Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 78

P1142/15

Lady Smith

Lord Drummond Young

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY SMITH

in

Note

By

THE BRITISH BROADCASTING CORPORATION

                                                                                                                        Interested person;

in the Petition

by

TRACEY TOUGH

Petitioner;

To the Nobile Officium

Noter:  Clancy QC;  BBC

Petitioner:  Aitken;  BBM

29 October 2015

[1]        First, we agree, for the reasons discussed this morning, that the order of 15 October 2015, under section 11 of the Contempt of Court Act was not a competent order.  Put shortly, that is because there was not then in existence any order allowing a name to be withheld from the public in proceedings before the court. For that reason alone we will revoke the order.

[2]        Mr Aitken, for the petitioner, now moves us to make a fresh order restricting publicity in relation to the contempt proceedings currently before this court and emanating from Forfar Sheriff Court where they arose in relation to certain civil proceedings.  In those proceedings the petitioner was found to be in contempt of court in having breached court orders and she was punished by the imposition of a sentence of imprisonment.  As matters currently stand her petition to the nobile officium is pending and she has been granted interim liberation. 

[3]        Mr Aitken accepts that the starting point is the principle of open justice and that principle is inextricably linked to the freedom of the media to report on court proceedings: A v BBC 2015 AC 588.  He accepts that, therefore, the burden of displacing the application of that principle lies on the petitioner and that it is for her to show that the restrictions she seeks are necessary, not merely convenient or expedient.  He submits that the interests of the petitioner’s children are such as to require that other restrictions are required in addition to restrictions that would be conceded by the BBC. The restrictions that would be conceded are first, that the names, addresses and schools of the petitioner’s children should not be disclosed, secondly, that the nature of the sheriff court proceedings and, in particular, the subject matter of the applications in relation to which the finding of contempt arose should not be disclosed and thirdly, that there would be no mention of the father of the children in any report including any details of his background. 

[4]        In moving us to impose certain additional restrictions, Mr Aitken conceded that there could be publication of the petitioner’s actual name as it is stated in the petition; that is because it is a name she has not used since leaving Angus and is not currently using.  He submitted that there should also be no reporting or disclosure of the name in fact used by the petitioner, the location of the Church of Scotland parish where she is a minister, her sex, or a photograph of her.  He did so in circumstances where, as we have indicated, the petitioner has now moved away from Angus, in circumstances where she is using an assumed name and her children are using her assumed surname, in circumstances where a report of the proceedings in Forfar Sheriff Court appeared in the Courier newspaper on 10 October publicising the fact that Tracey Hart or Tough - a Church of Scotland minister - was found to have been in contempt of court and sentenced to 12 months imprisonment, that the Church of Scotland had confirmed she was a minister and that any disciplinary action arising from the case would be conducted by the Church internally and in circumstances where an announcement had thereafter been made from the pulpit in a church in the petitioner’s parish by which parishioners were advised what had happened to her. 

[5]        The question for the court is whether the article 8 rights of the petitioner’s children are such as to outweigh the general and strong rule in favour of unrestricted publicity of court proceedings as captured by article 10 of the Convention and if so to what extent.        We are satisfied that the rights of the children are such as to require some restriction but not all those restrictions moved for by Mr Aitken.  They are such as to require the restrictions conceded by the BBC to which we have already referred.  As regards any further restrictions we are not satisfied it is necessary to prohibit publication of the petitioner’s sex.  That is a matter which will be obvious when her actual name is disclosed. Nor are we satisfied that it is necessary to prohibit publication of the location of her parish given the information which has already been disseminated to her parishioners and no information having been placed before us to the effect that the dissemination of that information has had adverse consequences for the children.

[6]        As regards publication of any photograph we are not satisfied that it is necessary to impose that restriction given that the Courier newspaper has already published a photograph of the petitioner and that there has already been the publicity within her parish to which I have just referred. 

[7]        Turning then to the orders which we will impose, first, we will direct under and in terms of section 46 of the Children and Young Persons (Scotland) Act 1937 that no newspaper report of these proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of the petitioner’s children, including any photograph of the children and we will then direct, in terms of section 11 of the Contempt of Court Act 1981 the following:

1. that the restrictions imposed under the Children and Young Persons (Scotland) Act order apply in relation to any publication in the media in whatever form;
2. that any reference in any publication to the petitioner’s name will be restricted to the name Tracey Hart or Tough;
3. that publication of the nature of the sheriff court proceedings and, in particular, of the subject matter of the applications in relation to which the finding of contempt arose is prohibited; and
4. that there shall, in any report or in any publication in the media in whatever form, be no mention of the name of the children’s father or of any details of his background and history.