one shall publish or reveal the name of the respondent who is involved in these
proceedings or publish or reveal any information which would be likely to lead to
the identification of the respondent in connection with these proceedings”. That
order was made with the agreement of the BBC.
A is now residing in the country where, as the tribunal concluded, he is at
risk of serious violence if his identity becomes known in connection with these
proceedings. His application for judicial review of the tribunal’s decision to
authorise his deportation has not yet been heard. In these circumstances, it is
appropriate both in the interests of justice, and in order to protect A’s safety, that his
identity should continue to be withheld in connection with these proceedings, and
that the order should therefore remain in place.
[2014] UKSC 25
On appeal from: [2013] CSIH 43
JUDGMENT
A (Respondent) v British Broadcasting Corporation
(Appellant) (Scotland)
before
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
8 May 2014
LORD REED (with whom Lady Hale, Lord Wilson, Lord Hughes and Lord
Hodge agree)
1.
This appeal raises important issues concerning the principle of open justice:
in particular, issues concerning the legal basis of the principle, the circumstances in
which it can be departed from and the procedure which should be followed.
2.
The appeal is brought by the BBC in order to challenge an order made by the
Court of Session in proceedings for judicial review of a decision of the Upper
Tribunal. In its order, the court permitted the applicant for judicial review to amend
his application by deleting his name and address and substituting letters of the
alphabet, in the exercise (or, as the BBC argues, purported exercise) of a common
law power. The court also gave directions under section 11 of the Contempt of Court
Act 1981 (“the 1981 Act”) prohibiting the publication of his name or other
identifying details and directing that no picture of him should be published or
broadcast.
3.
The appeal raises the following questions:
i)
Whether the court possesses any power at common law to protect the
anonymity of a party to proceedings before it, where the Convention rights
set out in Schedule 1 to the Human Rights Act 1998 are engaged. It is argued
on behalf of the BBC that any common law power which might previously
have been exercised in such circumstances has been superseded by the
Convention rights.
ii)
Whether the court acted compatibly with the BBC’s rights under
article 10 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (“ECHR”), as given effect by the Human Rights
Act, in making the order complained of, both in relation to the substance of
its decision and in relation to the procedure which it followed.
iii)
Whether the order fell within the scope of section 12 of the Human
Rights Act, with the consequence that the BBC should have been notified and
given an opportunity to make representations before any order was made.
The answers to these questions are of importance to courts, media organisations and
individual litigants throughout the United Kingdom.
Page 2
The factual background
4.
The first respondent to this appeal, whom I shall refer to as A, is a foreign
national who arrived in the UK as a visitor in 1991. Later that year he married a UK
citizen, who also came from his country of origin and had a child from a previous
relationship. He was then granted indefinite leave to remain in the UK. In 1996 he
was convicted of sexual offences against his step-child and was sentenced to 4 years’
imprisonment. In 1998 the second respondent, the Home Secretary, decided that he
should be deported, and a notice of intention to make a deportation order was served.
A and his wife were by then divorced. In 2000 he re-married. He and his second
wife have a number of children.
5.
Following service of the deportation notice, protracted proceedings began.
The salient aspects can be summarised as follows. In 2001 A’s appeal against the
Home Secretary’s decision was dismissed. He then applied to the Home Secretary
to be allowed to remain in the UK on the ground that his removal would violate his
rights under articles 2, 3 and 8 of the ECHR. That application was refused, and a
deportation order was served in June 2002. A then appealed against the refusal of
his application to remain in the UK. Appeals to an immigration adjudicator and to
the Immigration Appeal Tribunal were dismissed in 2003 and 2004 respectively. A
further appeal to the Court of Session was however allowed, and it was agreed that
the appeal should remitted to the Asylum and Immigration Tribunal for re-hearing.
Following that re-hearing, the appeal was dismissed by the tribunal in 2007. A’s
identity was withheld in the proceedings from 2001 onwards.
6.
In its 2007 decision, the tribunal noted that A’s claim under articles 2 and 3
of the ECHR was based on the argument that, in the event of his return to his country
of origin, he would be at risk of death or ill-treatment at the hands of persons enraged
by his offences. The tribunal accepted that, if he faced such a risk as a known sexual
offender, he was unlikely to receive effective protection from the police. The claim
that such a risk existed was however largely based upon the premise that his return
to his native country would receive publicity. The tribunal was not satisfied that it
would. Although threats of violence had been made against him in his country of
origin at the time of the criminal proceedings, when his identity had been disclosed
in the media, they had not continued in more recent times.
7.
The claim based on article 8 was also rejected. For present purposes, it is
relevant to note that the facts relied upon included an incident in January 2006 when
A and his wife were attacked in their home in Scotland by a group of youths. Their
children were then taken into care for a time because of police concerns that the
house might be fire-bombed. A and his wife were attacked again in June 2006 in a
public park in the same town. After that incident A ceased to live with his wife and
Page 3
children. The incidents followed press publicity about A’s case, in which his name
and the town in which he lived were mentioned.
8.
An appeal against the 2007 decision was allowed by the Court of Session in
relation to article 8 only, and the appeal was again remitted to the tribunal for re-
hearing on that issue: A v Secretary of State for the Home Department [2008] CSIH
59. Following that re-hearing, the appeal on the article 8 ground was dismissed by
the tribunal in 2009. Leave to appeal against that decision was refused: CB v
Secretary of State for the Home Department [2010] CSIH 89; 2011 SC 248. Later
in 2010 A claimed asylum and submitted further representations. The claim and
representations were treated by the Home Secretary as an application for the
revocation of the deportation order made in 2002. That application was refused in
2011. A then appealed to the First-tier Tribunal. It was agreed that the scope of the
appeal was confined to articles 3 and 8 of the ECHR.
9.
In dealing with the appeal, the First-tier Tribunal gave a direction to the
parties under rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure)
Rules 2005 (SI 2005/230) that no report of the proceedings should directly or
indirectly identify the appellant or any member of his family. Although the words
“no report” might, read in isolation, suggest that the direction operated against the
media, it went on to state that it applied “to the appellant and to the respondent”,
consistently with rule 45. The direction was given on the basis that, first, the appeal
concerned personal information about the lives of children, whose welfare might be
injured if such information were revealed and their names known; secondly, the
appeal concerned highly personal evidence which should remain confidential; and
thirdly, A or others could be put at risk of harm by publication of his name and
details.
10.
A’s claim under article 3 was again based on evidence, including a report by
an expert witness, to the effect that he would be at risk of violence if he returned to
his country of origin. It was said that the risk would arise as a result of publicity.
The claim under article 8 was based on his family life with his wife and children,
with whom he had resumed regular contact, although he continued to live apart from
them because of the risk of stigmatisation if they were known to be connected to
him.
11.
