Mr A For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2012] CSOH 185 |
| Year | 2012 |
| Published date | 04 December 2012 |
| Docket Number | P987/12 |
| Court | Court of Session |
| Date | 04 December 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 185 | |
| P987/12 | OPINION OF LORD GLENNIE in the application by THE BRITISH BROADCASTING CORPORATION for Variation or revocation of an order made under section 11 of the Contempt of Court Act 1981 in relation to the petition of A against the Secretary of State for the Home Department ________________ |
Petitioner: Bovey QC, Byrne; Drummond Miller LLP
Secretary of State: Webster; Office of the Advocate General
The British Broadcasting Corporation: Clancy QC, Hamilton; Burness LLP
4 December 2012
Introduction
[1] The petitioner is subject to a deportation order made by the Secretary of State for the Home Department arising from his conviction some 16 years ago of two counts of indecent assault and gross indecency. His protracted appeal against that deportation order was ultimately unsuccessful. Subsequently the petitioner applied to the Secretary of State for that deportation order to be revoked. The Secretary of State refused to revoke it. An appeal against that refusal was refused by the First-tier Tribunal ("the FTT"). Both the FTT and the Upper Tribunal rejected his application to appeal from the FTT to the Upper Tribunal. In a petition for judicial review, the petitioner seeks reduction of that refusal by the Upper Tribunal to grant him leave to appeal.
[2] A first order in the petition was made on 21 September 2012. A first hearing was fixed for 14 December 2012. Notwithstanding the grant of the first order and the imminence of the first hearing, on 30 October 2012 the Secretary of State gave notice that she intended to remove the petitioner on 11 November 2012. In his amended petition, the petitioner applied also for suspension (and interim suspension) of the Secretary of State's decision to remove him on 11 November 2012. He then applied by motion for interim suspension of that decision.
[3] The motion for interim suspension came before the court on 7 November 2012. After hearing argument lasting much of that day, the Lord Ordinary (Boyd of Duncansby) continued the case overnight and the next day (8 November 2012) delivered a written Opinion refusing the motion for interim suspension. That decision was reclaimed unsuccessfully to the Inner House on 9 November 2012. The petitioner has applied for leave to appeal to the Supreme Court. In the meantime, however, the plane on which he was due to leave the United Kingdom left without him; he did not use the rail and air tickets provided to him for his travel. He is said to have "gone to ground", though the details of what has happened are not clear as yet.
The section 11 Order
[4] At the beginning of the hearing on 7 November 2012, counsel for the petitioner moved the court to allow the petition to be amended inter alia by deleting the name and address of the petitioner in the instance and substituting therefor the words: "Mr A (Assisted Person)". That motion was granted by the Lord Ordinary, who also, on a motion made at the Bar and of consent, made an order under section 11 of the Contempt of Court Act 1981 prohibiting publication of the name of the petitioner or any particulars or details calculated to lead to his identification and directing that no picture should be published or broadcast of the petitioner. The reason advanced for the two motions, which was as I understand it accepted by the Lord Ordinary, was that it was feared that if it became known that he was about to return to his country of origin, he would on his return be subjected to violence, with the threat of physical injury and possibly death. For completeness, though I think nothing ultimately turns on it, I should mention that the interlocutor dealt with these matters in the reverse order to that which I have explained; in other words, it first made a direction in terms of section 11 of the Contempt of Court Act 1981, and then granted leave to amend the petition so as to anonymise the petitioner.
The present issue
[5] On 9 November 2012 the British Broadcasting Corporation ("BBC") made an application seeking to have the section 11 Order varied or revoked. Their main aim is revocation. They were not in court when the order was made and this is their first opportunity of bringing their concerns before the court. Their application raises an important issue on which there is much guidance but no direct authority. It also raises procedural issues which need to be resolved for the future.
[6] Before any substantive argument got under way. Mr Bovey QC, who appeared for the petitioner, explained that his client had effectively disappeared (see above). He very properly brought to my attention to possibility that the court might take the view that it could not hear submissions on his behalf but sought to dissuade me from any such view. He cited a number of authorities, namely the decision of the House of Lords in Polanski v Condé Naste Publications Ltd [2005] 1 WLR 637, the decision of the Appeal Court in Warpechowski v Her Majesty's Advocate [2009] HCJAC 79, and the decision of the ECHR in Dordević v Croatia (24 July 2012), in support of the proposition that while the court will refuse to hear a party who is in wilful disobedience of orders of the court, it will not refuse to hear a party simply because he is in a broader sense a fugitive from justice. I accept that distinction is properly drawn. The petitioner here may have "gone to ground", but he is not in breach of any order of the court. He seeks to vindicate his fundamental rights under Articles 2 and 3 of the European Convention of Human Rights and Fundamental Freedoms ("ECHE" or "the Convention") and his interest in resisting the motion by the BBC is different to that of the Secretary of State. In those circumstances I accepted that Mr Bovey was entitled to be heard on his behalf.
[7] I heard full and careful submissions from Mr Clancy QC for the BBC, from Mr Bovey QC for the petitioner and from Mr Webster for the Secretary of State. I am grateful to them all for the very considerable assistance which they gave. I should add that all parties were agreed that the section 11 order covered the present application as well as the hearings before the Lord Ordinary and the Inner House.
The Contempt of Court Act 1981
[8] The order under challenge in the present case was made under section 11 of the Contempt of Court Act 1981. However, section 4 was also referred to and is relevant to the discussion of the procedural issues in this case. These sections provide, so far as material, as follows:
"4. Contemporary reports of proceedings
(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.
(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.
...
(3) For the purpose of subsection (1) of this section a report of proceedings shall be treated as published contemporaneously -
(a) in the case of a report of which publication is postponed pursuant to an order under subsection (2) of this section, if published as soon as practicable after that order expires.
...
11 Publication of matters exempted from disclosure in court
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."
Submissions
[9] For the BBC, Mr Clancy QC argued first that the section 11 order was incompetent in the present case. In terms of section 11 of the Act, the court only had power to give directions prohibiting publication of a name or matter in connection with the proceedings if, having power to do so, it had already in those proceedings allowed a name or other matter "to be withheld from the public". This was clear not only from the opening words of the section. It was clear also from the fact that, at the end of the section, it was stipulated that the directions which the court could give prohibiting publication were linked to the "purpose" for which the name or other matter had been withheld by the antecedent order. That showed that there had to be a conscious decision to allow the name or other matter to be withheld for a particular purpose. The court had not allowed the petitioner's name to be withheld from the public in these proceedings. It followed that there was no power to prohibit publication: see in re Trinity Mirror plc [2008] QB 770 at paras.18-19. If that was correct, that was an end to the matter. But in any event, the court had no power in a case such as this, either at common law or under statute, to order the proceedings to be anonymised or to "allow" the petitioner's name or other matters which might lead to his being identified to be withheld from the public. If the court had no such power to make the necessary antecedent order, if followed it had no power to prohibit publication. That was made clear by Lord Hodge in HM Advocate v M 2007 SLT 462 at para.[6], though (as appears below) Mr Clancy criticised certain aspects of the reasoning in that case.
[10] As an example of the type of antecedent order which could act as the gateway to the exercise of the power to prohibit publication under section 11, Mr Clancy referred to a witness anonymity order under section 271N of the Criminal Procedure (Scotland) Act 1995, which is granted to an appropriate case to ensure that the identity of a witness is not...
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