Case No. FC3 97/5928/D
Neutral Citation Number: [1997] EWCA Civ 2531
IN THE SUPREME COURT OF JUDICATURE		FC3 97/5928/D
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(MR JUSTICE DYSON)

Royal Courts of Justice
Strand
London WC2

Date: Monday 20 October 1997

B e f o r e:

THE MASTER OF THE ROLLS
(LORD WOOLF)
LORD JUSTICE ALDOUS
LORD JUSTICE CHADWICK
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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

R E G I N A

- v -

THE BRITISH BROADCASTING CORPORATION
EX PARTE BRUNO FEBO QUINTAVELLE
(PPC for the PROLIFE ALLIANCE)
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR P DUFFY QC and MR D DIAMOND (Instructed by Messrs Brown Cooper, London, WC1A 2DR) appeared on behalf of the Appellant

MR D PANNICK and MR P GOULDING (Instructed by the BBC Litigation Department, London, W12 7TS) appeared on behalf of the Respondent
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J U D G M E N T (As approved by the Court)
LORD WOOLF, MR:  This is a renewed application for leave to move for judicial review.  It is in relation to a decision of the British Broadcasting Corporation ("BBC"), dated 22 April 1997, that the Prolife Alliance Political Party should be refused the right to transmit a party political transmission on the grounds of offending good taste.  It is said that the BBC declined to analyse the transmission tape frame by frame and its decision is contrary to the obligation of the BBC both at common law and under the obligations contained in international human right treaties. 

In the original application the applicant sought relief by way of order of certiorari to quash the decision to which I have just referred; an order of mandamus requiring transmission of the information contained in the tape; a declaration that the policy of the BBC was unlawful; and a declaration requiring the BBC to define good taste and decency in relation to the transmission of political messages.  
	 
The application was heard as a matter of urgency, having regard to the time scale involved, by Dyson J who refused the application.  Five months later the matter now comes before this court.  The applicant appropriately took the view that it would have been wrong to try and bring the matter before this court as a matter of urgency.

In support of the renewed application, Mr Duffy submits that the decision of the BBC in this case is wrong in principle and one in relation to which there is need for guidance from this court.  Mr Duffy attached importance to the terms which the decision was given by the BBC.  He says that those terms suggest that the BBC was in fact fettering its discretion as to the future and seeking to give a decision which would apply not only to the immediate transmission, which was originally contemplated in the context of the general election which was about to take place, but also in regard to future transmissions.  Mr Pannick, who appears on behalf of the BBC, however, fully accepts that the decision in relation to the transmission (the subject of the application) could not affect a decision with regard to future broadcasts of different material at a different time.  He submitted that each political broadcast has to be considered on its merits at the relevant time.  It is in the context of what is sought to be transmitted at that time that the decision has to be given.  
That being accepted by the BBC, it seems to me that our decision should be governed by two principal considerations.  First, whether there is any relief which the applicant could appropriately be granted in this context, which would be of value to those who have to decide matters such as this.  Secondly, whether the present application is an appropriate vehicle for providing that guidance.  Normally, the approach which this court adopts on renewed applications for judicial review is very different from that which I have just indicated.  The court is concerned with the merits of the particular issue before it, and will determine the application on the basis of the prospects of the application succeeding, assuming leave is granted.  

However there are cases where the court's role on an application for judicial review is wider than I have just indicated.  I accept that the present case raises issues which come within that wider role.  The question as to what should be the BBC's approach to applications for transmission, particularly at a time of an imminent general election, is a matter of great public importance.  The undesirability of censorship taking place at that stage is clearly a matter which should weigh heavily with the Corporation.  The proposed transmission was undoubtedly designed to have a dramatic impact upon the viewer; that was the purpose of the broadcast.  That being so, the Corporation's decision was particularly sensitive.  
	  
Mr Duffy submits that there is an advantage in the approach of the BBC being reviewed at this stage, when careful and deliberate consideration can be given to these issues.  He submits that it is preferable that it should be done after the heat generated by a general election has subsided in order that the position should be clarified for the future.  

I find that approach has its attractions.  I am also influenced by the fact that at the invitation of the applicant, I, like the other members of the court, have had the opportunity of viewing the transmission.  To that extent, we are in an advantageous position to see the factual background against which the application has been judged.  
	 
However, I have reached the conclusion that it would not be right or helpful to give leave to move for judicial review on this renewed application.  It seems to me that there is no need for clarification of the law on this subject.  It has now been enunciated very clearly in a series of cases, of which the parties are as well aware as the court.  Furthermore, I have reservations as to whether this is a vehicle on which guidance could be given if such guidance were needed.  

The vast proportion of the material which could be placed before the court if leave were granted, has already been placed before it.  The decision which was reached by the BBC may not have been couched in the most satisfactory of terms.  However, it remains a decision in relation to one proposed transmission which was rejected on a ground which, in appropriate circumstances, is a proper ground based on questions of taste and decency.  It would not be helpful for the court, in relation to one particular proposed broadcast, to attempt to give general guidance which goes beyond that which is already contained in the authorities.  

Accordingly, although I consider that the way in which the applicant has advanced the argument before this court in support of the renewed application is totally appropriate, I would refuse the application.  
	  
LORD JUSTICE ALDOUS:  I agree with the judgment that is given by the Master of the Rolls as to importance of the issue which is raised, both as to the attitude to abortion and to the right to freedom of speech.  However, I have not been able to discern any error in the judgment of Dyson J.  Like him, I have come to the conclusion that:

	"I have no hesitation whatsoever in deciding that it is not arguable that the decision of BBC that the offending parts of this transmission did not meet the requirements of decency and taste, is perverse.  Nor do I think it to be arguable that the BBC has misapplied its own stated policy.  It was suggested in argument that the BBC has acted in an inconsistent manner.  It is pointed out that almost daily viewers are subjected to harrowing scenes of massacres and the like and from to time shots are shown of Nazi atrocities in the concentration camps.  Even if there were inconsistency, that does not seem to me to give rise to an arguable case there has been perversity in the instant case."

Dyson J clearly had in mind that this decision by the BBC to refuse to transmit the party political broadcast was a serious one.  Further, he had in mind the need to avoid any containment of political expression in that he specifically referred to the European Court of Human Rights.  He dealt with that issue in his judgment and concluded that he was not persuaded that the BBC had been wrong in law.  I agree.  

Mr Duffy suggested that this was a case where there should be leave and a full hearing.  I am not persuaded that that is the correct approach for three reasons.  First, I believe that there has been a sufficient examination and the legal principles are well‑known and set out in the authorities; second, that the actual event has passed and, therefore, it is unlikely that any relief would be appropriate; third, other broadcasts which the applicants would wish to have placed before the public will have to be considered afresh.  Provided that the applicants put their format before the BBC in good time, any decision can be looked at by the courts at the appropriate time and in a real context.  

In those circumstances I would refuse leave. 

LORD JUSTICE CHADWICK:  I agree. The decision letter of 22 April 1997 contains the statement that the BBC would not broadcast the sequence under "any circumstances at any time".  Mr Pannick has made it clear that, notwithstanding that apparently unequivocal statement, the BBC cannot, and does not intend to, fetter its discretion as to the future.  Each decision would have to be considered on the the merits and in the circumstances at the time.  In those circumstances, I am unable to see any relief which could usefully be granted on judicial review of the decision letter.  Like my Lords, I doubt if there is need for further guidance in this field; but if there is, I am not persuaded that this case would be an appropriate vehicle in which to give it.  

Accordingly I too would refuse leave. 

Order:  Leave refused.