The tribunal refused the appeal. In relation to article 3, the tribunal placed
weight on the findings made in 2007, and added:
“The proceedings involving the appellant are now anonymised thus
reducing the risk of his being identified.”
Page 4
Permission to appeal to the Upper Tribunal was refused. An application to the Upper
Tribunal for permission to appeal was also refused.
12.
A then applied to the Court of Session for judicial review of the decision of
the Upper Tribunal to refuse his application for permission to appeal. The petition
was lodged on 21 September 2012, when a first hearing (ie a full hearing of the
application) was fixed for 14 December 2012. On 30 October 2012 the Secretary of
State gave notice that she intended to remove A on 11 November 2012. A then
applied for the suspension (ie stay) of the removal decision ad interim, pending the
full hearing of his application for judicial review.
13.
The application for interim suspension came before Lord Boyd of Duncansby
on 7 November 2012, together with an application to amend the petition by deleting
A’s name and address and substituting initials. Media organisations had not been
notified of the hearing, and were not represented at it. Lord Boyd allowed the
petition to be amended. He also made an order under section 11 of the 1981 Act
“prohibiting the publication of the name of the petitioner, or any particulars or
details calculated to lead to the identification of the petitioner”, and directing “that
no picture shall be published or broadcast of the petitioner in connection with these
proceedings”.
14.
On 8 November 2012 Lord Boyd refused the application for interim
suspension. In his opinion he explained that he had to decide whether A had
established a prima facie case for setting aside the Upper Tribunal’s decision,
applying the test laid down in R (Cart) v Upper Tribunal [2011] UKSC 28; [2012]
1 AC 663 and Eba v Advocate General for Scotland [2011] UKSC 29; 2012 SC
(UKSC) 1; [2012] 1 AC 710, and, if so, whether the balance of convenience
favoured the granting of interim suspension of the removal decision. He concluded
that a prima facie case had not been established. One of the arguments which he
considered was that the First-tier Tribunal had failed to give adequate reasons for
rejecting the article 3 claim, and had not properly considered the report of the expert
witness. In response, it was argued that the author of the report had failed to
recognise that, if the appellant were returned to his home country, that was likely to
be following proceedings in which his identity was not disclosed. Lord Boyd
concluded that the tribunal had been entitled to find that the risk of A’s being
identified was reduced by anonymisation, and that the point did not satisfy the Cart
and Eba test.
15.
It was envisaged at the time of the hearing before Lord Boyd that the
application for judicial review would proceed to a first hearing, notwithstanding A’s
deportation. His counsel informed the court that he intended to seek the discharge
of the first hearing fixed for 14 December 2012, so that a two day hearing could be
held instead in January 2013.
Page 5
16.
A reclaiming motion (ie an appeal) against Lord Boyd’s decision to refuse
the application for interim suspension was heard by the Inner House of the Court of
Session on 9 November 2012. It was refused: A v Secretary of State for the Home
Department [2012] CSIH 86.
17.
In the meantime, the BBC became aware of the order made under section 11
of the 1981 Act, and applied for it to be recalled (ie set aside). The application came
before the court on 9 November, when it was agreed that it should be continued (ie
adjourned) to be heard on a future date. It was subsequently heard by Lord Glennie
on 14 and 15 November 2012. On 6 December 2012 he refused the application, and
granted leave to reclaim: British Broadcasting Corporation, Applicant [2012]
CSOH 185; 2013 SLT 324.
18.
Lord Glennie noted that the only issue in the proceedings before the tribunal
concerned the risk of its becoming known in his country of origin that A was being
sent back. If that fact were known, and particularly if it were linked to information
about the timing of his return, then it was accepted that there was a real risk of A’s
article 3 rights being infringed. That was why an anonymity direction had been made
by the tribunal. In these circumstances, Lord Glennie accepted that it was necessary
to allow A’s name and identifying details to be withheld from the public in the court
proceedings, and to make a section 11 order: first, so as to safeguard A’s Convention
rights, and secondly, so as to preserve the integrity of the court proceedings, since
publication of that information would give A grounds for a fresh application to the
Home Secretary and frustrate the proceedings before the court.
19.
A absconded prior to his planned deportation, and was later detained. The
Home Secretary then decided to deport him on 14 December 2012. An application
was made to the court for the interim suspension of that decision, and for leave to
amend the application for judicial review. The amendment, which was allowed,
introduced averments to the effect that, following the granting to the BBC of leave
to reclaim, it was uncertain whether the section 11 order would remain in place. The
Home Secretary, it was argued, could not deport A until that matter was settled,
since the tribunal had relied upon the anonymity order in holding that A would not
be at real risk on return to his country of origin. If the BBC’s reclaiming motion was
successful, a material basis of the tribunal’s decision would be removed.
20.
The application for interim suspension was heard on 12 December 2012. It
was accepted on behalf of the Home Secretary that A’s deportation would be
unlawful unless the section 11 order remained in place: in the absence of the order,
there would be a real risk that A’s identity and history as a sex offender would be
publicised, and that such publicity would expose him to vigilante behaviour in his
country of origin, contrary to his rights under article 3. The court concluded that the
BBC was unlikely to succeed in a reclaiming motion against Lord Glennie’s
Page 6
decision, and refused interim suspension of the deportation decision on that basis. A
reclaiming motion against that decision was refused by the Inner House the
following day. A was deported to his country of origin on 14 December 2012.
21.
The BBC reclaimed against Lord Glennie’s decision to refuse to recall the
section 11 order, and also challenged Lord Boyd’s decision to make the order in the
first place. The reclaiming motion was refused by the Inner House on 17 May 2013:
[2013] CSIH 43; 2013 SC 533. The court considered that the material before the
tribunal justified the conclusion that anonymity would be a significant protection of
A’s article 3 rights, and that in any event the recall of the section 11 order would
subvert the understanding on which A’s deportation had been authorised. The
present appeal is brought against that decision.
22.
A first hearing of the application for judicial review has not yet taken place.
At the hearing of the reclaiming motion, the court was informed that the possibility
of amending the application in order to seek an order for A’s return to the UK was
under consideration.
The general principle of open justice
23.
It is a general principle of our constitutional law that justice is administered
by the courts in public, and is therefore open to public scrutiny. The principle is an
aspect of the rule of law in a democracy. As Toulson LJ explained in R (Guardian
News & Media Ltd) v City of Westminster Magistrates’ Court (Article 19
intervening) [2012] EWCA Civ 420; [2013] QB 618, para 1, society depends on the
courts to act as guardians of the rule of law. Sed quis custodiet ipsos custodes? Who
is to guard the guardians? In a democracy, where the exercise of public authority
depends on the consent of the people governed, the answer must lie in the openness
of the courts to public scrutiny.
24.
