but if it goes beyond the last knuckle then suddenly its obscene.
I commented that I would expect a jury to see the stupidity of the law, but my solicitor said "the law is the law" and if the judge directs the jury you cannot win. So much for trial by jury.

Melon Farmers: One must point out the at the Obscene Publications Act does not spell out exactly what is obscene. Therefore the solicitor's clarification can only be based upon the opinion of the police or Home Office as to what is obscene. This is hardly a clarification of the law.

Update 26th May:

The CPS have accepted my guilty pleas so I suppose that means another "successful prosecution" against urolagnia and fisting.

All that remains now is to see what happens when I attend court to plead guilty. There will be a pre-sentence report but I hope its not an "all options" one as that indicates the possibility of prison

Update 27th June:

Had to visit a probation officer this week for my pre-sentence report and I have to say what a load of old bollocks it was.

He was asking about my opinion on the morality of porn, Did I feel responsible about creating a market for the stuff? and what do I think about the actors and actresses in porn? How would I feel if my daughter was in it? whether I would allow my kids to watch it at 18? (as if I had any choice) and other claptrap.

I may not have helped my cause by saying I thought it was a lot of fuss over nothing and not really expressing any remorse about it. I simply admitted that I had mistakenly followed other who seemed immune to the law, and shops that continue to this day to sell (non porn) unclassified dvd`s over the counter everyday.

I told him that had TSO advised me on their first or second meetings that they found the trading unacceptable then that would have been the end of that.

Anyone who finds themselves in a similar situation should follow my advice and offer no cooperation with any investigating agency whatsoever, despite the new warning issued by police on arrest. Stick to your right to silence until you get to court. My "cooperation" with TSO and police simply resulted in them using it against me. And if you end up at a probation office,just tell them what they want to hear. The truth don't cut it

Update 21st July:

Braintree was sentenced to four months in prison (pretty near automatic that he will serve two months)

 

19th July

    Perverse Persecution

This outrageous perversion of justice goes to show that one simply cannot trust the enforcement services. Some of these extreme measures are brought in with the excuse of drug dealers and terrorists only to use on the most minor of infringements.

The shop owner had been turned down for a licence probably on some trumped up excuse used to hide inadmissable personal religious reasons. Then what exactly is the crime? Selling videos that would be perfectly legal to sell had the licence been granted. The intention of all this bollox legislation was to ensure that children cannot buy hardcore. If the shop had been ensuring that children didn't buy, then even the spirit of the law was being followed.

It is perfectly legal to sell similar material via the web, via foreign satellite services, from foreign shops, from licensed UK shops. I hardly think that it can be now considered a serious crime. Unlicensed shops are now even allowed to sell similar hardcore material in a slightly different more artistic context, eg 9 Songs.

And to think that this 'serious crime' equally applies to a carer buying an R18 on behalf of a disabled patient unable to visit a shop in person.

Shame on the Crown Persecutors of Aberdeen.

Based upon an article from the Daily Record

A sex shop owner faces having almost £200,000 seized after admitting the sale of illegal porn videos. The powers are usually used to seize drug dealers' assets.

John Baigrie says he will be ruined by the legal move under the Proceeds of Crime Act. Baigrie runs two unlicensed sex shops in Aberdeen. He has twice been refused a licence.

At Aberdeen Sheriff Court last week, he admitted intending to deal illegally in pornographic videos and faced confiscation of his collection. The Crown has also served him with Proceeds of Crime papers to claw back what it claims are ill-gotten gains from his criminal lifestyle.

Baigrie says the listed assets include his two-bedroom semi in the Bridge of Don area of Aberdeen, a home he bought for his father, his car and his shop. He says that he worked hard for 30 years to buy his house.

He said he can't understand where the figure of £200,000 comes from. He maintains he did not make anything like that selling videos, adding: It's just a nightmare. I am still in shock.

When he appeared in court last week, Baigrie admitted nine offences after he was caught with 252 videos that had not been legally classified. He also had 340 recordings that were classified R18 and should have been sold only in a licensed sex shop.

