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Cite as: 2018 SCCR 9, 2018 GWD 1-9, [2017] HCJAC 91, 2018 SLT 72, 2018 JC 93, [2017] ScotHC HCJAC_91

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 91

HCA/2017/000019/XM

Lord Justice Clerk

Lord Menzies

Lord Turnbull

OPINION OF THE COURT

delivered by LORD TURNBULL

PETITION TO THE NOBILE OFFICIUM

MR A

against

PROCURATOR FISCAL, DUNDEE

Petitioner

Respondent

4 October 2017

For Petitioner: McBrearty QC, Young; Harper MacLeod

1st Respondent: A Prentice QC, AD (Sol Adv); Crown Agent

3rd Respondent: G Anderson; News Group Newspapers Ltd

4th Respondent: D Hamilton for BBC (Scotland)

Introduction

[1] The petitioner in this application to the nobile officium of the High Court is the alleged

victim in a summary prosecution (“the prosecution”) brought by the Procurator Fiscal in

Dundee (the first named respondent). The accused person in the prosecution is the second

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respondent in the petition. The third respondents in the petition are News Group

Newspapers Limited.

[2] On 19 September 2017, having heard senior counsel for the petitioner, counsel for the

third respondent and the advocate depute, no opposition being stated, this court

pronounced an interim order in the present petition. That order found the petitioner entitled

to anonymity in the prosecution, ordered that for the purposes of the prosecution references

to him shall be withheld or removed and the pseudonym “Mr A” substituted therefor,

ordered in terms of section 11 of the Contempt of Court Act 1981 that no publication of the

petitioner’s name, or any particulars or details calculated to lead to his identification in

connection with the prosecution, be made and allowed him to be referred to as “Mr A” in

the present petition. On that same date the court fixed a full hearing on the petition for

4 October 2017 and permitted any interested party to lodge answers to the petition no later

than 22 September 2017. It also appointed any party intending to appear at the full hearing

to lodge a written case and argument no later than 27 September 2017.

[3] At the hearing on 4 October 2017, the petitioner moved a minor amendment to

part (2) of the prayer of the petition and the court thereafter granted the three parts of the

prayer as amended, without opposition. The effect of that order was to grant the petitioner

anonymity in the prosecution, permitting him to be referred to as “Mr A” in both the

prosecution and the present petition and to order in terms of section 11 of the Contempt of

Court Act 1981 that the publication of his name, or any particulars or details relating to him

and calculated to lead to his identification in connection with the prosecution, should be

prohibited, as should any publication calculated to lead to his identification in connection

with the present petition. On that date we intimated that we would give our reasons for

making the orders in writing at a later date and this we now do.

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The background

[4] The second respondent was reported to the first respondent in December 2016 in

respect of the crime of extortion and subsequently she was served with a summary

complaint. That summary complaint alleged that she made threats towards the petitioner

that she would take certain steps if he did not pay her a sum of money. The complaint

called in the Sheriff Court at Dundee on 18 August 2017. The petitioner was not informed

that the case was due to call in court and the first respondent made no submissions to the

presiding sheriff concerning publication on that date. The second respondent did not

appear on 18 August in answer to the complaint and the case was continued until 8

September 2017.

[5] Following the calling of the summary complaint, a number of news articles were

published in which details of the complaint, the petitioner’s name and occupation and the

nature of the threats which the second respondent was alleged to have made towards him

were all revealed. A number of those articles included photographs of the petitioner.

[6] On 8 September 2017, an application on behalf of the petitioner for an order under

section 11 of the Contempt of Court Act 1981 was presented to a part-time sheriff then

sitting in Dundee and was considered by him in chambers. The sheriff’s attention was

drawn to a number of the news articles which had been published. The sheriff granted an

order under section 11 of the Contempt of Court Act which restricted publication of any

reporting of the prosecution which might identify, or lead to, or result in, the identification

of the petitioner. The sheriff’s reasons for granting the order were recorded as follows:

“The Court, balanced the applicant’s right to privacy and protection of his reputation

as against the public interest in publication. The Court, found it was necessary to

make this order as there existed a pressing social need which outweighed the public

interest in the particular circumstances of this case”

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As expressed, the order appeared to be final.

[7] On 12 September 2017, the third respondents presented written submissions to a

resident sheriff at Dundee, the part-time sheriff not being available. The representations

were said to have been in terms of rule 56.3 of the Act of Adjournal (Criminal Procedure

Rules) 1996. In those representations it was averred that the original order made on

8 September had been made under rule 56.2(1), which relates to interim orders. The

representations challenged the making of the original order on the basis that reporting

restrictions would be contrary to the established principles of open justice. It was averred

that the third respondents were entitled to publish and broadcast contemporary reports of

the prosecution and that it was: “to the petitioner’s advantage that the deception against him

be published as quickly as possible for the sake of his name being cleared of the malign

allegations made against him”. It was said that the principle of open justice required this to

be so.

