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                      AS TO THE ADMISSIBILITY OF

                      Application No. 31211/96
                      by Robert HOARE
                      against the United Kingdom

      The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:

           Mrs.  J. LIDDY, President
           MM.   M.P. PELLONPÄÄ
                 E. BUSUTTIL
                 A. WEITZEL
                 C.L. ROZAKIS
                 L. LOUCAIDES
                 B. CONFORTI
                 N. BRATZA
                 I. BÉKÉS
                 G. RESS
                 A. PERENIC
                 C. BÎRSAN
                 K. HERNDL
                 M. VILA AMIGÓ
           Mrs.  M. HION
           Mr.   R. NICOLINI

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 24 January 1996
by Robert HOARE against the United Kingdom and registered on 29 April
1996 under file No. 31211/96;

      Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a British citizen born in 1951 and currently
detained in HM Prison North Sea Camp Freiston Boston. Before the
Commission, he is represented by Mr. Richard J. Marshall, a solicitor
practising in Lincoln.

      The facts of the case, as submitted by the applicant, may be
summarised as follows.

A.    The particular circumstances of the case

      The applicant was formerly a businessman engaged in the
publication and distribution by mail order of video tapes of a
pornographic nature. Videos were advertised in the national newspaper
Sunday Sport. If the applicant received a response to the advert he
would first send a brochure to the inquirer with a description of the
contents of the videos. The tapes would be distributed only upon a
request from a potential customer.

      On 20 November 1993 the applicant's neighbour saw the applicant's
elder daughter putting six packages into a post box in suspicious
circumstances. The neighbour thought them to be bombs and called the
police. The bomb squad arrived, opened the post box and retrieved the
packages. They contained video cassettes: three of the packages were
addressed to Mr. W., two to Mr. Wh. and one to Mr. M.

      The videos were looked at by the police to establish their
contents.

       On 26 November 1993 the police arrived without warning at the
applicant's home. Only his wife and younger daughter were present. The
police recovered pre-recorded tapes with numbers, recorded video tapes,
a carrier bag with electronic wires, leads and three surgical rubber
gloves, postage stamps with a variety of different values, address
labels, sticky tape, and a box of sticky labels. They also found a
cardboard box with some documents, vouchers, order forms, Free Trade
Publication documents, recorded delivery slips referring to various
customers, labels, and several letters.

      On 4 March 1994 the applicant was interviewed at the police
station. He made no comment on certain questions about a number of
individual items which the police was interested in. During the course
of the interview he submitted that the tapes were not harmful in any
way.

      The applicant and his wife were charged with six counts of
publishing obscene articles and having obscene articles for publication
for gain, contrary to Section 2(1) of the Obscene Publications Act 1959
as amended ("the 1959 Act").

      The Crown case was that Free Trade Publications and JB Marketing
and the address in London were directly connected with 15 St Clement's
Close in Rawston where the applicant lived. It was submitted that at
this address this business of advertising, selling and sending off
pornographic tapes was being carried on, and that the applicant used
a postal address in London to receive orders but the business was, in
fact, carried on from his home where the films were actually recorded
and then sent off to customers.

      The prosecution called six witnesses, men who had answered
advertisements in Sunday Sport and received catalogues or/and video
tapes.

      Mr. W., the first witness whose statement was read at the trial,
submitted that in August 1993 he had answered an advertisement in
Sunday Sport for X-rated videos. He received a catalogue of films and
ordered four of them from an address in London.

      Mr. M., the second witness whose statement was also read at the
trial, said that in the summer of 1993 he had answered an advertisement
in a men's magazine. He received a letter and a photocopy information
sheet from Free Trade Publications from an address in London. In
November 1993 he had made an order and received two videos, one of
which was damaged and sent back for a replacement. It was the
replacement video that was intercepted on 20 November 1993.

      Mr. W. answered an advertisement in Sunday Sport and ordered six
video cassettes from JB Marketing. He received two brochures and a
leaflet.

      Mr. H.'s statement was read at the trial. In the summer of 1993
he had answered an advertisement in Sunday Sport and received a
catalogue from Free Trade Publications. He ordered sixteen films on
eight tapes and received a letter from someone going under the name of
Baker.

      The prosecution showed to the jury a letter headed Free Trade
Publications and JB Marketing, addressed to Mr. H. and which contained
the following information:

      "Dear Mr. [H.], further to your letter concerning non-
      delivery of your videos, I have checked with the people
      that copy and dispatch orders on my behalf and have been
      informed your order is about to be sent. I apologise for
      the delay, but since these videos may be considered
      illegal, it is sometimes necessary to be extra careful and
      security measures are strictly enforced so as to minimise
      detection. This does sometimes result in orders going out
      a few days later than anticipated."

