European Court of Human Rights



 

                      AS TO THE ADMISSIBILITY OF

 

                      Application No. 31211/96

                      by Robert HOARE

                      against the United Kingdom

 

      The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

 

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mr.   R. NICOLINI

 

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

 

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

 

      Having regard to the application introduced on 24 January 1996

by Robert HOARE against the United Kingdom and registered on 29 April

1996 under file No. 31211/96;

 

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

 

      Having deliberated;

 

      Decides as follows:

 

THE FACTS

 

      The applicant is a British citizen born in 1951 and currently

detained in HM Prison North Sea Camp Freiston Boston. Before the

Commission, he is represented by Mr. Richard J. Marshall, a solicitor

practising in Lincoln.

 

      The facts of the case, as submitted by the applicant, may be

summarised as follows.

 

A.    The particular circumstances of the case

 

      The applicant was formerly a businessman engaged in the

publication and distribution by mail order of video tapes of a

pornographic nature. Videos were advertised in the national newspaper

Sunday Sport. If the applicant received a response to the advert he

would first send a brochure to the inquirer with a description of the

contents of the videos. The tapes would be distributed only upon a

request from a potential customer.

 

      On 20 November 1993 the applicant's neighbour saw the applicant's

elder daughter putting six packages into a post box in suspicious

circumstances. The neighbour thought them to be bombs and called the

police. The bomb squad arrived, opened the post box and retrieved the

packages. They contained video cassettes: three of the packages were

addressed to Mr. W., two to Mr. Wh. and one to Mr. M.

 

      The videos were looked at by the police to establish their

contents.

 

       On 26 November 1993 the police arrived without warning at the

applicant's home. Only his wife and younger daughter were present. The

police recovered pre-recorded tapes with numbers, recorded video tapes,

a carrier bag with electronic wires, leads and three surgical rubber

gloves, postage stamps with a variety of different values, address

labels, sticky tape, and a box of sticky labels. They also found a

cardboard box with some documents, vouchers, order forms, Free Trade

Publication documents, recorded delivery slips referring to various

customers, labels, and several letters.

 

      On 4 March 1994 the applicant was interviewed at the police

station. He made no comment on certain questions about a number of

individual items which the police was interested in. During the course

of the interview he submitted that the tapes were not harmful in any

way.

 

      The applicant and his wife were charged with six counts of

publishing obscene articles and having obscene articles for publication

for gain, contrary to Section 2(1) of the Obscene Publications Act 1959

as amended ("the 1959 Act").

 

      The Crown case was that Free Trade Publications and JB Marketing

and the address in London were directly connected with 15 St Clement's

Close in Rawston where the applicant lived. It was submitted that at

this address this business of advertising, selling and sending off

pornographic tapes was being carried on, and that the applicant used

a postal address in London to receive orders but the business was, in

fact, carried on from his home where the films were actually recorded

and then sent off to customers.

 

      The prosecution called six witnesses, men who had answered

advertisements in Sunday Sport and received catalogues or/and video

tapes.

 

      Mr. W., the first witness whose statement was read at the trial,

submitted that in August 1993 he had answered an advertisement in

Sunday Sport for X-rated videos. He received a catalogue of films and

ordered four of them from an address in London.

 

      Mr. M., the second witness whose statement was also read at the

trial, said that in the summer of 1993 he had answered an advertisement

in a men's magazine. He received a letter and a photocopy information

sheet from Free Trade Publications from an address in London. In

November 1993 he had made an order and received two videos, one of

which was damaged and sent back for a replacement. It was the

replacement video that was intercepted on 20 November 1993.

 

      Mr. W. answered an advertisement in Sunday Sport and ordered six

video cassettes from JB Marketing. He received two brochures and a

leaflet.

 

      Mr. H.'s statement was read at the trial. In the summer of 1993

he had answered an advertisement in Sunday Sport and received a

catalogue from Free Trade Publications. He ordered sixteen films on

eight tapes and received a letter from someone going under the name of

Baker.

 

      The prosecution showed to the jury a letter headed Free Trade

Publications and JB Marketing, addressed to Mr. H. and which contained

the following information:

 

      "Dear Mr. [H.], further to your letter concerning non-

      delivery of your videos, I have checked with the people

      that copy and dispatch orders on my behalf and have been

      informed your order is about to be sent. I apologise for

      the delay, but since these videos may be considered

      illegal, it is sometimes necessary to be extra careful and

      security measures are strictly enforced so as to minimise

      detection. This does sometimes result in orders going out

      a few days later than anticipated."

