FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Menzies Lord Kingarth	[2013] CSIH 43 P987/12 OPINION OF THE LORD PRESIDENT in the Reclaiming Motion by THE BRITISH BROADCASTING CORPORATION Minuter and Reclaimer in the Petition of A Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: __________

For the reclaimer: Clancy QC, Hamilton; Burness Paull & Williamsons LLP

For the petitioner: Bovey QC, Byrne; Drummond Miller LLP

For the respondent: Webster; Solicitor to the Advocate General for Scotland

17 May 2013

Introduction

[1] This is a reclaiming motion by the British Broadcasting Corporation (BBC) in a petition for judicial review in proceedings for the deportation of the petitioner. The reclaimer seeks recall of an interlocutor of Lord Boyd of Duncansby dated 7 November 2012 by which he allowed an amendment of the petition to anonymise the petitioner (the anonymity order) and gave directions in terms of section 11 of the Contempt of Court Act 1981 (the 1981 Act) prohibiting publication of the name of the petitioner and other matters (the section 11 order). The reclaimer, not having had advance notice of the petitioner's application for those orders, was not represented at the hearing.

[2] The reclaimer applied for variation or revocation of the section 11 order; but by interlocutor dated 6 December 2012 Lord Glennie refused the application in hoc statu. The reclaimer also seeks recall of that interlocutor.

Procedural History

[3] On 13 February 1991 the petitioner arrived in the UK. On 29 July 1991 he married a British citizen. On 4 August 1993 he was granted indefinite leave to remain. On 2 May 1996 he was convicted on two counts of indecent assault and one count of gross indecency against his stepdaughter and was sentenced to two terms of imprisonment of four years and to one term of eighteen months, all concurrent. In August 1998 he was served with notice of intention to deport on the basis that his deportation was conducive to the public good (Immigration Act 1971, s 3(5)(a)). So began the protracted history of resistance that I shall now relate.

[4] On 22 May 2001, the petitioner's appeal against deportation was dismissed. On 16 September 2001, he made a human rights application against deportation. On 31 May 2002, the application was refused. On 1 June 2002, a deportation order was served on him. On 20 March 2003, a further appeal against the refusal of his human rights application was refused. On 19 August 2004, the Immigration Appeal Tribunal affirmed the refusal. The petitioner then appealed to the Court of Session. On 5 April 2007 the Court granted his appeal and remitted his case, of consent, to the Asylum and Immigration Tribunal for a fresh hearing.

[5] At the fresh hearing the petitioner founded his case on articles 2, 3 and 8 of the Convention. On 17 July 2007, the Tribunal (the 2007 Tribunal) dismissed the appeal. Under article 3, the Tribunal expressly considered whether there was "a real risk of an attack on the appellant in [his home country], either as a result of publicity in the media, including the Internet, or otherwise" (Decision, para 32). It concluded that there was no real risk to the petitioner of inhuman or degrading treatment from any source if he were to be returned there (para 38).

[6] The petitioner was granted leave to appeal to the Court of Session. On 18 November 2008, the appeal was granted. The case was remitted to the Asylum and Immigration Tribunal for consideration of the appeal under article 8 only ([2008] CSIH 89). On 6 October 2009, the Tribunal dismissed the appeal. On 12 November 2010 the Court of Session refused an application for leave to appeal ([2010] CSIH 89). The petitioner applied for legal aid to appeal to the Supreme Court but the respondent successfully objected on the ground that the petitioner could seek the alternative remedy of revocation of the deportation order.

[7] On 14 December 2010, the petitioner claimed asylum. His further representations dated 23 December 2010 and 8 June 2011 were treated as an application for revocation of the deportation order on asylum and human rights grounds. On 1 August 2011, his application for revocation on articles 2, 3 and 8 grounds was refused by the respondent.

