Consequences of the Murphy case

The Lord Justice gave a clear and concise judgement on the specific issues, in contrast to the protracted and complicated ruling that his colleague Lord Justice Kitchin had delivered at the beginning of February, in what we might call the ‘suppliers’ case’.

What I have been wrestling with in the past week, however, which is still far from clear, is the position of licensees who have already been convicted under the same provisions as Karen Murphy. On the face of it, their convictions are wrong in law and should be overturned, even though the matter had been dealt with before the opinion of the European Court was known.

But the law is careful not to be retrospective (although this Government seems happy to ignore that sometimes in legislative terms). There was a case in 2010 concerning the validity of United Kingdom legislation in respect of adult videos that had not gone through the proper EC process. The High Court refused to set aside the convictions subsequently, on the basis that the objections should have been raised at the time of prosecution.

However, that was not a case where the UK legislation was found to be in conflict with European law and there was no declaration from the European Court. This is a different scenario: the High Court in the Murphy case has simply said that her conviction was wrong and should be quashed. One has to say that they would be bound to take the same view of previous convictions.

The problem is the procedure for overturning them. It may not be possible to do this at the magistrates’ court level. The convictions were properly handed down based on the understanding of UK law at that time. The defendants did not raise the European dimension, or if they did, they did not appeal on that basis subsequently.

What seems more promising is some form of concerted appeal to the High Court, which is probably the correct procedure. It is debatable whether the Crown Court would feel it had late jurisdiction to overturn a magistrates’ criminal conviction some years after the event.

The other issue, as I have commented, is the fact that these convictions will stand against the personal licence unless they are extinguished. In several cases taken by Media Protection Services, the existence of a personal licence was made clear to the court and the conviction was recorded. It is here that some remedial work may need to be done.