England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE DYSON: This is an application for leave to apply for judicial review of the decision of the BBC made on 22nd April 1997, that the Pro Life Alliance Party should be refused the right to transmit a party political transmission on the grounds that it offended good taste and decency. The applicant is a parliamentary candidate for the Pro Life Alliance for the constituency of Holborn and St Pancras. He is also director and secretary for that party. The principal and maybe sole aim of the party is to protect the unborn child. The party has been granted the right to transmit electoral broadcasts on the BBC by reason of the number of parliamentary candidates that are being fielded. One of its objects is to repeal the Abortion Act 1967.

2. A transmission tape was sent to the BBC and on the 22nd April the BBC wrote a letter which contained the decision now sought to be challenged. That letter included the following observations:

3. The Guidelines also make clear that 'the basic pillars of decency rest on telling the truth about the human experience, including its darker side, but we do not set out to demean or to brutalise through word or deed, or to celebrate cruelty.'

4. The BBC considered the sequence headed A Woman's Right to Choose shot by shot with considerable care. This sequence takes up 2 minutes 12 seconds of the total broadcast of 4 minutes 40 seconds. The BBC regards that sequence to be totally unacceptable on taste and decency grounds and we would not broadcast it under any circumstances at any time."

5. The BBC allocated time for transmitting this broadcast at 6.50 pm today. The applicant accepts that the nature of the broadcast is such that it should not be transmitted prior to the watershed time of 9 pm, but, as I have indicated, the BBC refuses to transmit the offending part of the transmission under any circumstances, or at any time. I should add that the three independent television channels, channels 3, 4 and 5 have made similar decisions for the same reasons, namely the unacceptability of the transmission on grounds of taste and decency.

6. In an affidavit sworn on behalf of the BBC Anne Slowman amplifies the position as seen by the BBC. She says that the tape was watched on Monday morning of this week several times by her, together with representatives of the three independent channels. The "offending sequence", as she describes it -- and I should add that I have myself seen it this morning -- contains 30 shots of aborted fetuses in late stages of development, many of which are in a mangled and mutilated state. She says that during the viewing, which lasted well over an hour, they discussed whether the sequence was unacceptable in its entirety, or whether certain parts of the sequence could be shown. All present were generally of the view that the whole sequence was unbroadcastable because it would undoubtedly offend against good taste or decency and be offensive to public feeling, but no final decision was taken. It was agreed that such a decision needed to be taken by each broadcaster independently, and only after referral upwards in the respective organisations. She said that after the meeting she watched the tape again. She formed the view that the shots were unacceptable in their entirety because they not only offended against taste and decency, but also against public feeling. She reached this decision bearing in mind the commitments of the BBC contained in its agreement with the Secretary of State for National Heritage dated 25th January 1996, in particular the provision at clause 5.1(b) of that agreement, which, so far as material provides that the BBC is obliged to do all it can to secure that all programmes broadcast

7. She says that she has since reviewed the tape several times and remains convinced that her decision is correct. Because of the seriousness of the issues at stake she decided to get a second opinion on her judgment from Philip Harding the controller of editorial policy, whose remit covers taste and decency issues for the BBC. He viewed it and endorsed her decision without hesitation. In reaching this view he specifically considered whether he would show such footage in any circumstances, for example, to show that a massacre had taken place. He decided that he would not.

8. She goes on to say that the Director-General of the BBC does not normally view programmes for transmission. Decisions about the suitability of broadcasts for transmission are delegated to his senior executives, in this instance herself, whose advice he relies upon. Nevertheless, given the seriousness of the decision, she contacted him to discuss it, and he confirmed that he accepted her advice on the matter. In addition to all of that, through the secretary to the BBC, the Chairman of the Corporation, who is in the United States, was contacted and informed of the decision. In his absence the Vice-Chairman endorsed it.

9. The transmission, which as I have said I have seen, falls into two quite distinct parts. The first part shows fetuses in various stages of development in the womb, interspersed with comments about the number of abortions that are conducted every year on fetuses which are more mature than those shown on the transmission. As I understand it no objection is taken to that part of the transmission. The offending part, which is graphically described by Anne Sloman in her affidavit, shows moving pictures of abortions. It shows fetuses in a mangled and mutilated state and parts of aborted fetuses. Were it relevant to say so, I would unhesitatingly have said that in my judgment the offending part is indeed shocking. No doubt it is intended to be so. The issue, however, is not my judgment about that part of the transmission; it is whether the view taken by the BBC is one which is arguably challengeable on grounds that it is unlawful.

10. I turn therefore to the grounds of challenge. I should preface my comments by saying that it is accepted on behalf of the BBC that the applicant has sufficient standing to bring this application, and that it is arguable, which is sufficient for my purposes, that the BBC is amenable to judicial review. The first ground is a Wednesbury challenge. It is said that the judgment of the BBC that the offending part of the programme offended the tenets of decency and taste is perverse; it is unreasonable in the Wednesbury sense. Further and alternatively it is said that the BBC has misapplied its own stated policy and that there has been an arbitrary exercise of power.