[8] The petitioner appealed against that refusal on article 3 and 8 grounds only. On 20 July 2012, the First-Tier Tribunal (Immigration and Asylum Chamber) (FTT) refused the appeal. The FTT relied on the detailed findings of the 2007 Tribunal, which had not been disturbed by the court. It found that the petitioner had not provided any reliable fresh evidence (para 81). The FTT considered that an expert report lodged by the petitioner in support of his article 3 case was "of little assistance" to his case since the author had been unable to find any reference to the petitioner or his case in the media in his home country (para 82). The anonymisation of the FTT proceedings had reduced the risk of his being identified. There was no credible evidence that he would be subject to inhuman or degrading treatment if returned to his home country. The petitioner had therefore failed to establish a "real risk" of breach of his article 3 rights. The appeal on that ground was dismissed.

[9] On 6 August 2012, the FTT refused leave to appeal to the Upper Tribunal. On 29 August 2012 leave to appeal was refused by the Upper Tribunal itself. The petitioner now seeks judicial review of that decision. On 21 September 2012 first orders were granted in the present proceedings.

[10] On 30 October 2012 the respondent decided to remove the petitioner from the country on 11 November 2012. The petitioner seeks suspension of that decision. On 7 November 2012, in addition to the orders that I have described, Lord Boyd of Duncansby continued consideration of the petitioner's motion for suspension ad interim. On 8 November 2012, suspension ad interim was refused. The petitioner reclaimed against that decision. On 9 November 2012, the reclaiming motion was refused.

[11] Thereafter by a further decision of the respondent the petitioner was detained pending his removal from the country on 14 December 2012. The petitioner sought suspension ad interim of that decision. On 12 December 2012, the petitioner moved for suspension ad interim of Lord Glennie's interlocutor of 6 December. The motion was refused. The petitioner reclaimed against that decision. On 13 December 2012, the petitioner's reclaiming motion was refused. He then sought leave to appeal to the Supreme Court. That too was refused. Soon after, the petitioner was deported.

[12] This history records the various means by which the petitioner's deportation has been delayed for fifteen years. There can be few appellate opportunities that his lawyers have overlooked. But he is now back in his home country. That, you might think, is the end of the matter. Far from it. Although the petitioner has apparently not been in recent touch with his Scottish lawyers, we have Mr Bovey's assurance that he has instructions to represent the petitioner in this reclaiming motion. Mr Bovey has told us that in light of the interlocutor of the Inner House dated 9 November 2012 he has in mind the possibility of amending the petition to seek an order for the return of the petitioner to the United Kingdom.

[13] That is the context in which we have to consider the reclaiming motion.

Statutory provisions

[14] Section 11 of the 1981 Act provides:

"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."

[15] Section 12 of the Human Rights Act 1998 (the 1998 Act), so far as material, provides:

"12 - Freedom of expression

(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 ...

(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)."

[16] Articles 2, 3 and 10 of the Convention are as follows:

"Article 2

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or
insurrection ...

Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment ...

Article 10

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. 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, 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."

[17] Article 13 of the Convention provides:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

Decisions reclaimed against

[18] The interlocutor of 7 November 2012 records that the anonymity order and the section 11 order were sought on the motion of the petitioner with the consent of the respondent; but the Opinion of the Court dated 8 November 2012, which deals with the petitioner's motion for interim suspension, does not describe the circumstances in which the orders were granted. The Opinion of Lord Glennie dated 4 December 2012, which resulted in the interlocutor of 6 December 2012 now reclaimed against, records that the orders were sought because "it was feared that if it became known that he was about to return to his country of origin, [the petitioner] would be subjected to violence, with the threat of physical injury and possibly death," in contravention of his rights under articles 2 and 3 (BBC, Apps 2013 SLT 324, at para [4]).

