• In the case of A v BBC [2014] UKSC 25, it was found that the court has an inherent jurisdiction to steer away from common law principles such as open justice by pulling out the identity of an individual from public disclosure where it is likely that injustice is to arise in the event that disclosure is made.

Facts of the Case

  • D was a child sex offender who resisted deportation on the basis that he would face death or ill treatment in the country he was being deported to, and as such the deportation would breach D’s Article 2 and 3 European Convention on Human Rights (ECHR) rights to life and freedom from torture respectively.
  • D’s appeal was rejected who then decided to seek judicial review of the Upper Tribunal’s decision to refuse permission to appeal this outcome of the First-Tier Tribunal.
  •  Before the judicial review hearing took place, the Lord Ordinary removed D’s name and address from the petition. An order was made pursuant to section 11 of the Contempt of Court Act 1981 which prohibited publishing D’s name and other information, which essentially directed no pictures of D be published nor broadcasted.
  • C, the BBC, challenged the court’s attempts to preserve the identity of D by noting that this would ultimately breach constitutional principles including the rule of law and open justice, and therefore sought a recall of the order made under section 11 of the Contempt of Court Act 1981.

Issues

  • Is the court entitled to depart from the common law principle of open justice by permitting the identity of an individual to be withdrawn from disclosure to the public?

Held by the Supreme Court

  • The Supreme Court dismissed the appeal and found that the court can and will withhold the identity of the individual from public disclosure.

Lord Reed JSC

  • His Lordship emphasised the court’s power to determine the requirements of the constitutional principles of open justice.
  • “Since the principle of open justice is a constitutional principle to be found in the common law, it follows that it is for the courts to determine its ambit and requirements, subject to any statutory provision.” [27]
  • “…the principle of open justice has been recognised by statute since the seventeenth century. The court’s power to make exceptions to the general principle was acknowledged in the legislation of 1693. As Lord President Gill noted when the present appeal was before the Inner House, the basis of the court’s power to make such exceptions is its inherent power to control its own procedure in the interests of justice.” [33]
  • “The balance to be achieved under article 10, in this context, is therefore between on the one hand protection of public discussion of matters of legitimate interest in a democracy, and on the other protection of the integrity of particular court proceedings or of the administration of justice more generally. If other interests protected under Article 10(2) or under other articles of the Convention, such as Article 8, are also involved, then they must also be taken into account. This approach is consistent with that adopted under our domestic law…” [54]