REGINA v Dryzner & Anor

Factual and Procedural Background

The Appellants, directors of Company A, were convicted at a Crown Court on multiple counts for supplying video recordings containing works that had not been classified in accordance with the Video Recordings Act 1984. The case arose from an investigation by local Trading Standards officers who seized DVDs supplied by the Appellants to a retail shop. The seized DVDs lacked official classification certificates from the British Board of Film Classification (BBFC), although some bore labels resembling genuine BBFC age ratings. The Appellants were interviewed under caution, but recordings were corrupted, leaving unresolved issues regarding their knowledge of classification requirements. The defence contended that the Appellants were unaware of the legal requirement to submit video works for classification and had instead applied self-created age labels. The trial judge ruled that the statutory classification requirement did not unlawfully interfere with trade under European Union law, leaving the jury to determine whether the Appellants knowingly supplied unclassified video works. The Appellants sought leave to appeal against conviction, which was initially refused by a single judge, prompting a renewed application.

Legal Issues Presented

1. Whether the defence under Article 34 of the Treaty on the Functioning of the European Union (TFEU) applies to the Video Recordings Act 1984 classification requirement.
2. Whether section 9 of the Video Recordings Act 1984 is incompatible with Article 10 of the European Convention on Human Rights (ECHR), concerning freedom of expression, and whether a declaration of incompatibility should be made.
3. Whether the classification regime under the Video Recordings Act 1984 is disproportionate and infringes the applicants' rights under Article 10 of the ECHR as enacted by the Human Rights Act 1998.

Arguments of the Parties

Appellants' Arguments

• The learned trial judge erred in law by ruling that the defence under Article 34 TFEU did not apply.
• Section 9 of the Video Recordings Act 1984 is incompatible with Article 10 ECHR and a declaration of incompatibility is sought.
• The classification regime is arguably inflexible, disproportionate, and infringes the applicants' freedom of expression rights under Article 10 ECHR.
• The cost and administrative burden of classification, including translation and fees, are disproportionate and may constitute a barrier to intra-community trade.

Respondents' Arguments

• The classification requirement is justified under Article 36 TFEU as a permissible restriction on trade for the protection of public morality and health.
• The Video Recordings Act 1984 aims to protect the public, particularly children, by providing information on the suitability of video works.
• The fees charged by the BBFC are non-discriminatory and not intended to restrict trade.
• The classification regime is necessary, lawful, and proportionate under both EU law and the ECHR.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed section 9 of the Video Recordings Act 1984, which criminalises supplying video recordings without a classification certificate unless exemptions apply. The Appellants did not claim any statutory defence under the Act. The court considered whether the Act breached EU law, specifically Article 34 TFEU prohibiting quantitative restrictions on imports and measures having equivalent effect. Article 36 TFEU, which permits restrictions justified on grounds including public morality, was held applicable. The BBFC’s statutory role to classify video works to protect the public, particularly children, and to inform consumers was deemed a legitimate public interest within Article 36’s scope.

The court found that the classification fees were non-discriminatory and not designed to restrict trade, rejecting the Appellants’ unsubstantiated claims about disproportionate costs. The court also considered freedom of expression claims under Article 10 ECHR, acknowledging that this right is qualified and may be restricted to protect health and morals. The classification regime was found lawful, necessary, and proportionate under the relevant human rights provisions.

Having reviewed the European authorities and the submissions, the court accepted the trial judge’s ruling that the classification requirement does not unlawfully restrict trade or infringe freedom of expression rights beyond permissible limits.

Holding and Implications

The court refused the renewed application for leave to appeal the convictions.

The decision confirms the legality and proportionality of the Video Recordings Act 1984 classification regime under both EU law and the ECHR. The ruling upholds the statutory framework designed to protect public morality and health through age classification of video works. No new precedent was established; the direct effect is that the Appellants’ convictions stand, and the classification requirements remain enforceable as lawful restrictions on trade and expression within the scope of public interest.