A v British Broadcasting Corporation

The Supreme Court upheld the Court of Session's exercise of the court's inherent jurisdiction and its use of section 11 of the Contempt of Court Act 1981 to protect the anonymity of the applicant (A) in judicial review proceedings concerning his deportation. The court held that the common law principle of open justice is subject to narrowly drawn exceptions where the interests of justice require anonymity, and that Convention rights (notably articles 3, 6 and 10) inform but do not displace the common law power. Section 11 enables ancillary publication prohibitions where a court has allowed a name or matter to be withheld in proceedings. Section 12 of the Human Rights Act 1998 does not require prior notification to the media of an application to withhold a name or matter where no order for relief is sought against a particular respondent, but procedural fairness requires that affected parties have an effective and prompt remedy to seek recall. Applying these principles, the court found that withholding A's identity and making the section 11 directions were necessary and proportionate to preserve the integrity of the judicial review proceedings and to protect A's article 3 rights.

This appeal concerned a challenge by the BBC to orders permitting the applicant to be anonymised in Court of Session judicial review proceedings and to prohibitions under section 11 of the Contempt of Court Act 1981 on publishing his identity or picture. The applicant (A) faced deportation following lengthy immigration proceedings in which the tribunal had found that, if identified in connection with the deportation, he would face a real risk of serious ill-treatment in his country of origin. The First-tier Tribunal had directed that A not be identified, and the Home Secretary's deportation decision was taken on the basis that anonymity would materially reduce that risk. The BBC sought recall of the section 11 order and challenged the underlying anonymisation on article 10 grounds.

The Supreme Court framed the issues as: (i) whether a common law power exists to protect anonymity where Convention rights are engaged or whether Convention rights have supplanted any such common law power; (ii) whether the court's decision and procedure were compatible with article 10 as applied by the Human Rights Act; and (iii) whether section 12 of the Human Rights Act required prior notification to the media before the order was made.

The court reviewed the long-standing constitutional principle of open justice and the well-established but limited common law exceptions permitting anonymisation or closed hearings where strictly necessary to achieve justice. It explained that Convention protections (articles 6, 8, 10 and the unqualified articles 2 and 3) are relevant and normally harmonise with the common law, but that the Human Rights Act requires domestic courts to give effect to Convention rights where the balance differs.

• On section 11 (Contempt of Court Act 1981): the court held that section 11 does not create the power to withhold a name but provides statutory authority for ancillary publication prohibitions where a court has allowed a name or matter to be withheld. The provision may be used for the protection of Convention rights and for protecting the administration of justice.
• On section 12 (Human Rights Act 1998): the court held that an application to withhold a name or matter is not an application for relief against any particular respondent and therefore section 12(2) does not require that all potentially affected media be notified before the order is made. Nonetheless, fairness requires that affected parties have an effective and prompt remedy to seek recall and make representations.
• On proportionality and necessity under article 10: balancing the public interest in reporting deportation of a foreign sex offender against the risk to A's life or safety and the integrity of proceedings, the court concluded that the anonymisation and section 11 direction were strictly necessary and proportionate. Publication of A's identity in connection with the proposed deportation would have undermined the tribunal's factual assessment and would have frustrated the judicial review and exposed A to the very risks the tribunal had sought to avoid.

The court therefore dismissed the BBC's appeal, finding the orders lawful, convention-compatible and procedurally fair given the prompt opportunity to seek recall.

This appeal was dismissed. The Supreme Court held that (i) the common law principle of open justice admits narrow exceptions and the courts possess an inherent jurisdiction to withhold a party's identity where necessary in the interests of justice; (ii) section 11 of the Contempt of Court Act 1981 supports ancillary publication directions where a name or matter has been withheld in proceedings and may be used to protect Convention rights and the administration of justice; (iii) section 12 of the Human Rights Act 1998 does not require prior notification to all potentially affected media when an application is made to withhold a name or matter in circumstances where no relief is sought against a particular respondent, although fairness requires a prompt inter partes opportunity to seek recall; and (iv) on the facts, anonymisation and the section 11 order were necessary and proportionate to protect A's article 3 rights and the integrity of the proceedings, and therefore compatible with article 10.

Appeal to the Supreme Court from the Inner House of the Court of Session ([2013] CSIH 43; 2013 SC 533). Earlier interlocutory and reclaiming proceedings in the Court of Session and Outer and Inner House: Lord Boyd's interlocutory order (7 November 2012) and refusal of interim suspension (8 November 2012); Inner House refusal of reclaiming motion [2012] CSIH 86; Lord Glennie's refusal to recall the section 11 order: British Broadcasting Corporation, Applicant [2012] CSOH 185; 2013 SLT 324; Inner House reclaiming motion refused [2013] CSIH 43; 2013 SC 533. Prior tribunal and appeal history includes decisions and remittals relating to A v Secretary of State for the Home Department [2008] CSIH 59 and other intermediate decisions noted in the judgment.