Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 185
P987/12	OPINION OF LORD GLENNIE in the application by THE BRITISH BROADCASTING CORPORATION for Variation or revocation of an order made under section 11 of the Contempt of Court Act 1981 in relation to the petition of A against the Secretary of State for the Home Department ________________

Petitioner: Bovey QC, Byrne; Drummond Miller LLP

Secretary of State: Webster; Office of the Advocate General

The British Broadcasting Corporation: Clancy QC, Hamilton; Burness LLP

4 December 2012

Introduction

[1] The petitioner is subject to a deportation order made by the Secretary of State for the Home Department arising from his conviction some 16 years ago of two counts of indecent assault and gross indecency. His protracted appeal against that deportation order was ultimately unsuccessful. Subsequently the petitioner applied to the Secretary of State for that deportation order to be revoked. The Secretary of State refused to revoke it. An appeal against that refusal was refused by the First-tier Tribunal ("the FTT"). Both the FTT and the Upper Tribunal rejected his application to appeal from the FTT to the Upper Tribunal. In a petition for judicial review, the petitioner seeks reduction of that refusal by the Upper Tribunal to grant him leave to appeal.

[2] A first order in the petition was made on 21 September 2012. A first hearing was fixed for 14 December 2012. Notwithstanding the grant of the first order and the imminence of the first hearing, on 30 October 2012 the Secretary of State gave notice that she intended to remove the petitioner on 11 November 2012. In his amended petition, the petitioner applied also for suspension (and interim suspension) of the Secretary of State's decision to remove him on 11 November 2012. He then applied by motion for interim suspension of that decision.

[3] The motion for interim suspension came before the court on 7 November 2012. After hearing argument lasting much of that day, the Lord Ordinary (Boyd of Duncansby) continued the case overnight and the next day (8 November 2012) delivered a written Opinion refusing the motion for interim suspension. That decision was reclaimed unsuccessfully to the Inner House on 9 November 2012. The petitioner has applied for leave to appeal to the Supreme Court. In the meantime, however, the plane on which he was due to leave the United Kingdom left without him; he did not use the rail and air tickets provided to him for his travel. He is said to have "gone to ground", though the details of what has happened are not clear as yet.

The section 11 Order

[4] At the beginning of the hearing on 7 November 2012, counsel for the petitioner moved the court to allow the petition to be amended inter alia by deleting the name and address of the petitioner in the instance and substituting therefor the words: "Mr A (Assisted Person)". That motion was granted by the Lord Ordinary, who also, on a motion made at the Bar and of consent, made an order under section 11 of the Contempt of Court Act 1981 prohibiting publication of the name of the petitioner or any particulars or details calculated to lead to his identification and directing that no picture should be published or broadcast of the petitioner. The reason advanced for the two motions, which was as I understand it accepted by the Lord Ordinary, was that it was feared that if it became known that he was about to return to his country of origin, he would on his return be subjected to violence, with the threat of physical injury and possibly death. For completeness, though I think nothing ultimately turns on it, I should mention that the interlocutor dealt with these matters in the reverse order to that which I have explained; in other words, it first made a direction in terms of section 11 of the Contempt of Court Act 1981, and then granted leave to amend the petition so as to anonymise the petitioner.

The present issue

[5] On 9 November 2012 the British Broadcasting Corporation ("BBC") made an application seeking to have the section 11 Order varied or revoked. Their main aim is revocation. They were not in court when the order was made and this is their first opportunity of bringing their concerns before the court. Their application raises an important issue on which there is much guidance but no direct authority. It also raises procedural issues which need to be resolved for the future.

[6] Before any substantive argument got under way. Mr Bovey QC, who appeared for the petitioner, explained that his client had effectively disappeared (see above). He very properly brought to my attention to possibility that the court might take the view that it could not hear submissions on his behalf but sought to dissuade me from any such view. He cited a number of authorities, namely the decision of the House of Lords in Polanski v Condé Naste Publications Ltd [2005] 1 WLR 637, the decision of the Appeal Court in Warpechowski v Her Majesty's Advocate [2009] HCJAC 79, and the decision of the ECHR in Dordević v Croatia (24 July 2012), in support of the proposition that while the court will refuse to hear a party who is in wilful disobedience of orders of the court, it will not refuse to hear a party simply because he is in a broader sense a fugitive from justice. I accept that distinction is properly drawn. The petitioner here may have "gone to ground", but he is not in breach of any order of the court. He seeks to vindicate his fundamental rights under Articles 2 and 3 of the European Convention of Human Rights and Fundamental Freedoms ("ECHE" or "the Convention") and his interest in resisting the motion by the BBC is different to that of the Secretary of State. In those circumstances I accepted that Mr Bovey was entitled to be heard on his behalf.

[7] I heard full and careful submissions from Mr Clancy QC for the BBC, from Mr Bovey QC for the petitioner and from Mr Webster for the Secretary of State. I am grateful to them all for the very considerable assistance which they gave. I should add that all parties were agreed that the section 11 order covered the present application as well as the hearings before the Lord Ordinary and the Inner House.

The Contempt of Court Act 1981

[8] The order under challenge in the present case was made under section 11 of the Contempt of Court Act 1981. However, section 4 was also referred to and is relevant to the discussion of the procedural issues in this case. These sections provide, so far as material, as follows:

"4. Contemporary reports of proceedings

(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.

(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.

...

(3) For the purpose of subsection (1) of this section a report of proceedings shall be treated as published contemporaneously -

(a) in the case of a report of which publication is postponed pursuant to an order under subsection (2) of this section, if published as soon as practicable after that order expires.

...

11 Publication of matters exempted from disclosure in court

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."

Submissions

[9] For the BBC, Mr Clancy QC argued first that the section 11 order was incompetent in the present case. In terms of section 11 of the Act, the court only had power to give directions prohibiting publication of a name or matter in connection with the proceedings if, having power to do so, it had already in those proceedings allowed a name or other matter "to be withheld from the public". This was clear not only from the opening words of the section. It was clear also from the fact that, at the end of the section, it was stipulated that the directions which the court could give prohibiting publication were linked to the "purpose" for which the name or other matter had been withheld by the antecedent order. That showed that there had to be a conscious decision to allow the name or other matter to be withheld for a particular purpose. The court had not allowed the petitioner's name to be withheld from the public in these proceedings. It followed that there was no power to prohibit publication: see in re Trinity Mirror plc [2008] QB 770 at paras.18-19. If that was correct, that was an end to the matter. But in any event, the court had no power in a case such as this, either at common law or under statute, to order the proceedings to be anonymised or to "allow" the petitioner's name or other matters which might lead to his being identified to be withheld from the public. If the court had no such power to make the necessary antecedent order, if followed it had no power to prohibit publication. That was made clear by Lord Hodge in HM Advocate v M 2007 SLT 462 at para.[6], though (as appears below) Mr Clancy criticised certain aspects of the reasoning in that case.

