[COURT OF APPEAL]

ATTORNEY-GENERAL ex rel. McWHIRTER v. INDEPENDENT BROADCASTING AUTHORITY

[1973 M. No. 255]

Injunction - Relator action - Public interest - Scheduled television programme - Newspaper criticisms - Attorney-General's refusal to move ex officio for injunction - Action by private citizen to prevent showing of programme - Locus standi - Whether relator action essential

Statutory Duty - Statutory authority - Independent Broadcasting Authority - Duty to "satisfy themselves" - Scheduled television programme prima facie including indecent and offensive matter - Staff advice to authority - Newspaper criticisms Whether authority obliged to view programme - Whether authority's decision that programme not offensive reasonable - Television Act 1964 (c. 21), ss. 3 (1) (a) 18, 24

On Monday January 15, 1973, the applicant, a member of the public, telephoned the Attorney-General's office to ask the Attorney-General to move ex officio to stop a documentary programme about an American artist and film-writer scheduled to be transmitted at 10.30 p.m. on the Independent Television network on Tuesday January 16, on the ground that its transmission would be a breach by the Independent Broadcasting Authority of its duty under section 3 (1) (a) of the Television

Act 1964.¹ He based his request on three newspaper criticisms of a preview of the film which described incidents included in it, and also on the advertised preamble to the film which warned that "some people" might find aspects of it "offensive." At 2 p.m. he was told that the Attorney would not move himself but that that decision was without prejudice to consideration of a request by the applicant in proper form for relator proceedings. The applicant decided, in view of the shortness of time and his understanding as to the complexity of the requirements for instituting relator proceedings, to proceed on his own. He served a writ on the authority on the morning of January 16 and applied ex parte to Forbes J. in chambers for an injunction to restrain the authority from transmitting the film that evening. The judge refused the application. The applicant appealed to the Court of Appeal, which heard him at 3.30 p.m., examined the newspaper cuttings and the relevant sections of the Act, and adjourned until 5 p.m., having directed that the authority should if possible be represented before a decision was made.

Counsel for the authority presented evidence that the programme had been subjected to careful scrutiny by the senior staff and revised with deletions but that the members of the authority had not themselves viewed it after the adverse newspaper reports.

The court were unanimously of opinion that there was prima facie evidence that the program me included matter which would contravene the requirements of section 3 (1) (a) of the Act, and by a majority, Cairns L.J. dissenting on the ground that the applicant had no locus standi in his own right, granted a temporary injunction; and the programme was not shown that night.

Before the order of the court had been drawn up, the authority applied for the appeal to be restored to the list for further argument. At the resumed hearing, the Attorney-General, appearing as amicus curiae on the question of the applicant's locus standi, said that he would give his consent to relator proceedings properly instituted. The authority presented evidence that its members had themselves since the interim injunction viewed the program me, as had also the General Advisory Council, and that with one dissentient had decided that the program me was suitable to be shown at the suggested time and that the authority was satisfied that it complied with the requirements of section 3 (1) (a) in respect of good taste, decency and offence to public feeling:-

Held, (1) that where there was a breach or threat of breach of the law affecting the public generally, a private citizen with no interest greater than that of others could

1 Television Act 1964, s. 3: "(1) It shall be the duty of the authority to satisfy themselves that, so far as possible, the programmes broadcast by the authority comply with the following requirements, that is to say - (a) that nothing is included in the programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling; ..."

S. 24: "The functions of the authority shall include the making of arrangements for bringing the programmes (including advertisements) broadcast by the authority and the other activities of the authority under constant and effective review, and in particular for ascertaining the state of public opinion concerning the programmes (including advertisements) broadcast by the authority and for encouraging the making of useful comments and suggestions by members of the public; and the arrangements shall include provision for full consideration by the authority of the facts, comments and suggestions so obtained."

only apply for an injunction if he had first obtained the fiat of the Attorney-General, who in constitutional law had an absolute discretion to decide whether or not to institute proceedings. As on the evidence the applicant had had both time and opportunity to apply for relator proceedings in the name of the Attorney-General and had elected not to do so he had no locus standi.

Sed per Lord Denning M.R. (Lawton L.J. concurring). In the last resort, if the Attorney-General refused leave in a proper case or unreasonably delayed giving leave, or if his machinery worked too slowly, a member of the public having an interest could himself apply to the court, at least for a declaration, and in a proper case for an injunction, joining the Attorney-General, if need be, as defendant (post, pp. 649F-G,657D).

London County Council v. Attorney-General [1902] A.C. 165, H.L.(E.) applied.

(2) That the injunction should be discharged, for the Television Act 1964 placed on the authority the whole duty under section 3 (1) to satisfy themselves about the content of programmes, and the court could only question their decision to transmit the particular program me if it were shown that they had misdirected themselves in law or that their decision was unreasonable. Though on the original application there was a prima facie case that the authority had not done sufficient to "satisfy themselves," the evidence available on the further hearing was sufficient to require the court to hold that the decision was one which the authority could reasonably make.

Per curiam. The duty of the authority under section 3 (1) (a) is to consider the parts as well as the whole of a programme, though the parts may be considered in their context (post, pp. 650E-F, 652D-E, 655F-G, 658G-H).

No cases are referred to in the judgments or were cited in argument in the preliminary proceedings.

The following cases are referred to in the judgments on February 5:

Attorney-General v. Great Eastern Railway Co. (1879) 11 Ch.D. 449, C.A.

Attorney-General ex rel. Rhondda Urban District Council v. Pontypridd Waterworks Co. [1908] 1 Ch. 388.

Attorney-General v. Westminster City Council [1924] 2 Ch. 416, C.A.

Boyce v. Paddington Borough Council [1903] 1 Ch. 109.

Caldwell v. Pagham Harbour Reclamation Co. (1876) 2 Ch.D. 221.

Deare v. Attorney-General (1835) 1 Y. & C.Ex. 197.

Dyson v. Attorney-General [1911] 1 K.B. 410, C.A.; [1912] 1 Ch. 158, C.A.

Lewisham Metropolitan Borough and Town Clerk v. Roberts [1949] 2 K.B. 608; [1949] 1 All E.R. 815, C.A.

Liversidge v. Anderson [1942] A.C. 206; [1941] 3 All E.R. 338, H.L.(E.).

London County Council v. Attorney-General [1902] A.C. 165, H.L.(E.).

Prescott v. Birmingham Corporation [1955] Ch. 210; [1954] 3 W.L.R. 990; [1954] 3 All E.R. 698, C.A.

Reg. v. Commissioner of Police of the Metropolis Ex parte Blackburn [1968] 2 Q.B. 118; [1968] 2 W.L.R. 893; [1968] 1 All E.R. 763, C.A.

Secretary of State for Employment v. ASLEF (No. 2) [1972] 2 Q.B. 455; [1972] 2 W.L.R. 1370; [1972] I.C.R. 19; [1972] 2 All E.R. 949, N.I.R.C. and C.A.

Thorne v. British Broadcasting Corporation [1967] 1 W.L.R. 1104; [1967] 2 All E.R. 1225, C.A.

The following additional cases were cited in argument on the further hearing:

Attorney-General v. Bastow [1957] 1 Q.B. 514; [1957] 2 W.L.R. 340; [1957] 1 All E.R. 497.

N. (Infants) In re [1967] Ch. 512; [1967] 2 W.L.R. 691; [1967] 1 All E.R. 161.

Reg. v. Customs and Excise Commissioners Ex parte Cook [1970] 1 W.L.R. 450; [1970] 1 All E.R. 1068, D.C.

INTERLOCUTORY APPEAL from Forbes J.

On Tuesday, January 16, 1973, the Court of Appeal interrupted the hearing of an appeal to receive an application, said to be urgent, by the applicant, Alan Ross McWhirter, a member of the public, made ex parte. He told the court that he had just been before Forbes J. in chambers asking ex parte for an injunction to restrain the Independent Broadcasting Authority, their servants or agents or programming companies under their control or otherwise or howsoever, from broadcasting on the Independent Television Network the programme advertised for 10.30 p.m. that night, devised by Associated Television, which concerned the mentality of an American film producer named Andy Warhol and which was to be preceded by a preamble ordered by the authority that "some people may find Warhol's work and life style unsympathetic or offensive," on the grounds that that was a transmission in breach of section 1 (4) (b) and (c) and section 3 (1) (a) of the Television Act 1964; that the judge had refused the injunction, apparently on the ground that he did not consider the applicant had any locus standi where he could show no special interest over and above the other members of the public, that the applicant had that morning served on the authority a writ in terms of the present motion, but that the authority had not appeared and was not represented before the judge. There had been no opportunity to inform the authority of his intention to come to the Court of Appeal.

He made his application supported by an affidavit referring in detail to three newspaper reports by television critics of their preview of the program me which are referred to in the judgments of the Court of Appeal on January 16 (post, pp. 633F - 634D).

The applicant told the court that he had asked to have but had been refused a view of the programme himself; that he had on Monday, January 15 asked the Attorney-General's office whether the Attorney-General would move the court ex officio to stop the showing of the film on the ground that it would be in breach of the authority's statutory duty under the Act; that he had been told on that afternoon that the Attorney-General had decided not to take action ex officio; and that as the Act provided no sanction of any kind for breach of a statutory duty by the authority he had decided to come to the court in his own name because he considered that under the common law a private citizen was under a duty to see that Acts of Parliament were enforced. He submitted that as time was so short it was not possible to proceed by obtaining the Attorney-General's consent to relator proceedings, and as he was affected by having

such programmes introduced into his own home, he was entitled to come to the court. The court adjourned the application until 5 p.m. and directed that the authority should be notified that the court would like them to be present or represented.

