Quintavelle, R (on the application of) v British Broadcasting Corporation

On a renewed application for judicial review, the Court of Appeal unanimously refused leave. Where an issue of public importance may warrant guidance, the court should consider whether useful relief could be granted and whether the application is an appropriate vehicle for guidance. Leave is inappropriate where the governing principles are already clear, the relevant event has passed, future broadcasts require fresh merits-based decisions, and the case would not justify guidance beyond existing authorities. A public broadcaster cannot fetter its discretion for future political broadcasts: each proposal must be considered on its merits and in its contemporary context. A refusal on taste and decency grounds may be proper in appropriate circumstances, but this application did not require a full merits review.

The Prolife Alliance Political Party sought judicial review of the BBC’s decision dated 22 April 1997 refusing to transmit a party political broadcast on the ground that it offended good taste. The applicant alleged that the BBC had failed to analyse the transmission frame by frame and had acted contrary to common law and international human rights obligations.

The urgent application was refused by Dyson J in the Queen’s Bench Division. The matter then came before the Court of Appeal as a renewed application for leave. The proposed election broadcast had already become a past event. The central issues were whether any useful relief remained available and whether the case was a suitable vehicle for general guidance concerning the BBC’s treatment of political broadcasts.

The Court of Appeal unanimously refused leave to move for judicial review.

1. Approach to renewed applications. Lord Woolf MR explained that the ordinary approach on a renewed application is to consider the merits and prospects of success, assuming leave is granted. In an exceptional case involving issues of great public importance, the court may adopt a wider role where guidance might be valuable. The relevant considerations were whether useful relief could appropriately be granted and whether the application was a suitable vehicle for providing that guidance.
2. Future broadcasts. The BBC accepted that its decision concerning the proposed transmission could not determine how different material would be treated in the future. Each political broadcast had to be considered on its merits and in the circumstances existing at the relevant time. The apparently absolute wording of the decision letter did not therefore amount to a continuing fetter of discretion.
3. Application of those considerations. Lord Woolf MR held that the law was already clearly stated in the authorities and that the application was not an appropriate vehicle for guidance extending beyond them. Although the BBC’s decision might not have been expressed satisfactorily, it remained a decision concerning one proposed broadcast, and taste and decency could constitute a proper ground for refusal in appropriate circumstances. The election and proposed transmission had passed, so no useful relief was apparent.
4. Aldous LJ. He could discern no error in Dyson J’s judgment. In particular, there was no arguable case that the BBC’s decision was perverse, inconsistent with its policy, or unlawful having regard to freedom of political expression. He also relied on the completed event, the sufficiency of the examination already undertaken, and the need for future broadcasts to be considered afresh.
5. Chadwick LJ. He agreed that the wording of the decision letter did not fetter the BBC’s future discretion and that there was no useful relief or need for further guidance in this case.

Order: Leave refused.

• Court of Appeal (Civil Division). On the renewed application, the court unanimously refused leave: [1997] EWCA Civ 2531.
• Queen’s Bench Division (Crown Office List). Dyson J heard the urgent original application and refused it. No citation for that decision is stated in the judgment.