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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> THE MENTAL HEALTH TRIBUNAL, APPEAL IN THE CAUSE MH AGAINST THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND [2019] ScotCS CSIH_14 (15 March 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_14.html
Cite as: 2019 SLT 411, 2019 SC 432, [2019] ScotCS CSIH_14, [2019] CSIH 14, 2020 SCLR 240, 2019 GWD 12-162
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Justice Clerk
Lord Malcolm
[2019] CSIH 14
XA65/18
OPINION OF LORD CARLOWAY, the LORD PRESIDENT
in the Appeal under Section 321(1) of the Mental Health (Care and Treatment) (Scotland)
Act 2003 from the Sheriff Principal of North Strathclyde
in the cause
MH
Appellant
against
THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND
Respondents
Appellant: Blair; Balfour & Manson
Respondents: Pirie; Legal Secretary to the Mental Health Tribunal
15 March 2019
Introduction
[1] This is an appeal from an interlocutor of the Sheriff Principal refusing an appeal from
a decision of the Mental Health Tribunal. It raises an important issue of practice in relation
to the anonymisation of the names of parties in civil court proceedings.
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2
Background
[2] On 29 January 2018, the appellant was compulsorily detained for 28 days in terms of
a short term detention certificate under section 44 of the Mental Health (Care and
Treatment) (Scotland) Act 2003. An application to the respondents for a compulsory
treatment order under section 63 of the 2003 Act extended that period by 5 days (s 68)
during which the respondents were bound to reach a decision (s 69). A hearing was
arranged for 2 March 2018 in premises at Irvine. On that date, the respondents purported to
make an interim, hospital based, care and treatment order.
[3] The unusual feature of the hearing was that the legal convenor was not there.
Although the medical and general members were present, the legal convenor was not in the
building. The convener had been unable to reach the premises because of unusually
inclement weather. He was in communication with the hearing by telephone. The
appellant’s solicitor submitted that the hearing was not properly constituted in terms of rule
64 of the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005.
This provides that the respondents cannot decide any question “unless all members are
present”. The convenor determined that the hearing could competently proceed. On 5 July
2018 the Sheriff Principal refused an appeal against that determination. The appeal to this
court challenges his interlocutor.
[4] The appellant has enrolled a motion:
“to anonymise her details to the initials ‘MH’ and to design her care of [her
solicitors] in order to protect her privacy. The appellant is a vulnerable individual
and the matter is concerned with the conduct of the [respondents]”.
The proceedings before the respondents required to be held in private, unless the patient
sought a public hearing (2005 Rules rule 66(1)).
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3
Submissions
Appellant
[5] The appellant accepted that justice was administered by the courts in public (A v
Secretary of State for the Home Department 2014 SC (UKSC) 151 at para 23). This principle was
not unqualified and there were exceptions both at common law and under statute. The
application of the principle was different in private litigation, where stress had always been
put on the need for a proper disclosure of names (Joel v Gill (1859) 22 D 6) and addresses
(Murdoch v Young (1909) 2 SLT 450). These factors carried less weight in public law cases,
where it was likely that the parties would be known to each other. Even in private law
litigation, the need for confidentiality in relation to medical information had long been
recognised (AB v CD (1851) 14 D 177).
[6] Those with a mental disability were entitled to equal access to the courts. Openness
of justice was not an end in itself. The purpose of the principle in a particular case had to be
mental disorders were likely to be vulnerable. The stigma attached to mental illness had not
been eliminated. It was incumbent upon a legal system to afford appropriate protection to
those with mental illnesses, who sought equal access to the courts, alongside those who do
not suffer from such illnesses. This included the making of procedural accommodations for
such parties in order to ensure their effective participation in the process (European
Convention, Articles 6 and 14; United Nations Convention on the Rights of Persons with
Disabilities, Articles 3, 5, 12 and 13). Where a person with a mental illness was the subject of
action taken by the state, his or her name ought not to be disclosed unless there were
pressing circumstances to the contrary.
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4
[7] Rule 66 of the 2005 Rules provided that hearings of the respondents required to be
held in private unless the patient applied otherwise. Rule 67 provided that, even when
public proceedings had been ordered, the respondents could make an order that any
publicity should be limited, having regard to the need to safeguard the welfare of the
patient, or to protect his or her life. Rule 73 provided that any decision of the Tribunal
required to be published in a manner which protected the patient’s anonymity.
[8] The appellant was not seeking a reporting restriction under section 11 of the
Contempt of Court Act 1981. The distinction between a section 11 order and the need for
anonymity was recognised in the Practice Note (No.1 of 2015): Reporting Restrictions etc.
(paras 8 and 9). Chapter 102 of the Rules of Court established a process in relation to
reporting restrictions. The court had an inherent common law jurisdiction to restrict the
reporting of matters disclosed in open court, including the names of parties and witnesses
(Khuja (supra), para 14). The statutory powers were an adjunct to this. The fact that there
was a public interest in reporting proceedings did not mean that it should extend to
identifying the individual involved (A (supra) at para 39). It was inherent in the very nature
of a mental health case that the name of the patient was not something that it was in the
public interest to know. The parens patriae nature of the jurisdiction pointed to this (Law
protect the person.
[9] The appellant had contested an order restricting her liberty in the knowledge that
her opposition would be dealt with by the respondents in private. Access to justice for
persons with mental disorders was more likely to be secured against that background.