[10] As an example of the type of antecedent order which could act as the gateway to the exercise of the power to prohibit publication under section 11, Mr Clancy referred to a witness anonymity order under section 271N of the Criminal Procedure (Scotland) Act 1995, which is granted to an appropriate case to ensure that the identity of a witness is not disclosed in or in connection with the proceedings, particularly an order made under section 271N(4)(a)(i) allowing the witness's name and other identifying details to be withheld. The purpose of such an order is obvious. But he submitted that Lord Hodge was wrong in HM Advocate v M in thinking that an order under section 92(3) of the 1995 Act removing all persons from the court from the commencement of the leading of evidence in a trial for rape and the like was such a gateway or antecedent order. The purpose of that type of order, which normally applied only during the evidence of a particular witness, usually the complainer, was to lessen the ordeal which that person would suffer by having to give evidence in front of others. It was not to allow the name of that witness to be withheld from the public. After all, the name of the complainer was given in the indictment which was read in open court before the public was excluded, and was often referred to in open court (after the public had been allowed back in) by counsel and other witnesses, and was sometimes mentioned by the judge in his charge to the jury. In practice the press did not report the name of the complainer, but that was a matter of restraint rather than one of legal obligation. Lord Hodge in that case also suggested that the court might have a common law power to regulate its proceedings by excluding the public from proceedings and thus withhold matters from the public. Mr Clancy accepted that such a common law power was recognised in McPhail on Evidence at para.7.02 (though see the reservations expressed in para.S7.02) and in McPhail, Sheriff Court Practice at paras.5.19, 5.20 and 5.25. Further, a statutory power to remove the public "in some special cases" was granted by the Court of Session Act 1693. But the mere existence of a power to exclude the public was not sufficient. To provide a gateway to the making of a section 11 order the exercise of such power would have to be directed to protecting the anonymity of a particular party or witness. Mr Clancy referred to Practice Note No.2 of 2007 on anonymising Opinions published on the internet. That emphasised the general rule that proceedings are heard and determined in public, that there should be public access to judicial determinations and reasons given for them, and that publication on the internet does not affect that principle. It considered various circumstances, such as under section 46 of the Children and Young Persons (Scotland) Act 1937, where the court could direct that no report should reveal the name of a person under the age of 17 concerned in the proceedings. It then mentioned other cases, such as asylum cases, where it was the usual practice to anonymise court Opinions before they were placed on the court website. Mr Clancy's point was that in cases where there was no specific statutory provision authorising the name of a person to be withheld from the public, anonymisation occurred as a matter of practice rather than because the court had the legal right to allow the name to be withheld. In such cases, he submitted, the opening words of section 11 of the Contempt of Court Act 1981 were not satisfied, and the court had no power to make a section 11 order.

[11] Thus far, Mr Clancy's submissions were directed to arguing that the section 11 order made by the Lord Ordinary was incompetent. He submitted that that order should be recalled, leaving it to the petitioner or Secretary of State, if so advised, to make a fresh application, both for an antecedent or gateway order and for a section 11 order. He made it clear that his clients did not wish to take advantage of a brief hiatus between the recall of this order and any application for a new order, and to that end he accepted the suggestion that if I were to conclude that the present order was incompetent I should put the case out By Order for further discussion before pronouncing an interlocutor to that effect. That, as is to be expected, is a responsible approach with which, if I were to get to that stage, I would be willing to accommodate.

[12] Turning to the merits of the case for a section 11 order, if the court had the power to make one, Mr Clancy referred me to Article 10 of the ECHR and a number of cases concerning the relationship between the right to freedom of expression and other rights protected by the Convention had been considered. Article 10.1 guarantees the right to freedom of expression, including the right "to receive and impart information and ideas without interference by public authority". Article 10.2 makes it clear that since the exercise of these functions carries with it duties and responsibilities, it

"... may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, 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."

Articles 2 (Right to life), 3 (Prohibition of torture and of inhuman or degrading treatment or punishment), 6 (Right to a fair trial) and 8 (Right to respect for private and family life) were also referred to. It was pointed out that while the rights protected in Articles 2 and 3 were (in this respect) absolute, Article 6 allowed the press and public to be excluded

"... from all or part of a 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";

while a public authority has the right to interfere with the exercise of Article 8 rights to the extent that such interference

"...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 cases cited by Mr Clancy included BBC, Petitioners 2002 JC 27 at paras.12 and 13, In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at paras.18 and 20, In re Guardian News and Media Ltd [2010] 2 AC 697 at paras.22-23, 26-27 and 63-65, Carr v News Group Newspapers Ltd (Eady J, unreported, [2005] EWHC 971 (QB) and Venables and Thompson v News Group Newspapers Ltd [2001] Fam 430. These cases showed that exceptions from Article 10 must be narrowly interpreted, and the necessity for any restrictions - the adjective "necessary" implying the existence of a "pressing social need" - must be "convincingly established": BBC, Petitioners at para.13. Given that there are numerous statutory automatic or discretionary reporting restrictions,

"... it needs to said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice."

per Lord Steyn in Re S (A Child) at para.20. As was made clear by Lord Rodger in In re Guardian News and Media Ltd at paras.63-65 the identification of individuals by name is an essential part of the right of the press to report what goes on in the courts; disembodied reports of proceedings are unlikely to be interesting to readers and, as a result, such reports will be given a lower priority and informed debate about the particular issue will suffer. From these cases Mr Clancy sought to emphasise the importance attached by the court to Article 10 rights, in this case the freedom of the press to report fully and fairly on the proceedings before the court. Outside the established exceptions,

"... there is no question of balancing freedom of speech against other interests. It is a trump card which always wins ..."

per Hoffman LJ in R v Central Independent Television [1994] Fam 192, 202-4, cited with approval in Venables and Thompson at para.37. While there was an established exception in Article 10.2 where the interference was necessary in a democratic society "in the interests of ... public safety, for the prevention of disorder or crime, for the protection of health or morals, [and] for the protection of ... rights of others", and while the rights under Articles 2 and 3 were entitled to protection in case of conflict, the case law showed that the court would not interfere with Article 10 rights to freedom of expression unless the necessity for the interference was "convincingly established".

