Supreme Court allows appeal where Commission failed to properly assess applicant character due to reliance on past illegal acts.

THE SUPREME COURT

Denham J.

McCracken J.

Kearns J.

[2005/405]

BETWEEN

SCROLLSIDE LTD, TRADING AS “ZED FM”

APPLICANT/APPELLANT

AND

BROADCASTING COMMISSION OF IRELAND

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 6th day of April, 2006

1. Section 6(1) of the Radio and Television Act, 1998, requires the Broadcasting Commission to consider every application for a sound

broadcasting contract for the purposes of “determining the most suitable applicant” to be awarded a contract. Section 6(2) sets out

a series of ten criteria to which the Commission shall have regard in considering applications. The Act envisages that equal weight be

given to each of the ten criteria: indeed, section 5(6) precludes the Commission from placing greater emphasis on any of the criteria

in the absence of prior notice to the parties, which notice was not given in this case.

2. The criteria relevant to these proceedings are contained at s.6(2)(a) of the 1998 Act, which refers to:

“The character of the applicant, or, if the applicant is a body corporate, the character of the body and its directors, manager,

secretary, or other similar officer and its members, and the persons entitled to the beneficial ownership of its shares”.

3. That this means something other than expertise, experience or resources is apparent from s.6(2)(b) which includes the distinct

criteria to which the Commission is to have regard as including:

“The adequacy of the expertise and experience and of the financial resources that will be available to each applicant and the

extent to which the applicant accords with good economic principles”.

4. S.60 of the Broadcasting Act, 2001 amended s.6 of the 1988 Act by inserting the following sub-section 4:-

“In considering the suitability of an applicant for the award of a sound broadcasting contract, the Commission shall have

regard to the overall quality of the performance of the applicant with respect to the provision by him of a sound broadcasting

service under any sound broadcasting contract held by him at, or before, the date of the making of the application.”

5. The essential issue in this case is to determine whether or not the Broadcasting Commission gave appropriate consideration to the

term “character” when deciding to award a sound broadcasting contract for the operation of an alternative rock music sound

broadcasting service on the FM band in Dublin City and County to Dublin Rock Radio Ltd, trading as “Phantom FM”.

6. The applicant contends that the decision of the Commission is flawed on a number of grounds, which primarily relate to the illegal

broadcasting operations carried out over a 5 year period up to 2003 by various members of the Dublin Rock Consortium under the

name “Phantom FM”. The applicant contends that the Commission failed to give proper consideration to the “character” of the

members of the Dublin Rock Consortium under s.6 of the 1988 Act, that it erred in conferring a benefit on Dublin Rock as a result of

illegal broadcasting by a former pirate radio station “Phantom FM”, that it pre-judged the issue of the award of the sound

broadcasting contract in favour of the Dublin Rock Consortium and that it erred in having regard to the previous operations of two

distinct entities, Wireless Media Ltd. and Coxstone Ltd., both of whom provided services under temporary sound broadcasting

contracts under the name “Phantom FM”. While these issues are, to some degree, interrelated, it seems to me that the central part

of this case relates to the first two issues to which I have referred.

7. There is a measure of agreement about the background history. From 1998 onwards, some members of the Dublin Rock Consortium

operated an illegal “pirate” radio station under the name “Phantom FM”. In 1999 and again in 2001, Phantom FM went off-air in order

to apply for sound broadcasting contracts. On each occasion, the application was unsuccessful and Phantom FM immediately

recommenced illegal broadcasting. On the 21st May, 2003, against a background of a more rigorous enforcement regime, Phantom FM

decided to cease broadcasting. Subsequent to the cessation of illegal broadcasting by Phantom FM, the Commission granted

temporary contracts, firstly, in October, 2003, to Wireless Media Ltd., trading as Phantom FM, to operate an alternative rock radio

service for 30 days between October, 2003, and January, 2004. A further temporary contract was granted to Coxstone Ltd., also

trading as Phantom FM on the 22nd March, 2004.

