Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17419/90

by Nigel WINGROVE

against the United Kingdom

The European Commission of Human Rights sitting in private on

8 March 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

M. C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 June 1990 by

Nigel WINGROVE against the United Kingdom and registered on

13 November 1990 under file No. 17419/90;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

24 July 1992 and 10 March 1993;

- the observations submitted by the applicant on 18 December 1992

and 10 May 1993;

- the pre-hearing brief and documents submitted by the applicant

on 21 February 1994;

- the parties' oral submissions at the hearing on 8 March 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1957 and resident in

London. He is a film director by profession. The applicant is

represented before the Commission by Messrs. Stephens Innocent,

Solicitors, London.

The facts of the present case as submitted by the parties may be

summarised as follows:

A. The particular circumstances of the case

The applicant wrote the shooting script for, and directed the

making of, a video work entitled "Visions of Ecstasy" ("the video").

Its running time is approximately 18 minutes, and it contains no

dialogue, only music and moving images. The idea for the video was

derived from the life and writings of St. Teresa of Avila, the

sixteenth century Carmelite nun and founder of many convents, who

experienced powerful ecstatic visions of Jesus Christ.

The action of the video centres upon a youthful actress dressed

as a nun and intended to represent St. Teresa. It begins with the nun,

dressed loosely in a black habit, stabbing her own hand with a large

nail and spreading her blood over her naked breasts and clothing. In

her writhing, she spills a chalice of communion wine and proceeds to

lick it up from the ground. She loses consciousness. This sequence

takes up approximately half of the running time of the video. The

second part of the video shows St. Teresa dressed in a white habit

standing with her arms held above her head by a white cord which is

suspended from above and tied around her wrists. The near naked form

of a second female, said to represent the psyche of St. Teresa, slowly

crawls her way along the ground towards her. Upon reaching her feet,

the Psyche begins to caress her, first her feet and legs, then her

midriff, then her breasts and finally to engage in passionate kisses

with her. Throughout this sequence, St. Teresa appears to be writhing

in exquisite erotic sensation. This sequence is intercut at frequent

intervals with a second sequence in which one sees the body of Christ,

fastened to the cross which is lying upon the ground. St. Teresa first

kisses the stigmata of his feet before moving up his body and kissing

or licking the gaping wound in his right side. Then she sits astride

him, seemingly naked under her habit, all the while moving in a motion

reflecting intense erotic arousal, and kisses his lips. For a moment,

it appears that he responds to her kisses. This action is intercut

with the passionate kisses of the Psyche already described. Finally,

St. Teresa runs her hand down to the fixed hand of Christ and entwines

his fingers in hers. As she does so, the fingers of Christ seem to

curl upwards to hold with hers, whereupon the video ends.

Apart from the cast list which appears on the screen for a few

seconds, the viewer has no means of knowing that the person dressed as

a nun in the video is intended to be St. Teresa or that the other woman

who appears is intended to be her psyche. No attempt is made in the

video to explain its historical background.

The video was submitted to the British Board of Film

Classification ("the Board"), being the authority designated by the

Home Secretary under section 4 (1) of the Video Recordings Act 1984

(the 1984 Act) as

"the authority responsible for making arrangements

(a) for determining, for the purposes of (the) Act whether

or not video works are suitable for classification

certificates to be issued in respect of them, having

special regard to the likelihood of video works in

respect of which such certificates have been issued

being viewed in the home

(b) in the case of works which are determined in accordance

with the arrangements to be so suitable -

(i) for making such other determinations as are

required for the issue of classification

certificates, and

(ii) for issuing such certificates ..."

The applicant submitted the video to the Board in order that it

might lawfully be sold, hired out or otherwise supplied to the general

public or a section thereof.

