Judgments - Regina v. British Broadcasting Corporation (Appellants) ex parte Prolife Alliance (Respondents)

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    108. By section 36 of the 1990 Act any licence granted by the ITC to any of the independents must contain conditions requiring the broadcaster to include party political broadcasts in its service, and to observe rules made by the ITC in respect to party political broadcasts. There is no special definition of PPBs or PEBs; the latter is simply a PPB made during the period before a general election. No PPB may be made except by a registered political party (a restriction which applies to the BBC as well as to the independents). By section 36(5) of the 1990 Act (as added by the 2000 Act) the ITC must have regard to the views of the Electoral Commission (a body established by the 2000 Act) before making rules under section 36(1)(b). A similar requirement is imposed in respect of the BBC by section 11(3) of the 2000 Act. The general effect is that the independents must provide PPBs and must do so within statutory guidelines; the BBC need not provide PPBs (although it has always done so) but if it does it too must stay within statutory guidelines.

    109. Before the 2001 general election the BBC and the independents agreed rules for the allocation of PEBs to political parties fielding candidates at the election. The details are not important for present purposes, but the general effect was that the Alliance would be entitled to one PEB (to be transmitted in the area in question) if candidates were standing in its interest in one-sixth of the seats in England, Wales, Scotland or Northern Ireland (as the case might be). The maximum duration of the broadcast would be four minutes forty seconds. It was for the Alliance (as for any other eligible party) to produce and edit the programme at its own expense, but transmission was provided free of charge by the broadcasters.

    110. At the end of March 2001 the Alliance first contacted the BBC. What followed was to some extent traversing old ground which had already been covered in 1997. It is not necessary to recount what happened in 1997 in detail (it is set out more fully in the judgment of Laws LJ in the Court of Appeal, paras. 17 to 19) since the programme put forward in 1997 was in some respects different, and the Human Rights Act 1998 ('the Human Rights Act') was not then in force, or indeed anything more than a possible manifesto commitment. In brief, however, the Alliance's application for judicial review was refused by Dyson J on 24 March 1997, and a renewed application was refused by the Court of Appeal (presided over by Lord Woolf MR) on 20 October 1997. On 24 October 2000 the Alliance's complaint to the European Court of Human Rights was declared inadmissible (presumably on the ground of being manifestly ill-founded) by a Committee of four judges.

    111. I return to the events of 2001. On 2 May the Alliance submitted to the BBC a video containing its proposed PEB. At that stage there was uncertainty as to how many candidates the Alliance would field in different parts of the United Kingdom (the last date for nominations was 22 May, with voting on 7 June; in the event the Alliance fielded the requisite number of candidates only in Wales). On 8 May there was a meeting to view and discuss the video, attended by Ms Anne Sloman of the BBC and representatives of the independents. Ms Sloman is the Chief Political Adviser of the BBC, a post she has held since 1996. She has had a distinguished career in the BBC since joining it as a producer in 1967, and her experience and professional skills are not in issue. On 10 May the Alliance was informed of the broadcasters' preliminary view that the proposed PEB would not comply with the BBC Producers' Guidelines or the ITC Programme Code in respect of taste and decency. The letter invited written submissions, and Mr Bruno Quintavalle (who is the Secretary of the Alliance, and a member of the English Bar) sent submissions on 13 May. On 16 May there was a further meeting of representatives of the broadcasters, including Ms Sloman. A BBC solicitor also attended this meeting. Ms Sloman's undisputed evidence is that the unanimous view of the meeting was that the proposed PEB was unacceptable, and that none of those present considered it to be a difficult or marginal decision.

    112. On 17 May the BBC's Litigation Department sent a letter to the Alliance's solicitors communicating this decision. The stated reasons included the following:

    "In reaching our conclusions, we have certainly taken into account the importance of the images to the political campaign of the ProLife Alliance. We have also proceeded on the basis that we should seek the minimum changes necessary to ensure compliance with the obligations of the BBC as set out in paragraph 5 (1)(d) of the Agreement, and the Producers' Guidelines, and the obligations of the other broadcasters under the ITC Code.

