A v British Broadcasting Corporation: Supreme Court: 8 May 2014

Secretary of state seeking to deport A - A alleging threat of violence in home nation due to nature of conviction - Court making order prohibiting identification of A - A being deported where anonymity reducing risk to A - British Broadcasting Corporation seeking to set aside anonymity order

A, a foreign national, was granted indefinite leave to remain in the UK. He was convicted of sexual offences against his step-child and sentenced to four years' imprisonment. In 1998, the secretary of state decided that he should be deported and a notice of intention to make a deportation order was served. In 2000, A, by then divorced, had re-married and had a number of children with his second wife.

From 2001, A launched a number of challenges to his deportation and applications to remain to remain in the UK. His identity was withheld in those proceedings. In 2010, A applied for asylum and submitted further representations. The secretary of state treated the application as an application for revocation of the deportation order. The application was refused and A appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (the FTT). The FTT gave a direction to the parties under rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, SI 2005/230, that no report of the proceedings should directly or indirectly identify A or any member of his family.

A's claim under article 3 of the European Convention on Human Rights was based on evidence to the effect that he would be at risk of violence if returned to his country of origin. It was said that the risk would arise as a result of publicity. His article 8 claim was based on his family life with his wife and children. The FTT dismissed the appeal and stated that, as the proceedings were anonymised, the risk of A being identified had reduced. A applied to the Court of Session for judicial review of the decision of the Upper Tribunal (Immigration and Asylum Chamber) to refuse his application for permission to appeal.

A applied for permission to amend the petition for judicial review by deleting his name and address and substituting initials. Media organisations were not notified of the hearing of that application and were not represented. The petition was allowed to be amended. An order was made under section 11 of the Contempt of Court Act 1981 (the 1981 act) that prohibited the publication of the name of the petitioner or any particulars or details calculated to lead to the identification of the petitioner (the section 11 order).

The British Broadcasting Corporation (BBC) became aware of the section 11 order and applied for it to be recalled (set aside). The application was refused (2012 Scot (D) 3/12). Lord Glennie noted that the only issue in the proceedings before the FTT had concerned the risk of its becoming known in his country of origin that A was being sent back. If that fact were known, and particularly if it were linked to information about the timing of his return, then it was accepted that there was a real risk of A's article 3 rights being infringed. That was why an anonymity direction had been made.

In those circumstances, it was deemed necessary to allow A's name and identifying details to be withheld from the public in the court proceedings, and for the section 11 order to remain: first, so as to safeguard A's Convention rights, and secondly, so as to preserve the integrity of the court proceedings, since publication of that information would give A grounds for a fresh application to the secretary of state and frustrate the proceedings before the court. A absconded and was later detained.

The secretary of state decided to deport him on 14 December. An application was made for interim suspension of that decision. He was also permitted to amend his application for judicial review which introduced averments to the effect that, following the granting to the BBC of leave to reclaim (appeal), it was uncertain whether the section 11 order would remain in place. The secretary of state could not, it was contended, deport A until that matter was settled since the FTT had relied upon the anonymity order in holding that he would not be at real risk on return to his country of origin. If the BBC's reclaiming motion was successful, a material basis of the tribunal's decision would be removed.

At the application for interim suspension of the deportation decision, the secretary of state accepted that A's deportation would be unlawful unless the section 11 order remained in place: in the absence of that order there would be a real risk that A's identity and history as a sex offender would be publicised, and that such publicity would expose him to vigilante behaviour in his country of origin, contrary to his rights under article 3. The application was refused on the basis that the BBC was unlikely to succeed in a reclaiming motion against Lord Glennie's decision.

On 14 December, A was deported to his country of origin. The BBC reclaimed against Lord Glennie's decision to refuse to recall the section 11 order and challenged the decision to make the order in the first place. The Inner House refused the reclaiming motion (2013 Scot (D) 10/5). The court considered that the material that had been before the FTT had justified the conclusion that anonymity would be a significant protection of A's rights under article 3 and that, in any event, the recall of the section 11 order would subvert the understanding on which A's deportation had been authorised. The BBC appealed.

The issues for determination were: (i) whether the court possessed any power at common law to protect the anonymity of a party to proceedings before it, where the Convention rights set out in Schedule 1 to the Human Rights Act 1998 (the 1998 act) were engaged; (ii) whether the court had acted compatibly with the BBC's rights under article 10 of the Convention in having made the order, both in relation to the substance of its decision and in relation to the procedure which it had followed; and (iii) whether the section 11 order had fallen within the scope of section 12 of the 1998 act, with the consequence that the BBC should have been notified and given an opportunity to make representations before any order had been made. Consideration was given to articles 6 and 13 of the Convention.

The appeal would be dismissed.

(1) Drawing together established authorities, the starting point was the domestic principle of open justice, with its qualifications and exceptions under both common law and statute. Its application should normally meet the requirements of the Convention, given the extent to which the Convention and domestic law walked in step and bearing in mind the capacity of the common law to develop.

