Factual and Procedural Background
These appeals concerned the interaction between freedom of information rights and court orders protecting complainers in proceedings involving allegations of sexual offences, particularly the risk of “jigsaw identification.” [1][2][3]
The Appellant withheld information relating to two complainers under section 26(c) of the Freedom of Information (Scotland) Act 2002, considering that disclosure could breach court orders and constitute contempt of court. The Respondent required disclosure of some of the information. [4]
The relevant court orders prohibited publication of information identifying, or likely to identify, the complainers. The orders remained in force, and the Appellant remained bound by an undertaking concerning investigative material. [5][6][7][8][9][10]
Two applicants requested evidence submitted to an independent investigation. Following earlier proceedings concerning whether the Appellant held the information, the Appellant relied on section 26(c), among other exemptions, to refuse disclosure. The Respondent issued decision notices requiring disclosure of some material. [11][12][13][14][15]
The appeals were brought on points of law under section 56 of the 2002 Act and were heard together. [16]
Legal Issues Presented
- Whether the Respondent was required to make an independent determination of whether disclosure would constitute, or be punishable as, contempt of court under section 26(c), or instead only determine whether the Appellant had a proper basis for relying on that exemption. [17][18][19][20][21]
- Whether the Respondent applied too high a threshold by asking whether disclosure would confirm or refute assumptions about the complainers’ identities, rather than whether it created a real or substantial risk of identification. [22][23][24][25][26][27]
Arguments of the Parties
Appellant’s Arguments
- The Respondent was not entitled to determine conclusively whether disclosure would amount to contempt; the relevant question was whether the Appellant had a proper basis for invoking section 26(c). [18][19]
- Section 26(c) was intended to prevent freedom of information legislation from undermining court orders, which explained why the exemption was absolute. [28]
- The Respondent had set the threshold too high by requiring definitive confirmation or refutation of identity. A real risk, danger or chance of identification within a section of the public was sufficient. [24]
Respondent’s Arguments
- The Respondent had independently assessed the withheld material and correctly concluded that some information was exempt while other information was not. [29][30]
- The statutory wording did not support a “real risk” or “realistic prospect” test, and disclosure compelled under the 2002 Act could not itself constitute contempt because it lacked deliberate defiance of the court. [31][32][33]
- The Respondent’s assessment was a factual question of fact and degree, and the appeal improperly sought to reargue that assessment. [34]
- The Respondent argued that it was not an error of law to omit consideration of authorities or submissions that had not been advanced before him. [34][35][36]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Graham v Robert Younger Limited 1955 JC 28 |
Breach of an undertaking to the court may amount to contempt of court. |
The principle was applied to the Appellant’s continuing undertaking. [37] |
| Murray v HM Advocate [2022] HCJAC 14; 2022 JC 181 |
A deliberate publication creating a real or substantial risk of identifying a complainer may breach an anonymity order; identification by a section of the public is sufficient. |
The Court held that the Respondent’s approach was inconsistent with this authoritative explanation of jigsaw identification and applied the principle in allowing the appeals. [10][38][39][40][25][26] |
| Scottish Ministers v Scottish Information Commissioner [2023] CSIH 46; 2024 SC 159 |
Earlier appellate proceedings concerning whether the Appellant held information for the purposes of the 2002 Act. |
The decision formed part of the procedural history. [12] |
| Dumfries and Galloway Council v Scottish Information Commissioner [2008] CSIH 12; 2008 SC 327 |
Interpretation of the words “otherwise than under this Act” in section 26. |
The Court noted the argument based on this authority but did not resolve the meaning of the phrase. [41][42] |
| Robertson and Gough v HM Advocate [2007] HCJAC 63; 2008 JC 146 |
Contempt involves wilful defiance of, or disrespect towards, the court; deliberate breach of an order is sufficient. |
The principle was quoted in the discussion of contempt in Murray. [43][38] |
| Brown v UK (44223/98) (2002) 35 EHRR CD197 |
The importance of protecting complainers’ dignity and privacy and encouraging the reporting of sexual offences. |
The principle was included in the discussion of the purpose of the anonymity orders. [44][45] |
| Beggs v Scottish Information Commissioner [2016] CSIH 23; 2016 SC 615 |
The Commissioner must independently determine whether an exemption applies and, for qualified exemptions, whether withholding is justified. |
The Court relied on this principle in rejecting deference to the public authority. [20][21] |
| Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851; [2018] 4 WLR 71 |
Failure to address a submission not advanced before the decision-maker is not necessarily an error of law. |
The Respondent relied on this proposition, but the Court considered that the jigsaw-identification issue was clearly before him. [34][46] |
| AL v Secretary of State for the Home Department [2026] EWCA Civ 370; [2026] 3 WLUK 640 |
Failure to address an unadvanced point was relied on as not necessarily constituting an error of law. |
The Respondent cited the case in support of his submissions. [34] |
| Secretary of State for the Home Department v Hirtie [2026] EWCA Civ 1000; [2026] 7 WLUK 623 |
Failure to address an unadvanced point was relied on as not necessarily constituting an error of law. |
The Respondent cited the case in support of his submissions. [35] |
| Taylor v Scottish Ministers (No 2) [2019] CSIH 11; 2019 SLT 681 |
Failure to address an unadvanced submission was relied on as not necessarily being an error of law. |
The Respondent cited the case in support of his submissions. [36] |
Court’s Reasoning and Analysis
The Commissioner’s statutory role was independent. Under sections 47, 49 and 50 of the 2002 Act, he had to decide for himself whether the public authority had complied with Part 1, including whether information fell within an exemption. He was not required to defer to the authority’s view. [47][20][21][48]
The Court therefore rejected the first ground of appeal. The Commissioner had correctly addressed whether disclosure would amount to contempt and had not misunderstood his statutory function. [49]
However, the Commissioner was required to understand the purpose and effect of the court orders, as explained in Murray. Those orders were intended to prevent identification within a relevant community, not merely identification by the public as a whole. [25][39][40]
The Commissioner accepted that disclosure could permit assumptions about the complainers’ identities but required that those assumptions be capable of confirmation or refutation. The Court held that this imposed too high a threshold. A real or substantial risk of identification was sufficient; probability, certainty or definitive confirmation was unnecessary. [26][27]
Because permitting assumptions about the complainers’ identities was inconsistent with the orders’ purpose of protecting their dignity, privacy and safety, the Commissioner had made an error of law in ordering disclosure. [50][51]
The Court did not consider it necessary to determine the meaning of the words “otherwise than under this Act” in section 26. [52]
Holding and Implications
The appeals were allowed. The decisions were quashed insofar as they ordered disclosure of material withheld under section 26(c), and the matters were remitted to the Commissioner for reconsideration in light of the Court’s opinion and Murray. [51]
The direct effect was that the disclosure orders were set aside and the Commissioner was invited to receive further submissions. Questions of expenses were reserved. [51][53]
The opinion does not state that it created a new precedent; it applied the principles concerning jigsaw identification already explained in Murray. [25][26]