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Video Recordings Acts 1984 and 2010

Introduction

The Video Recordings Act 2010 (VRA 2010) came into force upon receiving Royal Assent on 21 January 2010. The VRA 2010 repealed and revived without amendment the Video Recordings Act 1984 (VRA 1984) in order to rectify a procedural error made during the passage of the VRA 1984.

Offences under sections 9 - 14 of the Video Recordings Act 1984

As well as introducing a system for the classification of video recordings and the like, the VRA 1984 also creates a number of criminal offences:

Section 9 Supplying video recording of unclassified work

(1) A person who supplies or offers to supply a video recording containing a video work in respect of which no classification certificate has been issued is guilty of an offence unless:

(a) the supply is, or would if it took place be, an exempted supply; or
(b) the video work is an exempted work.

Section 10 Possession of video recording of unclassified work for the purposes of supply:

(1) Where a video recording contains a video work in respect of which no classification certificate has been issued, a person who has the recording in his possession for the purpose of supplying it is guilty of an offence unless:

(a) he has it in his possession for the purpose only of a supply which, if it took place, would be an exempted supply; or
(b) the video work is an exempted work.

Section 11 Supplying video recording of classified work in breach of classification

Where a classification certificate issued in respect of a video work states that no video recording containing that work is to be supplied to any person who has not attained the age specified in the certificate, a person who supplies or offers to supply a video recording containing that work to a person who has not attained the age so specified is guilty of an offence unless the supply is, or would if it took place be, an exempted supply.

Section 12 Certain video recordings only to be supplied in licensed sex shops

A person is guilty of an offence, unless the supply is - or would if it took place be - an exempted supply:

(1) Where a classification certificate issued in respect of a video work states that no video recording containing that work is to be supplied other than in a licensed sex shop, a person who at any place other than in a sex shop for which a licence is in force under the relevant enactment:

(a) supplies a video recording containing the work, or
(b) offers to do so.

Section 13 Supply of video recording not complying with requirements as to labels, etc

A person who supplies or offers to supply a video recording or any spool, case or other thing on or in which the recording is kept which does not satisfy any requirement imposed by regulations under section 8 of this Act is guilty of an offence unless the supply is, or would if it took place be, an exempted supply.

Section 14 Supply of video recording containing false indication as to classification

A person who supplies or offers to supply a video recording containing a video work in respect of which no classification certificate has been issued is guilty of an offence if the video recording or any spool, case or other thing on or in which the recording is kept contains any indication that a classification certificate has been issued in respect of that work unless the supply is, or would if it took place be, an exempted supply.

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Sentencing

A person guilty of an offence under sections 9 or 10 of the VRA 1984 is liable on conviction, on indictment, to imprisonment for a term not exceeding two years or a fine or both; and on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both.

A person guilty of offences under sections 11,12 or 14 is liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale (£5,000) or both.

An offence under section 13 may attract, on summary conviction, a fine not exceeding £5,000.

Offences committed prior to 22 January 2010

In August 2009 it was discovered that various provisions in the VRA 1984, and regulations made under the VRA 1984, should have been considered to be technical regulations under the Technical Standards Directive 83/189/EEC, and therefore notified in advance to the European Commission.

Article 8(1) of the Directive provides that Member States must notify draft technical regulations to the Commission and observe a three-month standstill period before the regulations are brought into force. The purpose of the Directive is to allow the Commission and other Member States to comment on whether they consider that the draft regulations have the potential to create a technical barrier to trade. If there are such comments, then the standstill period may be extended and amendments may have to be made to the draft regulations.

The VRA 1984 should have been originally notified to the European Commission before it was brought into force. However, the VRA 1984 was not so notified, and as a consequence was considered to be unenforceable against individuals until the position was rectified.

No prosecutions can be brought under the VRA 1984 for offences committed before 22 January 2010, the point at which the procedural error was rectified.

Any such conduct should be considered to establish whether any alternative offence has been committed.