[19] Lord Glennie noted that the reclaimer's application raises "an important issue on which there is much guidance but no direct authority" and "procedural issues which need to be resolved for the future" (ibid, para 5). It was clear as a matter of statutory interpretation that the court had power to grant the section 11 order only where it had deliberately allowed the relevant name or other matter to be withheld from the public in the proceedings (Re Trinity Mirror plc [2008] QB 770, Sir Igor Judge P, at para 19; Re Guardian News and Media Ltd [2010] 2 AC 697, at para 31). It was also necessary for the court to have the power to do so (HM Adv v M 2007 SLT 462, Lord Hodge at para 6). The obligation on the State to protect the petitioner's rights under articles 2 and 3, which might include making an order for anonymity where necessary, was absolute (Chahal v United Kingdom [1996] 23 EHRR 413, at paras 80 and 149; Re Guardian News and Media Ltd, supra, at para 27). The petitioner had to show that there was a "real as opposed to fanciful risk" that the events about which he was concerned would happen (MH Iraq v Secy of State for the Home Department [2007] EWCA Civ 852, Laws LJ at para 22 citing with approval Kacaj v Secy of State for the Home Department [2002] Imm AR 213; Dhima v Immigration Appeal Tribunal [2002] EWHC Admin 80, Auld LJ at paras 29 - 37 following Horvath v Secy of State for the Home Department [2001] 1 AC 489). It would derogate from the duties owed by the court under the Convention to allow publication of the petitioner's name on the ground of freedom of expression under article 10 when publication would expose him to a real risk of being killed or subjected to torture or inhuman treatment on return to his home country. Anonymity would be granted only where it was necessary to enable the court to secure the proper administration of justice (R (on the application of Kambadzi) v Secy of State for the Home Department [2011] UKSC 23, Lord Hope at paras 5 - 7, Lord Brown at para 122). At the stage at which anonymity was requested, there was unlikely to be a contradictor. The court had to be cautious in accepting the need for anonymisation (R v Westminster City Council, ex parte P (1998) 31 HLR 154, Sir Christopher Staughton at 163).

[20] Lord Glennie was satisfied that the making of that order was justified. To allow the petitioner's name to be made public in connection with these proceedings would run the real risk of breaching his article 2 and 3 rights by exposing him to life-threatening violence on return to his home country. It would also run the real risk of undermining these proceedings by giving the petitioner an additional ground of appeal.

[21] Lord Glennie doubted whether the section 11 order identified precisely what was prohibited from publication. He said that he would be likely to vary the order to clarify the matter (BBC, Apps, supra, at para [36]). At the hearing on 6 December 2012, however, he refused the application for variation.

[22] Lord Glennie also expressed views, obiter, on the reclaimer's concern that there was no proper procedure in place to ensure that interested sections of the media were notified in advance of the intention to apply for a section 11 order, with the result that there was seldom a contradictor (ibid, at paras [39]-[43]).

Submissions

For the reclaimer

[23] Counsel for the reclaimer said that the primary purpose of the reclaiming motion was to allow the reporting of full details of the present proceedings including the name and home country of the petitioner. For this purpose, the reclaimer sought the recall of the order; failing which, a restriction of it, since a blanket prohibition on reporting was too wide.

[24] Counsel submitted that Lord Glennie was right in holding that section 12 of the 1998 Act applied in cases such as this; but that he had failed to give proper effect to it. Since the section 11 order had been granted without prior notice to the media and without Lord Boyd's having considered the permitted exceptions to notification under section 12(2), the proper course was to recall the section 11 order and invite a fresh application. The hearing on revocation or variation of the order was no substitute for a fresh application complying with the requirements of section 12(2). The reclaimer was entitled to prior notice of the application as a party who was to be directly bound by the proposed order (X v Persons Unknown [2007] RMLR 10, Eady J at paras 9-12). Notwithstanding the absence of procedural rules, it was incumbent on a party seeking the section 11 order, or on the court ex proprio motu, to demand intimation of the application to the media in the same way as the order itself would be intimated.

[25] The section 11 order could not be granted without the antecedent anonymity order. It was, in effect, an ancillary order intended to give effect to the anonymity order. It could prohibit only the reporting of matters relevant to the preservation of the petitioner's anonymity. It was accepted by Lord Glennie that the practical effect of the section 11 order was to prevent any meaningful reporting of the petitioner's case (BBC, Apps, supra at para [36]). The matters prohibited from publication were left entirely to implication. In any event, the section 11 order did not serve the same purpose as the anonymity order because the petitioner's identity was already in the public domain.

