Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJ_02.html
Cite as: 2007 SLT 462, [2007] HCJ 02, [2007] ScotHC HCJ_02, 2007 GWD 8-139, [2007] HCJ 2, 2007 SCCR 124, [2007] ScotHC HCJ_2

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HIGH COURT OF JUSTICIARY

[2007] HCJ02

OPINION BY LORD HODGE

in the cause

HER MAJESTY'S ADVOCATE

against

GIOVANNI MOLA

________________

Act: Bain A.D.

Alt: Janice Keegan

7 February 2007

[1] On 29 January 2007 I issued an order under section 11 of the Contempt of Court Act 1981. The order prohibited any form of media reporting of any of the proceedings in this case at Glasgow High Court from 10.30 am on that date which revealed or tended to reveal the name, age, address, nature of employment, ethnic origin or nationality of the complainer and witness number 14 in this case and also the date of death of the complainer's mother. The order came into effect immediately and is to remain in force for an indefinite period. I provided that the order would become final on 31 January 2007 unless any interested party applied to the court for its recall or variation.

[2 ] A responsible media organisation informed my clerk that they wished to make representations against the order and arrangements were made for a hearing but, once the nature of the proceedings had been explained to them, they chose not to challenge the order. The order therefore became final. In the informal representations requesting a hearing concerns were expressed about the competency and scope of the order and I have decided to clarify the approach which I took by issuing this opinion.

[3 ] I deal first with the competency of the order and then with the exercise of discretion in this case.

Competency of the section 11 order

[4 ] Section 11 of the Contempt of Court Act 1981 provides:

"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."

[5 ] Section 21(4) of that Act provides that certain sections of the Act do not extend to Scotland. Section 11 is not so excluded from applying in Scotland.

[6 ] In order to have power to issue a section 11 order it is necessary that the court has power to withhold a name or matter from the public. While as a general rule proceedings in court are open to the public, I consider that the court has a common law power to regulate its proceedings and that it may in certain circumstances exclude the public from proceedings and thus withhold matters from the public. But in this case I do not need to consider the extent of the court's common law powers as I proceeded under a statutory provision. Scottish courts have power under section 92(3) of the Criminal Procedure (Scotland) Act 1995 to remove all persons from the court from the commencement of the leading of evidence in a trial for rape or the like. I interpret "or the like" to include offences of a sexual nature. This trial, in relation to a charge of culpably and recklessly infecting the complainer with Human Immunodeficiency Virus and Hepatitis C by unprotected sexual relations, falls within section 92(3). I note that the power to exclude the public is not confined to the period when the complainer is giving evidence but is stated more widely. While the practice of the court is usually to confine the closure of the court to when the complainer is giving evidence, that practice does not delimit the court's power.

[7 ] I am satisfied that a court, which has power to exclude the public from proceedings to which section 92(3) of the 1995 Act applies, has power in such proceedings, in the words of section 11 of the Contempt of Court Act 1981, to "allow a name or other matter to be withheld from the public in proceedings before the court".

[8 ] I recognise the practice of allowing responsible members of the press to remain in court in such cases when the court is closed. In X v Sweeney 1982 SCCR 161 Lord Avonside described the practice in the following terms:

"In our courts a victim alleged to have been raped almost invariably gives evidence behind closed doors. In such a situation the public is not permitted to hear her evidence. It has been the practice, particularly in Glasgow, to allow press reporters to remain. They are asked to exercise a wise discretion, and in my experience, this they do admirably. The trial judge could, of course, if he thought it desirable, exclude the press and clear the court completely."

[9 ] The practice so described is, in my experience, the norm in the High Court wherever it is sitting. It is clear from that passage that his Lordship is describing a practice which is within the power of the court to allow the press to remain, but again, as Lord Avonside states, the practice does not limit the power of the court to order complete closure under section 92(3).

[10 ] I am therefore satisfied that the Scottish courts on which the section 92(3) power is conferred have power under section 11 of the Contempt of Court Act 1981 to prohibit the publication of a name or matters in connection with those proceedings..

The exercise of discretion

[11 ] I turn then to explain the exercise of my discretion. I recognise the benefits of accurate reporting of court proceedings and the very valuable role of a free press in informing the public of the administration of justice. These are cogent reasons why as a general rule court proceedings are conducted in public and can be reported by the media. In most circumstances, in the words of Justice Brandeis, sunlight is the best of disinfectants. But exceptional circumstances can arise where it is necessary to restrict the publication of matters in relation to court proceedings in the interest of the administration of justice.

[12 ] In this case the Crown applied for the order which I made. I was shown two medical reports from a consultant clinical psychologist which demonstrated that the complainer was devastated by what had befallen her and that her mental health would be seriously at risk if her identity were to become known to the public through her participation in the court proceedings. There was a real risk that she would not have been able to give evidence unless her identity were protected. If she did not give evidence, the Crown could not have proceeded with the prosecution. In these circumstances an order under section 4(2) of the Contempt of Court Act 1981, which merely postponed the publication of details from which her identity could be ascertained, would not have provided adequate protection to the complainer so as to persuade her that she could give evidence without imperilling her anonymity. I was satisfied that there was no counterbalancing public interest in the disclosure of information which would lead to her being identified. The order did not prevent open justice. Members of the press remained in court throughout this trial and the order which I made did not restrict the ability of the media to give a balanced report of the sad events which these proceedings have disclosed.

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