No: 2013/5823/C2 & 2013/6215/C2 
Neutral Citation Number: [2014] EWCA Crim 2438
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 14 November 2014

B e f o r e: 
LORD JUSTICE FULFORD 
MR JUSTICE HAMBLEN 
 
HIS HONOUR JUDGE WAIT 
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

EWA DRYZNER
PLAY MEDIA DISTRIBUTION LIMITED 
 
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Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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Mr A Zalewski appeared on behalf of the Applicants
Mr M Bennett appeared on behalf of the Crown
Mr R Palmer appeared on behalf of the Treasury Solicitor
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J U D G M E N T
1.	JUDGE WAIT:  The applicants were convicted on an indictment at the Luton Crown Court on 17th September 2013 on eight counts alleging that they, on or before 20th May 2011, supplied video recordings containing a video work in respect of which no classification had been issued, contrary to section 9 of the Video Recordings Act 1984.  The applicants renew their application for leave to appeal against conviction, leave having been refused by the single judge.  The respondents have attended today and have provided written grounds of opposition for which we are very grateful. 
The Background 
2.	The applicant Ewa Dryzner and her husband Bartosz Dryzner were directors of a company called Play Media Distribution Limited.  It was common ground that from about January 2011 the applicant and her husband had supplied DVDs imported from Poland through the applicant company Play Media Distribution Limited to a shop in Luton.  
3.	On 20th May 2011 an officer from Luton Borough Council's Trading Standards Service visited the shop.  She examined DVDs being offered for sale and took a note of some 15 titles all in Polish and left the premises.  She attempted to find any of these titles on the website of the British Board of Film Classification ("BBFC") but without success.  She returned to the shop with a colleague the same day and formally seized 73 DVDs, all of which had been supplied by the applicants to the shop.  It was common ground that as at the date of seizure no classification certificate had been issued by the BBFC in respect of any of the works in question.  Although none of the boxes containing the eight DVDs particularised in the indictment bore any age classification, the cellophane packaging of each case contained a labels that was similar, if not identical, to a genuine BBFC classification.  The labels on the packaging were either a U or a 15 certificate.  
4.	The applicant Ewa Dryzner and her husband were subsequently interviewed under caution by Trading Standards Officers.  Unhappily the tapes of the interview are seriously corrupted and there remained at trial an issue as to their state of mind about the need for classification.  But for the avoidance of any doubt it was conceded by the prosecution during the course of the trial that the content of the DVDs in question, some of which were cartoons plainly intended for children, was not such that had they been submitted to the BBFC any would have been deemed unsuitable for the issue of a classification certificate.  
5.	The defence case was to the effect that the applicant Ewa Dryzner was responsible for the importation of DVDs from Poland by the second applicant company and her husband Bartosz Dryzner was responsible for their supply to shops in the United Kingdom.  They had been unaware of the need for video works to be classified by the BBFC.  At a point in 2010 they had become aware of the need for DVDs to carry, as they put it, “age labels”, whereupon Mr Bartosz Dryzner arranged for the creation of his own labels, choosing the age classification himself and applying the stickers that he had chosen to the cellophane wrappers.  
6.	The learned trial judge ruled that the requirement under the Act to submit video works to the BBFC did not amount to an unlawful interference with trade within the European Union.  The only issue then left for the jury was whether they were sure that the applicants had supplied DVDs containing video works or films to which no classification certificate had been issued at the time they were supplied. 
The Grounds of Appeal.  
1.  The learned judge had erred in law by ruling that a defence under article 34 of the Treaty on the Functioning of Europe did not apply.  
2.  Section 9 of the Video Recordings Act 1984 is incompatible with article 10 of the European Convention of Human Rights and the court is asked to make a declaration of incompatibility.  
3.  (Added after the decision of the single judge) The arguably inflexible classification regime set up under the Video Recordings Act 1984 is disproportionate and infringes the applicants' engaged rights under article 10 of the European Convention of Human Rights as enacted by the Human Rights Act 1998.  
Discussion 
7.	Section 9 of the Video Recordings Act 1984 reads: 
"9 Supplying video recording of unclassified work
 (1) A person who supplies or offers to supply a video recording containing a video work in respect of which no classification certificate has been issued is guilty of an offence unless—
 (a) the supply is, or would if it took place be, an exempted supply, or
 (b) the video work is an exempted work.
 (2) It is a defence to a charge of committing an offence under this section to prove that the accused believed on reasonable grounds—
 (a) that the video work concerned or, if the video recording contained more than one work to which the charge relates, each of those works was either an exempted work or a work in respect of which a classification certificate had been issued, or
 (b) that the supply was, or would if it took place be, an exempted supply by virtue of section 3(4) or (5) of this Act.
 (3) A person guilty of an offence under this section shall be liable—
 (a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both..."
8.	The applicant does not suggest that any defence or exemption to this charge is afforded by the 1984 Act.  She submits that the statute is in breach of article 34 of the Treaty on the Functioning of Europe and is incompatible with Community Law.  Article 34 provides:  
"Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States."
Mr Zalewski does not refer in his grounds of appeal or advice on appeal to article 36 which was the basis upon which the learned judge at the Crown Court determined this matter.  Article 36 provides:  
