Constitutional

Election broadcast - broadcaster refusing to transmit footage of actual abortion as offensive to public feeling - no error of law or breach of human rights under European Convention

R (ProLife Alliance) v British Broadcasting Corporation: HL (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Millett, Lord Scott of Foscote and Lord Walker of Gestingthorpe): 15 May 2003

The claimant, a political party opposed to abortion, submitted to the BBC for its election broadcast for the 2002 general election a video containing footage of an actual abortion.

The BBC, in common with other terrestrial broadcasters, refused to transmit the video, and two revised versions, on the ground that they would be offensive to public feeling and that transmission would thus be contrary to its agreement, in terms similar to those of section 6(1)(a) of the Broadcasting Act 1990, with the Secretary of State for National Heritage.

Permission to apply for judicial review was refused by Mr Justice Scott Baker, but the Court of Appeal [2002] EWCA Civ 297; [2002] 3 WLR 1080 allowed an appeal by the claimant.

The BBC appealed.

David Pannick QC and Mark Shaw QC (instructed by Jaron Lewis, BBC litigation department) for the BBC; David Anderson QC and Martin Chamberlain (instructed by Brown Cooper Monier-Williams) for the claimant.

Held, allowing the appeal (Lord Scott of Foscote dissenting), that, it being accepted by the claimant that party political broadcasts were subject to the same restrictions as other programmes so far as offensive material was concerned, the Court of Appeal had not been entitled to interfere with the decision of the BBC, in accordance with the standards which Parliament had laid down, that the claimant's video should not be transmitted; and that that decision had not breached article 10(2) of the European Convention on Human Rights as being a discriminatory, arbitrary or unreasonable denial of the claimant's right to freedom of expression.

(WLR)