B e f o r e :
LORD JUSTICE SIMON BROWN LORD JUSTICE LAWS and LORD JUSTICE JONATHAN PARKER ____________________
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(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)
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 ____________________
HTML VERSION OF JUDGMENT AS APPROVED BY THE COURT ____________________
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Lord Justice Laws:
INTRODUCTORY
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.
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:
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
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.
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.
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.
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.
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.
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.
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:
The letter went on to indicate the broadcasters’ view that the images were “so offensive” that their objections could not be met by putting out the broadcast after 10 p.m. with a warning, as had been suggested in the submissions.
On 18 th May the appellant wrote to the BBC asking more questions about the acceptability of the proposed PEB. On 21 st May there was a reply giving a further explanation of the broadcasters’ position, and repeating their willingness to give urgent consideration to any revised broadcast. This was the second challenged decision. On 21 st May the appellant wrote informing the BBC that it would be commencing judicial review proceedings the next day, and on 22 nd May it did so. So the matter came before Scott Baker J on 23 rd and 24 th May, and as I have said he dismissed the application.
On 31 st May a second version of the proposed PEB was submitted to, but rejected by, all the terrestrial broadcasters for Wales. On 1 st June a third version was submitted and suffered the same fate. On 2 nd June a fourth version was submitted. It was approved and transmitted. This was the version with no visual images whatever.
I have watched the first, second and third videos. It is only necessary to describe the first in any detail. It shows the products of a suction abortion: tiny limbs, bloodied and dismembered, a separated head, their human shape and form plainly recognisable. There are some pictures showing the results of the procedures undertaken to procure an abortion at later stages. There is no sound on the video. There is some introductory text. Then the words of Articles 2, 3 and 14 of the European Convention on Human Rights (“ECHR”) are cut into the visual images at various points. There is also some text briefly describing different abortion techniques. The pictures are real footage of real cases. They are not a reconstruction, nor in any way fictitious. Nor are they in any way sensationalised. They are, I think, certainly disturbing to any person of ordinary sensibilities. The second and third videos are edited versions of some of the same pictures which however in these later versions appear fuzzy, with no sharp focus.
THE LEGISLATION, THE BBC AGREEMENT, CODES OF GUIDANCE
The broadcasters’ decisions, of which the appellant complains, were made having regard (in the case of the BBC) to the obligation imposed by paragraph 5(1)(d) of the then current Agreement between the BBC and the Secretary of State, and (in the case of the independent broadcasters) to the obligation imposed by s.6(1)(a) of the Broadcasting Act 1990 (“BA 1990”). These obligations are in substance identical one with the other. BA 1990 s.6(1)(a) – (c) provides:
Paragraph 5(1)(d) of the BBC Agreement mirrors s.6(1)(a), and I need not give its text. These are the core provisions for the issues which fall to be determined on this appeal. But I should also set out certain other legislative measures. First, these parts of BA 1990 s.36:
Next, these following provisions of the Broadcasting Act 1996 (“BA 1996”):
Given its duty arising under paragraph 5(1)(d) of the Agreement with the Secretary of State, the BBC has produced a code, entitled “The BBC Producers’ Guidelines”, Chapter 6 of which deals with issues of taste and decency. Likewise, given BA 1990 s.6(1)(a), the ITC has produced “The ITC Programme Code”. Section 1 is headed “Family Viewing Policy, Offence to Good Taste and Decency, Portrayal of Violence and Respect for Human Dignity”. There is also a document produced jointly by the BBC and the independent broadcasters entitled “Guidelines for the Production of Party Election Broadcasts”. It indicates that PEBs must comply with the ITC Programme Code and the BBC Producers’ Guidelines, “having regard to the political context of the broadcast”; and then “Subject to the matters set out above, accuracy is the responsibility of the parties making the broadcasts… Impartiality is achieved over the series of PEBs as a whole. There is, of course, no obligation on the parties to achieve impartiality within each broadcast”. Although there is no issue in this case as to the “accuracy” of the appellant’s video, it is to be noted that BA 1990 s.6(1)(b) does not apply to PEBs, and impartiality (s.6(1)(c)) is achieved by the broadcasters’ evenhandedness in providing airtime for PEBs, consistently with BA 1990 s.36, according to criteria framed by reference to the number of candidates fielded by the parties. As for the BSC, some of its adjudications on complaints are before the court and were referred to in the course of argument. In addition, the BSC is enjoined by ss.107 and 108 of BA 1996 (which I have not set out) to draw up codes of guidance dealing with unjust or unfair treatment in programmes, unwarranted infringement of privacy, the portrayal of violence and of sexual conduct, and standards of taste and decency.