The significance of the principle of open justice is illustrated by the fact that
it was one of the matters covered by the constitutional legislation enacted following
the accession of William and Mary. The Court of Session Act 1693, which remains
in force, provides:
“That in all time coming, all bills, reports, debates, probations and
others relating to processes shall be considered, reasoned, advised and
voted by the Lords of Session with open doors, where parties,
procurators and all others are hereby allowed to be present, as they
used to be formerly in time of debates, but with this restriction, that in
Page 7
some special cases the said Lords shall be allowed to cause remove all
persons, except the parties and their procurators.”
The corresponding Act “Anent Advising Criminal Processes with Open Doors”,
passed on the same date, made similar provision for the High Court of Justiciary. As
Lord Shaw of Dunfermline commented in Scott v Scott [1913] AC 417, 475, the two
Acts formed part of the Revolution Settlement, and bore testimony to a
determination to secure civil liberties against judges as well as against the Crown.
25.
The principle that courts should sit in public has important implications for
the publishing of reports of court proceedings. In Sloan v B 1991 SC 412, 442, Lord
President Hope, delivering the opinion of the court, explained that it is by an
application of the same principle that it has long been recognised that proceedings
in open court may be reported in the press and by other methods of broadcasting in
the media. “The principle on which this rule is founded seems to be that, as courts
of justice are open to the public, anything that takes place before a judge or judges
is thereby necessarily and legitimately made public, and, being once made
legitimately public property, may be republished” (Richardson v Wilson (1879) 7 R
237, 241 per Lord President Inglis).
26.
The connection between the principle of open justice and the reporting of
court proceedings is not however merely functional. Since the rationale of the
principle is that justice should be open to public scrutiny, and the media are the
conduit through which most members of the public receive information about court
proceedings, it follows that the principle of open justice is inextricably linked to the
freedom of the media to report on court proceedings.
Exceptions to the principle of open justice
27.
Since the principle of open justice is a constitutional principle to be found in
the common law, it follows that it is for the courts to determine its ambit and its
requirements, subject to any statutory provision. The courts therefore have an
inherent jurisdiction to determine how the principle should be applied.
28.
That jurisdiction was recognised as long ago as the 1693 legislation I have
mentioned. The Court of Session Act allowed the court to sit in private “in some
special cases”, leaving it to the court to determine the circumstances in which a
departure from the principle of open justice might be appropriate. The Act
concerning criminal procedure declared that “in the cases of rape, adultery and the
like the said Commissioners [of Justiciary] may continue their former use and
custom, by causing remove all persons, except parties and procurators, at the leading
Page 8
of the probation, as they shall see cause”. That provision, which has a direct
homologue in the modern law, recognised the court’s power to determine when
departures from the principle of open justice were appropriate in such cases.
29.
Exceptions to the principle of open justice were considered in the well-known
case of Scott v Scott [1913] AC 417, in which the House of Lords emphasised in the
strongest terms the importance of the general principle, but also recognised that there
were circumstances in which it was necessary to depart from it. Viscount Haldane
LC gave the example at p 437 of a court exercising a wardship jurisdiction: such a
court was sitting primarily to guard the interests of the ward, and the attainment of
that object might require that the public should be excluded. Lunacy proceedings
were in a similar position. Another example given by the Lord Chancellor, of greater
relevance to the present case, was litigation concerning a secret process, “where the
effect of publicity would be to destroy the subject-matter”. The Earl of Halsbury
considered wardship and lunacy to fall outside the scope of the general principle that
justice should be administered in public, but accepted that proceedings concerning
trade secrets, or to prevent the publication of private correspondence, were
exceptions to that principle, observing at p 443 that “it would be the height of
absurdity as well as of injustice to allow a trial at law to protect either to be made
the instrument of destroying the very thing it was intended to protect”. Similar
observations were made by Lord Atkinson at p 450 and by Lord Shaw of
Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling
justification for any departure from the principle of open justice. The Lord
Chancellor said at pp 437-438:
"As the paramount object must always be to do justice, the general
rule as to publicity, after all only the means to an end, must
accordingly yield. But the burden lies on those seeking to displace its
application in the particular case to make out that the ordinary rule
must as of necessity be superseded by this paramount consideration.
The question is by no means one which, consistently with the spirit of
our jurisprudence, can be dealt with by the judge as resting in his mere
discretion as to what is expedient. The latter must treat it as one of
principle, and as turning, not on convenience, but on necessity."
30.
A similar approach was followed in later cases in the House of Lords. In
particular, the issue was considered in detail in the cases of In re K (Infants) [1965]
AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former
case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry
included the rules that justice should be done openly, that it should be done only
after a fair hearing, and that judgment should be given only upon evidence that is
made known to all parties, and also rules of a less fundamental character, such as
the rule against hearsay. He continued:
Page 9
“But a principle of judicial inquiry, whether fundamental or not, is
only a means to an end. If it can be shown in any particular class of
case that the observance of a principle of this sort does not serve the
ends of justice, it must be dismissed; otherwise it would become the
master instead of the servant of justice. Obviously, the ordinary
principles of judicial inquiry are requirements for all ordinary cases
and it can only be in an extraordinary class of case that any one of
them can be discarded. This is what was so clearly decided in Scott v
Scott.”
After citing the dictum of Viscount Haldane which I also have cited, Lord Devlin
continued at p 239:
“That test is not easy to pass. It is not enough to show that dispensation
would be convenient. It must be shown that it is a matter of necessity
in order to avoid the subordination of the ends of justice to the means.”
31.
More recently still, the importance of the common law principle of open
justice was emphasised by nine Justices of this court in the case of Bank Mellat v
Her Majesty’s Treasury [2013] UKSC 38; [2013] 3 WLR 179. Lord Neuberger,
giving the judgment of the majority, described the principle as fundamental to the
dispensation of justice in a modern, democratic society (para 2). He added that it
had long been accepted that, in rare cases, a court had an inherent power to receive
evidence and argument in a hearing from which the public and the press were
excluded, but said that such a course might only be taken (i) if it was strictly
necessary to have a private hearing in order to achieve justice between the parties,
and (ii) if the degree of privacy was kept to an absolute minimum. He gave, as
examples of such cases, litigation where children were involved, where threatened
breaches of privacy were being alleged, and where commercially valuable secret
information was in issue.
32.
It has also been recognised in the English case law, consistently with Lord
Neuberger’s requirement of the degree of privacy being kept to a minimum, that
where the interests of justice require some qualification of the principle of open
justice, it may not be necessary to exclude the public or the press from the hearing:
it may suffice that particular information is withheld. In Attorney General v Leveller
Magazine Ltd, for example, Lord Diplock accepted at p 451 that, where the court
might sit in camera in order to preserve the anonymity of a witness in the interests
of national security, it could instead allow “a much less drastic derogation from the
principle of open justice”, namely that the witness should give evidence in public
but should be permitted to withhold his name from the public and the press. Viscount
Dilhorne and Lord Edmund-Davies agreed that the court could do so, in the exercise
of its inherent jurisdiction to control its own procedure: pp 458 and 464 respectively.
