A v Harrower
| Jurisdiction | Scotland |
| Judge | Lord Justice-Clerk (Dorrian),Lord Menzies,Lord Turnbull |
| Judgment Date | 04 October 2017 |
| Neutral Citation | [2017] HCJAC 91 |
| Docket Number | No 9 |
| Court | High Court of Justiciary |
| Date | 04 October 2017 |
[2017] HCJAC 91
Lord Justice-Clerk (Dorrian), Lord Menzies and Lord Turnbull
A v Secretary of State for the Home Department [2013] CSIH 43; 2013 SC 533; 2013 SLT 749
A v Secretary of State for the Home Department sub nom A v BBC (Scotland); A v British
Broadcasting Corporation [2014] UKSC 25; 2014 SC (UKSC) 151; 2014 SLT 613; 2014 SCLR 593; [2015] AC 588; [2014] 2 WLR 1243; [2014] 2 All ER 1037; [2014] EMLR 25; 37 BHRC 664
Advocate (HM) v M sub nom HM Advocate v Mola [2007] HCJ 2; 2007 SLT 462; 2007 SCCR 124
Advocate (HM) v McAllister [2014] HCJ 111; 2014 SLT 1023; 2014 SCL 799
Guardian News and Media Ltd and ors (Re) [2010] UKSC 1; [2010] 2 AC 697; [2010] 2 WLR 325; [2010] 2 All ER 799; [2010] EMLR 15; [2010] HRLR 14; [2010] UKHRR 181
Hall v Associated Newspapers Ltd 1979 JC 1; 1978 SLT 241
R v Socialist Worker Printers and Publishers Ltd, ex p Attorney-General [1975] QB 637; [1974] 3 WLR 801; [1975] 1 All ER 142; [1974] Crim LR 711
Erskine, J, An Institute of the Laws of Scotland (8th ed, Law Society of Scotland/Butterworths, Edinburgh, 1871), I, ii, 8
Scottish Civil Justice Council, Consultation on Draft Court Rules in Relation to Reporting Restrictions (Scottish Civil Justice Council, Edinburgh, July 2013) (Online: http://www.scottishciviljusticecouncil.gov.uk/docs/librariesprovider4/consultations/consultation-on-reporting-restrictions/reporting-restrictions-consultation-final.pdf?sfvrsn=2 (28 January 2018))
Justiciary — Procedure — Reporting restrictions in extortion cases — Whether sheriff has the power to make an order for anonymity at common law — Contempt of Court Act 1981 (cap 49), sec 11 —Act of Adjournal (Criminal Procedure Rules) 1996 (SI 1996/513 (S 47)), Ch 56
A presented a petition to the nobile officium of the High Court of Justiciary against a decision of the sheriff of Tayside, Central and Fife at Dundee, on 13 September 2017, revoking an order made under sec 11 of the Contempt of Court Act 1981 and refusing to make an order for anonymity at common law. On 15 September the application called before the Lord Ordinary (Tyre) who granted warrant for service, ad interim suspended the order of 13 September and ad interim prohibited any reporting in respect of the petition until 19 September 2017. On 19 September 2017, after hearing counsel for the petitioner, the court pronounced an interim order in the present petition, fixed a full hearing on the petition for 4 October 2017 and permitted any interested party to lodge answers to the petition and a written case and argument in advance of the full hearing.
Section 11 of the Contempt of Court Act 1981 (‘the 1981 Act’) provides, “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.”
The petitioner was a complainer in a summary prosecution for extortion. The complainer was not informed that the case was due to call on 18 August 2017, and the procurator fiscal made no submissions concerning publication on that occasion. Prior to the next calling, several news articles were published providing details such as the petitioner's name and photograph and the nature of the threats made towards him. On 8 September 2017, a sheriff granted the complainer's application for an order under sec 11 of the 1981 Act restricting publication of any reporting of the prosecution which might identify (or lead to, or result in, the identification) of the petitioner.
On 12 September 2017, a newspaper publisher presented written submissions under r 56.3 of the Act of Adjournal (Criminal Procedure Rules) 1996 (SI 1996/513 (S 47)) submitting that the original order was an interim order made under r 56.2(1). The publisher submitted that the original order was contrary to the principles of open justice. On 13 September 2017, the sheriff revoked the original order and refused the petitioner's application for anonymity at common law. The revocation was made on the basis the earlier decision had failed to identify any order that could provide for an ancillary order under sec 11 of the 1981 Act. The sheriff also concluded that there was no clear authority to support the proposition that a sheriff exercising summary jurisdiction had the power to make an order for anonymity at common law.
The complainer presented a petition to the nobile officium of the High Court of Justiciary. Before the High Court, it was common ground that a sheriff had power at common law to order that a complainer be granted anonymity and that the general principle of open justice would often require qualification in the case of alleged victims of extortion. It was also agreed that in the present case the balance between the competing interests of open justice and maintaining the integrity of the administration of justice fell on the side of making a limited restriction to prevent disclosure of the complainer's identity. There was no opposition to the order sought in terms of the petition.
Held that: (1) the petitioner was entitled to anonymity in the prosecution, should be referred to as “Mr A” in both the prosecution and the present petition and that, in terms of sec 11 of the 1981 Act, the publication of his name, any particulars or details relating to him and calculated to lead to his identification in connection with the prosecution, should be prohibited as should any publication calculated to lead to his identification in connection with the present petition (para 3); (2) a sheriff's inherent power at common law to regulate proceedings in the sheriff court, to maintain its authority and to ensure the fair and impartial administration of justice, included the power to withhold and prohibit publication of information as to the identity of individuals (paras 16, 18); (3) the interests of open justice would often require qualification in cases in which the crime of extortion was alleged (paras 22–24); (4) an order under sec 11 was an ancillary order and was pronounced to give effect to a foundational order, in cases similar to the present an application for a sec 11 order had to be preceded by a motion to the court at common law to exercise its inherent power to grant anonymity (para 27); and petition granted.
Observed orders made under sec 11 of the 1981 Act were governed by Ch 56 of the Act of Adjournal (Criminal Procedure Rules) 1996 which allowed the court to make an interim order, in most cases there were advantages in making an interim order including that it provided representatives of the media the opportunity to be heard and thus ensuring any order made was not unnecessarily wide (paras 28–31).
Hall v Associated Newspapers Ltd 1979 JC 1 and A v Secretary of State for the Home Departmen2014 SC (UKSC) 151applied and R v Socialist Worker Printers and Publishers Ltd, ex p Attorney-General[1975] QB 637followed.
The petition called in the High Court of Justiciary, comprising the Lord Justice-Clerk (Dorrian), Lord Menzies and Lord Turnbull, for a hearing on 4 October 2017.
Eo die the court granted the order sought for reasons set forth in the opinion of the Court which was subsequently delivered by Lord Turnbull—
Opinion of the Court—
[1] The petitioner in this application to the nobile officium of the High Court is the alleged victim in a summary prosecution (‘the prosecution’) brought by the procurator fiscal in Dundee (the...
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