Introduction

The UK Supreme Court held that the publication of an individual's identity could be prohibited if it led to an individual's human rights being violated.

The Facts

"A", a foreign national, was convicted of sexual offences, imprisoned and served a notice of intention to deport. He appealed stating that his removal would violate his human rights as, if deported, he risked death or ill-treatment from those enraged by his criminal offences, and that his native country would not provide him with the appropriate protection.

Before the final decision, the Court of Session granted "A's" application prohibiting the publication of his name or other identifying details and directing that no picture of him should be published or broadcast.

The BBC unsuccessfully applied for this order to be recalled in the Court of Session and appealed to the Supreme Court.

The Issues

In what circumstances can the Court depart from the common law principle of open justice?

The Decision

On refusing the appeal it was held that the publication of "A's" identity would undermine the basis of the decision to authorise his deportation since the decision was based on an assessment that there was no real risk of a violation of his rights if his identity was not publicised.

The general principle that justice be administered in public, where the media can report, is inextricably linked to the principle of open justice. However, the court can make exceptions where withholding information is in the interests of justice, such as being in conflict with "A's" unqualified ECHR rights.  However, any interference with the media's right of freedom of expression can be no greater than is absolutely necessary.

Comment

There will be situations where reporting restrictions are essential to ensure the proper administration of justice, however, in doing so the courts continue to recognise the important role of the media in a democratic society, and will not restrict its rights unless absolutely necessary.