Restrictions on Traffic

The import of indecent and obscene materials is restricted by s.42 of the Customs Consolidation Act 1876, which prohibits the import of indecent or obscene prints, paintings, photographs, books, ... or any other indecent or obscene articles. The EC Treaty now makes it unlawful to prohibit the import of goods that are not prohibited within the country, but in practice this has only slight effect on these particular import restrictions.

It is also an offence under s.11 of the Post Office Act 1953 to send or procure to be sent (i.e. to order) any indecent or obscene article through the mail; and s.4 of the Unsolicited Goods and Services Act 1971 makes it an offence to send any unsolicited book &c describing human sexual techniques, or any advertising material for such a book.

Derrick v Customs & Excise [1972] 1 All ER 993, DC

Customs officers seized sixteen reels of film and the magistrates ordered its forfeiture under the 1876 Act. On appeal, the Divisional Court upheld this order and said the statutory wording was wide enough to cover films. The eiusdem generis rule did not exclude articles whose obscenity was not immediately apparent (because books were of that type), nor was it relevant that films were subject to other controls (see below).

R v Henn [1980] 2 All ER 166, HL/ECJ

DD imported pornographic material from Holland and distributed it by mail order. They were prosecuted under s.42 of the 1876 Act (and other legislation), and claimed that the Act applied a quantitative restriction on imports contrary to European law. On a preliminary reference, the Court of Justice said some restrictions could be justified on the "public morality" grounds set out in Art.36, and the House of Lords therefore upheld DD's conviction.

Conegate v Customs & Excise [1986] 2 All ER 688, ECJ/DC

AA sought to import from Germany a quantity of life-size rubber dolls to be used for sexual purposes. The dolls were seized by Customs officers, who sought their forfeiture under the 1876 Act. On a reference by the Divisional Court, the Court of Justice held that since the manufacture and sale of these items within the United Kingdom would not have been unlawful, any restriction on their importation would be a restriction on the free movement of goods contrary to the Treaties. The Divisional Court therefore quashed the order for forfeiture and ordered the goods returned to AA.