Attorney General ex rel. McWhirter v Independent Broadcasting Authority
| Jurisdiction | England & Wales |
| Date | 1973 |
| Court | Court of Appeal (Civil Division) |
Injunction - Relator action - Public Interest - Scheduled television programme - Newspaper criticisms - Attorney-General's refusal to move ex officio for injunction - Action by private citizen to prevent showing of programme - Locus standi - Whether relator action essential Statutory Duty - Statutory authority - Independent Broadcasting Authority - Duty to “satisfy themselves” - Scheduled television programme prima facie including indecent and offensive matter - Staff advice to authority - Newspaper criticisms - Whether authority obliged to view programme - Whether authority's decision, that programme not offensive, reasonable -
On Monday January 15, 1973, the applicant, a member of the public, telephoned the Attorney-General's office to ask the Attorney-General to move ex officio to stop a documentary programme about an American artist and film-writer scheduled to be transmitted at 10.30 p.m. on the Independent Television network on Tuesday January 16, on the ground that its transmission would be a breach by the Independent Broadcasting Authority of its duty under section 3 (1) (a) of the Television Act 1964F1. He based his request on three newspaper criticisms of a preview of the film which described incidents included in it, and also on the advertised preamble to the film which warned that “some people” might find aspects of it “offensive.” At 2 p.m. he was told that the Attorney would not move himself but that that decision was without prejudice to consideration of a request by the applicant in proper form for relator proceedings. The applicant decided, in view of the shortness of time and his understanding as to the complexity of the requirements for instituting relator proceedings, to proceed on his own. He served a writ on the authority on the morning of January 16 and applied ex parte to Forbes J. in chambers for an injunction to restrain the authority from transmitting the film that evening. The judge refused the application. The applicant appealed to the Court of Appeal, which heard him at 3.30 p.m., examined the newspaper cuttings and the relevant sections of the Act, and adjourned until 5 p.m., having directed that the authority should if possible be represented before a decision was made.
Counsel for the authority presented evidence that the programme had been subjected to careful scrutiny by the senior staff and revised with deletions but that the members of the authority had not themselves viewed it after the adverse newspaper reports.
The court were unanimously of opinion that there was prima facie evidence that the programme included matter which would contravene the requirements of section 3 (1) (a) of the Act, and by a majority, Cairns L.J. dissenting on the ground that the applicant had no locus standi in his own right, granted a temporary injunction; and the programme was not shown that night.
Before the order of the court had been drawn up, the authority applied for the appeal to be restored to the list for further argument. At the resumed hearing, the Attorney-General, appearing as amicus curiae on the question of the applicant's locus standi, said that he would give his consent to relator proceedings properly instituted. The authority presented evidence that its members had themselves since the interim injunction viewed the programme, as had also the General Advisory Council, and that with one dissentient had decided that the programme was suitable to be shown at the suggested time and that the authority was satisfied that it complied with the requirements of section 3 (1) (a) in respect of good taste, decency and offence to public feeling: —
Held, (1) that where there was a breach or threat of breach of the law affecting the public generally, a private citizen with no interest greater than that of others could only apply for an injunction if he had first obtained the fiat of the Attorney-General who in constitutional law had an absolute discretion to decide whether or not to institute proceedings. As on the, evidence the applicant had had both time and opportunity to apply for relator proceedings in the name of the Attorney-General and had elected not to do so he had no locus standi.
Sed per Lord Denning M.R. (Lawton L.J. concurring). In the last resort, if the Attorney-General refused leave in a proper case or unreasonably delayed giving leave, or if his machinery worked too slowly, a member of the public having an interest could himself apply to the court, at least for a declaration, and in a proper case for an injunction, joining the Attorney-General, if need be, as defendant (post, pp. 356B–H, 363H).
(2) That the injunction should be discharged, for the Television Act 1964 placed on the authority the whole duty under section 3 (1) to satisfy themselves about the content of programmes, and the court could only question their decision to transmit the particular programme if it were shown that they had misdirected themselves in law or that their decision was unreasonable. Though on the original application there was a prima facie case that the authority had not done sufficient to “satisfy themselves,” the evidence available on the further hearing was sufficient to require the court to hold that the decision was one which the authority could reasonably make.
Per curiam. The duty of the authority under section 3 (1) (a) is to consider the parts as well as the whole of a programme, though the parts may be considered in their context.
No cases are referred to in the judgments or were cited in argument in the preliminary proceedings.
The following cases are referred to in the judgments on February 5:
Attorney-General v. Great Eastern Railway Co. (
Attorney-General v. Pontypridd Waterworks Co. [
Attorney-General v. Westminster City Council [
Boyce v. Paddington Borough Council [
Caldwell v. Pagham Harbour Reclamation Co. (
Deare v. Attorney-General (
Dyson v. Attorney-General [
Lewisham Metropolitan Borough and Town Clerk v. Roberts [
Liversidge v. Anderson [
London County Council v. Attorney-General [
Prescott v. Birmingham Corporation [
Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [
Secretary of State for Employment v. ASLEF (No. 2) [
Thorne v. British Broadcasting Corporation [
The following additional cases were cited in argument on the further hearing:
Attorney-General v. Bastow [
Reg. v. Customs & Excise Commissioners, Ex parte Cook [
INTERLOCUTORY APPEAL from Forbes J.
On Tuesday, January 16, 1973, the Court of Appeal interrupted the hearing of an appeal to receive an application, said to be urgent, by the applicant, Alan Ross McWhirter, a member of the public, made ex parte. He told the court that he had just been before Forbes J. in chambers asking ex parte for an injunction to restrain the Independent Broadcasting Authority, their servants or agents or programming companies under their control or otherwise or howsoever, from broadcasting on the Independent Television Network the programme advertised for 10.30 p.m. that night, devised by Associated Television, which concerned the mentality of an American film producer named Andy Warhol and which was to be preceded by a preamble ordered by the authority that “some people may find Warhol's work and life style unsympathetic or offensive,” on the grounds that that was a transmission in breach of section 1 (4) (b) and (c) and section 3 (1) (a) of the Television Act 1964; that the judge had refused the injunction, apparently on the ground that he did not consider the applicant had any locus standi where he could show no special interest over and above the other members of the public; that the applicant had that morning served on the authority a writ in terms of the present motion, but that the authority had not appeared and was not represented before the judge. There had been no opportunity to inform the authority of his intention to come to the Court of Appeal.
He made his application supported by an affidavit referring in detail to three newspaper reports by television critics of their preview of the programme which are referred to in the judgments of the Court of Appeal on January 16 (post, pp. 348E–349B).
The applicant told the court that he had asked to have but had been refused a view of the programme himself; that he had on Monday, January 15 asked the Attorney-General's office whether the Attorney-General would move the court ex officio to stop the showing of the film on the ground that it would be in breach of the authority's statutory duty under the Act; that he had been told on that afternoon that the Attorney-General had decided not to take action ex officio; and that as the Act provided no sanction of any kind for breach of a statutory duty by the authority he had decided to come to the court in his own name because he considered that under the common law a private citizen was under a duty to see that Acts of Parliament were...
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