[26] Lord Glennie failed to apply the proper test for granting a section 11 order. Whilst article 3 does not admit of derogation, the consequent derogation from article 10 had to be narrowly construed. The necessity for reporting restrictions had to be "convincingly established" (BBC, Petrs (No. 3) 2002 JC 27, Lord Justice General Rodger at para [13]). The Lord Ordinary identified correctly that the petitioner had to demonstrate a "real as opposed to fanciful risk" that he would be killed or assaulted if deported to his home country ([2012] CSOH 185 at paras 29 - 31). Thereafter, however, the petitioner had also to demonstrate that the risk would be attributable to media coverage of the proceedings. This aspect had to be "convincingly established" (The Observer and the Guardian v United Kingdom (1992) 14 EHRR 153 at paras 59 and 60; Venables v News Group Newspapers [2001] Fam 430, Dame Butler-Sloss P at para 38; Carr v News Group Newspapers [2005] EWHC 971 (QB); X v O'Brien [2003] EMLR 37). The Tribunal decisions showed no proper basis on which to conclude that there was a serious risk to the petitioner from reporting in the present case. Properly analysed, there was no material available to the court to justify the decision that reporting restrictions were necessary.

For the petitioner

[27] The petitioner argued that section 12 of the 1998 Act did not apply to the granting of the section 11 order. It applied to the granting of "relief" and "remedy," which was suggestive of petitory orders, and "other order" should be construed similarly narrowly in respect of orders under the 1981 Act. The section 11 order was effective contra mundum. This was inconsistent with the circumstances envisaged by 12(2) of the 1998 Act including the practicalities of intimation. There was no statutory obligation on the court to give advance notice of the making of an order as long as there existed the opportunity to seek recall of the order at a point when it remained useful to the media to do so (Mackay and BBC Scotland v United Kingdom, European Court of Human Rights, 7 December 2010). The procedure followed in the present case satisfied the crucial requirement of effectiveness for the purposes of article 13 (supra). Therefore there had been no breach of the reclaimer's rights under article 10. There was nothing before this Court to suggest that the practice in England was to notify the media in advance of applications under section 11. On the contrary, section 12 had been held not to be applicable to persons affected by petitory orders by virtue of the Spycatcher principle (X v Persons Unknown [2007] EMLR 10). An opportunity to seek recall would be provided if required (Re Guardian News Media [2010] 2 AC 697, at para 5).

[28] Article 10 could not impose a higher test on securing protection of the petitioner's article 3 rights than would exist if that protection did not depend on anonymity orders. The risk to the petitioner under article 3 had to be a "real as opposed to fanciful risk" (MH Iraq (supra), Laws LJ at para 22) but it did not need to be "convincingly established" in evidence. It was well-established in asylum cases that a lower standard of proof may be applied to establish past and present facts than that conventionally used in civil litigation. In particular, the court was not bound to exclude "category 3" evidence "to which [it was] willing to attach some credence, even if [it] could not go do far as to say it is probably true" (Karankaran v Secretary of State for the Home Department [2000] Imm AR 271, Brooke LJ at p 282; cf Kaja v Secy of State for the Home Department [1995] Imm AR 1).

[29] The same approach applied in article 3 cases (Kacaj v Secretary of State for the Home Department, supra). Accordingly, it might be sufficient that the alleged risk was "a very strong possibility if not, indeed, a probability" (Venables v News Group Newspapers, supra, Dame Elizabeth Butler-Sloss P at para 82).

[30] The anonymity orders were the key element in the failure of the petitioner's article 3 case against deportation. If the court established upon some evidence that there would be a violation of article 3 in the expulsion of the petitioner, the article 3 claim would demonstrate convincingly the need for press restriction in terms of article 10. In the present case anonymity was necessary to prevent there being a real risk of breach of the petitioner's article 3 rights (Opinion dated 12 December 2012, Lord Ordinary (Doherty) at para 10). Accordingly, the need for the section 11 order had to be established according to the lower test applicable to the article 3 case.