    "We have had regard to the guidelines on taste and decency, prevailing standards of taste and decency, broadcasters' criteria on the portrayal of violence, and public interest considerations, as well as all the other points made in your client's letter of 13 May and the accompanying written submissions. But none of these factors leads us to conclude other than that it would be wrong to broadcast these images which would be offensive to very large numbers of viewers. None of the broadcasters regards this as a case at the margin. We all regard it as a clear case in which it would plainly be a breach of our obligations to transmit this broadcast.

    "We have considered whether (as you suggest in your written submissions) the images could be broadcast after 10 pm, with a warning for viewers. It is our judgment that the images are so offensive that it would not be appropriate to take that course in this case. We should make it clear, however, that we are not saying that in principle an election broadcast could never be transmitted after 10 pm with a warning."

    113. The Alliance promptly applied for judicial review of this decision. There was a hearing on 23 and 24 May, and the application was refused by Scott Baker J on 24 May. On 31 May and 1 June the Alliance submitted a second and a third revised version of the PEB, with progressively more blurred images. Neither of these was acceptable. On 2 June a fourth version was submitted. It was accepted and was transmitted in Wales on the same day. It contained no images other than a red background with the single word CENSORED.

    114. The undisputed evidence on behalf of the Alliance included some factual material about abortion, as practised in the United Kingdom, which Laws LJ summarised in his judgment (para. 6):

    "Each year approximately 200,000 abortions are carried out in the United Kingdom, some 70% of them funded by the taxpayer. The great majority are performed on the third of the five permitted grounds under the Abortion Act 1967 as amended: that is that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman. There is some evidence that many doctors maintain that the continuance of a pregnancy is always more dangerous to the physical welfare of a woman than having an abortion, a state of affairs which is said to allow a situation of de facto abortion on demand to prevail. The commonest form of abortion is suction abortion (vacuum aspiration), used on foetuses from 7 to 15 weeks gestation. Suction abortion always causes the foetus to be mutilated to a greater or lesser extent. Larger foetuses must be dismembered prior to extraction. A technique known as D and E (dilation and extraction) is used to effect this, either in conjunction with vacuum aspiration, or (after 13 weeks) on its own. In the second and third trimester, drugs (prostaglandins) can be used to induce premature labour. However before labour is induced there is a requirement, under Royal College of Obstetricians and Gynaecologists guidelines, to kill the foetus in the womb. This is usually done by the injection of potassium chloride into the foetal heart, or of saline solution into the amniotic fluid. The latter causes a slow death. It is said that the purpose is to avoid the possibility of a live birth which, if followed by death, could result in criminal charges."

    115. I will also set out Laws LJ's account (with which I agree) of the first version of the programme (the subject-matter of the decision letter of 17 May 2001 and the judicial review proceedings). The summary is in para. 13 of Laws LJ's judgment.

    "It shows the products of a suction abortion: tiny limbs, bloodied and dismembered, a separated head, their human shape and form plainly recognisable. There are some pictures showing the results of the procedures undertaken to procure an abortion at later stages. There is no sound on the video. There is some introductory text. Then the words of articles 2, 3 and 14 of the Convention are cut into the visual images at various points. There is also some text briefly describing different abortion techniques. The pictures are real footage of real cases. They are not a reconstruction, nor in any way fictitious. Nor are they in any way sensationalised. They are, I think, certainly disturbing to any person of ordinary sensibilities."

    116. The matter came before the Court of Appeal in January 2002. At the beginning of the hearing the Court granted permission to proceed with the application for judicial review, and treated the hearing as a substantive appeal from Scott Baker J. On 14 March 2002 the Court of Appeal (Simon Brown, Laws and Jonathan Parker LJJ) unanimously allowed the appeal and refused permission to appeal to your Lordships' House (but leave to appeal was granted by your Lordships on 17 July 2002).

