HOUSE OF LORDS
 UKHL 23
on appeal from:  EWCA Civ 297
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. British Broadcasting Corporation (Appellants)
ex parte Prolife Alliance (Respondents)
JUDGMENT: 10 APRIL 2003
REASONS: 15 MAY 2003
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. British Broadcasting Corporation (Appellants) ex parte Prolife Alliance (Respondents)
Judgment: 10 April 2003
Reasons: 15 May 2003
 UKHL 23
LORD NICHOLLS OF BIRKENHEAD
"There is an implied contract between the viewer, the listener and the broadcaster about the terms of admission to the home. The most frequent reason for viewers or listeners finding a particular item offensive is that it flouts their expectation of that contract - expectations about what sort of material should be broadcast at a certain time of day, on a particular channel and within a certain type of programme, or indeed whether it should be broadcast at all."
"the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder...Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offence by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow."
The legislative framework.
(a) The independent broadcasters.
"nothing is included in its programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling."
(b) The BBC
"do not include anything which offends against good taste or decency or is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling."
(c) The Broadcasting Standards Commission
(d) The Communications Bill
"(2)(f) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material;"
"(a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;
(b) the likely size and composition of the potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;
(c) the likely expectation of the audience as to the nature of a programme's content and the extent to which the nature of a programme's content can be brought to the attention of potential members of the audience;
(d) the likelihood of persons who are unaware of the nature of a programme's content being unintentionally exposed, by their own actions, to that content;
(e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section; and
(f) the desirability of maintaining the independence of editorial control over programme content."
(e) Audience research
Political and election broadcasts
"The effective raising of the threshold for smaller parties to qualify for PEBs, from 50 seats to one-sixth of contested seats, was made partly in order to deter organisations from fielding candidates so as to qualify for a PEB for their own publicity purposes rather than for genuine electoral purposes. It remains the case, however, that the estimated commercial value of the free airtime far exceeds the cost of lost candidate deposits in one sixth of seats. Should we be concerned by the possibility of this scenario? If so, what measures could be taken to provide additional disincentive?"
"We are concerned that election broadcasts should inform electors' voting intentions. At the present time, and until such a time as transmission signals are far more fragmented and localised, most broadcasting media reach mass audiences. For independent candidates and for parties fielding candidates in a small number of constituencies, those constituencies would be only one very small part of the overall audience of a PPB. For the vast majority of viewers and listeners, therefore, there would be no opportunity to vote for that candidate or party and so the PPB would be irrelevant in terms of providing information to inform voting intentions."
Programme standards and PEBs
"The content of party political broadcasts, party election broadcasts and Ministerial broadcasts (together with Opposition replies) is primarily a matter for the originating party or the government and therefore is not required to achieve impartiality. The BBC remains responsible for the broadcasts as publisher, however, and requires the parties to observe proper standards of legality, taste and decency."
"Editorial control of the contents of [PPBs and PEBs] normally rests with the originating political party. However, licensees are responsible to the ITC for ensuring that nothing transmitted breaches the Programme Code, notably the requirements on matters of offence to good taste and decency set out in Section 1...Licencees should issue parties with general guidelines on the acceptability of content...These guidelines, which are agreed between all relevant broadcasters, are designed to reconcile the editorial standards of the broadcaster, and audience expectations, with the freedom of political parties to convey their political messages."
The ProLife Alliance Broadcast
"We can confirm that Anne Sloman's letter of 10 May represents the views of the BBC, ITV, Channel 4 and Channel 5. Having viewed the video, each broadcaster individually came to the same conclusion that the broadcast would be offensive and so was not acceptable. We have met again to reconsider the matter in the light of your written submissions and we have again watched the video...
Some of the images are unacceptable in themselves because they are likely to be offensive to public feeling, in particular the images of aborted foetuses mostly in "a mangled and mutilated state"...
Some images of aborted foetuses could in principle be acceptable depending on the context in which they appear. What is unacceptable in your client's broadcast is the cumulative effect of several minutes primarily devoted to such images...
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...
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 regarded this as a case at the margin. We all regard it is 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."
The application for judicial review
The Court of Appeal
Two questions or one?
