England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 January 2008

1. MR JUSTICE MITTING: The distribution of video recordings is governed by the Video Recordings Act 1984, as amended. Any video work as defined by Section 1 (2) is exempted from prior censorship if, taken as a whole -

" .....

(c) it is a video game."

But it is not exempt if, to any significant extent, it -

" ..... depicts -

.....

(b) mutilation or torture of, or other acts of gross violence towards humans or animals."

This judicial review concerns a video game which, for present purposes, is accepted not to be exempt because it depicts gross violence towards humans.

2. Section 4 (1) (a) permits the Secretary of State to designate any person as the authority responsible for making arrangements -

"(a) for determining for the purposes of this Act whether or not video works are suitable for classification certificates to be issued in respect of them, having special regard to the likelihood of video works in respect of which such certificates have been issued being viewed in the home."

Absent such a certificate, it is by virtue of Section 9 a criminal offence to supply a video work which is not exempt.

3. The persons designated by the Secretary of State for the purpose of classifying video works are the President and Vice President of the British Board of Film Classification (BBFC), a private body which has been in existence since before the First World War. Section 4 (3) provides for arrangements to be made for an appeal against the decision of a classification authority. In the case of video works the appeal body is the Video Appeals Committee of the British Board of Film Classification.
4. Section 4A, inserted by the Criminal Justice and Public Order Act 1994, sets out the criterion for suitability to which special regard is to be had. It imposes an obligation on the designated authority. It is common ground that that includes the Appeal Committee:

"(1) The designated authority shall, in making any determination as to the suitability of a video work, have special regard (among the other relevant factors) to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with -

(a) criminal behaviour;

.....

(c) violent behaviour or incidents;

(d) horrific behaviour or incidents;

.....

(2) For the purpose of this section -

'potential viewer' means any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued;

'suitability' means suitability for the issue of a classification certificate or suitability for the issue of a certificate of a particular description;

'violent behaviour' includes any act inflicting or likely to result in the infliction of injury ..... "

5. The legal issue in this claim revolves around the interpretation of the phrase "to any harm that may be caused to potential viewers". The video work which is the subject of this claim is a video game marketed under the name "Manhunt 2" by the interested party Rockstar Games Inc. It has been licensed or certified for distribution in the United States and in many continental European countries with an age restriction.
6. I need say little about the object of the game. In a nutshell it is to go through several stages to reach the end by killing or avoiding enemies in human form by a variety of methods and with a variety of weapons. The BBFC described it as follows in its letter dated 19 June 2007 declining to classify the game at all:

"Manhunt 2 is distinguishable from recent high-end video games by its unremitting bleakness and callousness of tone in an overall game context which constantly encourages visceral killing with exceptionally little alleviation or distancing. It is a game wholly devoted to stalking and killing human characters in a modern urban environment. In order to progress, the game player must kill almost every character encountered. Many of these killings are 'sneak attacks' in which the character controlled by the game player hides in shadows until his victim's back is turned, then creeps up behind him and attacks with one of a large variety of weapons available to him. Killing in such a fashion maintains the character's health, whereas fighting face to face depletes the character's health and risks failure to complete the level. There is sustained and cumulative casual sadism in the way in which these killings are committed, and encouraged, in the game.

Of particular concern to the Board is the game's unrelenting focus on stalking and brutal slaying and the sheer lack of alternative pleasures on offer to the gamer. There is no significant objective other than killing and the only significant variety in the game play involves making use of the full range of weaponry, including: syringes, pens, shards of glass, knives, axes, saws, a bottle (both unbroken and broken), a mace, baseball bat with barbed wire, spades, pliers, plastic bags, garden shears, a circular saw, prod, night stick, flare gun, hand gun, sniper rifle, Uzi machine gun, shotgun, toilet cistern lid, iron maiden, electric chair, meat hooks and an industrial compactor. Each weapon produces its own unique set of 'kill images', encouraging players to seek out the most brutal and graphic kill possible."

7. The game as originally created was modified so as to blur the images in which killing occurs. But nevertheless it remains as described by the Appeals Committee in paragraph 9 of its decision:

" ..... it was clear that a competent gamer playing the game as the Board played it would be exposed to brutal and unremitting violence using a variety of implements."