[13] Mr Bovey QC, for the petitioner, moved the court to refuse the BBC's application. He did not dispute much of what had been said by Mr Clancy concerning the approach to Article 10. However, he submitted that Mr Clancy's argument about the competency of the section 11 order made by the Lord Ordinary was wrong. In particular, Mr Clancy read too much into the opening words of section 11:

"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 had power to "allow" the name of a party to be withheld from process. This was part of the court's common law power to regulate proceedings before it. Allowing the name of a party or other matter to be withheld from the public did not automatically mean that the publication of that name or matter in connection with the proceedings was prohibited. That was a separate question to be considered if an application were made for an order under section 11. There was a distinction to be drawn between the court allowing the name to be withheld in court and the (possibly subsequent) prohibition of publication. They were different things, different stages of the process. The Lord Ordinary here allowed the name to be withheld by permitting the petition to be anonymised. It was therefore competent for him to consider and grant the section 11 order.

[14] The petition was amended by deleting the name and address of the petitioner. The process that went to the Inner House was all in the name of "A", rather than in the petitioner's own name. What was done was consistent with what had happened before the FTT, where the tribunal made an anonymity direction under Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. The FTT took into consideration in refusing the petitioner's appeal the fact that the risk to him on his return would be reduced if the proceedings were anonymised. If the FTT had power to make such an order, it would be surprising if the court did not. The court had the power at common law to allow such information to be withheld. Whatever legal effect that had, it could "allow" it. It could then give legal effect to the need for proper protection by making an order in terms of the second half of section 11. As a matter of practice, such a withholding of information about a party or witness is often allowed. A witness in criminal proceedings will often give his address as "c/o" the local police office; his home address is thereby withheld from the public. The court has power to exclude the public from hearing the complainer's evidence in certain types of criminal case: see HM Advocate v M. In such cases, there may be a dual purpose; the order is made both for the avoidance of distress and so that the name is withheld to some extent for that time at least. Asylum petitions and judgments in asylum cases are often anonymised. The fact that the name might be revealed when the petition is lodged or intimated on the walls of court (a form of publication to the world in terms of Rule of Court 14.7(1)(a)), or mentioned during the course of proceedings, did not mean that thereafter a section 11 order could not be made. That only went to discretion. The numbers of people hearing the name in court were probably few. Having allowed the name or other matter to be withheld, even though it had been already referred to, the court could, by making a section 11 order, limit the extent of the publication. The order was competent.

[15] As to the merits, Mr Bovey emphasised that it was not a case of balancing the petitioner's rights under Articles 2 and 3 against the right to freedom of expression protected by Article 10. A balance might have to be struck where Article 10 was in a contest with, say, Articles 6 or 8. Cases dealing with that balance were of little relevance here. But where it was established to the requisite standard that there was a threat engaging Articles 2 and 3, the petitioner was entitled to the protection of the state. The rights protected by Articles 2 and 3 were absolute, and not to be weighted in a balance against the rights of other individuals or the public interest in freedom of expression. In this context he referred me to the case of Chahal v United Kingdom [1996] ECHR 54 at paras.80 and 149 and to In re Guardian News and Media Ltd at para.27. Article 10 is in any event qualified. In addition to a reference to the prevention of disorder and crime and the protection of health, which cross-refer to Articles 2 and 3, there was an exception if the interference with freedom of expression was necessary for maintaining the authority and of the judiciary. Anonymity was a factor in the decision of the FTT to refuse the petitioner's appeal, and in the decision of the court to refuse interim suspension of the decision to send him home; publication here of the name of the petitioner might mean that the decision of the court was undermined and could not in fact be given effect.

[16] For the Secretary of State, Mr Webster adopted the submissions of Mr Bovey. While the petitioner was concerned for his personal safety if returned to his home country, the Secretary of State was concerned that nothing should arise which would frustrate the decision which had already been taken. In that sense, the Secretary of State was concerned to uphold the rule of law - to ensure that decisions properly taken and upheld by the courts should not be frustrated by accident or design. Although he emphasised that he was not suggesting any impropriety in the present case, the urge to protect the rights of the press under Article 10 could, in other circumstances, be manipulated to assist an unscrupulous petitioner. The Secretary of State's stance was, therefore, a principled one, to assist the court.

[17] So far as concerned the competency of the section 11 order, Mr Webster supported Mr Bovey's submissions in support of the court having a power to allow the name of the petitioner to be withheld from the public in court proceedings. That was part of the court's inherent power to regulate its own proceedings in the interests of justice: see Maxwell, Court of Session Practice, pp.61-2, Park v Wilsons & Clyde Coal Co 1929 SC (HL) 38, 50, Drummond's Trs v Peel's Trs 1929 SC 484, 509, Stewart v Stewart (1906) 8 F 769, 775, M'Geachy v Standard Life Assurance Co 1972 SC 145, 146-7, and the more recent Inner House cases establishing the existence of the power to dismiss an action for delay rendering a fair determination no longer possible, viz. Tonner v Reiach and Hall 2008 SC 1, Moore v Scottish Daily Record and Sunday Mail Ltd 2009 SC 178 (concerning a different matter, but approving Tonner), and Hepburn v Royal Alexandria Hospital NHS Trust 2011 SC 20.

[18] Turning to the question of what has to be shown in order to bring Articles 2 and 3 into play ("the correct standard of proof"), Mr Webster suggested that the affected person, the petitioner in this case, had to establish only that there was a "real risk" of his Article 2 or 3 rights being violated, the word "real" connoting something "more than fanciful". That is the test used under the Refugee Convention: see Sivakumaran v Secretary of State for the Home Department [1988] 1 All ER 193, Karanakaran [2000] Imm AR 271 and MH (Iraq) v Secretary of State for the Home Department (unreported [2007] EWCA Civ 852) at para.22. The same test applies to claims under Articles 2 and 3 of ECHR: Kacaj v Secretary of State for the Home Department [2002] Imm AR 213 at para.12. Such a test was applied in Venables at paras.90 and 92 ("solid grounds for concern", "real possibility") and in Carr ("danger").