At 5 p.m. when the court sat again, Mr. Kemp for the authority, briefed at 45 minutes' notice, was present. The applicant repeated his submissions, adding that when he had been told on January 15 that the Attorney-General would not act ex officio he had also been told that that did not rule out the possibility that the Attorney might give his consent to the applicant's proceeding ex post facto in relator proceedings properly instituted if the broadcast did go out that evening; and also that since his ex parte application he had been informed that one of the Independent network companies, Anglia Television Ltd., had decided to substitute another program me for the 10.30 p.m. slot.

Mr. Kemp, for the authority, submitted that the application was misconceived because (a) there was no breach of statutory duty by the authority; (b) the applicant had no locus standi whatever; and (c) if there was another perfectly appropriate remedy an injunction in the circumstances of the present case should not in any event be granted and that in fact the authority had complied fully with their statutory duty under the Act of 1964.

The applicant in person.

David Kemp for the authority.

LORD DENNING M.R. This is an urgent case which we have heard at short notice at this late hour. There is advertised to be shown on several independent television channels this evening at 10.30 p.m. a programme entitled "Warhol: Artist and Film-maker." Mr. McWhirter, a member of the public, has issued a writ today in which he seeks an injunction against the Independent Broadcasting Authority to restrain them from broadcasting this programme. We are grateful to the authority for instructing Mr. Kemp on their behalf, and to Mr. Kemp for attending to assist us.

Towards the end of last week a film of this programme was shown privately to a number of journalists. I expect that there was an embargo forbidding comment until Sunday. In the Sunday newspapers the journalists made very severe criticisms of the proposed programme. On the front page of the "News of the World" it was said:

"This TV shocker is the worst ever. A programme which goes further than anything I have ever seen on TV is to be screened on Tuesday night. Millions of viewers will find its frankness offensive."

In the "Sunday Mirror" it was said:

"Andy Warhol film shocker for ITV. Television viewers are about to see what many will consider to be the most permissive shocker to be shown on British screens. ... I have been shown a preview of this remarkable documentary. It includes: A FAT GIRL, stripping to the waist, daubing her breasts with paint and then painting a canvas with them. She also throws paint down a lavatory pan to form weird patterns. This one she calls Flush Art."

And then another paragraph almost equally indecent. It goes on:

"A discussion between a young girl and a man dressed as a Hell's Angel on how they can have sex. She says she will only do it at 60 m.p.h. on his motor cycle."

A little later on:

"Conversations are laced with four-letter words. ... It's all there all right. Especially transvestites, lesbianism and the whole freaky scene which surrounds Warhol."

In the "Daily Express" on Monday it was said:

"Shocking world of TV by James Thomas."

It finishes:

"The public still has to see the Andy Warhol programme. It may then turn itself into an indignant jury. Or viewers may merely find these infant antics funny. Is it art for Andy's sake - or for the sake of the I.B.A.'s ratings? We shall judge tomorrow. It could be that ITV, by throwing slush at the public, has made its biggest mistake in a decade."

Mr. McWhirter says that those comments are typical and that there are others to the same effect. He has not himself seen the programme. He asked to see it but he was not allowed to do so. So he relies on those comments in the press as the best evidence he can obtain about the contents of the programme. On the basis of them, he says that the Independent Broadcasting Authority are about to break the duty laid upon them by statute. Section 3 (1) of the Television Act 1964 says:

"It shall be the duty of the authority to satisfy themselves that, so far as possible, the programs broadcast by the authority comply with the following requirements, that is to say - (a) that nothing is included in the programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling."

Mr. McWhirter says that there is evidence here from these newspaper reporters that this programme contains matter which offends against good taste and decency and is likely to be offensive to public feeling. He stresses the word "likely." I must say that the evidence of those who have seen the film, that is, the evidence of the newspaper reporters, does warrant the inference - it leads almost inevitably to the inference - that this program me includes some matter which will offend against good taste and decency and is likely to be offensive to the public feeling: whereas the Act requires the authority to satisfy themselves that nothing in it should do so.

In answer Mr. Kemp says the authority are the supreme arbiters upon this matter. He relies on the words: "It shall be the duty of the authority to satisfy themselves so far as possible." He says it is for the authority and not for the courts to sit in judgment over the programs. To this I would answer that if the authority do not carry out their duty, the courts can inquire into it. The Act does not provide any specific way for enforcing the duty. It defines no offence. It

provides no punishment. It gives no remedy for a breach. When a statutory duty is imposed, but no means of enforcing it, the courts are the one body which can see that the duty is fulfilled: and when called upon, they must do so. Mr. Kemp referred to the wide powers of the Postmaster-General, now the Minister of Posts and Telecommunications, under section 18 (3). But that does not seem to me to meet the present problem. That section enables him to give general directions, but it does not enable him to intervene at short notice in a matter of this kind. It is, in my judgment, the province of the courts to see that the duties laid down by Parliament are obeyed.

The next point is, who can bring the matter to the notice of the court? Can it be done by an ordinary member of the public such as Mr. McWhirter? This is the most difficult part of the case. It is said in our law books:

"An injunction will only be granted at the suit of a party having sufficient interest in the relief sought: if the injury complained of affects the public interest, the Attorney-General must be joined."

So it is said that Mr. McWhirter cannot come here on his own. In answer Mr. McWhirter says that he has been to the Attorney-General's office, and, although he has not been given leave to bring a relator action - that is, an action on the relation of the Attorney-General - nevertheless it is not out of the question that he might obtain leave. But the machinery of obtaining leave takes some little time to get to work. If he waited till he obtained leave, it would be too late for the court to take action: because by that time the film would have been shown and the damage would have been done. I think there is sufficient in his answer for us to anticipate that he may get leave and to act in advance of it. The obtaining of leave is just a matter of procedure. In these days we have to mould procedural requirements so as to see that the duty which the statute ordains is fulfilled. At any rate, for the time being, even at the suit of Mr. McWhirter, we have jurisdiction to grant an injunction if such be the only way of seeing that the statutory duty is fulfilled.

In this particular case it seems to me that we can and should grant an injunction to stop the performance of this film this evening. I would emphasise in particular that the statutory requirement is that it is the duty of the authority to satisfy themselves. I should have thought that on Sunday or Monday - when there had been all these press criticisms saying that it would be offensive to great numbers of the public - the authority themselves should have considered whether there was anything in it which was likely to be offensive to public feeling. I should have thought that the authority themselves - the members of that authority - would have intervened and said: "We must see this: we must see this for ourselves before it goes out - we must see whether it is as offensive as the newspaper reports say." But we are told they did not do so. They considered the matter, but they did not see the film.

We are told that the authority had before them a report from the staff. It said that the programme was prefaced with a statement that "some people may find Warhol's views unusual and possibly offensive"; and that in the light of the modifications that had been made, the staff felt able to

recommend that the programme be transmitted. On the faith of that report the authority seem to have authorised the transmission. But that report was made before the newspaper reporters saw the film. After the newspaper reporters saw the film and made these very severe criticisms of it, a new situation arose. At that stage it seems to me that the authority, in order to do their duty properly as the statute requires, should have seen it and satisfied themselves personally that nothing in it was likely to be offensive to public feeling. They may, of course, delegate many things to the staff, but occasions may arise - and this may be one - when no delegation will suffice. They must satisfy themselves personally.

I realise that it is an important case; but as a temporary measure, I think an injunction should be granted. We are told - and it is really not contradicted - that on the television channels there are standby programs ready to be inserted. We are also told that one channel, Anglia, has already decided not to show this programme but to put something else in. It seems to me that the others should follow suit.

Although it is a difficult case, it seems to me that on the evidence of the newspaper reports there are some things included in this program me which are likely to be offensive to public feeling. There is evidence from which it can be inferred that the authority have mistaken the extent of their duties in the matter, and therefore the court should intervene by granting an injunction for a week or a fortnight. It need only be adjourned for that short time. Meanwhile the matter can be further considered. If need be, the Attorney-General can be brought in by relator proceedings, if he agrees. Then the matter can be fully debated on the various issues that arise. I would be glad for that to be done. But, to keep the matter open for the time being, I would grant the injunction as asked.

CAIRNS L.J. I should be very glad if I could agree that an injunction should be granted in this case, because I think it is very much against the public interest that this programme should be broadcast. I am, however, of opinion that it is still the law that where the injury complained of affects only the public interest, the Attorney-General must be joined. In my view the fact that it has not been possible in the time available to persuade the Attorney-General to take action is no sufficient ground for saying that the private individual is to be allowed to enforce the matter of public interest. For that reason only I must dissent from the judgment of Lord Denning M.R.