Deterrence in accessing justice was a pertinent consideration (H v Ministry of Defence [1991] 2
WLR 1192 at 106-107). All appeals to the Court of Session from the respondents had been
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5
dealt with by referring to the patient by way of an initial or initials (eg G v Mental Health
see the pre-act B v Forsey 1987 SLT 681, 1988 SC (HL) 28). The lunacy jurisdiction of the
English courts attracted anonymity (Khuja (supra) at para 14). The practice of the sheriffs
principal was to anonymise appeals, notwithstanding the lack of an express provision
enabling them to do so. The Practice Note had ended the automatic grant of anonymity in
asylum cases. The Guidance Note (No.2 of 2011) on Anonymity Directions in the First Tier
Tribunal (IAC) set out situations in which anonymity directions would often be made.
[10] In A v Secretary of State for the Home Department (supra), Lord Reed explained the
general approach (at paras 47-50). There was no balancing exercise between Articles 3 and
10, as distinct from between 8 and 10. Interference with freedom of expression had to
remain possible in order to comply with Article 3. This appeal was governed by Rule of
Court 41.39, which allowed the court to hear all or some of the appeal in private. A private
hearing, followed by a published opinion, could undermine the concerns underlying the
need for such a hearing. Anonymity was preferable to the more drastic measure of sitting in
private (Khuja (supra) at para 14). Plainly anonymity might be necessary if a person’s mental
health would be at risk, if his identity became publicly known or the disclosure of personal
information would be humiliating and there was no public interest in it being published.
The appellant’s circumstances raised matters of delicacy and there was no public interest in
disclosing her name.
[11] In most mental health cases Article 8 would be relevant. There required to be a
balance struck with Article 10, since both articles were qualified. The question was whether,
in a democratic society, it was necessary for there to be disclosure (Khuja (supra) at paras 22-
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6
Procedure Rule 39.2(4)). Even if there was no presumption that an order should be made in
consideration that the patient had an expectation that his or her name would not be
disclosed in mental health proceedings involving compulsory measures.
[12] Identification of the appellant would carry a clear risk that sensitive matters would
come into the public domain. In Article 8 terms, it was not clear why the public interest
would make that necessary. There was a degree of prurience on the part of some sections of
the public about persons who might suffer from mental health problems. The appeal
contained a number of matters relating to the appellant’s life and condition, which might be
disclosed.
Respondents
[13] The respondents did not oppose the appellant’s motion. They accepted the general
principle that justice was administered by the courts in public (A v Secretary of State for the
Home Department (supra) at para 23; R (C) v Secretary of State for Justice (supra) at paras 1 and
16). The purpose of the principle was to reassure the public and the parties that the courts
were doing justice according to the law. One aspect of this was that the names of people,
whose cases were being decided, should be public knowledge. There were exceptions to
that, both at common law and under statute (A (supra) at para 27). One statutory exception
was in relation to the respondents’ hearings. When the respondents had been established
under section 21 of the 2003 Act, one of the recommendations of the Millan Report (New
Directions – Report on the Review of the Mental Health (Scotland) Act 1984, Chapter 9, paras 90
and 97 and Recommendation 9.6) had been that the hearings should be held in private
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7
unless the patient objected. Schedule 2 of the 2003 Act had given the Scottish Ministers
power to make rules about this. This had been done (Rules 66 and 73).
[14] There were two grounds on which the court could depart from the general principle.
First, at common law it could do so as part of its inherent power to control its own
procedure in the interests of justice (A (supra) at paras 27 and 33-34, 38). Necessity was the
touchstone (Khuja (supra) at para 14). Anonymity might be necessary if the person’s mental
health would be at risk in the event of his or her identity becoming known, or where
personal information would be humiliating and there was no public interest in its being
revealed (A (supra) at paras 39 and 41). Secondly, the disclosure of information about a
patient’s health, criminal offending, sexual activities or other personal matters was an
interference with his or her right to respect for private life (Christian Institute v Lord Advocate
to disclose that information interfered with other rights to receive and impart information
under Article 10 (A (supra) at para 47). Since Articles 8 and 10 were qualified, the court had
to carry out a case-specific balancing exercise (Khuja (supra) at paras 22-23) in order to decide
whether anonymity or disclosure was necessary in a democratic society.
[15] In the High Court and the Court of Appeal in England and Wales, CPR 39.2(4) stated
that the court could order that the identity of any party should not be disclosed, if that was
necessary to protect the interests of that party. In R (C) (supra) it was decided that
CPR 39.2(4) required a balancing of Article 8 and 10 rights. There was no presumption that
an order should be made in every case. There could be cases in which the court would
refuse to anonymise (eg Fuller v R (supra)). The view of the Court of Appeal in R (C) (supra)
should apply by analogy to the Court of Session. The respondents had no interest in
anonymity being denied in the appeal. The appeal was likely to involve sensitive medical
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8
and other personal information. Disclosure might have a worse effect on the patient than on
someone who was not the subject of measures under the 2003 Act. The respondents would
be against making such information public if it deterred patients from appealing in matters
concerning their liberty (H v Ministry of Defence (supra)).
