R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Noncyp Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CROOM-JOHNSON,LORD JUSTICE GLIDEWELL,SIR ROGER ORMROD |
| Judgment Date | 14 December 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1214-1 |
| Docket Number | 88/1085 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 1988 |
[1988] EWCA Civ J1214-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(Lord Justice Woolf)
Royal Courts of Justice
Lord Justice Croom-Johnson
Lord Justice Glidewell
and
Sir Roger Ormrod
88/1085
MR. ANDREW NICOL (instructed by Messrs Simons Muirhead & Burton) appeared on behalf of the Appellants/Applicants.
MR. ANDREW COLLINS, Q.C. and MR. S. LAWSON ROGERS (instructed by the Solicitor to H.M. Customs and Excise) appeared on behalf of the Respondent/Respondent.
The First Respondent did not appear and was not represented.
The applicants, Noncyp Limited, own and run a bookshop in London known as "Gay's the Word". On 29th October 1986 their solicitors, acting in accordance with an agreement which had been come to with the Commissioners of Customs and Excise, wrote to H.M. Customs and Excise to tell them that certain books had been imported from Holland. The titles were—
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1. Men in Erotic Art
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2. Men Loving Men
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3. Men Loving' Themselves
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4. My Brother Myself
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5. Roman Conquests
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6. Below the Belt
On 19th November 1986 sample copies were provided and formally seized by Customs for reference to the Magistrates Court for condemnation proceedings. It was agreed that the letter of 29th October 1986 from the solicitors was a claim against the seizure of the books.
Mr. Dubbey, the second respondent, is an officer of H.M. Customs and Excise. He made a complaint to Bow Street Magistrates Court asking that a summons be issued, for the books to be condemned as liable to forfeiture, because they are obscene.
Customs Consolidation Act 1876 sec. 42 prohibits the importation of (among other things) "indecent or obscene prints, paintings, photographs, books, cards, lithographic, or other engravings, or any other indecent or obscene articles". The procedure for seizure and condemnation is now governed by Customs and Excise Management Act 1979 sec.139, and Schedule 3.
For the purposes of those statutes the word "obscene" has its ordinary meaning including what is "repulsive", "filthy", "loathsome", or "lewd".
The Obscene Publications Act 1959 ("the 1959 Act") section 2 prohibits the publication, or the possession for purposes of publication, of an obscene article. To do so is a criminal offence. For the purposes of that statute, "obscene" is defined in section 1(1):
"For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circum stances, to read, see or hear the matter contained or embodied in it."
It will be noticed that under the 1959 Act the word "obscene" has a less wide meaning than its ordinary meaning. Furthermore, the circumstances in which a criminal offence will be committed are carefully limited.
Section 3 makes provision that a justice of the peace, on information on oath, may issue a warrant for the search of premises in the petty sessions area for which he acts and the seizure of obscene articles so found, and later for the forfeiture of articles so seized.
Section 4 provides a defence:
"4(1) Subject to Subsection (1A) of this section a person shall not be convicted of an offence against section 2 of this Act, and an order for forfeiture shall not be made under the foregoing section [section 3], if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern."
Section 4(lA) provides a comparable defence in the case of films and soundtracks.
It will be noticed that section 4 of the 1959 Act applies only to prosecutions under that Act, and that the forfeiture provisions in section 3 apply to articles which are already in this country, unlike the prohibition against importation which gives powers to the Customs and Excise.
At the hearing at Bow Street it was agreed between the parties that a preliminary issue should be decided by the magistrate, namely whether it was open to Noncyp to call evidence and make submissions as to whether publication of the books was justified as being for the public good within the meaning of section 4 of the 1959 Act. The magistrate, Mr. Bartle, ruled against Noncyp. He said that in deciding whether forfeiture under the customs legislation was appropriate, no account was to be taken of the special defence in section 4 of the 1959 Act.
Noncyp then obtained leave to proceed by way of judicial review to quash the magistrates' decision on the preliminary point and asked for mandamus ordering him to hear and determine the section 4 matter.
On 12th May 1988 the Queen's Bench Divisional Court (Woolf L.J. and Hutchison J.) dismissed that application. Noncyp have now appealed to this court. The grounds on which their application is made is that the Treaty of Rome article 30 prohibits quantitative restrictions on imports from Member States of the European Economic community, and that the Customs Consolidation Act 1876, sec.42 is invalid so far as EEC countries are concerned. There is no dispute about the effect of article 30. The question which has been argued is whether article 36 provides a saving to article 30 on the grounds which may for convenience be labelled "public morality". Noncyp say it does not. H.M. Customs and Excise say it does.
Article 36 is as follows:
ARTICLE 36
The provisions of Articles 30 to 34 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants: the protection of national treasures possessing artistic, historic or archaeological values; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
Article 36 has been considered in detail in R. v. Henn and Darby [1981] A.C.850. The facts of that case were that Henn and Darby were convicted of fraudulently evading the prohibition on the importation of indecent or obscene articles, contrary to the Customs Consolidation Act 1876 sec.42. Henn (alone) was also convicted of an offence against the 1959 Act, sec.2, in respect of the same articles. He did not run a defence under sec. 4, but the provisions of sec.4 were relied upon in the submissions made on article 36.
The Court of Appeal (Criminal Division) having dismissed their appeals, a point of law of general public importance was certified for consideration by the House of Lords, namely:
"Whether section 42 of the Customs Consolidation Act 1876 is effective to prevent the importation of pornographic articles from Holland notwithstanding articles 30 and 36 of the E.E.C. Treaty".
After extensive argument, the House of Lords referred the case to the Court of European Communities at Luxembourg under article 177 of the Treaty of Rome, and submitted a number of questions to it.
Question 1 was whether sec.42 offended against article 30. The answer was "yes".
Questions 2 and 3 raised the problem that section 42 imposes a total ban on imports of obscene articles into the United Kingdom, although the four countries comprising the United Kingdom have a variety of different legislation forbidding or controlling the use of such articles.
All the different statutes were mentioned, including the 1959 Act and section 4.
The European Court answered (page 898):
"Each member state is entitled to impose prohibitions on imports justified on grounds of public morality for the whole of its territory…whatever the structure of its constitution may be and however the powers of legislating in regard to the subject in question may be distributed. The fact that certain differences exist between the laws enforced in different constituent parts of a member State does not thereby prevent that state from enforcing a unitary concept in regard to prohibitions on imports imposed, on ground of public morality, on trade with other member states."
In view of the submissions which have been advanced by Noncyp and H.M. Customs, it is necessary to set out, albeit at length, the answers given by the European Court to some of the questions.
"17. The answer to the second and third questions must therefore be that the first sentence of article 36 upon its true construction means that a member state may, in principle, lawfully impose prohibitions on the importation from any other member state of articles which are of an indecent or obscene character as understood by its domestic laws and that such prohibitions may lawfully be applied to the whole of its national territory even if, in regard to the field in question, variations exist between the laws in force in the different constituent parts of the member state concerned.
Fourth, fifth and sixth questions
18. The fourth, fifth and sixth questions are framed in the following terms:
4. If a prohibition on the importation of goods is justifiable on grounds of public morality or public policy, and imposed with that purpose, can that prohibition nevertheless amount to a means of arbitrary discrimination or a disguised restriction on trade contrary to article 36?
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