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England and Wales High Court (Administrative Court) Decisions
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  EWHC 3198 (Admin) (21 December 2007)
Cite as:  EWHC 3198 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BRITISH BOARD OF FILM CLASSIFICATION
|VIDEO APPEALS COMMITTEE
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 Andrew Nicol QC and Mr Guy Vassall-Adams(instructed by Harbottle & Lewis LLP) appeared on behalf of the Defendant
Crown Copyright ©
"(1) The Secretary of State may by notice under this section designate any person as the authority responsible for making arrangements:
(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."(b) in the case of works which are determined in accordance with the arrangements to be so suitable:[(ia) for assigning a unique title to each video work in respect of which a classification certificate is to be issued]."
"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:
"(c) violent behaviour or incidents; or:
"(d) horrific behaviour or incidents."
"For the purposes 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."
"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."
"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."
"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."
"We return to the interpretation of 'harm' in this context. Mr Caldecott says that section 4(a)(1) obliges the Board to have regard to the possibility of harm. Not so, says Mr Robertson [counsel appearing for the third party]
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. Of course, the section is not limited to 'harm'. There may be other factors to take into consideration. We suspect the draftsman was providing a long stop for other factors not readily apparent at the time of the passing of the Act, but which may manifest themselves later."
"In my view section 12(3) calls for a similar approach. Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility, the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."
"In the absence of special features, a cross-undertaking will normally be required where 'the purpose of the interlocutory stay is ... to prevent executive action by a third party in pursuance of rights which have been granted by the decision under attack. To require a cross-undertaking in damages is, as a matter of discretion, an entirely permissible condition of the grant of an [interim remedy] and in general, I would think, unless some special feature be present, a condition that should be expected to be imposed."