I have looked at the relevant parts of the BBC Producers’ Guidelines and the ITC Programme Code. As one would expect there is a good deal of reference to the broadcast of violent or sexual material, and to the 9 pm “watershed”. While the content of the appellant’s video obviously engages the s.6(1)(a)/paragraph 5(1)(d) duty, there is I think nothing in these texts which bears on it specifically. One is thrown back on the words of the duty itself, “offends against good taste or decency or is likely… to be offensive to public feeling”. Nor I think is there anything to which I need refer in the BSC Code, which was put before us as an exhibit to the third witness statement of Mr Quintavalle for the appellant. Mr Quintavalle (along with another witness, Mr Dorenbos) also produced some material dealing with the extent to which images of the kind shown in the appellant’s video have been broadcast in other jurisdictions, principally in Europe. This was done at the invitation of the court, and I am sure my Lords as well as I are grateful for its having been done. In the event, however, after looking carefully at this evidence, I do not with respect find it necessary to describe it in this judgment.
1997
The other matter which needs to be addressed before I deal with the issues in the case is the course of events in 1997, when as I have indicated the broadcasters declined to broadcast the video then put forward by the appellant to be put out as their PEB for the General Election of that year, and the appellant’s challenges here and in Strasbourg came to nothing. This is of some importance, given Mr Pannick’s reliance on the rejection of the appellant’s case by the European Court of Human Rights without calling on the United Kingdom government to put in any answer, and the observation of Scott Baker J below that the Strasbourg decision was “the death knell of the claimant’s application” (transcript, paragraph 54).
I should make it clear that I have not seen the 1997 video. By comparison with it the 2001 video was considerably modified, according to Mr Quintavalle. He describes the latter as a “radically revised version” of the former. He says this in paragraph 25 of his witness statement of 22 nd May 2001:
On 24 th March 1997 Dyson J (as he then was), refusing judicial review leave, stated (transcript 8B-C):
The learned judge proceeded to consider a separate argument, to the effect that the curtailment of freedom of expression could only be allowed if “a distinct and positive justification” were shown; and the court “should give anxious scrutiny before upholding such an interference” (9D-E). It seems this argument had been advanced both on the basis of a common law requirement and the provisions of the ECHR. The latter had, of course, not by then been incorporated into our domestic law. Dyson J said (10C):
And so he dismissed the leave application. The application was renewed in the Court of Appeal, which also refused it on 20 th October 1997. Lord Woolf MR, as he then was, stated (transcript, 4F-G) that there was no need for clarification of the law and in any event there were reservations as to whether this case was a suitable vehicle for the giving of guidance.
The appellant applied to the European Court of Human Rights. On 2 nd June 2000 a legal secretary at the court wrote to the appellant’s lawyer, saying:
There followed on 24 th October 2000 a formal unanimous decision of the court, declaring the application inadmissible. It stated:
THE JUDGMENT BELOW
It is clear that Scott Baker J regarded his task as lying within conventional public law territory. He considered that his duty was to decide whether the broadcasters’ decision was irrational. Given the view I take of the case, it is important to see how the judge put it:
I should notice also that at paragraphs 53 - 54 the learned judge expressed the view that the Strasbourg court’s conclusion “that the claimant had no arguable case in respect of the 1997 party election broadcast” was “the death knell” of the appellant’s application before him in 2001.
That is a sufficient account of the facts of the case and its background, including the material statutory provisions, for the purposes of confronting the issues which we have to decide.
THE REAL ISSUE FORESHADOWED
It is convenient at this stage to state in outline what in my judgment is the real question in this case. In my view the court has to decide whether those considerations of taste and offensiveness, which moved the broadcasters, constituted a legal justification for the act of censorship involved in banning the appellant’s proposed PEB (primarily as it was contained in the first video which was submitted). It will at once be clear that this formulation does not treat the reasonableness or rationality of the broadcasters’ decision as conclusive of the issue falling for decision. That would have been the approach upon the conventional jurisprudence dealing with judicial review of a public body’s exercise of discretionary power: Wednesbury [1948] 1 KB 223 and CCSU [1985] AC 374 . It was the approach taken by Dyson J in 1997 and Scott Baker J in 2001. However, with great respect, it was in my view a profoundly mistaken approach. At least it falls to be so regarded today. When I come to deal with the whole substance of this principal issue, I will explain why that is so. First, however, I must clear out of the way other points which were raised in argument but which in my judgment carry the case nowhere. I shall do it as shortly as I may.