      Mr. H. confirmed that he had received the letter in reply to his
letter addressed to the firm in London.

      Mr. G. said that in 1992 he had answered an advertisement in
Sunday Sport, sent off for a free sample from Free Trade Publications,
but received a leaflet instead. He then sent off a cheque for two tapes
and received two cassettes of what he called hardcore pornography. In
August 1993, he sent off £60 to Free Trade Publications for further
tapes, but did not receive them and so he wrote to the company.

      Mr. McK. had received a catalogue of Free Trade Publications from
friends and ordered six videos. He received them together with two
catalogues on 9 November 1992 and in December 1993 he handed them over
to the police.

      Neither the applicant nor his wife gave evidence at the trial.
As the judge said in his summing-up, "there is no evidence from either
defendant to give any explanation [to the jury] as to what all this
stuff was doing in [their] house. No explanation."

      The judge described the domestic law to the jury, explaining that
the test of whether matter had a tendency to "deprave and corrupt" was
an objective test.

      A statement of a Dr. C., the only evidence on behalf of the
applicant, was read at the trial. In his statement, Dr. C. confirmed
that the applicant had visited his offices in late February 1994 to
discuss various issues in connection with a Home Office report on
pornography co-written by Dr. C. and entitled "Pornography, its impact
and influences". The judge described the importance of that evidence
as follows:

      "Now, members of the jury, the only importance of that
      evidence is this: that you will recall I read to you the
      answer given by [the applicant] that he did not believe
      these tapes were harmful in any way, and challenged the
      police to produce evidence that they were harmful. Now,
      members of the jury, the importance of that is that by
      March of 1994 [the applicant] would have been aware that
      the police were claiming that these video tapes were
      harmful in the sense that I have defined it to you and that
      in February, the previous month, he had consulted somebody
      about these matters, and that sets in context that answer
      which he was giving to the police. That is the importance
      of that."

      The video tapes seized by the police were seen by the jury. Its
contents were summarised by the judge in his summing-up as follows:

      "'First Time' was the first exhibit in relation to count
      one. ... you saw as feminine masturbation, oral sex on both
      sides. ... this was a tape where there was a tremendous
      background noise; sort of animal noises coming from the
      tape, but hardly any dialogue, if at all any dialogue, just
      sort of groaning and noises like that. But the high point
      of the video, or low point, ... was surely this: ... On a
      number of occasions during the course of fairly vigorous
      activity, you saw men and women inserting not only fingers
      into the vagina of various women, but also the whole hand
      and, indeed, on one or two occasions, the whole fist up to
      the wrist. ... you also saw images of a woman urinating on
      a man's penis at the same time when there was other
      activity going on. You saw what may have been something
      like a banana being used and this ... was the film where,
      towards the end, the three pairs of male and female ended
      up, six of them, sitting around a table talking to each
      other, ... and then there was further sexual activity with
      them all and urinating as well. ...

      Count two, 'Anal, Anal, Anal' ... there are fourteen
      shortish scenes of some fairly graphic activity between
      women and women and women and men. It involves both normal
      intercourse and also what is these days called anal
      intercourse. It involved a great deal of what appeared to
      be ejaculation on to women's breasts or face. One of the
      scenes seemed to take place in a hairdressing salon, there
      is some kind of leather chair or something there. ...
      Again, there was tremendous noises in the background going
      on and the main thrust of this film was anal intercourse -
      buggery, in other words. In every case it seemed to be male
      on female and there were a number of, also, other images
      involving vibrators and the insertion of fingers into
      various orifices. ... there were a number of different
      women who could be identified by the colour of their lace
      stockings. As counsel for the Crown said, you very rarely,
      if at all, saw the faces of the people, and one of the
      matters relied upon quite properly by the Crown here in
      saying to you that you should find these to be obscene in
      the sense that they have a tendency to deprave and corrupt,
      is what is, perhaps you think, the utter dehumanisation of
      the people concerned, particularly the women, who are
      almost invariably on the receiving end of what was going
      on. In this film, more than in any of the others, you just
      saw the rear ends of the actors performing vigorously. ...