[31] The section 11 order was competent. It made the anonymity order effective against the world (Re Times Newspapers [2008] 1 WLR 234, Lord Phillips at para 23). Both parts of the order achieved the same aim. The order was no wider than necessary.

[32] The use of the word "calculated" in the section 11 order reflected the terms of several provisions that secured the anonymity of children (Children and Young Persons (Scotland) Act 1937, s 46; Children and Young Persons Act 1933, s 39) and was therefore well-vouched (MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB), Tugendhat J at para 16).

For the respondent

[33] Counsel for the respondent invited us to refuse the reclaiming motion. He adopted the pragmatic position of commending the petitioner's submissions to the court. Although the petition might be ultimately unmeritorious, the reporting of the proceedings might provide an opportunity for further proceedings for the return of the petitioner to the United Kingdom. The scope of articles 3 and 10 need not be considered at any length. The solution under article 10 was to determine whether reporting would frustrate the decision of the Upper Tribunal, contrary to the rule of law in terms of article 10(2). The Lord Ordinary considered that it would. That was sufficient to justify the restriction imposed. If section 12 of the 1998 Act applied, and the Lord Ordinary failed to give the reclaimer the requisite opportunity to contest the granting of the order, section 12(2)(b) enabled the court to grant relief if this was justified in the circumstances. The respondent had no objection to the terms of the order.

Decision

Competency of the section 11 order
[34] At the forefront of the case presented to Lord Glennie by the reclaimer was the proposition that the section 11 order was incompetent because it could be issued only where the court had power to order that a name or other matter should be withheld from the public. For the reclaimer it was submitted that in this case the court had no such power (British Broadcasting Corporation, Apps, supra, at para [9]). The Lord Ordinary rejected that submission on the view that the court had the undoubted power, as part of its inherent jurisdiction, to do so in an appropriate case (ibid, at paras [24]-[25]).

[35] The reclaimer did not renew this submission in the hearing before us; but I should say that I agree on this point with Lord Glennie. The matter has become of some importance by reason of a decision to the contrary made by Lord Brailsford, while this case was at avizandum, in SRC v Kemp ([2013] CSOH 56).

[36] In that case Lord Brailsford, having considered the same submission that was made by the reclaimers to Lord Glennie, concluded that the language of section 11 seemed to support the view that, faced with the question whether to grant a section 11 order, the court had first to ascertain where the power to withhold a name or other matter came from. In his view, the very language of the provision seemed to make it difficult to suggest that there could be some inherent power in the court to grant anonymity where it saw fit. On this view, he considered that a Scottish court had no power to impose reporting restrictions except where express authority could be found (ibid, at para [10]).

[37] I do not agree with Lord Brailsford's conclusion. In recent years the inherent jurisdiction of the Court of Session has been repeatedly recognised. It has been applied in a string of cases in which the conduct of a party has prevented, or at least substantially imperilled, the fairness of the trial; for example, by the lodging of forged documents in support of a claim (Shetland Sea Farms Ltd v Assuranceforeningen Skuld 2004 SLT 30, at paras [144]-[146]); or by inordinate delay in the prosecution of an action (Hepburn v Royal Alexandra Hospital NHS Trust 2010 SLT 1071). In such cases the court exercises its inherent jurisdiction in order to prevent a party from compromising the just and proper conduct of the proceedings. It thereby preserves the integrity of the judicial process (Shetland Sea Farms Ltd v Assuranceforeningen Skuld, supra, at para [143]).

[38] But in my opinion the inherent jurisdiction is wider than that. It lies at the heart of the court's constitutional function as a court of justice. In fulfilling its duty to do justice by all men, the court must have regard not only to the justice of its decision, but also to the justice of the procedures by which it gives it. It therefore has the inherent power, in my opinion, to withhold the identity of a party where, regardless of the outcome of the case, the disclosure of that party's identity would constitute an injustice to him; for example, where disclosure would endanger his safety, or would be commercially ruinous (Scottish Lion Insurance Co Ltd, Petr 2011 SLT 733). Quite apart from the Convention-related aspects of the problem, I would regard it as the court's duty to withhold the identity of, say, a female pursuer where the decision turned on intimate medical evidence. Moreover, I consider that the court's inherent jurisdiction may be extended to the protection of third parties whose rights and interests may be affected in similar ways.