Discussion

[19] I deal first with the competency point. I accept the submission made by Mr Clancy that the court only has power to make a section 11 order prohibiting publication of a name or some other matter in a case where it deliberately allows that name or other matter to be withheld from the public in proceedings before the court. This was not in dispute. It is clear as a matter of statutory interpretation. And it is vouched in strong terms by the decision of a five judge Court of Appeal in the case of in re Trinity Mirror plc [2008] QB 770 at para.19:

"The power conferred by s.11 arises "where a court ... allows a name or other matter to be withheld from the public in proceedings before the court". Any such withholding has to be "for [a] purpose" and the heading of the section itself underlines its application to matters "exempted from disclosure in court". The judge accepted that the court had not allowed the defendant's name to be "withheld", or indeed "exempted" it from disclosure. Nevertheless he seems to have approached the problem as if permission had been given for the names, address and school of the children to be withheld. However the stark reality was that these facts were quite irrelevant to the proceedings, and no attempt was made, or indeed could properly be made, to refer to them. Accordingly the question of withholding them from the public never arose for consideration. Unless the court deliberately exercises its power to allow a name or other matter to be withheld, s.11 of the 1981 Act is not engaged."

An example of the court deliberately exercising this power in England is where the victim is allowed to withhold his name when giving evidence for the Crown in a prosecution for blackmail: see In re Guardian News and Media Ltd at para.31.

[20] There is no doubt to my mind that in this case the court did deliberately purport to exercise a power to allow the petitioner's name and other details to be withheld from the public in the court proceedings. By granting the motion to allow the petition to be amended so as to anonymise the petitioner, the court in effect permitted his name to be withheld from the public in the proceedings. There was no other reason for making the order; and it had no other consequence. The point was to allow him thereafter to be referred to, if at all, as "A"; though in fact, he would probably be referred to in court as "the petitioner". The main effect of the anonymisation would be to prevent someone seeing his name on the petition, though anyone inspecting the rolls of court or seeing other parts of process could no doubt ascertain his identity. Whether, in these circumstances, the allowance of the amendment anonymising the petition was effective in itself to result in his name actually being withheld from the public is perhaps a moot point; but the point is that the court made an order allowing his name to be withheld during the court proceedings, and did so for that purpose, and that is enough.

[21] Of course it is not sufficient that the court deliberately allows the name to be withheld. It must have power to do so. Again, that requirement is not in dispute here. It was spelled out by Lord Hodge in HM Advocate v M at para.[6]. But it is clear, in any event, from the words in parenthesis at the beginning of section 11.

[22] The question in this case is whether the court had any such power. I am satisfied that it did have that power as part of its inherent power to regulate the conduct of proceedings in the interest of justice.

[23] It is not necessary for the purposes of this case to consider the extent of the court's power to exclude the public from proceedings and withhold matters from the public in that way. There are, of course, a number of statutory provisions giving such power, among them section 92(3) of the Criminal Procedure (Scotland) Act 1995 and section 109 of the Adoption and Children (Scotland) Act 2007. Lord Hodge in HM Advocate v M thought that the court had a common law power to exclude the public from proceedings in certain circumstances, and I do not understand his remarks to be limited to a particular type of case. The Court of Session Act 1693 is equally wide in its apparent scope: it provides that proceedings in the Court of Session should take place "with open doors where parties procurators and all others are hereby allowed to be present", but permits the court "in some special cases ... [to] remove all persons except the parties and their procurators", without defining those special cases. However, any assertion of a general power to exclude the public from court proceedings must now, in my view, be viewed with considerable circumspection. In his book on Evidence, at para.S7.02, Sheriff McPhail, as he then was, taking a step back from the previous version of the text, states the broad principle that the courts must administer justice in public, a principal "which is subject to recognised exceptions which are justifiable on the ground that justice could not be done if the court were to sit in public." In his book on Sheriff Court Practice, he speaks of the principles of open justice being subject to statutory exceptions, "and to exceptions recognised by the common law and the practice of the courts which are justifiable on the ground that justice could not be done if the court were to sit in public ...". In both passages he emphasises, correctly in my view, that the exception is only justified if justice could not be done without some interference with the principle. That is consistent with the speeches in the House of Lords in Scott v Scott 1913 AC 417. I would not subscribe to the view that the court has a wider common law power to exclude the public from proceedings than that which is clearly necessary in order for it to do justice in the case before it: Scott v Scott remains good authority in this field, and the approach laid down in the speeches in that case is reinforced by the principles of open justice expressed in Articles 6 and 10 of the Convention. The recent cases make clear, in the words of Lord Steyn in Re S (A Child) at para.20, that "the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice." And, further, even where there is an established power to exclude the public, and it is necessary to use it, the court must only exercise it to the extent necessary to do justice. An example of this is the practice in the criminal courts where the public are excluded during the evidence of a complainer in a rape case but it is the practice to allow the press to remain, trusting to their discretion not to do anything which would enhance the mischief sought to be avoided by the exclusion of the public: see X v Sweeney 1983 SLT 48, 61 and HM Advocate v M at para.[8]. The public is excluded, but the public interest in open justice is protected.

[24] I prefer to base this part of my decision on the undoubted power of the court, sitting in open court, to allow names or other details of a party or witness to be withheld from the public in the court proceedings. Often this is all that is required. That is what the Lord Ordinary did in the present case. He allowed the amendment so as to anonymise the petition, and thereby allowed the petitioner's name to be withheld from the public in the course of the proceedings. That was sufficient to give him the power to make a section 11 order prohibiting publication.