LAWTON L.J. I agree with Lord Denning M.R. that an injunction should be granted in this case, and I agree with the reasons which he has given. It seems to me that the point which is troubling Cairns L.J. is one in which, under the changing conditions of the modern world, in which there are powerful statutory bodies like the Independent Broadcasting Authority whose activities affect the public generally, the time has come to look at the procedural rules of law which hitherto seem to have restricted the right of the ordinary citizen to complain about their activities; in other words, there is a case worthy of consideration; and this is not one where there is a mere shadowy claim to an injunction. In my judgment the evidence is clear that the authority have not applied the right test. It has long been

accepted by the courts that where a statutory body has the duty of satisfying itself, that body must act in a reasonable manner. There is evidence - and I stress that I am going no further than saying that there is evidence - that the statutory body has not applied reasonable standards in saying that it has satisfied itself. One illustration will show that. According to the "Sunday Mirror" - and it is uncontradicted on behalf of the authority - this film has in it the incident relating to the fat girl which Lord Denning M.R. read out, and there is no need for me to read it out. The statutory authority have taken the view that that incident is not likely to be offensive to the public. One has only got to ask oneself what would have happened if that incident had taken place in a shop window or in any other part of a shop; and the answer is that the shopkeeper who organised such an exhibition would almost certainly have found himself charged with and convicted of wilfully exposing an indecent exhibition, contrary to section 4 of the Vagrancy Act 1824; and, as I pointed out in the course of the argument, if a television retailer had in his shop window a set with this particular program me coming through on it, he too might find himself charged with the same offence. In those circumstances it seems unlikely that the authority can have applied their minds in a proper way to this programme.

Solicitors: Allen & Overy.

M. M. H.

MOTION.

On January 19, 1973, before the order of the court consequent on the above judgment had been drawn up, the authority moved the court for an order that the applicant's appeal against the order of Forbes J. refusing him an interim injunction be restored to the Court of Appeal's list for further hearing and that no order be perfected until after such hearing. The applicant had filed a notice of appeal on the ground that the judge had misdirected himself in holding that the applicant had no locus standi to bring the proceedings.

The hearing of the motion for further argument was fixed for January 25. On that date both the applicant and the authority were represented by counsel and the Attorney-General appeared as amicus curiae on the preliminary issue of locus standi of the applicant, but he intimated that in view of the importance of the main issue he would give his consent to relator proceedings properly instituted by the applicant. Leave was granted to amend the applicant's writ by joining the Attorney-General as plaintiff in the relator proceedings. It being agreed that once those proceedings were instituted they were in the sole control of the relator and at his expense, the Attorney-General and junior counsel withdrew, and the appeal continued on the substantive issue.

During the hearing the members of the court adjourned to the television studios of the authority to view the programme themselves.

Sir Peter Rawlinson Q.C., A.-G. with Gordon Slynn as amicus curiae on the issue of locus standi. The applicant, when he was informed at 2 p.m. on Monday January 15 that the Attorney-General's decision not to proceed ex officio was without prejudice to any application in proper form for consent to relator proceedings, had ample time to make such an application and have it discharged during the normal hours of the court's sitting before the programme was to be shown. He preferred to proceed in person.

The constitutional position is that the Attorney-General has an absolute jurisdiction in deciding in which cases it is proper for a relator action to be brought: see London County Council v. Attorney-General [1902] A.C 165, 169 per Lord Halsbury, L.C. It is for the Attorney-General and not for the courts to determine whether leave should be given for litigation to be initiated. The law officers can move swiftly in a proper case, sometimes within minutes and certainly within hours. The Attorney-General considers all applications made to him as a matter of public duty, though under the Television Act 1964 his intervention is not the only sanction on the authority. If evidence is presented to him which could with a bit more time and trouble be translated into better evidence, he will give his consent to relator proceedings, where the procedural requirements - the issue of a writ and a statement of claim, together with the certificate of counsel who drafted the statement of claim that the case is fit for consideration - have been satisfied. In practice he may even give his consent over the telephone where it is shown that something is being done or about to be done in clear breach of a statutory duty. Once consent is given the proceedings are begun in the Attorney-General's name as plaintiff. The relator must appear by counsel; and though thereafter the relator has the conduct of the case and is liable for the costs the Attorney-General remains dominus litis.

On January 16 the majority of the court was impressed by the urgency of the matter and was not aware of the speed with which the Attorney-General can deal with an application for relator proceedings. But the effect of the court's decision on that date will be considerable if it stands, for it will mean that any individual can move the court for an interim injunction whenever he finds or fears that something in a broadcast program me will be contrary to good taste and decency. The court should hesitate long before overthrowing the principles developed over the centuries in relation to public rights and the role of the Attorney-General, which have hitherto guided the law officers, merely because the court is told that a matter is urgent. Unless a member of the public has a private right or interest in a matter concerning the public over and above the interest of the public generally, that matter can only be brought before the court if the Attorney-General give his fiat: see Deare v. Attorney-General (1835) 1 Y. & C. Ex. 197.

When the Independent Broadcasting Authority was set up by Parliament it was given rights, powers and duties, and powers were also given to the Minister of Posts and Telecommunications. The damage and cost of stopping a scheduled programme at short notice may be considerable. The

Attorney-General would have to be satisfied that the authority was in breach of a statutory duty. The applicant had deliberately chosen to go to the court in person when there was time for the proper steps to be taken; the court was not made aware that there could have been time for an application to the Attorney-General; and its decision to hear the applicant in person should now be reversed. [Reference was made to Attorney-General v. Bastow [1957] 1 Q.B. 514, 520 per Devlin J. that the Attorney-General authorises a relator action and retains complete control over it.]

The applicant has now made a formal request for a relator action and in view of the exceptional public importance of the issues raised consent will be given to such an action, whether on the original or on an amended writ, if the court holds on the preliminary point that the applicant himself has no locus standi.

Gordon Slynn following. Since 1965 there have been 75 formal requests for relator proceedings and the Attorney-General has granted his fiat in 63. Over the same period there were 70 further inquiries on whether relator proceedings could be brought but which were not followed up.

Roger Parker Q.C. and David Kemp for the authority on the issue of locus standi. If the majority decision of the court on January 16 that the applicant had a locus standi to come to the court in person alleging a breach of section 3 (1) (a) of the Act of 1964 and that he established a prima facie case for a temporary injunction is right, the consequences will be deplorable. The authorities from the Year Books onwards establish that where there is a public duty a member of the public has no locus standi of his own and no cause of action unless he can show that he has a special interest or has suffered special damage over and above that of the other members of the public. [Reference was made to Halsbury's Laws of England, 3rd ed., vol. 21, (1957), p. 407; Boyce v. Paddington Borough Council [1903] 1 Ch. 109, 114, per Buckley J.; and Attorney-General ex rel. Rhondda Urban District Council v. Pontypridd Waterworks Co. [1908] 1 Ch. 388.]

An application to the court to restrain an alleged breach of statutory duty is not procedural but substantive. If the applicant has no cause of action he has no locus standi to obtain interim relief, for one of the essential conditions of the grant of interim relief is that the court shall be satisfied that there is at least a likelihood of success in the action itself. If it is shown that there can be no cause of action and that the writ issued must be struck out it would make an ass of the law for the court to say: "although you will fail utterly and could not get an injunction in the action, we will nevertheless grant you interlocutory relief." The clearest possible statement of the law was that of Lord Denning M.R. in Thorne v. British Broadcasting Corporation [1967] 1 W.L.R. 1104, 1109, that "It is a fundamental rule that the court will only grant an injunction at the suit of a private individual to support a legal right"; and the court struck out Dr. Thorne's statement of claim and dismissed his action as an abuse of the process of the court.

[LORD DENNING M.R. In Thorne's case there was a remedy under the Race Relations Act 1965, but the Television Act 1964 does not state what the remedies are. If a member of the public has paid for a television

licence is he not entitled to expect the programmes to conform with the statutory duty when he turns them on?]

No; a member of the public has a right not to be assaulted by dust or fumes but there is as yet no right known to the law not to have one's feelings offended by programmes broadcast by the authority. [Reference was made to Reg. v. Customs and Excise Commissioners, Ex parte Cook [1970] 1 W.L.R. 450, 456, per Lord Parker C.J.]

It is conceded that there may be a case for giving the court some power in an extreme and urgent case to hear an individual, but it is Parliament which must confer that power on the court. The Attorney-General's part, whether ex officio or by relator proceedings, is not a mere matter of procedure.

On January 16 the court was exercised by the apparent urgency of the matter. Now that the situation has been more fully explored the court should say that the provisional decision of the majority was wrong.

In any event, before a member of the public could move the court there would have to be cogent evidence from which it could be inferred that (1) the authority, to whom Parliament has committed statutory duties, had so totally neglected those duties or had been so grossly misled by their senior staff that no 12 reasonable men could have passed the program me and (2) that the Attorney-General, who can move swiftly by no more than a telephone call was so completely out of touch with public opinion that he had completely failed to do what he eaglet. The long line of binding authority should not be overthrown on two such unlikely hypotheses. So far as the authority is concerned there is the sanction of the Postmaster-General, now the Minister, who can move under section 18 on sufficiently cogent evidence; and if the Attorney-General fails in his duty he is answerable to Parliament.

