R v Henn
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Diplock,Lord Salmon,Lord Fraser of Tullybelton,Lord Scarman |
| Judgment Date | 27 March 1980 |
| Judgment citation (vLex) | [1980] UKHL J0327-1 |
| Date | 27 March 1980 |
| Court | House of Lords |
[1980] UKHL J0327-1
House of Lords
Lord Wilberforce
Lord Diplock
Lord Salmon
Lord Fraser of Tullybelton
Lord Scarman
My Lords,
I have had the advantage of reading in advance the speech prepared by my noble and learned friend Lord Diplock. I entirely agree and would dismiss the appeals.
My Lords,
The appellants who carried on in England what appears to have been a substantial though unlawful trade in pornographic magazines and films were convicted at Ipswich Crown Court upon a number of counts of offences under the Obscene Publications Acts 1959 and 1964 and other statutes. The only count with which your Lordships are concerned in this appeal is count 13 which charged an offence under section 304 of the Customs and Excise Act 1952, of being knowingly concerned in the fraudulent evasion of the prohibition on importation of indecent or obscene articles imposed by section 42 of the Customs Laws Consolidation Act 1876. It is however relevant to note that the imported articles were also the subject of another count, 15, which charged the appellant Henn with having obscene articles for gain contrary to section 2(1) of the Obscene Publications Acts 1959 and 1964.
The magazines and films in question were of Danish origin and had been imported into the United Kingdom from the Netherlands through the port of Harwich by the ferry service from Rotterdam. The Customs Consolidation Act 1876, by section 42 imposes an absolute prohibition upon the importation into the United Kingdom of:
"Indecent or obscene prints, paintings, photographs, "books, cards, lithographic or other engravings, or any other indecent or "obscene articles".
Upon a motion to the circuit judge to quash this count in the indictment, it was submitted on behalf of the appellants that this prohibition, so far as it relates to indecent or obscene articles originating, or in free circulation, in member States of the European Communities, is contrary to Articles 30 and 36 of the Treaty of Rome and to that extent has been repealed by section 2(1) of the European Communities Act 1972.
The appellants requested the judge to refer the question of interpretation of the Treaty that was raised by this submission, to the European Court of Justice for a preliminary ruling under Article 177 of the Treaty. This, in the exercise of his discretion, the judge declined to do: and the appellants were duly found guilty by the jury on this count as well as on many others including, as respects Henn, count 15. Both appellants were sentenced to imprisonment on count 13, but as the sentences were concurrent with sentences imposed on them on other counts the total length of their detention was not affected.
The appellants appealed to the Criminal Division of the Court of Appeal against (among other things) their conviction on the count of fraudulent importation. On the appeal the same submission based on the Treaty of Rome was made on their behalf and a request was made to the Court of Appeal to refer the question of interpretation of the Treaty to the European Court of Justice for a preliminary ruling. The Court of Appeal refused to do so upon the ground that the meaning of the relevant provisions of the Treaty was too plain to raise any question of interpretation. Nevertheless the court certified under section 33(2) of the Criminal Appeal Act 1968, that a point of law of general public importance was involved in their decision, viz.
"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 European Economic Community Treaty."
However, they refused leave to appeal to this House.
Coupled with the Court of Appeal's refusal of leave to appeal to this House, the grant of this certificate is in no way inconsistent with that court's view that there was only one possible answer to the point of law certified as being involved in their decision.
The two Articles of the Treaty of Rome upon which this case turns are (in the English version) couched in the following terms:
"30. Quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States."
"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 value; 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."
The right (and duty) of United Kingdom courts to apply to the European Court of Justice for preliminary rulings is regulated by Article 177 as follows:
"The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice."
It does not appear to have been argued either before the circuit judge or the Court of Appeal that the legislation applicable in England, as distinct from other parts of the United Kingdom, to the domestic trade in pornographic articles, applied a definition of the kind of articles which it was an offence to deal in within England that was narrower than the definition of the kind of articles it was an offence to import into the United Kingdom. To fall within the former and more restrictive definition (Standard A), which is to be found in section 1 of the Obscene Publications Act 1959, the articles must tend to deprave and corrupt those likely to be exposed to them, whereas to fall under the prohibition of importation (Standard B) it is sufficient that the articles should offend against recognised standards of propriety without necessarily having any tendency to deprave and corrupt. When leave to appeal was sought in this House, however, it was submitted on behalf of the appellants that this duality of standards, differentiating in England (although not in other parts of the United Kingdom) between domestic and imported pornography, amounted to a means of arbitrary discrimination or a disguised restriction on trade between Member States, within the meaning of the second sentence of Article 36.
My Lords, in the...
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