Re BBC

Court:Supreme Court
Docket Number:No 9
Judge:Lord Reed, Lady Hale, Lord Wilson, Lord Hughes, Lord Hodge
Judgment Date:08 May 2014, 08 May 2014
Jurisdiction:Scotland
Neutral Citation:[2014] UKSC 25

[2014] UKSC 25

THE SUPREME COURT

Easter Term

On appeal from: [2013] CSIH 43

before

Lady Hale, Deputy President

Lord Wilson

Lord Reed

Lord Hughes

Lord Hodge

A
(Respondent)
and
British Broadcasting Corporation
(Appellant) (Scotland)

Appellant

Ronald Clancy QC Duncan Hamilton (Instructed by Burness Paul and Williamsons)

Respondent

Mungo Bovey QC Daniel Byrne (Instructed by Drummond Miller LLP)

Intervener – written submissions (Secretary of State for the Home Department)

Andrew Webster (Instructed by Office of the Advocate General for Scotland)

Heard on 22 and 23 January 2014

Lord Reed (with whom Lady Hale, Lord Wilson, Lord HughesandLord Hodgeagree)

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behalf of the BBC that any common law power which might previously have been exercised in such circumstances has been superseded by the Convention rights.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.

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 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."

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...

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