After he admitted the most recent charges, the case was continued for background reports until August 12. He must appear at court on August 26 for the Proceeds of Crime proceedings

 

28th  June

    The Vindictive State of the Nation

Another case of a vindictive state attitude to a minor crime. A crime that has past it sell by date and is now nothing more than state sponsored human rights abuse. Anyway, if anyone has experience that can help a fellow melon farmer then let me know:

I would like to hear from anyone who has got experiences of Trading Standards where they have been warned to stop trading or face prosecution, also from people who have traded from home and been raided, especially those with children and whether they have been threatened with Child Protection issues. All info would be appreciated as we will be able to use it at trial:

In 2003 my father was found to be in need of regular hospital treatment. I was also told I was being made redundant. I decided to try and work for myself from home and thus be able to take my father to hospital.

I saw a site on the net offering to sell adult DVDs at £4 each wholesale, and thought there was a good mark up to enable me to pay the mortgage and keep 4 kids while having the flexibility of running my dad around. I formed a limited company with my wife as company secretary. As my wife was a social worker with young adults, she wasn't happy with me doing this unless it was legal.

The guy selling wholesale said I would need a sex shop license to sell on the net. I contacted the local council to request the application form. My wife also phoned the council afterwards, and spoke to a member of the licensing department. She was told I didn't need a license to sell adult DVDs aver the internet.

I sent the local licensing office an email, asking them to confirm it. The head of the licensing department replied, saying he didn't think we needed a license as selling over the internet as he wasn't sure if it constituted a sex establishment. He advised contacting a solicitor, which we did, who advised us that the best people to ask where the local licensing office.....

I started trading in Dec 2003 from home, using a spare room and keeping all DVDs in a locked filing cabinet. The children weren't allowed in the room and weren't aware of my business.

In August 2004, I was raided by Trading Standards and the police with a search warrant. The confiscated all the DVDs, two computers and all the paperwork they could find. They told me they had been aware of me trading since January, due to an anonymous tip off, but hadn't done anything about it due to lack of manpower. They had also conducted 3 test purchases.

As soon as they told me what I was doing was illegal, I removed the website (the same day they executed the warrant), I also willingly gave them access to my financial records.

I was interviewed in October by Trading Standards, who said we had been extremely cooperative. When I asked about the likely outcome, the Principle Officer said she had input to what action the legal team takes. There were some discrepancies in the interview, they were under the impression that I handled 133 orders a week, but it was actually 133 a month., but as they had the computers with all the records on it, I couldn't dispute it at the time.

When my wife went for her interview, it became apparent that there was an ulterior agenda behind it. My wife works for the same council as Trading Standards, and because she has lupus, and had been pregnant with our 4th child, was on long term sick. At her interview, the Trading Standards officer told her they had informed her boss, because the TSO had made a personal and moral decision based on the fact that I sold adult DVDs, and my wife worked with Young Adults.

My wife was suspended from work.

We received summons' in May 2005 to say myself, my wife and the company were being charged with 9 counts of supplying R18 and one unclassified, with 918 other charges taken into account.

My wife and since been subject to an internal investigation. She attended an interview last week in relation to the charges, and for 'any other matters'. we paid £600 for her to be accompanied by an employment solicitor. Their investigation had to prove that my wife was actively involved in the running of the business - which she wasn't. I had already told Trading Standards in my interview that it was me who ran the business, ordered all the stock, sent the DVD's out etc.

At her interview, they glossed over the charges (though Trading Standards had thoughtfully provided them with a summary of her interview), and told her they thought there might be some child protection issues surrounding our children as I had adult DVDs in the house -this after nearly a year since the execution of a warrant, and her employers being informed. Luckily the solicitor terminated the interview, and concluded they were scraping the bottom of the barrel if they were resorting to these tactics to force her to resign/be sacked.

We now have a magistrates hearing booked for early July, where we are both going to plead not guilty, and move the case to crown court.

As an aside, in the 8 months I was trading, I had the police round my house, in my office three times as I had been ripped off by stolen credit cards. The police knew what I did ( I told them!) and that I did it from home and that I had 4 children. None of the officers seemed concerned.

 

3rd June

    SubStandard Law

From The Islington Express

Two video shops found selling more than 900 hardcore sex tapes have been fined a total of almost £6,000.

