BROOK v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British national, born in 1949 and living in Surrey, England. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who has run a company specialising in the research, design and manufacture of equipment for the broadcasting industry since 1967, wanted to set up a short wave radio station which would broadcast scientific, technological and media news. None of his proposed programmes had any political content, but were aimed at an audience interested in the technical side of radio. The BBC World Service has a short wave radio licence to broadcast in the United Kingdom and a few other independent stations are also licensed, for example, Voice of America. The applicant wrote to the Foreign and Commonwealth Office on 5 August 1986 (having been told on the telephone that this was the relevant department) to apply for a short wave radio licence. Over the next ten years, the applicant wrote about 150 letters in pursuit of his licence to the Radio Authority, the Home Office and other relevant entities. The Government's line of reply was to acknowledge the applicant's interest without giving any definitive response to his request. On 18 March 1997, the Department of National Heritage wrote to the applicant saying: "...the Department continues to consider the broadcasting policy issues which your proposal for the licensing of short wave frequencies has raised. I am sorry that there has been such a long interval since your original proposal was received and that you still await a decision. ... While I am sorry that the resolution of other domestic broadcasting policy issues have been given greater priority than your request to use short wave frequencies, I am not in a position to give you a firm decision on your proposal. The Department is, however, looking at your ideas and we are discussing them with the Radiocommunications Agency which has overall responsibility for the use of the radio spectrum. I shall write to you again when a decision has been taken."  Following this letter, the applicant applied for judicial review of the failure by the Department of National Heritage to take a final decision. In his affidavit to the High Court, the applicant explained that setting up a station would be a much more difficult prospect now and he would no longer wish to do so, but that this was only as a result of the Government's refusal to reach a clear decision at an early stage. Leave to apply was refused by the High Court on 26 June 1997, there being no arguable basis for judicial review. Mr Justice Tuckey, refusing leave, observed: "Whilst I can understand your frustration at the failure of the authorities concerned to consider your proposals more favourably and speedily to the point where (as I understand it) it is now really too late to do anything, I am afraid I can see no arguable basis for judicial review." B. Relevant domestic law and practice The Radiocommunications Agency (“the Agency”), has overall responsibility for the management of the civil electromagnetic spectrum in the United Kingdom, and an obligation to ensure that it is used efficiently. The Agency represents the United Kingdom at the International Telecommunications Union (“ITU” – an agency of the United Nations), who order the way in which the radio spectrum can be shared effectively between nations, such that one country’s transmissions do not interfere with those of another. The Agency also has responsibility for deciding how the civil use of the radio spectrum in the United Kingdom is divided between different users, such as broadcasting, telecommunication, public safety services (Police, Ambulance etc) and hobby radio, etc. A quantity of the radio spectrum is allocated for radio broadcasting purposes. This is in turn divided by the Secretary of State for Trade and Industry (under the provisions of the Broadcasting Acts of 1990 and 1996) between the BBC (the public service broadcaster) and the Radio Authority (“the Authority”). The Authority is a body established by statute (section 83 of the Broadcasting Act 1990), and is responsible for licensing and regulating independent radio services within the United Kingdom. It has statutory duties to increase choice for different tastes and interests, to encourage range and diversity and to ensure fair and effective competition in the provision of sound broadcasting. All radio transmissions require either a licence or a licence exemption under the Wireless Telegraphy Act 1949 (as amended) and, for commercial broadcasts, a licence under the Broadcasting Acts of 1990 and 1996. Licences are awarded by the Authority under open competition. In general terms national licences are considered on the basis of the highest cash bid, whereas the award of local licences takes into account the needs of the community to be served. The Authority seeks the agreement of the BBC and the Agency, so that neither United Kingdom broadcasting services nor non-broadcasting users of the radio spectrum will be adversely affected. In addition the agreement of neighbouring countries is sought. After these negotiations, the Agency is able to issue a licence under the Wireless Telegraphy Act 1949. This system of licensing does not extend to short wave frequencies. Under section 97 of the Broadcasting Act 1990, it is a criminal offence to provide an independent radio service without an appropriate licence.