The BBFC refused to classify the film.

8. Rockstar appealed to the Appeals Committee, as was its right. The Appeals Committee allowed its appeal by a written decision dated 11 December 2007 and classified the game 18, that is to say a game which could only be sold to those aged 18 or over.
9. Mr Caldecott QC appeared on appeal for the BBFC. Mr Robertson QC appeared for Rockstar. Both made submissions of law to the Committee which the Committee characterised as containing a "sharp division". The legal issue revolved around the interpretation of the phrase which I have identified in Section 4A.
10. In the course of seeking to persuade the Committee of their respective interpretations of that phrase, both leading counsel referred the Committee to the speech of Earl Ferrers introducing Section 4A of the Bill. I set out the relevant parts of what Earl Ferrers said in full as reported in the earlier hearing before the Appeals Committee concerning Sheptonhurst Ltd:

" ..... it leaves the British Board of Film Classification with discretion to decide what to do once it has considered a work on the basis of the criteria which will be laid down in the Bill. If it concludes for example, that the work will set a bad example to very young children, it need not ban the video altogether but it can place it in an age restricted category. There may be some works which the Board believes would have such a devastating effect on individuals or on society if they were released that there should be the possibility of their being refused a video classification altogether, and the clause leaves the Board free to do that.

The criteria mean that the British Board of Film Classification must consider who in fact is likely to see a particular video, regardless of the classification, so that if it knows that a particular video is likely to appeal to children and is likely to be seen by them, despite its classification being for an older group, then the Board must consider those children as potential viewers. That does not mean that the Board must ban the video altogether. The Board will still have discretion on how or whether, to classify it; but it must bear in mind the effect which it might have on children who may be potential viewers."

Mr Caldecott relied on the latter passage, Mr Robertson on the first.

11. There was nothing to prevent the Board from reading and taking into account Earl Ferrers' speech as part of the background material which it considered. But it was only entitled to take into account what Earl Ferrers said in proposing the Bill for the purpose of interpreting Section 4A if there was, in truth, any ambiguity or absurdity in it (see Pepper v Hart [1993] AC 593 at 640C). In fairness to the Committee, it concluded that there was no ambiguity in Section 4A. It was right to do so. Section 4A, read together with Section 4 (1) (a), contains no ambiguity let alone absurdity. Section 4 (1) (a) directs the Board and the Appeal Committee to have special regard to the likelihood that video works, including video games, may be viewed in the home.
12. That has self-evidently two potential consequences. First the video work will not be publicly displayed, so that any question of public outrage cannot arise in respect of it. But, secondly, the control over those who may view it is likely to be more lax than in the case of, for example, a cinema where the cashier can make a reasonable judgment about the age of someone seeking to view a film.
13. By Section 4A Parliament clearly had in mind that a video work classified as suitable for viewing by adults might, in the home, nonetheless be readily viewed by children. Section 4A requires the Board and the Appeals Committee to have regard to any harm which may be caused to "potential viewers", as defined by sub-section (2), as including a child or young person "who is likely to view the video work in question". The combination of the availability of video works in a home to children living in that home and the express words of Section 4A make it plain beyond argument, as the Appeals Committee found, that even in respect to video works classified as suitable only for adults the Board and the Appeals Committee were required to have special regard to harm which may be caused to children as well as adults. There was, in short, no need to refer to Lord Ferrers' speech to draw that obvious conclusion.
14. The sharpest difference between Mr Robertson and Mr Caldecott was the meaning of the phrase "to any harm that may be caused". Mr Robertson submitted that actual harm, as opposed to potential or speculative harm, was what Parliament had in mind. Mr Caldecott submitted that potential harm or the risk of harm or the real risk of harm is what Parliament had in mind.
15. In considering these submissions, the Appeals Committee decided as follows:

"21 We do not have any difficulty with interpretation and think it reasonably clear even though we do not agree with Mr Caldecott's interpretation in relation to the word 'harm' given its placement in the section. However the speech having been given in evidence by the Board leaves us, we believe, with no alternative but to consider it, which means the appellants may also quote from it."