The rights and interests of the media

[39] On this aspect of the case, the first question is whether section 12 of the Human Rights Act 1998 applies to the minuter's application. In my opinion, it does. The expression "relief" is wide enough to cover proceedings of this kind. Therefore, in my view, the Court must give the media the opportunity to be heard. Even if am wrong in that view, I consider that the nature of a section 11 order is such that fairness would require the same result.

[40] The question then is at what stage that opportunity should be given. Ideally, the media should be heard before the court decides whether or not to grant the section 11 order. But circumstances may necessitate that that decision should be made before notification of the section 11 application to the media. The urgency of the case may be such that to continue the hearing on the petition so that the media could be notified of it would frustrate the purpose of the petition. Urgency might also constitute a "compelling reason" under section 12(2)(b) of the 1998 Act. I am not persuaded that the media must in every case have the opportunity to be heard before any order can be granted. In my view, an early opportunity to apply for recall of the order would in many cases adequately secure the rights and interests of the media.

[41] That leads to a more specific question, namely what detailed procedures there should be to enable the media to be heard in relation to section 11 orders. The unusual circumstances of this case and the submissions of counsel on the reclaiming motion have convinced me that our present procedures are inadequate. On that view, the question then is whether we should lay down procedural rules in a judgement in this case or deal with the problem by other means. There appears to be no urgency to devise procedures at this stage. Before Lord Glennie, the reclaimer had a full opportunity to consider and answer the petitioner's claim as it was then being made. It is true that certain documents, including particularly the 2007 Tribunal decision, were not then before the court; but at that stage those documents were not, it seems, being relied on. Whether or not the reclaimer had a full opportunity to answer the claim before Lord Glennie, it is sufficient to say that counsel for the reclaimer accepts that the reclaiming motion has given the reclaimer the fullest possible opportunity to answer the claim and to assert its article 10 rights; and concedes that the reclaimer has not been disadvantaged in its presentation on that question.

[42] In any event, counsel for the reclaimer has provided us with no more than a generalised statement that could never form an adequate basis for practice guidance. For these reasons alone, I would conclude that it would not be opportune if we were to lay down procedural prescriptions in our judgment in this case.

[43] I have a further, more general, reason; namely that it would be unwise to devise a procedure of general application in cases under the 1981 Act on the strength of representations made by only one organ of the media in a fact-specific appeal.

[44] The obvious answer is that the procedural deficiency that this appeal has highlighted should be considered against a broader background by the Scottish Civil Justice Council, no doubt after thorough consultation with interested parties.

The merits of the reclaiming motion

[45] The reclaimer accepts (1) that there would be a real risk of infringement of the petitioner's article 2 and article 3 rights if details of his conviction were to be publicised in his home country; and (2) that it is likely that in that event police protection of the petitioner would be inadequate. The central point for the reclaimer is that nevertheless the petitioner has failed to establish that there is a likelihood that the risk of disclosure of the facts of his case in his home country, and the consequent inadequacy of protection, will be realised in this case.

[46] That requires us to consider whether the test for derogating from article 10 of the Convention has been established. The parties agree that although a convincing justification must be advanced under article 10, there can be no derogation from article 3. Whether a convincing justification has been made out is a fact-sensitive question. The centrepiece of the reclaimer's case is its reliance on dicta in Venables v News Group Newspapers Ltd and Others (supra) and Re Guardian News Media (supra); but in Venables, the issue was not whether there was an apprehension of violence resulting from media reporting. In that case, the media had provoked the risk of violence and had reported the existence of threats of violence by others.

[47] If this court is entitled to consider whether a real risk of infringement of the petitioner's article 3 rights has been made out, it must carefully scrutinise all the available evidential material (Karanakaran v Secy of State for the Home Department, supra).