[25] The cases to which I have referred in para.[17] above establish beyond any doubt that the court has an inherent power to regulate its own proceedings in the interests of justice, "to do whatever is necessary in order for it to maintain its character as a court of justice": per Lord Reed in Hepburn v Royal Alexandra Hospital at para[47]. "Its juridical basis is the authority of the court to uphold, protect and fulfil the judicial function of administering justice according to law" (ibid). Thus, in the exercise of that power it can take steps to ensure that nothing occurs during a hearing which will frustrate its decisions. As an attribute of this, it can, where the circumstances justify it, allow the name or other identifying details of a party or witness to be withheld from the public in the court proceedings. This is in addition to the cases where statute expressly permits it. Indeed, there may be an obligation on the court, in the appropriate case, to allow the name or other matters to be withheld from the public to protect the Convention rights of the individual concerned: see e.g. In re Guardian News and Media Ltd at para.29. The power to allow the name of a party to be withheld from the public in court proceedings is, perhaps, most often encountered in the practice of anonymising Opinions in the Court of Session. But there is no reason why it should not be exercised at an earlier stage of the hearing. In The Scottish Lion Insurance Company Limited v Goodrich Corporation and others 2011 SLT 733 the power was exercised to permit, for reasons of commercial confidentiality, the identity of the Noters to be withheld from the moment they entered the process (they were referred to throughout as Creditors 59, 105 and 106): see para.[65]. Nor is it limited to withholding the name of a party. It has been used to withhold the name of a witness in a criminal trial: see In re Guardian News and Media Ltd at para.31. There are many other examples which could be given.

[26] Accordingly, I am satisfied that the section 11 order made by the Lord Ordinary was competent, in that (i) he had power to allow the name of the petitioner to be withheld from the public during the court proceedings and (ii) he deliberately made an order with the intended effect of allowing the name to be withheld. That opened the door for him to consider whether or not to make an order under section 11 prohibiting publication.

[27] I should add that this two stage approach appears to be consistent with the English authorities. In R v Legal Aid Board ex parte Kaim Todner [1999] QB 966, 973 the Master of the Rolls, Lord Woolf, set out how the first instance judge had approached the matter:

"Latham J., having examined the authorities, does indicate, at p. 845, that while he has no doubt that the court's (sic) have the power to give anonymity 'in exercise of the court's inherent jurisdiction and to support it with an appropriate order under the Contempt of Court Act 1981' that the power is only to be exercised when 'the applicant can establish the basis of that power, namely that the failure to grant anonymity would render the attainment of justice really doubtful or, in effect, impracticable.'"

The power to grant anonymity is part of the court's inherent jurisdiction or power. Such an order can then, where necessary, be supported by a section 11 order. The same two stage approach appears from the passage already cited from In re Guardian News and Media Ltd at para.31.

[27] I turn to consider the merits of the application. Although Mr Clancy was at pains to emphasise the strength of the Article 10 right to freedom of expression, and in particular, so far as concerns the freedom of the press, "the right to receive and impart information and ideas without interference by public authority and regardless of frontiers", he did not suggest that in a contest with the right to life (Article 2) or the prohibition of torture and inhuman or degrading treatment (Article 3) there was a balance to be struck, as there is, for example, when the right to freedom of expression in Article 10 comes up against the right to respect for private and family life in Article 8 (see In re S (A Child) at para.17). He was right not to do so. The obligation on a state to have a structure of laws in place to help protect people from attacks on their lives or from assaults by other individuals, which may where necessary include the power to make an order for anonymity, is absolute: Chahal v United Kingdom [1996] ECHR 54 at paras.80 and 149, In re Guardian News and Media Ltd at para.27. As Lord Rodger put it in In re Guardian News and Media Ltd at para.27:

"a newspaper does not have the right to publish information at the known potential cost of an individual being killed or maimed. In such a situation the court may make an anonymity order to protect the individual."

That is not to say that the importance attached to press freedom and open justice is irrelevant. Far from it. But it is not sufficient just to pay lip service to it. It is necessary to understand the reasons for it. Two passages from the reported cases show why open justice and, in that context, freedom of expression (and in particular press freedom) are so important. In BBC, Petitioners Lord Justice-General Rodger, giving the Opinion of the Court said this at para.[12]:

"In Britain the general rule is that trials take place in public. This promotes not only the interests of the individual accused by ensuring that others can see whether he is being tried fairly but also the interests of the wider public who can see and, if appropriate, 'endorse, criticise, applaud or castigate the conduct of their courts': The State v Mamabolo, at para 29 per Kriegler J writing for the majority of the Constitutional Court of South Africa. The reporting of court proceedings in the media serves these two important but separate purposes."

And in R v Legal Aid Board, ex parte Kaim Todner Lord Woolf MR, said this at p.977:

"The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. ... Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary."

That passage was cited with approval by Lord Steyn in In re S (A Child) at para.29.

[28] Against this background Mr Clancy submitted that even in a case where Articles 2 and 3 were potentially engaged, the necessity for the interference with the right to freedom of expression had to be "convincingly established". I do not disagree with that expression. But it begs the question. What is it that needs to be convincingly established? Under reference to the word "necessary in Article 10.2, Mr Clancy (and, in his reply in Mr Clancy's absence, Mr Hamilton) argued that a person seeking to restrict the right to freedom of expression on Article 2 or 3 grounds had a "significant hurdle" to overcome. The test of a "real risk" to the safety of the individual, something "more than fanciful", was insufficiently rigorous. It must be "convincingly established" that the petitioner's rights under Articles 2 and 3 would be infringed if he were to be returned to his home country having been named in connection with these proceedings.

[29] I do not accept that submission. It has long been established that a party seeking asylum relying on the Refugee Convention has to show that there is a "real as opposed to fanciful risk" that the events about which he is concerned will happen. That is a lower test than that proposed by Mr Clancy. There is, to my mind, no reason why the standard of proof should be different when a person seeks to resist removal on Article 2 or 3 ECHR grounds. As was said in Kacaj at para.15, applying different standards to the two Conventions would produce confusion and be likely to result in inconsistent decisions.

[30] The point was in fact fully considered by the IAT in Kacaj. Three issues of principle were considered in the judgment of the IAT in that case. The first was:

(1) What is the correct standard of proof to be applied in deciding whether to return an applicant to a country where it is alleged that his human rights, particularly under Article 3, would be breached?

The Secretary of State in that case contended that the facts upon which the risk of treatment contrary to Article 3 had to be assessed must be established beyond reasonable doubt. That puts it higher than Mr Clancy puts it in the present case, but perhaps not very much higher (there is some irony in the fact that in this case it is the Secretary of State who, along with the petitioner is contending for the lower standard). The submissions of the Secretary of State were rejected. I need not set out in full the very careful judgment of the IAT, which reviewed the European and UK case law on the issue. I quote from para.12 of the judgment.

