Interfact Ltd & Anor v Liverpool City Council & Anor

Under the Video Recordings Act 1984, an R18 recording is supplied where physical possession is transferred, not when a sale is concluded or an order is accepted. The supply must take place in a licensed sex shop. The statutory reference to supply in any manner prevents contractual rules about the passing of property from controlling the meaning of supply.

An offer to supply is an offer to make the prohibited supply outside a licensed sex shop. It is not limited to the place where the offer is communicated and does not require a binding contract. These restrictions are compatible with Article 10 because they pursue the protection of young people and morals and are proportionate.

Interfact Limited and Pabo Limited operated licensed sex shops and were convicted by Liverpool magistrates of offences under section 12(1) of the Video Recordings Act 1984. They supplied, or offered to supply, R18 videos by mail order, telephone and electronic ordering, with delivery to an adult customer away from the licensed premises.

The appeals by case stated concerned whether supply could occur through a transaction made with the licensed shop when the customer was not physically present, whether catalogues and terms constituted offers to supply, whether the statutory interpretation engaged Article 10, and whether Pabo’s costs order was properly made.

1. Appeals dismissed. The convictions and Pabo’s costs order were upheld.
2. Sections 7(2)(c) and 12(1) of the Video Recordings Act 1984 must be construed according to the protective purpose of the classification scheme. The restriction is intended to reduce the risk that R18 material will come into the possession of persons under eighteen, and not merely to ensure that the transaction is conducted by a licensed proprietor.
3. “Supply” in section 1(4) has a wide meaning. It includes the transfer of physical possession and is not determined by when a sale is concluded, when an order is accepted, or when property passes under contract law. A recording supplied by post or courier to a customer outside the licensed sex shop is therefore supplied other than in a licensed sex shop.
4. Section 12(1)(b) concerns an offer to make a supply other than in a licensed sex shop. The relevant place is the place at which the proposed supply would occur, not the place where the offer is made. A catalogue and its terms may amount to an offer to supply even though they may also constitute an invitation to treat for contractual purposes, because the statutory offence does not depend on a binding contract.
5. The restrictions engage Article 10 but are justified under Article 10(2). They pursue the protection of health or morals and young people, make access by minors more difficult, and are lawful, necessary and proportionate. Section 3 of the Human Rights Act 1998 therefore does not require a different interpretation.
6. The costs order involved no demonstrated error of principle or discretion. The court certified a point of general public importance concerning mail or telephone supply of R18 videos, but refused leave to appeal.

The appeals were brought by case stated from Liverpool Magistrates’ Court. The magistrates had convicted both appellants under section 12(1) of the Video Recordings Act 1984. The Divisional Court dismissed the appeals and upheld the order for Pabo’s costs.