The Queen v Uxbridge Justices and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST,LORD JUSTICE AULD,MR. JUSTICE FORBES |
| Judgment Date | 26 January 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0126-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBCOF 93/0933/D |
| Date | 26 January 1996 |
[1996] EWCA Civ J0126-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(Glidewell L.J. and Cresswell J.)
Before: Lord Justice Hirst Lord Justice Auld Mr. Justice Forbes
QBCOF 93/0933/D
MR. M. O'MAOILEOIN (instructed by Messrs. Desmond Pye Partnership, Solicitors, London, SE14 5PL) appeared on behalf of Applicant.
MR. M. BROMLEY-MARTIN (instructed by the Solicitor for H.M. Customs and Excise) appeared on behalf of Respondent.
I will ask Lord Justice Auld to give the first judgment.
The appellant, Mr. Webb, is a campaigner for the reform of the law relating to obscene publications. He is the honourary director and founder member of an organisation called the National Campaign for the Reform of the Obscene Publications Acts. This is his appeal from the decision of the Divisional Court, constituted by Lord Justice Glidewell and Mr. Justice Cresswell, on 9th June 1993, dismissing his application for judicial review of the refusal of the Uxbridge Justices to state a case for the opinion of the High Court.
The matter concerned the seizure by the officers of Customs and Excise from Mr. Webb on his return to London (Heathrow) from Holland of six video-tapes containing explicit representations of homosexual activity. Mr. Webb maintained in argument before the magistrates, although he did not give evidence, that he had them for the purpose of comparative study of what was freely available in Holland and in the United Kingdom. The officers, however, regarded them as obscene and thus prohibited from import under section 42 of the Customs Consolidation Act 1876. Section 42 prohibits from imporation:
"Indecent or obscene prints, paintings, photographs, books, cards, lithographic or engravings, or any other indecent or obscene articles."
They accordingly seized them pursuant to their power under section 49(1) of the Customs and Excise Management Act 1979.
Section 49(1) provides:
"Where —
…
(b) any goods are imported, landed or unloaded contrary to any prohibition or restriction for the time being in force with respect thereto under or by virtue of any enactment … those goods shall … be liable to forfeiture."
Under a procedure provided in Schedule 3 to the 1979 Act Mr. Webb claimed that the video-tapes were not liable to forfeiture, and appeared before the Uxbridge Justices on 27th June 1991 in condemnation proceedings in support of that claim. In the course of the proceedings the magistrates refused an application by Mr. Webb to admit in evidence a copy of a document issued by the Commissioners giving guidance to their officers as to what they should and should not seize. The magistrates' reason for refusal to admit that document in evidence was, according to an affidavit
later sworn by their Chairman in the judicial review proceedings, "that is it was irrelevant in determining whether or not the six video tapes were liable to forfeiture."
The magistrates, contrary to the protests of Mr. Webb, did not view all the six video-tapes. One was selected by the prosecutor and one was selected by him for their viewing. They viewed them in camera. The viewing of the two video-tapes was in speeded up fast forward operation, and Mr. Webb later maintained that the viewing of one of them was incomplete. His complaint was that they should have viewed all six at normal speed and in public.
The magistrates found in favour of the Commissioners, namely that the tapes were obscene and thus liable to forfeiture. In determining the matter of obscenity, the magistrates, in accordance with the ruling of the House of Lords in R. v. Henn [1981] A.C. 901, adopted the definition in section 1 of the Obscene Publications Act 1959, namely:
"… 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 circumstances, to read, see or hear the matter contained or embodied in it."
The magistrates also expressed the view that in applying that test they did not have to consider the alleged purpose of the imporation, relying on the authority of R. v. Bow Street Magistrates, ex parte Noncyp Limited [1989] 3 W.L.R. 467, a decision of this court.
On 17th July 1991 Mr. Webb wrote to the clerk to the magistrates enclosing a 19-page document requesting that the magistrates should state a case for the opinion of the High Court. The grounds of his application to state a case may be divided into three categories. The first went to the test of obscenity applied by the magistrates. Mr. Webb's first argument under this head, which he returned to in different ways, was that the magistrates had applied the wrong test when determining whether the video-tapes were obscene. He maintained that the applicable statute was the 1876 Act under which the instant prohibition arose, and that, as it did not define the word "obscene", the word had such an uncertain and subjective quality that it could not found the basis for seizure under the 1979 Act. Mr. Webb's second argument under this head was that the prohibition in section 42 of the 1876 Act contravened the declarations of the rights of freedom of expression and communication to be found in the EEC Treaty and subsequent conventions and domestic legislation respectively developing and implementing it. He also relied on similar provisions in the United Nations Universal Declaration of Human Rights 1953 and in the European Convention on Human Rights. His third argument under this head was largely one of fact, an expression of his views as to the acceptability of such material and its acceptance by authorities elsewhere in the world.
The second main ground of application to state a case went to the decision of the magistrates to exclude the commissioners' guidance document to their officers as to seizure. He maintained that the magistrates' refusal to admit that document in evidence wrongly deprived him of a defence, namely that the Customs and Excise officers had disregarded it when seizing the video-tapes.
His third main complaint in the application went to the way in which the magistrates had viewed the video-tapes. He maintained that their viewing was inadequate, that it should have been done in public, and, more recently, he complained also of the exclusion of the press.
By a letter of 9th August 1991 the...
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