From Free Life, Issue 25, May 1996
ISSN: 0260 5112
R v Uxbridge Justices, Ex Parte David Webb:
An Interim Report
Anthony Furlong (Sean Gabb)
After a change of their working rules in 1978, the Customs and Excise became less interested in stopping the import of erotica for personal use. Within ten years, however, this policy had changed. Freer trade within Europe was reducing the need for revenue collection; and the officers had to justify their existence with talk of drugs and pornography. At the same time, the Government was encouraging such talk.
In 1990, David Webb, Director of the National Campaign for the Reform of the Obscene Publications Acts (NCROPA), decided to take the Customs and Excise to court. He had been advised that this control over what reading and viewing matter could be imported was a breach of the European Convention on Human Rights – and might also be a breach of European Community law. His investigations showed that the Customs and Excise were particularly interested in stopping anything homosexual. And so, in November 1990, he travelled to Holland and obtained six videos containing homosexual erotica. Though he left them sealed in their cartons, he made sure that they featured no actors who might be considered younger than 18, and no scenes that might be construed as sado-masochistic.
On the 14th November 1990, Mr Webb arrived at Heathrow Airport. He carried the videos through the green channel, not wishing to acknowledge that he had anything that needed to be declared. He took care, though, to draw attention to himself, so that his luggage was searched and the videos found. At this point, he was arrested and strip- searched. When he revealed his identity, he was refused access to the solicitor of his choice – on the grounds that to call on Ted Goodman, also of NCROPA, might impede the investigation. While a duty solicitor was offered, none was provided. A warrant was served on Mr Webb, allowing his flat to be searched. The search was carried out, again without the presence of a solicitor. A copy of the 1978 working rules was taken, as were several football videos.
The homosexual videos had been confiscated as "obscene or indecent items" within the meaning of the Customs Consolidation Act 1876. Under the Customs and Excise Management Act 1979, Mr Webb had the right to appeal to the local magistrates against this seizure, where he would be able to argue that the videos were neither obscene nor indecent, and so should be returned to him. Before notice of appeal could be lodged, however, the Customs and Excise had a problem to solve. Mr Webb had not actually seen the videos, and could say nothing about their nature. Therefore, it was necessary to invite him to the Customs and Excise headquarters near London Bridge, for a private showing of the videos. For six hours, he and several revenue officers sat in a darkened room, taking notes – and, one hopes, avoiding all temptation to depravity and corruption.
The appeal was heard in July 1991 before the Uxbridge Magistrates, Mr Webb representing himself. It took an entire day. The reason for this unusual length of hearing was that Mr Webb insisted that the magistrates should watch the videos at their normal speed, rather than fast forward, which is the usual policy in determining their legal status. He also insisted on reading from the 1978 working rules, which so far as he could tell had never been formally changed. The Customs and Excise argued first that these rules were confidential; then, after Mr Webb had shown that they were public knowledge to any close reader of The Guardian, it was argued that they were "restricted". Eventually, the Magistrates decided that Mr Webb could quote from the rules, but nothing he quoted would be admitted as evidence. He lost his appeal.
From here, Mr Webb took his case into the Divisional Court of the Queen's Bench Division of the High Court, hoping to have the Magistrates' decision set aside as defective, and to have a proper retrial ordered. But he had first to seek an order of Mandamus, to require the Magistrates state a case to the Divisional Court. These procedural matters took up the next two years, the application for Mandamus not being heard until the 9th June 1993. Though Mr Webb was complimented by the Judges for the skill and courtesy with which he had conducted his case, the application was rejected – on the grounds that there was no need for the Uxbridge Magistrates to state a case.
There followed another 30 months of procedural attrition, this ending on the 26th January 1996, when the Court of Appeal upheld the judgment of the Divisional Court. Mr Webb is presently applying to the House of Lords for leave to appeal. If his application or his appeal is unsuccessful, he will have exhausted all domestic means of redress, and will be able to go before the European Court of Human Rights in Brussels. If he has to do this, there may not be a hearing of the substantive issues in the case before the next century.
Since proceedings are still active, I have tried in my brief account of this case to state only the facts. I obtained these fact from Mr Webb, but take full responsibility for any inaccuracies or deficiencies in my reporting them. Anyone who wishes to know more about what may become a landmark case in our constitutional law should contact Mr Webb directly at NCROPA on 0171 352 9067.
© 1996 – 2017, seangabb.
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