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.
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