The Board rejected the application for a classification

certificate on 18 September 1989 in the following terms:

"Further to your application for a classification

certificate for the above video work, you are already

aware that under the Video Recordings Act 1984 the

Board must determine first of all whether or not a

video work is suitable for such a certificate to be

issued to it, having special regard to the likelihood

of video works being viewed in the home. In making

this judgment, the Board must have regard to the Home

Secretary's Letter of Designation in which we are

enjoined to 'continue to seek to avoid classifying

works which are obscene within the meaning of the

Obscene Publications Acts 1959 and 1964 or which

infringe other provisions of the criminal law.'

Amongst these provisions is the criminal law of

blasphemy, as tested recently in the House of Lords

in R v. Lemon (1979), commonly known as the 'Gay

News' case. The definition of blasphemy cited

therein is 'any contemptuous, reviling, scurrilous

or ludicrous matter relating to God, Jesus Christ

or the Bible ... It is not blasphemous to speak

or publish opinions hostile to the Christian religion'

if the publication is 'decent and temperate'. The

question is not one of the matter expressed, but of

its manner, i.e. 'the tone, style and spirit', in

which it is presented.

The video work submitted by you depicts the mingling of

religious ecstasy and sexual passion, a matter which

may be of legitimate concern to the artist. It becomes

subject to the law of blasphemy, however, if the manner

of its presentation is bound to give rise to outrage at

the unacceptable treatment of a sacred subject. Because

the wounded body of the crucified Christ is presented

solely as the focus of, and at certain moments a

participant in, the erotic desire of St. Teresa, with

no attempt to explore the meaning of the imagery beyond

engaging the viewer in an erotic experience, it is the

Board's view, and that of its legal advisers, that a

reasonable jury properly directed would find that the

work infringes the criminal law of blasphemy.

To summarise, it is not the case that the sexual imagery

in VISIONS OF ECSTASY lies beyond the parameters of the

'18' category; it is simply that for a major proportion

of the work's duration that sexual imagery is focused

on the figure of the crucified Christ. If the male figure

were not Christ, the problem would not arise. Cuts of a

fairly radical nature in the overt expressions of

sexuality between St. Teresa and the Christ figure might

be practicable, but I understand that you do not wish

to attempt this course of action. In consequence, we

have concluded that it would not be suitable for a

classification certificate to be issued to this video

work."

The applicant appealed against the Board's determination to the

Video Appeals Committee ("the VAC"), established pursuant to section

4(3) of the 1984 Act. His Notice of Appeal contained the following

grounds:

"i) that the Board was wrong to conclude that the video

infringes the criminal law of blasphemy, and that a

reasonable jury properly directed would so find.

ii) in particular, the appellant will contend that upon

a proper understanding of the serious nature of the

video as an artistic and imaginative interpretation

of the 'ecstasy' or 'rapture' of the sixteenth

century Carmelite nun, St. Teresa of Avila, it

would not be taken by a reasonable person as

contemptuous, reviling, scurrilous or ludicrous

or otherwise disparaging in relation to God,

Jesus Christ or the Bible. The appeal will raise

the question of mixed fact and law, namely

whether publication of the video, even to a

restricted degree, would contravene the existing

criminal law of blasphemy."

The Board submitted a formal reply to the VAC explaining its

decision in relation to its functions under section 4 of the 1984 Act:

"The Act does not expressly set out the principles to be

applied by the authority in determining whether or not

a video work is suitable for a classification certificate

to be issued in respect of it. In these circumstances,

the Board has exercised its discretion to formulate

principles for classifying video works in a manner which

it believes to be both reasonable and suited to carrying

out the broad objectives of the Act. Amongst these

principles, the Board has concluded that an overriding

test of suitability for classification is the determination

that the video work in question does not infringe the

criminal law. In formulating and applying this principle,

the Board has consistently had regard to the Home Secretary's

Letter of Designation under the Video Recordings Act ...