 

      Mr. H. confirmed that he had received the letter in reply to his

letter addressed to the firm in London.

 

      Mr. G. said that in 1992 he had answered an advertisement in

Sunday Sport, sent off for a free sample from Free Trade Publications,

but received a leaflet instead. He then sent off a cheque for two tapes

and received two cassettes of what he called hardcore pornography. In

August 1993, he sent off £60 to Free Trade Publications for further

tapes, but did not receive them and so he wrote to the company.

 

      Mr. McK. had received a catalogue of Free Trade Publications from

friends and ordered six videos. He received them together with two

catalogues on 9 November 1992 and in December 1993 he handed them over

to the police.

 

      Neither the applicant nor his wife gave evidence at the trial.

As the judge said in his summing-up, "there is no evidence from either

defendant to give any explanation [to the jury] as to what all this

stuff was doing in [their] house. No explanation."

 

      The judge described the domestic law to the jury, explaining that

the test of whether matter had a tendency to "deprave and corrupt" was

an objective test.

 

      A statement of a Dr. C., the only evidence on behalf of the

applicant, was read at the trial. In his statement, Dr. C. confirmed

that the applicant had visited his offices in late February 1994 to

discuss various issues in connection with a Home Office report on

pornography co-written by Dr. C. and entitled "Pornography, its impact

and influences". The judge described the importance of that evidence

as follows:

 

      "Now, members of the jury, the only importance of that

      evidence is this: that you will recall I read to you the

      answer given by [the applicant] that he did not believe

      these tapes were harmful in any way, and challenged the

      police to produce evidence that they were harmful. Now,

      members of the jury, the importance of that is that by

      March of 1994 [the applicant] would have been aware that

      the police were claiming that these video tapes were

      harmful in the sense that I have defined it to you and that

      in February, the previous month, he had consulted somebody

      about these matters, and that sets in context that answer

      which he was giving to the police. That is the importance

      of that."

 

      The video tapes seized by the police were seen by the jury. Its

contents were summarised by the judge in his summing-up as follows:

 

      "'First Time' was the first exhibit in relation to count

      one. ... you saw as feminine masturbation, oral sex on both

      sides. ... this was a tape where there was a tremendous

      background noise; sort of animal noises coming from the

      tape, but hardly any dialogue, if at all any dialogue, just

      sort of groaning and noises like that. But the high point

      of the video, or low point, ... was surely this: ... On a

      number of occasions during the course of fairly vigorous

      activity, you saw men and women inserting not only fingers

      into the vagina of various women, but also the whole hand

      and, indeed, on one or two occasions, the whole fist up to

      the wrist. ... you also saw images of a woman urinating on

      a man's penis at the same time when there was other

      activity going on. You saw what may have been something

      like a banana being used and this ... was the film where,

      towards the end, the three pairs of male and female ended

      up, six of them, sitting around a table talking to each

      other, ... and then there was further sexual activity with

      them all and urinating as well. ...

 

      Count two, 'Anal, Anal, Anal' ... there are fourteen

      shortish scenes of some fairly graphic activity between

      women and women and women and men. It involves both normal

      intercourse and also what is these days called anal

      intercourse. It involved a great deal of what appeared to

      be ejaculation on to women's breasts or face. One of the

      scenes seemed to take place in a hairdressing salon, there

      is some kind of leather chair or something there. ...

      Again, there was tremendous noises in the background going

      on and the main thrust of this film was anal intercourse -

      buggery, in other words. In every case it seemed to be male

      on female and there were a number of, also, other images

      involving vibrators and the insertion of fingers into

      various orifices. ... there were a number of different

      women who could be identified by the colour of their lace

      stockings. As counsel for the Crown said, you very rarely,

      if at all, saw the faces of the people, and one of the

      matters relied upon quite properly by the Crown here in

      saying to you that you should find these to be obscene in

      the sense that they have a tendency to deprave and corrupt,

      is what is, perhaps you think, the utter dehumanisation of

      the people concerned, particularly the women, who are

      almost invariably on the receiving end of what was going

      on. In this film, more than in any of the others, you just

      saw the rear ends of the actors performing vigorously. ...

 

      Count three, called 'Down Town' is a different sort of film

      altogether. It began with ... a rather blurred image of a

      girl telling you the various things which she liked. ...

      this involved a great deal of images of sperm being

      dribbled in to the mouth of a woman with oral sex, woman on

      woman and man on woman. There was also anal intercourse, or

      buggery, as well, and again perhaps one of the high points

      of the film, ..., was several images of a woman licking the

      anus of a man as he bent over. There was also an image of

      a man urinating into the open mouth of a woman. ... You saw

      the image of one girl with her finger in the anus of

      another girl and also indulging in oral sex, and then

      licking that finger. That was an image you saw on several

      occasions and, again, it is matter like that which the

      Crown rely upon as making that film obscene. ...