"In essence, the court found that the broadcasters acted unlawfully by allowing the shock and disgust that the Alliance's PEB might cause to the viewing public to outweigh that party's right to express its political message in its chosen form. Thus, the broadcasters' failure properly to carry out a full proportionality review - to ask if the social evil to be avoided justified the extent of the infringement on the Alliance's rights - meant, in the court's eyes, that the broadcasters had illegitimately exercised their judgment with regard to the taste and decency obligations.
The problem with the court's analysis is that it is not clear how, in a legal sense, the broadcasters were really at fault. Simply put, they were not empowered by their legal instructions to conduct the kind of full proportionality inquiry that the Court of Appeal required of them. It is true that the very diffuseness of the broadcasters' taste and decency obligations allowed them a degree of leeway in the exercise of their judgment. And the broadcasters did (quite properly) consider the Alliance's right of political expression when carrying out this exercise. However, the broadcasters still had to abide by the overarching legal instructions laid down for them, either by Parliament (via the Broadcasting Act and the ITC) or by the Secretary of State...(via the BBC's agreement). These instructions were clear, if not always easy to apply: the broadcasters must decide if a programme meets their taste and decency obligations; and if it does not, then they must not screen it...
The Court of Appeal's decision effectively rewrote the broadcasters' obligations to read something like "nothing is to be included in [a broadcaster's] programmes which offends against good taste or decency or...public feeling except in the case of PEBs". Therefore, while the broadcasters bear the brunt of the court's blame for not properly implementing their obligations as rule appliers, the real force of the court's judgment actually is directed at the rule-makers' failure to exempt PEBs from the broadcasters' taste and decency obligations."
Can taste and decency standards be applied to PEBs?
(a) Is this an issue?
Freedom of political speech
(a) The nature of the right under article 10
"The Commission recalls that article 10 of the Convention cannot be taken to include a general and unfettered right for any private citizen or organisation to have access to broadcasting time on radio or television in order to forward his opinion, save under exceptional circumstances, for instance if one political party is excluded from broadcasting facilities at election time while other parties are given broadcasting time."
(b) Contents conditions
(c) Are conditions as to taste and decency discriminatory?
"While we too would attach considerable weight to freedom of expression for political parties, especially during election campaigns, we are not convinced that this calls for PEBs to be exempted from the normal standards applied to all other broadcast material. It is not, in our view, realistic to conclude that the electorate necessarily stands to benefit from PPBs being outside the normal controls. In addition, we would be concerned if incentive was provided for organisations to register as political parties and field sufficient candidates in order to qualify for PPBs which would not only provide access to the media that would not otherwise be available but would enable material to be broadcast that would not otherwise be allowed."
The decision by the broadcasters
LORD SCOTT OF FOSCOTE
"…. necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." (Article 10(2)).
"do not include anything which offends against good taste or decency or is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling;" (para 5.1(d)).
Section 6(1) of the Broadcasting Act 1990 imposes a restriction to the same effect on the ITV companies. It provides that
"The [Independent Television] Commission shall do all that they can to secure that every licensed service complies with the following requirements, namely—
(a) that nothing is included in its programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling;"
(1) The ProLife Alliance is against abortion.
(2) Its candidates at general elections stand on a single issue, namely, that the abortion law should be reformed so as either to bar abortions altogether or, at least, to impose much stricter controls than at present pertain. This is a lawful issue and one of public importance.
(3) The Alliance's desired programme was factually accurate. Laws LJ described what was shown in the programme thus—
"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."
There was no dissent from this description.
(4) Laws LJ went on to describe what was shown in the programme as "…. certainly disturbing to any person of ordinary sensibilities". This, too, was not disputed.
(5) It was accepted that, if the programme was to be transmitted, it would have to be transmitted in the late evening, and be preceded by an appropriate warning.
(6) Television is of major importance as a medium for political advertising. That this is so has throughout been recognised on all sides.
LORD WALKER OF GESTINGTHORPE
"(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. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".
"(a)…nothing is included in its programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling".
The following paragraphs of section 6(1) impose comparable requirements in respect of accuracy and impartiality in news programmes, impartiality in programmes dealing with political or industrial controversy, responsibility in religious programmes, and the prohibition of subliminal images. 'Programme' is widely defined in section 202. By section 7 the ITC is required to draw up a code giving guidance on standards and practice, especially in relation to the portrayal of violence. The ITC has produced a code known as the ITC Programme Code.