The Board has concluded on the advice of leading Counsel

that the video work in question infringes the criminal

law of blasphemy and that a reasonable jury properly

directed on the law would convict accordingly. The Board

submits and is advised that in Britain the offence of

blasphemy is committed if a video work treats a religious

subject (in particular God, Jesus Christ or the Bible) in

such a manner as to be calculated (that is, bound, not

intended) to outrage those who have an understanding of,

sympathy towards and support for the Christian story and

ethic, because of the contemptuous, reviling, insulting,

scurrilous or ludicrous tone, style and spirit in which

the subject is presented.

The video work under appeal purports to depict the erotic

fantasies of a character described in the credits as

St. Teresa of Avila. The 14 minute second section of the

video work portrays 'St. Teresa' having an erotic fantasy

involving the crucified figure of Christ, and also a

Lesbian erotic fantasy involving the 'Psyche of St. Teresa'.

No attempt is made to place what is shown in any historical,

religious or dramatic context: the figures of St. Teresa

and her psyche are both clearly modern in appearance and

the erotic images are accompanied by a rock music backing.

The work contains no dialogue or evidence of an interest in

exploring the psychology or even the sexuality of the

character purporting to be St. Teresa of Avila. Instead,

this character and her supposed fantasies about lesbianism

and the body and blood of Christ are presented as the

occasion for a series of erotic images of a kind familiar

from 'soft-core' pornography.

In support of its contentions, the Board refers to an

interview given by the appellant and published in 'Midweek'

magazine on 14 September 1989. In this interview, the

appellant attempts to draw a distinction between pornography

and 'erotica', denying that the video work in question is

pornograhic but stating that 'all my own work is actually

erotica.' Further on, the interviewer comments:

'In many ways, though, Visions calls upon the standard

lexicon of lust found in down market porn: nuns,

lesbianism, women tied up ("Gay nuns in bondage"

could have been an alternative title in fact).

flashes a wicked grin.

'That's right, and I'm not denying it. I don't

know what it is about nuns, it's the same sort

of thing as white stocking tops I suppose.'

So why does he not consider Visions to be

pornography, or at least soft porn? 'I hope

it is gentler, subtler than that. I suppose

most people think pornography shows the sex

act, and this doesn't.'

It is clear from the Appellant's own admissions that, whether

or not the video work can rightly be described as pornographic,

it is solely erotic in content, and it focuses this erotic

imagery for much of its duration on the body and blood of Christ,

who is even shown to respond to the sexual attentions of the

principal character. Moreover, the manner in which such imagery

is treated places the focus of the work less on the erotic

feelings of the character than on those of the audience, which

is the primary function of pornography whether or not it shows

the sex act explicitly. Because there is no attempt, in the

Board's view, to explore the meaning of the imagery beyond

engaging the viewer in a voyeuristic erotic experience, the

Board considers that the public distribution of such a video

work would outrage and insult the feelings of believing

Christians. It is impossible therefore to accept the

Appellant's contention in his Notice to Appeal ...

The Board ... submits that the appeal should be dismissed

and its determination upheld."

The applicant then made further representations to the VAC,

stating inter alia:

"The definition of the offence of blasphemy set out in ...

the reply is too wide, being significantly wider than

the test approved in the only modern authority - see

Lemon & Gay News Ltd v. Whitehouse (1979) AC 617, per

Lord Scarman at p. 665. For example, there is no uniform

law of blasphemy in Britain; the last recorded prosecution

for blasphemy under the law of Scotland was in 1843 - see

Thos Paterson (1843) I Brown 629. Nor is any religious

subject protected - the reviling matter must be in relation

to God, Jesus Christ or the Bible, or the formularies of

the Church of England as by law established.

In the Appellant's contention, these limitations are of

the utmost significance in this case since the video is

not concerned with anything which God or Jesus Christ

did, or thought or might have approved of. It is about

the erotic visions and imaginings of a 16th Century

Carmelite nun - namely St. Teresa of Avila. It is quite

plain that the Christ figure exists in her fantasy as

the Board expressly accepts ... The scurrilous and/or

erotic treatment of religious subject matter has received

the Board's classification without attempted prosecution

in recent years, eg Monty Python's 'Life of Brian' and

Mr. Scorsese's 'Last Temptation of Christ'.

