The Video Recordings Act is temporarily unenforceable but due dilligence should still be exercised, says Neil Davies


Whitehall has announced that, as a result of a government blunder back in 1984, the Video Recordings Act is unenforceable.

Many retailers will be familiar with the Act, which regulates the classification and sale of videos, games and DVDs and prohibits their sale to underage consumers.

This is no doubt news to retailers and employees, who have been subject to both investigation and prosecution for breaches of the legislation before the criminal courts.

The Act has traditionally been enforced by local authorities, by way of Trading Standards officers, who would conduct test purchase operations at retail outlets. In the event a sale was incorrectly made, they could seek to prosecute the individual seller or the retailer before the Magistrates Court, where up to six months' imprisonment or a £5,000 fine could be imposed.

As a result, responsible retailers have implemented 'due diligence' systems to prevent underage sales and avail themselves of the statutory defence that the sale was due to the 'act or default' of another person, usually a checkout operator, and that they had taken all reasonable precaution' and exercised all due diligence to avoid the sale.

The Department of Culture, Media & Sport has confirmed it will take emergency action to close the loophole. However, this is likely to take up to three months.

A legalistic response to the question of what retailers should do in the meantime is: nothing. If an underage sale occurs in this period, neither the individual seller or the retailer will be criminally liable.

The responsible and recommended advice, however, as supported by the comments of the Association of Convenience Stores, is that retailers should continue to exercise due diligence and carry out their public responsibility to protect youth from unsuitable material.

"The advice of Lancashire Trading Standards is that all retailers and sellers should continue to abide by the legislation to prevent the sale of videos, games and DVDs to persons who are under age," says Dawn Robinson, lead officer for fair trading at Lancashire County Council.n

Neil Davies is an associate at Davies Arnold Cooper