Open Justice in the Supreme Court

The principle of open justice has been reaffirmed today by the Supreme Court in A v BBC [2014] UKSC 25, as have its limits. In A, a foreign national had been given notice of deportation following conviction for a sexual offence against a child. In the subsequent tribunal appeals (dating back to 2001), A was anonymised because of the Article 2 and 3 ECHR concerns he had over his treatment if deported. That anonymisation position was retained by the Court of Session in 2012 when A sought to judicially review the refusal of the Upper Tribunal to grant him permission to appeal. The Court of Session’s directions were made under section 11 of the Contempt of Court Act 1981. The BBC, having learned of the directions, applied to set them aside.

The Supreme Court unanimously held that it could be in the interests of justice to limit the open justice principle, considering the purpose of the open justice principle, the potential value of the information in advancing that purpose, and any risk of harm that its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others (see at [41]). Lord Reed held that the order allowing A to withhold his identity was in accordance with the court’s common law powers; the section 11 order was made in accordance with the power conferred by that provision; and it was not incompatible with the BBC’s Article 10 ECHR rights. Lord Reed also reiterated that the common law principles applied just as vigorously, even where the ECHR was engaged (at [55]-[57]), reiterating a point he had made at length in Osborn v Parole Board [2103] UKSC 61.

Christopher Knight