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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Byrne -v- The Official Censor & Ors [2007] IEHC 464 (21 December 2007)
URL: http://www.bailii.org/ie/cases/IEHC/2007/H464.html
Cite as: [2007] IEHC 464
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Judgment Title: Byrne -v- The Official Censor & Ors Composition of Court: O'Higgins J. Judgment by: O'Higgins J. Status of Judgment: Approved |
Neutral Citation No: [2007] IEHC 464 THE HIGH COURT JUDICIAL REVIEW [2006 No. 849 J.R.] BETWEENJAQUELINE BYRNE APPLICANT AND THE OFFICIAL CENSOR AND THE CENSORSHIP OF FILMS APPEALS BOARD AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of O’Higgins J. dated the 21st day of December, 2007By order of Peart J. dated the 26th July, 2006, the applicant was given leave to apply by way of an application for judicial review inter alia for an order of certiorari quashing the decision of the second named respondent up holding a decision of the first named respondent in refusing to certify a video work entitled ‘Anabolic Initiations’#5’ pursuant to the provisions of the Video Recordings Act, 1989. Although leave was given to apply for other reliefs as well in these proceedings the applicant is applying solely for an order of certiorari and costs. The Background Section 3 (1)(a)(iii) of the Video Recordings Act, 1989 provides as follows:-
· The applicant is the owner of an ‘adult’ shop in the city of Dublin. The word ‘adult’ refers to the age of the customers. · On the 10th March, 2004, through her solicitor she presented a video work with the curious title of “Anabolic Initiations #5” to the Official Censor for certification pursuant to s. 3 of the Video Recordings Act. · By letter dated the 19th April, 2004, she was informed that the certificate had been refused. The letter enclosed a copy of the prohibition order which published in Iris Oifigiúil. The grounds given were that he was of the opinion that the said work “is unfit for viewing because the viewing of it would tend, by reason of the inclusion in it of obscene or indecent matter, to deprave or corrupt persons who might view it”. · By notice of appeal dated the 11th June, 2004, she appealed the said decision to the Censorship of Films Appeal Board in accordance with the provisions of the Act. · Following the lodgment of the appeal the applicant obtained the services of a Mr. Denis Howitt who is a reader in applied psychology at Loughborough University and Association for Criminology. He has written extensively and was the co-author of a study commissioned by the U.K. Home Office Commission entitled “Pornography; Impacts and Influences (1990)” of the psychological and social scientific research on the effects on of pornography, with special reference to sexual violence against women. Mr. Howitt was provided with a copy of the video work at issue in this case along with other videos and produced a report on the 7th November, 2005, which was subsequently submitted to the Censorship of Films Appeal Board. · An oral hearing took place before the appeal board in which it was submitted on behalf of the applicant that she was prejudiced in not knowing the grounds upon which the Official Censor had based his decision. It was further submitted that she was unaware of the material in which he had relied or what criteria he had regard to in reaching that decision.
I refer to your letter of the 26th April requesting, under s. 10(3) of the Video Recordings Act, 1989 a statement from me in writing of the reasons for the making of the Prohibition Order in respect of the above application. Having examined the video work, I am of opinion that, under s. 7(1)(c) of the Video Recordings Act, 1989, it is unfit for viewing because it would tend, by reason of the inclusion in it of obscene or indecent matter, to deprave or corrupt persons who might view it. Yours sincerely, John Kelleher Official Censor.” It will be noted that in the above letter the reasons given by official Censor follow the exact wording of s. 3(1)(a)(iii) of the Act and do not give other reasons for the decision. Initially Mr. Collins S.C. on behalf of the applicants indicated that the decision was impugned on four grounds: (1) There were no or no adequate reasons given to justify the decision; (2) That there was an absence of any evidence to justify the decision; (3) The decision was unreasonable; and (4) That there was lack of proportionality in arriving at the decision. In the course of the hearing however, counsel indicated that he was relying on the first ground only and that the reliefs other than certiorari were not being sought. In those circumstances it is not necessary to consider the report of the psychologist presented to the Appeal Board. It is worth observing however that the Court was not referred to any portion of that report in which the view was stated that the opinion of the Censor was incorrect, still less it was that not open to him to form his opinion on the basis of the evidence. This case accordingly revolves around a net issue of law. The applicant argues that the alleged failure of the respondent to give reasons for its decision to refuse to certify the video recording as fit for viewing, and the decision of the Appeals Board to affirm that decision, amounts to a denial of fair procedures and accordingly the order should be quashed. The respondent takes issue with that contention and maintains that the applicants were at all times aware of the reasons for the decision taken by the Official Censor and later affirmed by the Appeal Board for the following reasons: (1) The respondent contends that it is clear from paragraph 2 of the affidavit of the applicant that the applicant considered this to be a test case even prior to the making of any decision, and furthermore that she anticipated the grounds of refusal. I was referred to the letter from the applicant’s solicitor to the Official Censor’s Office dated the 10th March, 2004, in which the applicant’s solicitor inter alia states:-