In paragraph 22 the Board went on to quote from passages I have cited in Earl Ferrers' speech. In paragraph 23 it concluded its discussion of Earl Ferrers' speech with these words:

"23 What is clear is that the Board must have regard to children being potential viewers of material despite its classification for a higher group but that there should be a ban only when the work has a devastating effect on those who view it."

16. Mr Robertson submits to me that the Appeals Committee was not there laying down a legal test which it proposed to apply but was simply summarising what Earl Ferrers said. That submission does not hold water. That sentence contains the only clear statement of the approach which the Appeals Committee was to take to the question of harm to children. It was in my view clearly directing itself that it "must" have regard to children being potential viewers of the material. It therefore follows that when it observed "but that there should be a ban only when the work has a devastating effect on those who view it" it was laying down the test which it was directing itself to apply, and not simply recording the gist of what Earl Ferrers had said. In so doing it was making improper use - by which I mean no more than use which it was not entitled to make - of Parliamentary comments.
17. Further - and with respect to its interpretation of what Earl Ferrers said - it seems to me to misunderstand what he was saying. When he said:

"There may be some works which the Board believes would have such a devastating effect of individuals or on society if they were released,"

he was not purporting to lay down a statutory test or to give guidance as to the interpretation of the statutory test contained in Section 4A, but simply to give an example, in ordinary language, of circumstances in which the Board might, in the exercise of the powers which it had, refuse to classify it. There is not and never has been a legal requirement that the Board or the Appeals Committee must determine that a video work "would have such a devastating effect on individuals or on society if they were released" before refusing certification altogether.

18. The self-direction of the Appeals Committee to opposite effect was, in my view, a clear error of law.
19. In paragraph 24 the Committee undoubtedly directed itself as to the principal sharp division between Mr Robertson and Mr Caldecott:

"24 We return to the interpretation of 'harm' in this context. Mr Caldecott says that Section 4A (1) obliges the Board to have regard to the possibility of harm. Not so says Mr Robertson, the words plainly state there must be harm caused to the viewer. The word 'any' preceding harm suggests that it does not matter whether the harm is great or small but our interpretation is that there must be actual as opposed to potential harm."

In the first part of the last sentence the Appeals Committee correctly directed itself that the word "any" qualified harm and that it did not matter whether the harm was great or small. In either event, it was required to give special consideration to it.

20. It is not entirely clear to me what was meant by the second part of the sentence -

" ..... our interpretation is that there must be actual as opposed to potential harm."

If by that phrase it meant that it was for the Board to establish that video works of a similar kind to that under appeal had caused harm to children then in my view that would have been an error of law. The relevant words of Section 4A (1) are plainly directed to harm which "may be caused". If Parliament had intended that it was necessary to demonstrate that harm had been caused to children by works similar to those in respect of which classification was sought, then the words "that may be" could have been omitted so that the statutory phrase read "to any harm caused". It is, with respect to the Appeals Committee, self-evident that in relation to a video work which has not yet been released they are judging its impact in future if it is to be released and, if so, under what classification. The task of the Board and the Appeals Committee is to have special regard to any harm that may in future be caused to potential viewers by the viewing of the video work under appeal.

21. Mr Robertson submits that the statutory test can be paraphrased by asking the question: is there a real as opposed to a fanciful risk that harm will be caused to potential viewers, including children? I accept that paraphrase of the statutory test. It seems to me to encapsulate precisely that to which it is directed. Indeed I do not understand Mr Caldecott, for the Board, to say otherwise. The Board's own guidance poses the question: is harm likely to be caused? Which is another way of putting the same test.
22. Accordingly although it is far from clear precisely what the Committee meant by its words, it seems to me that there is at least the possibility that it misdirected itself in law in that respect.
23. When it went on to consider the material placed before it for it to exercise its judgment, it was on much firmer ground. It considered research in America and elsewhere and concluded, as it was plainly entitled to do, that the results from America were inconsistent and, insofar as they suggested anything, they suggested there was no or only a limited effect of playing violent games on children and that the United Kingdom research was seriously lacking. It concluded at paragraph 35:

"35 We do not consider that the research has helped us a deal, especially the effect of these games on adults."