PRELIMINARY POINTS
The framework of the submissions advanced by Mr Anderson QC for the appellant was largely fashioned by reference to the terms of the second paragraph of ECHR Article 10. I should set out the whole Article:
Mr Anderson’s first argument was that the prohibition of his client’s PEB was not “prescribed by law” within Article 10(2). He submitted that (a) there was no basis for the prohibition in domestic law, alternatively (b) the tests of taste, decency and potential offence are so vague as not to satisfy the standard of legal certainty upon which the European Court of Human Rights insists as a measure of legality. This is a bad point. As for (a), the obligations of the BBC and the independent broadcasters, respectively arising under the Agreement and BA 1990, “to secure that… nothing is included in its programmes which offends against good taste or decency or is likely… to be offensive to public feeling” to my mind obviously empower the imposition of prior restraints as a matter of municipal law in a proper case, and with respect to Mr Anderson I do not find it necessary to say anything more about the submission. The question, of course, is whether this is a proper case. As for (b), it is clear from Muller 13 EHRR 212 (paragraph 29) that the Strasbourg court accepts that laws whose subject-matter touches areas of subjective judgment where public opinion may shift, cannot be expected to be rigid or over-precise. We are not of course bound to follow the Strasbourg cases; by s.2 of the Human Rights Act 1998 (“HRA”) we are obliged to take them into account. Here, I am quite satisfied that the terms of the BBC Agreement and BA 1990 do not offend any required standard of legal certainty.
Mr Anderson’s next argument was that the prohibition of his clients’ PEB served no legitimate aim within Article 10(2). The only candidate in this case, in the list there given of legitimate aims, was the “rights of others”. Mr Anderson submitted that the prohibition could not possibly be justified in the name of the protection of “the rights of others”. He cited Chassagnou (1999) 29 EHRR 615 for the proposition that where restrictions are imposed on the enjoyment of Convention rights for the protection of other rights not guaranteed by ECHR, “only indisputable imperatives can justify interference with enjoyment of a Convention right” (paragraph 113). But the context of that observation by the court was its consideration of what measures in the particular case were justified as being “necessary in a democratic society”. I do not consider, with respect, that the court was seeking to establish what would be a new and special rule. And there is a fair body of learning in Strasbourg to the effect that a broad approach is to be taken to the meaning of “rights of others”. It is clearly by no means limited to the Convention rights. Mr Pannick cited VGT (2002) 34 EHRR 159 at paragraphs 59 – 62 and Chapman 33 EHRR 399 at paragraphs 80 – 82. With respect I need not set out those texts.
This argument advanced by the appellant, like the first relating to the rubric “prescribed by law”, is an attempt to persuade the court that it has no need or business to enquire into the merits of the PEB’s prohibition at all , because it falls at first base as lying wholly outside any application of Article 10(2). That is in my judgment a mistaken approach. It is now well accepted that a common thread runs through the Convention: the search for the means to strike a balance between private right and public interest. I cannot believe that the Strasbourg court, in any lis conducted there, would nonsuit the respondent on the footing that issues of taste, decency and offence were in principle never capable (however stark the facts) of providing a justification for a prior restraint under Article 10(2) by reference to “the rights of others”. All would depend on the facts and the context, and I believe with respect that the European Court of Human Rights would look at the case as a whole. Its jurisprudence has always exhibited a strong pragmatic philosophy. Even if that were wrong, given the nature of our obligation under HRA s.2 to which I have referred in paragraph 24, I would hold in any event (for the purposes of our developing municipal law of human rights) that the factors of taste, decency and offence cannot be treated as categorically irrelevant to the judgment of a prohibition upon free expression. I shall deal later with the different, and much more pertinent, question what force those factors possess in the present case.
The third argument for the appellant was that it is the court’s own task to decide whether the restriction of free expression complained of was justified as falling within the scope of ECHR Article 10(2). Mr Pannick accepts that that is so in principle; his submission is that the court in arriving at its conclusion will pay great respect and deference (a) to the view of the primary legislature in imposing (by BA 1990 s.6(1)(a): clause 5(1)(d) of the BBC Agreement, though not given by statute, cannot sensibly be in any different case) requirements of taste and decency which are in no sense disapplied in cases like the present, and (b) to the combined expertise of the broadcasters who made the impugned decision. I find it more convenient to address the issues arising under this head in dealing with what I have called the real question in the case.