Police and trading standards officers from Islington Council raided The Bookshop and Bookshop Videos, both in York Way, King's Cross, to discover hundreds of unclassified and restricted R18 pornographic videos and DVDs.

All films should carry a classification as set by the BBFC. R18 films can only be sold at licensed sex shops. Neither of these shops had the necessary permit.

Anthony Putnam, of Essex, pleaded guilty to nine charges at Highbury Corner Magistrates' Court and was fined £1,600 with £228 costs. Ballaction Ltd, the company responsible for The Bookshop, was fined £4,000 with £1,000 costs for the same offences. John Camilleri, who runs Bookshop Videos pleaded guilty at the same court to six offences. He was fined a total of £300 with £200 costs. Charges against another man were dropped.

All the sex films were handed over to the council, which will now destroy them.

Shameful Councillor George Allan (Liberal Democrat), Islington's executive member for public protection, said: The recent prosecution is another success for Islington Council's trading standards team, who are fighting a battle against retailers selling unclassified videos in the borough. We want to make it very clear that retailers must not sell unclassified videos. We will continue to prosecute those who break the law.

 

27th May

    Anti Social Injustice Orders

From The Guardian

Anti-social behaviour orders are increasingly being used against prostitutes as a "quick fix" way of clearing women off the streets, campaigners warn. Probation officers and those who work with prostitutes say the orders have effectively brought back jail sentences for offences such as loitering and soliciting, which have been non-imprisonable for more than 10 years. Breaching the orders, brought in six years ago, is a criminal offence punishable by up to five years in jail.

Cari Mitchell, from the English Collective of Prostitutes, said: Asbos are being used as a quick way to solve deep problems without dealing with the core issues. In some cases it is inevitable that they will be broken, meaning that, in effect, Asbos have reintroduced prison for an offence which is not imprisonable.

A full picture of the scale of their use against prostitution is almost impossible to establish because the Home Office, and many of the police forces where the orders are most heavily used, does not break down its figures according to the types of behaviour for which the orders are served. A review by the Home Office three years ago found that 5% of Asbos dealt with prostitution, though this figure only represented a "selection" of the case files examined.

Harry Fletcher, spokesman for the probation officers' union Napo, said: What probation officers are reporting is that in the last six months or so, Asbos are increasingly being used in circumstances where they are wholly inappropriate. Some local authorities, in conjunction with police, are using them as a way of clearing the streets of people whose behaviour is undesirable, but not antisocial. The actual offence of prostitution is not imprisonable, but we are ending up with people facing up to five years in prison for it."

It's an absolute scandal, said Matt Foot, a solicitor who set up the campaigning group Asbo Concern. We decided a long time ago that, as a civilised society, prostitutes should not go to prison.

Asbos were introduced under the Crime and Disorder Act 1998. They can be served against anyone over the age of 10 for acting in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household.

Government figures show that 42% of the orders are breached and 55% of those who do so receive a custodial sentence. A spokeswoman for the Home Office said Asbos were successful in reducing some forms of antisocial behaviour, but admitted they might not address prostitution effectively.

 

23rd May

Updated
25th May

    State Remain Licensed to Oppress

The judgment for the recent High Court hearing concerned with the legality of R18 Mail Order was duly delivered to day by Lord Justice Maurice Kay & Mr Justice Newman. They dismissed the appeals of both Interfact and Pabo. This means that R18's cannot be sold by mail order and that purchasers must turn up in person at a licensed sex shop.

In particular the High Court rejected the argument that an internet, telephone or letter sale processed in a licensed sex shop can be considered as supplied from a licensed shop. The judges argued that the scope of the  term 'supply' was wider than just the financial transaction and included the delivery to the purchaser. So it could not be said to have occurred in the licensed premises.

It was also argued that a mail order brochure is an 'offer to supply' outside of a licensed sex shop and so by the same arguments as above is prohibited under the Video Recordings Act.

The judges did not accept that the restrictions on sales of R18 were an infringement of the European Convention on Human Rights because they felt that the ECHR gave sufficient leeway to the Government to impose licensing restrictions for the protection of children. The fact that importing R18s via mail order from abroad allows circumvention of the restrictions was accepted but this wasn't accepted as a reason for removing domestic restrictions.