We are instructed that our client the applicant for certification pursuant to s. 3 wishes to be heard before you, in the event that you are mined (sic) to refuse the certification sought. The reason for our client’s desire to be heard before you is to make submissions regarding the following:- (2) that are (sic) the refusal to certify constitutes the breach of our clients constitutional rights; (3) that are (sic) refusal to certify constitutes a breach of the principle of proportionality as acquired by the European Convention on Human Rights; (4) that in coming to a decision as to whether to certify, in the event that you are of the view that certification is not to be made, that you want have before you evidence of a specialist and expert nature.” It is clear from the above that even prior to the decision being made the applicant anticipated the actual grounds for the Official Censor’s refusal to certify the work fit for viewing. (2) The respondent also points to the decision detailed in the prohibition order which specifically states the reason why the censor refused to certify the video as fit for viewing (albeit in the form of the words of the Act). (3) The applicant relies on the fact that a legal submission submitted to the Appeal Board under cover of letter dated the 30th November, 2005, made it clear that the applicant knew why the video in question had been refused a certificate “in the instant case the purported reason given as to why a certificate was not granted was on the basis of s. 3(1)(a)(iii) i.e. that it would tend, in the opinion of the censors by reason in the inclusion in it of obscene or indecent manner, to deprave or corrupt persons who might view it”. (4) The respondent relies also on the fact that in response to the request made on the 26th April by the Appeal Board under the provision of s. 10(3) of the Act the reply of the Official Censor made it clear the reason for the refusal to certify the video work as fit for viewing to because he was of opinion that it was unfit for viewing because the viewing of it would tend, by reason of inclusion in it of obscene or indecent matter, to deprave or corrupt persons who might view it”. (5) The respondent relies on paragraph 11 of the affidavit of the applicant to show that she was aware of the reasons for the refusal to certify the video. The relevant part of the affidavit reads as follows:
It is quite clear that the applicant was quite aware of the fact that the refusal of the Official Censor to grant a certificate to the video was because he was of opinion that it fell within the parameters of s. 3(1)(a)(iii) of the Act, and that the decision of the Appeal Board was on the same basis. The net issue is whether the reiteration of the grounds set out in s. 3(1)(a)(iii) of the Act was sufficient. The respondent maintains that the recital of such grounds was adequate and that the applicant in seeking further information was not looking for reasons for the decision but was seeking something more, or “reasons for the reasons” as it was put by Mr. Bradley S.C., counsel for the respondent. The respondents also rely on the fact that there was an oral hearing at which the applicant was represented by counsel and made submissions as further support for their contention that the applicant was aware of the decision, and the reasons for it and that she was at no disadvantage. There is at this stage no complaint in relation to the quality of the decision or the basis on which it was arrived at. The applicant however maintains that the employment of fair procedures at the hearing and in arriving at the process are not of themselves sufficient, and submits that the giving of reasons or adequate reasons is an integral part of fair procedures. She contends that even if the proceedings were conducted totally in accordance with proper and fair procedures the failure to give reasons or sufficient reasons is procedurally unfair and constitutes grounds for quashing the order made. The Law The legal principles to be applied in this case are not really an issue and may be stated as follows: (1) Statutory expressions which to convey a discretion do not confer an absolute or an absolute or unqualified power. The decision maker is obliged to act in a fair and judicial manner in accordance with the principles of natural and constitutional justice (East Donegal Co-Operative Ltd v. Attorney General [1970] I.R. 317, 343, 344):
(2) Fair procedures require the decision maker exercising statutory powers that effect the exercise of legal rights and obligations of the applicant to give reasons for the decision, see The State (Creedon) v. Criminal Injuries Compensation Tribunal [1988] I.R. 51, where Finlay C.J. said at p. 55:-
(3) The giving of reasons by the decision maker is also a requirement of constitutional and natural justice, to ensure that the Superior Courts may exercise their jurisdiction, and that the applicant in judicial review proceeding is not disadvantaged by the absence of reasons necessary to enable the formation of a decision as to whether to challenge the decision. The respondent relies on the judgment of the Supreme Court in the case of T.B.L. v. Minister for Justice [2002] 1 IR 164. In that case, Hardiman J. considered contentions that the reasons given for a decision were inadequate in the context of the Deportation Order under the Immigration Act, 1999. Section 3(3)(d)(ii) of the Act requires the applicant to notify in writing a decision to make a Deportation Order and specifically to give reasons for the decision. In arriving at the decision, the Minister was obliged to have regard to no less than eleven different matters set out in s. 3(6) of the Act. Each applicant received a communication the material part of which stated as follows:
In reaching this decision the Minister has satisfied himself that the provisions of s. 5 (prohibition of refoulement) of the Refugee Act, 1996 are complied with in your case. The reasons for the Minister’s decision are that you are a person whose refugee status has been refused and, having regard to the factors set out in s. 3(6) of the Immigration Act, 1999, including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration system outweigh such features of your case as might tend to support your being granted leave to remain in this State.”
