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

When a statutory decision-maker assesses possible future harm, the statutory phrase harm that may be caused concerns a real, rather than fanciful, risk. Actual evidence that comparable material has already caused harm is unnecessary. Parliamentary statements may assist statutory interpretation only where the legislation is genuinely ambiguous or produces an absurdity. A decision is vitiated by an earlier legal error only where the error was relevant and affected the making of the decision. A statutory expert body must not convert illustrative Parliamentary comments into a legal threshold which Parliament has not enacted.

The British Board of Film Classification challenged the Video Appeals Committee’s decision to classify the video game Manhunt 2 as suitable for persons aged 18 and over. The Committee had allowed Rockstar Games Inc’s appeal against the Board’s refusal to classify the game.

The claim concerned the interpretation of the Video Recordings Act 1984, particularly the requirement to have special regard to harm that may be caused to potential viewers, and whether the Committee had lawfully used a Parliamentary speech when formulating its approach. The court also considered whether the Committee’s conclusion on the research evidence was independently sustainable.

1. Claim allowed. The Committee’s decision was quashed and remitted to the same Committee for reconsideration according to the correct legal directions.
2. Section 4A of the Video Recordings Act 1984, read with section 4(1)(a), was unambiguous. It required the Board and the Appeals Committee to have special regard to harm that might in future be caused to potential viewers, including children likely to view material at home despite an adult classification.
3. The statutory test could properly be expressed as asking whether there was a real, rather than fanciful, risk that harm would be caused to potential viewers. The Committee would have erred if it required proof that similar video works had already caused harm to children. The statutory words concerned harm that may be caused in the future.
4. The Committee clearly erred in law by treating Earl Ferrers’ Parliamentary comments as establishing that refusal of certification required a finding that the work would have a devastating effect on individuals or society. The comments gave an example of circumstances in which the statutory discretion might be exercised. They did not define the statutory test.
5. The Committee’s treatment of the research evidence was, if standing alone, a conclusion it was entitled to reach. However, its express legal self-directions were intended to guide its subsequent decision-making. The court therefore inferred that the erroneous directions affected the majority’s conclusions on adults and children. The error was consequently relevant within the approach stated in R v Hull University Visitor, ex p Page [1993] AC 682.
6. Article 10 of the Convention was relevant to the meaning of harm. Section 4A(1) had to be read compatibly with Convention rights under section 3 of the Human Rights Act 1998. Section 12 did not arise at this stage because the court was deciding whether the expert body had made an error of law, rather than granting relief affecting freedom of expression.
7. The interested party was ordered to pay half the Board’s costs, subject to detailed assessment if not agreed.

First-instance judicial review of the Video Appeals Committee’s decision dated 11 December 2007. The Committee’s decision was quashed and the matter was remitted for reconsideration.