"Various expressions have been used to identify the correct standard of proof required for asylum claims. These stem from language used by Lord Diplock in R v Governor of Pentonville Prison ex p. Fernandez [1971] 2 All ER 691 at p.697, cited by Lord Keith in Sivakumaran at [1988] 1 All E.R. 198. Lord Diplock said that the expressions 'a reasonable chance', 'substantial grounds for thinking' and 'a serious possibility' all conveyed the same meaning. There must be a real or substantial risk of persecution. The test formulated by the European Court requires the decision maker and appellate body to ask themselves whether there are substantial grounds for believing that the applicant faces a real risk of relevant ill-treatment. That is no different from the test applicable to asylum claims. The decision maker and appellate body will consider the material before them and will decide whether the existence of a real risk is made out. The words 'substantial grounds for believing' do not and are not intended to qualify the ultimate question which is whether a real risk of relevant ill-treatment has been established. They merely indicate the standard which must be applied to answer that question and demonstrate that it is not that of proof beyond reasonable doubt. The adjudicator in the instant case used the expressions 'a reasonable chance' or 'a serious possibility' when considering the asylum claim, both of which are used by Lord Diplock. In our view, now that the European Court has fixed on a particular expression and it is one which is entirely appropriate for both asylum and human rights claims, it should be adopted in preference to any other, albeit others may be intended to convey the same meaning. This will lead to complete consistency of approach and avoid arguments such as were raised by Mr. Tam [for the Secretary of State] that the adjudicator in using the expression 'reasonable likelihood' in relation to Article 3 was applying too low a test. The use of the words 'real risk' also has the advantage of making clear that there must be more than a mere possibility. The adjective 'real' must be given its proper weight. Anxious though the scrutiny must be and serious though the effect of a wrongful return may be, the applicant must establish that the risk of persecution or other violation of his human rights is real. The standard may be a relatively low one, but it is for the applicant to establish his claim to that standard."

The IAT went on to consider the application of the test to the case where the threat to life (Article 2) was not from the authorities in the sate to which the individual might be returned but from criminal elements which the state could not control. In para.14 it said this:

"Before leaving this first issue, we should refer to Osman v United Kingdom (1998) 29 EHRR 245. The applicant alleged a breach of inter alia Article 2 in the alleged failure by the State to protect him from an attempted murder and his father from being murdered. The Court underlined an important aspect of the Convention rights, namely that a State might have a positive obligation to take preventive measures to protect an individual whose life was at risk from criminal acts of others. The same approach is to be seen in A v United Kingdom [(1998) 27 EHRR 611]. At Page 306 in Paragraph 116 the Court said this:-

'For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.'

The same approach is appropriate for Article 3 which is also, as the Court has frequently said, a fundamental right in the Convention. That language is far from requiring proof beyond reasonable doubt. The duty to protect against a real risk can readily be equated to a duty not to expose to a real risk."

The point was not considered when Kacaj went to the Court of Appeal ([2002] EWCA Civ 314), but the decision of the IAT on this point in Kacaj was cited with approval by the Court of Appeal in MH (Iraq) at para.22. In Dhima v Immigration Appeal Tribunal [2002] EWHC 80 (Admin), the Administrative Court held, at paras.29-37, that the IAT in Kacaj had been right to apply to Article 3 ECHR the same test of sufficiency of state protection as had been established in the asylum context by the House of Lords in Horvath v Secretary of State for the Home Department [2001] AC 489. By implication, the Administrative Court may also be taken to have approved in the ECHR context the test of real and not just fanciful risk.

[31] To my mind this test of "real, not just fanciful risk" is not only supported by authority but is also consistent with principle. To return a person to another country when the evidence establishes that, although it is not certain that on his return he will be killed or subjected to torture or inhuman or degrading treatment, there is nonetheless a "real risk" of that happening, would be contrary to the spirit of the Convention. To allow publication of his name on grounds of freedom of expression under Article 10 when there is a "real risk", though no certainty, that publication will expose him to those risks when returned to his home country would be a derogation from the duties owed by the court under the Convention.

[32] The argument before me on the whole of this aspect focussed on the stage at which the Lord Ordinary considered whether to make a section 11 order. But the same principles apply, to my mind, when the court is asked to allow the name or other matter to be withheld from the public during the proceedings. Even in cases where the only interference with the public nature of the proceedings is the anonymity given to the party or witness, stopping short of a section 11 order, the court will be guided by the same principles as set out above, viz anonymity will only be granted where necessary to enable the court to secure the proper administration of justice. While it was formerly the case that as a general rule, absent a direction to the contrary, Opinions in asylum cases were anonymised, since "the publication of the names of asylum seekers may create avoidable risks for them in the countries from which they have come" (see Practice Note No.2 of 2007, Anonymising Opinions Published on the Internet), that no longer represents current practice. In R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, Lord Hope made it clear at paras.5-7 that "[it] is no longer the case that all asylum seekers as a class are entitled to anonymity in this Court. The making of such an order has to be justified." Lord Brown (dissenting as to the result of the case but agreeing on this matter) said at para.122 that "the general rule is that parties to proceedings are named and that an anonymity order has to be justified." He added this point:

"There may, of course, be good reason in certain asylum cases for maintaining the asylum-seeker's anonymity notwithstanding that his claim fails: the very fact of his having made a claim, albeit unsuccessful, could on occasion tip the balance and give rise to a genuine fear of persecution or article 3 ill-treatment where previously none existed. Doubtless in any such case counsel ... would duly seek the necessary anonymity order."

Those remarks were all made in the context of anonymising judgments. But they apply equally, to my mind, to a case such as the present, where not only was the Lord Ordinary's Opinion anonymised but so too, by amendment, was the petition.