J. G. Le Quesne Q.C. and Stuart McKinnon for the applicant on the issue of locus standi. Though it is agreed that there is no case precisely comparable to the present as it came before the court on January 16 there is also nothing in the books which makes it impossible to grant the relief which the situation demanded. The authority is a public corporation entrusted with statutory duties which are of interest to almost the whole community, and some of which relate to the content of programs under section 3. If that part of the duty is to be enforced there must be occasions when it has to be done quickly, for the content of a particular program me is unlikely to become known in advance save at very short notice. Though the Attorney-General could move ex officio without delay, the chances of getting the Minister to give a direction under section 18 at speed are doubtful; and for the alternative of relator proceedings in an emergency, the requirements are not merely those stated by the Attorney-General but in addition the relator's solicitors have to provide a certificate that the relator is a proper person to be relator and "competent to accept the costs of the proposed action": see the notes to R.S.C., Ord. 15, r. 11. That may put relator proceedings beyond the power of certain individuals, so that if the court can only act after the institution of relator proceedings, there will be cases where the court cannot act in time and this public corporation will be virtually

uncontrollable - for nothing effective can be done after a programme has gone out and the damage has been done.

[CAIRNS L.J. If the court in a situation of urgency stopped a programme on meagre evidence and later was satisfied that it was all right and the people who had prepared it were put to enormous expense over its temporary cancellation, what would happen if the applicant for an interim injunction could not meet the costs?]

That is a risk which always exists when interim injunctions are granted at short notice. The Rules of the Supreme Court have given the court a discretion in a case of urgency to grant interim relief by R.S.C., Ord. 29, r. 1 (3) even before proceedings have been instituted by writ or originating summons, though terms may be imposed providing for the issue of the writ or summons and "such other terms, ... as the court thinks fit": see In re N. (Infants) [1967] Ch. 512, where Stamp J. granted interim relief to a mother on undertakings that proper steps would be taken to institute the proceedings as soon as possible. That was admittedly a private action; but there is no reason why the same procedure should not apply in a relator action, for though it is in the Attorney-General's name, the substance of such an action is that the relator is responsible for the conduct of the proceedings and the costs and it is to the relator that the relief is granted. So here, if the applicant undertakes to institute a relator action he will be entitled to interlocutory relief, if he comes to the court and explains that his reason for coming is that he has not had time to comply with all the requirements for relator proceedings. Such a case will come within R.S.C., Ord. 29, r. 1 (3). Though it is conceded that that rule requires the application to be made by "the plaintiff" and technically the Attorney-General is "the plaintiff" in relator proceedings, the relator is in reality "the plaintiff."

The authorities cited do not assist and are not challenged, but in none of them was the court directing its mind to the present question: Is it possible, having regard to the principles established over the centuries, for the court in a case of urgency to grant interim relief conditional on the grant ex post facto of the Attorney-General's consent? Thorne v. British Broadcasting Corporation [1967] 1 W.L.R. 1104, is distinguishable, for there was no element of urgency: and the matter was brought before the court not by Dr. Thorne, the member of the public, but by the B.B.C. applying to strike out his action.

There is nothing revolutionary in the submission that, without casting any doubt on the constitutional role of the Attorney-General, the court has power in an urgent case to grant interim relief if it is satisfied that it is necessary so to do in order to enforce the law or prevent a breach of statutory duty. The present case should not be decided on nice calculations of what might just have been possible in the time available. The test is whether it was reasonable for the applicant to have come to the court in person on January 16. The majority of the court thought it was, and was correct on the particular facts and circumstances in granting the temporary injunction and recognising the locus standi of the applicant.

[The court indicated that they would reserve their decision on the issue of locus standi until the whole appeal had been heard.]

Roger Parker Q.C. and David Kemp for the authority on the basis

that consent to relator proceedings had been given. Though the stage has now been reached, with a certain lack of formality, where it might be possible for the court to grant the applicant interim relief because the Attorney-General has given his consent and the applicant could give an undertaking to institute a relator action, that was not the position on January 16, so that in no circumstances could R.S.C., Ord. 29, r. 1 (3) avail this applicant. Though the Attorney-General may not play an active part in the proceedings once they have been instituted in his name, it is nevertheless in his power to decide tomorrow as of right that he has had second thoughts and that the relator action must be dismissed and the relator must pay the costs; so that the attempt to equate the applicant's position with that of the private litigant in In re N. (Infants) [1967] Ch. 512, is unsustainable. [Reference was made to Zamir, The Declaratory Judgment (1962), p. 275 and Halsbury's Laws of England 3rd ed., vol. 9 (1954), p. 69.]

On the main issue whether the injunction should have been granted on the evidence before the court on January 16 and whether it should be continued on the evidence now before the court: (1) The Independent Broadcasting Authority has been set up by Parliament under the Television Act 1964 with specific duties, in particular the duty under section 3 to "satisfy themselves" that so far as possible the programmes comply with the section's requirements. Parliament has itself made the authority quasi-censors.

(2) The wording of section 3 makes plain that virtually all the matters on which they are to satisfy themselves are matters of judgment, and that taste, decency and offensiveness will change with changing public opinion.

(3) To assist them in forming that judgment the authority are to keep in touch with public opinion as provided by section 24 which includes among the "functions of the authority" the making of arrangements "for ascertaining the state of public opinion concerning the programmes (including advertisements) broadcast by the authority and for encouraging the making of useful comments and suggestions by members of the public ...". The authority gets guidance on those matters from letters, telephone calls and similar communications from the public.

(4) The duty on the authority does not require them to see or hear personally every programme broadcast, though there may be some instances where they should clearly do so. In such a case it is important to bear in mind that they would have the knowledge acquired from the exercise of their functions under section 24 and the views of their senior staff who would also be familiar with such sources. The qualifications and careers of the senior staff, and in particular of the deputy director-general (programme services), the head of programme services, the deputy head of programme services, and the senior programme officer as set out in the Second Report of the Select Committee on Nationalised Industries laid before Parliament on September 27, 1972, shows that they are qualified, experienced, and in day to day touch with programme production and informed on the state of public opinion.

(5) The duty of the authority is not to satisfy themselves that no programme ever contains anything which, standing alone or in certain

circumstances would be indecent, offensive and so on, but that "so far as possible" the programmes do not include anything which offends against good taste or decency or is offensive to public feeling. That is a duty relating to the particular context of an item, and not to some other or unconnected context. A film of a tea party with a bishop and a nun using a four-letter word three times, apparently as part of their normal conversation, may be grossly offensive, but it may be wholly inoffensive if the same word were used three times in a programme about Army training. Other examples are easy to put; but it is idle to suppose that there is an absolute standard of what is decent or indecent.

(6) It is not argued that the question whether the authority have satisfied themselves is never justiciable. It must always be open to the courts to see whether they have even purported to satisfy themselves; but only in the rarest and clearest case should the court interfere and in no case should the court ever substitute its own opinion for that of the authority. For the purpose of the present interlocutory proceedings it is conceded that the court might be able to interfere if no 12 reasonable men could have concluded that a particular programme complied with the requirements of section 3.

(7) The reason why the court should be slow to interfere is that the judiciary are not experts in the changing views of the public; they do not have access to the day to day information about public reaction and feeling which the authority are obliged to know about and keep in contact with.

(8) Therefore the court will only interfere on interlocutory proceedings if there is a strong case that no body of men properly applying the provisions of the Act could possibly have been satisfied on the matters on which they have to be satisfied.

Applying those propositions to the position on January 16, the applicant's evidence that three of the more sensational newspapers had reported that a scheduled programme contained certain incidents and that the preamble to the film conceded that some people might find Mr. Warhol's life style offensive, supplemented by information that the authority had not themselves seen the film but had relied on their staff and that one company, Anglia, had decided not to screen the film, was not enough to justify the court's intervention.

On the fuller evidence now before the court the position is that both the authority and their advisory council, the composition of which would not warrant the description of avant garde, have seen the film and, with one exception, have concluded that it should be shown and that it complies with section 3 (1) (a).

The court has frequently said that it is not a court of morals. Nor is it a court of good taste or decency or of what is offensive to public feeling. Its function is to administer the law; and as Parliament has made the authority the arbiter on the matters in section 3 (1) (a) the court will not intervene unless the subject matter was so grossly offensive that it could be said that the authority and the advisory council were wholly unreasonable in approving it. This programme does not come near such a description. If the court thinks it does, it is asked to state what public opinion requires to have excised from it.

J. G. Le Quesne Q.C. and Stuart McKinnon for the applicant on the basis of a relator action in being. Section 3 (1) (a) in terms requires the authority to satisfy themselves that "nothing is included" etc. It is conceded that an incident may be so trivial that it can be ignored for the purposes of paragraph (a) and that what is indecent in one context may not be so in another; but that truism is of limited application in television which is available to almost the whole community. Section 3 (1) (a) keats that which offends against good taste and decency as a separate category from that which is likely to be offensive to public feeling. Where such words are included in a statute as the test, the court may have to decide what meanings those now bear and whether there is something in a programme which offends against those meanings. It is not open to the authority to say that "This sort of thing is tolerated by some people and therefore it complies with paragraph (a)"; nor is it enough to say "Look at the programme as a whole," for that is not what the Act stipulates. One has to find some consensus which is public feeling.

On January 16 the court had before it the incidents described in the newspaper reports; the intervention report showing that the programme had been subject to revision and deletions and had been prefaced with a warning; and the information that the authority had not seen it, and that one company had decided not to show it. That was ample material to entitle the court to act as it did and to justify the prima facie view that the authority had not taken proper or sufficient steps to satisfy themselves that the programme complied with section 3 (1) (a).

