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||Neutral Citation Number:  EWHC 3198 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||21 December 2007
B e f o r e :
MR JUSTICE WYN WILLIAMS
||THE QUEEN ON THE APPLICATION OF BRITISH BOARD OF FILM CLASSIFICATION
||VIDEO APPEALS COMMITTEE
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Mr Andrew Caldecott QC and Mr Ian Helme (instructed by Goodman Derrick LLP) appeared on behalf of the Claimant
Mr Andrew Nicol QC and Mr Guy Vassall-Adams(instructed by Harbottle & Lewis LLP) appeared on behalf of the Defendant
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- MR JUSTICE WYN WILLIAMS: The claimant is the body responsible for the classification of video works within the United Kingdom, pursuant to section 4 of the Video Recordings Act 1984.
- In May 2007, the interested party submitted to the claimant for classification the video work known as Manhunt 2, which is a video game that can be played on very widely available game console platforms known as Playstation 2 or Wii. The claimant declined to classify the original version of the game by a letter dated 19th June 2007. In summary, what happened was that a modified version was then submitted. That was also rejected, but the parties agreed that the modified version would be taken forward to an appeal to a body known as the Video Appeals Committee, a body which is set up to hear appeals against decisions made by the claimant.
- The decision of the Video Appeals Committee, which is the defendant to these proceedings, was issued on about 12th December 2007. The decision was that the appeal would be allowed, to this extent; that a classification of 18 should be applied to the work in question, as opposed to there being no classification at all. I should say, though it is obvious, if the work is not classified, the effect is that it is banned.
- In the light of that decision, the claimant instituted these proceedings. It asked for permission to bring a judicial review and it asked for a stay upon the decision of the Video Appeals Committee. In its application for a stay, it suggested that that order should be made, notwithstanding its then unwillingness to offer a cross-undertaking in damages.
- The applications were considered by McCombe J on paper and he made an order in effect convening an oral hearing so that all the applications could be considered together.
- I deal firstly with the relevant statutory provisions. There are, in my judgment, two upon which I should focus for the purposes of determining these applications and they are sections 4 and 4(A) of the 1984 Act.
- Section 4, so far as is material, reads as follows:
"(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 heading of section 4(A) is "Criteria for suitability to which special regard to be had". Section 4 (A) 1 reads:
"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."
- Then subsection 2 of that section:
"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."
- As I have said, the claimant is the authority designated under section 4. In making its determination, it is enjoined to have special regard to the fact that the video work in question likely is to be viewed in the home. By virtue of section 4 (A it is again to have special regard to the various matters which I have just read.
- The principal complaint made in these proceedings by Mr Caldecott QC, appearing on behalf of the claimant, is that the Video Appeals Committee misinterpreted section 4(A) when it reached its decision to allow the appeal.
- Mr Nicol QC, appearing for the interested party, the producer of the video in question, disputes this. He submits that when looked at as a whole, the decision letter of the Appeals Committee shows that it applied the correct legal test.
- The high watermark, to adopt Mr Caldecott's expression, of the third party's submissions on interpretation of section 4(A) appears to me to be within paragraphs 50 and 53 of the decision letter. In paragraph 50, the Committee said this:
"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."
- In paragraph 53, the Committee in the last sentence said:
"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."
- Mr Nicol submits that in expressing itself in this way the Committee was properly applying the statutory criteria, particularly if the statute is viewed in the context of the European Convention on Human Rights.
- Mr Caldecott submits that is not correct, and demonstrably not correct, because those paragraphs must first be informed by a reading of earlier paragraphs of the decision letter. He relies in particular on what appears in paragraphs 20, 21, 23 and 24. It suffices if I quote from, firstly, paragraph 23. At the conclusion of that paragraph, this is what the Committee say:
"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."
- Then in paragraph 24:
"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 judgment, it is at least arguable, that the expression "There should be a ban only when the work has a devastating effect on those who view it" is a misinterpretation of the relevant statutory provisions. It is also arguable, in my judgment, that the use of the word "actual" as opposed to potential in relation to harm is a misunderstanding of the statutory provisions.
- In my judgment, this case clearly passes the first of the two tests for whether permission should be granted. On those two bases, it seems to me to be clearly arguable that notwithstanding the expressions in paragraphs 50 and 53, when they are looked at in the context of what precedes them, there is arguably a misinterpretation of the statutory provision.
- Mr Nicol correctly points out that that is only part of the statutory test for permission. It must also be arguable that the misinterpretation or misdirection was a material reason why the Appeals Committee reached the decision that it did; and had it not misinterpreted the section, there may have been a different result. I accept that submission, as of course I am bound to, since it is correct. But it does seem to me that in the context of a case like this where the misdirection or misinterpretation is as I have described, there is at least a reasonable prospect that a court would conclude that the misdirection was material and indeed went to the heart of the decision which was made in this case.
- Accordingly, I am perfectly satisfied that this is a proper case for granting permission.