      Count three, called 'Down Town' is a different sort of film
      altogether. It began with ... a rather blurred image of a
      girl telling you the various things which she liked. ...
      this involved a great deal of images of sperm being
      dribbled in to the mouth of a woman with oral sex, woman on
      woman and man on woman. There was also anal intercourse, or
      buggery, as well, and again perhaps one of the high points
      of the film, ..., was several images of a woman licking the
      anus of a man as he bent over. There was also an image of
      a man urinating into the open mouth of a woman. ... You saw
      the image of one girl with her finger in the anus of
      another girl and also indulging in oral sex, and then
      licking that finger. That was an image you saw on several
      occasions and, again, it is matter like that which the
      Crown rely upon as making that film obscene. ...

      ... That film was stopped because of a matter raised by
      counsel, but it was resumed for a further twenty minutes
      and in that twenty minutes you saw an example of a man
      again urinating into a woman's vagina from the rear of it,
      and other images of women licking the anus of man. Members
      of the jury, it is on such images as that the Crown say on
      count three that this is an obscene article. As I say,
      these are matters for you and you will bear in mind the
      warning I have given you which particularly applies to one
      of the other films we have yet to deal with about whether
      or not this is so over the top that it might actually have
      the opposite effect of tending to deprave and corrupt, but
      that is a matter for you to consider.

      The next film, which relates to count five, ... is one
      which, at your request, was stopped within the first ten or
      twelve minutes. ... This bondage film started off with a
      scene of a girl tied to a table, two masked men, and I need
      only say that you saw that girl being whipped vigorously,
      both on her back and on her front, in every area and you
      saw the use of clothes pegs both on the breasts and on the
      vagina. ... you had an image for some time of a male
      urinating over the face and into the mouth of this girl who
      was tied up. It is on that basis that the Crown say, 'Well,
      there is material there on which you could find that film
      to be obscene'.

      The fifth film, for count six, ... is 'Caviar dinner'. Now,
      members of the jury, that was very graphic. I need only say
      that this is the film where you apparently saw one woman
      consuming faeces. ...

      Count seven, exhibit 6, is called 'Eels for Pleasure'. ...
      it began with one woman inserting eels into another woman,
      both into the vagina and into the anus, and that was a
      scene that was repeated twice, and then the scene changed
      to what appeared to be some sort of mediterranean country,
      a naked girl who was making approaches to a young pony. The
      Crown say there is ample material there for you to come to
      the conclusion that that film contained obscene matter."

      On 16 October 1995 the Nottingham Crown Court convicted the
applicant of six counts relating to the publication of obscene articles
under Section 2(1) of the 1959 Act. On 16 November 1995 it sentenced
him to 30 months' imprisonment concurrently in respect of each offence.

      On 29 November 1995 counsel advised that there were no grounds
of appeal.

B.    Relevant domestic law and case-law

      Section 1 of the Obscene Publications Act 1959 as amended ("the
1959 Act"), provides for the test of obscenity. According to Section
1(1), an article shall be deemed to be obscene if its effect or (where
the article comprises two or more distinct items) the effect of any one
of its items is, if taken as a whole, such as to tend to deprave and
corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied
in it. Under sub-section 2, "article" means any description of article
containing or embodying matter to be read or looked at or both, any
sound record, and any film or other record of a picture or pictures.
According to sub-section 3, a person publishes an article who (a)
distributes, circulates, sells, lets on hire, gives, or lends it, or
who offers it for sale or for letting on hire; or (b) in the case of
an article containing or embodying matter to be looked at or a record,
shows, plays or projets it.

      Section 2 of the 1959 Act provides for the prohibition of
publication of obscene matter.

      Section 4 of the 1959 Act, provides for the defence of public
good. According to sub-section 1, a person shall not be convicted of
an offence against Section 2 of the Act if it is proved that
publication of the article in question is justified as being for the
public good on the ground that it is in the interests of science,
literature, art or learning, or of other objects of general concern.
According to Section 4(2), the opinion of experts as to the literary,
artistic, scientific or other merits of an article may be admitted in
any proceedings under the Act either to establish or to negative the
said ground.

      In the case of Director of Public Prosecutions v. Jordan ([1976]
3 All ER 775-787), Lord Wilberforce laid down an objective test of
obscenity, describing:

      "An article (a technical word which includes books and
      films) is obscene if its effect is such as to tend to
      deprave and corrupt persons likely to read, see, or hear
      the matter contained or embodied in it. The main point to
      be noticed about [Section 1(1) of the 1959 Act] is, as I
      pointed out in Director of Public Prosecutions v. Whyte
      ([1972] 3 All ER 12 at 17), that it is directed at relative
      obscenity - relative, that is, to likely readers. (I use
      'readers' to include other types of recipients.) In each
      case it has to be decided who these readers are and so
      evidence is usually given as to the type of shop or place
      where the material is, and as to the type of customer who
      goes there (cf. again, Director of Public Prosecutions v.
      Whyte [1972] 3 All ER 12). When the class of likely reader
      has been ascertained, it is for the jury to say whether the
      tendency of the material is such as to deprave or corrupt
      them, and for this purpose, in general, no evidence,
      psychological, sociological or medical may be admitted
      (cf. R. v. Andersson [1971] 3 All ER 1152; Director of
      Public Prosecutions v. Whyte [1972] 3 All ER 12). The jury
      consider the material for themselves and reach their
      conclusion as to its effect. They cannot be told by
      psychologists or anyone else what the effect of the
      material on normal minds may be."

