Petition Of A V. The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Kingarth,Lord Menzies |
| Judgment Date | 17 May 2013 |
| Neutral Citation | [2013] CSIH 43 |
| Court | Court of Session |
| Published date | 17 May 2013 |
| Date | 17 May 2013 |
| Docket Number | P987/12 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Menzies Lord Kingarth | [2013] CSIH 43 P987/12 OPINION OF THE LORD PRESIDENT in the Reclaiming Motion by THE BRITISH BROADCASTING CORPORATION Minuter and Reclaimer in the Petition of A Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: __________ |
For the reclaimer: Clancy QC, Hamilton; Burness Paull & Williamsons LLP
For the petitioner: Bovey QC, Byrne; Drummond Miller LLP
For the respondent: Webster; Solicitor to the Advocate General for Scotland
17 May 2013
Introduction
[1] This is a reclaiming motion by the British Broadcasting Corporation (BBC) in a petition for judicial review in proceedings for the deportation of the petitioner. The reclaimer seeks recall of an interlocutor of Lord Boyd of Duncansby dated 7 November 2012 by which he allowed an amendment of the petition to anonymise the petitioner (the anonymity order) and gave directions in terms of section 11 of the Contempt of Court Act 1981 (the 1981 Act) prohibiting publication of the name of the petitioner and other matters (the section 11 order). The reclaimer, not having had advance notice of the petitioner's application for those orders, was not represented at the hearing.
[2] The reclaimer applied for variation or revocation of the section 11 order; but by interlocutor dated 6 December 2012 Lord Glennie refused the application in hoc statu. The reclaimer also seeks recall of that interlocutor.
Procedural History
[3] On 13 February 1991 the petitioner arrived in the UK. On 29 July 1991 he married a British citizen. On 4 August 1993 he was granted indefinite leave to remain. On 2 May 1996 he was convicted on two counts of indecent assault and one count of gross indecency against his stepdaughter and was sentenced to two terms of imprisonment of four years and to one term of eighteen months, all concurrent. In August 1998 he was served with notice of intention to deport on the basis that his deportation was conducive to the public good (Immigration Act 1971, s 3(5)(a)). So began the protracted history of resistance that I shall now relate.
[4] On 22 May 2001, the petitioner's appeal against deportation was dismissed. On 16 September 2001, he made a human rights application against deportation. On 31 May 2002, the application was refused. On 1 June 2002, a deportation order was served on him. On 20 March 2003, a further appeal against the refusal of his human rights application was refused. On 19 August 2004, the Immigration Appeal Tribunal affirmed the refusal. The petitioner then appealed to the Court of Session. On 5 April 2007 the Court granted his appeal and remitted his case, of consent, to the Asylum and Immigration Tribunal for a fresh hearing.
[5] At the fresh hearing the petitioner founded his case on articles 2, 3 and 8 of the Convention. On 17 July 2007, the Tribunal (the 2007 Tribunal) dismissed the appeal. Under article 3, the Tribunal expressly considered whether there was "a real risk of an attack on the appellant in [his home country], either as a result of publicity in the media, including the Internet, or otherwise" (Decision, para 32). It concluded that there was no real risk to the petitioner of inhuman or degrading treatment from any source if he were to be returned there (para 38).
[6] The petitioner was granted leave to appeal to the Court of Session. On 18 November 2008, the appeal was granted. The case was remitted to the Asylum and Immigration Tribunal for consideration of the appeal under article 8 only ([2008] CSIH 89). On 6 October 2009, the Tribunal dismissed the appeal. On 12 November 2010 the Court of Session refused an application for leave to appeal ([2010] CSIH 89). The petitioner applied for legal aid to appeal to the Supreme Court but the respondent successfully objected on the ground that the petitioner could seek the alternative remedy of revocation of the deportation order.
[7] On 14 December 2010, the petitioner claimed asylum. His further representations dated 23 December 2010 and 8 June 2011 were treated as an application for revocation of the deportation order on asylum and human rights grounds. On 1 August 2011, his application for revocation on articles 2, 3 and 8 grounds was refused by the respondent.
[8] The petitioner appealed against that refusal on article 3 and 8 grounds only. On 20 July 2012, the First-Tier Tribunal (Immigration and Asylum Chamber) (FTT) refused the appeal. The FTT relied on the detailed findings of the 2007 Tribunal, which had not been disturbed by the court. It found that the petitioner had not provided any reliable fresh evidence (para 81). The FTT considered that an expert report lodged by the petitioner in support of his article 3 case was "of little assistance" to his case since the author had been unable to find any reference to the petitioner or his case in the media in his home country (para 82). The anonymisation of the FTT proceedings had reduced the risk of his being identified. There was no credible evidence that he would be subject to inhuman or degrading treatment if returned to his home country. The petitioner had therefore failed to establish a "real risk" of breach of his article 3 rights. The appeal on that ground was dismissed.
[9] On 6 August 2012, the FTT refused leave to appeal to the Upper Tribunal. On 29 August 2012 leave to appeal was refused by the Upper Tribunal itself. The petitioner now seeks judicial review of that decision. On 21 September 2012 first orders were granted in the present proceedings.
[10] On 30 October 2012 the respondent decided to remove the petitioner from the country on 11 November 2012. The petitioner seeks suspension of that decision. On 7 November 2012, in addition to the orders that I have described, Lord Boyd of Duncansby continued consideration of the petitioner's motion for suspension ad interim. On 8 November 2012, suspension ad interim was refused. The petitioner reclaimed against that decision. On 9 November 2012, the reclaiming motion was refused.
[11] Thereafter by a further decision of the respondent the petitioner was detained pending his removal from the country on 14 December 2012. The petitioner sought suspension ad interim of that decision. On 12 December 2012, the petitioner moved for suspension ad interim of Lord Glennie's interlocutor of 6 December. The motion was refused. The petitioner reclaimed against that decision. On 13 December 2012, the petitioner's reclaiming motion was refused. He then sought leave to appeal to the Supreme Court. That too was refused. Soon after, the petitioner was deported.
[12] This history records the various means by which the petitioner's deportation has been delayed for fifteen years. There can be few appellate opportunities that his lawyers have overlooked. But he is now back in his home country. That, you might think, is the end of the matter. Far from it. Although the petitioner has apparently not been in recent touch with his Scottish lawyers, we have Mr Bovey's assurance that he has instructions to represent the petitioner in this reclaiming motion. Mr Bovey has told us that in light of the interlocutor of the Inner House dated 9 November 2012 he has in mind the possibility of amending the petition to seek an order for the return of the petitioner to the United Kingdom.
[13] That is the context in which we have to consider the reclaiming motion.
Statutory provisions
[14] Section 11 of the 1981 Act provides:
"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."
[15] Section 12 of the Human Rights Act 1998 (the 1998 Act), so far as material, provides:
"12 - Freedom of expression
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied -
(a) that the applicant has taken all practicable steps to notify the
respondent; or
(b) that there are compelling reasons why the respondent should not be
notified ...
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -
(a) the extent to which -
(i) the material has, or is about to, become available to the
public; or
(ii) it is, or would be, in the public interest for the material to be
published;
(b) any relevant privacy code.
(5) In this section -
"court" includes a tribunal; and
"relief" includes any remedy or order (other than in criminal proceedings)."
[16] Articles 2, 3 and 10 of the Convention are as follows:
"Article 2
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or
insurrection ...
Article 3
No one shall be subjected to...
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