24. Its conclusions were set out in paragraphs 48 to 57. Its conclusions were reached by a majority of 4 to 3. I need not, for present purposes, concern myself with the reasoning of the minority at all. Mr Robertson criticises their reasoning. He will have the opportunity, in due course, of making submissions about that to the Committee. The majority directed itself at paragraphs 50 to 53 in these terms:

"50 We have found this a very difficult case and we are divided in our decision. The majority accept that there must be shown to be harm likely to be caused to a player or a member of society through the actions of that player. They see no evidence in the research that any harm has been shown to be likely, they accept the appellant's submission that gamers will be so immersed in playing the game, looking to reach the next stage in the level without being killed, that they will not be in any way affected by the mayhem on the screen. They are playing a fantasy game with cartoon-type characters which lack realism."

25. At paragraph 51 they reached a conclusion that they considered the game to be suitable for adults. Paragraphs 52 and 53 contained their conclusions about children:

"52 The effect upon children is much more difficult and the majority have taken this into account. They naturally accept that children need protection and that a child is not the best judge of what is suitable for him. But, here again, the majority feel they cannot do otherwise than accept that there is little or no compelling research to show children can be affected and are impressed that, apart from one wholly discredited case, there is nothing to show that those finding themselves in court for violent offences have committed them as a result of, or partially as a result of, playing violent games.

53 The majority are well aware of their responsibility to do their best to support parents to protect their children from malign influences and have taken note that many parents are concerned about their children being exposed to violent images. They wish to point out that in news programmes there are many disturbing moments and in movies the reality brought to the screen can be many times more harmful. It is their own experience of playing and watching experts play the game that persuades them that harm is unlikely to be caused to either adults or children and they consider an '18' certificate should be granted."

26. The reference to play and watching experts play the game was a reference to when committee members attempted to play the games and then watched expert players, produced by the Board and Rockstar, play the game to a higher standard.
27. If those conclusions had stood alone, as Mr Caldecott accepts, he would have some difficulty in challenging them for legal error. If I were confident that the majority of the Committee had not allowed itself to be influenced by its erroneous self-directions earlier on in its decision, then I would have dismissed this claim for that reason. But I apply the test adumbrated by Lord Browne-Wilkinson in R v Hull University Visitor ex p Page [1993] AC 682 at 702D:

"This House was asserting that the mere existence of a mistake of law made at some earlier stage does not vitiate the actual decision made: what must be shown is a relevant error of law, ie, an error in the actual making of the decision which affected the decision itself."