Page 10
Viscount Dilhorne gave as an example the practice of allowing a witness
complaining of blackmail to withhold his identity from public disclosure in court,
judicially approved in R v Socialist Worker Printers and Publishers Ltd, Ex p
Attorney General [1975] QB 637. The proposition that the court had no power to
allow a witness’s name to be withheld from the public had been roundly rejected in
that case: such a direction, it was held, was clearly preferable to an order for trial in
camera where "the entire supervision by the public is gone" (p 652).
33.
In Scotland, as I have explained, the principle of open justice has been
recognised by statute since the seventeenth century. The court’s power to make
exceptions to the general principle was acknowledged in the legislation of 1693. As
Lord President Gill noted when the present appeal was before the Inner House, the
basis of the court’s power to make such exceptions is its inherent power to control
its own procedure in the interests of justice: [2013] CSIH 43; 2013 SC 533, para 37.
34.
The common law power to make exceptions to the principle of open justice
in the interests of justice was recognised in Sloan v B 1991 SC 412. Lord President
Hope said at p 442:
“There is no doubt that as a general rule the proceedings of a court are
open to the public, and thus to public scrutiny, at all times. Exceptions
have to be made in special circumstances to allow the court to conduct
its proceedings behind closed doors where the interests of justice
require this to be done. But that is always the exception, and the
general principle which applies equally in the sheriff court as it does
in the Court of Session is that the court sits both for the hearing of
cases and for the advising of them with open doors.”
35.
It has also been recognised in Scotland that the qualification of the principle
of open justice which is necessary in particular circumstances may not require to be
as drastic as the complete exclusion of the public or the media from the proceedings,
and that less extreme measures, such as the protection of the anonymity of a witness,
may sometimes suffice. The point is illustrated by the case of Scottish Lion
Insurance Co Ltd v Goodrich Corporation [2011] CSIH 18; 2011 SC 534, in which
the court permitted the identities of the applicants to be withheld from public
disclosure. The object of the proceedings was to protect the confidentiality of
documents disclosing their identities, and an order designed to achieve that objective
had previously been made by the court. As the court noted, the disclosure of their
identities would be inconsistent with that order and would undermine the
confidentiality which the proceedings were intended to preserve. The case was
therefore one in which a limitation of the principle of open justice was necessary
both to protect confidential information and to prevent the frustration of the judicial
process.
Page 11
36.
In relation to this aspect of the present case, counsel for the BBC was critical
of a passage in the opinion of the Lord President, at para 38, in which he stated that
the court must have regard not only to the justice of its decision, but also to the
justice of the procedures by which it gives it. It therefore had the inherent power, in
his opinion, to withhold the identity of a party where, regardless of the outcome of
the case, the disclosure of that party’s identity would constitute an injustice to him.
The Lord President gave as examples cases where disclosure would endanger a
party’s safety or would be commercially ruinous. He added that, quite apart from
the Convention-related aspects of the problem, he would regard it as the court’s duty
to withhold the identity of a female pursuer where the decision turned on intimate
medical evidence. He also considered that the court’s inherent jurisdiction could be
extended to the protection of third parties whose rights and interests might be
affected in similar ways. The other members of the First Division expressed their
agreement.
37.
This passage in the Lord President’s opinion was obiter dictum: his Lordship
records that the subject of the court’s inherent jurisdiction had not been the subject
of submissions by the parties, but had become a matter of some importance because
of a decision made by a judge in another case, following the hearing of the instant
case. The examples which the Lord President gave were at a correspondingly high
level of generality. Counsel argued however that this passage was an incorrect
statement of the law, and might be treated by lower courts as authoritative. That
apprehension appears to have been one of the principal factors to have prompted the
bringing of this appeal, as much of the argument presented on behalf of the BBC
was devoted to criticism of this obiter dictum. In the circumstances, some general
observations may be made.
38.
As I have explained, it has long been recognised that the courts have the
power to permit the identity of a party or a witness to be withheld from public
disclosure where that is necessary in the interests of justice. The Lord President was
plainly right to approach the matter on the basis that the interests of justice are not
confined to the court’s reaching a just decision on the issue in dispute between the
parties. It is necessary in the first place to recognise that the administration of justice
is a continuing process: see, for example, Attorney-General v Butterworth [1963] 1
QB 696, 725 per Donovan LJ. The court can therefore take steps in current
proceedings in order to ensure that the interests of justice will not be defeated in the
future. For example, the High Court of Justiciary has permitted undercover police
officers to give evidence while screened from the sight of the general public, and
without public disclosure of their identities, in order to avoid jeopardising their
effectiveness in future investigations.
39.
Other cases may raise different considerations. In some cases, for example,
anonymity may be necessary in view of risks to the safety of a party or a witness.
The point can be illustrated by the case of A v Scottish Minsters 2008 SLT 412,
Page 12
where a prisoner serving a sentence for sexual offences was permitted to bring
proceedings, challenging the notification requirements applicable to sexual
offenders, without disclosing his identity publicly, because of the danger to his
safety if the nature of his offending became known to his fellow prisoners. The same
approach was followed when the case subsequently came before the Inner House.
In other cases the health of a vulnerable person may be at risk. An example is the
case of HM Advocate v M [2007] HCJ 2, 2007 SLT 462, where the court made a
section 11 order to prevent the publication of the identity of a woman who was due
to be the principal witness at the trial of a person charged with having recklessly
infected her with HIV. There was evidence before the court that the woman’s mental
health would be endangered if her identity became publicly known. There was also
a risk that the woman would otherwise be unable to give evidence, in which event
the prosecution could not proceed. An example of a case where harm of a different
kind was considered to justify a departure from the ordinary practice is Devine v
Secretary of State for Scotland (22 January 1993, unreported), an action of damages
arising from the deployment of the SAS to end a prison siege, where Lord Coulsfield
permitted the soldiers to give evidence while screened from the view of the general
public, and without disclosing their names publicly. He did so on the basis that their
evidence was essential to the proper presentation of the defence, and the Army’s
ability to deploy them in future operations would otherwise be compromised. In
such a case, their appearance and identities were of such peripheral, if any, relevance
to the judicial process that it would have been disproportionate to require their
disclosure. These are only a few examples.
40.
