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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> British Board of Film Classification, R (on the application of) v Video Appeals Committee [2008] EWHC 203 (Admin) (24 January 2008) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2008/203.html Cite as: [2008] EWHC 203 (Admin), [2008] 1 WLR 1658, [2008] WLR 1658, [2008] ACD 41 |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF BRITISH BOARD OF FILM CLASSIFICATION | Claimant | |
v | ||
VIDEO APPEALS COMMITTEE | Defendant |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr Geoffrey Robertson QC and Mr Guy Vassall-Adams (instructed by Harbottle & Lewis) appeared on behalf of the Defendant
____________________
Crown Copyright ©
" .....
(c) it is a video game."
But it is not exempt if, to any significant extent, it -
" ..... depicts -
.....
(b) mutilation or torture of, or other acts of gross violence towards humans or animals."
This judicial review concerns a video game which, for present purposes, is accepted not to be exempt because it depicts gross violence towards humans.
"(a) for determining for the purposes of this Act whether or not video works are suitable for classification certificates to be issued in respect of them, having special regard to the likelihood of video works in respect of which such certificates have been issued being viewed in the home."
Absent such a certificate, it is by virtue of Section 9 a criminal offence to supply a video work which is not exempt.
"(1) The designated authority shall, in making any determination as to the suitability of a video work, have special regard (among the other relevant factors) to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with -
(a) criminal behaviour;
.....
(c) violent behaviour or incidents;
(d) horrific behaviour or incidents;
.....
(2) For the purpose of this section -
'potential viewer' means any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued;
'suitability' means suitability for the issue of a classification certificate or suitability for the issue of a certificate of a particular description;
'violent behaviour' includes any act inflicting or likely to result in the infliction of injury ..... "
"Manhunt 2 is distinguishable from recent high-end video games by its unremitting bleakness and callousness of tone in an overall game context which constantly encourages visceral killing with exceptionally little alleviation or distancing. It is a game wholly devoted to stalking and killing human characters in a modern urban environment. In order to progress, the game player must kill almost every character encountered. Many of these killings are 'sneak attacks' in which the character controlled by the game player hides in shadows until his victim's back is turned, then creeps up behind him and attacks with one of a large variety of weapons available to him. Killing in such a fashion maintains the character's health, whereas fighting face to face depletes the character's health and risks failure to complete the level. There is sustained and cumulative casual sadism in the way in which these killings are committed, and encouraged, in the game.
Of particular concern to the Board is the game's unrelenting focus on stalking and brutal slaying and the sheer lack of alternative pleasures on offer to the gamer. There is no significant objective other than killing and the only significant variety in the game play involves making use of the full range of weaponry, including: syringes, pens, shards of glass, knives, axes, saws, a bottle (both unbroken and broken), a mace, baseball bat with barbed wire, spades, pliers, plastic bags, garden shears, a circular saw, prod, night stick, flare gun, hand gun, sniper rifle, Uzi machine gun, shotgun, toilet cistern lid, iron maiden, electric chair, meat hooks and an industrial compactor. Each weapon produces its own unique set of 'kill images', encouraging players to seek out the most brutal and graphic kill possible."
" ..... it was clear that a competent gamer playing the game as the Board played it would be exposed to brutal and unremitting violence using a variety of implements."
The BBFC refused to classify the film.
" ..... it leaves the British Board of Film Classification with discretion to decide what to do once it has considered a work on the basis of the criteria which will be laid down in the Bill. If it concludes for example, that the work will set a bad example to very young children, it need not ban the video altogether but it can place it in an age restricted category. There may be some works which the Board believes would have such a devastating effect on individuals or on society if they were released that there should be the possibility of their being refused a video classification altogether, and the clause leaves the Board free to do that.
The criteria mean that the British Board of Film Classification must consider who in fact is likely to see a particular video, regardless of the classification, so that if it knows that a particular video is likely to appeal to children and is likely to be seen by them, despite its classification being for an older group, then the Board must consider those children as potential viewers. That does not mean that the Board must ban the video altogether. The Board will still have discretion on how or whether, to classify it; but it must bear in mind the effect which it might have on children who may be potential viewers."
