Byrne v Official Censor and Others

• Jurisdiction: Ireland
• Judge: O'Higgins J.
• Judgment Date: 21 December 2007
• Neutral Citation: [2007] IEHC 464
• Court: High Court
• Docket Number: [No. 849 J.R./2006]
• Date: 21 December 2007

[2007] IEHC 464

THE HIGH COURT

[No. 849 J.R./2006]

Byrne v Official Censor & Ors

JUDICIAL REVIEW

BETWEEN

JAQUELINE BYRNE

APPLICANT

AND

THE OFFICIAL CENSOR AND THE CENSORSHIP OF FILMS APPEALS BOARD AND THE ATTORNEY GENERAL

RESPONDENTS

VIDEO RECORDINGS ACT 1989 S3(1)(a)(iii)

VIDEO RECORDINGS ACT 1989 S3

VIDEO RECORDINGS ACT 1989 S10(3)(a)

VIDEO RECORDINGS ACT 1989 S10(3)

EAST DONEGAL CO-OP v AG 1970 IR 317

CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE 1989 IR 149

O'DONOGHUE v BORD PLEANALA 1991 ILRM 750 1991/5/1081

HURLEY v MOTOR INSURERS BUREAU OF IRELAND (MIBI) 1993 ILRM 886 1993/12/3793

P & L & B v MIN FOR JUSTICE & AG 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

IMMIGRATION ACT 1999 S3(3)(d)(ii)

IMMIGRATION ACT 1999 S3(6)

DUNNES STORES v MALONEY 1999 3 IR 542 1999 1 ILRM 119

LAURENTIU v MIN JUSTICE 1999 4 IR 26

VIDEO RECORDINGS ACT 1989 S3(a)

VIDEO RECORDINGS ACT 1989 S3(b)

JUDICIAL REVIEW

Fair procedures

Certiorari - Decision - Refusal - Reasons for decision - Whether adequate reasons given to justify decision - Whether reiteration of grounds set out in Act sufficient - Fairness of procedures - Whether sufficient information conveyed - Whether applicant aware of reasons for refusal - Whether applicant had sufficient information to decide whether to challenge decision - O'Donoghue v An Bord Pleanála [1991] ILRM 750, East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] IR 317, State (Creedon) v Criminal Injuries Compensation Tribunal [1988] IR 51, International Fishing Vessels Ltd v Minister for the Marine (No 1) [1989] IR 149 and FP v Minister for Justice [2002] 1 I.R. 164 approved - Video Recordings Act 1989 (No 22), s 3 - Relief refused (2006/849JR - O'Higgins J - 21/12/2007) [2007] IEHC 464

Byrne v Official Censor

O'Higgins J.

1 By order of Peart J. dated the 26th July, 2006, the applicant was given leave to apply by way of an application for judicial reviewinter 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 ofcertiorari and costs.

2 Section 3 (1)(a)(iii) of the Video Recordings Act,1989provides as follows:-

"The official censor shall, on application to him in relation to a video work, grant to the person making the application … a certificate … declaring the work to be fit for viewing unless he is of the opinion that the 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."

3 · The applicant is the owner of an 'adult' shop in the city of Dublin. The word 'adult' refers to the age of the customers.

4 · 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.

5 · 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".

6 · 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.

7 · 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.

8 · 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.

9 Section 10(3)(a) of the1989Video Recordings Act provides as follows:-

"where an appeal is brought under this section, the official censor shall if so requested by the Appeal Board, furnished to it a statement in writing of the reasons for the making of the prohibition order…"

10 On foot of the submissions made on behalf of the applicant, the Censorship of Films Appeals Board in exercise of its discretion under this section requested the Official Censor to furnish his reasons for arriving at his decision.

11 · The Official Censor, by letter dated the 3rd May, 2006, replied as follows:-

"Dear Chairman,

I refer to your letter of the 26th April requesting, under s. 10(3) of the Video Recordings Act,1989a 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."

12 By letter dated 11th July, 2006, to her solicitor, the applicant was informed 'that the unanimous decision of the Censorship of Films Appeal Board is to affirm the decision of the Official Censor in the appeal of "Anabolic Initiations # 5".

13 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.

14 Initially Mr. Collins S.C. on behalf of the applicants indicated that the decision was impugned on four grounds:

15 (1) There were no or no adequate reasons given to justify the decision;

16 (2) That there was an absence of any evidence to justify the decision;

(3) The decision was unreasonable; and

17 (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.

18 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.

19 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:

20 (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 solicitorinter alia states:-

"You will be aware that on previous occasions works containing material of an explicit sexual nature have been refused certification on the grounds that they would tend, by reason of the inclusion in them of obscene or indecent matter to deprave or corrupt persons who might view them."

21 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:-

22 (1) the fact that viewing of the video work in question does not deprave or corrupt persons;

23 (2) that are (sic) the refusal to certify constitutes the breach of our clients constitutional rights;

24 (3) that are (sic) refusal to certify constitutes a breach of the principle of proportionality as acquired by the European Convention onHuman Rights;

25 (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."

26 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.

27 (2)...