R v Secretary of State for the Home Department, ex parte Brind
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE McCOWAN |
| Judgment Date | 06 December 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1206-2 |
| Docket Number | 89/1147 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 1989 |
[1989] EWCA Civ J1206-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Ralph Gibson
Lord Justice McCowan
89/1147
MR. ANTHONY LESTER Q.C. and MR. DAVID PANNICK (instructed by Messrs. Stephens Innocent) appeared for the Appellants.
MR. JOHN LAWS and MR. ROBERT JAY (instructed by The Treasury Solicitor) appeared for the Respondent.
The applicants, who are journalists, sought judicial review of directives to the British Broadcasting Corporation (the "B.B.C") and the Independent Broadcasting Authority (the "I.B.A.") issued by the Home Secretary on 19th October 1988. A divisional court consisting of Tasker Watkins L.J. and Roch and Judge J.J. dismissed their application on 26th May 1989 and the applicants now appeal.
THE DIRECTIVES
The directives were in identical terms, save that in the case of that addressed to the B.B.C. the Home Secretary purported to act in pursuance of clause 13(4) of the Licence and Agreement between him and the B.B.C. dated 2nd April 1981, whilst in the case of that addressed to the I.B.A. the Home Secretary purported to act in pursuance of section 29(3) of the Broadcasting Act 1981 ("the Act").
The text common to both directives was as follows:
"…to refrain from broadcasting any matter which consists of or includes—
any words spoken, whether in the course of an interview or discussion or otherwise, by a person who appears or is heard on the programme in which the matter is broadcast where—
(a) the person speaking the words represents or purports to represent an organisation specified in paragraph 2 below, or
(b) the words support or solicit or invite support for such an organisation,
other than any matter specified in paragraph 3 below.
2. The organisations referred to in paragraph 1 above are:
(a) any organisation which is for the time being a proscribed organisation for the purposes of the Prevention of Terrorism (Temporary Provisions) Act 1984 or the Northern Ireland (Emergency Provisions) Act 1978; and
(b) Sinn Fein, Republican Sinn Fein and the Ulster Defence Association.
3. The words excluded from paragraph 1 above is any words spoken—
(a) in the course of proceedings in Parliament, or
(b) by or in support of a candidate at a parliamentary, European parliamentary or local election pending that election."
THE ELABORATION OF THE DIRECTIVES
The B.B.C. expressed doubt as to the exact scope of the directive and Mr. C. L. Scoble, an Assistant Under-Secretary in the Home Office and Head of the Broadcasting Department, wrote to the B.B.C. on 24th October 1988, sending a copy to the I.B.A. That letter, which had been seen and approved by the Home Secretary, was in the following terms:
"As you know, when I met BBC officials on 20 October to discuss the Notice which the Home Secretary sent to the BBC the previous day, a number of points were raised concerning its interpretation on which the BBC had doubts. We explained the Home Office approach to the drafting on these points and the scope of the restrictions which it was intended should be imposed on broadcast programmes. I promised to put what we said in writing so that the BBC would be left in no doubt as to the effect of the Notice.
It was asked whether the Notice applied only to direct statements by representatives of the organisations or their supporters or whether it applied also to reports of the words they had spoken. We confirmed, as the Home Secretary has made clear in Parliament, that the correct interpretation (and that which was intended) is that it applies only to direct statements and not to reported speech, and that the person caught by the Notice is the one whose words are reported and not the reporter or presenter who reports them. Thus the Notice permits the showing of a film or still picture of the initiator speaking the words together with a voice-over account of them, whether in paraphrase or verbatim. We confirmed that programmes involving the reconstruction of actual events, where actors use the verbatim words which had been spoken in actuality, are similarly permitted.
For much the same reason, we confirmed that it was not intended that genuine words of fiction should be covered by the restrictions, on the basis that the appropriate interpretation of "a person" in paragraph 1 of the Notice is that it does not include an actor playing a character.
The BBC also asked whether a member of an organisation or one of its elected representatives could be considered as permanently representing that organisation so that all his words, whatever their character, were covered by the Notice. We confirmed that the Home Office takes the view that this is too narrow an interpretation of the word "represents" in paragraph 1(a) of the text. A member of an organisation cannot be held to represent that organisation in all his daily activities. Whether at any particular instance he is representing the organisation concerned will depend upon the nature of the words spoken and the particular context. Where he is speaking in a personal capacity or purely in his capacity as member of an organisation which does not fall under the Notice (for example, an elected Council), it follows, from that interpretation, that paragraph 1(a) will not apply. Where it is clear, from the context and the words, that he is speaking as a representative of an organisation falling under the Notice, his words may not be broadcast directly, but (as mentioned above) can be reported. (He may, of course, come within the scope of paragraph 1(b), if his words contain support for the organisation.) Although there may be borderline occasions when this distinction will require a careful exercise of judgment, we believe that the great majority of broadcast material will fall clearly within one case or the other.
We confirmed that direct broadcast coverage of statements in court would be subject to the present Notice, but that this did not raise practical issues since broadcast coverage of court proceedings is not currently permitted in this country. Statements falling within the Notice that were made in court proceedings in countries where direct broadcast coverage was permitted could not be broadcast directly here, but, again, the words could be fully reported. Similarly, the exemption under paragraph 3(a) of the Notice applies only to proceedings in Parliament at Westminster, and not to the European Parliament or Parliaments in other countries.
I hope that this statement, which constitutes what the Home Office believes to be the correct interpretation of the Notice and which represents the Home Secretary's intentions in issuing it, will be of help to you in providing advice to the Corporation's staff."
THE HOME SECRETARY'S REASONS FOR ISSUING THE DIRECTIVES
These I take from his statement made to both Houses of Parliament on 19th October 1988:
"For some time broadcast coverage of events in Northern Ireland has included the occasional appearance of representatives of paramilitary organisations and their political wings, who have used these opportunities as an attempt to justify their criminal activities. Such appearances have caused widespread offence to viewers and listeners throughout the United Kingdom, particularly just after a terrorist outrage.
The terrorists themselves draw support and sustenance from access to radio and television—from addressing their views more directly to the population at large than is possible through the press. The Government has decided that the time has come to deny this easy platform to those who use it to propagate terrorism. Accordingly, I have today issued to the Chairmen of the BBC and the IBA a notice, under the licence and agreement and under the Broadcasting Act 1987 respectively, requiring them to refrain from broadcasting direct statements by respersentatives of organisations proscribed in Northern Ireland and Great Britain and by representatives of Sinn Fein, Republican Sinn Fein and the Ulster Defence Association. The notices will also prohibit the broadcasting of statements by any person which support or invite support for these organisations. The restrictions will not apply to the broadcasts of proceedings in parliament, and in order not to impair the obligation on the broadcasters to provide an impartial coverage of elections the notices will have a more limited effect during election periods. Copies of the notices have today been deposited in the Library, and further copies are available from the Vote Office so that hon. members will be able to study their detailed effect.
These restrictions follow very closely the lines of similar provisions which have been operating in the Republic of Ireland for some years. Representatives of these organisations are prevented from appearing on Irish television, but because we have had no equivalent restrictions in the United Kingdom they can nevertheless be seen on BBC and ITV services in Northern Ireland, where their appearances cause the gravest offence, and in Great Britain. The Government's decision today means that both in the United Kingdom and in the Irish Republic such appearances will be prevented.
Broadcasters have a dangerous and unenviable task in reporting events in Northern Ireland. This step is no criticism of them. What concerns us is the use made of broadcasting facilities by supporters of terrorism. This is...
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