Dryzner & Anor, R v

A compulsory pre-classification regime for video works is compatible with article 34 TFEU where it is non-discriminatory and justified under article 36 by the protection of public morality. Protecting children and the public from unsuitable or extreme material falls within that justification. The examination procedure must be accessible and capable of completion within a reasonable time.

Any interference with freedom of expression caused by the regime is lawful, necessary and justified for the protection of health and morals under article 10(2) of the Convention. Unsubstantiated assertions that classification costs create a disproportionate barrier to trade do not establish invalidity.

Ewa Dryzner and Play Media Distribution Ltd were convicted at Luton Crown Court on eight counts of supplying DVDs containing video works for which no British Board of Film Classification certificate had been issued, contrary to section 9 of the Video Recordings Act 1984. The DVDs had been imported from Poland and supplied to a Luton shop. Their content was accepted to be suitable for classification if submitted.

The trial judge rejected the argument that compulsory classification unlawfully interfered with European Union trade. The applicants renewed applications for leave to appeal against conviction after a single judge had refused leave. They contended that the statutory regime breached article 34 TFEU and was incompatible with article 10 of the Convention because it was disproportionate.

1. The renewed applications for leave to appeal against conviction were refused. The trial judge had correctly rejected the challenge to the convictions.
2. Article 34 TFEU prohibits quantitative import restrictions and equivalent measures, but article 36 permits restrictions justified by, among other matters, public morality. The compulsory classification scheme under the Video Recordings Act 1984 was directed to informing the public about suitability for viewing, protecting children from unsuitable material, and protecting the public from extreme pornography. Those purposes fell wholly within article 36.
3. The court applied the reasoning in Dynamic Medien Vertriebs GmbH v Avides Media AG C-244/06. Article 34 did not preclude national rules requiring examination, classification and an age label for image-storage media intended to protect young persons, provided that the examination procedure was accessible and capable of being completed within a reasonable time.
4. The United Kingdom fee applied to works from within and outside the United Kingdom and was not discriminatory. There was no evidential basis for the asserted cost of classification or for the proposition that the fee had been set to restrict trade. Nor did the innocent nature of the particular DVDs establish that compulsory submission for classification was unreasonable or disproportionate.
5. The article 10 challenge failed for the same essential reasons. The statutory provisions were prescribed by law, necessary and justified for the protection of health and morals within article 10(2). No declaration of incompatibility was warranted.
6. The court also declined to make an order for the respondents’ costs of the renewed applications.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 2438, the court refused the renewed applications for leave to appeal against conviction, leaving the convictions in place.
• Luton Crown Court: On 17 September 2013, the applicants were convicted on eight counts under section 9 of the Video Recordings Act 1984. The trial judge had rejected the article 34 TFEU challenge in a ruling dated 25 January 2013.