Decision
[16] The starting point in relation to the withholding of any information concerning civil
cases pending before the courts is to recognise that it is an interference with the principle of
open justice and the requirement that the courts should operate in a way which is
transparent to the public. For this court, that principle is enshrined in the Court of Session
Act 1693, which states:
“... That in all tyme comeing all Bills Reports Debates Probations and others relating
to processes shall be considered reasoned advised and voted by the Lords of Session
with open doors where parties procurators and all others are hereby allowed to be
present as they used to be formerly in time of Debates but with this restriction that in
some speciall cases the saids Lords shall be allowed to cause remove all persons
except the parties and their procurators ...”.
The reason for the principle is a fundamental one; public scrutiny of the courts facilitates
public confidence in the system. It helps to ensure that the courts are carrying out their
function properly.
concerned the identification of a person to be deported as a convicted sex offender, Lord
Reed, prior to referring to the 1693 Act and its sister act of the same date for the High Court
of Justiciary (Act anent advising criminal processes with open doors), said (at para [23]) that:
“[I]n a democracy, where the exercise of public authority depends on the consent of
the people governed, the answer [to the question ‘sed quis custodiet ipsos custodes’]
must lie in the openness of the courts to public scrutiny”.
Page 9 ⇓
9
Shaw at 475):
“formed part of the Revolution Settlement, and bore testimony to a determination to
secure civil liberties against judges as well as against the Crown”.
The Settlement had placed William of Orange and Mary on the throne instead of James VII
in 1688 and established Parliamentary sovereignty, rather than the Divine Right of Kings, as
the governing principle.
[18] Scott v Scott (supra) had determined that, in England, the courts could not hear a
matrimonial cause in camera, even in the interests of public decency. In Scotland, the Lord
President (Inglis) had already said, in the defamation context of Richardson v Wilson (1879) 7
R 237 (at 241, also cited by Lord Reed in A (supra) at para [25]), that:
“... as Courts of Justice are open to the public, anything that takes place before a
Judge or Judges is thereby necessarily and legitimately made public, and, being once
made legitimately public property, may be republished without inferring any
responsibility”.
Open justice has two key elements. The first is that proceedings are heard and determined
in public. The second is that the public has access to judicial determinations, including any
reasons for them and the identity of the parties.
[19] In the modern era, members of the public rarely attend the courts to see the justice
system in action. They rely on the press to provide them with accurate information on
judicial proceedings; thus allowing the process of scrutiny to continue. In this jurisdiction at
least, the court reporter is an endangered species. The press now largely depend on the
courts themselves to supply relevant information on proceedings through the issue, in civil
cases, of opinions. Freedom of expression, now enshrined in Article 10 of the European
Convention, is effectively protected by the openness of the courts and their publication of
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10
information on their proceedings in terms of the common law duty and now also the public
hearing element in Article 6.
[20] All of this points to a continuing requirement for the courts to continue to publish
information on the cases coming before them. A lawyer might still query the need for a
party’s name to be published. In so far as the development of the law is concerned, the
identity of a party may be seen as irrelevant. However, the need to identify the parties was
comprehensively explained by Lord Rodger in In re Guardian News and Media [2010] 2 AC
697 (at para 63) when he answered his own question “What’s in a name?” by saying “A lot”.
The press required to name names in order to attract readers and hence promote continued
scrutiny of the civil justice system.
[21] Before considering what derogations or exceptions from the general principle of
open justice are available, it is important to distinguish between two procedures. The first is
the court’s power, under the 1693 Act and at common law (A v Secretary of State for the Home
Turnbull at para 17 citing Erskine: Institutes i.II.8) not only to exclude the public (and
sometimes, but only in the rarest of circumstances, the press) from a court hearing, but also
to withhold information, including the names of parties, from materials, notably opinions,
which they publish either in hard copy or on the internet. Courts may, for example, elect to
“anonymise” an opinion. The fact that a court decides to do this does not restrict the press,
or others, from publishing what they have heard at a court hearing or from disclosing the
name of a litigant, of which they have become aware either as a result of being present at the
hearing, by asking at the court offices or finding out by other means. The court’s ability to
regulate what it discloses in or about of its own proceedings cannot operate as a means of
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11
press censorship on a report of these proceedings from someone present at the relevant
hearing.
[22] The second procedure is the making of an order under section 11 of the Contempt of
Court Act 1981. It states:
“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.”
A preliminary requirement of this process is the withholding of a name or other matter (ie
the first procedure (supra)). The court can then make a reporting restriction in terms of the
section. It is only the latter which can affect third parties, notably the press (A v Secretary of
State for the Home Department (supra), Lord Reed at para [55] sub nom “orders contra
mundum”). If a reporting restriction is made, then, in this court, the persons affected (ie the
press) can make appropriate representations in terms of RCS 102.3 and 102.5; no doubt
based at least in part on Article 10 and common law. If the order stands, it will be fenced
with the powers of the court relative to the punishment of contempt.
[23] Before making any order, the court should be aware of the general restrictions on
reporting which are already imposed by statute. There is no need to anonymise, where the
criminal law already prohibits publication. In criminal cases, where the 1693 Act has
become section 92(3) of the Criminal Procedure (Scotland) Act 1995, the press are not
excluded from cases involving allegations of “rape or the like” on the understanding that
they do not reveal the identity of the complainer (see also the Sexual Offences (Amendment)
Act 1992, s 1). Section 47 of the 1995 Act prohibits the identification of children. In civil
cases, the exceptions are far more limited. The Judicial Proceedings (Regulation of Reports)
Act 1926 restricts what may be published in divorce proceedings. It excludes any indecent
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12
or, in essence, medical details; but the names of the parties and the opinion of the court may
still be published. There are few other express prohibitions, although there is specific
statutory authority which allows the court to prohibit the press reporting the identities of
children (Children and Young Persons (Scotland) Act 1937, s 46). Unlike criminal
proceedings, a court order is required. Adoption proceedings are determined in private
(Adoption and Children (Scotland) Act 2007, s 109). Publication of proceedings at a
Children’s Hearing is prohibited (Children (Scotland) Act 1995, s 44). Given all of these
specific statutory incursions into what is a constitutional principle of open justice, the court
must be slow to create further exceptions other than in “the most compelling circumstances”
para 20).
