R (ProLife Alliance) v British Broadcasting Corpn

When a public authority restricts political expression in a party election broadcast, the court must decide for itself whether the restriction is justified. Mere rationality or broadcaster expertise is insufficient. Political speech at an election receives heightened constitutional protection. Restrictions based on taste, decency or offence require pressing grounds and will rarely be justified by those considerations alone. Article 10(2) permits such considerations to be relevant, but they must be applied proportionately and in context. Truthful, unsensational images may be integral to a political message. The availability of words as an alternative does not ordinarily justify censoring the images. Prior refusal of a party election broadcast should occur only in the clearest and most exceptional cases.

The ProLife Alliance, a registered political party, submitted a party election broadcast for transmission in Wales during the 2001 general election. The video showed graphic but truthful and unsensational images of the effects of abortion. The broadcasters refused transmission under section 6(1)(a) of the Broadcasting Act 1990 and the equivalent BBC Agreement obligation.

Scott Baker J refused permission to apply for judicial review, treating the issue as one of conventional supervisory review and asking whether the decision was irrational. The Court of Appeal granted permission and treated the hearing below as the disposal of the judicial review. The central issue was whether refusal on grounds of taste, decency and offence was lawful under article 10 of the Convention.

1. Appeal allowed. The court made a declaration that the broadcasters’ decisions, communicated by letters dated 17 and 21 May 2001, were unlawful. Costs were awarded here and below. Permission to appeal to the House of Lords was refused.
2. Laws LJ held that the statutory obligations under section 6(1)(a) of the Broadcasting Act 1990 and paragraph 5(1)(d) of the BBC Agreement could lawfully support prior restraint in a proper case. The concepts of taste, decency and offence were sufficiently certain, applying Muller v Switzerland 13 EHRR 212 at paragraph 29. The protection of the rights of others could include interests outside the Convention, although such interests provided a less potent justification for interfering with Convention rights.
3. The court’s task was to determine for itself whether the interference was justified under article 10(2). The international margin of appreciation was not available to a domestic court. Although some respect could be given to the expertise of broadcasters, their discretion was modest in the context of a general election. A bare finding of rationality or reasonableness was insufficient.
4. Freedom of political expression at election time required especially heightened protection. The statutory provisions had to be read consistently with that principle. Taste, decency and offence could prevail only on the most pressing grounds and very rarely by themselves. This approach was consistent with Bowman v UK (1998) 26 EHRR 1 and the domestic authorities on constitutional rights.
5. Simon Brown LJ agreed that the video’s graphic images were disturbing but truthful, factual and unsensational. The images were in a real sense the political message, and words alone could not adequately convey it. Given the special prejudice caused by refusing an election broadcast close to polling, only clear and obvious cases should be refused. No pressing social need justified this refusal. Jonathan Parker LJ agreed with both judgments.

• High Court of Justice, Administrative Court: Scott Baker J refused permission to apply for judicial review, treating the broadcasters’ decision as subject to conventional supervisory review and a wide margin of discretion.
• Court of Appeal: permission was granted and the appeal was treated as the substantive judicial review. The appeal was allowed with costs here and below, a declaration of unlawfulness was made, and permission to appeal to the House of Lords was refused.