The Big Fat Gypsy Judicial Review

26 February 2015 by Jim Duffy

Traveller Movement v Ofcom and Channel 4, [2015] EWHC 406 (Admin), 20 February 2015 – read judgment

One of the nation’s great televisual fascinations last week became the unlikely subject of an Administrative Court judgment that demonstrates the limits of common law standards of fairness, as well as the lightness of touch applied by the courts when reviewing the decision-making of the media regulator.

This claim was brought by Traveller Movement (TM), a group claiming to represent travellers and gypsies in the UK. In a complaint to Ofcom made in 2012, TM had asserted that episodes of Big Fat Gypsy Weddings and Thelma’s Gypsy Girls were unfair, portraying Irish Traveller, English Traveller, Gypsy and Romany people (ITG&R) in a negative and racially stereotypical way. This was said to have caused harm, particularly to children and young people. I assume for present purposes that readers of this blog are fully acquainted with both programmes. If not, you can get started here.

TM’s concerns included the depiction of children “repeatedly and at length in a highly sexualised manner which was harmful, offensive and irresponsible”, as well as scenes featuring “grabbing”. This was described by Mr Justice Ouseley as involving “a young man who, taking a fancy to a girl, grabs her against her will, perhaps dragging her away, to force her to kiss him or accept kissing from him, portrayed sometimes as a form of rough courtship”.

TM had also gotten its hands on an email (somewhat unhelpful to Channel 4) in which an advertising executive had charged a photographer for the upcoming BFGW billboard campaign with getting “gypsier results”. TM had provided Ofcom with two expert reports that referred to harm and offence said to have directly resulted from the programmes.

Ofcom’s decisions

Ofcom took TM’s complaints to amount to allegations of breaches of 1) its Standards Code and 2) its Fairness and Privacy Code.

Ofcom’s conclusion on Standards was that sufficient steps had been taken by Channel 4 to ensure that due care was taken of the emotional welfare of under-eighteens featured, and the programmes did not contain material that could reasonably be considered harmful or likely to cause harm in terms of presenting negative, racist or damaging stereotypes or endorsing prejudice. There was sufficient context to justify any potential offence. The programmes were adjudged not to have been materially misleading and did not depict negative stereotypes applicable to ITG&R communities as a whole.

In its Fairness decision, Ofcom concluded that Channel 4 had taken reasonable care to satisfy itself that the facts were not presented, disregarded or omitted in a way that portrayed the ITG&R communities unfairly.

The challenge

TM directed its fire on what it saw as procedural irregularities in the decision-making on Standards.

Under each procedure, Ofcom had reached a Preliminary View. While under the Fairness procedure, that Preliminary View was communicated to TM so that it had an opportunity to comment on it (an opportunity not taken up), TM was not informed of the Preliminary View reached on Standards. This was only communicated to the broadcaster and to third parties (such as other broadcasters). If the Preliminary View on Standards had been communicated to it, TM claimed that it would have made further representations and produced additional evidence in an attempt to reverse it. It would also have sought the intervention of the Equality and Human Rights Commission.

TM argued, relying on what Lord Denning said in Kanda v Government of Malaya [1962] AC 322, 337-338, that it was unfair for an adjudicatory body to receive evidence or representations from one side behind the back of another.

In response, Ofcom cited Lord Bridge in Lloyd v McMahon [1987] AC 625, 702, who said that

“The so-called rules of natural justice are not engraved on tablets of stone… [W]hat the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.”

Here was the problem for TM. Ouseley J highlighted differences between the kind of decision being made under each procedure, and distinguished Kanda. That case concerned the fairness of a disciplinary procedure in which a police officer had been dismissed as a result of the findings of an adjudicator who had considered a report not provided to the officer in question. Ouseley J noted that:

“[t]here is no complaint that the broadcaster’s representations on the Preliminary View were not provided to the complainant, not least because there were none. Nor was the complainant in the same position as the officer facing dismissal; rather it was the broadcaster and not the complainant who faced potential censure and sanction if the complaint were upheld.”

The judge explained that when an opportunity to comment on a provisional view of an adjudicatory body was offered to one party but not to another, this required justification as, “at first blush it appears unfair“. However, the reason for the difference in approach as between the two procedures showed why the Standards procedure was rational and in principle fair.

Unlike Standards complaints, Fairness complaints are only entertained when made by “the person affected” (section 130 of the Broadcasting Act 1996). The Preliminary View on Fairness affects that person as much as it does the broadcaster, albeit in different ways. Standards complaints, on the other hand, can be made by anyone, even if they have not been affected by it at all. The Standards decision responded to an “objective question” triggered by a complaint as to whether what was broadcast measured up to the Standards Code. The judge agreed that this was rationally differentiated from the Fairness procedure, which was there to “determine the grievance and right of the individually affected complainant.”

The court was not persuaded that Ofcom should, in the circumstances, have exercised its discretion to depart from the usual Standards procedure. TM’s solicitors had been aware from the outset that the Standards procedure would be followed and had not suggested that it was unfair in principle or that there were specific reasons why it ought to have been departed from here. Fairness did not require that the claimant be provided with a “second bite of the cherry” once Ofcom had reached a Preliminary View.

Ouseley J expressed the view, obiter, that if the broadcaster had made a representation on the merits of the Preliminary View, and Ofcom had consequently changed its mind, “I can see that there might be a case that it would be unfair in certain circumstances not to give a complainant, perhaps a representative complainant, the opportunity to make some comment on the change in mind…”. That tentative conclusion was not explained, and seems at odds with the Judge’s recognition of a rational differentiation between the Standards procedure and the rights-focused Fairness mechanism.

Ofcom had expressed uncertainty in its final decision over whether the reaction experienced by children (highlighted in the expert reports) was specifically caused by the programmes. The Claimant complained that the regulator had failed to apply paragraph 1.26 of its Standards complaints procedure:

“If in any case where Ofcom considers that it is necessary to obtain further information to ensure that it can fairly and properly prepare its preliminary view, Ofcom may seek such information before preparing that view.”

But according to Ouseley J:

“It cannot be the case, where Ofcom is not persuaded by the evidence submitted by a complainant that a breach of the Code has been made out, that it should then undertake further investigations so as to ensure that there was no additional evidence of a breach which the complainant had failed to put forward… It is absurd for a complainant to put forward some of its case and then complain that it would have put forward more, if it had been told that what it had put forward so far was not enough.”

Finally, it was not irrational for Ofcom to have concluded that the Claimant had not adduced sufficient evidence that harm had been caused to children by the programmes. The evidence was “at a very general level” and much of it focused upon the programmes’ advertising campaigns, which lay beyond Ofcom’s remit.

In summary, Channel 4 “… was right to submit that it would have to be a very clear case in order for the judgment of the specialist regulator, on a topic involving harm, context and freedom of expression, to be held irrational and so unlawful. This is nowhere near such a case.”

Comment

Aside from the odd passing reference to Channel 4’s Article 10 rights, the Convention was conspicuous by its absence in this case. Instead, the Claimant focused on common law rights in a manner consistent with the approach recently espoused by the Supreme Court in cases like Osborn and Kennedy.

In this instance, however, TM ran up against the same difficulties it would have faced under Article 6 ECHR, where the court would have asked itself whether, in the context of the Standards decision, there was “at stake” a civil right from which would flow the panoply of fair procedure guarantees. The answer would seem to be as inevitable as the Claimant’s defeat via the common law route, the Court having drawn an analytical distinction between the administrative requirements on broadcasting standards and questions of fairness to individuals and groups.

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