British Board of Film Classification, R (on the application of) v Video Appeals Committee

A claimant seeking permission for judicial review must show an arguable error of law and a realistic prospect that the error was material to the impugned decision. Under section 4(A) of the Video Recordings Act 1984, the decision-maker must address potential harm to likely viewers; the statutory language is not confined to actual harm or harm of a devastating kind. For an interim stay, the usual threshold is that success at trial is more likely than not, although the required degree of likelihood is context-sensitive. Once that threshold is met, the court weighs the public interest, private interests and other material circumstances. A stay preventing the exercise of rights granted by the decision will normally require a cross-undertaking in damages unless special features justify dispensing with it.

The British Board of Film Classification challenged the Video Appeals Committee’s decision to allow an appeal concerning the video game Manhunt 2 and to require an 18 certificate rather than no classification. The Board alleged that the Committee had misinterpreted section 4(A) of the Video Recordings Act 1984, particularly by requiring actual rather than potential harm and by treating a ban as justified only where the work had a devastating effect on viewers.

The Board sought permission for judicial review and an interim stay. The court considered whether the proposed statutory challenge was arguable and material, and whether a stay should be granted, including whether it should be conditional on a cross-undertaking in damages.

1. Permission. Permission to apply for judicial review was granted. It was clearly arguable that the Committee had misunderstood section 4(A) of the Video Recordings Act 1984 by stating that a ban required a devastating effect on viewers and by construing the statutory reference to harm as requiring actual rather than potential harm. The error was also arguably material because it went to the heart of the Committee’s decision. [18]–[21]
2. Threshold for a stay. Applying the approach in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, the usual threshold was whether success at trial was more likely than not. The court accepted that threshold as satisfied. The alleged errors were strong, and it was more likely than not that the Board would succeed both in establishing legal error and in showing materiality. [22]–[25]
3. Discretionary balance. The protection of minors created a substantial public interest favouring a stay. That interest had to be balanced against the interested party’s legitimate commercial interests. The stay was therefore granted, subject to the usual requirement of a cross-undertaking in damages. [26]–[29]
4. Cross-undertaking. The court applied the usual approach described in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment of Belize [2003] UKPC 63, also reflected in R v HM Inspectorate of Pollution, ex parte Greenpeace (No 1) [1994] 1 WLR 570. The Board’s statutory public-interest functions, non-profit status and self-funded character did not amount to special features justifying a stay without an undertaking. The expedited hearing reduced, but did not remove, the commercial significance of the undertaking. [30]–[36]

The judgment itself records that McCombe J considered the applications on paper and directed an oral hearing. The present court then granted permission for judicial review and granted a stay on terms.