... The Board argues that the video is purely erotic

or 'soft-core' pornographic, without historical,

religious, dramatic or other artistic merit. The

implication is that, had it possessed such merit the

Board's decision might very well have been otherwise.

The Appellant will seek to argue and call evidence to

the effect that the video work is a serious treatment

of the subject of the ecstatic raptures of St. Teresa

(well chronicled in her own works and those of

commentators) from a twentieth century point of view.

The so-called 'rock music backing' was in fact specially

commissioned from the respected composer, Steven Severin,

after discussion of the Director's desired artistic and

emotional impact. The Board has based its decision upon

the narrowest, most disparaging, critical appreciation

of the work. The Appellant will contend that a very much

more favourable assessment of his aims and achievement in

making 'Visions of Ecstasy' is, at the very least, tenable

and that the Board ought not to refuse a certificate on

a mere matter of interpretation.

The Appellant takes objection to the Board's quotation

... of comments attributed to him from an article by

one Rob Ryan published in 'Midweek' magazine 14 September

1989. The remarks are pure hearsay so far as the Board

is concerned. That aside, the piece quoted is in large

part the comments of the author of the article. An

entirely misleading impression of what the Appellant

said to the author is conveyed by the interpolation of

the words attributed to him, and by taking this passage

out of context.

Above all, the Appellant disputes the key assertion by

the Board that the video work is solely erotic in content."

The appeal was heard by a five member Panel of the VAC ("the

Panel") on 6 and 7 December 1989; oral and affidavit evidence was

submitted. By a majority of three to two, a written decision was given

on 23 December 1989. The Panel also considered itself bound by the

criteria set out in the Letter of Designation (p. 4 above). It had

difficulty, however, in ascertaining and applying the present law of

blasphemy. It commented as follows:

"The authorities on this Common Law offence were reviewed

by the House of Lords in the case of Lemon and Gay News

Ltd v. Whitehouse which concerned a magazine called

'Gay News', the readership of which consisted mainly of

homosexuals although it was on sale to the general public

at some bookstalls. One edition contained a poem entitled

'The Love that Dares to Speak its Name' accompanied by a

drawing illustrating its subject matter.

In his judgment Lord Scarman said that it was unnecessary

to speculate whether an outraged Christian would feel

provoked by the words and illustration to commit a breach

of the peace, the true test being whether the words are

calculated to outrage and insult the Christian's religious

feelings, the material in question being contemptuous,

reviling, scurrilous or ludicrous matter relating to God,

Jesus Christ, or the Bible or the formularies of the

Church of England. It should perhaps be added that the

word 'calculated' should be read in the dictionary sense

of 'estimated' or 'likely' as it was decided that intent

(other than an intent to publish) is not an element in

the offence.

In the same case Lord Diplock said that the material must

be 'likely to arouse a sense of outrage among those who

believe in or respect the Christian faith'.

In the present case the Board's Director ... said in

evidence that the Board's view was that the video was

'contemptuous of the divinity of Christ'. He added

that although the Board's decision was based upon its

view that the video is blasphemous (blasphemy being an

offence which relates only to the Christian religion),

it would take just the same stance if it were asked to

grant a Certificate to a video which, for instance,

was contemptuous of Mohammed or Buddha."

The Panel reviewed the contents of the video and accepted that

the applicant had in mind St. Teresa, a nun, "who is known to have had

ecstatic visions of Christ although, incidentally, these did not start

until she was 39 years of age - in marked contrast to the obvious

youthfulness of the actress who plays the part."

The Panel held as follows:

"From the writings of St. Teresa herself, and the subsequent

writings of others, there seems no reason to doubt that

some of her visions were of seeing the glorified body of

Christ and being shown his wounds but, even so, it seems

clear that (the appellant) has taken considerable artistic

licence with his subject. Apart from the age discrepancy -

a comparatively minor matter - we were made aware of nothing

which would suggest that Teresa ever did anything to injure

her hand or that any element of lesbianism ever entered into

her visions. More importantly, there seems nothing to

suggest that Teresa, in her visions, ever saw herself as

being in any bodily contact with the glorified Christ.