 

      ... That film was stopped because of a matter raised by

      counsel, but it was resumed for a further twenty minutes

      and in that twenty minutes you saw an example of a man

      again urinating into a woman's vagina from the rear of it,

      and other images of women licking the anus of man. Members

      of the jury, it is on such images as that the Crown say on

      count three that this is an obscene article. As I say,

      these are matters for you and you will bear in mind the

      warning I have given you which particularly applies to one

      of the other films we have yet to deal with about whether

      or not this is so over the top that it might actually have

      the opposite effect of tending to deprave and corrupt, but

      that is a matter for you to consider.

 

      The next film, which relates to count five, ... is one

      which, at your request, was stopped within the first ten or

      twelve minutes. ... This bondage film started off with a

      scene of a girl tied to a table, two masked men, and I need

      only say that you saw that girl being whipped vigorously,

      both on her back and on her front, in every area and you

      saw the use of clothes pegs both on the breasts and on the

      vagina. ... you had an image for some time of a male

      urinating over the face and into the mouth of this girl who

      was tied up. It is on that basis that the Crown say, 'Well,

      there is material there on which you could find that film

      to be obscene'.

 

      The fifth film, for count six, ... is 'Caviar dinner'. Now,

      members of the jury, that was very graphic. I need only say

      that this is the film where you apparently saw one woman

      consuming faeces. ...

 

      Count seven, exhibit 6, is called 'Eels for Pleasure'. ...

      it began with one woman inserting eels into another woman,

      both into the vagina and into the anus, and that was a

      scene that was repeated twice, and then the scene changed

      to what appeared to be some sort of mediterranean country,

      a naked girl who was making approaches to a young pony. The

      Crown say there is ample material there for you to come to

      the conclusion that that film contained obscene matter."

 

      On 16 October 1995 the Nottingham Crown Court convicted the

applicant of six counts relating to the publication of obscene articles

under Section 2(1) of the 1959 Act. On 16 November 1995 it sentenced

him to 30 months' imprisonment concurrently in respect of each offence.

 

      On 29 November 1995 counsel advised that there were no grounds

of appeal.

 

B.    Relevant domestic law and case-law

 

      Section 1 of the Obscene Publications Act 1959 as amended ("the

1959 Act"), provides for the test of obscenity. According to Section

1(1), 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. Under sub-section 2, "article" means any description of article

containing or embodying matter to be read or looked at or both, any

sound record, and any film or other record of a picture or pictures.

According to sub-section 3, a person publishes an article who (a)

distributes, circulates, sells, lets on hire, gives, or lends it, or

who offers it for sale or for letting on hire; or (b) in the case of

an article containing or embodying matter to be looked at or a record,

shows, plays or projets it.

 

      Section 2 of the 1959 Act provides for the prohibition of

publication of obscene matter.

 

      Section 4 of the 1959 Act, provides for the defence of public

good. According to sub-section 1, a person shall not be convicted of

an offence against Section 2 of the Act 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.

According to Section 4(2), the opinion of experts as to the literary,

artistic, scientific or other merits of an article may be admitted in

any proceedings under the Act either to establish or to negative the

said ground.

 

      In the case of Director of Public Prosecutions v. Jordan ([1976]

3 All ER 775-787), Lord Wilberforce laid down an objective test of

obscenity, describing:

 

      "An article (a technical word which includes books and

      films) is obscene if its effect is such as to tend to

      deprave and corrupt persons likely to read, see, or hear

      the matter contained or embodied in it. The main point to

      be noticed about [Section 1(1) of the 1959 Act] is, as I

      pointed out in Director of Public Prosecutions v. Whyte

      ([1972] 3 All ER 12 at 17), that it is directed at relative

      obscenity - relative, that is, to likely readers. (I use

      'readers' to include other types of recipients.) In each

      case it has to be decided who these readers are and so

      evidence is usually given as to the type of shop or place

      where the material is, and as to the type of customer who

      goes there (cf. again, Director of Public Prosecutions v.