"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."
"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."
"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."
"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.
"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.
"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  1 WLR 1040, 1049.
"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.
"The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  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?"
"The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various Convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence ex parte Smith  QB 517, 554 is not necessarily appropriate to the protection of human rights".
"In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell  PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood  1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18 "that the intensity of review in a public law case will depend on the subject matter in hand." That is so even in cases involving Convention rights. In law context is everything".
Lord Bingham of Cornhill agreed with Lord Steyn and Lord Cooke of Thorndon. Lord Cooke, in a short speech, went further and suggested that the day would come when it would be more widely recognised that Wednesbury was an unfortunately retrogressive decision in English administrative law. Lord Hutton agreed with Lord Bingham and Lord Steyn. Lord Scott of Foscote agreed with Lord Bingham and Lord Cooke.
(1) (at p 376) "greater deference is to be paid to an Act of Parliament than to a decision of the executive or subordinate measure";
(2) (at p 377) "there is more scope for deference 'where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified' (per Lord Hope in ex parte Kebilene)";
(3) (at p 377) "greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts";
(4) (at p 378) "greater or less deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts".
"Hand in hand with proportionality principles is a concept of 'latitude' which recognises that the Court does not become the primary decision-maker on matters of policy, judgment and discretion, so that public authorities should be left with room to make legitimate choices. The width of the latitude (and the intensity of review which it dictates) can change, depending on the context and circumstances. In other words, proportionality is a 'flexi-principle'. The latitude connotes the appropriate degree of deference by court to public body. In the Strasbourg (ECHR) jurisprudence the concept of latitude (called 'the margin of appreciation') comes with a health warning: it has a second super-added deference (international court to domestic body) inapt to domestic judicial review (domestic court to domestic body). This means that Human Rights Act review needs its own distinct concept of latitude (the 'discretionary area of judgment'). The need for deference should not be overstated. It remains the role and responsibility of the Court to decide whether, in its judgment, the requirement of proportionality is satisfied".
There is also an interesting recent article by Mr Richard Edwards which I shall return to.
(1) There is no challenge to the statutory (or in the case of the BBC quasi-statutory) requirement for exclusion of what I have (as shorthand) called offensive material. That requirement is expressed in imprecise terms which call for a value-judgment to be made. The challenge is to the value-judgment made by the broadcasters.
(2) Their remit was limited (for reasons not inimical to free speech) to a single decision either to accept or to reject the programme as presented to them. In making that decision the broadcasters were bound (in accordance with their respective codes) to have regard to the special power and pervasiveness of television.
(3) Although your Lordships do not know the identities of all those involved in the decision, Ms Sloman is undoubtedly a broadcaster of great experience and high reputation. There is no reason to think that she and the others involved failed to approach their task responsibly and with a predisposition towards free speech. No doubt is cast on the good faith of any of them.
(4) Free speech is particularly important in the political arena, especially at the time of a general election. That is why specific arrangements are made for PEBs, but the fact that PEBs are not immune from the general requirement to avoid offensive material is only a limited restriction on free speech, and it applies equally to all political parties. There was no arbitrary discrimination against the Alliance.
(5) The effect of the decision was to deprive the Alliance of the opportunity of making a broadcast using disturbing images of the consequences of abortion. The Alliance still had (and used) the opportunity to broadcast its chosen text, and it was still at liberty to use a variety of other means of communicating its message. In that respect article 10, although engaged, was not engaged as fully as if there had been some total ban.
"the political uses of television for shock effect is not limited to abortion . . . ('Other subjects that could easily lead to shocking and graphic visual treatment include the death penalty, gun control, rape, euthanasia and animal rights.')"
But I would not regard this as making the restriction on offensive material arbitrary or discriminatory in any relevant sense. Images such as those in the Alliance's video, transmitted into hundreds of thousands of homes, would indeed have extraordinary power to stir emotions and to influence opinions. But that is the justification for imposing on the broadcasters responsibility for excluding offensive material. It cannot be a free-standing reason for disregarding the prohibition as discriminatory against those who (for whatever well-intentioned reasons) wish to shock television viewers.