As one author, Mr. Stephen Clissold, puts it 'Teresa

experienced ecstasy as a form of prayer in which she

herself played almost no part'. So, in view of the extent

of the artistic licence, we think it would be reasonable

to look upon the video as centering upon any nun of any

century who, like many others down the ages, had ecstatic

visions. There is also another reason for taking this

stance: unless the viewer happens to read the cast list

which appears on the screen for a few seconds, he or she

has no means of knowing that the nun is supposed to be

St. Teresa, nor that the figure of the second woman is

supposed to be her Psyche. And he or she in any event

may well be unaware that Teresa was a real-life nun

who had ecstatic visions.

It is true that (the appellant) says that it is intended

that the sleeve or jacket for the video will provide

'basic historical information to assist the viewer',

but we feel bound to regard this as irrelevant. Firstly

because it by no means follows that every viewer will

read any such description; and secondly because the

Board's and the Appeal Panel's decision must be based

solely upon the video itself, quite apart from the fact

that at the time of making a decision the sleeve or

jacket is usually - as in the present instance - not

even in existence.

However, although we have thought it proper to dwell at

some length with the 'St. Teresa' aspect, we are of the

opinion that in practice, when considering whether or

not the video is blasphemous, it makes little or no

difference whether one looks upon the central character

as being St. Teresa or any other nun. The appellant,

in his written statement, lays stress upon the undoubted

fact that the whole of the second half consists of

Teresa's vision or dream. Hence he says the video says

nothing about Christ, his figure being used only as a

projection of St. Teresa's mind, nor was it his

intention to make that figure an active participant

in any overt sexual act. He goes on to say 'Rather

the very mild responses are those of St. Teresa's

conjecture: the kiss, hand clasp and ultimately the

tears of Christ. To show no response to a creation

of her own mind would be nonsense; no woman (nor man)

whose deep love could cause such visions/ecstasies

would imagine the object of that love coldly to

ignore their caresses'. Although we quite appreciate

the logic of this point of view, we have reservations

about the extent to which a vision or dream sequence

can affect the question of whether what is pictured

or said is blasphemous. It would, for instance,

be possible to produce a film or video which was most

extremely contemptuous, reviling, scurrilous or ludicrous

in relation to Christ, all dressed up in the context of

someone's imaginings. In such circumstances we find it

hard to envisage that, by such a simple device, it could

reasonably be said that no offence had been committed.

If in our opinion the viewer, after making proper allowance

for the scene being in the form of a dream, nevertheless

reasonably feels that it would cause a sense of outrage

and insult to a Christian's feelings, the offence would

be established.

We should perhaps also deal, albeit briefly, with a

further submission made on behalf of the appellant, namely

that the crime of blasphemy may extend only to the written

or spoken word and hence that a Court might rule that no

film or video, and perhaps nothing shown on television,

could become the subject of such a charge. Suffice it to

say that in our view this is too unlikely to cause it to

be taken into account by the Board or a panel of the

Appeals Committee when reaching a decision.

In the opinion of a majority of the Panel the video did not,

as the appellant claims, explore St. Teresa's struggles

against her visions but exploited a devotion to Christ

in purely carnal terms. Furthermore they considered that

it lacked the seriousness and depth of 'The Last Temptation

of Christ' with which Counsel for the appellant sought to

compare it. Indeed the majority took the view that the

video's message was that the nun was moved not by religious

ecstasy but rather by sexual ecstasy, this ecstasy being of

a perverse kind - full of images of blood, sado-masochism,

lesbianism (or perhaps auto-erotism) and bondage. Although

there was evidence of some element of repressed sexuality

in St. Teresa's devotion to Christ, they did not consider

that this gave any ground for portraying her as taking

the initiative in indulged sexuality. They considered

the over-all tone and spirit of the video to be indecent

and had little doubt that all the above factors, coupled

with the motions of the nun whilst astride the body of

Christ and the response to her kisses and the intertwining

of the fingers would outrage the feelings of Christians,

who would reasonably look upon it as being contemptuous

of the divinity of Christ. In these circumstances the

majority were satisfied that the video is blasphemous,

that a reasonable and properly directed jury would be

likely to convict and therefore that the Board was right

to refuse to grant a Certificate. Hence this appeal

is accordingly dismissed.