Mr Anderson’s skeleton argument for the appellant contained a further submission, to the effect that the broadcasters’ decision was insufficiently reasoned, principally on the ground that they made no attempt to identify what particular images in the video were judged unacceptable. There is nothing in this. The broadcasters plainly looked at the video as a whole. They could not have done otherwise. Its impact, over the short period it runs, is inevitably cumulative. I have said that the images it contains are disturbing to anyone of ordinary sensibilities. The appellant, perhaps more than anyone, knows that that is so. The outcome of this case does not depend on the quality of the broadcasters’ reasons as a self-standing issue (though I shall refer again to the letter of 17 th May 2001, which I have cited at paragraph10, in looking at the premise on which the decision was made). Its outcome depends on the answer to the question, as I have described it in paragraph 22, whether those considerations of taste and offensiveness, which moved the broadcasters, constituted a legal justification for the act of censorship involved in banning the appellant’s proposed PEB. To this I now turn.
THE REAL ISSUE CONFRONTED: JUSTIFIED CENSORSHIP?
(1) Strasbourg
This issue was framed by the appellant in such a way as to ask the question, whether the prohibition was “necessary in a democratic society” (sc. for the protection of the rights of others), which is, of course, the language of ECHR Article 10(2). I need cite no authority for the proposition, which is very generally accepted, that the term “necessary in a democratic society” imports a test of proportionality into the court’s judgment whether the interference complained of may be justified in light of any of the particular considerations set out in Article 10(2). It is also well recognised that where a public authority seeks to justify an interference with the right of free expression, its restriction of the right will not be regarded as proportionate unless it fulfils a “pressing social need”: see for example Sunday Times v UK 2 EHRR 245 , and Observer and Guardian v UK 14 EHRR 153 (the “Spycatcher” case) in which the Court of Human Rights stated at paragraph 59 of the majority judgment:
There are many other judgments of the court in which the particular value of the right of free speech is emphasised. Often they deal with the special importance to be accorded to press freedom. But the imperative of free expression in the context of democratic elections is also heavily underlined. In Bowman v UK (1998) 26 EHRR 1 at paragraph 42 the court said:
There is also much learning on another dimension in the jurisprudence to which I need to refer if only to get it out of the way. This is the doctrine of the “margin of appreciation” which the Strasbourg court will accord to national authorities so far as they seek to rely on the exempting or (more accurately) qualifying provisions contained in paragraph 2 of each of Articles 8 – 11. As is well known, this doctrine is a function of the Court of Human Rights’ status as an international tribunal. In Kebilene [2000] 2 AC 326 Lord Hope of Craighead stated at 380G:
We are not, therefore, bidden to accord a “margin of appreciation” properly so called to the broadcasters, and we should fall into confusion and error if we did so. That is not to say that some margin of discretion or deference is not to be paid by this court to the statutory decision maker. As I have foreshadowed, it is Mr Pannick’s submission that the authority of BA 1990, being main legislation passed by Parliament, and the authority of the broadcasters who decided not to allow the PEB, being experts in judging matters of taste for broadcasting purposes, are entitled to a great degree of deference on democratic and practical grounds. Immediately after the passage I have just cited from Kebilene , Lord Hope continued:
There is much other domestic learning on this question of deference. (A good deal of it is collected in a dissenting judgment given by myself in the recent case of Roth [2002] EWCA Civ 158 .) There is, I think, some relationship between the margin of appreciation doctrine and the judgment of a domestic court upon the margin of discretion to be accorded to the domestic decision-maker. In Wingrove v UK (1996) 24 EHRR 1, which was concerned with a blasphemous video called Visions of Ecstasy , the court held at paragraph 58:
While this reasoning is compressed, it tends in my judgment to show that in the Strasbourg court’s view the State in principle should possess little discretion to interfere with free political speech: especially at the time of an election (see Bowman cited above). That view is not a function of the margin of appreciation. On the contrary it expresses a standard which the signatory States must fulfil for compliance with Article 10. The reference to a “wider margin of appreciation” in the context of speech liable to offend personal moral or religious convictions indicates that in such matters the signatory States, consistently with their obligations under the ECHR, are at greater liberty to choose between more or less liberal or conservative regimes. The insight which this provides is that the scope or width of the margin of appreciation which in any given case the European Court of Human Rights will accord to the national authorities depends at least in part upon the court’s judgment of the extent to which, giving full weight to municipal culture and practice, there may in principle be a range of different views and approaches relating to the matter in hand.
(2) Domestic Law
These reflections furnish a convenient gateway to the proper approach to be taken by the court to this appeal. The English court is not a Strasbourg surrogate. The very difference between the international margin of appreciation and the municipal margin of discretion illustrates the confusion that would arise if the court so regarded itself. Our duty is to develop, by the common law’s incremental method, a coherent and principled domestic law of human rights. In doing it, we are directed by the HRA (s.6) to insist on compliance by public authorities with the standards of the Convention, and to comply with them ourselves. We are given new powers and duties (HRA ss.3 and 4) to see that that is done. In all this we are to take account of the Strasbourg cases (s.2, to which I have already referred).