28. I can see no good reason why the Committee should have analysed and explicitly directed itself to the law to be applied if it did not then subsequently intend to apply it in its decision and do so. Accordingly it seems to me inevitable that its conclusions in paragraphs 50, 52 and 53 of its decision were affected by its self-directions of law given earlier. In those circumstances it seems to me that the only just method of disposing of this judicial review is for me to quash the decision of the Committee and remit it to the same Committee to re-examine in accordance with the directions of law which I have already given.
29. In deference to Mr Robertson's argument, I deal with one further topic - Article 10 of the European Convention on Human Rights and Sections 3 and 12 of the Human Rights Act 1998. I can do so very shortly. The word "harm" in Section 4A (1) must be construed as referring only to harm of a kind identified in Article 10.2 of the Convention. That is not a matter for me to determine on this claim but for the Committee to take into account when it reconsiders its decision. No question arises under Section 12 of the Human Rights Act at this stage. I am not "considering whether to grant any relief which, if granted, might affect the exercise of a Convention right to freedom of expression". I am determining whether or not the relevant expert body has made an error of law in its determination. As far as Section 3 is concerned, of course Section 4A (1) must be read and given effect to in a way that is compatible with Convention rights. Provided that "harm" is defined so as only to refer to harm of the kind identified in Article 10.2, then the requirements of Section 3 will be fulfilled.
30. I invite submissions on consequences of that.
31. ME CALDECOTT: I deal with one practical matter. It would be helpful for obvious reasons if a written copy of your judgment could be available as soon as possible. That would assist the Committee in reconvening and - - - - -
32. MR JUSTICE MITTING: These are well-funded parties, and I have no doubt that they will pay for a transcript.
33. ME CALDECOTT: I am sure they will. I just mention it because it is sensible. I picked up two points in your judgment because it was extempore. There was a point where you referred to the majority when and you meant the minority; just so that when we check it we are mindful of it. I also think - I may be wrong - that in the penultimate line of paragraph 53 we had the word "likely", not the word "unlikely". I can see that Mr Robertson's junior picked that up as well. It is so we do not lose those crucial points when we check the transcript.
34. MR JUSTICE MITTING: Thank you for that. It will appear on the transcript itself. I will do my best to correct those things. If they are the only ones I have made I congratulate myself.
35. MR CALDECOTT: On the question of costs, I have a rather unusual application to make. The Board accepts there is value in this judgment in terms of its wider powers. It also accepts, being pragmatic, that there is a mild indication that we did not entirely help in relation to the Earl Ferrers question. I am absolutely open about it. On the other hand, this is an unusual case in the sense that the clear misdirection of law and the possible misdirection of law - and I accept that they are not the same, you found one was clear and one was possible - was directly a consequence of submissions made by Rockstar and pursued. They do not ask for all their costs, but they are self-funding. They have to fund themselves out of the money they get. They ask for a proportion of costs in your Lordship's discretion. We do not ask for all our costs, acknowledging those two questions as being perhaps reasons why we should not have all of them.
36. MR ROBERTSON: There is another reason they should not have any of them, and that is that the BBFC is a creature of the Board. It is the Board's appeal body. You will see from Section 4 (3) that before being designated and entitled to obtain fees from all and sundry who want to distribute DVDs, videos and computer games they must satisfy the Secretary of State they have installed a proper appeal system. The VAC - while it is independent of the Board because the individuals who sit on it are independent people - it has its offices, I think, in the Board's offices. It is funded - - I do not know the details, but, as a statutory body, the VAC is not an independent body, it is the Board's body.
37. As I heard your Lordship's judgment rather than read it, it was certainly the ambiguity in paragraphs 23 and 24 which has led to this matter being returned to the VAC for it to consider what is really meant in a sense. And because although the Earl Ferrers' test was there, because initially it was the Board that put it up, it is a question as to whether it was relevant at all. These were mistakes or errors that may have been made by the VAC itself. So it is not an appropriate exercise or appropriate occasion for any costs to be awarded against the interested party who, after all, pays a substantial fee to the VAC to hear its appeal.
38. The last regulation is that if the appeal is wholly successful it gets its appeal fee refunded. We have yet to see whether the appeal will be successful because it is going back, as it were. It is not, in my submission, an appropriate case for an award of costs because the Board is, from the costs perspective, the VAC. It is part of the apparatus that it must put in place in order to be designated.
39. MR CALDECOTT: I do not entirely follow the argument about the VAC. They are simply under the arrangements. They are not appointed by the Board. They do not have an office at the Board. We never recover our costs of appearing on these appeals.
40. MR JUSTICE MITTING: Had the Board been the effective defendant to these proceedings would you have claimed costs against the Committee?
