R (Gaunt) v Office of Communications (Liberty intervening)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STADLEN |
| Judgment Date | 27 January 2010 |
| Neutral Citation | [2010] EWHC 638 (Admin),[2010] EWHC 1756 (Admin) |
| Date | 27 January 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9919/2009 |
[2010] EWHC 638 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Stadlen
CO/9919/2009
Mr G Millar QC & Mr M Henderson (instructed by How & Co) appeared on behalf of the Claimant
Mr D Anderson QC (instructed by OFCOM) appeared on behalf of the Defendant
Mr B Hare (instructed by LIBERTY) appeared on behalf of the Intervener
: This is an application for permission for judicial review by Mr Gaunt of an amended decision of 8th June 2009, in which it was held that the radio station, Talksport, on which he conducted a live interview with Mr Michael Stark, a local councillor in the London Borough of Redbridge, committed a breach of rules 2.1 and 2.3 of the Code.
In the course of the interview, which was about a proposed policy that Mr Stark was associated with, of prohibiting putative foster carers from smoking, Mr Gaunt used a number of expressions which together with what Ofcom found to be bullying behaviour, it found to constitute a breach of rules 2.1 and 2.3.
The expressions which were held to be offensive were that Mr Stark was accused of being a “Nazi”, variously a “Nazi”, and a “health Nazi”, and subsequently Mr Stark was referred to as “an ignorant pig”.
It is said that the claim for permission is to bring a claim for judicial review on the basis that the Ofcom's decision was an unlawful breach of Mr Gaunt's rights to free speech under Article 10 of the European Convention on Human Rights.
There were before the court, as well as the parties, submissions made on behalf of Liberty, which obtained permission to appear as an intervener, and which was represented by Mr Hare who associated himself with and advanced parallel submissions to those of Mr Millar on behalf of the claimant.
Because I have decided that it is right that permission should be granted, it is neither necessary nor appropriate for me to give detailed reasons for my decision. I would simply make one or two observations. First, it is, in my view, important to state that the test that the court applies in considering whether permission is granted is merely whether there is an arguable case that Mr Gaunt's Article 10 rights have been infringed. That is the threshold and it does not follow, nor should it be taken as following from the grant of permission, that the court is of the view that the claim will succeed.
Very powerful arguments have been advanced on behalf of Ofcom as to why it should not and those arguments, the persuasive advocacy of which in the defence persuaded Bennett J on the papers to refuse permission, were no less persuasively advanced both in writing and orally today by Mr Anderson on behalf of Ofcom. Second, one of the issues that was raised in the course of argument on behalf of Ofcom was that Ofcom regularly has to adjudicate on a large number, or does adjudicate on a large number of particular incidents. By way of example Mr Anderson, in his written submissions, referred to last week's broadcast bulletin, which contains six decisions of Ofcom in respect of breaches and one hundred decisions in respect of non breaches. The question was raised, both by Mr Anderson and by me in questioning of Mr Millar, whether if the function of the court is as extensive as he submitted on a judicial review claim, the court would find itself inundated with applications for judicial review on the part of people who are aggrieved by decisions of Ofcom. That is a matter that is potentially of concern and gave me pause for thought. But it does not seem to me ultimately to be a matter that should be decisive. This claim must be addressed on its merits and, if as a result of the greater time that the court will have to analyse both the evidence and the arguments on a full hearing the court is of the view that Bennett J was right, then no doubt it will say so in terms which will discourage the kind of opening of the floodgates which was a source of concern to Ofcom.
It was pointed out that of the large number of cases that are considered by Ofcom, not all consider the question of freedom of political speech. It was submitted by Mr Anderson that the language used and the manner of the interview constituted gratuitous insults and that the Strasbourg jurisprudence does not support the proposition that Article 10, by virtue of its guarantee of the right of free speech and in particular the importance attributed to the right of free political speech should guarantee the use, in a political context, of gratuitous insults. It may very well be that on a full hearing of this claim, a court may take the view that the...
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