Supreme Court provides guidance on the principle of open justice and articles 3 and 10 of the ECHR
6 June 2014
In British Broadcasting Corporation v A  UKSC 25 the Supreme Court refused the BBC’s appeal against an opinion of the First Division.
A was a convicted sex offender who sought to resist his deportation from the United Kingdom to his country of origin. He argued that if his offence became known in his country of origin he would be at risk of serious harm contrary to article 3 ECHR. He had been granted anonymity before the courts since 2001.
His appeal was unsuccessful before the Tribunal who noted that anonymity provided a safeguard on his return.
He sought judicial review of the Tribunal’s decision in the Court of Session. During which Lord Boyd gave directions under section 11 of the Contempt of Court Act 1981 prohibiting the publication of A’s name or other identifying features. The BBC were not notified of the application and sought recall of the order once that became known to them. Before Lord Glennie, who considered the application for recall, his Lordship noted that if A’s identity became known on return there was a real risk of his article 3 rights being infringed and thus the withholding of his identify was necessary. The BBC identified that their article 10 rights were engaged and criticized the procedure. Recall was refused.
The BBC reclaimed. The First Division refused the reclaiming motion noting in addition that the recall of the order would frustrate the litigation and create new facts and a new claim.
The BBC appealed to the Supreme Court who unanimously refused the appeal.
Lord Reed described and emphasized the principle of open justice. However, he identified important exceptions to the rule, including consideration of when open justice might undermine the litigation itself, an effective judicial process and the legitimate interests of others.
The Court also held that s12 of the Human Rights Act 1998 did not apply to section 11 applications as they are not applications for relief made against any person. Consequently the media did not have a right to be heard in such an application. The remedy for the media is to seek recall of the order thereafter.
Whilst the BBC’s article 10 rights were engaged by the order, the arguments for making the order and defeating those article 10 rights were overwhelming. In addition the Court has a common law power to withhold the identity of a party.
Dan Byrne of Axiom Advocates appeared for the successful respondent, A.
The full judgment can be found at: http://supremecourt.uk/decided-cases/docs/UKSC_2013_0159_Judgment.pdf
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