It should perhaps be added that the minority on the

Panel, whilst being in no doubt that many people would

find the video to be extremely distasteful, would

have allowed the appeal because in their view it is

unlikely that a reasonable and properly directed jury

would convict."

As a result of the Board's determination, as upheld by the Panel,

the applicant would commit an offence under section 9 of the 1984 Act

if he were to supply the video in any manner, whether or not for

reward.

B. The relevant domestic law and practice

1. The regulation of video recordings

The Video Recordings Act 1984 (the 1984 Act) regulates the

distribution of video recordings. Subject to certain exemptions, it

is an offence under section 9(1) of that Act for a person to supply or

offer to supply a video recording containing a video work in respect

of which no classification certificate has been issued. Certain other

offences relate to conditions contained in such certificates. For

example, where a classification certificate issued in respect of a

video work states that no video recording containing that work is to

be supplied other than in a licensed sex shop, a person commits an

offence under section 12 of that Act if he supplies such a recording

in any other place (subject to certain exemptions). There is also an

offence (in section 11) of supplying to a person who has not attained

the age specified in the classification certificate.

Under section 4(1) of the 1984 Act the Secretary of State may by

notice designate any person or body as the authority for making

arrangements for determining whether or not video works are suitable

for classification certificates to be issued in respect of them (having

special regard to the likelihood of certified video works being viewed

in the home). By a notice dated 26 July 1985 the British Board of Film

Classification ("the Board") was so designated. In the case of works

which are determined in accordance with the arrangements described

above to be suitable for classification certificates, the Board is

responsible under section 4(1) for making arrangements for the issue

of certificates and making other determinations relating to their use

(see pp.4-5 above). The Secretary of State's notice enjoined the Board

"to continue to seek to avoid classifying works which are obscene

within the meaning of the Obscene Publications Acts 1959 and 1964 or

which infringe other provisions of the criminal law".

Pursuant to section 4(3) of the 1984 Act arrangements were made

for the establishment of the Video Appeals Committee to determine

appeals against decisions of the Board.

2. The law relating to blasphemy and blasphemous libel

Blasphemy and blasphemous libel are common law offences triable

on indictment and punishable by fine or imprisonment. Blasphemy

consists in speaking and blasphemous libel in otherwise publishing

blasphemous matter. Libel involves a publication in a permanent form,

but that form may consist of moving pictures.

In the case of Whitehouse v. Gay News Ltd. and Lemon [1979] A.C.

617 at 665 which concerned the law of blasphemy in England and Wales,

Lord Scarman held that the modern law of blasphemy was correctly

formulated in article 214 of Stephen's Digest of the Criminal Law, 9th

ed. (1950). This states as follows:

"Every publication is said to be blasphemous which contains any

contemptuous, reviling, scurrilous or ludicrous matter relating

to God, Jesus Christ or the Bible, or the formularies of the

Church of England as by law established. It is not blasphemous

to speak or publish opinions hostile to the Christian religion,

or to deny the existence of God, if the publication is couched

in decent and temperate language. The test to be applied is as

to the manner in which the doctrines are advocated and not to the

substance of the doctrines themselves."

The House of Lords in that case also decided that the mental

element in the offence did not depend upon the accused having an intent

to blaspheme. It was sufficient for the prosecution to prove that the

publication had been intentional and that the matter published was

blasphemous.