[33] It should be borne in mind that anonymising a judgment, or in some other way allowing the name of a party or witness or some other matter to be withheld from the public during the court proceedings, gives only limited protection against that information being made public. Unless that is backed up by a section 11 order, it has no legal force in protecting the name or other matter from disclosure: see R v Legal Aid Board ex parte Kaim Todner at p.933:

"... it is of interest to note that the fact that solicitors are not to be named in the title of the proceedings does not provide the protection of the law of contempt for the publication of the name of the firm. This would require, as was made here on an interim basis by Kay J, a direction under section 11 of the Contempt of Court Act 1981"

So here, the mere amendment to anonymise the petition, by itself, would not have protected the petitioner from having his name made public in the press. That is why the petitioner also sought and obtained a section 11 order. But in many cases a section 11 order is not made, and the non-dissemination of the information withheld from the public during proceedings depends on the discretion of the press and others who may come by the information in some other way. In passing, it is worth noting that the anonymity orders considered in In re Guardian News and Media Ltd were, in reality, directions prohibiting publication given under section 11 of the Act: see para.31 of the judgment. To that extent the damage done to the principle of open justice is less severe when the court allows a name to be withheld from the public without going on to make a section 11 order. But in principle the court is required to be similarly cautious in accepting the need for anonymisation or for a name or other matter to be withheld. At that stage, whatever may be the position when a section 11 order is asked for, there is unlikely to be any contradictor to the motion for the name or other matter to be withheld. As Sir Christopher Staughton said in R v Westminster City Council, ex parte P (1998) 31 HLR 154, 163, in a passage quoted in a number of the later judgments: "when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant."

[34] Turning to the circumstances in which the Lord Ordinary here thought that it was right to allow the amendment and to make a section 11 order, and it is only the latter which is challenged by the BBC, the petitioner is concerned that if he is named and his return to his home country is publicised, he will be at risk on his return of being subjected to life-threatening violence. His whole argument before the FTT was that if he was sent home, that would become known, and he would be subjected to violence. The response by the Secretary of State, which the FTT accepted, was that that there was no real risk of his return becoming known. His return would not be noticed. But the FTT accepted, as did the Secretary of State, that if it became known that he was being sent back, and particularly if that fact was linked to details of the timing of his return, then he would be a likely target for violence. The only issue was as to the risk of him being identified. That was why the FTT made an anonymity order (which in terms of the Rules has a similar effect to a section 11 order). The making of such an order reduced the risk of his return becoming known, and in those circumstances the FTT was satisfied that the petitioner had not established that there was a real risk of his Article 2 or 3 rights being infringed. The point made by Lord Brown in Kambadzi, in the passage quoted at para.[31] above, therefore has echoes of the problem in the present case. The petitioner's fear, which was accepted by the FTT and by the court, is that, without an anonymisation order, the order for his return and the details of his return will all become known, and he will be subjected to physical violence threatening his life (Article 2) or ill-treatment (Article 3) when he arrives back home. The Secretary of State's concern, which mirrors this, is that if his identity is publicised in the media it will give rise on his part to a genuine fear of such life-threatening violence (Article 2) or ill-treatment (Article 3) where previously, because of the anonymisation order, none existed; and he may then have a legitimate basis for a new round of appeals. This, she argues, would effectively frustrate the result of the present appeal process. The BBC pointed to the fact that the petitioner's name had featured in the press in connection with his conviction and his proposed deportation. But that publicity did not suggest that he would be returned to his home country at any particular time. Any publicity given to this case by naming him in connection with the proposed deportation would do just that. That is the mischief sought to be avoided.

[35] In these circumstances, I am satisfied that the Lord Ordinary was justified in making a section 11 order. Allowing the name of the petitioner to be made public in connection with this application would run the real risk of breaching his Article 2 and 3 rights. It would run the real risk of exposing him to life-threatening violence on his return. And it would run the real risk of undermining these proceedings, by giving the petitioner an additional ground of appeal, thereby frustrating the decision making process which has been upheld by this court. In short, it is necessary to allow his name and identifying details to be withheld from the public so as both to safeguard his rights and also to preserve the integrity of these proceedings and ensure that he can lawfully be removed from this country. A section 11 order is necessary to support that by preventing publication of anything that might identify him.

[36] I would just add this. A section 11 order carries with it a sanction of contempt of court if the order is breached. It ought to be clear precisely what is prohibited from publication. The present order prohibits "the publication of the name of the Petitioner, or any particulars or details calculated to lead to the identification of the Petitioner, and Directs that no picture shall be published or broadcast of the Petitioner, in connection with these proceedings." The phrase "or any particulars or details calculated to lead to the identification of the Petitioner" appears to me to lack the requisite clarity. It puts the onus on the media to decide what information might lead to the identification of the petitioner in connection with these proceedings. That is not fair on the media, particularly given the availability of a criminal sanction for breach of the order. The proper scope of the information which is not to be published can no doubt be clarified by agreement between the parties. I propose the put the case out By Order to enable this matter to be discussed and a decision to be taken if no agreement can be reached. Subject to this being resolved, I propose at that time to refuse the BBC's application for revocation of the order; but I am likely to vary it in light of discussion at that hearing as to what precisely is to be prohibited.

Procedural matters

[37] That is sufficient to dispose of the present application. But I was asked by Mr Clancy to consider a number of procedural matters in respect of which there was some uncertainty. He suggested that I could either report them to the Inner House or attempt to give some guidance myself. Since there would be no live issue to report to the Inner House, I take the view that it is better simply to express my views as to the proper practice. Ultimately these are in the main matters for the Rules Council.

The application for a section 11 order

[38] Mr Clancy expressed concern that there was no procedure in place for ensuring that interested sections of the media were notified in advance of the intention to apply for a section 11 order. As a result, there was seldom a contradictor. The parties before the court were often in agreement, and it was likely that the court would seldom be informed of the countervailing considerations. Section 12 of the Human Rights Act 1998 provides that no relief should be granted unless the person against whom the application for relief is made ("the respondent") is present or represented, or the applicant has taken all practicable steps to notify the respondent, or there are compelling reasons why he should not be notified. It is clearly intended that the media should have an opportunity to contesting any motion for an order prohibiting publication.