[24] Such circumstances do exist. There are situations in which the court can, and
sometimes must, withhold information, and in addition make a reporting restriction, but
these must be set against the background of the general principle. They should be rare
events and depend not upon categories of case but individual circumstances.
[25] The court should seldom anonymise its own processes and should never do so
without having a written record, perhaps to be kept under secure conditions, of the identity
para [102]). There would require to be quite exceptional circumstances before the court
would permit a litigation to proceed with an instance containing initials or a pseudonym.
Given the court’s other powers of anonymisation and reporting restrictions, the need for
such a protection could only arise in the most extreme cases.
[26] In cases in which disclosure of a person’s identity would threaten his or her life, or
put him or her at risk of torture or inhumane and degrading treatment, the court would
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13
require to withhold that person’s identity from a court opinion to be published on the
internet. A section 11 order may also be merited if there were, despite anonymisation, a risk
of publication of the identity by the press (ie the situation in A (supra)). The threat or risk
would have to be a real or substantial one. An action of this type should not be taken as a
matter of routine or applied to a wide category of cases. Each case requires to be considered
on its merits.
[27] In non life/torture threatening situations, it is for the court to balance the competing
rights; eg respect for privacy or property (eg trade secrets; see Bank Mellat v HM Treasury
[2014] AC 700, Lord Neuberger at para 2) on the one hand with open justice/transparency
and freedom of expression on the other. This may be a finely balanced exercise, but the
starting point, or presumption, remains open justice. It is not enough for an order to be
convenient or even desirable. It must be “a matter of necessity in order to avoid the
subordination of the ends of justice to the means” (A (supra), Lord Reed at para [30] quoting
from Re K (Infants) sub nom Official Solicitor v K [1965] AC 201, Lord Devlin at 239; Al Rawi v
[1913] AC 417, Lord Haldane LC at 437-8). In approaching the issue in a particular situation, the
court should choose the least restrictive option; the most restrictive being closed doors
(including the advising) and the least being anonymity of names in the opinion published by
the court, but no section 11 order.
[28] In this particular case, the fact that the appellant was in some way involved with the
mental health regime is an important consideration. Under the previous mental health
regime (Mental Health (Scotland) Act 1984, s 21(4)) there was specific provision requiring
the sheriff to conduct any proceedings in private if requested to do so. This may have
stemmed from the idea that the sheriff’s jurisdiction was administrative rather than judicial
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(F v Ravenscraig Hospital 1989 SLT 49, Lord McDonald, delivering the opinion of the court, at
52). As the Millan report (supra) observed (at para 9.14), this meant that there was “virtually
no published information regarding the operation of the sheriff courts in mental health
hearings”). Nevertheless, when devising a new tribunal system, the report recommended
(at para 9.97; recommendation 9.6) that hearings should be held in private unless the patient
objected. This became the procedure (Mental Health Tribunal ... (Practice and Procedure)
(No.2) Rules 2005, rule 66(1)). Mental Health Tribunal procedures will normally be held in
LJ at para 70). When matters reach an appellate or reviewing court, which is to determine a
point of law, different considerations may come into play especially where, as in this case,
the facts about the patient’s condition are not in issue. The report recommended a right of
appeal to the Court of Session on a point of law, but there was no provision requiring court
proceedings to be heard in camera.
[29] Care may be needed to protect a mental health patient from having his or her
privacy unnecessarily disrespected. Where an appeal is on a point of law, it will seldom be
necessary to divulge details of a patient’s illness in a court opinion or during the course of
an appeal hearing. The press or public would not normally have access to those details. It is
quite another matter to anonymise, or to prohibit publication of, the name of an appellant
simply because by doing so would reveal that he or she is in some way involved in mental
health proceedings. That fact, as a matter of public record, should hardly be kept secret,
even if during the appeal hearing it seemed to be suggested by both parties that it would not
be divulged, even to close relatives who may be concerned about what had happened to the
patient. In most cases, the fact that a patient is subject to mental health proceedings will be
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15
known to those in the patient’s immediate circle of friends, family and quite possibly wider
community. It is not to be, and should not be, kept secret when doing so would conflict
with the general need for open justice.
[30] It was asserted that the revealing of a patient’s identity in this limited manner might
discourage them from appealing decisions taken by the respondents. There was no
evidential basis for this proffered. It was also said that it would in some way have an
adverse effect on the appellant’s health. There was no evidence of this. If there were a real
or substantial risk that identifying the appellant as someone involved in the mental health
system would have a significant impact on the appellant’s mental health, that is something
which the court would be bound to take into account. There is no medical opinion to that
effect. However, if it were to be, then the court hearing the merits of that appeal may
reconsider matters in so far as their own opinion is concerned. As matters stand, there is
insufficient material to justify anonymising the appellant’s name in these proceedings. If the
appellant wishes to design herself as care of a firm of agents, she may do so in the appeal
documents and justify that by way of averment. That is a different issue. The motion as it
stands should be refused.