It is believed that this case will now be taken to the House of Lords.

The full judgment is now online at:

www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2005/995.html

See also IanG's insightful response

 

21st May

    Judgment Day

Thanks to Kit on  The Melon Farmers' Forum

I wonder if there is any coordination between this judgment and the possibility of R18 on pay TV. It would seem increasingly ludicrous to ban mail order of R18s whilst broadcast is allowed. Another inconsistent scenario is that by allowing R18s by mail order chips away at even the tenuous reasons that Ofcom have to ban R18s. They have previously made the point that Parliament legislated to only allow R18s via restricted premises and hence broadcast may be against the spirit of the VRA.

Whilst thinking about the illogical mature of the VRA, I was wondering if a good attack on the restriction of the supply of unclassified material would be to take out a private prosecution of a notable victim like Tony Blair for supplying TV recordings to his kids. Or possibly prosecute the BBC for sending out review tapes to TV critics. Or possibly BAFTA for sending out tapes that are up for awards.

The judgment for the recent High Court hearing concerned with the legality of R18 Mail Order will be delivered this Monday 23rd May

COURT 2
Before LORD JUSTICE MAURICE KAY and MR JUSTICE NEWMAN
Monday 23 May, 2005
At a quarter to 2
FOR JUDGMENT
CO/2652/2004 Interfact Limited v Enviromental Health And Trading Standards Division

FOR JUDGMENT
CO/3403/2004 Pabo Ltd v Liverpool City Council

 

11th May

    No Legal Reasons to Delay Hardcore on Satellite

It is good to know that a contributor from the law industry reckons that Ofcom have no legal justification for maintaining a ban on hardcore.

Based on an article f rom Legal Week by Jason Chess, a partner at media and technology specialists Wiggin & Co.

The speed of technological change coupled with an uncertain regulatory regime have created opportunities and obstacles for providers of electronic content. The changes currently playing themselves out in the electronic content retail industry — companies that offer consumers films, TV, radio and web content — are truly seismic.

Not only is the entire business landscape transfiguring itself into something completely new as the result of technological change but, at the same time, a radical revision of the main regulatory code of the regulator is underway.

The availability of broadband opens the way for a viable content retail business in addition to the existing feeds from satellite, cable and a resurgent digital terrestrial offering.

The technical possibilities are one thing. Getting consumers to kit themselves out, log on and hand over credit card details to enjoy high speed connectivity is, of course, another. That is where content matters. As the pioneers of cable TV discovered, it is no good spending billions on installing advanced distribution technology between you and the viewers if you have nothing that they really want to watch. Although there are ABC1 households for whom The Blue Planet is a good enough reason, no-one is under any illusion that the really big money-spinners are pornography, gambling and sport.

In the area of pornography, the crucial business determinant of statutory regulation is currently unclear. My clients know what their customers want — and know they can provide it at a profitable rate — but the business security of an objective regulatory regime is not there yet. This represents risk — and they are already feeling the pain. The frustrating thing is that OFCOM is actually very understanding of the issues; it is just that they are taking a frightfully long time to get the new Broadcast Code agreed and issued. In the meantime, the industry labours under the rules of the old 'legacy' regulator, the ITC.

Taking 'adult content', there is a highly lucrative television market for this, currently supplied by a number of channels distributed via satellite, cable and DTT. These channels currently operate under the old ITC Programme Code, which provides that only 'soft' adult content may be broadcast, broadly equivalent to '18'-rated film content. There is guidance as to which acts and parts of the human anatomy may or may not be shown, how closely and in what circumstances.

So the OFCOM-licensed television broadcaster is placed at a massive disadvantage by this regulatory stance because 'R18' content (i.e. 'hard' adult content) may be hired from licensed sex shops and of course, is on tap on the internet. The viewer, therefore, has a choice of 'hard' adult content at about £2-£3 per night from the local adult shop or the web, or else a bit of (comparatively) demure slap-and-tickle from the pay-per-view menu of a television platform provider for £7 or so. It will come as no surprise that broadcasters are missing out on a major revenue stream due to a regulatory inconsistency and view this as unfair.