11. It is not in dispute that the judgment as to what amounts to a lack of decency and taste is subjective. At the very least it contains an overwhelming subjective component. It cannot be disputed in my judgment that the court must be very slow to interfere with the exercise of judgments of that kind. This morning there was handed down the judgment containing the reasons given by the Divisional Court in the challenge by the Referendum Party to decisions of the BBC and the ITC in relation to that party's aspirations for political broadcasts. The issue in that case was whether the BBC had acted impartially or not. It might be said that questions of partiality raise considerations of a more objective nature than considerations of decency and the like. The fact is, however, that the Divisional Court accepted a submission made on behalf of the broadcasters that the court should be especially slow to intervene in such a subjective and contentious exercise that Parliament has left to the broadcasters. It seems to me that that approach applies with even greater force in the difficult area which this application is concerned. I have no hesitation whatsoever in deciding that it is not arguable that the decision of the BBC that the offending parts of this transmission did not meet the requirements of decency and taste, is perverse. Nor do I think it to be arguable that the BBC has misapplied its own stated policy. It was suggested in argument that the BBC has acted in an inconsistent manner. It is pointed out that almost daily viewers are subjected to harrowing scenes of massacres and the like and from time to time shots are shown of Nazi atrocities in the concentration camps. Even if there were inconsistency, that does not seem to me to give rise to an arguable case there has been perversity in the instant case. I have no doubt, however, that when making the difficult judgments that it has to make in deciding what it can and what it cannot broadcast, the BBC applies a careful approach to these matters, and that what viewers see is merely the tip of a very shocking iceberg in many cases. As I say, it does not seem to me that, even if inconsistency were established, it would assist the applicant in the present case.

12. I turn to the second ground, which is that the decision of the BBC amounts to an infringement of the applicant's common law right to disseminate information, and the common law right of the public to receive information freely. Alternatively that it amounts to an infringement of Article 10 of the European Convention on Human Rights, which provides that everyone has the right to freedom of expression. It is not suggested that there is anything wrong with the BBC's guidelines. It is not suggested that those guidelines themselves amount to an infringement of any common law rights of Article 10. What is said is that in cases which involve a curtailment of the freedom of expression, the court must identify a distinct and positive justification for such interference; and that in such cases the court should give anxious scrutiny before upholding such an interference.

13. Both the common law and the European Convention recognise that the right to freedom of expression is not totally untrammelled. It is subject to exceptions, and, quite rightly in my judgment, it was accepted by Mr Diamond on behalf of the applicant that one of the limitations on that right arises where an untrammelled freedom of expression will interfere with another conflicting right, which is the right of members of the public not to be subjected to unduly offensive material. The striking of the balance between those two rights is a matter which sometimes calls for a difficult exercise of judgment. The decision-makers, such as the BBC who operate in this sphere, have a margin of appreciation. Despite the arguments of Mr Diamond and his references, for example, to a recent article by Laws J, in Public Law, I am not persuaded that I ought to adopt an approach other than the conventional Wednesbury approach to these matters. I have in mind of course that freedom of expression is an important human right. Having read the affidavit of Anne Slowman, and having for myself seen the video of the offending part of the transmission, I am in no doubt that the decision of the BBC fell well within its margin of appreciation, notwithstanding that issues of freedom of expression are at stake in this case. I conclude therefore this ground is not arguable.

14. Mr Diamond rather tentatively advanced a third ground which in so far as I understood it amounted to an invocation of community law. On analysis, it does not seem to me that it adds anything material to his second ground. I did not understand Mr Diamond to suggest that, if he was unsuccessful on his second ground, there was anything in his third ground that could avail him. In the result I have come to the clear conclusion there is no substance in any of the arguments sought to be advanced on behalf of the applicant and accordingly dismiss this application.

15. MR PANNICK: I am obliged to you. Would you say that the applicant pay the BBC's costs in resisting this application?

16. MR DIAMOND: I would like to address you on that. It is an issue of great sensitivity. This is a leave application for judicial review. I appreciate that costs can be awarded at any stage, but my submission on judicial review of a bona fide case is that it should be quick, effective and the Crown Office High Court Judge would determine whether there is any merit in the case on a preliminary hearing, the object being to facilitate the rule of law in the United Kingdom and to enable applicants to bring cases relatively cheaply, relatively inexpensively and test the water in a sense. I think that it would be a great disservice to the process of judicial review where national institutions such as the BBC does determine that it is not going to broadcast certain matters which people do have a legitimate interest in, not to be able to bring that matter quickly and effectively to the court and not live under the fear of costs orders which would be deemed to be punitive, and therefore discourage people in electing to exercise rights, or seek to exercise rights in a matter of high political controversy where time is limited and decisions are short.

17. MR JUSTICE DYSON: Did you invite the BBC to attend today?

18. MR DIAMOND: I believe we did. That was really a matter of courtesy. I think it would have been deemed inappropriate to do an ex parte application of this nature. If I may be so bold to submit that it is an inequality of arms, so to speak, they are a publicly-funded body, paid for by the taxpayers. The individuals concerned are individual. In those circumstances, regarding the principles of judicial review, and the need to -- in our submission we acted wholly appropriately in seeking to test the water. It is a leave application and we would ask you to make no order as to costs in this matter; each party to bear their own costs.

19. MR PANNICK: It was inevitable that we would have

20. MR JUSTICE DYSON: I am afraid you will have to pay the respondent's costs.