8. On the 4th July, 2003, the Commission sought expressions of interest in relation to new sound recording contracts in Dublin, which

led eventually to the award of a contract, which is the subject of these proceedings. An announcement was made on the 8th March,

2004, that an advertisement would be published in relation to the order for contract, and such an advertisement was published on the

5th May, 2004, seeking applications for an alternative rock music sound broadcasting service, with a closing date for applications on

the 9th July, 2004.

9. Both the applicant and Dublin Rock applied for the licence and were the only parties who were eventually short-listed by the

Commission at a meeting on the 8th September, 2004. Public hearings were heard on the 11th October, 2004, following which a

meeting of the Commission held on the 8th November, 2004, decided to award the contract to Dublin Rock. This decision was

communicated to the applicant on the 16th November, 2004. The Commission also provided the applicant with the feedback report on

its application on the 29th November, 2004. In the months that followed, the applicants made it clear to the Commission that they

had “difficulties” with the decision of the Commission to award the contract to Dublin Rock, particularly having regard to the

“character” of the Dublin Rock Consortium. Eventually, a decision was made by the applicant to institute proceedings which

commenced on the 14th March, 2005. In a reserved judgment delivered on the 1st November, 2005, the High Court (O’Sullivan J.)

rejected the applicant’s challenge in these judicial review proceedings.

Submissions of the Parties

10. The applicant submits that the term “character” contained in s.6 of the Act, should be given a common sense interpretation and

that, in the context of an application for a radio licence, should be viewed as an applicant’s “moral nature” or the qualities which

make that person different. Reliance was placed on that definition of the noun “character” given in the concise Oxford English

dictionary, which defines the term as:

“The mental and moral qualities distinctive to an individual; strength and originality in a person’s nature; a person’s good

reputation.”

11. Mr. Gordon, senior counsel for the applicant, referred to the dicta of Lord Denning made in relation to ‘character’ in Spiedel v.

Plato Films Ltd. [1961] A.C. 1090, 1138 when he considered whether there was any distinction between the terms “character” and

“reputation”, and where he stated (at p.1138):

“The truth is that the word ‘character’ is often used, and quite properly used, in the same sense as the word ‘reputation’ thus

when I say of a man that ‘he has always borne a good character,’ I mean that he has always been thought well of by others.

And when I want to know what his ‘character’ is, I write, not to him, but to others who know something about him. In short,

his ‘character’ is the esteem in which he is held by others who know him and are in a position to judge his worth.”

12. Mr. Gordon submitted that in the course of the hearing before the learned High Court judge, Mr. O’Keefe, the Chief Executive of

the Commission, had equated the term “character” on a number of occasions with the manner, in the sense of efficiency, in which a

party operated a radio licence. Such an interpretation, it was submitted, was at odds both with a common sense definition of the

term and also with the legislative regime set out in s.6. Having regard to the fact that a party’s expertise, experience, financial

resources, economic principles, quality, range and type of programming are all considered under distinct heads, along with the quality

of performance under a previous broadcasting contract, it is clear that how a party will operate a licence is a matter which is

considered under distinct sub-sections of s.6. A party, Mr. Gordon argued, might well be able to run a radio station very

professionally, notwithstanding his involvement in illegal or other inappropriate activity. In requiring an evaluation of a parties

“character” the Oireachtas intended that such a party’s moral nature be one of the factors which the Commission consider in deciding

to whom an important public broadcasting licence should be awarded.

13. However, it was submitted that there was no affidavit filed by the respondent which demonstrated that any true consideration

had been given to the illegal broadcasting history of Phantom FM. The matter was not raised in oral submissions by the Commission.

Nor was there any reference to the issue in the feedback report given to the applicant. The furthest Mr. O’Keefe could put the matter

was to assert that members of the Commission “would have been aware” of the illegal broadcasting history, though the Commission

was primarily concerned with the manner in which the applicant performed during the currency of the two temporary licence contracts

when making its assessment.

14. Mr. Gordon further submitted that the policy of the Commission, whereby it accepts application for sound broadcasting contracts

from pirates provided they go off-air, was a policy which had no basis whatsoever in the 1988 Act. In fact, such a policy ran directly

contrary to the express terms of the Act. Alternatively, if the Commission were disposed in 1988 to encourage former pirates to

embrace the statutory regime, such a policy could not inure indefinitely, or operate in such a way in 2004 as to disadvantage a rival

applicant who had no similar history of illegal broadcasting.