3. The availability of judicial review as a remedy

Decisions of public bodies which have consequences which affect

some person or body of persons are susceptible to challenge in the High

Court on an application for judicial review. Amongst the grounds on

which such a challenge may be brought is that the body in question

misdirected itself on a point of law. The Video Appeals Committee is

such a public body because it is established pursuant to an Act of

Parliament (namely, section 4(3) of the 1984 Act). Furthermore, its

decisions affect the rights of persons who make video works because

confirmation of a decision that a video work cannot receive a

classification certificate would mean that video recordings of that

work could not be lawfully supplied to members of the public.

A court would not normally look on an application for judicial

review at the merits of any decision made by such a body (except where

the decision was so unreasonable that no reasonable body, properly

instructed, could have reached it). However, where the decision is

based on a point of law and it is alleged that the body has misdirected

itself on that point, the decision could be challenged by an

application for judicial review. In the case of C.C.S.U. v. Minister

for the Civil Service [1984] 3 All E.R. at p. 950, a decision of the

House of Lords, Lord Diplock classified under three heads the grounds

on which administrative action is subject to control by judicial

review. He called the first ground "illegality" and described it as

follows :

"By 'illegality' as a ground for judicial review I mean that the

decision-maker must understand correctly the law that regulates

his decision-making power and must give effect to it. Whether

he has or not is par excellence a justiciable question to be

decided, in the event of a dispute, by those persons, the judges,

by whom the judicial power of the State is exercisable."

COMPLAINTS

The applicant complains that the refusal of the British Board of

Film Classification, as upheld by the Video Appeal Committee, to grant

a classification certificate for the applicant's video film,

constituted an interference with his right to freedom of expression,

including the right to receive and impart information and ideas, as

guaranteed by Article 10 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 June 1990 and registered on

13 November 1990.

After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

7 April 1992. It decided, pursuant to Rule 48 para. 2 (b) of the Rules

of Procedure, to give notice of the application to the respondent

Government and to invite the parties to submit written observations on

admissibility and merits. The Government's observations were submitted

on 24 July 1992 after an extension of the time-limit fixed for this

purpose. The applicant replied on 18 December 1992 also after an

extension of the time-limit. (On 23 October 1992 the Commission had

granted the applicant legal aid.)

On 10 March 1993 the Government submitted comments on points

raised in the applicant's observations, to which the applicant

responded on 10 May 1993.

On 11 May 1993 the Commission decided to invite the parties to

make oral submissions at a hearing. The hearing was fixed for

15 October 1993, but then adjourned until 8 March 1994 at the request

of the applicant.

On 21 February 1994, prior to the hearing, the applicant

submitted a pre-hearing brief and a document containing counsel's

advice on remedies.

At the hearing on 8 March 1994 the parties were represented as

follows:

For the Government:

Mr. H. Llewellyn, Foreign and Commonwealth Office, Agent

Mr. P. Havers, Counsel

Miss S. Dickson, Foreign and Commonwealth Office )

Mr. D. Evans, Home Office ) Advisers

Mr. R. Heaton, Home Office )

For the applicant:

Mr. G. Robertson, QC, Counsel

Mr. M. Stephens, Solicitor ) Messrs. Stephens Innocent,

Mr. P. Chinnery, Solicitor ) Solicitors

THE LAW

1. The applicant complains that the refusal of the competent British

authorities to issue a classification certificate for his video film

on grounds of blasphemy violated Article 10 (Art. 10) of the

Convention, which reads as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers. This Article shall not

prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

2. The Government raise a preliminary point that the applicant has

failed to exhaust domestic remedies as required by Article 26

(Art. 26) of the Convention.

They assert that the applicant could have challenged the decision

of the Video Appeals Committee, which upheld the refusal of the British

Board of Film Classification to grant the applicant a classification

certificate for his video film. They consider that the applicant should

have sought judicial review before the High Court and that it is not

for the Convention organs to speculate as to the outcome of any such

application. It is contended that the applicant could have raised a

point of law in these proceedings, namely whether the Committee

misdirected itself in determining that a reasonable jury, properly

directed, would have found that the video constituted the crime of

blasphemous libel (cf. penultimate sentence of paragraph 3, p. 11

above).

