R (Traveller Movement) v Ofcom

The Administrative Court has dismissed a judicial review challenge to Ofcom’s decision to reject a complaint about the Channel 4 programmes “Big Fat Gypsy Weddings” and “Thelma’s Gypsy Girls”. The judgment contains an important ruling on the lawfulness of asymmetric procedures where the context is regulatory, not adversarial.

The claimant (“TM”), a representative body of travellers and gypsies in the UK, made a complaint to Ofcom about the programmes. The gist of the complaint was that the programmes were unfair and portrayed Irish Traveller, English Traveller, Gypsy and Romany groups in a negative and racially stereotypical way, causing harm particularly to children and young persons.

Ofcom took the complaint to contain allegations of possible breaches of its Standards Code, and also of its Fairness and Privacy Code. Ofcom dealt with those aspects of the complaint which it considered raised Standards Code issues in accordance with its procedures for such a complaint, and with those aspects of the complaint which it considered raised Fairness Code issues in accordance with the different procedures for that sort of complaint, before issuing the two decisions on the same day. Ofcom found no breach of either Code.

TM challenged Ofcom’s decision on the Standards Code on grounds that the procedure adopted was unfair, since it does not enable complainants to comment on Ofcom’s preliminary view (in effect a draft decision) whereas the broadcaster does have that opportunity. TM further argued that Ofcom should have used its powers to seek further information to enable it to reach a properly considered decision; that Ofcom acted irrationally in not accepting the proffered help of the Equality and Human Rights Commission in considering the complaint; and that the decision not to accept TM’s expert evidence as adequate evidence of harm was irrational.

Ouseley J rejected each of these grounds. His judgment is of most interest on the first ground. He held that it is not necessary in the interests of fairness for parties to have sight of a preliminary or provisional view of an adjudicatory body in order for its decision, or the process as a whole, to be fair. The issue is whether it becomes unfair when the opportunity to comment on it is provided to one party only. That issue depends on the purpose and effect of its being made available to one party only.

In the present context, a Standards complaint can be made by anyone, even someone who has not seen the programme or who makes no claim to have been affected by it. By contrast, the broadcaster is directly affected by the outcome of the complaint, since it may face public censure and sanction. In deciding a Standards complaint, Ofcom is not adjudicating on an issue between parties to an adversarial process, but rather investigating the objective question of whether the material broadcast breaches the Code. In these circumstances, there is nothing unfair or irrational in the Standards complaints procedure requiring Ofcom to provide its preliminary view to the broadcaster but not to the complainant.

The judgment is available at:
http://www.bailii.org/ew/cases/EWHC/Admin/2015/406.html

Dinah Rose QC and Iain Steele acted for Ofcom.