[39] It was argued by Mr Bovey and Mr Webster that section 12 had no application to a case such as the present. It was concerned with applications, usually for interdict, against specific respondents, e.g. to prevent threatened publication of defamatory or confidential material. In X, a woman formerly known as Mary Bell v O'Brien [2003] EWHC 1101, section 12 of the Human Rights Act 1998 was considered in detail at paras.51-57. The application was for an injunction contra mundum. It is clear that the judge considered section 12 applicable and that it had been complied with by making any interested media organisations aware of the forthcoming application. But that was an application for injunctive relief, and it is said by Messrs Bovey and Webster that that is the proper field in which the section operates. That may be its prime objective. But if it is relevant to a case where there are any number of unnamed and unidentified persons against whom the relief is sought, that seems to undermine the argument that it applies only where there is a specific respondent. it seems to me to be in keeping with the intention of the Act that wherever possible there should be advance intimation to the media of the intention to apply for a section 11 order, and indeed any orders prohibiting publication whether at common law or under other enactments. I do not understand the section to be limited in the manner contended for by the petitioner and the Secretary of State. Any judge hearing such an application will in any event have regard to the terms of section 12 of the Act, and before granting the order sought will usually require to be satisfied not only that the order is justified but also that steps have been taken to allow the media to be represented. More generally, I see no reason why there should not be a system established on the lines of the present caveat system. Any media organisation wishing to be notified of applications for orders prohibiting publication could enter their names and contact details in a register (paper or electronic), and they would be notified whenever notice of such a motion was received by the court offices. If a motion was made at the bar, then, if there was time, notice of that motion could be given before the motion was heard. This would need working out in more detail, but I do not see why it should cause great difficulty. A paper (i.e. non-electronic) version of this is hinted at in Rule of Court 102.2, dealing with orders made under section 4(2) of the Contempt of Court Act 1981, though I note that it is limited to providing a means of notifying interested parties of an order having been made. That Rule was brought in, as I understand it, in response to the decision of the ECHR in Mackay and BBC Scotland v United Kingdom (7 December 2010). I am not persuaded that the Rule goes far enough, since it does not even attempt to set up a system for the giving of advance notice of any application for an order (whether under section 4(2) or section 11 of the Contempt of Court Act 1981 does not matter for this purpose) but leaves it for the media to apply after the order has been made. Further, if I am correct in my interpretation of the scope of section 12 of the Human Rights Act 1998, which, if applicable, requires advance notice of any application, then for that reason too the Rule does not go far enough. It is a matter that the Rules Council might wish to consider.

[40] It would be for consideration whether a similar system could apply whenever the court was considering allowing a name or other matter to be withheld from the public during court proceedings. But I recognise that that might create logistical problems. The circumstances are many and varied. They include anonymisation of Opinions and the withholding of the name and identifying details of a party or witness. Decisions often have to be made on such matters without any advance notice. It is arguable that what really matters to the media is not so much the allowing of a name or other matter to be withheld, but an order prohibiting publication of that material, and that seems to me the area upon which attention should be focussed.

[41] Mr Clancy explained that one of the problems which a media organisation such as the BBC faces when faced with an order prohibiting publication of certain material is that, (a) because they were not there when the order was made and (b) because there is usually no note of the reasons for the making of the order, they do not know either the arguments or the reasons for the decision, or whether the order was justified. Given the likely lack of opposition from the other party to the making of the order, it cannot reasonably be assumed that the order has been properly made and that the grounds for interfering with the Article 10 rights have been made out. I consider that there is much force in this point. He went on to draw my attention to the practice in England in this area.

[42] In a Practice Direction (Contempt: Reporting Restrictions) [1982] 1 WLR 1475 Lord Lane CJ said that every order made under section 4(2) or section 11 must state inter alia its precise scope and the specific purpose of making the order. The reference to the specific purpose of making the order is important having regard to the terms of section 11. There was no indication there about giving advance notice to third parties. In X v Persons Unknown [2006] EWHC 2783, Eady J appeared to favour an extension of advance notice requirements to third parties such as media groups (see paras.11 and 12). But the practice then is unclear. More recently, in Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003 Lord Neuberger MR set out "recommended practice regarding any application for interim injunctive relief in civil proceedings to restrain the publication of information: an interim non-disclosure order." The guidance is extensive, and is said to be up to date as at 1 August 2011. On its face, this Guidance applies only to applications for interim injunctions. An order under section 11 (or section 4(2)) of the Contempt of Court Act for an order prohibiting publication of a particular name or matter which has been allowed to be withheld from the public in court proceedings probably does not fall within this definition. But there is a close analogy to be drawn, and for those practising in this field the Guidance repays study. Of particular interest to the matters raised in argument before me are the following points. It emphasises the fundamental importance of open justice. It notes that derogations from that principle are only justified when they are "strictly necessary as measures to secure the proper administration of justice". Derogations are not a matter of discretion but are matters of right; the relevant test must be applied and the court must either grant or refuse the derogation. Applicants for derogations must comply with section 12 of the Human Rights Act 1998. In terms of that section, advance notice of the application must be given both to named respondents and to non-parties who are to be notified of the order (if an order is granted) - I take this to mean that sections of the media who might be interested should be given advance notice of the application. As a safeguard, provision is made for those receiving advance notice of an application and wishing to have information relevant to that application to be required to give undertakings limiting the use they will make of that information. As regards hearing notes and judgments, it is emphasised that it is of particular importance that a full and accurate note is taken of the hearing at which the order is applied for, particularly if the hearing takes place without any representation on the part of any part of the media, noting arguments, documents placed before the court, and authorities relied upon. And the court should wherever possible give a reasoned judgment, albeit that it might only be in the form of a short note of the main points and the reasons for the decision. There are a number of other points, some particular to English practice and others of a more general application. For my part, I would consider it the duty of the court to observe, and ensure that others observe, as a minimum the matters of practice which I have attempted to extract from the Practice Guidance, even in the absence of a specific Rule of Court in Scotland. In this field the court is dealing with matters of substantive right, often competing rights, and it is obliged to deal with them according to law whether or not there is in existence a Rule of Court specifically directing how it should be done.

Applications to revoke section 11 Orders

[43] Rule of Court 102 deals with applications for variation or revocation of orders made under section 4(2) of the Contempt of Court Act 1981. But it is silent as to applications for variation or revocation of orders made under section 11. No doubt the Rules Council will look into this. In the meantime I see no reason why a media organisation such as the BBC, or indeed any other person affected by the prohibition, should not apply to vary or revoke the order prohibiting publication by lodging a Note in the process. This is the prescribed manner for applications to vary or revoke an order under section 4(2) of the Act. There is no reason why that procedure should not apply also to applications to vary or revoke an order made under section 11. That seems an eminently sensible approach. Neither of the other parties represented in court had any difficulty with it.