A v BBC (Scotland) [2014] UKSC 25

The BBC challenged a Court of Session order anonymising a foreign sex offender (A) in judicial review proceedings concerning his deportation. The Supreme Court dismissed the appeal, holding the anonymity order was justified at common law and compatible with article 10 ECHR.

Facts

A, a foreign national granted indefinite leave to remain in the UK, was convicted in 1996 of sexual offences against his step-child. Following protracted deportation proceedings beginning in 1998, his appeals based on articles 2, 3 and 8 ECHR were ultimately dismissed. The First-tier Tribunal made an anonymity direction, accepting that A faced a real risk of violence if his identity became known in his country of origin in connection with the deportation. A sought judicial review of the Upper Tribunal’s refusal of permission to appeal. On 7 November 2012, Lord Boyd of Duncansby permitted A’s name and address to be replaced by initials and made an order under section 11 of the Contempt of Court Act 1981 prohibiting publication of identifying details. The BBC, which knew A’s identity, applied to recall the order. Lord Glennie refused the application, and the Inner House refused the BBC’s reclaiming motion. A was deported on 14 December 2012. The BBC appealed to the Supreme Court.

Issues

The appeal raised three issues:

1. Whether the court possesses any common law power to protect the anonymity of a party where Convention rights are engaged, or whether such power has been superseded by the Convention rights.
2. Whether the court acted compatibly with the BBC’s article 10 ECHR rights in making the order, both substantively and procedurally.
3. Whether the order fell within section 12 of the Human Rights Act 1998, requiring the BBC to be notified and heard before any order was made.

Arguments

BBC

The BBC argued that any common law power to grant anonymity in cases engaging Convention rights had been superseded by the Convention rights themselves. It contended that the obiter dictum of the Lord President in Scottish Lion Insurance misstated the law. It submitted that section 11 of the 1981 Act could not be used to protect an individual’s Convention rights, only the administration of justice, and that no order could be made under section 11 unless members of the public had been present in court. It also argued the order fell within section 12 of the Human Rights Act, requiring prior notification.

A and the Home Secretary

It was argued that anonymity was necessary to preserve the integrity of the tribunal’s findings, which were premised on A’s identity being withheld, and to protect A’s article 3 rights against the risk of violence on return to his country of origin.

Judgment

Lord Reed (with whom the other Justices agreed) dismissed the appeal.

Open justice and the common law

The principle of open justice is a constitutional principle of the common law, recognised in Scotland since the Court of Session Act 1693. Courts retain an inherent jurisdiction to determine departures from open justice. Authorities including Scott v Scott, In re K (Infants), Attorney General v Leveller Magazine and Bank Mellat v HM Treasury establish that departures are permitted only where strictly necessary in the interests of justice, with the burden lying on those seeking to displace the general rule. Less drastic measures, such as withholding a party’s or witness’s identity, may suffice instead of complete exclusion of the public.

Common law power retained alongside Convention rights

The common law principle of open justice remains in vigour even when Convention rights are also applicable. The starting point is the domestic principle, with its qualifications, the application of which should normally satisfy the Convention. The court accepted the Lord President’s approach in Scottish Lion that the interests of justice are not confined to reaching a just decision between parties; the administration of justice is a continuing process, and anonymity may be justified to protect safety, prevent commercial ruin, or shield parties from humiliating disclosure where there is no public interest in publication.

Convention analysis

Article 6(1) protects open justice but allows qualifications. Articles 2 and 3 are unqualified and may require protective measures. Article 10 protects media reporting, but is qualified by article 10(2), permitting restrictions necessary to maintain the authority and impartiality of the judiciary and to protect the rights of others.

Section 11 of the 1981 Act

Section 11 does not itself confer power to withhold a name; it provides ancillary directions where such a power has been exercised. It is not limited to protecting the administration of justice, and the court must use available means to protect Convention rights where required. The BBC’s narrow construction was rejected: A’s identity was effectively withheld from the public through court rolls, public address announcements, court documents and published judgments.

Section 12 of the Human Rights Act

A section 11 order is not “relief” sought against a respondent; it operates on a blanket basis. Section 12(2) therefore does not require prior notification to the media. However, fairness requires that those affected can apply promptly for recall at an inter partes hearing, which satisfies article 13 ECHR.

Application to the present case

The order was necessary in the interests of justice and to protect A’s safety. The tribunal’s decision authorising deportation was premised on anonymity being a significant protection of A’s article 3 rights. Publication of A’s identity would have subverted the basis of that decision and rendered the judicial review proceedings pointless. The interference with the BBC’s article 10 rights was necessary to maintain the authority and impartiality of the judiciary and to protect A from violent attack. The procedure followed, including the BBC’s prompt opportunity to seek recall before Lord Glennie, satisfied Convention requirements.

Implications

The decision confirms that the common law principle of open justice continues to operate alongside Convention rights and is not displaced by them. Courts retain an inherent jurisdiction to depart from open justice where strictly necessary in the interests of justice, including to protect the safety of parties, preserve the integrity of judicial proceedings, or prevent humiliation in the absence of any public interest. The decision clarifies that section 11 of the 1981 Act is available to support anonymity orders made to protect Convention rights, not merely the administration of justice, and that such orders do not fall within section 12(2) of the Human Rights Act, so prior notification to the media is not required, though fairness demands a prompt opportunity to seek recall. The judgment is significant for courts, media organisations and litigants throughout the United Kingdom, providing guidance on the source and scope of anonymity powers, the balancing exercise required where article 10 conflicts with other Convention rights, and the procedural safeguards available to the media. The court acknowledged that improved procedures for notifying affected parties may be desirable but emphasised that ex parte orders must remain possible where circumstances require.

Verdict: Appeal dismissed. The anonymity order and the section 11 order were lawfully made in accordance with the common law and section 11 of the Contempt of Court Act 1981, and were compatible with the BBC’s rights under article 10 ECHR. The anonymity order was continued in respect of the Supreme Court judgment itself.

Source: A v BBC [2014] UKSC 25