Consider the incongruity. The BBFC is quite happy, apparently, to trust adults to hire R18 VHS tapes or DVDs and to take responsibility for keeping their contents away from the eyes of children. This is despite the fact that these are unencrypted and can be inserted into playback machines at any time of the day or night. On the other hand, broadcasters, who only accept orders from adults possessing those credit cards only issued to the over-18s, who confine their broadcasts to the hours after 22.00, and who encrypt their services only to be unlocked by inserting a special PIN number, are limited to only showing the tamer class of content.

Neither does this irregular regulatory playing field have any convincing legal basis. The relevant European law is that nothing should be broadcast that adversely affects the moral development of minors. The protection of minors having been accomplished (by the sort of steps described above) there is (other than the obscenity laws) no restriction upon what consenting and informed adults elect to watch, as anyone who may have stumbled upon some of the late night European services will know.

OFCOM asked for input on this issue and received a variety of responses. There was opposition to the broadcast of R18 material in principle from some contributors, but the average viewer seems less concerned with clearly identified, labelled and segregated adult content confined to its own place on the navigation tools than with some of the 'challenging' material broadcast on some mainstream terrestrial channels. OFCOM understands this and, could it but get the new regulations issued, it is expected that this would be reflected.

OFCOM for its part struck the right note in the preamble to its draft code, "broadcasting and freedom of expression are intrinsically linked", it said. From this comes their 'light touch' guiding regulatory principle. This is all eminently good sense but the media industry needs OFCOM to stick to it and to get the regulations into effect promptly.

 

30th April

    Criminal Waste of Police Resources

A very biased article using loaded words such as "gang" and "laundering". This is a non-crime purely down to the bollox law that allows local authorities to deny sex shop licences on a whim. Any adults only shop should be allowed to sell adult consensual hardcore with no requirement to get material pre-approved by Government approved censors. Anything else will lead to the injustice and waste of tax payers money outlined below.

I seem to remember that the draconian seizure of assets was supposed to be used against serious crime. What is so serious about selling hardcore in an unlicensed shop?

Based on an article from This Is Local London

Police have seized almost £350,000 from a London group who made counterfeit hardcore pornography videos. John, Mark and Michael Garratty were sentenced in January for illegally producing and distributing hardcore pornography and laundering their proceeds.

The Garratty's ran three unlicensed sex shops for four years in Sydenham Road, Sydenham; Victoria Park Road, Hackney; and Kingston Road, Wimbledon, using these shops to sell their copies.

Their copying operation was carried out at a base in Greenwich, where police seized over 60 video recorders; over 5,000 videocassettes; an amount of computer equipment; over 200 DVDs; a number of DVD players and a number of "master tapes".

Detectives traced a bank account used by the three men which had been opened using a forged driving licence.

On April 22 at Wood Green Crown Court John Garratty was ordered to pay £282, 845 and Michael Garratty was ordered to pay £66,829.

Superintendent Chris Bradford, in charge of operations for the Met's Clubs and Vice Unit, said: This case is an excellent example of hitting criminals where it hurts them most - in their pockets. This money was made purely as a result of their criminal activity. My financial investigation team have worked closely with the officers from the Obscene Publications Team, combining their information and intelligence to bring this case successfully to court. I thank them all for their hard work.

 

28th April

    SubStandard Laws

From Mark.

I never realised that Trading SubStandards had limited jurisdiction and Mark's query has flummoxed me. Does anyone know the law well enough in this area to offer Mark suggestions.

I was an adult retailer in Nottingham from 9th April 2001 to 3rd Novemeber 2004.

After endless battles in court and prosecutions brought about by Nottingham Trading Sub-Standards I was basically forced out of my business where I traded as a sole trader.

I never applied for nor was I in possession of a sex establishment licence as I felt that there was no need for a licensing system as this is reppressive and unwarranted. I cannot understand that in this so called democratic society that the BBFC cannot include hardcore to that of R18 material onto a normal 18 certificate, because no matter what the content is you still have to be 18 to buy it.

On the 18 September 2003 my home was raided by the Nottingham Anti-Vice Squad. A warrant was issued to search my home under the Obscene Publications Act 1959. They raided on suspicion that I was dealing in obscene material from my place of residence. Also in attendance merely acting as observers were 2 trading standards officers. No one else in the house was there except me. My partner had gone out shopping with friends. After 10 mins of them entering my house under warrant they whisked me off to a police station. So that left them in my house with no one supervising the search.