The need to make good an autonomous human rights jurisprudence is promoted by a further consideration. Treating the ECHR text as a template for our own law runs the risk of an over-rigid approach. Travelling through the words of provisions like Article 10(2), with stops along the way to pronounce that this or that condition is met or not met, smacks to my mind of what Lord Wilberforce once condemned as the “austerity of tabulated legalism” (see Ministry of Home Affairs v Fisher [1980] AC 319 , 328). I accept of course that such a wintry process would be tempered by what I have called (paragraph 26) the strong pragmatic philosophy of the Strasbourg court. Even so, while great respect is to be paid to the way in which the ECHR is framed, and therefore to the structure of provisions such as Article 10, I think the court’s duty in confronting the claims of free speech, and the claims that may be ranged against it, in a context like that of the present case is very far distant from any exercise of textual interpretation. We are dealing here with bedrock principles. We are concerned with the protection of free expression in the context of political debate. In the rancour and asperity of a general election this duty, owed to the people, is surely at its highest.
This position is in my judgment wholly consistent with the domestic learning on freedom of expression. It has often been said that the core rights enshrined in the ECHR by and large reflect principles which the common law itself espouses. This is especially demonstrated in the field of free speech by decisions in this jurisdiction over a period of years before incorporation of the Convention rights by the HRA. We may have been slow – organs of the press would certainly so accuse us – to recognise the sometimes debilitating effect of prior restraint injunctions. But our courts have accorded a vigorous endorsement of the importance of free expression, not least in the political field. This is very well established and I need only give some leading instances from the authorities. I make no apology for starting with the dissenting opinion of Lord Bridge of Harwich in Attorney-General v Guardian Newspapers (No. 1) [1987] 1 WLR 1248 , the Spycatcher case. In Observer and Guardian v UK 14 EHRR 153 , which I have already cited, the Court of Human Rights vindicated his view that the extant injunctions against the newspapers, prohibiting the publication of material from the text of the book Spycatcher , should not have been continued. Lord Bridge stated at 1286:
In R v Central Independent Television plc [1994] 3 All ER 641 Hoffmann LJ, as he then was, said this at 651j-652b:
In ex p Simms [2000] AC 115 these observations of Lord Steyn at 126 are especially pertinent for the importance of political speech:
Supported by such authority as this I would assert that as a matter of domestic law the courts owe a special responsibility to the public as the constitutional guardian of the freedom of political debate. This responsibility is most acute at the time and in the context of a public election, especially a general election. It has its origin in a deeper truth, which is that the courts are ultimately the trustees of our democracy’s framework. I consider that this view is consonant with the common law’s general recognition, apparent in recent years, of a category of fundamental or constitutional rights: see for example Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 , Leech [1994] QB 198 , Witham [1998] QB 575 , Pierson v Secretary of State [1998] AC 539 , Reynolds [1999] 3 WLR 1010 , and with respect perhaps especially Simms [2000] 2 AC 115 per Lord Hoffmann at 131. Freedom of expression is plainly such a constitutional right, and its enjoyment by an accredited political party in an election contest must call, if anything, for especially heightened protection. We are in any case long past the point when interference with fundamental rights by public authorities can be justified by a bare demonstration of rationality or reasonableness: see ex p Daly [2001] 2 WLR 1622 .
These considerations, with respect, give the lie to Mr Pannick’s plea for deference to the decision-makers. If a producer were so insensitive as to authorise the inclusion of what is to be seen in the appellant’s PEB video in an episode of a TV soap, the broadcasters would of course forbid its being shown and the courts would of course uphold them. That is at the extreme. There might be other more marginal situations, in which the courts would incline to defer to the broadcasters’ judgment. Where the context is broadcast entertainment, I would accept without cavil that in the event of a legal challenge to a prohibition the courts should pay a very high degree of respect to the broadcasters’ judgment, given the background of BA 1990, BA 1996, the BBC Agreement, the codes of guidance and the BSC adjudications. Where the context is day-to-day news reporting the broadcasters’ margin of discretion may be somewhat more constrained but will remain very considerable. But the milieu we are concerned with in this case, the cockpit of a general election, is inside the veins and arteries of the democratic process. The broadcasters’ views are entitled to be respected, but their force and weight are modest at best. I emphasise this is in no sense a slur on their expertise: having looked through the evidence I am very conscious, if I may say so, of the experience and professionalism clearly possessed by Ms Sloman, and her colleagues were no doubt likewise qualified. But in this context the court’s constitutional responsibility to protect political speech is over-arching. It amounts to a duty which lies on the court’s shoulders to decide for itself whether this censorship was justified. This is why, in my respectful view, the decisions of Dyson J and Scott Baker J went off on a mistaken footing.
