New evidence which would have constituted a defense was found by the broadcaster after the 
release of the judgment of a Tribunal. The late application for leave to appeal was not condoned by the Deputy Chair, the Chair of that Tribunal. On appeal to the Chair of the Commission, he held that there were no prospects of success on appeal. He, inter alia, reasoned as follows: “As appears from the above, the correct time of the broadcast of the promo was only brought to the attention of the management after the matter was inquired into. This is information which falls peculiarly within the knowledge of the applicant and the applicant should, if it had any doubt, have applied for a postponement of the hearing of the Tribunal so as to establish what the exact time of the broadcast was. This was not done and consequently the applicant must live with its choice: it was its defence that the promo was broadcast “after the watershed” with the appropriate classification. As appears from the judgment, the approach of the BCCSA is that a defense in such a case could only succeed if the ( sexually explicit) promo is broadcast after 23:00. If the defense had been brought to the notice of the Tribunal, the defense would have succeeded. However, it is too late to do that on appeal. The circumstances do not constitute exceptional circumstances and it is, to my mind, unlikely that an Appeal Tribunal would find the circumstances to have been exceptional. The representative for the applicant should have raised the defense at the hearing. No exceptional circumstances were set out as to why he did not do so.”