    117. In the Court of Appeal Laws LJ gave the leading judgment, using robust and vivid language to describe the high constitutional importance of freedom of speech. He cited from some well-known authorities both on freedom of speech and on the heightened protection which must under the Human Rights Act be accorded to human rights, with a correspondingly closer scrutiny of administrative decision-making when human rights are engaged. After referring to these authorities Laws LJ said at para. 37,

    "These considerations, with respect, give the lie to Mr Pannick's plea for deference to the decision-makers. If a producer were so insensitive as to authorise the inclusion of what is to be seen in the claimant's PEB video in an episode of a TV soap, the broadcasters would of course forbid its being shown and the courts would of course uphold them. That is at the extreme. There might be other more marginal situations, in which the courts would incline to defer to the broadcasters' judgment. Where the context is broadcast entertainment, I would accept without cavil that in the event of a legal challenge to a prohibition the courts should pay a very high degree of respect to the broadcasters' judgment, given the background of the 1990 Act, the 1996 Act, the BBC agreement, the codes of guidance and the BSC adjudications. Where the context is day-to-day news reporting the broadcasters' margin of discretion may be somewhat more constrained but will remain very considerable. But the milieu we are concerned with in this case, the cockpit of a general election, is inside the veins and arteries of the democratic process. The broadcasters' views are entitled to be respected, but their force and weight are modest at best. I emphasise this is in no sense a slur on their expertise: having looked through the evidence I am very conscious, if I may say so, of the experience and professionalism clearly possessed by Ms Sloman, and her colleagues were no doubt likewise qualified. But in this context the court's constitutional responsibility to protect political speech is overarching. It amounts to a duty which lies on the court's shoulders to decide for itself whether this censorship was justified."

    Mr Pannick criticised the last sentence as one of what he described as the Court of Appeal's three basic errors.

    118. Jonathan Parker LJ agreed with Laws LJ and also with Simon Brown LJ, who also gave a full judgment. After referring to authority in the European Court of Human Rights, including Bowman v United Kingdom (1998) 26 EHRR 1, Simon Brown LJ said (para. 57):

    "Against that broad background, let me now turn to the critical issue arising here. Was there a pressing social need to ban this broadcast? I have reached the clear conclusion that there was not. Disturbing, perhaps shocking, though the images on this video undoubtedly are, they represent the reality, the actuality, of what is involved in the abortion process. To campaign for the prohibition of abortion is a legitimate political programme. The pictures are in a real sense the message. Words alone cannot convey (particularly to the less verbally adept) the essentially human character of the foetus and the nature of its destruction by abortion. This video provides a truthful, factual and, it is right to say, unsensational account of the process. As the claimant's evidence explains:

    'All the most challenging images from the 1997 PEB were removed, including a scene of an actual abortion procedure. All images of third trimester abortions were also removed, as were other distressing sequences, including graphic images of severed heads.'"

    These observations (and comparable observations by Laws LJ at paras. 43 and 44) were said to be the second of the Court of Appeal's basic errors, that is insisting on the importance of the images and disregarding other means open to the Alliance of getting its message across. The third error on which Mr Pannick relied (and which he put in the forefront of his case) was that the Court of Appeal came close to disregarding the simple fact that PEBs are not immune from the obligation of avoiding offence to good taste, decency and public feeling.

    119. My Lords, the House has had the benefit of clear and helpful written and oral submissions both from Mr Pannick and from Mr Anderson QC for the Alliance. But there was little or no discussion of the correct meaning to be placed on the words in section 6(1)(a) of the 1998 Act (reproduced almost word for word in the BBC's contractual obligation) prohibiting anything "which offends against good taste or decency or is likely . . . to be offensive to public feeling". There are obvious difficulties about such an imprecise sequence of words. In Müller v Switzerland (1988) 13 EHRR 212 the European Court of Human Rights recognised the vagueness of the word 'obscene' in the Swiss Criminal Code, but held that it was nevertheless "prescribed by law" (and Mr Anderson did not pursue that point in his oral submissions). Nevertheless I think it is necessary to consider the meaning to be attached to the words quoted from section 6(1)(a) (for which I shall use the shorthand "offensive material").

    120. 'Good taste' is an expression with a distinctly old-fashioned timbre. It seems very possible that in the days of Lord Reith (when newsreaders were males wearing dinner jackets and speaking the King's English) there really were no unseemly references in any broadcast to sexual activities or bodily functions, and no disrespectful jokes about living (or recently deceased) members of the Royal Family. Those times are long since past. They disappeared, perhaps forever, during the 1960's. It now needs an effort of memory or imagination to call to mind the strict statutory censorship of theatres which continued until its final abolition by the Theatres Act 1968.

