Byrne -v- The Official Censor & Ors, [2007] IEHC 464 (2007)

Docket Number:2006 849 JR
Party Name:Byrne, The Official Censor & Ors
Judge:O''Higgins J.

THE HIGH COURTJUDICIAL REVIEW[2006 No. 849 J.R.] BETWEENJAQUELINE BYRNEAPPLICANTANDTHE OFFICIAL CENSOR AND THE CENSORSHIP OF FILMS APPEALS BOARD AND THE ATTORNEY GENERAL RESPONDENTSJUDGMENT of O'Higgins J. dated the 21st day of December, 2007By order of Peart J. dated the 26th July, 2006, the applicant was given leave to apply by way of an application for judicial review inter 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 of certiorari and costs.The Background Section 3 (1)(a)(iii) of the Video Recordings Act, 1989 provides 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."· The applicant is the owner of an 'adult' shop in the city of Dublin. The word 'adult' refers to the age of the customers.· 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.· 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".· 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.· 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.· 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. Section 10(3)(a) of the 1989 Video 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…"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. · 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, 1989 a 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 KelleherOfficial Censor." 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".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.Initially Mr. Collins S.C. on behalf of the applicants indicated that the decision was impugned on four grounds:(1) There were no or no adequate reasons given to justify the decision;(2) That there was an absence of any evidence to justify the decision;(3) The decision was unreasonable; and(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.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.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...

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