      Whyte [1972] 3 All ER 12). When the class of likely reader

      has been ascertained, it is for the jury to say whether the

      tendency of the material is such as to deprave or corrupt

      them, and for this purpose, in general, no evidence,

      psychological, sociological or medical may be admitted

      (cf. R. v. Andersson [1971] 3 All ER 1152; Director of

      Public Prosecutions v. Whyte [1972] 3 All ER 12). The jury

      consider the material for themselves and reach their

      conclusion as to its effect. They cannot be told by

      psychologists or anyone else what the effect of the

      material on normal minds may be."

 

COMPLAINTS

 

1.    The applicant complains that there has been an unjustified

interference with his freedom of expression contrary to Article 10 of

the Convention. He feels that it was his right to produce the material

concerned to members of the public who share the same opinion. He

contends that the videos he had published were for legitimate

entertainment purposes and did not deprave or corrupt citizens in any

way as only customers sharing his opinions would have responded to his

adverts and after reading his brochures would have purchased videos of

this kind.

 

      He claims that to citizens living in other member states as the

Netherlands or Germany, videos of a similar nature are freely and

legally available. He further submits that similar material was legally

broadcast in the United Kingdom by satellite television channels and

therefore must be regarded as incapable of depraving or corrupting.

 

2.    The applicant also claims that he was denied a fair trial under

Article 6 of the Convention because he was refused the right to have

called and examined an expert witness, Dr. C. He submits that the

expert's opinion related to an essential element of the offence for

which he was convicted, i.e. whether the material contained in the

videos was capable of depraving or corrupting. He contends that the

jury had to apply a subjective test as to whether the videos were

capable of depraving and corrupting because they were simply presented

with the videos by the prosecution and invited to reach a conclusion

without any expert guidance.

 

      The applicant also submits that he was advised by his counsel

during the course of the proceedings that such evidence would be

inadmissible under English law because of the decision in the case of

Director of Public Prosecutions v. Jordan.

 

THE LAW

 

1.    The applicant complains that his conviction and sentence

constituted an unjustified interference with his freedom of expression

ensured by Article 10 (Art. 10) of the Convention, the relevant part

of which reads as follows:

 

      "1.  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 and regardless of frontiers ...

 

      2.   The exercise of these freedoms, since it carries with

      it duties and responsibilities, may be subject to such ...

      restrictions or penalties as are prescribed by law and are

      necessary in a democratic society ... for the prevention of

      disorder or crime, for the protection of health or morals

      ..."

 

      The Commission finds that the applicant suffered an interference

with the exercise of his freedom of expression by virtue of his

conviction and sentence for publication of obscene articles following

the police seizure of the video tapes in his home. The Commission also

finds that the applicant's conviction was prescribed by law, namely by

Section 2(1) of the 1959 Act. The Commission considers that the facts

of the present case confirm that the applicant was prosecuted for the

purpose of protecting morals, a legitimate aim under Article 10 para. 2

(Art. 10-2) of the Convention.

 

      The applicant does not claim that the video cassettes which he

published were not pornographic or obscene in the technical sense of

the law, but does contend that the restriction of his freedom of

expression was disproportionate as only those who shared his opinions

would respond to the advertisements published in the newspaper, and

subsequently purchase videos.

 

      No restriction on freedom of expression can be compatible with

Article 10 (Art. 10) of the Convention unless it satisfies, inter alia,

the test of necessity as required by the second paragraph of that

Article. In examining whether restrictions can be considered "necessary

in a democratic society", the Contracting States enjoy a certain, but

not unlimited, margin of appreciation. It is, however, ultimately for

the Convention organs to determine whether an interference corresponded

to a "pressing social need" and whether it was "proportionate to the

legitimate aim pursued" (Eur. Court HR, Wingrove v. the United Kingdom

judgment of 25 November 1996, Reports - 1996, para. 53). By reason of

their direct and continuous contact with the vital forces of their

countries, State authorities are in principle in a better position than

international organs to give an opinion on the requirements of "morals"

as well as on the "necessity" of a "restriction" or "penalty" intended

to meet them (Eur. Court HR, Müller and others v. Switzerland judgment

of 24 May 1988, Series A no. 133, p. 22, para. 35).

 

      In the present case, the sole question which arises in the

context of the relationship of proportionality between the interference

with the applicant's right to freedom of expression and the aim pursued

is the question of whether, given that the applicant only distributed

his video cassettes to people who expressed a clear interest, it can

be said that the penalty imposed was capable of protecting the "rights

of others" (see, in this context, Scherer v. Switzerland, Comm. Report

14.1.93, Eur. Court HR, Series A no. 287, p. 20, para. 65). Where no

adult is confronted unintentionally or against his will with filmed

matter, there must be particularly compelling reasons to justify an

interference (above-mentioned Scherer Report, p. 20, para. 65).