    121. Counsel agreed, to my mind correctly, that the various phrases describing offensive material are best taken as a single composite expression. That takes some of the pressure off 'good taste'. The composite expression must in my view be interpreted in accordance with contemporary standards. The broadcasters' two published codes show that in practice the obligation to avoid offensive material is interpreted as limited to what is needlessly (or gratuitously) shocking or offensive. Here the context is of crucial importance, and what could not possibly be justified as entertainment may be justified (in news or current affairs programmes) as educating the public about the grim realities of life. Your Lordships were referred to a number of adjudications by the BSC (some mentioned in paras. 61 and 62 of the judgment of Simon Brown LJ) which show that the BSC takes the same view of its statutory duty under section 110 (2)(b) of the 1996 Act. I do not regard the broadcasters or the BSC as having failed in their duties by not imposing the more stringent standards which might have been appropriate 50 or more years ago.

    122. So when Mr Pannick rightly reminded your Lordships that PEBs are not immune from the obligation to avoid offensive material, that obligation must be understood as directed to matter which is likely to cause much more than mild discomfort. Even material which causes a significant degree of revulsion may be justified by the serious purpose of the context in which the material is broadcast. I would if necessary invoke section 3 (1) of the Human Rights Act to arrive at that conclusion, but I do not think it is necessary to do so. It can be arrived at by applying ordinary principles of statutory construction. It would be absurd to test offensiveness by the standards which prevailed in or before the middle of the last century.

    123. Nevertheless the citizen has a right not to be shocked or affronted by inappropriate material transmitted into the privacy of his home. It is not necessary to consider whether that is a Convention right (Mr Pannick made a brief reference to article 8, but did not seek to develop the point). Whether or not it is classified as a Convention right, it is in my view to be regarded as an "indisputable imperative" in the language of the European Court of Human Rights in Chassagnou v France (1999) 29 EHRR 615, para 113. Neither the existence of the "watershed" nor any specific warning broadcast before a programme can be relied on to provide protection, as the BBC and the independents recognise in their published codes.

    124. In forming their judgments the broadcasters were required to (and as the letter of 17 May 2001 shows, did) take account of the character of the Alliance's programme as a PEB (although one concerned with a single issue which many would regard as an issue of ethics rather than party politics). The European Court of Human Rights has recognised the special importance of freedom of expression at the time of an election (Bowman v United Kingdom (1998) 26 EHRR 1, para 42). But even in that context the freedom is not absolute (see para 43 of the same judgment). The broadcasters also had to take into account the special power and intrusiveness of television. They are, by their training and experience, well qualified (so far as anybody, elected or unelected, could claim to be well qualified) to assess the Alliance's PEB as against other more or less shocking material which might have been included in news or current affairs programmes, and to form a view about its likely impact on viewers in Wales (the only country where the "CENSORED" version was eventually shown). In making those assessments the broadcasters were reviewing not programmes produced or commissioned by their own organisations, but programmes produced by or for political parties over which (except as regards offensive material) the broadcasters had no control. They could not themselves make editorial changes, but had to accept or reject the ready-made programme in its entirety.

    125. Counsel's submissions were directed to two main questions. One is the manner in which article 10 is engaged on the facts of this case (Mr Pannick did not dispute that it is engaged in some way). The other (which is of crucial importance) is the nature of the review of the broadcasters' decision which the court had to undertake (or to put it another way, the degree of deference which the court should have shown towards the broadcasters as the primary decision-makers). The answer to the first question is likely to have an important bearing on how the second question should be answered.

    126. Where a citizen complains that a national authority is infringing his right to freedom of expression, it is usually some form of coercion that he objects to: either prior restraint (that is, some form of censorship) or criminal sanctions (such as a prosecution for sedition, blasphemy or inciting racial hatred) after the event. In general the citizen has no right to require the state to furnish him with the means of expressing his views, whether by publishing a book, or presenting a theatrical production, or broadcasting a television programme.

    127. The qualification in the last sentence of Article 10 (1) ("This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises") does not add much. It is concerned wholly or mainly with technical considerations (Groppera Radio AG v Switzerland (1990) 12 EHRR 321, paras 59-61). In particular, para 61 of the judgement of the European Court of Human Rights makes clear that any licensing measures may still have to be tested under Article 10 (2).

128.