The court now has fuller evidence and knows that Anglia decided not to show it because it was considered contrary to section 3 (1) (a); and even now the authority has not said expressly: "We have satisfied ourselves that this programme contains nothing which offends etc." They merely say they are satisfied that it complies with their interpretation of section 3 (1) (a). The preliminary warning, or the description of a programme as a "documentary" does not make lawful that which is otherwise unlawful. There may be a breach of section 3 (1) (a) whether it constitutes 10 per cent. or 90 per cent. of a programme.

On the duty to "satisfy themselves," see Secretary of State for Employment v. ASLEF (No. 2) [1972] 2 Q.B. 455, where the words of the Industrial Relations Act of 1971 were "Where it appears to the Secretary of State." The court there said that even those wide words did not put the Minister's decision beyond challenge and that the court might interfere where the Minister had misdirected himself: see per Lord Denning M.R. at p. 493 and Buckley and Roskill L.JJ. at pp. 499 and 510. The court, having seen this programme, may think it surprising that anyone could say it contains "nothing which offends etc." The only explanation must be that the authority tested it (a) by looking at the effect as a whole instead of looking to see whether it contained anything offensive; and (b) by attaching undue importance to public feeling and not appreciating that offences against good taste and decency and offences against public feeling are two separate categories, either of which leads to the conclusion that the programme contravenes the subsection. Though the standard of decency may vary, it should not be impossible to apply.

Parker Q.C. in reply. The ASLEF case [1972] 2 Q.B. 455, is prayed

in aid for the authority: see per Buckley L.J. at p. 499 on the likelihood that there would be many channels of information and advice available to the Minister in forming his view, so that it would be difficult to displace it by evidence. In the present case there is not merely a likelihood of other souces of information but a positive obligation on the authority under section 24 to provide themselves with such information, and in the absence of evidence to the contrary it must be presumed that they fulfilled their obligation under section 24. The best test is the view of a carefully selected body charged with keeping themselves informed, not the standards of the court. If the authority go wrong the matter will be ventilated in Parliament. Though context does not excuse everything the particular incidents highlighted here should be looked at in context. There is no case for interlocutory relief.

[CAIRNS L.J. If the court concludes that the injunction should continue will the authority ask for an undertaking as to damages, and against whom?]

If that arises the undertaking as to damages should be given by the relator. If the Attorney-General were asked to give such an undertaking he might say: "I am dominus litis and I do not wish to continue with the relator proceedings."

February 5, 1973. The following judgments were read.

LORD DENNING M.R. When Mr. McWhirter came on Tuesday, January 16, 1973, he represented to us that it was a matter of great urgency. The Independent Broadcasting Authority were proposing, he said, that very evening, to broadcast a television film which did not comply with the statutory requirements laid down by Parliament. He produced evidence, in the shape of newspaper reports, which showed that it contained matter which offended against decency and was likely to be offensive to public feeling. He said that he had put that evidence before the Attorney-General's office, but the Attorney-General had declined to take action ex officio. So he had himself come to the courts to seek an injunction. He claimed that he had a sufficient interest. He was himself the owner of a television set; he had paid his licence fee. When he switched it on, he was entitled to expect that the programme would comply with the statutory requirements. There were thousands like him sitting at home watching. All were entitled to have their privacy respected.

On that occasion this court, acting by a majority, granted the injunction. It was essentially a "holding operation" so as to enable the important issues to be discussed when there was more time to do it. By granting an injunction - for a very short time - no irreparable damage would be done. The television companies are able to change programmes at short notice. They have substitute films standing by ready for use. We thought that if it was found, after inquiry, that the programme did comply with the statutory requirements, it could be shown a little later. But if it was broadcast at once, without complying with the statutory requirements, much damage might be done, much offence might be caused

to many. So, on balance, as an urgent and temporary measure, we granted the injunction. I do not suppose that this has done the programme any disservice. On the contrary, it has given it publicity, so that if it is shown many more will watch it than would have done so previously. Moreover, it has enabled us to debate two points of much importance.

The first is whether Mr. McWhirter had any locus standi to come to the court at all. The second is whether the injunction should be continued.

Locus standi

This is a point of constitutional significance. We live in an age when Parliament has placed statutory duties on government departments and public authorities - for the benefit of the public - but has provided no remedy for the breach of them. If a government department or a public authority transgresses the law laid down by Parliament, or threatens to transgress it, can a member of the public come to the court and draw the matter to its attention? He may himself be injuriously affected by the breach. So may thousands of others like him. Is each and every one of them debarred from access to the courts? The law is clear that no one of them can bring an action for damages, unless he has suffered special damage over and above everyone else. That was settled in 1535 in a case in the Year Books: (1535) Y.B. Mich. 27 Hen. 8, F. 27, pl. 10 translated by Mr. C. H. S. Fifoot in History and Sources of the Criminal Law (1949), p. 98. That rule was laid down in order to avoid multiplicity of actions. The argument was put in this way: "If one of those injured were allowed to sue, a thousand might do so": and that was considered intolerable. Sir William Blackstone in his Commentaries (17th. ed., Book IV, p. 166), said:

"... it would be unreasonable to multiply suits, by giving every man a separate right of action, for what damnifies him in common only with the rest of his fellow-subjects."

But does this rule - which prevents anyone suing for damages - also prevent any member of the public from seeking a declaration or an injunction? Those are discretionary remedies to which no one has a right, but which the court can grant if it thinks fit. The usual course, no doubt, is for the member of the public who is aggrieved to go to the Attorney-General and ask him to intervene - either ex officio or by granting leave to use his name in a relator action. In all proper cases the Attorney-General will, no doubt, give his leave. But it is a matter for his discretion. Suppose that, in a very rare case, he exercises his discretion wrongly and declines to intervene for no good reason or on entirely wrong grounds: or suppose he is away and cannot be reached in time, or supposing that the machinery works too slowly. I do not suggest that it was so in this case. I only put the point so as to test the position. But before doing so, it is necessary to consider the role of the Attorney-General in these matters.

The role of the Attorney-General

It is settled in our constitutional law that in matters which concern

the public at large the Attorney-General is the guardian of the public interest. Although he is a member of the government of the day, it is his duty to represent the public interest with complete objectivity and detachment. He must act independently of any external pressure from whatever quarter it may come. As the guardian of the public interest, the Attorney-General has a special duty in regard to the enforcement of the law.

His duty has been thus stated by members of this court who, each in his turn, had held the office of Attorney-General. In 1879 Baggallay L.J. said:

"It is the interest of the public that the law should in all respects be respected and observed, and if the law is transgressed or threatened to be transgressed ... it is the duty of the Attorney-General to take the necessary steps to enforce it, nor does it make any difference whether he sues ex officio, or at the instance of relators": see Attorney-General v. Great Eastern Railway Co. (1879) 11 Ch.D. 449, 500.

In 1924, Sir Ernest Pollock M.R. repeated those very words with approval: see Attorney-General v. Westminster City Council [1924] 2 Ch. 416, 420. To these I would add the words of Lord Abinger, who had himself been Attorney-General:

"... it has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a court of justice, where any real point of difficulty that requires judicial decision has occurred": see Deare v. Attorney-General (1835) 1 Y. & C.Ex. 197, 208.

Before the Attorney-General gives leave, however, there are certain regulations which any private individual is required to observe. These regulations go back a long time and are set out in Robertson's Civil Proceedings by and against the Crown (1908), p. 835, and repeated in the Supreme Court Practice (1973) (notes to Ord. 15, r. 11). The member of the public must instruct solicitor and counsel. He must get them to prepare a writ and statement of claim. The counsel must certify that "this writ and statement of claim are proper for the allowance of Her Majesty's Attorney-General." The solicitor must certify that the relator is a proper person to be relator, and that he is competent to answer the costs of the proposed action.

It sounds to me that that would all take some time, as well as money, but the Attorney-General assured us that it could be, and had been, carried through, sometimes within minutes, and certainly within hours.

At any rate, when all that is done and the Attorney-General gives his consent, he virtually drops out of the proceedings. As Sir Jocelyn Simon, when he was a law officer, told the House of Commons, December 1, 1960: "Although the Attorney-General is the nominal plaintiff in the action, in reality the action is brought by the complainant." Once the consent of the Attorney-General is obtained, the actual conduct of the proceedings is entirely in the hands of the relator who is responsible for the costs of the action.

In all this, however, one thing is clear. In exercising his functions, the Attorney-General is not subject to the control of the courts. It was so laid down by Lord Halsbury L.C. in London County Council v. Attorney-General [1902] A.C. 165, 169, when he said:

"... but the initiation of the litigation, and the determination of the question whether it is a proper case for the Attorney-General to proceed in, is a matter entirely beyond the jurisdiction of this or any other court. It is a question which the law of this country has made to reside exclusively in the Attorney-General."

The role of the private individual

Such is the relator procedure by which any member of the public can, in a proper case, take steps to secure that the law is observed. It is a procedure which should be taken in every case where it is reasonably available. But the question that arises for consideration here is: Suppose a case should arise in which the relator procedure is not reasonably available. Suppose the machinery works too slowly. In the present case Mr. McWhirter told us that the Attorney-General refused to take action ex officio, and that he, Mr. McWhirter, considered the matter was so urgent that he came direct to this court. Was he entitled to come here? Test it by an extreme case. Suppose the Attorney-General refuses to give leave for no good reason or on entirely wrong grounds, mistaking, maybe, the interpretation of a statute. Would a private individual be entitled to come to the court? Such a situation was not in Lord Halsbury L.C.'s mind in 1902. But it happened in 1910. There was a great case then in which this court, to quote the learned author, "struck a blow which is still reverberating 50 years later": see Edwards on The Law Officers of the Crown (1964), p. 295.