[8] Having heard senior counsel for the third respondent, counsel for the petitioner and

the procurator fiscal depute, the sheriff considered matters overnight and gave his decision

on 13 September. He revoked the previous order made and refused the petitioner’s

application for anonymity at common law. However, the sheriff ordered that the revocation

was not to take effect until 4pm on 15 September 2017, in order to permit time for an appeal

to be lodged if so advised.

[9] On Friday 15 September, the present petition was lodged and an application called

before Lord Tyre who granted warrant for service, ad interim suspended the order of the

sheriff dated 13 September, recalling the interim order dated 8 September until 19 September

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2017 at 16.00 hours and ad interim prohibited any reporting in respect of the petition until the

same date.

The sheriff’s decision of 13 September

[10] On 13 September the sheriff revoked the earlier decision made under section 11 of

the Contempt of Court Act. He did so on the basis of the agreed submissions before him that

section 11 provides for an opportunity to make an ancillary order. Such an order would

require a foundation. Since the earlier decision proceeded upon an application which failed

to identify any foundational order, he concluded that it could not stand.

[11] Counsel for the petitioner however moved the sheriff to make an order for

anonymity at common law and to pronounce an order in terms of section 11 as ancillary to

that order. Having being referred to and considered the cases of A v British Broadcasting

Corporation (Secretary of State for the Home Department intervening) [2015] AC 588, In re

Guardian News and Media Ltd [2010] 2 AC 697 and HM Advocate v Mola 2007 SCCR 124, the

sheriff concluded that no clear authority had been cited to him to support the proposition

that a sheriff exercising summary jurisdiction had the power to make an order for

anonymity at common law. He concluded that it would not be lawful for him to make the

order sought.

The hearing on the application to the nobile officium

[12] At the hearing of the petition on 4 October the court had the advantage of written

submissions on behalf of the petitioner, the first respondent and the third respondents, and

it heard brief submissions from counsel for each. The court also permitted counsel for the

BBC to address it and to adopt the written submissions which it had tendered to the court,

albeit late, on 3 October.

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[13] The advocate depute explained that when the case was marked for proceedings a

decision was taken that it was not necessary to make a referral to the Crown Office and

Procurator Fiscal Service Victim Information and Advice service (“VIA”). As a result the

petitioner was not contacted to inform him that proceedings had been raised, nor of the date

when the case was to call. It was accepted that this decision was inappropriate and that a

referral to VIA should have been made when the case was marked. It was also explained

that the Crown’s practice has been to move the court to withhold the name of the

complainer in cases of extortion or attempted extortion and to seek an order under the

Contempt of Court Act. This was not done when the case called on 18 August and it ought

to have been. Finally, the advocate depute accepted that rather than taking a neutral

position when the application for the contempt of court order was first made, and again

when that order was challenged before the sheriff on 12 September, the Procurator Fiscal

ought to have supported the petitioner’s applications.

[14] All of the parties before the court agreed that the power at common law to order that

a complainer should be given anonymity was a power that was available to a sheriff in an

application made for that purpose. It was also agreed that it was well established that the

general principle of open justice will often require qualification in the case of victims of

blackmail or extortion. It was agreed that in the circumstances of the present case the

balance between the competing interests of open justice, and maintaining the integrity of the

administration of justice, fell on the side of making a limited restriction to prevent disclosure

of the identity of the petitioner. There was thus no opposition to the order sought in terms

of the petition as amended.

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Discussion

[15] In our opinion, this case raises an important issue concerning the balance between

open justice and the claim which an alleged victim in an offence such as extortion may have

to anonymity. It also raises issues as to the procedure which should be followed in

addressing such applications.

The power of the sheriff

[16] The sheriff has an inherent power at common law to regulate proceedings in the

Sheriff Court, to maintain its authority and to ensure fair and impartial administration of

justice. This inherent power includes the power to depart from the general rule of open

justice by withholding and prohibiting publication of information as to the identity of

individuals, if appropriate.

[17] The principle is stated in Erskine’s Institutes (I – II – 8) in the following manner:

“In all grants of jurisdiction, whether civil or criminal, supreme or inferior, every

power is understood to be conferred without which the jurisdiction cannot be

explicated… By the same rule, every judge, however limited his jurisdiction may be

is vested with all the powers necessary, either for supporting his jurisdiction, and

maintaining the authority of the court, or for the execution of his decrees.”