15. In response, Mr Cush, senior counsel on behalf of the respondent, submitted that the issue of character had been adequately

addressed by the Commission and that by bringing judicial review proceedings the applicant effectively was attacking the weight

attached by the Commission to the history of pirate broadcasting where the applicant was concerned. He submitted that it was for

the Commission to determine what weight should be given to this consideration. It was a consideration to which the Commission had

had regard by reference to a number of factors. Firstly, only 25% of the constituent members of the consortium had ever been

involved in illegal broadcasting. Secondly, those involved in pirate broadcasting had ceased their activities for a period of 18 months

prior to the decision to award the contract. Thirdly, the applicants had operated two temporary licences in a proper manner and the

Commission were entitled to attach weight to that fact. Finally, the entire background history of pirate broadcasting was known to

the Commission and there had been a discussion of this issue at the meeting which short-listed the final applicants for the contract.

It was further pointed out that the learned High Court judge had found as a fact that the Broadcasting Commission did not afford any

benefit to the successful applicant by reference to any history of illegal operations. This Court, he submitted, should not interfere

with findings of fact made in the court below and he relied on the decision of this court to that effect in Hay v O’Grady [1992] 1 I.R.

210.

16. It was further submitted that there was no onus on the Commission to break down the historical piracy into component segments,

such as was now argued for by the applicant. That history was at most an element of weight of character to be considered by the

Commission, and the court should not in consequence interfere with the exercise by such an expert body of the exercise of its

reasonable discretion in reaching the final decision made in this case.

The High Court Judgment

17. In the course of his judgment, O’Sullivan J. found that the word “character” meant more than moral fibre. At p.4 of his judgment

he stated;-

“In my opinion if ‘character’ were to be confined to ‘moral fibre’, as distinct from including it, the Act would have defined the

word to make this clear. By leaving it undefined the word retains its ordinary meaning which certainly includes moral fibre but

also elements such as ‘distinctive mark’, ‘collective peculiarities’ and ‘distinction, individuality’. One thinks of phrases such as

‘the character of a team’, ‘a bit of a character’, ‘a woman of character’, as well as ‘a reformed character’ in reaching a

conclusion that the word includes more than moral fibre”.

18. Noting that Counsel for the applicant had submitted that no consideration had been given to background history which included

information that Phantom had twice suspended illegal broadcasts, applied for a licence and reverted to illegal broadcasting when its

application proved unsuccessful, the learned trial judge stated (at p.5):-

“The evidence is that, in the evaluation of Phantom’s bid by the executive there was merely a reference that the larger

shareholder in Dublin Rock (Wireless Media Ltd.) comprises ‘nine individuals who had a strong involvement and practical

experience operating the radio station Phantom FM. Phantom FM operated as a pirate station and more recently under two

temporary licences pursuant to s.8 of the Radio and Television Act, 1988’.

Whilst this material was before the respondent there is nothing in any minute to indicate they considered the matter further.”

19. In reaching his conclusion in the matter, however, O’Sullivan J. stated as follows (at p.6):-

“This issue must, I think, be seen against the background that it is the established policy of the respondent to encourage

illegal broadcasters by accepting applications from them provided they have ceased illegal broadcasting prior to the application

being made. The evidence is that this policy was authorised by the distinguished first Chairman of the respondent and in my

opinion it is entirely consistent with the objectives of the Act which include this arranging of contracts for illegal broadcasting.

The involvement of some individuals with Dublin Rock who had been involved in illegal broadcasting was known to the

Commission. It is well established that it is a matter for the Commission and not for the courts as to what weight they would

attach to this element in their consideration of the character of that particular bidder. It is not for me, or, with respect, for

the applicant in these proceedings, to assert what weight should have been assigned to this element of the evidence before

the respondent or what should have been the outcome of their deliberation, once it is clear, as it is, that the several elements

that comprise ‘character’ were considered by the respondent.