[48] Counsel for the reclaimer has presented a detailed textual analysis of the 2007 Tribunal decision, the FTT decision, the decisions of Lord Boyd and Lord Glennie and the Opinion of the Court delivered by Lord Brodie in the Inner House. I hope that it is not a discourtesy to him if I do not conduct such an analysis myself. Counsel has suggested that the Tribunals had an inadequate basis for the conclusion that there was any risk to the petitioner in his home country. I am not persuaded that that is the case. In my view, it can at the least be said that there was sufficient material before the Tribunals to justify the conclusion that anonymity would be a significant protection of the petitioner's article 2 and article 3 rights. That was a judgment for the Tribunals and not for us. If that had been the determining issue in this case, I would have been of the opinion that the reclaiming motion failed.

[49] However, it seems to me that that issue need not arise. The decisions of the Tribunals to the effect that there is a real risk to the petitioner continue to have full legal validity unless and until they are formally rescinded. It is not open to this court to give effect to any contrary conclusion in a process of this nature. The recall of the section 11 order would therefore subvert the understanding on which the petitioner's deportation was authorised. It would have the grave consequence that a deportation that was carried out on the understanding of anonymity might, by order of this court, create all the risks that anonymity was intended to prevent.

[50] As to the form of the orders, I thought at first that the section 11 order was ambiguous in its use of the words "calculated to." It seemed to me that that created a doubt as to whether "calculated to" meant subjectively "intended to" or objectively "likely to." However, counsel for the petitioner has referred us to the Children and Young Persons (Scotland) Act 1937, and its English equivalent, where exactly that wording is used in a similar context. In the face of statutory provisions of such long standing, to which the media must be well accustomed, I am not prepared to say that the form of the interlocutor is deficient on that account.

Disposal

[51] I propose to your Lordships that we should refuse the reclaiming motion.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Menzies Lord Kingarth	[2013] CSIH 43 P987/12 OPINION OF LORD MENZIES in the Reclaiming Motion by THE BRITISH BROADCASTING CORPORATION Minuter and Reclaimer in the Petition of A Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: __________

For the reclaimer: Clancy QC, Hamilton; Burness Paull & Williamsons LLP

For the petitioner: Bovey QC, Byrne; Drummond Miller LLP

For the respondent: Webster; Solicitor to the Advocate General for Scotland

17 May 2013

[52] I am in complete agreement with the views expressed by your Lordship in the chair. In particular, I agree that section 12 of the Human Rights Act 1998 applies to a situation such as this, and that our present procedures for enabling the media to be heard in relation to directions in terms of section 11 of the Contempt of Court Act 1981 are not adequate and require to be reviewed. I also agree that it would not be appropriate for us to carry out such a review and attempt to devise procedural rules in the course of our determination of this reclaiming motion. It would be far better for this important issue to be considered by the Court of Session Rules Council or, in due course, the Scottish Civil Justice Council, and for procedures to be formulated after consultation with interested parties.

[53] I also share the views expressed by your Lordship in the chair at paragraphs [37] & [38] above about the inherent jurisdiction of the Court of Session. I agree with the views expressed by Lord Glennie on this matter in British Broadcasting Corporation Apps, 2013 SLT 324, and disagree with Lord Brailsford's conclusion in SRC v Kemp [2013] CSOH 56.

[54] For the reasons given by your Lordship in the chair I agree that this reclaiming motion should be refused.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Menzies Lord Kingarth	[2013] CSIH 43 P987/12 OPINION OF LORD KINGARTH in the Reclaiming Motion by THE BRITISH BROADCASTING CORPORATION Minuter and Reclaimer in the Petition of A Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: __________

For the reclaimer: Clancy QC, Hamilton; Burness Paull & Williamsons LLP

For the petitioner: Bovey QC, Byrne; Drummond Miller LLP

For the respondent: Webster; Solicitor to the Advocate General for Scotland

17 May 2013

[55] I have had the advantage of reading the Opinion of your Lordship in the chair in draft.