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Justice Clerk
Lord Malcolm
[2019] CSIH 14
XA65/18
OPINION OF LADY DORRIAN, the LORD JUSTICE CLERK
in the Appeal under Section 321(1) of the Mental Health (Care and Treatment) (Scotland)
Act 2003 from the Sheriff Principal of North Strathclyde
in the cause
MH
Appellant
against
THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND
Respondents
Appellant: Blair; Balfour & Manson
Respondents: Pirie; Legal Secretary to the Mental Health Tribunal
15 March 2019
[31] I have had the opportunity of reading in draft the opinion of your lordship in the
chair and I am in agreement with it.
[32] The first part of the argument for the appellant related to the motion to “anonymise
her details to the initials “MH” and to design her care of [her solicitors] in order to protect
her privacy”. In the motion, the only explanation for seeking such an order was that the
appellant was a vulnerable individual and the matter concerned the conduct of the MHTS.
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17
In explaining the exact nature of the order he sought, counsel explained that he sought an
order from the court that the appellant should, in the instance, be designated only by her
initials, and that in such a way only should the case appear on the rolls of court. This, he
submitted, was an order which it was within the common law powers of the court to grant.
[33] The second part of the submission related to the effect that making such an order
would have. It was submitted that this would be equivalent to an order under s 11 of the
Contempt of Court Act 1981: the publication or dissemination of any material revealing the
identity of the appellant would constitute a breach of an order of the court, and so be
punishable for contempt of court. A specific order under s 11 would not be needed.
[34] In advancing the first part of his submissions, and conscious of the decision in R(C) v
Secretary of State for Justice [2016] 1 WLR 444, counsel claimed to disavow any argument that
there should be a presumption of “anonymization” in appeals from the MHTS. However,
he repeatedly asserted that there should be “if not a presumption, at least an assumption” of
“anonymity” in these cases. His argument was clearly predicated on the generality of cases,
because he did not advance arguments which were in any way specific to the circumstances
of this particular appellant. The whole tenor of this argument was that mental health
appeals were not cases where the principle of open justice applied “in an unvarnished way”.
Patients in appeals from the MHTS were entitled to expect that their identity would not be
revealed. The reality, therefore, was that counsel, despite his disavowal of the point, was
arguing for a rebuttable presumption that appellants in appeals from the MHTS should not
be identified, and that their identity should not appear in the instance of the appeal, nor be
published in the rolls of court.
[35] I am unable to accept such a submission. There are statutory exceptions to the
principle of open justice in relation to proceedings before the MHTS, but these do not apply
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18
to appeals. The primary focus of the MHTS will be the welfare of the patient and the
medical or therapeutic interventions which may be required, all of which naturally requires
considerable focus on the nature, degree and effect of the illness from which the patient is
suffering. By contrast, these issues are not likely to feature to a great extent in appeals, the
scope of appeals is limited in terms of section 324(2) of the Mental Health (Care and
Treatment) (Scotland) Act 2003. The focus of the appeal will be on the legal formalities and
proprieties of the process and the decision making. The present case, being one concerned
only with the question of jurisdiction, is a case in point. The factors which led to the
statutory exceptions in relation to proceedings before the Tribunal do not apply with equal
force to appeal proceedings, and the principles of open justice remain in full vigour. That is
not to say that the court will not take steps to prevent disclosure of an individual’s name, or
other personal and intimate details, where the interests of justice demand it, but the court
must be satisfied that the balance lies in favour of concealment, not the other way round.
The argument for the appellant inverts this, by submitting that the material should be
withheld unless the public interest requires disclosure.
[36] It is abundantly clear that the court would have power to order that the identity of
an appellant should be withheld from the public should the circumstances indicate that it
was necessary to do so in the interests of justice. For the ways in which this might be done,
see para 61 of A v Secretary of State for the Home Department, 2014 SC 151. However, in
addressing that question, the principle of open justice, which is a paramount consideration,
requires to be balanced with the interests of the individual litigant, the reasons the order is
sought, the possible effect which might follow were the identity revealed, the consequences
for the administration of justice, and so on. It is not a matter of presumption or assumption.
I do not consider there is any basis for considering an application in a case such as this as
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19
standing in any different position from any other case, such as an asylum case, or one where
sensitive commercial information is at stake. As is clearly identified in A v Secretary of State
for the Home Department (supra) the rule of open justice is a constitutional principle departure
from which requires a compelling justification, and should extend only to the degree that
the public interest of necessity dictates.
