R (on the application of ProLife Alliance) v British Broadcasting Corporation

JurisdictionEngland & Wales
JudgeLord Justice Laws,Lord Justice Jonathan Parker,Lord Justice Simon Brown
Judgment Date14 March 2002
Neutral Citation[2002] EWCA Civ 297
CourtCourt of Appeal (Civil Division)
Docket NumberCase No 2001/1265/QBACF
Date14 March 2002

[2002] EWCA Civ 297

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

(The Hon Mr Justice Scott Baker)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Simon Brown

Lord Justice Laws and

Lord Justice Jonathan Parker

Case No 2001/1265/QBACF

Between
The Prolife Alliance
Appellant
and
The British Broadcasting Corporation
Respondent

David Anderson QC, Martin Chamberlain and Maya Lester (instructed by Brown Cooper) for the appellant

David Pannick QC and Mark Shaw (instructed by BBC Litigation Department) for the respondent

Lord Justice Laws

INTRODUCTORY

1

This case is about the censorship of political speech. It concerns the question, what constraints may lawfully be imposed upon the choice of a registered political party as to the content of a party election broadcast ("PEB") to be transmitted on television on its behalf at the time of a general election. It is difficult to think of a context in which the claims of free expression are more pressing.

2

The appeal is brought against the order of Scott Baker J, delivered after oral argument by counsel for both parties on 23 rd and 24 th May 2001, by which he refused the appellant permission to apply for judicial review of the decision by the BBC and other terrestrial broadcasters to decline to transmit in Wales a PEB which had been made on video by the appellants. After the learned judge had given judgment revised videos were submitted to the broadcasters and rejected by them on two further occasions. A fourth version of the PEB, with a voiceover but an entirely blank screen, was transmitted on Saturday 2 nd June 2001. I shall deal with the facts in greater detail shortly. On 9 th August 2001 Mummery LJ granted permission to appeal against Scott Baker J's decision. He stated:

"The application for permission to apply for judicial review, which was refused by Scott Baker J, raises important issues which should be argued before the full court. The importance of those issues is a compelling reason for hearing the appeal. I express no view on the prospects of the appeal succeeding."

3

On the first morning of the hearing this court indicated to counsel that it would grant permission to seek judicial review, regard the hearing before Scott Baker J as the disposal of the judicial review at first instance, and treat the hearing in this court as the substantive appeal. Mr Pannick QC for the respondent BBC has made it clear that for the purposes of the appeal there is no suggestion that the BBC is not amenable to the judicial review jurisdiction.

THE FACTS

4

The appellant is a political party registered under the provisions of Part II of the Political Parties, Elections and Referendums Act 2000. As it is put in the skeleton argument prepared on its behalf by Mr Anderson QC, it campaigns for absolute respect for innocent human life from fertilisation until natural death and therefore opposes abortion, euthanasia, destructive embryo research and human cloning. In so summarizing the appellant's platform, in particular by use of the phrase "innocent human life", I mean to beg no question such as whether a foetus should be regarded as a person, far less a person with rights. To do so would be to take a position (or at least a preliminary position) as to the merits of the appellant's policy. I hope that readers of this judgment will understand that in the context of these proceedings the court has no authoritative voice whatever on such matters. By contrast its authority, as I shall explain, rests in its constitutional duty to protect and enhance the democratic process, irrespective of the wisdom or the rightness of any or all the diverse political opinions which in the course of that process are paraded before the people.

5

The appellant is committed to working within the democratic structures of society and repudiates all forms of violence, unduly provocative action and harassment of individuals. Its 2001 election manifesto is before the court. As the learned judge recorded, its motives and good faith are not in question. Certainly they have not been put in question by Mr Pannick.

6

The appellant has offered the following short summary of the contemporary facts and figures relating to abortion in the United Kingdom, which I do not understand to be disputed. 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.

7

The appellant has in the past put up candidates at local elections, Scottish Parliamentary elections and the General Election of 1997. For the 1997 General Election it fielded enough parliamentary candidates to qualify for a PEB in England, Scotland and Wales under the rules established by the BBC, the Independent Television Commission ("ITC") and the Electoral Commission. It submitted a video for the purpose. The broadcasters declined to broadcast it. The appellant sought permission for judicial review of this decision. That was refused by Dyson J, as he then was. A further application to the Court of Appeal was also refused. The appellant applied to the European Court of Human Rights, alleging a violation of Article 10 of the European Convention on Human Rights ("ECHR"). The application was declared inadmissible without the United Kingdom government being called on to put in observations.

8

For the General Election of 7 th June 2001 the appellant put up enough candidates in Wales to entitle it to a single PEB of up to 4 minutes 40 seconds, to be screened in the Principality (but not in England, Scotland or Northern Ireland) by the BBC, ITV and S4C. Accordingly on 2 nd May 2001 a video was delivered to the BBC. I shall summarise its content shortly. First I will describe the decision-making process leading to the broadcasters' refusal to put the PEB (and the later two modified versions) on air.

9

On 8 th May 2001 representatives of all the terrestrial broadcasters, that is the BBC, ITV, Channel 4 and Channel 5, met and viewed the first video. Mr Anderson has a point about the constitution of this meeting, so I should identify the representatives who were present. They were the BBC's Chief Political Adviser Ms Anne Sloman, Channel 4's Head of News and Current Affairs and Business, and executives in the legal and compliance departments of the other broadcasters. On 10 th May the BBC wrote to the appellant explaining, on behalf of all the terrestrial broadcasters, why the preliminary view was that a significant proportion of the proposed PEB would not comply with the relevant provisions of the BBC's Producers' Guidelines and the Programme Code of the Independent Television Commission ("ITC") in respect of matters of taste and decency. The letter ended by inviting written submissions from the appellant. On 13 th May the appellant sent submissions to the BBC. On 15 th May 2001 the appellant's solicitors wrote asking for a "formal decision" on the proposed PEB, given the submissions made, by noon on 17 th May 2001. On 16 th May the representatives of the terrestrial broadcasters (now joined by a BBC solicitor) held a further meeting and viewed the video again in the light of the submissions.

10

On 17 th May the BBC wrote to the appellant on behalf of all the terrestrial broadcasters maintaining their preliminary view. This important letter constitutes the primary object of the appellant's challenge. It included these passages:

"4. 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.

5. 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 the other points made in your client's letter of 13 May and the accompanying...

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