The reader of this judgment will see that I have used the word “censorship” from the first sentence. I have well in mind that the broadcasters do not at all accept that their decision should be so categorised. Maybe the feathers of their liberal credentials are ruffled at the word’s overtones; maybe there is an implicit plea for the comfort of a euphemism. However in my judgment this court must, and I hope the broadcasters will, recognise unblinking that censorship is exactly what this case is about. I should say that I do not mean it as a term of abuse; there are of course contexts in which Parliament and the common law have accepted that some forms of censorship are well justified. But we should know the beast we are dealing with. In the context of political speech, it needs to be kept in its cage.
(3) Application of the Law to the Facts
Mr Anderson’s case is very simple. The PEB video encapsulated his clients’ case against abortion vividly but honestly. The suggestion that the message could as well be put over in words is unreal – it is inherent in any reasonable advocacy of the appellant’s position that the public should be confronted with what an abortion actually entails. That is only effectively done by putting out the video, which is truthful and unsensational. Even if considerations of taste, decency and offensiveness might in some theoretical case justify the prohibition of a PEB, they cannot possibly do so on the facts here.
A primary emphasis of Mr Pannick’s submissions for the respondent was his plea for deference to Parliament and to the decision-makers, and I have already rejected that. On the substantive merits of the case Mr Pannick first drew attention to what he described as the limited nature of the restriction of free expression actually entailed by the broadcasters’ decision. He was at pains to emphasise that the appellant was in no sense disabled from putting over its message in words, including words which might graphically describe the procedures involved in abortions. He submitted that we should infer that this factor was instrumental, or at least influential, in the Strasbourg court’s admissibility ruling against the appellant. He did so by reference to the documents which I have cited above at paragraph 19.
There is nothing in this. As regards the Strasbourg decision I am by no means confident that the ruling of the court, as it was very shortly expressed on 24 th October 2000, was necessarily intended to endorse the reasoning in the Secretariat’s letter of 2 nd June 2000. Of course it may have been; but in any event it would be quite wrong to elevate this summary determination of a claim’s admissibility to the status of persuasive jurisprudence. I do not think it possesses any particular force whatever. In my view Scott Baker J was in error in describing it as the “death knell” of the appellant’s application (see paragraph 20 above).
Further, however, I am in profound disagreement with the very suggestion that the appellant’s freedom to put its case in words somehow mitigates – no, excuses – this censorship of its case in pictures. I acknowledge of course that it is possible to construct instances in which a political party may seek to put over its message by images which are gratuitous and sensational. Even in such a case, I would not wish to be taken to accept that a prohibition of the proposed broadcast would necessarily be lawful; but at least a more colourable justification of censorship might be advanced than can be advanced here. All the more so if the image proposed for broadcast were deceitful or misleading as to the true facts.
I have already made it plain that there is nothing gratuitous or sensational or untrue in the appellant’s intended PEB. It is certainly graphic; and, as I have said, disturbing. But if we are to take political free speech seriously, those characteristics cannot begin to justify the censorship that was done in this case. Here the image is the message, or at least an important part of it. Certainly I would accept that the pictures do not answer the deep philosophical questions which the abortion debate generates. But they show what actually happens. I can see no answer to the claim that the appellant is entitled to show – not just tell – what happens.
There may be instances, even in the context of a general election, in which political speech may justifiably be censored on grounds of taste or offensiveness. But in my judgment it would take a very extreme case, most likely involving factors, to which I have already referred, such as gratuitous sensationalism and dishonesty. It is unhelpful to try to conjure instances. On the facts of this case the broadcasters have in my judgment failed altogether to give sufficient weight to the pressing imperative of free political expression. The letter of 17 th May 2001 (see paragraph 10 above) demonstrates as much. There is no recognition of the critical truth, the legal principle, that considerations of taste and decency cannot prevail over free speech by a political party at election time save wholly exceptionally. The premise of the letter is that the appellant’s message is something merely to be taken into account in judging whether the taste and decency standards are breached. That is a profoundly mistaken approach. The common law requires that the freedom of political speech to be enjoyed by an accredited party at a public election, most especially a general election, must not be interfered with save on the most pressing grounds, and such grounds will very rarely be shown by appeal to considerations of taste and decency alone. The BBC Agreement and BA 1990 and BA 1996 have to be read conformably with this principle.