Moreover, it seems clear that the question of the degree to which a decision must be supported by reasons stated in detail will vary with the nature of the decision itself. In a case such as International fishing Vessels Ltd., v. Minister for Marine [1989] I.R. 149 or Dunnes Stores Ireland Company v. Maloney [1999] 3 IR 542, there was a multiplicity of possible reasons, some capable of being unknown even in their general nature to the person affected. This situation may require a more ample statement of reasons than in a simpler case where the issues are more defined. Thus, in a case dealing with a response to representations of precisely the kind in question here, but given prior to the coming into force of the Act of 1999, Geoghegan J. considered the adequacy of a decision. That was in Laurentiu v. Minister for Justice [1999] 4 IR 26, where the decision was in the following form at p. 34:-
Counsel for the applicant however contends that that judgment is not of assistance to the respondent in the context of the present case and pointed out that in the judgment of Hardiman J. adopted the words of the trial judge who stated “these cases take as their point of departure, the conclusion of a process under the Refugee Act, 1996 … no proceedings have been taken against the various decisions made under [that Act]”. Undoubtedly the fact that the applicants were at that the time of the making of the order people who were not entitled to remain within the State was a fact which “constrains the nature of the decision to be made” in this case but the observations of Hardiman J. are of assistance in this case. The Decision In my view it is useful in the determination of this case to look at the provisions of s. 3(1) of the Video Recording Act, 1989, in its entirety. S. 3(1) reads as follows:-
(i) would be likely to cause persons to commit crimes, whether by inciting or encouraging them to do so or by indicating or suggesting ways of doing so or of avoiding detection, or (ii) would be likely to stir up hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation, or (iii) would tend, by reason of the inclusion in it of obscene or indecent matter, to deprave or corrupt persons who might view it, or ( b ) it depicts acts of gross violence or cruelty (including mutilation and torture) towards humans or animals. It is clear that the section provides not only different grounds necessary for the formation of the Official Censor’s decision but in addition circumscribes the basis on which he is entitled to form those grounds. It is equally clear that the Official Censor is entitled to form his opinion for many different reasons prescribed by law. For example the Censor is entitled to form the opinion that a video work is unfit for viewing on the basis that it would be “likely to stir up hatred” on account of one or more of no less than seven different matters to wit race, colour, nationality, religion ethnic or national origins, membership of the travelling community or sexual orientation. The reasons given by the Official Censor in this case gave a considerable amount of information to the applicant. It informed her of the specific grounds on which the decision was made out of all the possible grounds provided for in s. 3(1)(a) & (b) of the Video Recordings Act, 1989. The fact that it was in the words of the statutory provisions does not in my view detract from its adequacy. If a statement of reasons is adequate it is not rendered inadequate by virtue of the fact that it follows the wording of a statute: the following of the words of the statute does not turn an adequate reason into an inadequate one. Nor does it transform the reason “into an unacceptable administrative formula such as has been criticised by the courts”. The purpose of giving reasons to show why the action was taken by the decision maker. In my view the Official Censor made it clear why he formed an opinion that “Anabolic Initiations #5” was unfit for viewing. If the question were asked of the applicant as to why the video work was refused a certificate she would have been able to answer, as a result of the reasons given by the Censor, that it was because of the fact that the Censor was of the opinion that it was unfit for public viewing. If she were further asked why the Official Censor formed that opinion she would have been able to answer as a result of the information supplied by the Censor, that, out of all possible statutory reasons available to him, he formed that opinion on the basis that the video work in question had a tendency to deprave or corrupt. If there were yet a further enquiry as to how he formed the view or on what basis he formed the view that the video work tended to deprave or corrupt the applicant would have been able to reply, as a result of the information given by the Official Censor, that it was by reason of the inclusion in the video work of indecent or obscene matter. It was also a fact that submissions were made on behalf of the applicant in this case with the benefit of lawyers and it was clear that the video work in question had been viewed by the Censor. It is true that the Censor did not provide a analysis of the film or discuss in detail the parts of the video which led him to form his opinion. In my view there was no necessity for him so to do, nor was it incumbent upon him to give a short analysis of the parts or the contents of the video recordings that influenced his decision. In my view sufficient information was conveyed to the applicant for the refusal to certify the video recording. Enough information was supplied to direct the mind of the applicant as to why a certificate was refused. As a result of that the applicant had sufficient information on which to decide whether or not to challenge the decision (for example on the basis of it being irrational or unsupported by evidence). There is no reality therefore in the contention that the applicant was in any way disadvantaged and not by want of reason so as to make it for difficult for her to know whether to appeal or not. This is in contrast with the cases where there had been a failure to divulge which, out of a number of possible reasons, was the one on which a decision was based. For the reasons set up in my view above this challenge to the decision of the Official Censor and the Censorship of Films Appeal Board must fail. There is no basis in which the decision (affirmed on appeal) should be quashed and the matter remitted for further consideration as to whether the video work “Anabolic Initiations # 5” should be granted a certificate under the provisions of the Act.
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