UKSC 25
On appeal from:  CSIH 43
A (Respondent) v British Broadcasting Corporation (Appellant) (Scotland)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
8 May 2014
Heard on 22 and 23 January 2014
Ronald Clancy QC
(Instructed by Burness Paul and Williamsons)
Mungo Bovey QC
(Instructed by Drummond Miller LLP)
|Intervener – written submissions (Secretary of State for the Home Department)
(Instructed by Office of the Advocate General for Scotland)
LORD REED (with whom Lady Hale, Lord Wilson, Lord Hughes and Lord Hodge agree)
i) Whether the court possesses 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 are engaged. It is argued on behalf of the BBC that any common law power which might previously have been exercised in such circumstances has been superseded by the Convention rights.
ii) Whether the court acted compatibly with the BBC's rights under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), as given effect by the Human Rights Act, in making the order complained of, both in relation to the substance of its decision and in relation to the procedure which it followed.
iii) Whether the order fell within the scope of section 12 of the Human Rights Act, with the consequence that the BBC should have been notified and given an opportunity to make representations before any order was made.
The answers to these questions are of importance to courts, media organisations and individual litigants throughout the United Kingdom.
The factual background
"The proceedings involving the appellant are now anonymised thus reducing the risk of his being identified."
Permission to appeal to the Upper Tribunal was refused. An application to the Upper Tribunal for permission to appeal was also refused.
The general principle of open justice
"That in all time coming, all bills, reports, debates, probations and others relating to processes shall be considered, reasoned, advised and voted by the Lords of Session with open doors, where parties, procurators and all others are hereby allowed to be present, as they used to be formerly in time of debates, but with this restriction, that in some special cases the said Lords shall be allowed to cause remove all persons, except the parties and their procurators."
The corresponding Act "Anent Advising Criminal Processes with Open Doors", passed on the same date, made similar provision for the High Court of Justiciary. As Lord Shaw of Dunfermline commented in Scott v Scott  AC 417, 475, the two Acts formed part of the Revolution Settlement, and bore testimony to a determination to secure civil liberties against judges as well as against the Crown.
Exceptions to the principle of open justice
"As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity."
"But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott."
After citing the dictum of Viscount Haldane which I also have cited, Lord Devlin continued at p 239:
"That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means."
"There is no doubt that as a general rule the proceedings of a court are open to the public, and thus to public scrutiny, at all times. Exceptions have to be made in special circumstances to allow the court to conduct its proceedings behind closed doors where the interests of justice require this to be done. But that is always the exception, and the general principle which applies equally in the sheriff court as it does in the Court of Session is that the court sits both for the hearing of cases and for the advising of them with open doors."
"The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of article 6(1), a fair hearing, the guarantee of which is one of the foundations of a democratic society" (B and P v United Kingdom (2002) 34 EHRR 19, para 36).
"the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
The court therefore allows a margin of appreciation to national authorities in striking a fair balance between the interest in publicity of court proceedings, on the one hand, and the interests protected by article 8, on the other hand: Z v Finland (1998) 25 EHRR 371, para 99.
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"The Court first emphasises that the expression 'authority and impartiality of the judiciary' has to be understood 'within the meaning of the Convention'. For this purpose, account must be taken of the central position occupied in this context by article 6, which reflects the fundamental principle of the rule of law.
The term 'judiciary' ('pouvoir judiciaire') comprises the machinery of justice or the judicial branch of government as well as the judges in their official capacity. The phrase 'authority of the judiciary' includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; further, that the public at large have respect for and confidence in the courts' capacity to fulfil that function."
The need to maintain the authority and impartiality of the judiciary, as a justification for an interference with freedom of expression, thus overlaps with the right to a fair trial under article 6(1), and with the entitlement to derogate from the open justice principle under that article "where publicity would prejudice the interests of justice". As the court indicated in the Sunday Times case, it is article 6(1) which occupies the central position in this context.
"The majority of the categories of conduct covered by the law of contempt relate either to the position of the judges or to the functioning of the courts and of the machinery of justice: 'maintaining the authority and impartiality of the judiciary' is therefore one purpose of that law."
In many later cases the court has accepted the compatibility with article 10 of restrictions on the publication of material which may prejudice the outcome of court proceedings: see, for example, Worm v Austria (1998) 25 EHRR 454 and BBC Scotland, McDonald, Rodgers and Donald v United Kingdom (Application No 34324/96) (unreported) given 23 October 1997.
"In so far as the law of contempt may serve to protect the rights of litigants, this purpose is already included in the phrase 'maintaining the authority and impartiality of the judiciary': the rights so protected are the rights of individuals in their capacity as litigants, that is, as persons involved in the machinery of justice, and the authority of that machinery will not be maintained unless protection is afforded to all those involved in or having recourse to it. It is therefore not necessary to consider as a separate issue whether the law of contempt has the further purpose of safeguarding 'the rights of others'." (para 56)
The relationship between the Convention and domestic law
Section 11 of the Contempt of Court Act 1981
"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."
Section 12 of the Human Rights Act 1998
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ('the respondent') is neither present nor represented, no such relief is to be granted unless the court is satisfied -
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -
(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section -
'court' includes a tribunal; and
'relief' 'includes any remedy or order (other than in criminal proceedings)."
The present case
Anonymity in relation to this judgment