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

Lord Justice Thomas:

1. On 2 November 2008 the applicant, who was then acting as an interviewer on a talk show, conducted a ten-minute interview with Mr Michael Stark, a councillor from the London Borough of Redbridge responsible for the policy for fostering children. He had been instrumental in putting through a policy banning those who smoked from fostering children save in exceptional circumstances. It is important to the background that the applicant himself had been in care and had written an article strongly opposing and criticising in vehement terms this policy.

2. The matter came, as a result of complaints made, before Ofcom. It held, as a result of the complaints made, that there had been a breach of provisions 2.1 and 2.3 of their code, giving their decision on 8 June 2009. Ofcom reached the view that although this was a hard-hitting programme and one where an aggressive and hectoring tone might be expected, the whole of the interview had gone beyond that and that it was offensive to other listeners.

3. The matter then came before the Divisional Court where the court had before it a transcript of the interview and had available a disc (that was also made available to us) containing the broadcast of the interview. It concluded that it had to decide for itself whether there had been a breach of the rights to freedom of expression under Article 10 having due regard to the judgement of the statutory regulator.

4. The Court concluded, having summarised the content of the interview, that although the subject was political and controversial, the interviewee was an elected politician and the matters that gave rise to the offensive nature of the interview related to matters that were value judgments or opinion, in effect the interview had gone on to become gratuitously offensive where there was no content that justified what had happened.

5. It is not necessary to refer in detail to the judgment because Mr Millar QC who appears before us wishes to raise two primary points. First he says that the Divisional Court did not ask itself the right question. He contends that the sole issue before the court was whether what had been done by Ofcom was necessary to meet the objectives necessary in a democratic society. The court, he points out, had asked itself the question as to whether there would be interference; that was the wrong question. Speaking for myself I am not entirely persuaded that expressing the question in a different way would have brought about a different result. I think nonetheless that he should be entitled to argue whether if the court had followed the what he says were the correct principles, namely those set out by Lord Hope in his judgment in R v Shayler [2003] 1 AC 247 at paragraphs 60 and 61, the court might by answering those specific questions have come to a different answer.

6. Secondly, and more importantly, he wishes to raise the more general question as to the scope of the complaint and the finding made, namely that the broadcast was offensive where there was no complaint of unfairness to the interviewee and no complaint as to impartiality. Looking at the whole of the conduct of the interview, bearing in mind that the interviewee was a politician and where what was complained about essentially was the tone of the broadcast in relation to its content, he contends that a court should not in those circumstances have concluded that the interview was conducted in a way that derogated from the rights under Article 10.

7. It seems to me that both questions he wishes to ask are important issues and ones that are fit for consideration by this court. Lord Justice Maurice Kay :

8. I agree. Order: Application granted