COMPLAINTS

1.    The applicant complains that there has been an unjustified
interference with his freedom of expression contrary to Article 10 of
the Convention. He feels that it was his right to produce the material
concerned to members of the public who share the same opinion. He
contends that the videos he had published were for legitimate
entertainment purposes and did not deprave or corrupt citizens in any
way as only customers sharing his opinions would have responded to his
adverts and after reading his brochures would have purchased videos of
this kind.

      He claims that to citizens living in other member states as the
Netherlands or Germany, videos of a similar nature are freely and
legally available. He further submits that similar material was legally
broadcast in the United Kingdom by satellite television channels and
therefore must be regarded as incapable of depraving or corrupting.

2.    The applicant also claims that he was denied a fair trial under
Article 6 of the Convention because he was refused the right to have
called and examined an expert witness, Dr. C. He submits that the
expert's opinion related to an essential element of the offence for
which he was convicted, i.e. whether the material contained in the
videos was capable of depraving or corrupting. He contends that the
jury had to apply a subjective test as to whether the videos were
capable of depraving and corrupting because they were simply presented
with the videos by the prosecution and invited to reach a conclusion
without any expert guidance.

      The applicant also submits that he was advised by his counsel
during the course of the proceedings that such evidence would be
inadmissible under English law because of the decision in the case of
Director of Public Prosecutions v. Jordan.

THE LAW

1.    The applicant complains that his conviction and sentence
constituted an unjustified interference with his freedom of expression
ensured by Article 10 (Art. 10) of the Convention, the relevant part
of 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 ...

      2.   The exercise of these freedoms, since it carries with
      it duties and responsibilities, may be subject to such ...
      restrictions or penalties as are prescribed by law and are
      necessary in a democratic society ... for the prevention of
      disorder or crime, for the protection of health or morals
      ..."

      The Commission finds that the applicant suffered an interference
with the exercise of his freedom of expression by virtue of his
conviction and sentence for publication of obscene articles following
the police seizure of the video tapes in his home. The Commission also
finds that the applicant's conviction was prescribed by law, namely by
Section 2(1) of the 1959 Act. The Commission considers that the facts
of the present case confirm that the applicant was prosecuted for the
purpose of protecting morals, a legitimate aim under Article 10 para. 2
(Art. 10-2) of the Convention.

      The applicant does not claim that the video cassettes which he
published were not pornographic or obscene in the technical sense of
the law, but does contend that the restriction of his freedom of
expression was disproportionate as only those who shared his opinions
would respond to the advertisements published in the newspaper, and
subsequently purchase videos.

      No restriction on freedom of expression can be compatible with
Article 10 (Art. 10) of the Convention unless it satisfies, inter alia,
the test of necessity as required by the second paragraph of that
Article. In examining whether restrictions can be considered "necessary
in a democratic society", the Contracting States enjoy a certain, but
not unlimited, margin of appreciation. It is, however, ultimately for
the Convention organs to determine whether an interference corresponded
to a "pressing social need" and whether it was "proportionate to the
legitimate aim pursued" (Eur. Court HR, Wingrove v. the United Kingdom
judgment of 25 November 1996, Reports - 1996, para. 53). By reason of
their direct and continuous contact with the vital forces of their
countries, State authorities are in principle in a better position than
international organs to give an opinion on the requirements of "morals"
as well as on the "necessity" of a "restriction" or "penalty" intended
to meet them (Eur. Court HR, Müller and others v. Switzerland judgment
of 24 May 1988, Series A no. 133, p. 22, para. 35).

      In the present case, the sole question which arises in the
context of the relationship of proportionality between the interference
with the applicant's right to freedom of expression and the aim pursued
is the question of whether, given that the applicant only distributed
his video cassettes to people who expressed a clear interest, it can
be said that the penalty imposed was capable of protecting the "rights
of others" (see, in this context, Scherer v. Switzerland, Comm. Report
14.1.93, Eur. Court HR, Series A no. 287, p. 20, para. 65). Where no
adult is confronted unintentionally or against his will with filmed
matter, there must be particularly compelling reasons to justify an
interference (above-mentioned Scherer Report, p. 20, para. 65).

