R (Pro-Life Alliance) v BBC & Others
Reference:  UKHL 23;  1 AC 185;  EMLR 457;  2 WLR 1403;  2 All ER 977
Court: House of Lords
Judge: Lords Walker, Scott, Nicholls, Millett & Hoffmann
Date of judgment: 15 May 2003
Summary: Public Law - Judicial review - Party election broadcast - Broadcasters - Offensive material - Freedom of expression - Art 10 ECHR
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Instructing Solicitors: Brown Cooper Monier Williams for the Pro-Life Alliance; BBC Litigation Department for the BBC
The Pro-Life Alliance produced a party election broadcast for the 2001 General Election which contained graphic images of abortion. The BBC and other broadcasters refused to show it, on the grounds that it did not comply with the BBC’s producers’ guidelines and the ITC programme code regarding taste and decency. The Alliance applied for judicial review of the decision not to broadcast. The application was dismissed at first instance but the Alliance were successful in the Court of Appeal. The BBC appealed.
Whether the BBC were wrong to refuse the Alliance’s party election broadcast on the ground that it contained offensive material.
(Lord Scott dissenting) As the Alliance accepted, restrictions on the broadcasting of offensive material were not in themselves an infringement of the Alliance’s rights under Art 10 ECHR. Therefore the issue for the court was whether it should interfere with the broadcaster’s decision that the offensive material precluded it from broadcasting. The broadcaster’s application of the statutory criteria could not be faulted. The Alliance had not made out a case for interfering with the decision. Appeal allowed. Per Lord Scott: A reasonable decision maker paying due regard to Art 10 could not have concluded that the broadcast should be rejected as offensive to public feeling.
The legislation required broadcasters to consider whether the proposed party political broadcast complied with the relevant codes for taste and decency. The majority of the House of Lords criticised the Court of Appeal for failing to recognise this framework and for essentially suggesting that the broadcasters should, applying Article 10 considerations, simply have ignored their obligations under the legislative codes and have permitted the broadcast. That was not what the legislation provided.