Alternative offences

Prosecutors should consider whether, in cases where the conduct took place prior to 22 January 2010, they can charge an alternative offence to those under the VRA 1984. This will depend on a careful analysis of all of the circumstances of the case being reviewed. However, possible alternative offences include: 

  • Obscene Publications Act 1959 and 1964. This prohibits the publication of obscene matter. This offence should especially be considered in cases involving the sale or attempted sale of VRA 1984 material to a child; see R v Perrin [2002] All ER (D) 359, [2002] EWCA Crim 747. See Obscene Publications elsewhere in the Legal Guidance;
  • Protection of Children Act 1978, section 1. This section covers the taking, making, distribution, showing or possession with a view to distribution any indecent image of a child. This offence or an offence contrary to section 160 CJA 1988 would normally be charged instead of a VRA 1984 offence where the material concerned included indecent images of children (defined as being persons under the age of 18). See Indecent Photographs of Children, elsewhere in the Legal Guidance;
  • Criminal Justice Act 1988, section 160. This covers possession of indecent images of children and would normally be charged instead of a VRA 1984 offence where the material concerned included indecent images of children (defined as being persons under the age of 18). See Indecent Photographs of Children, elsewhere in the Legal Guidance;
  • Fraud Act 2006 - Fraud by false representation (section 2). This offence is entirely offender focused. It is complete as soon as the Defendant makes a false representation, provided that it is made with the necessary dishonest intent. It is immaterial whether or not any one is cognisant of the representation, deceived or any property actually gained or lost. The focus of the charge is the false representation. See Fraud Act 2006, elsewhere in the Legal Guidance;
  • Copyright Designs and Patents Act 1988. The statutory definition of an "infringing copy" of a copyright work is contained in section 27(2) of the Copyright, Designs and Patents Act 1988. This provides that an article is an infringing copy if its making constituted an infringement of the copyright in the work in question;
  • Trade Marks Act 1994. This Act has created a number of offences as regards unauthorised use of trade marks in relation to goods, which may be used to prosecute some cases involving VRA-type offences;
  • Postal Services Act 2000, section 85. Prohibition on sending certain items by post. This includes indecent or obscene items. See Communications Offences, elsewhere in the Legal Guidance;
  • Conspiracy to Defraud Contrary to Common Law. It is an offence contrary to the common law for two or more persons to agree to embark on a course of conduct which, if the agreement is carried out in accordance with their intentions, will necessarily amount to or involve some third party being deprived of some thing which is his or to which he is or would be or might be entitled. The offence is extremely wide and even agreements which might have the effect of injuring a third party's proprietary rights in copyright material have been held to constitute the offence. (Scott v Metropolitan Police Commissioner [1975] AC 819). See Fraud Act 2006, elsewhere in the Legal Guidance;
  • Public Indecent Displays (Controls) Act 1981. Section 1 states it is an offence to publicly display indecent matter. If material formerly prosecuted under the VRA 1984 is on display in shops and can be classified as indecent, consider charging this offence;
  • Malicious Communications Act 1988, section 1. It is a summary offence to send an electronic communication that conveys a message, which is indecent or grossly offensive, a threat, or information, which is false etc. See Communications Offences, elsewhere in the Legal Guidance;
  • Communications Act 2003. Section 127 deals with improper use of public electronic communications network. Section 127(1)(a) relates to a message etc that is grossly offensive or of an indecent, obscene or menacing character and should be used for indecent phone calls and emails. See Communications Offences, elsewhere in the Legal Guidance.

Convictions prior to 22 January 2010

There is no positive obligation on the Government to re-open convictions obtained prior to the discovery of the procedural irregularity under the VRA 1984. The justification for this approach is that any defendant could have raised non-notification at any time and, if raised, this would have provided a complete defence to any prosecution. Both the magistrates' court and the Crown Court have jurisdiction to rule on the procedural validity of a law forming the basis for a prosecution. See, for the statement of principle, Boddington v. British Transport Police [1999] 2 AC 143 (House of Lords). The CPS does not have any obligation to notify potential appellants of the situation.

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Out-of-time Appeals

Past convictions will continue to stand unless and until they are formally set aside. There are a number of cases which show that the courts consider both administrative acts and legislative acts (such as statutory instruments, regulations or byelaws) as effective and valid until quashed by a court of competent jurisdiction.

