Gaunt, R (on the application of) v The Office of Communications

On an application for permission to appeal in a media-regulation judicial review, grounds alleging that the court below applied the wrong Article 10 framework, and that it treated an interview as gratuitously offensive despite no complaint of unfairness or impartiality, were important and fit for consideration. The application was therefore granted. The Court of Appeal did not decide whether the broadcast or Ofcom’s decision was ultimately compatible with freedom of expression.

Ofcom found that a ten-minute interview breached provisions 2.1 and 2.3 of its code. The Divisional Court considered the transcript and recording, and concluded that it had to decide for itself whether there had been a breach of Article 10, while having due regard to the statutory regulator’s judgment. It regarded the interview as gratuitously offensive.

The applicant sought permission to argue that the Divisional Court had asked the wrong question and that, given the absence of any complaint of unfairness or impartiality, the scope and tone of the interview did not justify the conclusion reached. The central issue was whether those proposed grounds were important and fit for consideration by the Court of Appeal.

Application granted. The Court of Appeal determined only that the proposed issues were fit for consideration and did not finally decide the Article 10 merits.

1. The first proposed ground concerned whether the Divisional Court had asked the correct question. The applicant contended that the issue was whether Ofcom’s action was necessary to meet objectives necessary in a democratic society, rather than merely whether there would be interference with freedom of expression. Lord Justice Thomas was not persuaded that different wording would necessarily have produced a different result. Nevertheless, the applicant was entitled to argue that applying the principles identified by Lord Hope in R v Shayler [2003] 1 AC 247 at paragraphs 60 and 61 might have led to a different answer.
2. The second proposed ground concerned the scope of the complaint and finding. The complaint related principally to the tone of the broadcast and its content. There had been no complaint of unfairness to the interviewee or lack of impartiality. The applicant argued that proper regard should be given to the fact that the interviewee was a politician and that the interview’s conduct should not have been held to derogate from Article 10 in those circumstances.
3. Both issues were important and fit for consideration by the Court of Appeal. The application was accordingly granted.

• Court of Appeal (Civil Division): granted the application for permission to appeal.
• Divisional Court, Queen’s Bench Division: considered Ofcom’s finding that the interview breached provisions 2.1 and 2.3 of its code and concluded that the interview had become gratuitously offensive, having regard to Article 10.