Some of these examples may arguably go beyond the categories envisaged in
some of the older authorities. As Lord Loreburn observed however in Scott v Scott
at p 446, it would be impossible to enumerate or anticipate all possible
contingencies. Furthermore, in this area as in others the common law is capable of
development. The application of the principle of open justice may change in
response to changes in society and in the administration of justice. It can also
develop having regard to the approach adopted in other common law countries, some
of which have constitutional texts containing guarantees comparable to the
Convention rights, while in others the approach adopted reflects the courts’ view of
the requirements of justice. To give only one example, the Supreme Court of Canada
has considered some of the issues which I have mentioned, such as the anonymity
of complainants in cases of sexual assault (Canadian Newspapers Co v Canada
[1988] 1 SCR 122), the protection of parties to proceedings from embarrassment or
humiliation (Edmonton Journal v Alberta [1989] 2 SCR 1326) and the concealment
of the identity of undercover police officers (R v Mentuck [2001] 3 SCR 442). The
development of the common law can also of course be influenced by the ECHR.
41.
The examples given by the Lord President of a party or witness whose safety
may be endangered or who may suffer commercial ruin if his identity becomes
known, or that of the female pursuer where the decision turns on intimate medical
Page 13
evidence, are all capable of raising issues which could warrant a qualification of the
principle of open justice, applying the approach which I have explained. In relation
to the last example, which was the subject of particular criticism by counsel for the
BBC, I agree with the Lord President that it would be in the interests of justice to
protect a party to proceedings from the painful and humiliating disclosure of
personal information about her where there was no public interest in its being
publicised. Whether a departure from the principle of open justice was justified in
any particular case would depend on the facts of that case. As Lord Toulson
observed in Kennedy v The Charity Commission [2014] UKSC 20, para 113, the
court has to carry out a balancing exercise which will be fact-specific. Central to the
court’s evaluation will be the purpose of the open justice principle, the potential
value of the information in question in advancing that purpose and, conversely, any
risk of harm which its disclosure may cause to the maintenance of an effective
judicial process or to the legitimate interests of others.
Convention rights
42.
Having considered the source and importance of the principle of open justice,
as well as the source and extent of the court’s common law power to derogate from
it, I now turn to the ECHR standards that apply in this context. Under the
Convention, the principle of open justice is expressly protected by article 6(1),
which provides that in the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a public hearing. Article 6(1)
also provides that judgment shall be pronounced publicly. The rationale of these
requirements, as explained by the European Court of Human Rights, is the same as
in the common law:
“The public character of proceedings protects litigants against the
administration of justice in secret with no public scrutiny; it is also one
of the means whereby confidence in the courts can be maintained. By
rendering the administration of justice visible, publicity contributes to
the achievement of the aim of article 6(1), a fair hearing, the guarantee
of which is one of the foundations of a democratic society” (B and P
v United Kingdom (2001) 34 EHRR 529, para 36).
43.
As in domestic law, the general principle set out in article 6(1) is subject to
qualifications:
“the press and public may be excluded from all or part of the trial in
the interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection
of the private life of the parties so require, or to the extent strictly
Page 14
necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.”
44.
These qualifications broadly reflect the various grounds upon which
exceptions to the principle of open justice are made in our domestic law, either under
the common law or under statute. In relation to the last of the qualifications (“where
publicity would prejudice the interests of justice”), the assessment is explicitly left
to the opinion of the national court. In relation to the other qualifications, as in
relation to the qualifications to other Convention guarantees, the European court has
allowed national authorities a margin of appreciation. The court has accepted that a
state can designate a class of cases, such as proceedings under the Children Act
1989, as an exception to the general rule (B and P v United Kingdom (2001) 34
EHRR 529, para 39). It has also accepted that measures short of the complete
exclusion of the press and public, such as allowing a witness to remain anonymous,
may be compatible with article 6(1) (see, for example, Doorson v Netherlands
(1996) 22 EHRR 330, para 71), and that such measures may even be necessary in
order to secure a fair trial (see, for example, V v United Kingdom (1999) 30 EHRR
121, para 87).
45.
Article 6 is not the only provision of the Convention which is relevant to the
principle of open justice. Articles 2 and 3 may for example apply where parties or
witnesses are in physical danger. The rights guaranteed by those articles are, in this
context, unqualified. The Convention therefore requires that proceedings must be
organised in such a way that the interests protected by those articles are not
unjustifiably imperilled: Doorson, para 70. In our domestic law, the court’s power
to prevent the identification of a witness is accordingly part of the structure of laws
which enables the United Kingdom to comply with its obligations under those
articles: In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697,
para 27 per Lord Rodger.
46.
Article 8 may also be relevant. It protects the private lives of the parties, to
which article 6(1) also refers, and in addition requires respect for the private lives of
other persons who may be affected by legal proceedings, such as witnesses. It is
however a qualified right:
“There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others”.
Page 15
The court therefore allows a margin of appreciation to national authorities in striking
a fair balance between the interest in publicity of court proceedings, on the one hand,
and the interests protected by article 8, on the other hand: Z v Finland (1997) 25
EHRR 371, para 99.
47.
Article 10 is also relevant to the principle of open justice, since the right to
receive and impart information, which is guaranteed by article 10(1), may be
engaged where measures are taken in relation to court proceedings to prevent
information from becoming publicly available. The right guaranteed by article 10(1)
is however qualified by article 10(2):
“The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in
a democratic society ... for the protection of the reputation or rights
of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the
judiciary.”
48.
These qualifications reflect the fact that freedom of expression may conflict
with other important values, including the rights to life and to bodily security
protected by articles 2 and 3 of the Convention, the integrity of legal proceedings
and the rights of litigants and accused persons, protected by article 6, and the right
to respect for private life, protected by article 8. Where there is a conflict between
the right of the media to report legal proceedings and the rights of litigants or others
under a guarantee which is itself qualified, such as article 8, a balance must be struck,
so as to ensure that any restriction upon the rights of the media, on the one hand, or
of the litigants or third parties, on the other hand, is proportionate in the
circumstances. The approach which should be adopted was considered in detail by
Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) [2004]
UKHL 47; [2005] 1 AC 593, and by Lord Rodger in In re Guardian News and Media
Ltd [2010] UKSC 1; [2010] 2 AC 697.
49.
Where the conflict is between the media’s rights under article 10 and an
unqualified right of some other party, such as the rights guaranteed by articles 2, 3
and 6(1), there can be no derogation from the latter. Care must nevertheless be taken
to ensure that the extent of the interference with the media’s rights is no greater than
is necessary. The need for such care reflects the important role of the media in a
democratic society in scrutinising the administration of justice generally, as well as
their role as the conduit of information about particular proceedings which may be
of public interest.
Page 16
50.
Article 10(2) specifically identifies “maintaining the authority and
impartiality of the judiciary” as a legitimate aim which may justify interference with
freedom of expression. The phrase has a wide scope, as the European Court of
Human Rights explained in Sunday Times v United Kingdom (1979) 2 EHRR 245,
para 55:
“The Court first emphasises that the expression 'authority and
impartiality of the judiciary' has to be understood 'within the meaning
of the Convention'. For this purpose, account must be taken of the
central position occupied in this context by article 6, which reflects
the fundamental principle of the rule of law.