- The next issue which arises is whether or not I should grant the stay. The test to be applied, both parties agree, can be derived from paragraph 22 of the judgment of Lord Nicholls of Birkenhead in the decision in the House of Lords in Cream Holdings Ltd and others v Banerjee and another  1 AC 253. In that paragraph, Lord Nicholls refers to section 12(3) of the Human Rights Act 1998 and I simply say that so that anyone reading this judgment will understand the context of the quotation which I am about to read out. Paragraph 22 reads:
"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."
- I make it clear that I approach the issue of whether or not I should grant a stay on the basis of the general basis as referred to by Lord Nicholls, namely that an applicant should show in effect on balance that he is going to succeed at trial.
- In my judgment, the points made by Mr Caldecott as to why this Appeals Committee erred in law are strong ones. In my judgment, there is a prospect which I regard as being more probable than not that those points will succeed at trial. It may not be quite as compelling an argument that the errors of law in the end were material to the decision. I can see how in this case the distinction may be drawn, as Mr Nicol has sought to do, between those two aspects of the case. However, it still seems to me to be more likely than not that the applicant will succeed on this second issue as well.
- So looking at the matter overall, I have reached the clear conclusion that the test set out by Lord Nicholls of Birkenhead is met.
- Of course, that is not the only consideration to be considered in relation to whether or not I should grant a stay. It is, if you like, a threshold consideration and if that is not met, the stay should not be granted. But having crossed the threshold, I now turn to consider whether or not the other material factors support the view that a stay should be granted.
- It cannot be doubted that the issue in this case engages a public interest. It appears from the documentation put before me to be common ground that the video game in question is not suitable to be played by minors. It appears to me very likely nonetheless that if the game is licensed, minors will, in one way or another, gain access to the game. That being so, it seems to me to be inevitable that there is a public interest engaged, namely the protection of minors and the protection of minors in this context clearly militates in favour of the grant of a stay.
- The main submission made against the grant of a stay centres upon the legitimate, and I stress that word, commercial interest of the interested party. It is bound to be the case that if a stay is granted, but the third party is ultimately successful in obtaining a certificate for this video game, then its commercial interest will have been damaged during the period of the stay.
- The sting in that submission, of course, is made much less if I accede to the submission made on behalf of the interested party that I should grant a stay only upon the basis that the claimant gives an undertaking of damages. So it is to that issue that I turn before finally considering whether a stay is appropriate.
- In his skeleton argument, Mr Caldecott QC set out the court's usual approach to whether or not there should be a requirement for a cross-undertaking in damages. He cites in his skeleton the case of Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment of Belize  UKPC 63 and in particular paragraph 39:
"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."
- To much the same effect is the decision of the Court of Appeal in R v HM Inspectorate of Pollution ex parte Greenpeace (No.1)  1 WLR 570.
- In paragraph 11 of his skeleton argument, Mr Caldecott sets out those passages which he says make this an appropriate case in which the claimant should not be required to give an undertaking in damages. He sets those out in numbered subparagraphs and without reading them all out, I can say that I have had regard to each and every one of them in making my decision. Ultimately, it seems to me that the factors which most affect the balancing exercise I have to perform are these. Firstly, the Board is self-funded and non-profit making. And when I say "the Board", of course I mean the claimant. Second, the claimant is carrying out statutory functions in the public interest. Thirdly, although as Mr Caldecott QC accepts, the point cannot be conclusively weighed at this stage, it is at least possible that if the Committee was erroneous in its legal approach, that approach was brought about by the legal submissions made to it by those then acting for the interested party.
- I should stress in this context too that there is a high public interest in the possibility of harm to children although, as I have indicated, I have already taken that very firmly into account in assessing whether or not a stay should be granted and it is clearly a feature which is bound to figure large in any exercise of discretion.
- As I announced to the parties, this case will be expedited and will be heard before the end of January. That means that the period of the stay will be limited in effect. I remind myself that an undertaking in damages is also limited in effect in this sense: that if damages are ultimately payable, they are payable as a consequence of the stay and that should be remembered, in my judgment, in the context of a case which is to be heard very quickly.
- I think I have identified all the relevant or most material factors in relation to the exercise of my discretion. Mr Caldecott QC was extremely frank and helpful in telling me that if it was my view that a stay would be granted only upon the basis of a cross-undertaking in damages, his client would give such an undertaking, notwithstanding their reluctance so to do. I hope I have applied intellectual rigour to the exercise of my discretionary powers and not simply taken the easy option, now that that has been revealed to me.
- Having made that caveat I do think, exercising my discretion properly, that this is not a case where the claimant has managed to persuade me that there are here features which take this case out of the norm. Even looking at the features cumulatively as I have been urged properly so to do, I am not satisfied that there are here features which make it permissible for me to grant a stay and yet at the same time nor invite Mr Caldecott's clients to give a cross-undertaking in damages. Since he has told me what he intends to do, it is obviously now permissible for me to say that I do grant a stay. Of course, I do it on the basis that the cross-undertaking is about to be given.
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