Before LORD JUSTICE MAURICE KAY and MR JUSTICE NEWMAN
Continuing Wednesday 24 February, 2005 At half past 10
Appeal by way of Case Stated
Interfact Limited v Enviromental Health And Trading Standards Division
Appeal by way of Case Stated
CO/3403/2004 Pabo Ltd v Liverpool City Council
The High Court is being asked to decide whether adult-only pornographic videos and DVDs can be sold by licensed sex shops on the internet. Two senior
judges were told today that overseas sex industry rivals would benefit and “the local economy” suffer if sales by mail order and on the telephone by UK companies were ruled unlawful.
Two test cases are being brought by licensed sex businesses
fined thousands of pounds after prosecutions were brought against them by Liverpool City Council’s trading standards department.
Interfact Ltd, an Essex-based mail order shopping company, and Pabo Ltd, based in Birmingham, were both found guilty
at Liverpool Magistrates’ Court in April last year of contravening the 1984 Video Recordings Act by supplying, or offering to supply, the “R18” classified videos featured in their website catalogues.
The prosecutions occurred following
investigations by trading standards officer Allan Auty, who made test purchases of explicit films, with titles such as Bikers’ Gang Bang and Top Marks for Effort , which can only be sold to those aged over 18.
The district judges
held that, under the 1984 Act, the videos were restricted to customers calling “in person” at licensed sex establishments, and not for sale on the internet.
At today’s High Court appeal in London both sides accepted that R18 videos – primarily
explicit videos of consenting sex between adults – could only be lawfully supplied to customers “in licensed sex shops”.
The sex video companies contended that, in a mail order transaction, the funds were received, and the product packaged, “in
the licensed sex establishment”. That was the point of supply, so no offence was being committed. Delivery amounted to a further service, and not the supply of the 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.