[18] The existence of the power to punish contempt as an example of the inherent power

available to all courts is recognised in Hall v Associated Newspapers 1979 JC 1. In giving the

opinion of the court the Lord Justice General (Emslie) said:

“The law of contempt of court covers many diverse forms of conduct one of which is

conduct that is liable to prejudice the administration of justice generally, or in

relation to the case of a particular individual. Its source is to be found in the

indispensable power which is inherent in every Court to do whatever is necessary to

discharge the whole of its responsibilities”.

The power to withhold the identity of a complainer, or other information, where it is in the

interests of justice to do so, has been recognised as a further example of the inherent power

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in cases such as HM Advocate v Mola 2007 SCCR 124, HM Advocate v McAllister 2014 SLT 1023

and in A v BBC, to which the sheriff referred.

[19] At paragraph [38] of his opinion in the BBC case when it was in the Inner House (A v

SSHD 2013 SC 533) the Lord President (Gill) said:

“[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 v Goodrich

Corp and ors). 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.”

[20] The Lord President’s opinion was confirmed by Lord Reed (with whom the other

justices agreed) in the Supreme Court at paragraphs [33] to [41] of the judgement. Two

particular passages are relevant to the present case. At paragraph [38] Lord Reed said this:

“[38] As I have explained, it has long been recognised that the courts have the

power to permit the identity of a party or a witness to be withheld from public

disclosure where that is necessary in the interests of justice.”

It is plain, in our opinion, that both the Lord President and Lord Reed were explaining the

inherent power possessed by all courts.

[21] At paragraph [41] Lord Reed said the following:

“Whether a departure from the principle of open justice was justified in any

particular case would depend on the facts of that case. As Lord Toulson observed in

Kennedy v Charity Commissioner (para 113), the court has to carry out a balancing

exercise which will be fact specific. Central to the court’s evaluation will be the

purpose of the open justice principle, the potential value of the information in

question in advancing that purpose and, conversely, any risk of harm which its

disclosure may cause to the maintenance of an effective judicial process or to the

legitimate interests of others.”

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Cases of extortion

[22] There is a well-established line of authority from England which vouches the

proposition that the interests of open justice will often require qualification in cases in which

the crime of blackmail or extortion is alleged. The rationale was stated by the Lord Chief

Justice (Lord Widgery) in R v Socialist Worker Printers and Publishers Ltd Ex p Attorney General

[1975] QB 637 at page 644:

“… all of us concerned in the law know that for more years than any of us can

remember it has been a commonplace in blackmail charges for the complainant to be

allowed to give his evidence without disclosing his name. That is not out of any

feelings of tenderness towards the victim of the blackmail, a man or woman very

often who deserves no such consideration at all. The reason why the courts in the

past have so often used this device in this type of blackmail case where the

complainant has something to hide, is because there is a keen public interest in

getting blackmailers convicted and sentenced, and experience shows that grave

difficulty may be suffered in getting complainants to come forward unless they are

given this kind of protection. Hence, no doubt, the ready acceptance on the part of

counsel for the defence of the suggestion that the two blackmail victims should not

have their names disclosed but should be known as Mr Y and Mr Z.”

[23] In delivering the judgment of the Supreme Court in the case of In Re Guardian News

and Media Limited, Lord Rodger of Earlsferry observed at paragraph [31] that the

circumstance of a victim giving evidence in a prosecution for blackmail was an obvious

example of where an order under section 11 of the Contempt of Court Act might require to

be made.

[24] The observations made in these cases have equal force in this jurisdiction, as is

recognised by the Crown’s practice of seeking an anonymity order, which was not, but

ought to have been, adhered to in the present case.

[25] The petitioner submitted that he was entitled to protection from the courts on the

grounds that he was the victim of extortion at the hands of the second respondent, and that

the extortion related to private matters of a sexual or intimate nature. He submitted that the

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principle of open justice, including free reporting of his identity, required to yield to both

the interests of justice and his right to personal and private life. He submitted that the

public interest in ensuring blackmail victims come forward strongly favoured the granting

of some form of restriction and that a limited restriction, preventing disclosure of his

identity, did not make significant inroads into the public interest in reporting criminal

proceedings.

[26] As indicated above, these submissions were not opposed by any of the other parties

appearing. In our opinion, the submissions were well founded and we therefore gave effect

to them. In our opinion, the sheriff who heard the application on 12 September erred in

failing to recognise that he had jurisdiction to make the order for anonymity at common law

which was requested and he ought to have done so. He ought then to have granted an order

under section 11 of the Contempt of Court Act. We also recognise that the Procurator Fiscal

ought to have raised the matter in court at the first calling of the case and ought to have

given the sheriff hearing the matter on 12 September more assistance than simply adopting a

neutral stance.