In such a situation I am of opinion - and I state it as a matter of principle - that the citizen who is aggrieved has a locus standi to come to the courts. He can at least seek a declaration. That is the view expressed in a resourceful book to which Mr. Roger Parker referred us, Zamir, The Declaratory Judgment (1962), p. 275. It is based on the celebrated case of Dyson v. Attorney-General [1911] 1 K.B. 410; [1912] 1 Ch. 158 to which I have just referred. In 1910 the Commissioners of Inland Revenue sent out a questionnaire which they required eight millions of people to answer. It was illegal. It was contrary to an Act of Parliament. A private individual, Mr. Dyson, objected to it. He came to the courts and sought a declaration. At that time he could not sue the Commissioners of Inland Revenue themselves. So he sued the Attorney-General as representing them. The Attorney-General regarded his action as frivolous and vexatious. He sought to strike it out [1911] 1 K.B. 410. It is plain that he would never have given leave to Mr. Dyson to bring the action. This court refused to strike the action out. It declared that the questionnaire was illegal and that Mr. Dyson was under no obligation to comply with it.

Since that case there have been many others, such as Prescott v. Birmingham Corporation [1955] Ch. 210, when a private individual has successfully sought a declaration against a public authority; and there

is a valuable discussion of the whole question by Professor S. A. de Smith in Judicial Review of Administrative Action, 2nd ed. (1968), pp. 464 - 479.

In the light of all this I am of opinion that, in the last resort, if the Attorney-General refuses leave in a proper case, or improperly or unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public who has a sufficient interest can himself apply to the court itself. He can apply for a declaration and, in a proper case, for an injunction, joining the Attorney-General, if need be, as defendant. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizens of this country: so that they can see that those great powers and influence are exercised in accordance with law. I would not restrict the circumstances in which an individual may be held to have a sufficient interest. Take the recent cases when Mr. Raymond Blackburn applied to the court on the ground that the Commissioner of Police was not doing his duty in regard to gaming or pornography. Mr. Blackburn had a sufficient interest, even though it was shared with thousands of others. I doubt whether the Attorney-General would have given him leave to use his name: see Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118, 137, 139. But we heard Mr. Blackburn in his own name. His intervention was both timely and useful.

It was suggested that if Mr. McWhirter could come to the court complaining of indecent films, so could others come objecting to boxing films or anyone else who had his own particular dislikes. But none of those could get past the sieve afforded by the Attorney-General's office. None of those would be able to produce the slightest evidence that the Independent Broadcasting Authority had not fulfilled their statutory duty. But as Mr. McWhirter's case was presented to us, it was of a highly exceptional character. There was evidence from which it could be inferred that the Independent Broadcasting Authority had not done their duty: that the Attorney-General had refused to take action himself ex officio: and that there was no time to do all the things necessary for a relator action. It was a case of the last resort: and I hold that we were entitled to hear him as we did. I have said so much because I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then in the last resort any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced. But this, I would emphasise, is only in the last resort when there is no other remedy reasonably available to secure that the law is obeyed.

It was suggested that the person aggrieved should approach the Minister so that he should give a notice under section 18 (3) of the Television Act 1964, or should approach his Member of Parliament so that he could ask a question in the House. But those do not seem to me to be remedies that are reasonably available. They are not so accessible. They are not so speedy or effective. They are not so independent as the courts of law.

This present case

On the case, as it appeared to us on January 16, 1973. Mr. McWhirter

had no other remedy reasonably available to him. But the Attorney-General has thrown more light on the circumstances. It appears that at about 2 o'clock on the Monday Mr. McWhirter was told that the Attorney-General would not take action ex officio, but that this was without prejudice to any application that Mr. McWhirter might wish to make for the Attorney-General's consent to relator proceedings. There was time then for Mr. McWhirter to get the procedure moving. During the rest of that day and the next morning, he could have instructed solicitors and counsel, and sought leave: and if it was a proper case he would have got leave. But Mr. McWhirter deliberately decided not to take that course. He came straight to this court. That was a mistake. There was another remedy reasonably available to him, and he did not take it.

So he was in the wrong. But it has all been cured now. He took steps to get the leave of the Attorney-General, as we intimated he should do. Counsel gave his certificate that it was a proper case for leave. The Attorney-General has told us that he would give leave. The necessary amendment can be made at any time, and will date back retrospectively to the issue of the writ: see Caldwell v. Pagham Harbour Reclamation Co. (1876) 2 Ch.D. 221. So all is now in order from the beginning. I turn, therefore, to the substantive question. Should the injunction be continued?

In section 3 of the Television Act 1964, Parliament specified several requirements with which programmes should comply. The first is:

"... that nothing is included in the programmes which offends against good taste or decency or is likely to ... be offensive to public feeling."

I would stress the words "nothing is included." Those words show that the programme is to be judged, not as a whole, but in its several parts, piece by piece. If a documentary dealt with life in the underworld on a restrained level, but then included by way of illustration 30 seconds of pornographic photographs, it would be a breach of the statutory requirements. It would not be cured by words being said at the beginning that "some parts of this programme may be offensive to some people." Viewers may switch on in the middle of the programme, and, in any case, the statute does not permit of a warning being an excuse for non-compliance.

Such being the statutory requirements, Parliament puts a duty on the Independent Broadcasting Authority to "satisfy themselves" that they are complied with "so far as possible." This does not mean, or course, that the members of the authority are themselves to see every programme or go through it. They can and must leave a great deal to the staff. They are entitled in the ordinary way to accept the advice of their staff on the programmes in general, and on any programme in particular: see Lewisham Metropolitan Borough and Town Clerk v. Roberts [1949] 2 K.B. 608, 621 and 629. It is only in a most exceptional case that they may be expected to see a programme for themselves in order to be "satisfied." But there are such exceptional cases, just as there are exceptional cases when a Minister must satisfy himself personally. It depends how serious is the case: see Liversidge v. Anderson [1942] A.C. 206, 223-224.

Was this film a programme which they ought to have seen for themselves?

Let me state the circumstances. (i) The programme was prepared by one of the programme companies called A.T.V. Network Ltd. In its original form, the staff of Independent Broadcasting Authority were so unhappy about it that they thought that the programme should be seen by the authority itself. (ii) A.T.V. Network Ltd. thereupon deleted some of the material and introduced the film with a warning that "some people may find Warhol's views unusual and possibly offensive." (iii) In the light of those modifications, the Director-General and staff of the Independent Broadcasting Authority felt able to recommend that the programme be transmitted as the usual network documentary on Tuesday, January 16, 1973, at 10.30 p.m. They made an intervention report to that effect. The Independent Broadcasting Authority accepted that recommendation but did not see the film themselves. (iv) On January 12 or 13 journalists were invited to a preview of the film. (v) On Sunday, January 14, 1973, and Monday, January 15, some of the journalists in their papers made severe criticisms of the film. If their accounts were correct, it included incidents which were indecent and likely to be offensive to public feeling. The "News of the World," in particular said that "millions of viewers will find its frankness offensive." (vi) On reading those newspaper reports, the chairman and directors of one of the channels, Anglia Television, determined to have the film screened privately for them to see. They came to the unanimous conclusion that the programme, if broadcast, was likely to be offensive to public feeling. They announced that they were not going to supply it for broadcasting. (vii) The Independent Broadcasting Authority, however, did not see it. Some of them had an informal discussion with the senior staff, and, on their assurance, were prepared to let it be broadcast.

The question is: Did the Independent Broadcasting Authority do what was sufficient, or ought they not to have seen the film for themselves, as the chairman of Anglia Television and their directors did? When the matter was brought before this court on Tuesday, January 16, it appeared that there was a prima facie case for saying that they had not done what was reasonably sufficient to satisfy themselves that "so Far as possible" there was nothing indecent or offensive in the programme. It was better to postpone its showing for a little while, using a substitute film, rather than let it go out that evening. Meanwhile, the matter could be properly considered in all its aspects, both as to the locus standi of Mr. McWhirter and as to the fulfilment of the statutory requirements.

In the circumstances I think that the Independent Broadcasting Authority ought to have seen the film for themselves on the Monday or Tuesday before passing it. Since that time they have done so. So have the General Advisory Council. The members of the general council are drawn from a broad cross section of the people, and are as representative and responsible a body as you could find anywhere. The general council, by a majority of 17 to one, passed this resolution:

"The council felt that the staff were right to advise the authority that the film which they had seen was suitable to be shown at the suggested time."

The members of the Independent Broadcasting Authority are likewise most

representative and responsible. Ten out of the 11 saw the film and unanimously reaffirmed the decision

"that the programme is suitable for transmission in the 10.30 p.m. documentary slot, and that it is satisfied that the programme complies with the requirements of section 3 (1) (a) of the Television Act 1964."

If those decisions are to be accepted as valid, they are decisive. The Independent Broadcasting Authority are the people who matter. They are the censors. The courts have no right whatever - and I may add no desire whatever - to interfere with their decisions so long as they reach them in accordance with law: see Secretary of State for Employment v. ASLEF (No. 2) [1972] 2 Q.B. 455. Mr. Le Quesne submitted, however, that the Independent Broadcasting Authority had misdirected themselves. He said that they had regarded the film as a whole, and not piece by piece as the statute required. Alternatively, he said that their decision was one to which they could not reasonably have come.

