Attorney General v British Broadcasting Corporation

JurisdictionUK Non-devolved
JudgeViscount Dilhorne,Lord Salmon,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Scarman
Judgment Date12 June 1980
Judgment citation (vLex)[1980] UKHL J0612-1
Date12 June 1980
CourtHouse of Lords
Her Majesty's Attorney General
(Respondents)
and
British Broadcasting Corporation
(Appellants)

[1980] UKHL J0612-1

Viscount Dilhorne

Lord Salmon

Lord Edmund-Davies

Lord Fraser of Tullybelton

Lord Scarman

House of Lords

Viscount Dilhorne

My Lords,

1

On the 9th February 1978 the B.B.C. advertised in the Radio Times their intention to broadcast a television programme about a sect called the 'Exclusive Brethren'. It was a repeat of a television programme broadcast by the B.B.C. on the 26th September 1976. Your Lordships have not seen the text of the proposed broadcast and have not seen any evidence as to the activities of the sect. Lord Denning M.R. at the commenement of his judgment, gave a short account of their tenents and activities which he said 'must be taken with reserve' as their activities had not been proved by evidence. Among other things he said that their doctrine had caused such distress that

"it is said that in Andover it led to two deaths which the coroner described as murder and suicide."

2

It is not necessary for the purposes of this appeal to express any opinion about the Exclusive Brethren. It suffices to say that Lord Denning who had seen a transcript of the broadcast, which your Lordships have not, described it as 'extremely hostile to, and critical of' the Exclusive Brethren.

3

Among other things, he said that it stated that they were not entitled to exemption from liability for rates on their meeting rooms by virtue of section 39 of the General Rate Act 1967 as it was said that their meeting rooms were not open to the public and so were not 'places of public religious worship' coming within that section.

4

The Exclusive Brethren had applied for the exemption from rates of their meeting room at Andover. To this both the local authority and the valuation officer objected and the question whether they were entitled to exemption was to come before the local valuation court at Andover on the 10th March 1978.

5

The Exclusive Brethren demanded that the broadcast should not be made on the ground that its content would prejudice the hearing of their case before the local valuation court and interfere with the administration of justice. When the B.B.C. refused to accede to this demand, the matter was brought to the attention of the Attorney-General who on the 17th February 1978, two days before the proposed broadcast, issued a writ claiming an injunction restraining the B.B.C. from making it. The same day an application was made to the Divisional Court for an interlocutory injunction.

6

It is sometimes asserted that no judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard or read outside the court and he will not knowingly let himself be influenced in any way by the media, nor in my view will any layman experienced in the discharge of judicial duties. Nevertheless it should, I think, be recognised that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. As Lord Denning said the stream of justice must be left clean and pure. It is the law, and it remains the law until it is changed by Parliament that the publication of matter likely to prejudice the hearing of a case before a court of law will constitute a contempt of court punishable by fine or imprisonment or both.

7

In this appeal we do not have to pronounce on whether the proposed broadcast would have prejudicially affected the hearing before the local valuation court. Although it clearly was likely to have aroused hostility to the Exclusive Brethren, it by no means follows that it would have prejudiced their claim to relief from rates. The mere assertion in the course of the broadcast that they were not entitled to that relief was in my view unlikely to have affected in any way a decision on whether their meeting room was a place of public religious worship coming within section 39.

8

As I have said, on the 17th February an application was made to the Divisional Court for an interlocutory injunction to prevent the broadcast being made two days later. Unknown to the parties to the action, the Attorney-General and the B.B.C., though presumably not unknown to the Exclusive Brethren, there was then no prospect of the claim to rate relief being heard by the local valuation court on the 10th March, the local authority and the valuation officer having withdrawn their objection to the claim on the 16th February.

9

Before the Divisional Court, where naturally the matter had to be dealt with in a great hurry, it not being known to that court that there would be no hearing before the local valuation court, it appears to have been assumed that the broadcast would be prejudicial to the hearing and the only question considered was whether the local valuation court was a court coming within R.S.C. Order 52 rule 1 which so far as material reads as follows:

"1 (1)……….

(2) Where contempt of court—

(a) is committed in connection with—

(i) any proceedings before a Divisional Court of the Queen's Bench Division or

(ii) criminal proceedings, except where the contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court, or

(iii) proceedings in an inferior court, or

……….

then … an order of committal may be made only by a Divisional Court of the Queen's Bench Division.

……………….."

10

On the Divisional Court holding that it did, the B.B.C. undertook not to broadcast the programme until after the 10th March. The Divisional Court consequently made no order save as to costs.

11

The B.B.C. appealed, asking that the Divisional Court's declaration that a local valuation court is a court for the purposes of the powers of the court relating to contempt should be set aside. The hearing of the appeal commenced on the 1st March and ended on the 6th. Judgment was given on the 11th April. From Lord Denning's judgment it appears that the Court of Appeal in the course of the hearing were informed that there would be no hearing before the local valuation court on the 10th March. It follows that there could be no question of contempt of that court being committed by the B.B.C., and that being so, I must confess to some surprise that the Court of Appeal nevertheless entertained the matter.

12

They held by a majority, Lord Denning dissenting, that a local valuation court was a court coming within the rule. It follows that in their view the Divisional Court's jurisdiction extends to punishing contempt of that court. The Court of Appeal gave leave to appeal to this House so your Lordships are now called upon to decide what is in reality a hypothetical question, namely can the Divisional Court punish as a contempt of court conduct likely to prejudice a hearing before a local valuation court. If it can, it has power to restrain publication of matter likely to have that effect.

13

It is most unusual for this House to pronounce on hypothetical questions. Ordinarily we refuse to do so and it is with some reluctance that in this case I am prepared to depart from our usual practice. I do so for the following reasons. Both parties want us to do so. The B.B.C. naturally do not wish to commit contempt of court. They want to know where they stand. If they repeat the broadcast, they want to know if they are liable to be proceeded against for contempt should there happen to be an application pending before one of the many local valuation courts in the country by the Exclusive Brethren for rate relief. For the Attorney-General it was suggested that if a local valuation court is a court coming within the rule, the following tribunals must also be courts coming within the rule; Agricultural Land Tribunals, the Commons Commissioners, Immigration Adjudicators, Immigration Appeal Tribunals, the Lands Tribunal, the Mines and Quarries Tribunal, Pension Appeal Tribunals, the Performing Rights Tribunal, the Plant Varieties and Seeds Tribunal, the Transport Tribunal and V.A.T. Tribunals, of which according to the Annual Report of the Council on Tribunals for 1978/79 there are well over 500 in this country. If this suggestion is well founded, it means that the media are at risk of being proceeded against for contempt should anything be published which is likely to affect a hearing before any of these tribunals.

14

If the reasoning of the Court of Appeal is accepted, and unless your Lordships deal with this case it will be, then it means that until the question has been litigated in respect of each of these tribunals, there will be great and undesirable uncertainty as to the extent of the Divisional Court's jurisdiction to punish for contempt.

15

I think the desirability of your Lordships, if possible, removing or diminishing this uncertainty, justifies the taking of the exceptional course of considering this now hypothetical question.

16

Local valuation courts are a comparatively modern innovation. They were created in 1948 by section 44(1) of the Local Government Act of that year (now replaced by the General Rate Act 1967 section 88) which stated that:

"Local valuation courts constituted as hereinafter provided shall be convened … for the purpose of hearing and determining appeals … against draft valuation lists and against objections to proposals for the alteration of valuation lists."

17

Before 1948 it was the task of assessment committees to deal with these matters. The 1948 Act provided, and the 1967 Act now provides, that a local valuation court is to consist of three...

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