[37] Nor am I able to accept the submission that the making of an order at common law
that the identity of an individual litigant be withheld would be an order having equivalent
effect to the making of an order under section 11 of the Act. In my view counsel for the
appellant was mistaken in his understanding of the nature of the order that the court would
make at common law, where it found that there were reasons making it necessary for the
identity of the individual to be withheld from the public. In the Inner House in A v Secretary
of State for the Home Department [2013] CSIH 43, the Lord President (Gill) stated [at para 38]
that the inherent power of the court was to “withhold the identity of a party where,
regardless of the outcome of the case, the disclosure … would constitute an injustice”. The
nature of the inherent jurisdiction, as one allowing material to be withheld from the public,
appears also from Lord Reed’s discussion of the matter in A v Secretary of State for the Home
Department (supra) at paras 37-38. It seems to me that an order of the court allowing an
individual’s identity not to be disclosed in open court, or otherwise to be withheld from the
public, is simply that: an order permitting information to be withheld. It is effectively
permissive, in allowing material to be withheld from public gaze, rather than a prohibitory
order against third parties, preventing the reporting of the information, or the disclosure
otherwise of the identity of the individual. It is part of the court’s inherent ability to regulate
judgment with which Lord Reed agreed, observed (para 18) that
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20
“The inherent power of the court at common law to sit in private or anonymise
material deployed in open court has never extended to imposing reporting
restrictions on what happens in open court. Any power to do that must be found in
legislation”
Although relating to a different jurisdiction, that observation appears to me to be equally
relevant to the inherent jurisdiction of the Court of Session. The Court of Session Act 1693
recognised that the court had power to derogate from the principle of open justice by
causing the removal of the public from the courts, but it has ever been the practice that when
this has been done, the press have been allowed to remain.
[38] Had the nature of an order allowing an individual’s identity, or other information, to
be withheld from the public been as counsel for the appellant suggested, it would hardly
have been necessary for section 11 to be enacted: the court’s order would have been
sufficient, and breach of it could automatically have been punished as contempt. In A v
Secretary of State for the Home Department (supra), Lord Reed (para 69) noted that, but for the
section 11 order, the BBC would have been able to report the identity of the appellant,
despite the other steps taken by the Lord Ordinary to have the appellant’s name withheld
referred to at para 35 in A v Secretary of State for the Home Department (supra), the order
allowing names to be withheld was backed up by a section 11 order, and this was clearly
seen as being necessary to make the common law order effective.
[39] Section 11 of the Act applies only where the court, having power to do so, has
allowed a name or other matter to be withheld from the public. In these circumstances the
section gives the court the added power to give directions prohibiting the publication of the
relevant information, but only so far as necessary for the purpose for which the information
was withheld. That is why the power in section 11 is referred to as “ancillary” to the court’s
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21
common law powers. This was noted in para 59 of A v Secretary of State for the Home
Department (supra):
“As Lord Rodger explained in Re Guardian News and Media Ltd (para 31), sec 11 does
not itself confer any power upon courts to allow ‘a name or other matter to be
withheld from the public in proceedings before the court’, but it applies in
circumstances where such a power has been exercised. The purpose of sec 11 is to
support the exercise of such a power by giving the court a statutory power to give
ancillary directions prohibiting the publication, in connection with the proceedings,
of the name or matter which has been withheld from the public in the proceedings
themselves. Section 11 thus resolves the doubt which had arisen following the
Socialist Worker case as to the power of the court to make such ancillary orders at
common law. The directions which the court is permitted to give are such as appear
to it to be necessary for the purpose for which the name or matter was withheld.”
In A v Secretary of State for the Home Department (supra), (para 74) Lord Reed noted that the
Tribunal had determined that should the appellant’s identity become known it would put
him at risk. He added that:
“In those circumstances, the court's failure to make a sec 11 order would, as the Lord
President observed, have had the grave consequence that the deportation might
create all the risks that the tribunal's directions as to anonymity had been intended to
prevent.”
In other words, the section 11 order enabled the court’s decision, at common law, to
withhold information to be made effective.
“Put shortly, the order had to be made if the court was to do its job, notwithstanding
the resulting restriction upon the BBC's capacity to do its job.” (para 76).
I agree with the way the matter was expressed by Lord Sumption in Khuja v Times
Newspapers (supra), at para 14:
“Where a court directs that proceedings before it are to be conducted in such a way
as to withhold any matter, section 11 of the Contempt of Court Act 1981 allows it to
make ancillary orders preventing their disclosure out of court.”
[40] For these reasons, and those given more fully by your lordship, I agree that the
motion should be refused.
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22
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Justice Clerk
Lord Malcolm
[2019] CSIH 14
XA65/18
OPINION OF LORD MALCOLM
in the Appeal under Section 321(1) of the Mental Health (Care and Treatment) (Scotland)
Act 2003 from the Sheriff Principal of North Strathclyde
in the cause
MH
Appellant
against
THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND
Respondents
Appellant: Blair; Balfour & Manson
Respondents: Pirie; Legal Secretary to the Mental Health Tribunal
15 March 2019
[41] At first sight the appellant’s application may seem straightforward and
uncontroversial. The appeal raises a pure question of law as to whether the tribunal was
able to make a lawful order. The case can be decided and the answer publicised to the
world at large without any need to identify the appellant or mention the nature of her
mental disorder. The doors of the court can be open throughout the hearing so long as no
one says anything or distributes any document which reveals the appellant’s name. It might
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23
be said that there is no obvious public interest in the identity of the person challenging the
tribunal’s decision. A satisfactory compromise of the competing interests can be achieved,
with which no one could reasonably object.
[42] If the discussion was confined to a competition between ECHR article 8 privacy
rights and press freedom of expression under article 10, there would be force in the above
analysis. However, long before article 8 and the relatively recent development of a privacy
law, our courts insisted upon a general principle to which great weight must always be
attached, namely that judicial proceedings are held in public and the parties are named in
court and in judgments. This can be traced as far back as the Court of Session Act 1693. It
created, for example for reasons of public decency or for the protection of children; but the
importance of the default position has never been doubted. Any qualification must be
justified as clearly necessary in the interests of justice. When the parties consent to secrecy,
judges must be “most vigilant” (R v Westminster City Council ex p P (1998) 31 HLR 154, Sir
Christopher Staughton at 163). Where a derogation is justified, it should be the least
required to satisfy the circumstances of the case. In short, the general principle must be
upheld unless to do so would thwart the essential purpose of the courts, namely to
administer justice fairly and in a manner which fosters the trust and confidence of the public
in our laws and the judicial system.
