## Facts

- The Video Recordings Act 1984 (VRA) regulated distribution of video works in the United Kingdom, including video games, and brought within the classification scheme works depicting, to any significant extent, mutilation, torture, or other acts of gross violence toward humans or animals.
- The British Board of Film Classification (BBFC) was the statutory body responsible for reviewing and classifying video works into age categories under the VRA.
- In making classification decisions, the VRA required the BBFC (and, on appeal, the Video Appeals Committee (VAC)) to have special regard to “any harm that may be caused to potential viewers,” including harm to children who might view the work.
- Rockstar Games Inc. submitted the video game *Manhunt 2* to the BBFC for classification.
- The BBFC refused to classify the game, concluding that it depicted sustained gross violence and that its availability could cause harm to potential viewers, including children; refusal of classification would prevent lawful supply.
- Rockstar appealed to the VAC, the statutory appellate body for BBFC classification decisions.
- The VAC allowed the appeal and directed that the game be given an “18” classification. In doing so, the VAC focused on whether the game would cause actual harm to viewers and concluded that it did not present such harm.
- The VAC also relied on a statement made by a Home Office minister during parliamentary consideration of the legislation, suggesting that refusal of classification would be justified only where a work would have a “devastating effect” on individuals or society.
- The BBFC applied for judicial review in the Administrative Court, challenging the VAC’s approach to the statutory test and its reliance on the ministerial statement.

## Issues

1. Whether VRA s 4A(1), requiring special regard to “any harm that may be caused” to potential viewers, calls for an assessment of prospective risk of harm rather than proof of actual harm.
2. Whether the VAC erred in law by treating a minister’s parliamentary remarks about a “devastating effect” as a governing test for when classification could be refused.

## Decision

- The Administrative Court quashed the VAC’s decision directing an “18” classification and remitted the appeal for fresh consideration by the VAC under the correct legal approach.
- The court held that the VAC misdirected itself in law by treating s 4A(1) as effectively requiring demonstration of actual harm, rather than applying the statute’s forward-looking inquiry into harm that may be caused if the work is made available.
- The court held that the VAC was wrong to use the minister’s “devastating effect” remark as a binding or decisive threshold; parliamentary statements could not replace or narrow the statutory language enacted by Parliament.
- The court accepted that classification decisions engage freedom of expression considerations, but ruled that the statutory scheme permits proportionate restrictions based on assessed future harm within the VRA framework.

## Legal Principles

- Under VRA s 4A(1), the decision-maker must assess harm that may be caused to potential viewers; the phrase “may be caused” directs a predictive, pre-distribution evaluation and does not require proof that harm has already occurred.
- Where a work has not been released, both the BBFC and the VAC must judge expected impact if released, including the risk of harm to children and other vulnerable viewers who may obtain access despite age restrictions.
- A tribunal commits an error of law if it treats ministerial or parliamentary remarks as a legal condition or threshold that alters the statutory test; such remarks may assist background understanding but cannot be used as a substitute for the enacted wording.
- Judicial review is available where a specialist statutory body adopts the wrong legal test; evaluative judgments are respected only when made within the correct statutory framework.
- Any restriction on distribution through refusal of classification must be applied consistently with freedom of expression standards, but the VRA permits restrictions aimed at protecting viewers from harm when based on a lawful and proportionate application of s 4A(1).

## Conclusion

The Administrative Court set aside the VAC’s “18” classification for *Manhunt 2* because the VAC applied the wrong legal test by focusing on actual harm and by treating a minister’s “devastating effect” comment as a controlling standard; the matter was sent back to the VAC to reconsider using the statutory inquiry into harm that may be caused to potential viewers.


Regina (on the application of British Board of Film Classification) v. Video Appeals Committee, Case No. CO/11296/2007 (2008)