Whilst under custody at the police station I was visited by a police officer who asked me for the alram codes to my place of business. They informed me that Trading standards were carrying out a raid. The raid was under warrant in accordance with the Video Recordings Act.

Now after 9-12 months after these 2 separate raids the police after many interviews and after consultation with the CPS dropped all charges relating to the Obscene Publications Act.

Admittedly during the search of my house the police came across a lot of R18 dvds and videos which were stock for my shop. They obviously could not class these as being obscene nor did they have any evidence that I was supplying from my house or they would have prosecuted. But in their wisdom and in dirty dealings with the trading standards, they passed all my R18 material to the trading standards who then successfully brought charges against me in relation to the house when it wasn't their jurisdiction and I was fined £1000 ordered to pay £1500 in court costs and given a 2 year suspended sentence.

Were the police acting lawfully in doing what they did and did the trading standards have the right to take my property given the fact the police should of technically returned all to me?

I am currently in the process of appealing my decision to the crown court and then onto the high court and after that I am taking it further to the European court of human rights of fundamental freedoms claiming that the rights afforded to me under the convention have been violated alleging an abuse of process.

The rights I'm stating that have been infringed are:

Article 1 of the 1st Protocol
Article 6
Article !0
Article 8

I would value your opinion and any input that may help, advise or guidance that may strengthen my case.

 

27th April

    Police ASBO Brutality

Talk of overkill. The community should send the police to Coventry for a totally disproportionate response to minor misdemeanor.

Based on an item rom West Yorkshire Police

Leeds Police are issuing leaflets to local residents in Chapeltown in the coming weeks, asking them to act as their eyes and ears to protect the area from a prostitute.

In March, a woman was issued with the first Anti-Social Behaviour Order (ASBO) for prostitution resulting from a criminal case in Leeds, after being found guilty of loitering for the purposes of prostitution, which is believed to have caused harrassment, alarm and distress to local people.

Leeds Magistrates Court heard from West Yorkshire Police and local people about the affects the woman's behaviour had on Chapeltown. This resulted in a five-year ASBO which prohibits her from:

• Engaging in conduct likely to cause harrassment, alarm or distress to anyone in West Yorkshire
• Loitering or soliciting for the purpose of prostitution anywhere in West Yorkshire
• Entering or attempting to enter a area between Harehills Lane, Roundhay Road, Barrack Road and Chapeltown Road unless for reasons of a medical emergency or to attend a pre-arranged medical appointment.

Leaflets will be distributed across Chapeltown over the next few weeks, giving details of the order and dispaying a photograph of the subject and a map of areas she must not enter. They also inform residents to contact police if they see her breaching these conditions.

Chief Superintendent of disproportionate punishment Howard Crowther said: We will be distributing leaflets relating to people who are the subject of Anti-Social Behaviour Orders whenever we are justified in doing it. People engaging in this sort of behaviour need to realise the consequences. ASBOs can severely restrict a person's freedom, for example from prohibiting them from going to certain places or from associating with certain people. Anti-social behaviour escalated in Chapeltown not only through the subject's own behaviour but through those that she attracted into the area. By addressing her needs, the area will be able to build on recent improvements.

 

14th April

    Fundamentally Flawed Video Recording Act

You would think that it was the politicians job to protect the British public from crap and unworkable legislation. As Ian points out many video/DVDd recorded off the TV are illegal to give to your wife or friends. Giving R18's as Christmas presents is also illegal.

I was just recently chatting about the discriminatory aspect to the R18 mail order prohibition where a disabled person is outrageously forced to turn up at a licensed sex shop in person to be able to buy an R18. It then occurred to me that even a carer who offers to go to the shop to buy the R18 would be committing an offence when he handed over the DVD.

It is about time that the VRA was consigned to the dustbin marked the most embarrassingly incompetent and repressive legislation of  modern times.

From IanG on the Melon Farmers Discussions referring to the previous item on this page: Intent to Supply Inustice?