It seems to me that this challenge was based, at least in part, on an interpretation of ‘character’ which in my opinion is too

narrow. There is no allegation of irrationality in the sense the it is not alleged that the outcome of the respondent’s

consideration of the character of Dublin Rock is so utterly irrational as to be beyond the contemplation of their statutory

function: absent such a challenge, once it is clear that the topic of character (including the relevant history of illegal

broadcasting) was before the Commission, then in my view of the law, that is the end of the matter.

Accordingly this challenge must fail.”

Meaning of Character

20. While both sides to this appeal agree that there is no Irish case law directly on point, some assistance as to the meaning of the

word “character” is to be found in the comments of this Court in Spin Communications Ltd. v. IRTC [2001] 4 I.R. 411. In that case,

concerning the question of bias, the question arose as to whether the conduct of a member of the Commission, who had carried out

enquiries as to the attitude of a member of a consortium to drug use in a night club with which he was associated, was appropriate.

Delivering the sole judgment of this Court, Murray J. (as he then was) stated:-

“It is incontestable that the policy or attitude of a member of a body applying for a radio licence to issues of drug abuse may

be a relevant consideration for the respondent and its members both with regard to the question of the character of an

applicant and generally.”

21. Having considered the evidence and the applicable law, Murray J. concluded:-

“I am of the view that the evidence before the High Court disclosed no more than that he had legitimate grounds for making

enquiries concerning the so called ‘drugs issue’ with particular regard to the applicant’s application. His conduct was consistent

with making enquiries on a matter which properly fell to be considered in the decision making process.”

22. I think these comments, along with those of Lord Denning in Spiedel v. Plato Phones Ltd. [1961] A.C. 1090 at p.1138 (to which

reference has already been made), helpfully point out that the issue of “character”, must involve an enquiry into a person’s moral

qualities, in the sense of possible involvement in any illegality. It cannot, by reference to the other criteria contained in s.6, mean

only an enquiry related to the efficient operation of a contract or licence, any technical expertise, or the adequacy of resources

available to an applicant.

23. Furthermore, it seems to me that consideration of character necessarily involves making a realistic and fairly detailed enquiry into

the history and background of an applicant’s commercial activities in an exercise which, having regard to the statutory framework,

must necessarily encompass any history of illegal broadcasting on the part of such applicant.

24. Insofar as it is maintained that the Commission has or had a policy of encouraging pirate broadcasters to comply with the

objectives of the Act, this seems to me to be a perfectly reasonable policy to adopt at the outset of efforts to regulate this whole

area of activity. However, it becomes increasingly less appropriate with the passage of time and was certainly, in my view,

inappropriate in 2004, particularly having regard to the fact that there is no express provision in the Act which would enable the

Commission to maintain such a policy on an indefinite basis.

25. In a completely unregulated context, a policy of encouraging compliance with the statute makes sense. It might also make sense

where the Commission sought to bring an individual pirate broadcaster within the statutory regime. It is singularly inappropriate,

however, where rival applicants are competing for the same licence in a competitive market where some have a history of illegal

broadcasting and some do not. It would in my view be a manifest breach of natural justice if applicants with such dissimilar history

were to be regarded as being in precisely the same situation when having their applications considered by the respondent. Even more

offensive to natural justice would be a scenario whereby the illegal broadcaster actually enjoys an advantage arising out of past

illegality. Furthermore, the fact that an applicant promises good behaviour in the future or has the financial or other capacity to run a

station efficiently in the future can not, in my opinion, be considered as a hallmark of character.

26. Having thus indicated my view as to what the word “character” must be taken to mean, it is now appropriate to consider whether

or not the Commission gave due regard to this consideration, or whether, as suggested by the applicant, the Commission altogether

failed to do so.

Consideration Given to Character by the respondent

27. On the 8th October, 2003, Mr. Eamonn Buttle, Chairman of the Independent Broadcasters of Ireland, wrote to Mr. Michael

O’Keefe, Chief Executive of the Broadcasting Commission, protesting the grant of a temporary licence to Phantom FM. The

significance of this letter is that it protested in the strongest possible terms about the history of illegality associated with Phantom

FM. Mr. Buttle wrote:-

“While recognising the right of the BCI to issue temporary licences, it should not escape the Commission’s attention that

Phantom has very publicly, deliberately and consistently flouted the law and undermined the authority of the Commission. By

granting the licence to an organisation with this track record, the BCI is sending a very dangerous signal to the broadcasting

sector, that, as the regulator, it will tolerate blatant and repeated breaches of the broadcasting legislation by unlicensed

pirates while being prepared to punish minor transgressions by fully licensed and legal operators. The contrast between the

treatment of three of my members who recently lost their licences and this pirate operator is stark to say the least.”