I am entirely clear that no such grounds are shown in the present case. I would accordingly allow the appeal. Since we are obviously long past the 2001 general election, I would assume that some form of declaration will be appropriate if my Lords agree with the substance of this judgment.
Lord Justice Jonathan Parker:
I agree that this appeal should be allowed, for the reasons which Laws LJ has given. I also agree with the judgment of Simon Brown LJ, which I have had the advantage of reading in draft.
Lord Justice Simon Brown:
The appellant is a registered political party committed to absolute respect for human life from fertilisation till death. Amongst its principal policies is the prohibition of abortion.
In the 2001 general election the appellant fielded sufficient candidates to be entitled, pursuant to arrangements made under section 36 of the Broadcasting Act, 1990 and section 3 of the Political Parties, Elections and Referendums Act, 2000, to a four-minute party election broadcast (“PEB”) to be seen in Wales. The video it submitted for transmission makes disturbing viewing. It graphically illustrates what is involved in first and second trimester abortion processes and includes clear images of aborted foetuses in a mangled and mutilated state. Under challenge in these proceedings is the broadcasters’ unanimous decision to refuse transmission of the video on grounds of taste and decency and because it would offend public feeling. The respondent’s decision letter of 17 th May 2001 reads:
The broadcasters’ “obligations” there referred to were, for independent television, those prescribed by section 6(1) of the 1990 Act, and, for the BBC, effectively identical obligations under their Agreement with the Secretary of State for National Heritage. Section 6(1) provides:
The issue in this appeal is whether the appellant’s proposed broadcast was properly refused on that ground, an issue falling for determination in the light of Article 10 of the European Convention on Human Rights. The ultimate question for decision is whether the ban was “necessary in a democratic society” under Article 10(2).
Before addressing that central question, however, it is convenient to touch briefly on some of the appellant’s wider submissions.
That broadcasting, and therefore the right to freedom of expression under Article 10(1), on occasion properly can be restricted on grounds of taste and decency and to avoid offending public feeling, I have not the least doubt. By the same token that the ECtHR in Chapman -v- United Kingdom (2001) 33 EHRR 399 (a gypsy case under Article 8) found (in paragraph 82) that the planning controls there in question “… pursue the legitimate aim of protecting the ‘rights of others’ through preservation of the environment”, so too here, in my judgment, there is a legitimate interest in preserving what may be called the moral environment. People’s sensibilities are affected no less by images broadcast into their homes than by those which confront them outside. Both affect the quality of life. The analogy must not, of course, be taken too far, but it seems to me sufficient to dispose of any suggestion that restriction on free speech can never be justified on these grounds. That said, the rights of others which are being protected by this measure are not themselves Convention rights and are less potent as a justification for interference with Convention rights than if they were. As the ECtHR in Chassagnou -v- France (1999) 29 EHRR 615 said (in paragraph 113):
Although I respectfully question the usefulness of the phrase “indisputable imperatives”, preferring instead the well-established concept of “pressing social need”, it is plain that in this sort of case pressing need will not readily be found satisfied.
Similarly I have no doubt, despite the appellant’s sustained arguments to the contrary, that the legislation here in question is sufficiently clear and specific to permit of the prior restraint of broadcasts, rather than merely the retrospective operation of a complaints system. Again, however, that said, there is force in the appellant’s argument that the objections which in any event ordinarily militate against prior restraint are substantially heightened in the context of a PEB. As the German Federal Constitutional Court pointed out in Kommunistischen Partei Deustchlands/ Marxisten 2 Bvr 523/75:
That indeed is what happened here. Only, therefore, in the most clear and obvious cases should PEBs be refused transmission. All the broadcasters here, of course, thought that this case was clear and obvious.
