Video Recordings Acts 1984 and 2010
The Video Recordings Act 2010 (VRA 2010) came into force on 21 January 2010. The VRA 2010 repealed and revived without amendment the Video Recordings Act 1984 (VRA 1984).
The VRA 1984 created a system for the classification, by the British Board of Film, of video works embodied in recordings supplied to the public through video rentals and other outlets. This includes the classification of video games, although since 2012 this is done by the Video Standards Council’s Game Rating.
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 should have been notified, in advance, to the European Commission.
This meant that the provisions relating to video classification and distribution were unenforceable within the UK. When the defect came to light all current prosecutions were discontinued. The VRA 2010 remedied that technical defect.
The following are the list of criminal offences under the Video Recordings Act 1984 For the full outline of the offences, please see the legislation itself:
- Section 9: Supplying video recording of unclassified work
- Section 10: Possession of video recording of unclassified work for the purposes of supply
- Section 11: Supplying video recording of classified work in breach of classification
- Section 12: Certain video recordings only to be supplied in licensed sex shop
- Section 13: Supply of video recording not complying with requirements as to labels, etc
- Section 14: Supply of video recording containing false indication as to classification
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 an unlimited fine. If the offence was committed before 12 March 2015, then a fine not exceeding level 5 on the standard scale (£5,000).
An offence under section 13 may attract, on summary conviction, an unlimited fine, or if the offence was committed before 12 March 2015 then a fine not exceeding £5,000.
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  2 AC 143 (House of Lords). The CPS does not have any obligation to notify potential appellants of the situation.
Prosecutors should also consider whether the conduct reveals 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  All ER (D) 359,  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 and Prohibited Images 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 and Prohibited Images 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 aware 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 something 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  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 an either-way 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.