41. MR CALDECOTT: I think the answer to that is probably no. Assuming that the interested party had not appeared and we would have been responsible we might have sought it against them.
42. MR JUSTICE MITTING: If a party had played no part in the judicial review you would not have succeeded. This is all - - - - -
43. MR CALDECOTT: It is all hypothetical. I would have no one to recover my costs against if I had been appearing - - - - -
44. MR JUSTICE MITTING: The Earl Ferrers heresy - if I can call it that, by which I mean no disrespect to his Lordship of the heresy that has arisen as a result of the use of his remarks in the House of Lords - is one that appears to have run through the VAC's decisions and indeed the Board's reasoning over the years.
45. MR CALDECOTT: I am not defending myself at all, but in fairness it skips in and out of the VAC reported judgment, not quite in the way of a test. But there is one paragraph, and Lord Lester refers to it, in a similar sort of tone. That is why I have accepted there is to some degree an element of benefit to the Board in this decision. But both on that and also, in fairness, the muddying of the actual harm/potential harm issue which was not helped by the submissions which were time and again made that it had to be actual harm, not in the context of strange types of harm. I appreciate that your conclusion on that is less certain. Nonetheless this is a case where to elevate it to the test to be applied was simply wrong. It was something that we clearly opposed and it was persevered with right the way through. We accept that a discount is appropriate.
46. MR JUSTICE MITTING: Rockstar have lost on an issue on which they relied before the Committee and upon which, couched slightly differently, they relied before me. The self-probable misdirection was important to the Committee's decision and I think that Rockstar must bear the costs of that issue. It is only one of two issues for determination and it is not right that they should pay for more than half the Board's costs. I order that they pay half the Board's costs of the judicial review to be subject to detailed assessment if not agreed.
47. MR ROBERTSON: Does that exclude the research issue, the third issue which was not really pursued? There was a good deal of paper directed to an issue which was not pursued but was very clear from the outset of this review that there were three issues.
48. MR JUSTICE MITTING: I have approached my costs position on the basis that there were only two.
49. MR ROBERTSON: There were two argued, but the third was there in the papers. I would not like Rockstar to have to bear the weight of the costs of that payment.
50. MR CALDECOTT: The research issue only takes up two paragraphs - pages 23 and 24 - of our skeleton argument. It was always, so far as we were concerned, very much a subordinate question.
51. MR JUSTICE MITTING: I think that is right. I am not prepared to amend my order on the matter.
52. MR ROBERTSON: May I take instructions on another matter?
53. MR JUSTICE MITTING: Certainly. (Pause)
54. MR ROBERTSON: I appreciate, as it were, that this is a side matter. My clients are concerned why should they pay the costs of an issue in which they might succeed if it is an issue that the VAC, at the end of the day, decide in our favour.
55. MR JUSTICE MITTING: The VAC may decide in your favour if it underlines (?); I hope my judgment makes that perfectly clear. It is not the issue with which I was concerned which was whether or not their existing decision could stand on the basis of the legal reasoning which it contained. You sought to uphold it. My answer is no, you have lost the judicial review and therefore that answers the question you have raised.
56. MR ROBERTSON: I am grateful. I will give that explanation. I will have to consider any question of appeal. I think under the rules it can be done directly to the Court of Appeal.
57. MR JUSTICE MITTING: Certainly. You are invited to apply to the first instance judge first, and if refused you can go to the Court of Appeal.
58. MR ROBERTSON: May I take instructions on that and let you know in due course, within this week? I will let you know tomorrow.
59. MR JUSTICE MITTING: Yes. As regards remitting it, is it necessary for me to give any special directions about what should happen? I do not want to find that because one member of the Committee is abroad and out of contact for a lengthy period that the decision cannot be made, in particular if that person happened to be in the minority. Of course it must be the seven who determined the issue. Ideally it all ought to be by way of jury discussion in the same room, but if in fact that is not possible - given the commercial urgency of the matter - I cannot see any reason why one member, perhaps two, should not be in telephone communication with those who are gathered together.
60. MR CALDECOTT: That seems entirely pragmatic for my part. We do not have any problems.
61. MR ROBERTSON: We would not have thought directions were necessary. The chairman is here and perfectly capable of taking a decision or indeed inviting submissions.
62. MR JUSTICE MITTING: I had in mind the commercial urgency of your clients.
63. MR ROBERTSON: Thank you.
64. MR CALDECOTT: I do think it helpful to indicate that that is not a problem here in court, otherwise everything has to be done through solicitors and that is another week that is lost. I suggest it is helpful to clear the air on that and the other points.
65. MR JUSTICE MITTING: Do you have any submissions?
66. MR ROBERTSON: We want it done properly.
67. MR JUSTICE MITTING: You want everybody under the same roof at the same time.
68. MR ROBERTSON: Not necessarily, but we both know, as it were, it may create more problems than your Lordship thinks it will solve.
69. MR JUSTICE MITTING: In the light of that, I explicitly make no direction or suggestion as to how the re-convened committee is to carry out its reconsideration. I leave it to the chair.
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