[56] I entirely agree with the views expressed in relation to the application of, and as to the proper procedural approach to, section 11 of the 1981 Act (and as to the court's inherent power to make an underlying anonymity order of the kind made in this case) and have nothing to add.

[57] I also agree that this court should not interfere with the decision to make the section 11 order in this case, or with its terms. As to the latter I have nothing to add. As to the former, although I agree with the reasons expressed by your Lordship, I would wish to add, in addition, a few words of my own.

[58] I consider first the test which should be applied in circumstances such as the present case.

[59] It is well established that, in seeking to establish whether a proposed act would be contrary to articles 2 or 3 of the Human Rights Convention a tribunal or court requires to ask whether the circumstances could be said to give rise to a real risk of relevant harm (the same test being applied to the assessment, in asylum cases, of whether a claimant could be said to have a well-founded fear under the Refugee Convention - Kacaj v Secretary of State for the Home Department at para 12). It is equally well understood that in this area it would be right for a tribunal or court to give anxious scrutiny to the question and that a less than strict evidential test may be permissible (see eg, in the context of an asylum claim, Karanakaran v Secretary of State for the Home Department). It is also clear that there can be no derogation from the rights afforded by articles 2 and 3 and that where there is a conflict with, for example, the rights afforded by article 10, these former rights must prevail.

[60] In these circumstances, while no doubt any derogation from article 10 requires to be convincingly established (BBC, Petitioners (No 3)), it appears to me to follow that if, in accordance with the conventional approach, a tribunal or court is satisfied that publication of certain information could be said to give rise to a real risk of contravention of articles 2 or 3, that of itself would amount to a convincing reason to derogate from article 10.

[61] Turning now to the present case it seemed to me that in the course of his submissions senior counsel for the reclaimer, albeit in the course of a careful argument which proposed a significantly less high test than that apparently advanced before Lord Glennie (see in particular paras [28] and [29] of his Opinion), came close to suggesting that a different approach to articles 2 and 3 should be adopted in the context of consideration of article 10, and, more generally, appeared to me to be suggesting a higher test than can be justified - especially insofar as he argued that it would be necessary in every case for a tribunal or court to be presented with reliable and cogent evidence before a derogation from article 10 could be justified. Although there have of course been cases where the court has been satisfied that there should be such a derogation on the basis of compelling and detailed evidence, for example Venables v News Group Newspapers, Carr v News Group Newspapers and X v O'Brien 2003, these were cases in which wide and indefinite orders were sought in cases of some public notoriety. It does not follow that detailed and compelling evidence is necessary in every case. That is not to say that a tribunal or court should not be satisfied of a real risk of the relevant kind before making an order derogating from article 10 (save perhaps where an order is sought ad interim if there is a clear prima facie case therefor). As your Lordship in the chair has said this will be a fact-sensitive question in any case.

[62] Against that background if, notwithstanding the reasoning which has commended itself to your Lordship in the chair, it is necessary to look more closely at the section 11 order made in this case, it cannot, I think, be said that it was wrongly made. Although, for the reasons advanced by senior counsel for the reclaimer, the question is a narrow one, it seems to me that the court, recognising the anonymity order previously made by the FTT and faced with a major public news broadcaster seeking to publicise an apparently final decision to deport the petitioner at the end of proceedings with a remarkably protracted history, was entitled to infer that there was at least a real risk of publication in the petitioner's home country, with consequent risk of vigilante action against him. And Lord Glennie proceeded, it seems, on the understanding, on the submissions made before him, that the existence of such a risk was recognised not merely by the petitioner but also by the respondent. Further, it is perhaps instructive to note that although before Lord Boyd of Duncansby on 8 November 2012 and in the Inner House the following day the petitioner's attempt to found on the expert report, to the effect that he would be at risk on return to his home country, did not avail him in his attempt to have the decision to remove him suspended, the main criticism of that witness's report was, it seems, that he failed to recognise that any return would be likely to be following proceedings in which his identity was not disclosed.

[63] For these reasons, in addition to those expressed by your Lordship in the chair, I agree that this reclaiming motion should be refused.