To test these submissions we ourselves saw the film. I hesitate to express my own views upon it, but it is part of the evidence before us and I feel I should do so. I can understand that some people would think it entertaining, but I must speak as I find. Viewing it as a whole, the film struck me as dreary and dull. It shows the sort of people - the perverts and homosexuals - who surround Mr. Warhol and whom he portrays in his work. But, taken as a whole, it is not offensive. Viewing it piece by piece, there are some incidents which seemed to me to be inserted in an attempt to liven up the dullness - an attempt which did not succeed, at least so far as I was concerned. These are the incidents which struck the newspaper reporters and were described by them, and which, no doubt, struck the chairman of Anglia Television and his colleagues. They only form about one-tenth of the whole. Speaking for myself, I would take the same view as the newspaper reporters and the chairman and directors of Anglia Television. I should have thought that those individual incidents could be regarded as indecent and likely to be offensive to many. But my views do not matter, unless they go to show that the Independent Broadcasting Authority misdirected themselves or came to a conclusion to which they could not reasonably come. I am certainly not prepared to say that. Quite the contrary. On seeing the film, they came to a decision to which they might reasonably come, and this court has no right whatever to interfere with it.

I would therefore lift the injunction. The programme can be shown as soon as can be arranged. No doubt many will wish to see it to form their own view. Some will write to the Independent Broadcasting Authority and tell them. It should give the Independent Broadcasting Authority a good guide to public feeling, and so help them in the difficult decisions which they have to make in the future. But they should always remember that there is a silent majority of good people who say little but view a lot. Their feelings are to be respected as well as those of the vociferous minority who, in the name of freedom, shout for ugliness in all its forms.

So let the programme be shown. We will not stop it.

CAIRNS L.J. When Mr. McWhirter appeared before this court on January 16 to appeal against the refusal by Forbes J. to grant him an interlocutory injunction, I was of the opinion that he was not entitled to the relief he sought because his action was an action aimed at enforcing the public duty of the defendants and not at protecting any private right of the plaintiff. That being so, the proper plaintiff would be the Attorney-General suing on behalf of the public as a whole and not Mr. McWhirter or any other private individual.

I remain of opinion that that is the law. The cases that have been cited - Boyce v. Paddington Borough Council [1903] 1 Ch. 109; Attorney-General ex rel. Rhondda Urban District Council v. Pontypridd Waterworks Co. [1908] 1 Ch. 388 and Thorne v. British Broadcasting Corporation [1967] 1 W.L.R. 1104, all support it. There is no single authority, and no sentence in any judgment, that points the other way.

What the majority of the court held on January 16 was that when the matter was one of urgency, when it appeared to the court that there had been no reasonable opportunity of obtaining the fiat of the Attorney-General for a relator action, an injunction to cover a short period could be granted on the application of the individual plaintiff. It did not seem to me then and does not seem to me now that this is a sustainable proposition. As is shown by Thorne's case, the plaintiff has no cause of action; the defendants could have moved to have the writ set aside on that ground. There would then have been no proceedings in being within which interlocutory relief could have been sought. It cannot be supposed that an action which the plaintiff has no right to bring can enable him to get an injunction merely because the defendants have not had an opportunity of getting it struck out. Mr. Le Quesne suggested that there was an analogy with R.S.C., Ord. 29, r. 1 (3), under which an injunction can be obtained before action brought by a person who undertakes to issue a writ. That rule is clearly not directly applicable here because a writ had in fact been issued, and if it had not it would be quite improper for the court to accept an undertaking by a person to issue a writ, naming himself as plaintiff, claiming relief to which he was not entitled. The suggestion made by counsel was rather that the undertaking should be an undertaking to apply for relator proceedings. This, however, affords no parallel to Ord. 29, r. 1 (3), or to the common law rule to the same effect which existed before the Judicature Act 1873. The issue of a writ by a plaintiff for relief which he is entitled to claim is a purely ministerial act; whether he applies to the judge for an injunction before or after he had gone to the central office to issue his writ is a difference of form and not of substance. It is very different with the application to the Attorney-General for relator proceedings. There is no right to obtain his fiat. It is a matter for his absolute discretion whether he gives it or not, and in this function he is controllable only by Parliament and not by the courts: London County Council v. Attorney-General [1902] A.C. 165, 168-169 per Lord Halsbury L.C., and at p. 170 per Lord Macnaghten.

In adhering to the view that the Attorney-General must be a party to the action, and in holding that no application for an injunction can be made before he is joined (or at least before he has given his fiat, which then creates a situation akin to that dealt with in Ord. 29, r. 1 (3)), I do not

consider that I am upholding a mere archaic piece of red tape. Everybody, and every statutory or other authority, is liable to be sued by any person who claims that his individual interests have been interfered with. It does not follow that a person or authority should be liable to action at the suit of any person (and it might be a multitude of different people bringing separate actions) to enforce a public duty. If there is a difference of opinion between an individual and an authority as to what the authority ought to do or refrain from doing, there may well be a difference of opinion between members of the public about it. The requirement for the consent of the Attorney-General is a useful safeguard against merely cranky proceedings and against a multiplicity of proceedings. While there may be cases in which a person seeks to restrain some action of an authority and has no time or money or opportunity to take the steps necessary to obtain the Attorney-General's consent, I think this will be rare, and on the whole the risk of damage to the public interest by allowing a right to apply for relief to such a person without such consent is greater than the risk of damage to the public interest (which is all we are concerned with) in withholding it. Take this case. If the plaintiff's contention were right, he might have obtained his injunction from a judge in chambers on an ex parte application at a moment leaving no time for an appeal. The application might have been based on apparently convincing but in fact misleading newspaper reports. The programme might really be an innocent one, and the cost of cancelling it far more than the plaintiff could afford to pay. And millions of viewers might be deprived of pleasure and instruction against their will.

The weapon of the interlocutory injunction is at all times a powerful one, the use of which involves risks. It is a valuable weapon for the protection of private rights and protecting the welfare of children. While it is a weapon that may well have its uses in relation to the protection of the public interest, I think it is right that it should not be immediately available for that purpose to any member of the public. However that may be, I am quite satisfied that the present law does not allow such an application, and if a change of the law is desirable it is for Parliament to say so.

If ever a case arose in which it appeared that the Attorney-General had failed to give proper consideration to an application for his fiat, or had refused it on wholly improper grounds, then consideration would have to be given to the question of whether any remedy is available other than control by Parliament as envisaged by Lord Halsbury L.C. No such problem arises in the present case.

Since I consider that Mr. McWhirter's action and his application for an injunction and his appeal to this court were all misconceived, I should be inclined to refuse to answer the hypothetical question of whether in other circumstances the evidence before the court on January 16 was such as to justify the grant of an injunction. But the matter has been fully argued and the parties are anxious to have an answer. I will simply say that as the description in the newspaper cuttings was in my view sufficient evidence, at any rate on an urgent interlocutory application, that indecent material was to be broadcast, and as there was evidence that the Independent Broadcasting Authority had not seen the film before giving their consent to its being shown, I consider that we were then entitled to take the

view that the authority had not complied with their duty under section 3 (1) (a) of the Act of 1964.

It is, however, necessary to consider whether an injunction should be granted in a relator action on the evidence now before this court. This includes the two affidavits of Lord Aylestone and the view which the members of the court have had of the film.

I adhere to the opinion which I formed on the basis of the newspaper descriptions and which I found amply confirmed by seeing the film, that in my opinion it contains a substantial amount of indecent material. It is a matter of surprise to me that ten members of the authority were unanimously of the opinion that it does not offend against good taste or decency; and a matter of greater surprise that 17 out of 18 members of the General Advisory Council took the same view of it. But they did.

The position here is not comparable to that which exists when a court holds that the verdict of a jury is perverse; because the court there knows nothing of the character or background of individual members of the jury and 11 rather weak jurymen may have been persuaded by one prejudiced strong-minded man. Here we know that the people who formed this opinion are intelligent, cultured people with a wide range of types of background. To say that they must all but one have applied some wrong test or that they must themselves be lacking in good taste and decent feeling would be a bold statement. The authority are the censors; I am not. The General Advisory Council has the duty of advising them; I have not.

The strongest part of Mr. Le Quesne's argument was, I thought, the contention based on certain passages in Lord Aylestone's first affidavit and on some of the documents produced that the authority, their staff and advisers, had directed their minds only to the programme as a whole, coupled with the warning broadcast at the beginning of it, and may have overlooked their duty to ensure as far as possible that nothing indecent is included in a programme. I do not, however, in the end think that that would be a proper inference. I observe in particular that in a letter written by Lord Aylestone in March 1972, he drew the attention of programme companies to an increase in the introduction of bad language into programmes, and I also bear in mind that when the staff of the Independent Broadcasting Authority considered the first version of the Andy Warhol programme they recommended the deletion of parts that appeared to them objectionable. It seems to me clear that neither the authority nor their staff limited their consideration to the general effect of the programme as distinct from examining its various parts. I would therefore not grant an injunction in relator proceedings.