28. A response to this letter was written by Mr. O’Keefe on the 17th October, 2003, in which he stated:-

“The BCI has been quite consistent in approach to the question of pirate broadcasting over the years. We have continually

urged ComReg and its predecessors to initiate actions to close unauthorised studios and transmitters of illegal broadcasters.

We have also provided information on pirate activities in different parts of the country to ComReg officials. Please be assured

that the Commission will continue with this policy into the future.

Coupled with this approach, we have also made it clear in all licensing rounds that we will consider applications from illegal

operators, provided that they cease such activities. Our policy is to encourage such groups to move away from the illegal

route and become legitimate. I am sure that many of your members would be familiar with this approach over the years, in

particular those who themselves started out as illegal broadcasters.”

29. Perhaps significantly, this letter made no reference to the repeated offences on the part of Phantom whereby, on each occasion

when it was refused licences in the past, it had immediately resumed illegal broadcasting.

30. The letter, however, notes that the Board of the Commission met in October, 2003, and that Mr. Buttle’s letter had been referred

to that meeting.

31. It seems to be common case, however, that membership of the Board had changed by 2004 and there were entirely new members

on the Board at the time of the application in this case.

32. The Executive of the BCI compiled an Executive Evaluation in respect of the application of Phantom FM. This Executive Evaluation

made no reference to the five year history of illegal broadcasting by Phantom FM.

33. The Broadcasting Commission met on the 6th September, 2004, to consider the respective merits of the applications submitted by

the various applicants. Again the minutes of this meeting do not indicate that any consideration was given to the previous history of

illegal broadcasting by Phantom FM.

34. At the meeting of the Commission which took place on the 8th November, 2004, the Commission decided to award the licence to

Phantom FM on a unanimous basis. Again, the minutes of the meeting do not indicate that any particular consideration was given to

the applicant’s history of illegal broadcasting, notably the lapses back into illegal broadcasting following unsuccessful licensing

applications.

35. Furthermore, it seems clear from Mr. O’Keefe’s affidavit filed in the judicial review proceedings that the history of repeated

offending by Phantom FM was not specifically considered by the Commission when awarding the contract. At par.35 of his affidavit,

Mr. O’Keefe states:-

“The Commission did take into account and consider the character of each of the final two applicants in this process as

required by law. However, as Mr. Hanrahan and the applicant group are well aware, the Commission’s policy in relation to

pirates was to permit applications for radio licences from companies or individuals who were previously involved in pirate

broadcasting. As indicated above, this policy was well known and was reaffirmed in February, 2004. Mr. Hanrahan was also

aware that the Commission’s policy required that any existing pirate operator wishing to apply for a radio licence should cease

operation from the time an advertisement for the service was placed. The fact that Wireless Media Ltd. T/A Phantom FM had

operated a pirate station was known to the Commission and was drawn to its attention in the course of the licensing process.

In this respect, Phantom FM had publicly announced it would cease broadcasting in May, 2003, and had remained off the air

from the time of that announcement up to and throughout the licensing process. Therefore, at the time of the decision, the

subject matter of these proceedings, Phantom FM had ceased illegal broadcasting for in excess of 18 months.”

36. This paragraph does not suggest to me that any particular weight or weighting process was engaged in by the Commission in

respect of the five year history of illegal broadcasting, or in respect of the lapses back into illegal broadcasting when prior licensing

applications proved unsuccessful.

37. Cross-examined at the hearing in relation to “character”, Mr. O’Keefe stated:-

“… character is looking at how you operate a licence. That is what character is about.”

38. In response to further questioning as to where in the licensing process the issue of character was actually considered by the

Commission, Mr. O’Keefe stated:-

“It is considered in the context of how an applicant group will operate a sound broadcasting service or have operated a sound

broadcasting service.”