Mr Caldecott relied on the latter passage, Mr Robertson on the first.
"21 We do not have any difficulty with interpretation and think it reasonably clear even though we do not agree with Mr Caldecott's interpretation in relation to the word 'harm' given its placement in the section. However the speech having been given in evidence by the Board leaves us, we believe, with no alternative but to consider it, which means the appellants may also quote from it."
In paragraph 22 the Board went on to quote from passages I have cited in Earl Ferrers' speech. In paragraph 23 it concluded its discussion of Earl Ferrers' speech with these words:
"23 What is clear is that the Board must have regard to children being potential viewers of material despite its classification for a higher group but that there should be a ban only when the work has a devastating effect on those who view it."
"There may be some works which the Board believes would have such a devastating effect of individuals or on society if they were released,"
he was not purporting to lay down a statutory test or to give guidance as to the interpretation of the statutory test contained in Section 4A, but simply to give an example, in ordinary language, of circumstances in which the Board might, in the exercise of the powers which it had, refuse to classify it. There is not and never has been a legal requirement that the Board or the Appeals Committee must determine that a video work "would have such a devastating effect on individuals or on society if they were released" before refusing certification altogether.
"24 We return to the interpretation of 'harm' in this context. Mr Caldecott says that Section 4A (1) obliges the Board to have regard to the possibility of harm. Not so says Mr Robertson, the words plainly state there must be harm caused to the viewer. The word 'any' preceding harm suggests that it does not matter whether the harm is great or small but our interpretation is that there must be actual as opposed to potential harm."
In the first part of the last sentence the Appeals Committee correctly directed itself that the word "any" qualified harm and that it did not matter whether the harm was great or small. In either event, it was required to give special consideration to it.
" ..... our interpretation is that there must be actual as opposed to potential harm."
If by that phrase it meant that it was for the Board to establish that video works of a similar kind to that under appeal had caused harm to children then in my view that would have been an error of law. The relevant words of Section 4A (1) are plainly directed to harm which "may be caused". If Parliament had intended that it was necessary to demonstrate that harm had been caused to children by works similar to those in respect of which classification was sought, then the words "that may be" could have been omitted so that the statutory phrase read "to any harm caused". It is, with respect to the Appeals Committee, self-evident that in relation to a video work which has not yet been released they are judging its impact in future if it is to be released and, if so, under what classification. The task of the Board and the Appeals Committee is to have special regard to any harm that may in future be caused to potential viewers by the viewing of the video work under appeal.
"35 We do not consider that the research has helped us a deal, especially the effect of these games on adults."
"50 We have found this a very difficult case and we are divided in our decision. The majority accept that there must be shown to be harm likely to be caused to a player or a member of society through the actions of that player. They see no evidence in the research that any harm has been shown to be likely, they accept the appellant's submission that gamers will be so immersed in playing the game, looking to reach the next stage in the level without being killed, that they will not be in any way affected by the mayhem on the screen. They are playing a fantasy game with cartoon-type characters which lack realism."
"52 The effect upon children is much more difficult and the majority have taken this into account. They naturally accept that children need protection and that a child is not the best judge of what is suitable for him. But, here again, the majority feel they cannot do otherwise than accept that there is little or no compelling research to show children can be affected and are impressed that, apart from one wholly discredited case, there is nothing to show that those finding themselves in court for violent offences have committed them as a result of, or partially as a result of, playing violent games.
53 The majority are well aware of their responsibility to do their best to support parents to protect their children from malign influences and have taken note that many parents are concerned about their children being exposed to violent images. They wish to point out that in news programmes there are many disturbing moments and in movies the reality brought to the screen can be many times more harmful. It is their own experience of playing and watching experts play the game that persuades them that harm is unlikely to be caused to either adults or children and they consider an '18' certificate should be granted."
"This House was asserting that the mere existence of a mistake of law made at some earlier stage does not vitiate the actual decision made: what must be shown is a relevant error of law, ie, an error in the actual making of the decision which affected the decision itself."