A v British Broadcasting Corporation

Open justice is a constitutional common law principle. Public reporting by the media is integral to effective scrutiny of the courts. A court may nevertheless use its inherent jurisdiction to protect a party’s or witness’s identity where departure from open justice is necessary to secure justice. The restriction must be fact-specific and no wider than necessary.

This common law power remains available when Convention rights are engaged. Section 11 of the Contempt of Court Act 1981 supplies an ancillary power to prohibit publication. Section 12(2) of the Human Rights Act 1998 does not require advance notice to the media of a blanket reporting order, but fairness requires a prompt opportunity to seek its recall. Anonymity may be required where identification would frustrate proceedings or expose a person to serious violence.

A foreign national, referred to as A, sought judicial review of the Upper Tribunal’s refusal of permission to appeal against a deportation decision. The Court of Session permitted him to proceed anonymously and made an order under section 11 of the Contempt of Court Act 1981 prohibiting publication of identifying information. The order reflected findings that publicity could expose A to serious violence after deportation and undermine the basis upon which his removal had been authorised.

The BBC was not represented when the order was made. Its application for recall was refused in British Broadcasting Corporation, Applicant [2012] CSOH 185. Its reclaiming motion was then refused by the Inner House: [2013] CSIH 43.

The appeal concerned whether the court retained a common law power to grant anonymity when Convention rights were engaged, whether the order was compatible with article 10, and whether section 12(2) of the Human Rights Act 1998 required prior notice to the media.

1. Appeal dismissed unanimously. Lord Reed delivered the judgment, with which Lady Hale, Lord Wilson, Lord Hughes and Lord Hodge agreed. The anonymity and reporting-restriction orders were lawful, and the order protecting A’s identity was to remain in force.

2. Open justice is a constitutional common law principle and an aspect of the rule of law. It ordinarily requires public hearings and permits media reporting because the media provide the principal means by which the public scrutinises the courts. Courts nevertheless possess an inherent jurisdiction to control their procedure and may depart from open justice when necessity in the interests of justice requires it. Convenience is insufficient. The court must consider the purpose and value of disclosure, the resulting risk of harm to the judicial process or legitimate interests, and whether a narrower restriction will suffice.

3. The common law power includes allowing the identity of a party or witness to be withheld. Anonymity may protect safety, confidentiality or the effectiveness of current and future judicial proceedings. The common law remains the starting point even when Convention rights apply. Section 6 of the Human Rights Act 1998 nevertheless requires the court to give effect to Convention rights if the balance required by the Convention differs from that reached under domestic law.

4. Section 11 of the Contempt of Court Act 1981 does not itself confer the power to withhold a name or other matter in court. It supplies an ancillary power to prohibit publication once a court has lawfully withheld that information. Its operation does not depend on members of the public having been physically present at the hearing. It can support restrictions required to protect Convention rights as well as the administration of justice.

5. Section 12(2) of the Human Rights Act 1998 did not require prior notice to the BBC. An application for anonymity and blanket section 11 directions is not relief sought against a respondent. Fairness and article 13 nevertheless require an affected media organisation to have a prompt and effective opportunity to seek recall at an inter partes hearing. The availability of ex parte orders must be preserved where urgency or other circumstances make them necessary.

6. The restriction on the BBC’s article 10 rights was necessary and proportionate. Publication would have undermined the factual basis of the deportation decision, frustrated the pending judicial review and exposed A to the serious violence against which article 3 protected him. The public interest in unrestricted reporting was substantial, but the BBC remained able to report every aspect of the proceedings except identifying information. Its prompt recall application provided an effective remedy.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The Inner House’s refusal to recall the reporting restriction was upheld, and anonymity continued.
2. Inner House of the Court of Session: The BBC’s reclaiming motion was refused in [2013] CSIH 43. The court held that anonymity materially protected A and that recall would undermine the basis upon which his deportation had proceeded.
3. Outer House of the Court of Session: Lord Glennie refused the BBC’s application to recall the section 11 order in British Broadcasting Corporation, Applicant [2012] CSOH 185.
4. Outer House of the Court of Session: Lord Boyd had permitted A to amend his judicial review petition anonymously and had prohibited publication of identifying information under section 11 of the Contempt of Court Act 1981.