Procedure

[27] An order under section 11 of the Contempt of Court Act may restrict publication of

matters in proceedings before the court. Such an order is an ancillary order, as is clear from

the terms of the section, and is pronounced to give effect to a foundational order. In

circumstances such as arose in the present case, an application for a section 11 order will

require to be preceded by a motion to the court at common law to exercise its inherent

power to grant anonymity.

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[28] Orders made under section 11 of the Act are governed by Chapter 56 of the Act of

Adjournal (Criminal Procedure Rules) 1996. The present form of Chapter 56 was introduced

by the Act of Adjournal (Criminal Procedure Rules Amendment) (Reporting Restrictions)

2015, which followed on from the publication in July 2013 by the Scottish Civil Justice

Council of its Consultation on Draft Court Rules in Relation to Reporting Restrictions. The

results of that consultation were shared with the Criminal Courts Rules Council in order to

assist it in its consideration of the Criminal Procedure Rules.

[29] Rule 56.2 provides as follows:

“(1) Where the court is considering making an order, it may make an interim

order.

(2) Where the court makes an interim order, the clerk of court shall immediately

send a copy of the interim order to any interested person.

(3) The court shall specify in the interim order why it is considering making an

order.”

Rule 56.3 applies where the court has made an interim order. It provides an opportunity for

an interested person (such as a media organisation) to be informed of the possibility of an

order being made and permits representations to be made and considered by the court at a

hearing. If no representations are intimated the court will reconsider whether or not to

make a final order. Rule 56.5 provides that a person aggrieved by an order may apply to the

court for its variation or revocation.

[30] The Lord President issued guidance on reporting restrictions on 13 March 2015. In

that guidance he drew attention to the general constitutional principle of open justice that

judicial proceedings are heard and determined in public. He explained that there should

accordingly be public access to judicial determinations, including the reasons given for them

and the identity of parties. He also explained that the general principle can only be departed

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from where an order restricting the reporting of proceedings is made. Paragraph 12 of the

guidance was in the following terms:

“When the court has to consider whether to make a reporting restriction, it is

generally appropriate that it should hear representations from the media. New rules

of court allow the court to make an interim order that will apply until the media have

been heard.”

[31] Rule 56.2 contemplates that the court may make an order or an interim order.

Rule 56.5 permits an order made at that stage to be varied or revoked. In this case the part –

time sheriff who made the original order did not seem to contemplate the possibility of

making an interim order, making only a final order. It is clear from the guidance issued by

the Lord President that, whilst it is not necessary to make an interim order, in most cases

there are advantages in doing so. This gives representatives of the media the opportunity to

be heard and would ensure that any order made is not unnecessarily wide. In circumstances

in which opposition to a contemplated order could have no realistic prospects of success, it

would not seem necessary to go through the process of making an interim order. Such

circumstances would include, for example, where the court, on appeal, quashed a conviction

and granted authority for a fresh prosecution. The process which a judge or sheriff must go

through in considering whether to make any form of order is the process of evaluation

described by Lord Reed, as quoted in paragraph [21] above.

[32] In its submissions in the present case, the BBC expressed concerns about compliance

with rule 56.2(3). It was said that this court had failed to comply with the rule in

pronouncing its interlocutor of 19 September. In rather general and unspecific submissions,

counsel for the BBC complained that it had been unable to understand the rationale for the

restriction contemplated. Given the regularity with which orders were made under

section 11 of the Contempt of Court Act, and the frequency with which, it was said,

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rule 56.2(3) was not complied with, a significant and unnecessary burden was being placed

on the BBC.

[33] We did not find these submissions to be convincing. The BBC published details of

the summary complaint in the prosecution in the news section of its website after the first

calling of the case. No explanation was given for its decision not to challenge the section 11

order made by the part-time sheriff on 8 September. Given the nature of the case, as it was

reported by the BBC, and the absence of any objection to the grant of anonymity, we find the

suggestion that the BBC had no basis upon which to decide whether to challenge the grant

of an order by this court somewhat contrived.

[34] As to frequency, Scottish Courts and Tribunal Service records show that in 2017 a

total of 60 orders under the Contempt of Court Act were made up until the end of

September. This gives an average of between six and seven a month, with the range varying

from one to thirteen. Other than the general suggestion made by counsel, it has not been

ascertained in how many cases rule 56.2(3) was or was not complied with. There is no

evidence before us to suggest that non-compliance is commonplace. Accordingly, there is

no support for the complaint of over burdening made by counsel for the BBC. Nevertheless,

the rule is there for a purpose and we encourage courts considering an application for an

order under the Contempt of Court Act to pay close attention to the requirements of

Chapter 56 of the Act of Adjournal.