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A v British Broadcasting Corporation (Scotland)
Factual and Procedural Background
A foreign national (“Respondent”) entered The Country in 1991, later marrying a citizen and receiving indefinite leave to remain. In 1996 he was convicted of sexual offences against a step-child and sentenced to four years’ imprisonment. The Government Authority decided in 1998 that he should be deported and served a deportation notice in 2002.
Lengthy immigration and asylum proceedings followed. From 2001 onwards tribunals anonymised the Respondent, accepting that publicity might expose him to vigilante violence contrary to articles 2, 3 and 8 of the European Convention on Human Rights (“ECHR”). In 2011 the First-tier Tribunal again dismissed his appeal but continued anonymity, finding that “the proceedings … are now anonymised thus reducing the risk of his being identified.”
The Respondent petitioned the Court of Session for judicial review of the Upper Tribunal’s refusal to grant permission to appeal. Immediately prior to a scheduled hearing the Government Authority fixed a deportation date. On an ex parte motion, Judge Boyd (i) allowed the petition to be amended to replace the Respondent’s name with an initial, and (ii) made an order under s 11 Contempt of Court Act 1981 (“the 1981 Act”) prohibiting publication of his identity.
Company A (“Appellant”), a national broadcaster, was not notified. It sought recall of the s 11 order. Judge Glennie refused, holding the order necessary to protect the Respondent’s article 3 rights and to preserve the integrity of the judicial review. The Inner House dismissed a reclaiming motion. The Respondent was deported on 14 December 2012. The present appeal is the Appellant’s further challenge to the anonymity order.
Legal Issues Presented
- Whether courts retain an inherent common-law power to protect the anonymity of parties where Convention rights are engaged, or whether that power has been supplanted by the Human Rights Act 1998.
- Whether the s 11 order infringed the Appellant’s article 10 ECHR rights, both substantively and procedurally.
- Whether s 12 Human Rights Act required that the Appellant be notified and heard before the s 11 order was made.
Arguments of the Parties
Appellant’s Arguments (Company A)
- The common-law power to anonymise litigants has been superseded by the scheme of the Human Rights Act; any restriction must be justified exclusively under the Convention.
- The s 11 order was a disproportionate interference with article 10 because the Respondent had already been named previously and public interest in reporting deportations is high.
- Section 12 Human Rights Act applied; therefore the broadcaster should have received advance notice and an opportunity to object before any restriction was imposed.
Respondent’s and Government Authority’s Arguments
- Anonymity was essential to protect the Respondent’s article 3 rights; without it there was a real risk of violent reprisals in his home country.
- Publication would undermine the tribunal’s factual findings and frustrate the pending judicial-review proceedings, thereby threatening the authority and effectiveness of the courts.
- Section 12 did not apply because the s 11 order is made against the world at large, not against a specific respondent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Scott v Scott [1913] AC 417 | Foundational statement of open-justice principle and limited exceptions. | Used to confirm that any departure from publicity must be based on necessity, not convenience. |
| R (Guardian News & Media) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 | Modern restatement of open justice; media access to documents. | Cited to emphasise courts’ inherent jurisdiction over publicity. |
| Sloan v B 1991 SC 412 | Link between open court and media reporting. | Illustrated Scottish recognition of principle. |
| Richardson v Wilson (1879) 7 R 237 | Once information is aired in open court it may be republished. | Demonstrated historical scope of open justice. |
| R (Cart) v Upper Tribunal [2011] UKSC 28 | Threshold for judicial review of Upper Tribunal refusals. | Applied by Judge Boyd when refusing interim suspension. |
| Eba v Advocate General [2011] UKSC 29 | Scottish counterpart to Cart test. | Same purpose as above. |
| A v Secretary of State [2008] CSIH 59 | Earlier stage of Respondent’s litigation; anonymity continued. | Background chronology. |
| CB v Secretary of State [2010] CSIH 89 | Further appellate step; anonymity direction. | Background. |
| British Broadcasting Corporation, Applicant [2012] CSOH 185 | First-instance refusal to recall s 11 order. | Decision under appeal. |
| Attorney General v Leveller Magazine Ltd [1979] AC 440 | Court may allow anonymity rather than sit wholly in camera. | Supports less-drastic measures doctrine. |
| In re K (Infants) [1965] AC 201 | Exceptions to open justice where publicity defeats purpose of proceedings. | Reinforces necessity test. |
| Bank Mellat v HM Treasury [2013] UKSC 38 | Describes open justice as fundamental; privacy only if strictly necessary. | Framework for balancing exercise. |
| R v Socialist Worker Printers, Ex p AG [1975] QB 637 | Authority for permitting witness anonymity. | Historical basis for s 11 legislation. |
| Scottish Lion Insurance Co Ltd v Goodrich Corp [2011] CSIH 18 | Anonymity to protect commercial confidentiality. | Example of tailored restriction. |
| Attorney-General v Butterworth [1963] 1 QB 696 | Court may act to protect future administration of justice. | Justified proactive orders. |
| HM Advocate v M [2007] HCJ 2 | Anonymity where witness health endangered. | Cited as Scottish example. |
| Devine v Secretary of State (1993, unreported) | Screening soldiers to preserve operational effectiveness. | Illustrated flexible approach. |