    VGT v Switzerland (2002) 34 EHRR 159 was concerned with a prohibition, under Swiss federal law, on radio or television commercials of a political nature. VGT, an organisation campaigning for animal welfare, wanted to have broadcast a television commercial concerned with the welfare of pigs but it was rejected as being political. The government of Switzerland defended the prohibition as necessary in a democratic society in order to prevent political debate being too much influenced by those with the greatest financial resources. It also pointed out that VGT had access to other channels of communication (while accepting that these were not so powerful and pervasive in character). Nevertheless the European Court of Human Rights unanimously found an infringement of Article 10, mainly (it seems) because of the monopoly positions enjoyed in Switzerland by a single public broadcasting corporation and a single company controlling television commercials. The judgment does not, with respect, give full or clear reasons for what seems to be a far-reaching conclusion. It has already had one striking consequence, that is that the Communications Bill now before Parliament has not been certified as complying with the Convention because of a single clause relating to political advertising.

    129. The true significance of the VGT case is therefore rather imponderable. But at least the general principle stated by the Commission in the much earlier case of X and the Association of Z v United Kingdom (1971) 38 CD 86 still holds good, that although no private citizen or organisation has any unfettered right to access to broadcasting facilities,

    "the denial of broadcasting time to one or more specific groups or persons may, in particular circumstances, raise an issue under Article 10 alone or in conjunction with Article 14 of the Convention".

    The Commission expressed similar views in Haider v Austria (1995) 83 DR 66. The statement in X and the Association of Z v United Kingdom was cited by the Privy Council in an appeal from Anguilla which raised human rights issues, Benjamin v Minister of Information & Broadcasting [2001] 1 WLR 1040, 1049.

    130. I do not think it is necessary, in order to dispose of this appeal, to try to go further into the general question of how Article 10 is engaged in the field of broadcasts with a political content. But it is worth noting that the cases do reveal a degree of paradox. On the one hand, political discussion or debate is, of all forms of communication protected by Article 10, accorded particular importance (see for instance Bowman v United Kingdom (1998) 26 EHRR 1, para. 42). But on the other hand, there may be good democratic reasons for imposing special restrictions, especially to prevent those with the deepest pockets from exercising too much influence through the most powerful and intrusive means of communication.

    131. I now come on to what I see as the crucial issue. The long trek away from Wednesbury irrationality (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) as the only appropriate test, where human rights are involved, began many years before the coming into force of the Human Rights Act. The need for 'anxious scrutiny' by the Court, where human life or liberty is at risk, was memorably stated by Lord Bridge of Harwich in R v Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514, 531. The principle of proportionality (having received a passing mention by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410) was discussed but not adopted in R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 (especially at 749, 750, 762, 766-7), a case in which the House was asked (but declined) to apply Article 10 at a time when it did not form part of national law. The Wednesbury test was quite strongly reaffirmed, on a human rights issue (homosexuals in the armed forces) in R v Ministry of Defence ex parte Smith [1996] QB 517 in which Sir Thomas Bingham MR said at p556,

    "The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations".

    However, the European Court of Human Rights later ruled against the United Kingdom in that matter: Smith and Grady v United Kingdom (1999) 29 EHRR 493.

    132. Some of these cases speak of the national court, on judicial review, according to administrative decision-makers a margin of appreciation. But since the coming into force of the Human Rights Act it has become clear that that expression is confusing and therefore inapposite. The correct principle is that the court should in appropriate cases show some deference to the national legislature or to official decision-makers: see the observations of Lord Hope of Craighead in R v DPP ex parte Kebilene [2000] 2 AC 326, 380-1 and those of Lord Steyn in Brown v Stott [2001] 2 WLR 817, 842. Lord Hope (at p.381) favoured the expression "discretionary area of judgment" put forward by Lord Lester of Herne Hill QC and Mr Pannick in Human Rights Law and Practice (1999) p.74. This lead was followed by the Court of Appeal in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840; Laws LJ referred (at p.855) to the need for a "principled distance" between the decision-maker's decision on the merits and the court's adjudication.

    133. The clearest and most authoritative guidance has been given by your Lordships' House in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532. That case was concerned with official policy as to the searching of prison cells, and the impact of the policy on prisoners' rights to confidential communication with their lawyers. The passage in the speech of Lord Steyn (at pp 547-8) is very well known but it bears repetition:

    "The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an Act, rule or decision) is arbitrary or excessive the court should ask itself: "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective." Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases?"

 
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