The most well-known statement of principle was by Lord Radcliffe in Smith v East Elloe RDC [1956] AC 736, at 769-70:
"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

With regards to Crown Court cases, further support for this proposition is found within the remarks of Lord Scarman in R v Cain [1985] A.C. 46 (at 55D-F) concerning proceedings before the Crown Court:

"You cannot describe as a nullity an order made by a superior court of record which is what the Crown Court is... An order of the Crown Court, once made, may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellate tribunal to which the appeal is taken."

That acts have interim validity pending final determination by the Courts is consistent with the position in EU law. There the general principle is that an act which is reviewable will have legal effect until it is set aside by the European Court of Justice (ECJ) or the Court of First Instance and applications for an annulment must be made within strict time limits.

It was stated in the case of R v Hawkins [1997] 1 Cr App R 334 that applications to lodge appeals out of time should not be readily granted, reflecting the Court of Appeal's historic approach of eschewing technicalities and asking whether there has been any substantial injustice when deciding upon applications for extension of time to bring appeal proceedings. The Hawkins approach was recently applied and followed by the Courts Martial Appeal Court in R v Ballinger [2005] EWCA Crim 1060 at paragraphs 21 and 22.

The court in Ballinger stated that:

"In our judgment there is nothing incompatible with the Convention in the imposition of time limits, provided they are not too short or rigorously enforced, (see Clayton and Tomlinson: The Law of Human Rights, para 11. 192A). For any criminal appellate system to operate efficiently there has to be a time limit specifying the period within which the conviction or sentence must ordinarily be challenged. Broadly speaking the longer the delay the more compelling the reason has to be for granting an extension of time. Sometimes where there has been a considerable delay an extension of time is granted where it is obvious that absent the court hearing an appeal out of time there is likely to be a reference by the Criminal Cases Review Commission."

Prosecutors are therefore advised to oppose applications to lodge appeals out of time, particularly where there has been a lengthy delay since conviction and the would-be appellant is unable to demonstrate that there has been a "substantial injustice". Whether courts are inclined to find that a "substantial injustice" has occurred remains to be seen. It should be noted that in the case of Ballinger the fact that the appellant had been wrongly convicted, given a sentence of detention and dismissed from military service was not enough to bring him within the test of "substantial injustice" envisaged in the case of Hawkins.

Further guidance on this issue can be found in the cases of R v R and Others [2006] EWCA Crim 1974 and R v Cottrell; R v Fletcher [2007] EWCA Crim 2016.

The applicability of these principles to convictions under the Video Recordings Act 1984 was specifically considered in the case of R v Budimir and another; Interfact Ltd v Liverpool City Council [2010] EWCA Crim 1486. The applicants had been convicted in 2004 and 2008 of offences contrary to the Video Recordings Act 1984 (VRA).

The Court of Appeal dismissed the applicants' question of whether the failure by Her Majesty's Government to give an appropriate notification under the Directive has, through the application of EU law and the ECHR, created a substantial injustice which would render the convictions unsafe. Therefore there were no grounds for setting aside the convictions.

The Court of Appeal did however certify a point of law of general public importance, but declined itself to grant permission to appeal to the Supreme Court.

Where the appellant seeks an extension of time to serve a notice of appeal for both Court of Appeal and Crown Court

The procedure for appealing against conviction and sentence in the Court of Appeal is governed by Rule 68 of the Criminal Procedure Rules (CPR) and in particular Rule 68.2 CPR. The court may extend time to serve a notice of appeal under Rule 65.4 CPR.

Where a Crown Court extends the time limit for lodging an appeal from the magistrates' court (in accordance with Rule 63.9 CPR) the court should do so having regard to the overriding objective of the CPRs of ensuring that cases are dealt with justly. This arguably requires the Crown to be given an opportunity to make representations on the question of the extension of time.

A decision by a Crown Court judge to grant an extension of time for leave to appeal against conviction is capable of being challenged by way of judicial review to the Administrative Court. However, it should be borne in mind that the CPR afford judges a wide discretion in deciding whether an extension of time should be granted, and the Administrative Court may be reluctant to disturb such an exercise of judicial discretion without there being strong grounds for doing so.