The third argument to be cleared out of the way before focusing on the central issue is the appellant’s contention that concepts of taste, decency and offensiveness are intrinsically too vague and uncertain to satisfy the requirement under Article 10(2) that any restrictive measure must be “prescribed by law”. The answer to this is to be found in the ECtHR’s judgment in Muller -v- Switzerland (1988) EHRR 212 at paragraph 29:
There is no less “need to avoid excessive rigidity and keep pace with changing circumstances” in the present context than with regard to the law of obscenity. In any event the uncertainty is to some extent lessened by codes of guidance drawn up by the Independent Television Commission and the Broadcasting Standards Commission suggesting how, with regard to various types of programme, questions of taste, decency and offensiveness should be approached. Ultimately, however, the crucial point to bear in mind is that these concepts are not absolute. They cannot be detached from their surrounding circumstances. The context in which they fall to be applied is all-important. Images or other material which if broadcast in one context would quite clearly be distasteful and offensive would be quite differently regarded in another. Take the appellant’s video. The transmission of images of mutilated foetuses on a quiz programme or game show would be unthinkable; it would lack any possible justification and quite properly be condemned by all as utterly tasteless and offensive. But in the context of a PEB, the essential and legitimate purpose of which is to communicate a political message, different considerations clearly apply. As the ECtHR held in Bowman -v- United Kingdom (1998) 26 EHRR 1 (another case concerning the distribution of campaign literature about abortion at election time) at paragraph 42:
Against that broad background, let me now turn to the critical issue arising here. Was there a pressing social need to ban this broadcast? I have reached the clear conclusion that there was not. Disturbing, perhaps shocking, though the images on this video undoubtedly are, they represent the reality, the actuality, of what is involved in the abortion process. To campaign for the prohibition of abortion is a legitimate political programme. The pictures are in a real sense the message. Words alone cannot convey (particularly to the less verbally adept) the essentially human character of the foetus and the nature of its destruction by abortion. This video provides a truthful, factual and, it is right to say, unsensational account of the process. As the appellant’s evidence explains:
The appellants were, moreover, always prepared for the broadcast to be shown late in the evening and with all appropriate warnings.
The importance of freedom of expression in the context of political speech is hard to exaggerate. I have already cited Bowman but in truth it is unnecessary to travel to Strasbourg to find statements of compelling force at the highest level emphasising the vital importance of free political communication. The principle is resoundingly articulated by the House of Lords in R -v- Secretary of State for the Home Department, ex parte Simms [2000] AC 115, Reynolds -v- Times Newspapers Limited [2001] 2 AC 127 , and McCartan, Turkington Breen -v- Times Newspapers Limited [2001] 2 AC 277 . When it comes to election time and PEBs, of course, the need for freedom of expression is at its very highest.
Although I think it possible to contemplate circumstances in which the broadcasting authorities might properly decline to transmit a PEB on grounds of taste, decency and offensiveness - that indeed may well have been true of the 1997 video which Mr Anderson QC acknowledges was significantly different - I am quite certain that this was not such a case.
It is an irony of these proceedings that the respondent broadcasters, natural campaigners for media freedom and ordinarily concerned to resist complaints about programmes which they themselves have thought suitable for transmission, are here in the very different position of defending a decision not to broadcast. It seems to me instructive in this connection to note some of the BSC’s and the ITC’s adjudications. Although, as I recognise, none of the transmissions in question are directly comparable to this video, it is nevertheless worth noting certain of the considerations taken into account in determining the individual complaints. Let me instance just three. First, a complaint about a Newsnight broadcast showing footage of animals being killed for their fur which the BBC successfully resisted on the basis of “a strong public interest in making viewers aware of the full horror of the situation”. Second, a programme showing badgers being killed which Channel 5 successfully defended on the footing that it secured the conviction of those involved and brought about a change in the law, the BSC accepting that “the report had served a valuable public purpose that would have been lost by simply describing the practice”. Thirdly, an ITV programme containing harrowing scenes of the victims of a Nairobi bomb explosion which the BSC found acceptable in these terms:
It may well be the case - I readily acknowledge that it probably is the case - that none of those three programmes, or indeed any of the other programmes drawn to our attention to illustrate the kind of potentially offensive material already shown on television, contained quite such prolonged and deeply disturbing images as the appellant’s video. But is there not the same “strong public interest in making viewers aware” of the true nature (I refrain from using the expression “the full horror” lest it be thought to imply a moral view) of the practice depicted, “a valuable purpose that would have been lost by simply describing the practice”? And can it not equally be said here, as of the Nairobi bomb programme, that the use of these images “was neither gratuitous nor sensationalist” and “served an important public interest and educative function”? And do not the appellants too by their broadcast legitimately attempt to “[bring] about a change in the law”?
Whatever public interest is recognised to justify the sort of shocking material shown in existing programmes is to my mind more pronounced still when it comes to PEBs. Provided only and always that such broadcasts are truthful and unsensational (not, be it noted, conditions which the broadcasters ordinarily impose on PEBs), only in the rarest of circumstances could they properly be rejected. Almost always the balance will fall to be struck in favour of the free communication of political aims and ideas. That certainly is the position here. I too would allow this appeal.
Order: appeal allowed with costs here and below; permission to appeal to the House of Lords refused; declaration made in the following terms:PRIVATE
"The decision of the Respondent, communicated to the Appellant by letters dated 17 and 21 May 2001, to refuse to broadcast the Appellant's party election broadcast on the grounds that it offended against good taste and decency and/or was offensive to public feeling was unlawful."