[43] Lord Diplock has explained the position as follows:
“If the way that courts behave cannot be hidden from the public ear and eye this
provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the
public confidence in the administration of justice. The application of this principle of
open justice has two aspects: as respects proceedings in the court itself it requires
that they should be held in open court to which the press and public are admitted
and that, in criminal cases at any rate, all evidence communicated to the court is
communicated publicly. As respects the publication to a wider public of fair and
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24
accurate reports of proceedings that have taken place in court the principle requires
that nothing should be done to discourage this.” (Attorney General v Leveller Magazine
Ltd and Others [1979] AC 440 at 450 A-B)
the judgment of the court, began as follows:
“The principle of open justice is one of the most precious in our law. It is there to
reassure the public and the parties that our courts are indeed doing justice according
to law. In fact, there are two aspects to this principle. The first is that justice should
be done in open court, so that the people interested in the case, the wider public and
the media can know what is going on. ... The second is that the names of the people
whose cases are being decided, and others involved in the hearing, should be public
knowledge.”
[44] Similar reasoning applies in the context of article 6 of ECHR. In Re S (A Child)
(Identification: Restrictions on Publication) [2005] 1 AC 593, Lord Steyn drew attention to the
observations of the European Court of Human Rights in Diennet v France (1995) 21 EHRR
554:
“The court reiterates that the holding of court hearings in public constitutes a
fundamental principle enshrined in article 6. This public character protects litigants
against the administration of justice in secret with no public scrutiny; it is also one of
the means whereby confidence in the courts can be maintained. By rendering the
administration of justice transparent, publicity contributes to the achievement of the
aim of article 6(1), namely a fair trial, the guarantee of which is one of the
fundamental principles of any democratic society ... “. (paragraph 33)
His Lordship noted that there are numerous automatic statutory reporting restrictions, for
example in favour of victims of sexual offences, and also statutory provisions providing for
discretionary reporting restrictions, such as in respect of official secrets. However:
“Given the number of statutory exceptions, it needs to be 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.” (paragraph 20)
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25
[45] The case law, for example the Leveller case, reveals that there have been doubts as to
the ability of the court under its inherent common law power to pronounce orders binding
upon the public at large, for example by way of a restriction on press reporting, the breach
of which automatically amounts to a contempt of court. (Section 11 of the Contempt of
Court Act 1981 was passed in response to the observations made by the judges in that case.)
However, it has always been clear that the court can regulate its own procedure, for example
by deciding that the proceedings, or a part of the proceedings, be held in private, or that a
witness should give evidence on an anonymous basis. If the court has made such an order
and someone publicises details as to the proceedings or names the witness, this can amount
to a contempt, but only if the circumstances demonstrate a calculated and wilful interference
with the administration of justice.
“For that to arise (the publication amounting to a contempt of court) something more
than disobedience of the court’s direction needs to be established. That something
more is that the publication must be of such a nature as to threaten the
administration of justice either in the particular case in relation to which the
prohibition was pronounced or in relation to cases which may be brought in the
future. So the liability to be committed for contempt in relation to publication of the
kind with which this house is presently concerned must depend upon all the
circumstances in which the publication complained of took place.” (Leveller, Lord
Diplock at page 465)
[46] In Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago and Another
[2005] 1 AC 190, when delivering the judgment of their Lordships, Lord Brown of Eaton-
under-Heywood said at paragraph 67:
“Their Lordships likewise conclude that if the court is to have the power to make
orders against the public at large it must be conferred by legislation; it cannot be
found in the common law. It is not for the Board to say whether or not such
legislation is desirable. Sometimes, no doubt, an actual order rather than merely a
warning may be judged necessary (as perhaps in this very case). There may,
however, be fears lest the power be too readily invoked – always a concern with
regard to prior restraint orders. If, moreover, legislation is to be enacted, it should
include a right of appeal by those aggrieved (such as was added in the United
Kingdom by section 159 of the Criminal Justice Act 1988). “
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26
Again it was recognised that, regardless of the legality of an order, the publication of matters
likely to prejudice the fair administration of justice, particularly if a warning has been given
by the court, could still give rise to a contempt of court. In the UK, the necessary power is
provided by section 11 of the Contempt of Court Act 1981; however, counsel for the
appellant disavowed any request to the court to exercise its powers under that provision.
[47] From the above it can be concluded that if the court restricts the disclosure of
information, in the absence of an ancillary section 11 order (which is subject to important
procedural safeguards to preserve article 10 rights: see chapter 102 of the rules of court)
disclosure of that information by a third party is not necessarily a punishable contempt of
court. It may be a contempt, but only if the circumstances so demonstrate.
[48] Often the judicial discussion revolves around balancing article 8 and article 10 rights.
