British Broadcasting Corporation and another v Sugar (No 2)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD WALKER,LORD MANCE,LORD PHILLIPS,LORD WILSON,LORD BROWN
Judgment Date15 February 2012
Neutral Citation[2012] UKSC 4

[2012] UKSC 4

THE SUPREME COURT

Hilary Term

On appeal from: [2010] EWCA Civ 715

before

Lord Phillips, President

Lord Walker

Lord Brown

Lord Mance

Lord Wilson

Sugar (Deceased) (Represented by Fiona Paveley)
(Appellant)
and
British Broadcasting Corporation and another
(Respondents)

Appellant

Tim Eicke QC

David Craig

(Instructed by Forsters)

Respondent

Monica Carss-Frisk QC

Kate Gallafent

(Instructed by BBC Litigation Department)

Heard on 23 and 24 November 2011

LORD WILSON
A: INTRODUCTION
1

Although the British Broadcasting Corporation ("the BBC") is listed as a public authority in the Freedom of Information Act 2000, the Act, as I will call it, applies to the BBC only to a limited extent. The words of limitation are found in Part VI of Schedule 1 to the Act: they provide that the Act applies only "in respect of information held for purposes other than those of journalism, art or literature". I will describe these words of limitation as the designation. This appeal requires the court to consider the meaning of the designation. The focus of the debate is on the word "journalism" rather than on the words "art" or "literature". How widely—or narrowly—should the phrase "purposes other than those of journalism" be construed? The answer of course lies in the narrowness—or width—of the concept of the "purposes … of journalism" in the context of the Act.

2

But the appeal also presents a more particular conundrum. It proceeds, albeit not on foundations as solid as one might wish, upon the premise that the information in issue was held by the BBC partly for purposes of journalism and partly for purposes other than those of journalism (or, for that matter, of art or literature). In a situation in which information is held for such dual and opposite purposes, does the information fall within the designation and thus within the scope of the Act?

3

The primary contention made on behalf of the BBC is that, where it is held by the BBC even only partly for purposes of journalism, information is beyond the scope of the Act; and thus that, provided that the purposes of journalism are significant (i.e. more than minimal), they leave the information beyond the scope of the Act even though it is also held—perhaps even predominantly held—for purposes other than those of journalism. I will describe this as the BBC's polarised construction; and it was approved by the Court of Appeal (Lord Neuberger MR, Moses and Munby LJJ) on 23 June 2010, [2010] EWCA Civ 715, [2010] 1 WLR 2278, when making the order against which this appeal is brought. The Court of Appeal, however, approved the construction only on the basis that the phrase "purposes … of journalism" should be construed "in a relatively narrow…way": see para 55, per Lord Neuberger.

4

Sadly the appellant, Mr Steven Sugar, is deceased. His death occurred in January 2011, after he had filed Notice of Appeal to this court; and, by consent, the court appointed Ms Fiona Paveley to represent his estate in the appeal. The contention made on behalf of Mr Sugar is precisely the opposite of the primary contention made on behalf of the BBC. It is that, where it is held by the BBC even only partly for purposes other than those of journalism, information is within the scope of the Act; and thus that, provided that the purposes other than those of journalism are significant (i.e. more than minimal), they draw the information within the scope of the Act even though it is also held—perhaps even predominantly held—for purposes of journalism. I will describe this as Mr Sugar's polarised construction.

5

But the very expression of these polarities foreshadows a middle way, which represents the secondary contention made on behalf of the BBC. It is that, in circumstances in which it holds information partly for purposes of journalism and partly for purposes other than those of journalism, the designation should be so construed as to draw the information within the scope of the Act only if the purposes other than those of journalism are the dominant purposes for which it is held. I will describe this as the dominant purpose construction.