"The provisions of Articles 34 and 35 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 plain purpose of article 36 is to qualify article 34 by permitting Member States to make prohibitions or restrictions on imports and exports on the grounds of, among other matters, public morality.  Under the Video Recordings Act 1984 and the Video Recordings Act 2010 which re-enacts these provisions unchanged, the BBFC has a duty to review and classify all video works, subject to certain exemptions for works that are educational or concern religion, sport or music, and are not supplied for profit.  The purpose of this legislation as set out by the trial judge in his ruling on the issue was to provide information to the public as to the suitability for viewing of particular DVDs or videos to enable e.g. parents to protect their children from viewing unsuitable material and to protect the public in general from exposure to extreme pornography, whether sexual or violent.  As such, its purpose was one which was wholly within the ambit of article 36.  
9.	Those who supply or offer to supply video works are required to submit them to the BBFC for classification and pay the appropriate fee.  The purpose of the BBFC is then to review and classify the works as being suitable for viewing by all, or with parental guidance, or by those who have achieved an age specified on the certificate, or not at all.  The classifications of U, PG, 12, 15 and 18 are familiar to all.  The fee charged by the BBFC is dependent upon the work submitted to provide classification.  
10.	Reference is made in the grounds of appeal to a number of European authorities.  We have reviewed the authorities and none suggest that a Member State cannot provide for the regulation of works to be supplied to the public for the purpose of protecting the public from unsuitable material.  We refer to just one authority that has been selected by both the applicant and the respondent in their submissions as being of particular significance.  It is the decision of the European Court of Justice in the case of Dynamic Medien Vertriebs GmbH v Avides Media AG C‑244/06.  The significant part of the judgment in that case is that article 34 does not preclude national rules which prohibit the sale and transfer, in that case by mail order, of image storage media which have not been examined and classified by the competent authority for the purposes of protecting young persons and which do not bear a label from that authority indicating the age from which they may be viewed, unless it appears that the procedure for examination is not readily accessible or cannot be completed within a reasonable time.  
11.	In the United Kingdom a fee is payable on all works submitted to the BBFC whether originating from within or outside of the United Kingdom.  It is in no way discriminatory.  The applicants assert at paragraph 14 of the grounds that the cost of submitting titles to the BBFC, including translation costs, would have been in the region of £1,000 per title and that such a figure is "disproportionate and relatively high cost in terms of an SME, financing and may be a barrier to intra‑community trade itself."  No evidence of such a figure was put before the judge when making submissions on the restriction of trade.  It is not a figure which is admitted.  The respondent tells us in this case through his notice that the fees payable on DVDs in this case would have been between £315 and £741, depending on the length of the work.  Whatever be the correct figure, there has never been a suggestion that it was set to restrict trade in any way.
12.	  Turning now to the principal point made by the applicants this morning, which is that where there is innocuous material the requirement that it be provided for classification is not reasonable and proportionate.  On the evidence that there was in this case, we see nothing in this ground.  
Decision 
Ground 1 under article 34 TFEU
13.	The whole of this matter was dealt with carefully and in our view correctly by the learned trial judge in his ruling of 25th January 2013.  It is a ruling we accept in its entirety and we refuse leave to appeal on this ground.  
14.	Grounds 2 and 3, under article 10 
15.	The applicants submit that the restrictions of the Act are disproportionate and infringe the applicants' right to freedom of expression under article 10 of the Convention.  Article 10 provides:
"Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority."  
It is acknowledged that the right is qualified in article 10(2) which in part reads:  
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals... "  
In our judgment, the qualification in article 10(2) raises the same issue as the qualification of article 34 of TFEU by article 36.   
16.	Our answer on these grounds is the same as on Ground 1.  The provisions of this Act are lawful, are necessary, are justified for the protection of health and morals and are within the qualification of Article 10(2).  
17.	For the reasons above, and those set out by the single judge in the section 31 application, these renewed applications for leave to appeal the convictions are refused.  
18.	MR PALMER:  My Lord, can I then turn to the next application which is my only advocacy this morning which is an application for costs. 
19.	LORD JUSTICE FULFORD:  Is the problem with that that this was a renewed application, for which we are very grateful to have had your attendance, but which you were not required to attend.  Is it not, as a matter of principle, wrong for an applicant who is entitled to maintain and advance his application, as it were alone, to bear the costs of the other side who have, helpful though it may be, chosen to turn up?  
20.	MR PALMER:  Can I deal with that in two ways?  I shall be very brief because I can already see the mood of the court. 
21.	LORD JUSTICE FULFORD:  I think it is a matter of principle really.  
22.	MR PALMER:  One has to remember one of the applicants is a commercial enterprise that still trades.  Secondly, you are right that there are matters where we chose to assist, but equally of course you are dealing with a situation where there had already been, because of the number of legal challenges in this case, substantial costs incurred and substantial costs ordered at the conclusion of the trial.  In our respectful submission because a local authority, as your Lordships will know, cannot recoup any of its costs from central funds because of section 60 of the Prosecution of Offences Act, it becomes slightly different.  But, I have made the application, I have not yet quantified it.  In any application, whatever the principle, I entirely accept that it is at the discretion of the court. 
23.	LORD JUSTICE FULFORD:  Thank you.  Please give us one moment.  Thank you for the application.  For the reasons that I indicated at the outset, I am afraid it would be inappropriate in this case to order costs.  We are nonetheless grateful for the assistance with which you have provided us.