The term 'judiciary' ('pouvoir judiciaire') comprises the machinery of
justice or the judicial branch of government as well as the judges in
their official capacity. The phrase 'authority of the judiciary' includes,
in particular, the notion that the courts are, and are accepted by the
public at large as being, the proper forum for the ascertainment of legal
rights and obligations and the settlement of disputes relative thereto;
further, that the public at large have respect for and confidence in the
courts' capacity to fulfil that function.”
The need to maintain the authority and impartiality of the judiciary, as a justification
for an interference with freedom of expression, thus overlaps with the right to a fair
trial under article 6(1), and with the entitlement to derogate from the open justice
principle under that article “where publicity would prejudice the interests of justice”.
As the court indicated in the Sunday Times case, it is article 6(1) which occupies the
central position in this context.
51.
Where the European court finds that a restriction of the principle of open
justice is justifiable under article 6(1), it may not therefore find it necessary to
consider the matter under article 10, on the basis that no separate issue arises. In the
case of B and P v United Kingdom, for example, the court declined to examine a
complaint under article 10 that the applicants were prohibited, upon risk of being
found in contempt of court, from disclosing any documents used in proceedings
under the Children Act 1989. The orders complained of were ancillary to measures
taken to prevent public access to the hearing and to the judgment. Those measures
had themselves been found to be justifiable under article 6(1) in order to protect the
privacy of the children and the parties and to avoid prejudicing the interests of
justice.
Page 17
52.
The European court has accepted that the law of contempt falls within the
ambit of the legitimate aim of maintaining the authority and impartiality of the
judiciary. As it stated in the Sunday Times case at para 55:
“The majority of the categories of conduct covered by the law of
contempt relate either to the position of the judges or to the
functioning of the courts and of the machinery of justice: 'maintaining
the authority and impartiality of the judiciary' is therefore one purpose
of that law.”
In many later cases the court has accepted the compatibility with article 10 of
restrictions on the publication of material which may prejudice the outcome of court
proceedings: see, for example, Worm v Austria (1997) 25 EHRR 454 and BBC
Scotland, McDonald, Rodgers and Donald v United Kingdom (Application No
34324/96) (unreported) given 23 October 1997.
53.
As the court explained in the Sunday Times case, it is unnecessary, where the
aim of maintaining the authority and impartiality of the judiciary is engaged, to give
separate consideration to the aim of “protection of ... the rights of others”, so far as
the rights of the litigants in that capacity are concerned:
“In so far as the law of contempt may serve to protect the rights of
litigants, this purpose is already included in the phrase 'maintaining
the authority and impartiality of the judiciary': the rights so protected
are the rights of individuals in their capacity as litigants, that is, as
persons involved in the machinery of justice, and the authority of that
machinery will not be maintained unless protection is afforded to all
those involved in or having recourse to it. It is therefore not necessary
to consider as a separate issue whether the law of contempt has the
further purpose of safeguarding 'the rights of others'.” (para 56)
54.
The balance to be achieved under article 10, in this context, is therefore
between on the one hand protection of public discussion of matters of legitimate
interest in a democracy, and on the other protection of the integrity of particular
court proceedings or of the administration of justice more generally. If other interests
protected under article 10(2) or under other articles of the Convention, such as article
8, are also involved, then they must also be taken into account. This approach is
consistent with that adopted under our domestic law, as explained in para 41.
Page 18
The relationship between the Convention and domestic law
55.
It was submitted on behalf of the BBC that the source of the court’s power to
allow a party to legal proceedings not to disclose his identity publicly, in a situation
where Convention rights are engaged, is to be found in the Convention rights
themselves, rather than in the common law. Reference was made to In re S (A Child)
(Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593,
para 23 per Lord Steyn, and In re Guardian News and Media Ltd [2010] UKSC 1;
[2010] 2 AC 697, para 30 per Lord Rodger. These dicta were not however concerned
with the conduct of court proceedings. They concerned a different issue, namely the
jurisdiction of the English courts to make orders contra mundum restraining
publicity relating to court proceedings, and in particular the publication of
information identifying persons involved in those proceedings: a jurisdiction which
might otherwise have been in doubt, as Lord Rodger noted.
56.
It is apparent from recent authorities at the highest level, including Al Rawi
and others v Security Service and others (JUSTICE and others intervening) [2011]
UKSC 34; [2012] 1 AC 531, Bank Mellat v Her Majesty’s Treasury [2013] UKSC
38; [2013] 3 WLR 179 and Kennedy v The Charity Commission [2014] UKSC 20,
that the common law principle of open justice remains in vigour, even when
Convention rights are also applicable. In another recent decision, R (Osborn) v
Parole Board [2013] UKSC 61; [2013] 3 WLR 1020, this court referred at para 61
to the importance of the continuing development of the common law in areas falling
within the scope of the Convention guarantees, and cited as an illustration the case
of R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court
(Article 19 Intervening) [2012] EWCA Civ 420; [2013] QB 618, where an issue
falling within the ambit of article 10 was decided by applying the common law
principle of open justice. Similar observations were made in Kennedy v The Charity
Commission at paras 46 and 133; and the majority judgments in that case provide a
further illustration of the same approach.
57.
That approach does not in any way diminish the importance of section
6 of the Human Rights Act, by virtue of which it is unlawful for the court to act in a
way which is incompatible with a Convention right, unless subsection (2) applies.
As was made clear in Kennedy, however, the starting point in this context is the
domestic principle of open justice, with its qualifications under both common law
and statute. Its application should normally meet the requirements of the
Convention, given the extent to which the Convention and our domestic law in this
area walk in step, and bearing in mind the capacity of the common law to develop
as I have explained in para 40. As the case of V v United Kingdom demonstrates, it
is however necessary to bear in mind that, although the Convention and our domestic
law give expression to common values, the balance between those values, when they
conflict, may not always be struck in the same place under the Convention as it
Page 19
might once have been under our domestic law. In that event, effect must be given to
the Convention rights in accordance with the Human Rights Act.
Section 11 of the Contempt of Court Act 1981
58.
It is necessary next to return to section 11 of the 1981 Act, which provides:
“In any case where a court (having power to do so) allows a name or
other matter to be withheld from the public in proceedings before the
court, the court may give such directions prohibiting the publication
of that name or matter in connection with the proceedings as appear
to the court to be necessary for the purpose for which it was so
withheld.”
59.
Section 11 was enacted in order to implement a recommendation made in the
Report of the Committee on Contempt of Court (1974) (Cmnd 5794), para 141,
footnote 72, following the case of R v Socialist Workers Printers and Publishers
Ltd, Ex p Attorney-General [1974] 1 QB 637. As Lord Rodger explained in In re
Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 31, section
11 does not itself confer any power upon courts to allow “a name or other matter to
be withheld from the public in proceedings before the court”, but it applies in
circumstances where such a power has been exercised. The purpose of section 11 is
to support the exercise of such a power by giving the court a statutory power to give
ancillary directions prohibiting the publication, in connection with the proceedings,
of the name or matter which has been withheld from the public in the proceedings
themselves. Section 11 thus resolves the doubt which had arisen following the
Socialist Workers case as to the power of the court to make such ancillary orders at
common law. The directions which the court is permitted to give are such as appear
to it to be necessary for the purpose for which the name or matter was withheld.