LAWTON L.J. When at about 3 p.m. on January 16, 1973, Mr. McWhirter applied to this court for an interim injunction against the Independent Broadcasting Authority to restrain them from broadcasting at 10.30 p.m. the same evening a programme about a man named Andy Warhol, it seemed to me on the evidence and information then available that the court might have to solve the grave and important constitutional problem, if it could, of how a powerful statutory body like the authority could be made to obey the law if the Attorney-General was not willing to act ex officio, as the court was told correctly he was not, and the

shortness of time made what I then believed to be the complicated and cumbersome procedure of a relator action unavailable. Mr. McWhirter put before the court three newspaper reports which gave factual details about the contents of the programme. These reports were not the best evidence of what was in the programme but under the rules of court they were admissible in support of an interlocutory application; and when at the court's invitation the authority appeared at 5 p.m., represented by counsel, it was not suggested on their behalf that these factual details were untrue or inaccurate.

Counsel then submitted that Mr. McWhirter, as a private citizen, had no right in law to apply to the court to stop the authority from breaking the law (if they were going to do so, which they denied) by broadcasting a programme which did not comply with section 3 of the Television Act 1964. As in my judgment Mr. McWhirter's evidence established a prima facie case that the authority were about to break the law, and as no irreparable damage would be done to them if they were ordered not to broadcast the programme that evening, I agreed with Lord Denning M.R. that an interlocutory injunction should be granted pending a full examination of the legal position, which it was impossible to make there and then.

At a hearing starting on January 25, 1973, the court had the help of counsel for both Mr. McWhirter and the authority and of the Attorney-General himself. In the course of this hearing the Attorney-General gave the court information about the attitude which he and his predecessors in modern times have taken towards relator actions, and the speed with which he can and will act in such actions if he is satisfied that the relator has a case which is worthy of consideration by a court. Much of this information is not available, as far as I know, in any of the practitioners' textbooks. In the present case Mr. McWhirter was told about midday on January 15 that the Attorney-General would not act ex officio but that his refusal was without prejudice to Mr. McWhirter's right to ask for his co-operation in a relator action. Mr. McWhirter elected not to make any request for relator proceedings. The next day he issued his writ in his own name and came before this court as a private citizen. Had he asked the Attorney-General for leave to start a relator action forthwith, and had the Attorney-General been satisfied both as to the urgency of the matter and the prima facie merits of his case, he could have appeared before the court without there being any challenge to his standing. He decided to proceed on his own. There has been a challenge, and in my judgment the challenge must be held to have been established.

The leading authorities on the right of a private citizen to apply to the court to ensure that the law is obeyed have been reviewed by Lord Denning M.R. I have only this to add. The problem of what to do about powerful persons or bodies who seem to be above the law is not new. So far, the flexibility of our constitution has been such that the weapons used for cutting down the over-mighty to size have varied from age to age. The early Tudors used their executive powers through the prerogative courts to curb the feudal barons. In the last two centuries Parliament has used its legislative powers to restrain the misuse of economic strength, and in the last 50 years the courts by means of the

so-called prerogative orders of certiorari, mandamus and prohibition and by the granting of injunctions and the making of declarations have succeeded in keeping statutory bodies within the limits of the law and of making them perform their duties according to the law.

The courts, however, cannot initiate action: they have to be moved to action, and they can only be moved by private citizens or corporations who have suffered some harm or damage over and above that suffered by the public at large. This might be a serious flaw in our constitution were it not for the office of the Attorney-General who by constitutional convention puts himself above politics in his appearances before the courts and in his administration of the law. As long as he is prepared to act ex officio whenever he himself considers that a statutory body or even a Minister has been flouting the law or to give consent to the starting of a relator action on the application of a private citizen if he is satisfied that there is a case worthy of consideration, members of the public are reasonably well protected against abuses and misuses of power. Further, there is an advantage in having him as a sieve for complaints: statutory bodies such as the Independent Broadcasting Authority can get on with the job Parliament has given them to do without having to occupy themselves with fighting off interfering busybodies. I agree with Lord Denning M.R. that if at any time in the future (and in my judgment it is not the foreseeable future) there was reason to think that an Attorney-General was refusing improperly to exercise his powers, the courts might have to intervene to ensure that the law was obeyed.

I turn now to the main issue, it having been agreed by the Attorney-General that if the court decided against Mr. McWhirter on status he would give his consent to relator proceedings. In order to avoid an adjournment so that Mr. McWhirter could get his action in proper form, Mr. Parker, on behalf of the authority, argued their case on the basis that relator proceedings had been started.

In my judgment it is important to underline the important differences between the authority, the British Broadcasting Corporation, the theatre and the cinema as sources of entertainment. The duties of the authority are set out in a statute: the duties of the other institutions are not. If the latter broadcast, perform, or show anything to which objection is made, they must be judged by the law which applies generally; but if objection is made to what the authority does, the courts have to construe and apply the Television Act 1964.

It has not been suggested by counsel for the authority at any stage of these proceedings that the courts have no jurisdiction to restrain the authority from breaches of that Act. Their submissions have been directed to establishing the limits of the court's jurisdiction to interfere and that this case does not come within those limits. My brethren have dealt with the principles of law applicable. I have nothing to add on the law. On the application of the law to the facts of this case I would like to make a few observations.

I accept Mr. Parker's submission that the authority when satisfying themselves that programmes comply with section 3 (1) of the Television Act 1964 are entitled to rely on evidence and that there is no statutory obligation on them to look at every programme. The evidence which they

can rely upon includes the reports of members of their staff, and in most cases such evidence would be the best and only evidence before them. They should, however, remember that such reports are only evidence. If at any time credible evidence to the contrary effect to a staff report becomes available, then they should look at the programme themselves and make up their own minds. In my judgment this is what they should have done, and did not do, on January 15, 1973, when the press reports came to their notice. They are not bound to pay overmuch attention to adjectives used in newspapers to attract the attention of readers; but when newspaper reports contain factual details, as the ones relied on by Mr. McWhirter did, the position is different. After the interlocutory injunction had been granted, both the authority and their General Advisory Council each looked at the programme separately, and with one dissentient on the General Advisory Council they all agreed that it complied with what they understood to be the requirements of the Act. Mr. Le Quesne on behalf of Mr. McWhirter submitted that there was evidence that they had misdirected themselves as to the construction of the Act. I am not satisfied that they did. It follows that there remains only one question to be answered. Was their decision to broadcast the programme, if the court discharged the interlocutory injunction, one which no reasonable authority could have made? In simpler terms, did they make a perverse decision?

Before this court could adjudge that the authority had made a perverse decision there would have to be very strong evidence indeed. The only evidence we have had, besides the newspaper reports, has been a showing of the programme itself; and now that it has been put in evidence it has become the best evidence, and the newspaper reports can be put aside.

In fairness to the authority, it is right to point out that there is some basis for their chairman's complaint made in an affidavit sworn on January 24, 1973, that by stressing certain incidents an entirely false impression of the programme had been given. It lasts about 45 minutes: the incidents, five in number, to which reference was made in the newspaper reports, occupy between 10 and 12 per cent. of the running time. Three lasted about 45 to 60 seconds each; one which showed a woman trying to apply paint to a piece of paper with one of her breasts lasted between one and two minutes; and the remaining incident, which was concerned with a conversation having homosexual implications between two men, one naked, sharing a bed, lasted about two and a half minutes. In my judgment these incidents provided strong evidence that the authority intended to broadcast matter which, in the words of the statute, offended "against good taste or decency"; but I have reminded myself that my judicial task is to adjudge whether my assessment of the evidence is the only reasonable one, if it be a reasonable one at all. For this purpose it is necessary to consider the programme as a whole.

It purports to show what kind of artistic and film work Andy Warhol does and the kind of people he mixes with. In so far as it shows his artistic work there can be no doubt that many would find it attractive. His film work was illustrated by extracts from films he had made: three of the incidents complained of came from these extracts. Finally there

were shots showing his friends and associates. Most of these people, who included the woman using one of her breasts to apply paint to paper, seemed very weird indeed. A possible appreciation of the programme could be that it was an attempt to give the television viewing public an opportunity of seeing something of, and understanding what, in modern idiom, has come to be called a "sick society." If this was the intention the distasteful and indecent incidents become relevant. It would be no answer to a charge of disregarding the Television Act 1964 for the authority to say that their motives in broadcasting indecent matter were worthy; but whether an incident is indecent must depend upon all the circumstances, including the context in which the alleged indecent matter occurs. Save for the incident involving the woman, which had aspects of both bathos and pathos, all the others were concerned with indecency in words, not in acts, and show how depraved some people can become. I am far from being satisfied that the major part of the British public is willing to have broadcast to their homes the kinds of conversations which occur in this programme; the authority seem to think they are. They may be right. In the realm of good taste and decency, whose frontiers are ill defined, I find it impossible to say that the authority have crossed from the permissible into the unlawful. They have got perilously near to doing so, and in a society with constantly changing standards of outlook and behaviour they would be unwise to assume that the frontiers will always be pushed nearer licentiousness, as the history of morals in this country shows. The ribaldry and bawdiness which was enjoyed at Drury Lane Theatre up to the end of the reign of Queen Anne had gone by David Garrick's time some 50 years later: his public liked plays with a marked moral flavour.

As I can envisage, albeit with difficulty, a reasonable authority thinking that this programme complied with section 3 (1) of the Television Act 1964, I cannot say that their decision to broadcast it was perverse. I would discharge the injunction.

Solicitors: Trower, Still & Keeling; Allen & Overy; Treasury Solicitor as amicus curiae.

M. M. H.