The applicant replies that he did not pursue judicial review

because he was advised by leading counsel that such a remedy presented

no prospect of success and legal aid would therefore not have been

available to him to pursue it.

The Commission recalls that the obligation to exhaust domestic

remedies contained in Article 26 (Art. 26) of the Convention is limited

to making normal use of those remedies which are likely to be

effective. If it can be shown that a remedy does not present at least

some minimal prospect of success then the individual is not required

to pursue it (cf. eg. No. 8378/78, Dec. 14.5.80, D.R. 20 p.168, at

p.170). The question in the present case, therefore, is whether an

application for judicial review of the Committee's decision could have

been effective.

The Commission notes that the parties do not dispute the fact

that on an application for judicial review it is not open to the High

Court to substitute its own view on the merits for that of the British

Board of Film Classification or, more particularly, that of the Video

Appeals Committee. Provided that the Committee applied the right test

of what constituted blasphemy in the present case, it would not have

been open to a court on a judicial review application to hold that the

Committee was wrong in concluding that the video was blasphemous or

that a jury would have found it to be blasphemous, unless that

conclusion was one to which no Committee could reasonably have come.

In the present case it is not asserted by the applicant that the

Committee's decision was so unreasonable as to be perverse and the

Government do not contend that the decision could have been challenged

on this ground.

The only ground therefore on which the Committee's decision could

have been challenged by way of judicial review would seem to be that

the Committee applied the wrong test of what constitutes the offence

of blasphemy. However the applicant has not criticised the Committee's

decision on this basis. Indeed it would appear that such a criticism

could not be made: the Committee expressly quoted and applied the

definition of blasphemy approved by the House of Lords in the case of

Lemon and Gay News Ltd v. Whitehouse (see p. 9 above) and explained why

in their view the video fell within the definition.

In these circumstances, the Commission sees no ground on which

the decision of the Committee could have been open to challenge by way

of judicial review. This remedy, therefore, presented no prospect of

success and could not be said to be effective for the purposes of the

present case. Accordingly, the Commission concludes that the

application cannot be rejected on the grounds of non-exhaustion of

domestic remedies.

3. As regards the substantive issue under Article 10 (Art. 10) of

the Convention, the applicant submits that the refusal of a

classification certificate for his video film constituted an

unjustified interference with his freedom of expression, including the

right to receive and impart information and ideas, as guaranteed by

Article 10 (Art. 10) of the Convention. He contends that the

interference was not "prescibed by law", in that the offence of

blasphemy or blasphemous libel is not sufficiently accessible or

precise. He further contends that the law of blasphemy in its present

wide form does not demonstrably pursue a legitimate aim, and that the

interference in his case was neither necessary nor proportionate to any

of the exceptions enumerated in the second paragraph of Article 10

(Art. 10) of the Convention.

The Government concede that there has been an interference with

the applicant's Article 10 (Art. 10) rights, but submit that it was

prescribed by law, given the lawful authority conferred on the British

Board of Film Classification by section 4 (1) of the Video Recordings

Act 1984, combined with the Secretary of State's notice to the Board

directing them to avoid issuing classification certificates in respect

of obscene or other work infringing the criminal law. The Government

contend that the Board's action pursued the legitimate aim of

protecting the rights of others, was proportionate to that aim, well

within the margin of appreciation afforded to States in such an area,

and was therefore justified under Article 10 para. 2 (Art. 10-2) of the

Convention.

The Commission considers that the application raises serious

questions of fact and law which are of such complexity that their

determination should depend on an examination of the merits. The

application cannot, therefore, be regarded as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, and no other ground for declaring it inadmissible has been

established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

WINGROVE v. THE UNITED KINGDOM

WINGROVE v. THE UNITED KINGDOM

LEXI