R v Radio Authority, ex parte Bull

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE ALDOUS,LORD JUSTICE BROOKE
Judgment Date17 December 1997
Judgment citation (vLex)[1996] EWCA Civ J1217-11
Docket NumberQBCOF 95/1509/D
CourtCourt of Appeal (Civil Division)
Date17 December 1997

In the Matter of an Application for Judicial Review

The Queen
and
The Radio Authority
Respondent
Ex Parte David Neill Bull

and

Nigel Wright
Appellant

[1996] EWCA Civ J1217-11

Before:

The Master of the Roll

(Lord Woolf)

Lord Justice Aldous

Lord Justice Brooke

QBCOF 95/1509/D

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

(LORD JUSTICE KENNEDY AND MR JUSTICE McCULLOUGH)

Royal Courts of Justice

Strand

London WC2

MR N PLEMING QC and MR P DUFFY and MR S WILKEN (Instructed by Bindman & Partners, London WC1X 8QF) appeared on behalf of the Appellant

MR D PANNICK QC (Instructed by Allen & Overy, London EC4M 9QQ) appeared on behalf of the Respondent

THE MASTER OF THE ROLLS
1

Under the Broadcasting Act 1990 the Radio Authority is charged with regulating independent radio services. On the 7th October 1994 the Authority came to a decision the effect of which was to ban further advertising by Amnesty International (British Section) ("AIBS"). The ban was imposed because the Authority decided that AIBS was a body to which section 92(2)(a)(i) of the Broadcasting Act 1990 applied.

2

Section 92 contains a number of rules. Section 92(1) provides that:

"The Authority shall do all that they can to secure that the rules specified in subsection (2) are complied with in relation to licensed services."

3

Section 92 (2)(a) comprises one of the rules. This rule prohibits the inclusion in a licensed service of:

"(I) Any advertisement which is inserted by or on behalf of any body whose objects are wholly of mainly of a political nature;

(2) Any advertisement which is directed towards any political end."

4

The Authority's decision only applies to advertising on Independent Radio. The Authority has no responsibility for advertising on television. Under the Act the Independent Television Commission is responsible for television. However the relevant statutory provisions dealing with television are in similar terms ( section 8 (2) ) and Mr Baldwin, the Chief Executive of the Authority, stated in his evidence that he understands the Commission applies the Act to AIBS in the same way as the Authority.

5

To be deprived of the ability to advertise is a substantial handicap to AIBS and AIBS having failed to persuade the Authority not to ban its adverts, David Neill Bull the Director of AIBS and Nigel Wright the Chairman of the Council of AIBS made an application for judicial review.

6

The application contains detailed grounds. These grounds make it clear that the issues on this appeal can be conveniently considered under two heads. The first is whether the authority correctly interpreted the provisions of section 92 which I have already cited. The second is whether the Authority properly applied section 92 to AIBS in reaching its decision.

7

The application for judicial review was heard by a Divisional Court consisting of Lord Justice Kennedy and Mr Justice McCullough. They dismissed the application on the 4th July 1995. Mr Bull and Mr Wright now appeal to this Court. In their notice of appeal, the appellants make numerous criticisms of each of the two judgments of the Divisional Court. However in order to determine this appeal, I do not regard it as necessary to examine those criticisms in detail. I do not intend any discourtesy in not doing so. My primary concern on an appeal of this sort is not with the accuracy of the reasoning of the judgments in the court below but with the correctness of the decision to which the Divisional Court came. However I should make it clear at the outset that I do not suggest that all the criticisms made by Mr Pleming QC on behalf of the appellants of the judgments in the court below are without foundation. However, after considerable deliberation I am satisfied that their decision is not one with which it would be right to interfere by granting relief by way of judicial review. I will set out my reasons for coming to this conclusion. Before I do this it is necessary to set out in more detail the background to the application and make reference to certain additional statutory provisions.

8

The Background

9

AIBS is an unincorporated association established as the United Kingdom part of Amnesty International. Amnesty International was founded in 1961 in order to contribute to and promote the awareness of human rights. Its contribution in this field was recognised in 1977 when it was awarded the Nobel Peace Prize and in 1978 when it received the United Nations Human Rights Prize.