If there is a legitimate public interest in the matter at issue the latter often prevails, and vice
versa. However, in respect of a proposed restriction on the public’s right to know what is
happening in the courts and who is involved, the scales are skewed in favour of openness
and transparency. That said, courts in England and Wales have recognised wardship and
cases concerning the treatment of those with mental disorders as being in a special category
standing apart from the public administration of justice. Reference can be made to the
speech of the Earl of Halsbury in Scott v Scott at pages 441/2. Such proceedings are seen as
involving purely private matters: R (C) paragraph 27. Though either or both can be relaxed,
for example in respect of dangerous persons, the starting point in such proceedings is
privacy and anonymity. No doubt similar thinking underpins the procedural rules
applicable to the Mental Health Tribunal for Scotland. The view has been taken that if
confidential personal or medical information can be publicised, there will be a “chilling
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27
effect” on the willingness of patients to be open and frank with those responsible for their
care and treatment, and inhibit proceedings designed to review compulsory treatment
measures. The “therapeutic exercise” may be compromised. Disclosure can put the patient
and perhaps others at risk, and have an impact on successful reintegration into the
community (R (C) paragraphs 26/39).
[49] In England and Wales the practice now is that proceedings in the Court of Protection
are public, but the court may impose anonymity restrictions in what is, interestingly, called
a ”transparency order”. The judge requires to carry out an evaluative exercise, akin to a
discretionary decision, balancing the competing considerations – see PW v Chelsea and
Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067 paragraph 74. The
reforms in this regard south of the border, which have taken place even in respect of
proceedings involving personal and medical information of a highly sensitive nature, have
not, as yet, travelled north to the doors of the tribunals in Scotland. It can however be noted
that in PW Peter Jackson LJ said: “In cases of this nature, the balance between articles 8 and
10 will normally be found to tip in favour of protecting the identity of the individual
concerned.” (paragraph 98)
[50] For a mental health tribunal the focus will be on the patient and his or her medical
and personal circumstances. However, if an appeal is taken from a tribunal to the courts on
a point of law, the starting point is openness and transparency. An exception must be
justified as necessary for the proper administration of justice. If, absent anonymity, there
would be a serious risk of interference with the appellant’s private life such as would
undermine or amount to an affront to her personal integrity, then that would weigh heavily
in the balance. The court must act compatibly with the appellant’s article 8 rights. In the
present case, the most which can be predicted is the appellant’s identification as someone
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28
who is challenging an order that she requires compulsory treatment measures in respect of a
mental disorder. Is that sufficient to override the public interest in the openness and
transparency of these court proceedings, and the article 10 rights of the press and others in
respect of an appeal hearing in Scotland’s highest civil court?
[51] The relatively recent proliferation of the use of initials in court judgments suggests
that it is tempting to err on the side of anonymity. A tendency to downgrade the
importance of naming those involved was given an important corrective in the judgment of
the UK Supreme Court delivered by Lord Rodger of Earlsferry in Re Guardian News and
Media Ltd and Others [2010] 2 AC 697. It was in response to the observation that the court’s
term docket read “like alphabet soup”. At paragraph 25 his Lordship drew attention to the
existence of specific statutory restrictions on what may be reported in various kinds of cases,
and to Lord Steyn’s injunction in Re S as to the need for compelling circumstances to justify
further exceptions to open justice. There are well-recognised examples of cases where the
court has been prepared to exercise its inherent power, for example if the matter at hand
concerns an alleged blackmailer, or the protection of confidential or secret information.
However, in general, court litigation is inconsistent with a desire for privacy. And it is a
vital part of open justice that the press should be free to report proceedings in court.
Lord Rodger explained the importance to the media of the ability to put a name to the
participants – see paragraph 63. He quoted Lord Steyn’s reference to reports of
“disembodied” trials and an adverse impact on informed debate about criminal justice. It
was noted that judges have warned against press censorship and any temptation to act as if
they were newspaper editors: see Attorney General’s Reference (No 3 of 1999) [2010] 1 AC 154
at paragraph 25.
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29
[52] The appellant’s application for an anonymity order is not supported by evidence as
to any specific adverse impact on her health or welfare if an order is refused. The
submission is that the order should be granted more or less automatically given the
background to and context of the appeal to this court. In R (C) (paragraph 21) a distinction
was drawn between civil proceedings which happen to involve a person with a mental
disorder, and those concerning compulsory powers of detention, care and treatment under
mental health legislation. The peculiarity of this case is that it straddles both; however, in
my view, it is of significance that there will be no reason for the court to investigate or
publicise medical or other personal information about the appellant. The appeal is on a pure
question of law. The court will not be exercising a “parental” jurisdiction of the kind
discussed by the judges in Scott, see for example Lord Atkinson at page 462 and Lord Shaw
of Dunfermline at page 483.
[53] I have not identified the compelling circumstances necessary to justify any
interference with the principle of open and transparent justice. Unless the court is vigilant
and gives appropriate weight to this important pillar of our justice system, there is a real risk
that exceptions will accrue incrementally, step by step, until the general rule is evidenced as
as much in the breach as the observance: see the speech of Lord Steyn in Re S at
paragraphs 29 and 33. Questions can at least be asked as to the more or less automatic
secrecy afforded to proceedings in mental health tribunals in Scotland, extending, so the
court was informed, even to the reasons for a decision, not least given recent reforms in
England and Wales. Moreover, if the court was to grant this order, it could be seen as
maintaining, or even fostering, outdated notions of shame and stigma attaching to mental
illness.
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[54] Having regard to all the relevant competing considerations, including those under
articles 8 and 10, in my opinion the balance remains tilted in favour of unrestricted open
justice. It follows that I would refuse the application for an anonymity order.