60.
It was submitted on behalf of the BBC that section 11 does not enable an
order to be made for the purpose of protecting an individual’s Convention rights:
such an order can only be made, it was argued, in order to protect the public interest
in the administration of justice. That submission is of limited significance in the
present case since, as I shall explain, one of the purposes of the order was to protect
the administration of justice. Section 11 does not in any event contain any such
limitation; and, where the courts are required under the Human Rights Act to impose
reporting restrictions in order to protect Convention rights, they must use the means
which are available to them.
Page 20
61.
It was also submitted that no order could be made under section 11 unless
members of the public had been present in the courtroom and had had a name or
other matter withheld from them. That is however an unduly narrow construction of
the provision. In the present case, for example, even if there were no members of
the public present in court during the hearing before Lord Boyd, the effect of the
order permitting the applicant for judicial review to be described as “A” was that his
identity would be withheld from anyone looking at the rolls of court, either in
Parliament House or on the internet, when any future hearing was listed, and from
anyone present in the building when such a hearing was announced over the public
address system. Anyone attending subsequent hearings in the case would hear him
referred to in the same way; anyone who requested to see court documents to which
the public could have access would also see him referred to in that way; and any
judgments in the case, published on the internet or in the law reports, would be
similarly anonymised. In all these respects, A’s identity would be withheld from the
public.
Section 12 of the Human Rights Act 1998
62.
Section 12 of the Human Rights Act provides:
“(1) This section applies if a court is considering whether to grant any
relief which, if granted, might affect the exercise of the Convention
right to freedom of expression.
(2) If the person against whom the application for relief is made (‘the
respondent’) is neither present nor represented, no such relief is to be
granted unless the court is satisfied -
(a) that the applicant has taken all practicable steps to notify the
respondent; or
(b) that there are compelling reasons why the respondent
should not be notified.
(3) No such relief is to be granted so as to restrain publication before
trial unless the court is satisfied that the applicant is likely to establish
that publication should not be allowed.
(4) The court must have particular regard to the importance of the
Convention right to freedom of expression and, where the proceedings
Page 21
relate to material which the respondent claims, or which appears to the
court, to be journalistic, literary or artistic material (or to conduct
connected with such material), to -
(a) the extent to which -
(i) the material has, or is about to, become
available to the public; or
(ii) it is, or would be, in the public interest for the
material to be published;
(b) any relevant privacy code.
(5) In this section -
‘court’ includes a tribunal; and
‘relief’ 'includes any remedy or order (other than in
criminal proceedings).”
63.
As Lord Nicholls of Birkenhead explained in Cream Holdings Ltd v Banerjee
[2004] UKHL 44; [2005] 1 AC 253, para 15, section 12 was enacted to allay
concerns about the potential impact of article 8 Convention rights upon the grant of
injunctions or interdicts against the media. It appears that section 12(2), in particular,
was intended to restrict the scope for pre-publication injunctions or interdicts being
granted against broadcasters or the press on an ex parte basis, and that section 12(3)
was designed to impose a more demanding test for the grant of interlocutory
injunctions than the American Cyanamid standard. The effect of the provisions
depends however upon the language used by Parliament rather than upon the
particular concerns which may have prompted their enactment.
64.
In the present case, the First Division considered that an order under section
11 of the 1981 Act fell within the scope of section 12(2) of the Human Rights Act,
on the basis that the expression “relief” was wide enough to cover an order of that
kind. The first respondent has taken advantage of the BBC’s appeal to challenge that
conclusion.
Page 22
65.
As I have explained, section 11 of the 1981 Act applies where the court
“allows a name or other matter to be withheld from the public in proceedings before
the court”, and permits the court to “give such directions prohibiting the publication
of that name or matter in connection with the proceedings as appear to the court to
be necessary”.
66.
When an application is made to the court to allow a name or matter to be
withheld, that is not an application for relief made against any person: no remedy or
order is sought against any respondent. If ancillary directions under section 11 are
also sought, prohibiting any publication of the name or matter in question, that
equally is not an application for relief made against any respondent: the directions
will operate on a blanket basis. In such circumstances there is no respondent who
should be notified, or who might be present or represented at the hearing. There is
therefore no obligation under section 12(2) of the Human Rights Act to allow the
media an opportunity to be heard before such an order can be granted.
67.
The Lord President observed at para 39 that, even if the media were not
entitled to be heard by virtue of section 12(2) of the Human Rights Act, they were
entitled to be heard as a matter of fairness, although there was a question as to the
stage at which the opportunity to be heard should be given. I agree. There are many
situations in which courts make orders without having heard the persons who may
be affected by them, usually because it is impractical, for one reason or another, to
afford a hearing to those persons in advance of the making of the order. In such
circumstances, fairness is secured by enabling any person affected to seek the recall
of the order promptly at a hearing inter partes. In principle, an order under section
11 of the 1981 Act falls within the ambit of that approach. It would be impractical
to afford a hearing to all those who might be affected by a section 11 order (including
bloggers, social media users and internet-based organisations) before such an order
was made; but fairness requires that they should be able to seek the recall of the
order promptly at a hearing inter partes. Article 13 of the Convention also requires
that the media should have an effective remedy for any violation of their article 10
rights. That requirement is capable of being fulfilled, where a section 11 order has
been made ex parte, provided its recall can be sought promptly at a hearing at which
the media are able to make representations (cf Mackay and BBC Scotland v United
Kingdom (2010) 53 EHRR 671, para 32). As the facts of this case demonstrate, the
existing procedures in the Court of Session are capable of satisfying those
requirements.
68.
That said, a conclusion that the existing procedures provide a sufficient
safeguard to meet the requirements of the Convention does not mean to say that
improved procedures may not be possible and desirable. Although it would be
impractical to provide all those who might be affected by a section 11 order with an
opportunity to make representations before such an order is made, it may
nevertheless be possible in some circumstances to provide such an opportunity to
Page 23
some of those who would be affected. Nothing I have said is therefore inconsistent
with the Lord President’s conclusion that improved procedures should be
introduced, or with the intention of the Scottish Civil Justice Council to address that
issue. Any improved procedures should not however make it impossible to obtain
orders restricting publicity on an ex parte basis: as the Lord President recognised,
there will inevitably be circumstances in which it is necessary for such orders to be
made on that basis.
The present case
69.