I wouldn't recommend showing any defiance for the law however, I do think ther's a point in not pleading guilty. If you are found guilty, you can appeal to the High Court, if that appeal fails then (and only then) you can appeal to the ECHR and possibly get the the law of this land changed for the better. As Shaun points out, it takes a pioneer, a martyr, to get anything changed.

Here's my take on this whole sordid affair: Thousands of people tape stuff off TV for their friends and family to watch every single day. As the law stands, all these people are breaking the law, and yet, the law turns a blind eye. If you read the OPA and VRA you'll see it makes absolutely no difference whether you 'supply' for free or profit, and I see no reason to single you out for punishment if you supplied perfectly legal material. Frankly, you should have been 'Cautioned' when the BBFC found the material was within the law and that, as they say, would have been that.

Trading Standards/CPS are really taking the piss. I've got unclassified, unmarked tapes I recorded from TV years ago, it's all perfectly legal Hollywood 'blockbusters' but, just showing or lending these to my next door neighbour or even my brother would, by these standards, land me in serious trouble - and how many people are in that situation right now? Thousands of kids are, right now, downloading games and porn using some file sharing software like Kazza, then they'll burn it to DVD and sell/swap these at school (I know because it's what my nephew told me he and his mates were doing 2 or 3 years ago). So, there are thousands of 14 y/o kids breaking the law as we speak. And how about all these clips people are sending/receiving to/from 'Babestation' etc. by phone everyday? The law covers all 'electronic media' so, these should all be classified by the BBFC before anyone gets to see them (if they contain 'graphic portayals of human sexual activity' then, apparently, they need to be classified). And I wonder how do you 'mark' a phone clip R18? You've unwittingly exposed the sheer lunacy of the 1984 Act for all it's repressive and unworkable restrictions on our right to share any legal information and ideas WITHOUT INTERFERENCE!

Also, the whole point of the jury system is to ensure the Court finds as 'the people will' and not leave you at the mercy of out-of-date, knee-jerk, draconian legislation made by people who are long gone from government. For this reason, if you are not afforded a trial by jury, you should appeal on the grounds that you did not get a fair trial. If you want to play it safe, don't plead guilty on that Ben Dover thing the BBFC have classified and, ensure the jury know that the law makes it illegal for them to share anything they tape off TV - I doubt they'd vote to convict themselves in that instance.

You can set about dismantling the VRA requirement for R18s to be sold only in licensed sex shops by demonstrating that it is quite legally available to import (in person or by mail order over the Internet) and (obviously) receive via satellite broadcasts - which are patrolled by HMCE and Ofcom. Once it is shown that the Crown/Government appointed bodies have not placed an embargo on such material, you can then quote the case law of the ECHR (see Groppera AG vs Switzerland 1990 for the case law quoted above) and prove once and for all that your (OUR) right to share any legally available material is being unjustly (illegally) restricted. As you have accepted guilt for supplying R18 outside a licensed sex shop you should only receive a ticking off (the law stands as is I`m afraid) but, the court will then have to inform the Gov. that the law needs addressing to comply with the HRA (an incompatability has to come from the High Court, Court of Appeal or the HoL hence, my suggestion to appeal all the way to Europe if necessary).

Of course there are no guarantees any of this will come about but it works in theory at least. Frankly, you can waste every penny of my tax bill if you can get this particularly crap law changed. The courts should not simply ignore the HRA just because there`s nothing they can do about domestic law - the fact is domestic law has to be read in a way to make it compatible - and that`s the bloody law! The VRA makes its `suggestion` that R18 can only be supplied in a sex shop on the premise that this will offer protection to children, the fact that R18 can then only be viewed in the home negates that protection and means that any method by which R18 material enters the home is as safe as any other. That restriction is therefore pointless and wholly unnecessary and that is an abuse of our right to freedom of expression.

 Go get 'em mate. I think the door is wide open!!

 

12th March

    Rights Abuse in Surrey

Sketchy details from a persecution by the Human Rights abusers of Surrey County Council. All they are achieving is that the substantial market for hardcore videos & DVDs is going to suppliers based abroad.