      The Commission notes that the applicant went to considerable
lengths to prevent cassettes from falling into the "wrong hands": in
the first place, he arranged for advertisements to be placed in a
newspaper, thereafter a leaflet was sent to interested parties and only
then would a cassette be distributed. It was thus very unlikely that
the cassettes would be purchased accidentally. On the other hand, it
is in the nature of video works that once they have been distributed,
they can, in practice, be copied, lent, rented, sold and viewed in
different homes, thereby escaping any form of control by the
authorities (see the above-mentioned Wingrove judgment, para. 63).

      The Commission considers that it cannot therefore be said with
any degree of certainty that only the intended purchasers of the film
would have access to it and not minors. To that extent the present case
is different from the case of Scherer, where the only adults who saw
the applicant's videos were those who had access to his shop (above-
mentioned Scherer Report, p. 19, para. 62).

      Moreover, the Commission recalls that in its above-mentioned
Wingrove judgment, the Court referred to the danger of video works
escaping any form of control by the authorities (above-mentioned
Wingrove judgment, para. 63). The possibility of such control must
therefore be considered as compatible with Article 10 (Art. 10) of the
Convention as such. All the applicant's activities were designed to
escape any control by the authorities.

      Further, the Commission notes that no claim is made for any
artistic merit in the applicant's video cassettes: to that extent, the
present case is different from cases where an applicant has claimed
that artistic considerations should prevail over protection grounds
(see, for example, the above-mentioned Müller and others and Wingrove
judgments, Otto-Preminger-Institut v. Austria judgment of 20 September
1994, Series A no. 295-A, or No. 17634/91, Dec. 2.9.91, unpublished,
where the applicant claimed that the absence of a defence of artistic
merit violated Article 10 (Art. 10) of the Convention).

      Accordingly, the Commission considers that in the circumstances
of the present case, where obscene video cassettes were distributed to
a limited circle of viewers but where there was no further control over
them, where the official channels for certification of videos were not
used, and where no artistic merit is claimed for the works, the
applicant's conviction for publishing obscene works was proportionate
to the legitimate aim pursued.

      It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

2.    The applicant also claims that he was denied a fair trial because
he was refused the right to call and have examined an expert witness
Dr. C. He maintains that the jury had to apply a subjective test as to
whether the videos were capable of depraving and corrupting. He invokes
Article 6 (Art. 6) of the Convention which, insofar as relevant, reads
as follows:

      "1.  In the determination of ... any criminal charge
      against him, everyone is entitled to a fair and public
      hearing ... by an independent and impartial tribunal
      established by law. ...
      ...
      3.   Everyone charged with a criminal offence has the
      following minimum rights:
      ...
      (d)  to examine or have examined witnesses against him and
      to obtain the attendance and examination of witnesses on
      his behalf under the same conditions as witnesses against
      him. ..."

      The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with applications alleging that
errors of law or fact have been committed by domestic courts, except
where it considers that such errors might have involved a possible
violation of any of the rights and freedoms set out in the Convention
(cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77, p. 81).

      Under English law, the test of whether matter is obscene, i.e.
whether an article has a tendency to "deprave and corrupt", is an
objective test. It is for the jury to determine whether the tendency
of the material is such as to deprave or corrupt, and for this purpose,
no expert evidence will be admitted. The question of whether an article
has artistic merit, on the other hand, can be the subject of expert
evidence. Thus in the present case, the applicant was indeed prevented
from bringing expert evidence on the question of whether his videos
were obscene, and any request for such evidence to be led would, as he
says, have been refused.

      However, under Article 6 (Art. 6) of the Convention the
Commission is not required to determine whether the criminal law in a
particular area is appropriate. Rather, it must look at the proceedings
as a whole with a view to determining whether the guarantees of Article
6(Art. 6)  were provided.

      Given that the question of whether an article is obscene is a
matter for the jury, the fact that the applicant could not bring expert
evidence cannot affect the fairness of the proceedings. The Commission
notes that had the applicant alleged that his videos had any artistic
merit, it would have been open to him to adduce evidence on that point.

      Finally, the Commission notes that the statement of the expert
whom the applicant now says he would have wished to have called was in
fact read out at the trial. It was not therefore formally excluded at
all.

      It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

      M.F. BUQUICCHIO                             J. LIDDY
         Secretary                                President
   to the First Chamber                     of the First Chamber