B: THE FACTS
6

By October 2003 the BBC's coverage of the Israeli-Palestinian conflict had come under close scrutiny from pressure groups both pro-Israeli and pro-Arab. There were complaints, particularly from pro-Israeli groups, that its coverage was not impartial. Mr Richard Sambrook, then the BBC's Director of News, decided to commission a senior journalist to analyse the BBC's domestic Middle Eastern coverage, to survey the views and analyse the complaints of the pressure groups and to suggest whether and if so how it might be improved. Following discussion with Mr Mark Byford, then the Director of the BBC's World Service, Mr Sambrook caused Mr Malcolm Balen to be appointed to conduct the exercise. Mr Balen had at one time been editor of the BBC's Nine O'Clock News but, by 2003, he had ceased to be employed by the BBC and was working as Head of News for a commercial television channel. So Mr Sambrook caused Mr Balen to rejoin the BBC under a one-year contract, which took effect on 1 November 2003. It was unusual to bring someone into the BBC from outside to make a report for internal use. The contract described Mr Balen as a "Middle Eastern Consultant in News" but he and Mr Sambrook regarded his position more as that of a senior editorial adviser. The contract did not specify his duties; but what was clear was that he was to have no line-management responsibilities.

7

For the first three months Mr Balen discussed the BBC's Middle Eastern coverage with journalists and editors, considered some of the complaints about it and gave regular oral reports to Mr Sambrook. Then in about February 2004, in response to a request by Mr Sambrook, he began to compose a full, written, report. It was to be a broad survey both of the quality (including the impartiality) of the BBC's coverage of Middle Eastern affairs in recent years and of the validity or otherwise of the complaints about it, taken as a whole; and it was to include practical suggestions, perhaps only tentative, for improvement of the quality of its coverage including of its impartiality. In July 2004 Mr Balen sent the final version of the report to Mr Sambrook and Mr Byford. The Balen report, as I will describe it, was an internal briefing document for the use of the BBC's top management and reflected only Mr Balen's personal views.

8

Meanwhile, in the wake of the publication in January 2004 of Lord Hutton's "Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly CMG" HC 247, there had been several changes in the top management of the BBC. Mr Byford had become Deputy Director-General. In August 2004 Mr Sambrook became Director of the Global News division and Ms Helen Boaden took his place as Director of News. Mr Mark Thompson, the new Director-General, set up three new boards, including a Journalism Board ("the Board"), of which Mr Byford was the chair and Mr Sambrook, Ms Boaden and other senior managers were members. The Board was to be responsible for setting the strategy which would direct, and for defining the values which would inform, journalism across all areas of the BBC's output.

9

At its meeting on 9 November 2004 the Board considered the Balen report. It considered it as part of its review of strategy in relation to its coverage of conflict in the Middle East. In response to the report the Board commissioned a paper, to be entitled "Taking Forward BBC Coverage of the Middle East", which was intended to ensure that the BBC both met the highest standards of impartiality and honesty in its journalism and implemented recommendations in relation to training, editorial control and the handling of complaints, and which could be placed before even more senior bodies at the BBC. The Taking Forward paper, which in effect took forward the Balen report, was first presented to the Board in February 2005.

10

Perhaps in part as a result of the consideration afforded to it in the Taking Forward paper, the Balen report had a number of practical consequences. The most obvious—to the ordinary viewer of BBC television—was the establishment in 2005 of the post of Middle East Editor, to which Mr Jeremy Bowen was soon appointed. There were also internal changes in the BBC in relation to its analysis of capability, its compilation of a Key Facts Guide, its audit of the use on air of Middle Eastern experts and its development of training.

11

In 2005 the Board of Governors of the BBC appointed Sir Quentin Thomas to chair a panel which was charged with undertaking an external, independent, review of the impartiality of the BBC's reporting of the Israeli-Palestinian conflict. In his report, published in May 2006, Sir Quentin recorded that his panel had been supplied with the Balen report albeit on a confidential basis in that it had been only an unpublished report prepared internally for BBC management; that the report had been helpful; and that a number of its recommendations had already been implemented.

C: THE FORENSIC HISTORY
12

Mr Sugar was a respected solicitor and a supporter of the State of Israel; he considered that the BBC's coverage of Israel's conflict with the Palestinians had been seriously biased against it. By letter dated 8 January 2005 he made a request to the BBC for disclosure to him of a copy of the Balen report pursuant to the Act. The BBC refused the request on the basis that it held the report—or, more strictly, the information in the report—for purposes of journalism and thus that it lay beyond the scope of the Act.

13

In March 2005 Mr Sugar applied to the Information Commissioner ("the Commissioner") pursuant to section 50 (1) of the Act for a decision whether the BBC had determined his request in accordance with the requirements of the Act. By letters to Mr Sugar dated 24 October and 2...

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