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Inner House asserts court power to protect anonymity

22 May 2013

The Court of Session can grant an order protecting an individual's anonymity where that is necessary to preserve the integrity of the judicial process, the appeal court has held.

Lord President Gill, with Lords Menzies and Kingarth, made the ruling in refusing an appeal by the BBC against an order protecting the anonymity of "A", an individual eventually deported to his home country in December 2012 after a 15-year battle to stay in this country.

A had married a British citizen and had been granted indefinite leave to remain in the UK, but in 1996 was convicted of indecency offences against his stepdaughter and subsequently served with a deportation notice. A series of appeals and challenges ultimately failed, but the anonymity order, together with an order under section 11 of the Contempt of Court Act 1981, was granted because it was feared that if it became known that he was about to return to his country of origin, he would be subjected to violence, with the threat of physical injury and possibly death," in contravention of his rights under articles 2 and 3 of the Human Rights Convention.

The BBC argued that the section 11 order could not be granted without the anonymity order ,and no proper basis had been shown for the latter. The need for reporting restrictions had to be convincingly established.

Lord Gill said the question of competency of the order had become important because of the recent decision of Lord Brailsford that the court had no such power except where expressly granted (click here for report). Lord Gill disagreed because the court had an inherent power to do what was necessary to "preserve the integrity of the judicial process".

He continued: "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." This could include withholding a party's identity where disclosure, regardless of outcome, would constitute an injustice, or endanger his safety, or be commercially ruinous; or, for example, that of "a female pursuer where the decision turned on intimate medical evidence". It could also be extended to the protection of third parties whose rights and interests might be affected in similar ways.

The media should however have an opportunity to be heard; but the procedure by which that should be achieved should best be considered by the new Scottish Civil Justice Council, since the present case was fact-specific and all interested parties should be given the chance of consultation.

On the merits, the facts had been considered by tribunals at earlier stages and the court would not interfere with their findings; it would also subvert the basis of the deportation order to rescind the section 11 order now.

Click here to view the opinions.

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