It is necessary finally to consider the application of these principles to the
present case. The BBC was aware of A’s identity at all material times. It would have
been free to report it, were it not for the order made by Lord Boyd under section 11
of the 1981 Act. The order therefore fell within the scope of article 10 of the
Convention, as given effect by the Human Rights Act. The BBC was entitled to
challenge the order as being incompatible with article 10, on the assumption that a
public broadcaster such as the BBC can qualify as a “victim” of a violation of that
article. In the light of the relevant case law of the European Court of Human Rights
(eg Radio France v France (2004) 40 EHRR 706; Ősterreichischer Rundfunk v
Austria (Application No 35841/02) (unreported) given 7 December 2006; Mackay
and BBC Scotland v United Kingdom (2010) 53 EHRR 671), and in the absence of
argument to the contrary, I proceed on the basis that it can.
70.
As I have explained, article 10 sets out a qualified guarantee: the right of
freedom of expression can be subjected to restrictions which are prescribed in law
and are necessary in a democratic society “for the protection of the ... rights of
others ... or for maintaining the authority and impartiality of the judiciary”. There
is no doubt that an order made under section 11 is prescribed by law. The issue is
whether the order made in the present case was necessary in a democratic society
for the protection of the rights of others or for maintaining the authority and
impartiality of the judiciary.
71.
There are undoubtedly features of the case which support the BBC’s
contention that there was at all material times a public interest in its ability to report
it without restrictions. These include the fact that the case concerns the deportation
of a foreign sex offender, the remarkable length of time the proceedings have taken,
and the cost of the proceedings to the taxpayer. The reporting of the present case
would contribute to a debate of general interest: cases concerning the deportation of
foreign offenders are not infrequently reported as part of a debate about the impact
of European human rights law, or about the procedure followed in such cases. It is
also true that A has in the past been the subject of publicity in which his name and
photograph were published. It is also undeniable that, although the BBC could report
Page 24
all other aspects of the case, their inability to reveal A’s identity would detract from
the human or journalistic interest of the story.
72.
Nevertheless, the arguments in favour of Lord Boyd’s decision to make the
order, and Lord Glennie’s decision not to recall it, were in my view overwhelming.
It is necessary first to recall the procedural context in which those decisions were
taken. The tribunal had made a decision, the effect of which was to authorise A’s
deportation, and it had also made an anonymity direction on the ground that A
“could be put at risk of harm by publication of [his] name and details”. Its decision
to authorise A’s deportation, in the face of concerns about the risk of his being ill-
treated on his return to his country of origin, had been made on the basis that
anonymity would be a significant protection of his article 3 rights. Lord Boyd’s
order was then made in proceedings in which the validity of the tribunal’s decision
was challenged. A date had been fixed for the hearing of A’s challenge to the
decision, but the Home Secretary proposed to deport A several weeks before that
hearing took place. The case came before Lord Boyd so that he could decide whether
the deportation should be allowed to proceed before the challenge to the tribunal’s
decision had been heard.
73.
In that situation, the publication of A’s identity, or of information enabling
him to be identified, would have subverted the basis of the tribunal’s decision to
authorise his deportation. That decision had been based on an assessment that there
was no real risk of a violation of article 3 if A’s identity was not publicised in
connection with the deportation proceedings. The decision would have been
undermined, before the challenge to its validity was determined, if his identity was
published in the meantime. A fresh application to be allowed to remain in this
country could then have been made on the basis of the new factual situation created
by the publication of his identity in connection with the deportation proceedings.
That application would then have required to be considered by the Home Secretary,
and a fresh decision made. The publication of A’s identity would therefore have
frustrated the judicial review proceedings before the court. Indeed, the entire
proceedings since at least 2007 would have been rendered largely pointless.
74.
The reasons for making the order were equally compelling if considered from
the perspective of protecting A’s article 3 rights in the event of his deportation. The
tribunal, as the fact-finding body in this case, had accepted that A would be at serious
risk of violence if his identity became known in his country of origin in connection
with these proceedings, and had concluded that anonymity would be a significant
protection of his article 3 rights. In those circumstances, the court’s failure to make
a section 11 order would, as the Lord President observed, have had the grave
consequence that the deportation might create all the risks that the tribunal’s
directions as to anonymity had been intended to prevent.
Page 25
75.
In these circumstances, it was plainly necessary in the interests of justice, and
in order to protect the safety of a party to the proceedings, to depart from the general
principle of open justice to the extent involved in the making of the orders made by
Lord Boyd. It follows that, subject to any issue arising under the Convention, the
order allowing A to withhold his identity in the proceedings was in accordance with
the common law, and the section 11 order was made in accordance with the power
conferred by that provision.
76.
It also follows that the section 11 order was not incompatible with the
Convention rights of the BBC. The interference with its freedom of expression was
necessary to maintain the authority and impartiality of the judiciary, since its
publication of A’s identity in connection with the proposed deportation would have
completely undermined the judicial review proceedings. In these circumstances,
where the publication of A’s identity in connection with the proceedings might well
have rendered those proceedings pointless, the interference with the BBC’s article
10 rights was unavoidable if the authority and impartiality of the judiciary, within
the meaning of article 10(2), were to be maintained. Put shortly, the order had to be
made if the court was to do its job, notwithstanding the resulting restriction upon the
BBC’s capacity to do its job. The interference with the BBC’s article 10 rights was
also necessary for the protection of the rights of others, namely the right of A not to
be subjected to violent attack. As Lord Rodger observed in In re Guardian News
and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 27, the media do not have
the right to publish information at the known potential cost of an individual being
killed or maimed.
77.
Although the BBC was not represented before Lord Boyd, it was able to
apply to the court promptly for the recall of the order. As I have explained, that
application was due to be heard by the court on 9 November 2012, only two days
after the order had been made. With the BBC’s agreement, that hearing was
postponed until 14 November 2012, when Lord Glennie heard the BBC’s
application over the course of two days. He concluded that the order was justified
and should not be recalled. For the reasons I have explained, that decision was
correct. The procedure that was followed in my opinion satisfied the BBC’s
entitlement under the Convention to an effective remedy.
Anonymity in relation to this judgment
78.
At the outset of the hearing of this appeal, the court made an order “that no
one shall publish or reveal the name of the respondent who is involved in these
proceedings or publish or reveal any information which would be likely to lead to
the identification of the respondent in connection with these proceedings”. That
order was made with the agreement of the BBC.
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79.
A is now residing in the country where, as the tribunal concluded, he is at
risk of serious violence if his identity becomes known in connection with these
proceedings. His application for judicial review of the tribunal’s decision to
authorise his deportation has not yet been heard. In these circumstances, it is
appropriate both in the interests of justice, and in order to protect A’s safety, that his
identity should continue to be withheld in connection with these proceedings, and
that the order should therefore remain in place.
Conclusion
80.
For these reasons, I would dismiss the appeal.
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