However, it was necessary to bear in mind that, although the Convention and domestic law gave expression to common values, the balance between those values, when they conflicted, might not always be struck in the same place under the Convention as it might once have been under domestic law. In that event, effect had to be given to the Convention rights in accordance with the 1998 act (see [23]-[57] of the judgment).

In the circumstances, it had plainly been necessary in the interests of justice, and in order to protect the safety of a party to the proceedings, to have departed from the general principle of open justice to the extent involved in the making of the section 11 order. It followed that, subject to any issue arising under the Convention, the order that had allowed A to withhold his identity in the proceedings had been in accordance with the common law, and the section 11 order had been made in accordance with the power conferred by that provision (see [75] of the judgment).

Scott (otherwise Morgan) v Scott [1911-13] All ER Rep 1 applied; Al Rawi v Security Service [2012] 1 All ER 1 applied; Bank Mellat v Her Majesty's Treasury [2013] 4 All ER 495 applied; Booth v Par
ole Board [2014] 1 All ER 369 applied; Kennedy v Charity Commission [2014] All ER (D) 240 (Mar) applied; A-G's Application, Re [1963] 1 QB 696 considered; Official Solicitor to the Supreme Court v K [1963] 3 All ER 191 considered; R v Socialist Worker Printers and Publishers Ltd, ex p A-G [1975] 1 All ER 142 considered; A-G v Leveller Magazine Ltd [1979] 1 All ER 745 considered; Sloan v B 1991 SC 412 considered; Doorson v Netherlands (Application 20524/92) [1996] ECHR 20524/92 considered; B v United Kingdom (Application Nos 36337/97, 35974/97) [2001] 2 FCR 221 considered; V v United Kingdom (Application 24888/94) [1999] ECHR 24888/94 considered; Scottish Lion Insurance Co Ltd v Goodrich Corporation [2011] CSIH 18 considered; R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] 3 All ER 551 considered.

(2) The section 11 order had not been incompatible with the Convention rights of the BBC. The interference with its freedom of expression had been necessary to maintain the authority and impartiality of the judiciary, since its publication of A's identity in connection with the proposed deportation would have completely undermined the judicial review proceedings.

In those circumstances, where the publication of A's identity in connection with the proceedings might well have rendered those proceedings pointless, the interference with the BBC's rights under article 10 of the Convention had been unavoidable if the authority and impartiality of the judiciary, within the meaning of article 10(2), were to be maintained. The interference with the BBC's article 10 rights had also been necessary for the protection of the rights of others, namely the right of A not to be subjected to violent attack (see [76] of the judgment).

Sunday Times v United Kingdom (Application 6538/74) [1979] ECHR 6538/74 considered; Z v Finland (Application 22009/93) (1997) 45 BMLR 107 considered; S (a child) (identification: restriction on publication), Re [2004] 4 All ER 683 considered; Guardian News and Media Ltd, Re [2010] 2 All ER 799 considered.

(3) When an application was made to the court under section 11 of the 1981 act to allow a name or matter to be withheld, that was not an application for relief made against any person: no remedy or order was sought against any respondent. If ancillary directions under section 11 were also sought, prohibiting any publication of the name or matter in question, that equally was not an application for relief made against any respondent: the directions would operate on a blanket basis. In such circumstances there was no respondent who should be notified, or who might be present or represented at the hearing.

There was, therefore, no obligation under section 12(2) of the 1998 act to allow the media an opportunity to be heard before such an order could be granted. Even if the media were not entitled to be heard by virtue of section 12(2), they were entitled to be heard as a matter of fairness. It would be impractical to afford a hearing to all those who might be affected by a section 11 order before such an order was made, but fairness required that they should be able to seek the recall of the order promptly at an inter partes hearing.

Article 13 of the Convention required that the media should have an effective remedy for any violation of their article 10 rights. That requirement was capable of being fulfilled, where a section 11 order had been made ex parte, provided its recall could be sought promptly at a hearing at which the media were able to make representations. The existing procedures in the Court of Session were capable of satisfying the requirement of fairness. That did not mean to say that improved procedures might not be possible and desirable (see [66]-[68] of the judgment).

Although the BBC had not been represented when the section 11 order was made, it had been able to apply to the court promptly for its recall. On the BBC's application for recall, Lord Glennie had concluded that the order had been justified and should not be recalled. That decision had, in the circumstances, been correct. The procedure that had been followed had satisfied the BBC's entitlement under the Convention to an effective remedy (see [77] of the judgment).

Mackay v United Kingdom [2010] All ER (D) 267 (Dec) considered. Decision of First Division, Inner House, Court of Session [2013] Scot (D) 10/5 affirmed.

Mungo Bovey QC and Daniel Byrne (instructed by Drummond Miller LLP) for A; Ronald Clancy QC and Duncan Hamilton (instructed by Burness Paul and Williamsons) for the BBC; Andrew Webster (instructed by the Office of the Advocate General for Scotland) for the Secretary of State for the Home Department as intervener

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