| Canadian Newspapers Co v Canada [1988] 1 SCR 122 | Canadian jurisprudence on witness anonymity. | Comparative law supporting development. |
| Edmonton Journal v Alberta [1989] 2 SCR 1326 | Embarrassment or humiliation as justification. | Comparative support. |
| R v Mentuck [2001] 3 SCR 442 | Concealing undercover officers’ identities. | Comparative support. |
| Doorson v Netherlands (1996) 22 EHRR 330 | ECHR acceptance of anonymous witnesses under art. 6. | Illustrative of Strasbourg approach. |
| V v United Kingdom (2000) 30 EHRR 121 | Anonymity may be required for fair trial. | Supports necessity test. |
| B and P v United Kingdom (2002) 34 EHRR 19 | Children proceedings exemption from open justice. | Cited for margin of appreciation. |
| Z v Finland (1998) 25 EHRR 371 | Balancing article 8 privacy with open justice. | Referenced for fair-balance test. |
| Sunday Times v United Kingdom (1979) 2 EHRR 245 | “Authority and impartiality of judiciary” under art. 10(2). | Basis for contempt rationale. |
| Worm v Austria (1998) 25 EHRR 454 | Restrictions to prevent trial prejudice may be art. 10 compliant. | Supports s 11 order’s legitimacy. |
| BBC Scotland & others v United Kingdom (1997, unreported) | Strasbourg approval of contempt-based restraints. | Cited for compatibility analysis. |
| Mackay & BBC Scotland v United Kingdom (2011) 53 EHRR 19 | Need for effective remedy under art. 13. | Used to show recall procedure suffices. |
| Radio France v France (2005) 40 EHRR 29 | Broadcasters can be “victims” for art. 10 purposes. | Supported standing of Appellant. |
| Osterreichischer Rundfunk v Austria (2006, unreported) | Same as above. | Supported standing. |
| In re S (A Child) [2004] UKHL 47 | Balancing articles 8 and 10; structured proportionality test. | Guided court’s balancing exercise. |
| In re Guardian News and Media Ltd [2010] UKSC 1 | Media do not have right to publish at cost of life or limb. | Quoted directly. |
| Kennedy v The Charity Commission [2014] UKSC 20 | Common law development alongside Convention rights. | Cited for continuing vigour of common law. |
| Al Rawi v Security Service [2011] UKSC 34 | Common-law open justice survives Human Rights Act. | Context for inherent jurisdiction. |
| R (Osborn) v Parole Board [2013] UKSC 61 | Need for common-law evolution despite Convention overlap. | Reinforced analytical framework. |
| Cream Holdings Ltd v Banerjee [2004] UKHL 44 | Interprets s 12 Human Rights Act. | Background to notification debate. |
| A v Scottish Ministers 2008 SLT 412 | Anonymity where prisoner safety at risk. | Scottish example cited. |
Court's Reasoning and Analysis
1. Source of Power. The Supreme Court reaffirmed that the principle of open justice is a constitutional common-law principle, traceable to seventeenth-century statutes, but subject to an inherent judicial power to impose necessary and proportionate restrictions. That power co-exists with, and is not displaced by, the Convention rights enacted through the Human Rights Act 1998.
2. Compatibility with the ECHR. Departures from open justice must satisfy article 6(1) (public hearing requirement) and any resulting restraints on expression must be justified under article 10(2). Where unqualified rights such as articles 2 or 3 are at stake, they take precedence, though interferences with journalism must still be the minimum necessary.
3. Statutory Framework. Section 11 of the 1981 Act confers no free-standing power; it permits ancillary publication restraints once a court has lawfully withheld a name. The Court rejected the Appellant’s narrow construction that s 11 protects only the “administration of justice,” finding no such textual limitation.
4. Section 12 Human Rights Act. The broadcaster argued that s 12(2) mandated advance notice. The Court held s 12 is engaged only where relief is sought “against” a respondent. A blanket s 11 direction operates in rem and therefore falls outside s 12(2). Nonetheless, fairness requires that affected media be able to seek prompt recall, a safeguard that existed and was in fact utilised in this case.
5. Application to the Facts. Publication of the Respondent’s identity would have:
- Nullified the tribunal’s factual finding that anonymity substantially reduced article 3 risk.
- Generated new evidence requiring fresh administrative decisions, thereby frustrating pending judicial-review proceedings and undermining the authority of the courts.
- Exposed the Respondent to a real risk of violence abroad.
These factors created a compelling necessity, meeting both the common-law test (“strict necessity”) and the proportionality standards of article 10(2). The measure was narrowly tailored: only identifying information was suppressed; all other aspects remained reportable.
6. Procedural Fairness. Although the Appellant had no prior notice, it was able to apply for recall within two days, received a two-day inter partes hearing, and then appealed further. This satisfied the requirement of an effective remedy under article 13 ECHR.
Holding and Implications
APPEAL DISMISSED.
The Court confirmed that:
- Courts retain an inherent common-law power to order anonymity where strictly necessary, even after the Human Rights Act.
- Section 11 Contempt of Court Act can legitimately protect both the administration of justice and individual Convention rights.
- Section 12 Human Rights Act does not invariably require media notification before a blanket anonymity order, provided prompt recall procedures exist.
Practically, the decision reassures lower courts that they may impose proportionate anonymity orders to safeguard article 3 or other compelling interests. It does not create new precedent but clarifies the interaction between common law, the 1981 Act and the Human Rights Act, guiding future applications by courts and media organisations.
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