39. Mr. O’Keefe was later asked what the Commission thought that “character” meant. He responded:-

“I think it means that it must comply with the appropriate terms. What the Commission is looking at is the manner in which a

group will operate the licence. Are they going to operate a particular licence in the proper manner. They have got to look at

the composition of the group and what type of people they are and are they satisfied that they will operate the licence in

accordance with the various rules and regulations that exist. So they do look at character.”

40. On day two of the hearing on the 11th October, 2005, Mr. O’Keefe was asked the following specific question:-

“Q. At the tour de table did anyone consider the illegal broadcasting history of Phantom?

A. No, no.

Q. It wasn’t mentioned at all?

A. What was mentioned in relation to Phantom FM was the fact that they had embraced the legitimate licence regime through

the operation of the two section 8 licences.”

On day three, the following sequence of questions to and answers by Mr. O’Keefe took place:-

“Q. Now, this was I think the first temporary licence to be granted to a former pirate station, isn’t that right?

A. That is correct, yes.

Q. And the Commission has had the experience of seeing Phantom FM twice cease to broadcast, twice applied for licences

under section 6, and twice, when it didn’t get that licence, recommence unlawful broadcasting; Isn’t that so?

A. That’s correct.

Q. And that must have annoyed and piqued the Commission considerably, mustn’t it?

A. The Commission didn’t take a view on that. I mean, that wasn’t a factor that the Commission took into account at any

stage.

Q. I see. At no stage at any of the things we are discussing today did the Commission take a view about the fact that

Phantom ceased to broadcast, applied for a licence and then when it was disappointed decided to break the law again?

A. As I said in my evidence the other day, the Commission was aware of the pirate broadcasting of Phantom, that that was

brought to its attention during the licensing process, and it considered that at the time, and that is as far as it went.

Q. Sure. And I just want to make sure that I understood you on that Mr. O’Keefe. Leaving aside the general history of pirate

broadcasting, here are two particular occasions in which, well, really, Phantom have made a fool of the Commission; it had

ceased to broadcast illegally, it had applied for a licence in accordance with the provisions set down by the Commission, that

it would take applications from people who had ceased to broadcast illegally, and then, when it was disappointed, it then just

goes back on air, not once but twice, and that aspect of things wasn’t taken into account by the Commission at any stage, is

that right?

A. Well, what I can say to you, as I indicated again the other day; I brought the letter that I had written to IBI in October. I

brought that to the attention of the Commission for information, so they were clearly aware at that point of the fact that

Phantom had ceased broadcasting in May of that year and that the Executive of the Commission had granted a section 8

licence.

Q. We are not talking about the ceasing of broadcasting in May of 2003, and you know that well, Mr. O’Keefe, so lets talk

about what we are actually discussing.

A. Okay

Q. The two cessations, the two temporary armistices that Phantom entered into and then took up their arms again as soon as

they didn’t get what they wanted, was that considered by the Commission at any stage during the application for the

alternative rock licence?

A. That particular fact was not considered.

Q. No.

A. What was considered was the fact that they had been a pirate and they had ceased to broadcast as a pirate.”

41. These necessarily lengthy quotations from cross-examination are set out in some detail because they, in addition to the affidavits

and exhibits, provided the factual material before the learned High Court judge.

42. I am of the view that the issue of assessment of character by the Commission was not, in fact, addressed by the Commission at

all. It seems to me that the Commission limited its consideration to the behaviour of Phantom FM during the currency of the two

temporary licences and had no regard to previous illegal broadcasting, other than to note that it had, in a general way, taken place

over the preceding years. In no way could it be said that the Broadcasting Commission took specific note in any shape or form of the

particularly grave conduct of Phantom in reverting immediately to illegal broadcasting on two separate occasions when refused

licences.

43. The failure to consider this relevant consideration as to character is such, in my view, as to render the decision of the

Broadcasting Commission to grant the licence to Phantom both unreasonable and irrational.