Solarnet Media Ltd (Who are also the contacts for the softcore SportXXX satellite channels)
 
  27 September 2004 Solarnet Media Ltd and Mark Sawtell (Director)
 
  At Redhill Magistrates Court on 27 September 2004 Solarnet Media Ltd and Mark Sawtell (Director) pleaded guilty to supplying R18 videos over the internet when these may only be sold from a licensed sex shop.
  Fine Solarnet Media Ltd £1,500 x 6
 
  Sawtell (Director) £350 x 6
 
  Costs Solarnet Media Ltd £1,000
 
  Sawtell (Director) £970

 

7th March

    Contracted to Disproportionate Law

Surely a corruption of human rights when punishments are totally disproportionate to the crime. It is no more than a minor nuisance caused by the Governments own refusal to legalise prostitution. It is the Government that should be prosecuted not the girls and and their customers.

Based on an article from The Yorkshire Post Today

Kerb crawlers convicted in Sheffield courts risk being banned from driving in future under new police measures aimed at persecuting those seeking prostitutes..

Under existing regulations those found kerb crawling the streets at low speed looking for prostitutes have faced the prospect of being either cautioned by police or prosecuted. Now police have introduced new disproportionate measures that will end up with offenders being stripped of their driving licence if they continue with the practice.

Kerb crawlers caught for the first time will no longer just face a caution. Instead they will be "invited" to a police station where they will be asked to sign an Acceptable Behaviour Contract, spelling out that they should avoid certain areas and driving habits.

The first two people to face that sanction were due to go to West Bar police station yesterday to be issued with an ABC.If people are breach such contracts the police will not only prosecute but will also ask the courts to impose a driving ban.

The justification for that is that removing the offender's ability to drive would prevent him from repeating the offence in future. [So why is the same logic not applied to other nuisances such as parking offences. Why are you allowed several transgressions of the far more serious crime of speeding before losing ones licence]

Police have been trying for years to tackle the problem of street prostitution, which is now focused on the Shalesmoor and Upper Allen Street area on the fringe of Sheffield city centre. The repressive Inspector Shaun Morley said: If we can reduce the number of kerb crawlers then it will also reduce the amount of street prostitution. When kerb crawlers are caught, for the first offence they will receive a caution. Now they are invited to come to a police station where they will sign an ABC, with certain conditions they have to adhere to. If they go on to breach that they will be charged and we will ask the courts for a disqualification. What we are trying to do is divert people from that sort of behaviour. If they fail to take advice there is a punishment in place which should motivate them to stop, he said.

The measures are part of a wider policy aimed at reducing the problem of street prostitution.
Police also now do more to try to help the women they arrest, by encouraging them to seek help from the organisations that can help them adjust back into a normal lifestyle. [Sounds like the choice of words Stalinists used] . If a prostitute comes to our attention they receive two cautions and we automatically refer those women to the voluntary agencies, he said.

Police also encouraged women to seek help when they were persecuted for prostitution. However, police now seek to have anti-social behaviour orders imposed against those who steadfastly refuse help [More Stalinist wording] . An ASBO can include banning a person from certain areas and also require them to become involved in drug treatment [like Clockwork Orange!]

 

24th February

    More R18 Mail Order

Thanks to Peter

COURT 3
Before LORD JUSTICE MAURICE KAY and MR JUSTICE NEWMAN
Continuing Wednesday 24 February, 2005 At half past 10
FOR HEARING

Appeal by way of Case Stated
CO/2652/2004 Interfact Limited v Enviromental Health And Trading Standards Division

Appeal by way of Case Stated
CO/3403/2004 Pabo Ltd v Liverpool City Council

From The Scotsman

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 product itself.

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.

 

21st February

    Appealing for Mail Order R18s

Thanks to Peter

S ome interesting info that should be of interest to just about everyone. It would be interesting if any Melon Farmers could attend.

The R18 mail-order battle moves to the High Court this week, with distributors Interfact and Pabo appealing against last year's convictions by Liverpool Trading Standards.The case takes place on Wednesday 23rd. The barristers will be Neil Flewitt for Liverpool, David Pannick for Interfact and Robert Englehart for Pabo. If anyone wants to attend, details (including time and court number) will be posted after 2:30 pm on Tuesday in the Daily Court Lists section of www.courtservice.gov.uk

The two issues of concern are 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 previously 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.

Further details of this discussion

 

 

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