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.