10

The constitution of AIBS provides that "the objects and methods of (AIBS) shall be those set out in the Amnesty International Statute as altered from time to time.[(AIBS)] have power to do all such lawful things as may be thought to be incidental or conducive to its objects and methods."

11

The statute of Amnesty International sets out in clause 1 the object and mandate of that body. It does so in the following terms:

"1. The object of AMNESTY INTERNATIONAL is to contribute to the observance throughout the world of human rights as set out in the Universal Declaration of Human Rights.

In pursuance of this object, and recognizing the obligation on each person to extend to others rights and freedoms equal to his or her own, AMNESTY INTERNATIONAL adopts as its mandate:

To promote awareness of and adherence to the Universal Declaration of Human Rights and other internationally recognised human rights instruments, the values enshrined in them, and the indivisibility and interdependence of all human rights and freedoms ;

To oppose grave violations of the rights of every person freely to hold and to express his or her convictions and to be free from discrimination by reason of ethnic origin, sex, colour or language, and of the right of every person by physical and mental integrity, and, in particular, to oppose by all appropriate means irrespective of political considerations:

a) the imprisonment, detention or other physical restrictions imposed on any person by reason of his or her political religious or other conscientiously held beliefs or by reason of his or her ethnic origin, sex, colour or language, provided that he or she has not used or advocated violence (hereinafter referred to as `prisoners of conscience'; AMNESTY INTERNATIONAL shall work towards the release of and shall provide assistance to prisoners of conscience);

(b) the detention of any political prisoner without fair trial within a reasonable time or any trial procedures relating to such prisoners that do not conform to internationally recognized norms ;

(c) the death penalty, and the torture or other cruel, inhuman or degrading treatment or punishment of prisoners or other detained or restricted persons, whether or not the persons affected have used or advocated violence ;

(d) the extrajudicial execution of persons whether or not imprisoned, detained or restricted, and "disappearances", whether or not the persons affected have used or advocated violence."

12

The mandate was subsequently extended so that it included "opposing abuses by opposition groups, hostage taking, torturing and killing of prisoners and other deliberate and arbitrary killing".

13

Clause 2 of the statute sets out the methods by which Amnesty International was to achieve its object and mandate.

14

In order to ensure impartiality, the Sections of Amnesty International operate in countries outside that in which the Section is established.

15

AIBS works closely with two other bodies, Amnesty International British Section Charitable Trust ("AIBSCT") and Amnesty International British Section Limited. AIBS's 63 members of staff carry out work on behalf of both of these bodies. AIBSCT is a charitable trust whose functions and work have been approved by the Charity Commissioners. It was set up when difficulty was experienced in AIBS having charitable status. In his evidence Mr Bull states that much of AIBS's work is directed to carrying out the functions of AIBSCT and that 72% of the budget of the three bodies to which I have referred is spent on carrying out the goals which AIBS and AIBSCT have in common.

16

The Trust Deed of AIBSCT sets out as its purposes:

"A. The promotion of research into the maintenance and observance of human rights and of the results of such research.

B. The relief of distress for needy victims of breaches of human rights by medical financial or such other means as appear to be necessary and

C. The procurement of the abolition of torture extrajudicial execution and disappearance."

17

In 1994 AIBS decided to run a campaign to bring the plight of people in Rwanda and Burundi to the notice of people in the United Kingdom. To compliment the publicity which would be given to the campaign in the media anyway, AIBS decided to advertise on the radio. AIBS were asked to submit the advertisement to the authority for clearance and to facilitate this an initial presentation was made by AIBS on the 26th May 1994.

18

The following day, by letter dated the 27th May 1994 the authority replied giving its decision in the following terms:

"Section 92(2)(a)(i) of the Broadcasting Act 1990 and, subsequently, Rule 8(a) of the Radio Authority Advertising Code prevents advertising "….by, or on behalf of, any body whose objects are wholly or mainly of a political nature". Advertisers which fall foul of this requirement include those which seek to influence public opinion on issues determined by a government or seek to promote a particular political philosophy in relation, for example, to the organisation of society. The plight of political prisoners must, to a considerable extent, involve campaigning in order to influence the policies of governments around the world....

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