(first) The British Broadcasting Corporation; (second) Times Newspapers Limited; (third) News Group Newspapers Limited For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Date | 19 March 2020 |
| Court | Court of Session |
| Published date | 19 March 2020 |
OUTER HOUSE, COURT OF SESSION
2020 CSOH 35
P931/19
OPINION OF LORD DOHERTY
in the cause
(FIRST) THE BRITISH BROADCASTING CORPORATION;
(SECOND) TIMES NEWSPAPERS LIMITED;
(THIRD) NEWS GROUP NEWSPAPERS LIMITED
Petitioners
for Judicial Review
Petitioners: McBrearty QC; Burness Paull LLP
Amicus Curiae: Pirie
19 March 2020
Introduction
[1] On 7 August 2019, in a chapter 33 ordinary cause at Forfar Sheriff Court
(FFR-F170/19), the sheriff (“the first respondent”) pronounced an interlocutor which
included the following order:
“ex proprio motu, in terms of s 4(2) of the Contempt of Court Act 1981, orders that
publication of any report of these proceedings, or any part of them, be postponed
until the further orders of court.”
Neither the interlocutor nor the minute of proceedings contained an explanation of why the
order was granted.
2
The rules
[2] At the time the order was made rule 48.2 of the Ordinary Cause Rules 1993 (Sheriff
Court (Scotland) Act 1907, Schedule 1(as amended)) provided that where the sheriff was
considering making an order restricting the reporting of proceedings he or she “may make
an interim order” (rule 48.2(1)). The other provisions of chapter 48 were in substantially the
same terms as the current provisions. The sheriff requires to specify in the interim order
why he is considering making an order (rule 48.2(3)); and the sheriff clerk must
immediately send a copy of the interim order to any interested person (rule 48.2(2)).
Rule 48.3 makes provision for an “interested person” (defined in rule 48.1(2)) to make
representations to the sheriff before an order is made. Rule 48.4 ordains that where an order
is made the sheriff clerk must immediately send a copy to any interested person and arrange
for publication of the making of the order to appear on the Scottish Court Service website.
Rule 48.5 provides that a person aggrieved by an order may apply to the sheriff for its
variation or revocation.
[3] In the Court of Session, chapter 102 of the Rules of the Court of Session 1994 makes
similar provision to chapter 43 of the Ordinary Cause Rules. Prior to 2 March 2020
chapter 102 provided that where the court was considering making an order restricting the
reporting of proceedings it “may make an interim order” (former rule 102.2(1)). Chapter 26
of the Sheriff Appeal Court Rules 2015 (former rule 26.2) and chapter 3 of the Summary
Application Rules 1999 (rule 3.41.2(1)) were in like terms. Chapter 56 of the Criminal
Procedure Rules (Act of Adjournal (Criminal Procedure Rules) 1996 (as amended)) makes
similar provision in respect of criminal proceedings.
[4] With effect from 2 March 2020, chapter 102 of the Rules of Court, chapter 48 of the
Ordinary Cause Rules, chapter 26 of the Sheriff Appeal Court Rules and chapter 3 of the
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