 

      The Commission notes that the applicant went to considerable

lengths to prevent cassettes from falling into the "wrong hands": in

the first place, he arranged for advertisements to be placed in a

newspaper, thereafter a leaflet was sent to interested parties and only

then would a cassette be distributed. It was thus very unlikely that

the cassettes would be purchased accidentally. On the other hand, it

is in the nature of video works that once they have been distributed,

they can, in practice, be copied, lent, rented, sold and viewed in

different homes, thereby escaping any form of control by the

authorities (see the above-mentioned Wingrove judgment, para. 63).

 

      The Commission considers that it cannot therefore be said with

any degree of certainty that only the intended purchasers of the film

would have access to it and not minors. To that extent the present case

is different from the case of Scherer, where the only adults who saw

the applicant's videos were those who had access to his shop (above-

mentioned Scherer Report, p. 19, para. 62).

 

      Moreover, the Commission recalls that in its above-mentioned

Wingrove judgment, the Court referred to the danger of video works

escaping any form of control by the authorities (above-mentioned

Wingrove judgment, para. 63). The possibility of such control must

therefore be considered as compatible with Article 10 (Art. 10) of the

Convention as such. All the applicant's activities were designed to

escape any control by the authorities.

 

      Further, the Commission notes that no claim is made for any

artistic merit in the applicant's video cassettes: to that extent, the

present case is different from cases where an applicant has claimed

that artistic considerations should prevail over protection grounds

(see, for example, the above-mentioned Müller and others and Wingrove

judgments, Otto-Preminger-Institut v. Austria judgment of 20 September

1994, Series A no. 295-A, or No. 17634/91, Dec. 2.9.91, unpublished,

where the applicant claimed that the absence of a defence of artistic

merit violated Article 10 (Art. 10) of the Convention).

 

      Accordingly, the Commission considers that in the circumstances

of the present case, where obscene video cassettes were distributed to

a limited circle of viewers but where there was no further control over

them, where the official channels for certification of videos were not

used, and where no artistic merit is claimed for the works, the

applicant's conviction for publishing obscene works was proportionate

to the legitimate aim pursued.

 

      It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

 

2.    The applicant also claims that he was denied a fair trial because

he was refused the right to call and have examined an expert witness

Dr. C. He maintains that the jury had to apply a subjective test as to

whether the videos were capable of depraving and corrupting. He invokes

Article 6 (Art. 6) of the Convention which, insofar as relevant, reads

as follows:

 

      "1.  In the determination of ... any criminal charge

      against him, everyone is entitled to a fair and public

      hearing ... by an independent and impartial tribunal

      established by law. ...

      ...

      3.   Everyone charged with a criminal offence has the

      following minimum rights:

      ...

      (d)  to examine or have examined witnesses against him and

      to obtain the attendance and examination of witnesses on

      his behalf under the same conditions as witnesses against

      him. ..."

 

      The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with applications alleging that

errors of law or fact have been committed by domestic courts, except

where it considers that such errors might have involved a possible

violation of any of the rights and freedoms set out in the Convention

(cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77, p. 81).

 

      Under English law, the test of whether matter is obscene, i.e.

whether an article has a tendency to "deprave and corrupt", is an

objective test. It is for the jury to determine whether the tendency

of the material is such as to deprave or corrupt, and for this purpose,

no expert evidence will be admitted. The question of whether an article

has artistic merit, on the other hand, can be the subject of expert

evidence. Thus in the present case, the applicant was indeed prevented

from bringing expert evidence on the question of whether his videos

were obscene, and any request for such evidence to be led would, as he

says, have been refused.

 

      However, under Article 6 (Art. 6) of the Convention the

Commission is not required to determine whether the criminal law in a

particular area is appropriate. Rather, it must look at the proceedings

as a whole with a view to determining whether the guarantees of Article

6(Art. 6)  were provided.

 

      Given that the question of whether an article is obscene is a

matter for the jury, the fact that the applicant could not bring expert

evidence cannot affect the fairness of the proceedings. The Commission

notes that had the applicant alleged that his videos had any artistic

merit, it would have been open to him to adduce evidence on that point.

 

      Finally, the Commission notes that the statement of the expert

whom the applicant now says he would have wished to have called was in

fact read out at the trial. It was not therefore formally excluded at

all.

 

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

 

      For these reasons, the Commission, unanimously,

 

 

      DECLARES THE APPLICATION INADMISSIBLE.

 

 

      M.F. BUQUICCHIO                             J. LIDDY

         Secretary                                President

   to the First Chamber                     of the First Chamber