44. The quashing of decisions on this basis is well established in law. Wade &Forsyth (Administrative Law) (9th Ed. at p.380) explains

the basis as follows:-

“There are many cases in which a public authority has been held to have acted from improper motives or upon irrelevant

considerations, or to have failed to take account of relevant considerations, so that its actions are ultra vires and void. It is

impossible to separate these cleanly from other cases of unreasonableness and abuse of powers, since the court may use a

variety of interchangeable explanations. Regarded collectively, these cases show the great importance of strictly correct

motives and purposes.”

45. In White v. Dublin City Council [2004] 1 I.R. 545, this Court quashed a decision of a planning authority in circumstances where

there was an apparent failure on the part of a planning inspector to give proper consideration to the likelihood that parties might wish

to object to altered plans for a development. Fennelly J., delivering the sole judgment of the court on this issue, stated:-

“I do not say that the first respondent’s decision is irrational in the broad sense. Mr. Rose’s (i.e. the planning inspector)

planning expertise is undoubted. I consider rather that Mr. Rose, on behalf of the first respondent, excluded from his

consideration the likelihood that the applicants would want to object, and that, if they did, the first respondent would have had

to consider the objection. This was, no doubt, an understandable oversight on the part of a person exercising an expert

planning function. Nonetheless, I am satisfied, given the very particular circumstances of this case, that he did not give

proper consideration to the radical effect of the required modifications. In that sense it was unreasonable and irrational.”

46. In Secretary of State for Education and Science v. Tameside M.B.C. [1977] A.C. 1014 Lord Diplock, in considering the exercise of

statutory powers by a Minister, expressed the test as follows:-

“It is for a court of law to determine whether it has been established that in reaching his decision… he had directed himself

properly in law and had in consequence taken into consideration the matters upon which the true construction of the Act he

ought to have considered.”

47. Although it was noted by the Commission that Phantom FM had embraced legitimate broadcasting, that in my view could never

amount to an adequate assessment of the character of the applicant, particularly when it did not advert to the previous history and

behaviour of that applicant in a specific manner. Character assessment, as already noted, is almost, if not entirely, a retrospective

exercise from which a person’s likely future behaviour may be assessed and predicted. Such an exercise simply did not take place in

this case and I do not consider there was an evidential basis for the finding to the contrary by the learned High Court judge.

48. I would also be of the view that Phantom FM in fact obtained a benefit as a consequence of its own illegality in securing a licence

having broadcast illegally for 5 years and in reverting to illegality when applications for licenses were unsuccessful. As a matter of

public policy, such an outcome should not occur when such an applicant is in competition with another otherwise competent and well-

resourced applicant who has not been guilty of any such illegality.

49. Some further support for the conclusions I have arrived at is to be found in the material contained in Phantom’s own application

filed on the 9th July, 2004. This material indicates clearly how reliance was placed by Phantom on its own past illegal activities.

50. At p.17 of the submission the following reference to Phantom FM appears:-

“The Phantom FM team has been actively promoting Irish alternative rock music interests for over seven years and this

applicant consortium sees the formation of a new entity comprising of the Phantom FM ethos and broadcasting experience

combined with various aspects of direct local music industry involvement, including management of concerts and venues,

management and provision of recording facilities, music industry promotion, and music artist management.”

51. At p.41 (Programming Strategies) the following statement appears:-

“Phantom FM has over seven years of audience feedback to draw on and has spent that time crafting a sound that appeals to

the widest possible audience in a niche.”

52. Finally, at p.45 (Music Policy) the following statement appears:-

“Phantom FM’s proposed Music Policy has been tried and tested over the course of two temporary broadcast licences and

seven years of operation. The data for the breakdown of percentages and the definitions that follow are based on statistical

analysis of the play-sheets and logs of the entire broadcast duration.” (emphasis added)

53. Of the three extracts cited above, the last is perhaps the most damning from Phantom’s point of view because it unequivocally

demonstrates the degree to which Phantom relied on its past illegal activities to secure the award of the contract. It is impossible to

believe that material of this sort did not motivate the respondent to a greater or lesser degree in awarding the contract. I would allow

the appeal on this ground also.

54. In those circumstances, it is not necessary for me to consider the remaining grounds of prejudgment or bias, or the issue of delay.