Where leave to appeal against conviction is granted out-of-time in a case involving conviction(s) under the VRA 1984, and that decision to extend time is not being challenged in the Administrative Court, prosecutors should not proceed to contest the substantive appeal proceedings that follow as this would require the court to make a fresh determination with respect to legislation which it is accepted is unenforceable.

An important point to note is that the jurisdiction of the Crown Court to hear and determine appeals from the magistrates' court is derived from section 108 of the Magistrates' Court Act 1980:

(1) A person convicted by a magistrates' court may appeal to the Crown Court:

(a) if he pleaded guilty, against his sentence;
(b) if he did not, against the conviction and sentence.

Consequently, in cases where would-be appellants pleaded guilty in the magistrates' court, Crown Courts only have jurisdiction to hear and determine appeals against sentence.

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Seizure and forfeiture

Any interference with the peaceful enjoyment of possessions must be justified. In terms of satisfying the requirement that the deprivation must be in the "public interest", this is unlikely to be a problem in the present circumstances where goods were seized when everyone thought that the offences were in force. The central issue is likely to be whether the retention of the property can be justified by reference to "conditions provided for by law" and "the general principles of international law", and (if the proviso applies at all) "such laws as it deems necessary to control the use of property."

The principle of lawfulness is central - the rule of law is one of the fundamental principles of a democratic society, and is accepted as being inherent in all of the articles of the European Convention on Human Rights. A deprivation by the state must therefore have a basis in national law which is accessible, sufficiently certain, and provides protection against arbitrary abuses.

In cases where material was seized prior to 22 January 2010, prosecutors should advise investigators to identify where possible a separate legal basis, distinct from the seizure and forfeiture powers under the VRA 1984, upon which the material in question can be held. The possible alternative offences (listed above) may provide separate legal causes of action pursuant to which the material can continue to be held. Assessment should be on a case by case basis taking into account specific factors such as the nature of the material in question and the circumstances in which it was seized.

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Confiscation

Unless the offence forms part of a course of conduct under section 75 of the Proceeds of Crime Act 2002 (POCA), a confiscation order relating to a conviction under the VRA 1984 can only be made on the basis of benefit from the offender's particular criminal conduct.

No enforcement action should take place where a defendant has been sentenced for an offence under the VRA 1984 prior to 22 January 2010 and made the subject of a confiscation order, in respect of particular benefit under section 6 of POCA, with time allowed for payment under section 11. It would be unacceptable (and potentially an abuse of process) for further positive action (including further enforcement activity) to be pursued. There is an obligation (certainly on the part of the individual who is the subject of the confiscation order) to continue to comply with the confiscation order until it is set aside.

If the pre-22 January 2010 conviction(s) under the VRA 1984 only formed part of the basis for a subsequent confiscation order, i.e. if there was other criminal conduct (whether general or particular) which also provided the justification for the confiscation order under section 6 of POCA. Prosecutors should seek to persuade the Court that any retrospective impact of the invalidity of the VRA 1984 during the relevant period should be limited in its scope.

Where a defendant has been convicted/sentenced for offences under the VRA 1984 prior to 22 January 2010 and the confiscation proceedings have been postponed to a future date under section 14 of POCA, the court cannot properly be invited to make a confiscation order under section 6 of POCA, even though the time for appealing the conviction under the VRA 1984 has expired. This is because it would be wrong for the CPS to seek to obtain a confiscation order in circumstances where it is now known that the underlying legal basis for the particular conviction (the VRA 1984 prior to its repeal and revival) is defective.

The position may however be different if the pre-22 January 2010 conviction(s) under the VRA 1984 only formed part of the basis for a subsequent confiscation order, i.e. if there was other criminal conduct (whether general or particular) which also provided the justification for the confiscation order under section 6 of POCA. In those circumstances prosecutors should seek to persuade the Court that any retrospective impact of the invalidity of the VRA 1984 should be limited in its scope, where it is in the interests of justice to do so.

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