BBC legal challenge over sheriff’s failure to provide reasons for imposing reporting restrictions dismissed

The BBC, Times Newspapers Limited and News Group Newspapers Limited argued that the reasons later provided, which stated simply that the case involved a “vulnerable person”, were “inadequate” and therefore the sheriff acted in breach of the media’s rights and common law and/or in violation of the right to freedom of expression under article 10 of the European Convention on Human Rights.

A judge in the Court of Session ruled that the sheriff provided inadequate reasons for imposing the reporting restrictions, but dismissed the petition for judicial review on the basis that the media had an “alternative remedy” to challenge the order, adding that new court rules require an interim order to be made with an explanation given

Lord Doherty heard that on 7 August 2019, in a chapter 33 ordinary cause action at Forfar Sheriff Court, the sheriff pronounced an interlocutor which included the following order: “ex proprio motu, in terms of s 4(2) of the Contempt of Court Act 1981, orders that publication of any report of these proceedings, or any part of them, be postponed until the further orders of court”.

But neither the interlocutor nor the minute of proceedings contained an explanation of why the order was granted.  

At the time the order was made both the Sheriff Court and Court of Session rules provided that where the sheriff was considering making an order restricting the reporting of proceedings he or she “may make an interim order”.

The sheriff requires to specify in the interim order why he is considering making an order, and the sheriff clerk must immediately send a copy of the interim order to any “interested person”, which allows them to make representations to the sheriff before an order is made. 

Where an order is made the sheriff clerk must immediately send a copy to any interested person and arrange for a notice of the order to be published on the SCTS website, and the rules provide that a person aggrieved by an order may apply for its variation or revocation.

But with effect from 2 March 2020, the court rules were amended by SSI 2020/20 – the effect of which is that where a court is considering making a reporting restriction it “must” now proceed by first making an interim order.

On 7 August 2019 a member of the sheriff clerk’s staff intimated the order by email to interested parties including the petitioners, following which a BBC lawyer asked if a reason could be provided, to which the staff member’s response was “I have no comment”. 

The BBC continued to press for reasons, explaining that it was difficult for them to give full consideration to the merits of an application for variation or revocation when it did not know why the order had been granted.

After further correspondence, on 27 August 2019 the sheriff clerk at Dundee wrote to the BBC stating that reasons for the making of the order ought to have been provided, adding that: “The presiding sheriff has now advised that the order was made due to the involvement of a vulnerable person in the case.”

On 29 August 2019 the BBC’s Principal Solicitor, Rosalind McInnes, sent a reply seeking further clarification, stating that the involvement of vulnerable people in court actions is not exceptional and asking for the evidence which the sheriff had available which would justify the removal of the very strong presumption in favour of open justice.

The sheriff clerk communicated the BBC’s concerns to the sheriff, but replied to Ms McInnes advising that the sheriff did not intend to provide any further reasons. 

She suggested that an appropriate remedy would be for a hearing to be assigned, but Ms McInnes responded: “If we don’t have this information, we cannot effectively make representations. Nor can we know if we need to have a hearing”.

The petitioners lodged a petition for judicial review seeking declarator that by making the order under section 4(2) of the Contempt of Court Act 1981 without contemporaneously intimating reasons for the grant of the order which would have been adequate to allow the petitioners to make an informed decision as to whether to seek the variation or revocation of the order, the sheriff acted in breach of the petitioners’ rights at common law, et separatim in breach of the petitioners’ rights under article 10 of the ECHR, et separatim “irrationally”.

The petitioners also sought declarator that the reasons later intimated to them as to why the sheriff had granted the order were “inadequate” for the purpose of enabling the petitioners to make an informed decision as to whether to seek the variation or revocation of the order, with the result that the sheriff acted in breach of the petitioners’ rights at common law, et separatim in breach of their rights under article 10 of the European Convention, et separatim irrationally.

Refusing the petition, the judge held that while the reasons provided by the sheriff were insufficient the media had an “alternative statutory remedy”.

In a written opinion, Lord Doherty said: “In my opinion the specification in a section 4(2) interim order should indicate why it is that reporting of the proceedings would give rise to a substantial and unacceptable risk to the administration of justice, and why no lesser measure would eliminate the risk.

“The purpose of the court having to specify why it is considering making an order is two-fold. First, to focus the court’s mind on the application of the correct test. Second, to inform interested parties (and, later, other aggrieved parties) why the order is said to be necessary.

“If the only specification given is ‘on cause shown’; or ‘risk of prejudice to the administration of justice’; or ‘possibility of future trial proceedings’; or ‘to protect the privacy of the pursuer’; or ‘to protect a vulnerable person’ in my view that will not satisfy the statutory requirement.

“None of those statements is indicative of the court being mindful of the relevant considerations. None of them explains why it is that the requirements of the subsection are said to be satisfied.” 

The judge observed that the “root cause” of the difficulties in the present case was that on 7 August 2019 the sheriff made an order rather than an interim order.

He explained: “Had the first respondent made an interim order he would have had to specify why he was considering making an order, viz why it was that he considered postponement of publication was necessary to prevent a substantial risk to the prejudice of the administration of justice, and why no lesser step would be sufficient to protect the child’s interests.”

The short explanation eventually provided did not explain why it was that reporting of the proceedings would give rise to a substantial and unacceptable risk to the administration of justice, and why it was that no measure short of postponement of reporting could eliminate that risk.

“In my opinion,” the judge continued, “there was inadequate specification of why the first respondent made the order. Moreover, what was said strongly suggested that he had not applied his mind correctly to the test which had to be satisfied if an order was to be made.

While the court considered that the sheriff had “fallen into error” in his approach, judicial review was not the appropriate remedy.

Lord Doherty concluded: “In my view the petitioners have an alternative statutory remedy.  I am not persuaded that the right to seek variation or revocation is not an effective remedy.  I think it noteworthy that although in A v Secretary of State for the Home Department, supra, the Lord Ordinary did not provide reasons for making a section 11 order, the Supreme Court considered that the ability to seek prompt revocation of the order was an effective remedy. I am not convinced that there are exceptional circumstances justifying resort to judicial review notwithstanding the existence of the statutory remedy.

“I am not persuaded by the petitioners’ argument that the absence of adequate reasons in the present case means that they cannot assess whether to apply for revocation… In my opinion, on the basis of the material which is available to them, the petitioners and their legal advisers are in an adequate position to assess the strength of the case for revocation and to proceed with an application should they wish to do so.

“Nor am I swayed by the suggestion that the frequency of no reasons or inadequate reasons being provided for orders is an exceptional circumstance which justifies judicial review in the present case notwithstanding the existence of the alternative statutory remedy.

“First, the statutory regime has undergone recent and significant alteration since the order of 7 August 2019 was made. From 2 March 2020 civil courts imposing reporting restrictions must now proceed first by imposing an interim order, and they must specify why they are considering making an order.

“Accordingly, the rules now direct that that explanation is to be given in every case where it is proposed that an order should be made. It is no longer possible to avoid that specification requirement by omitting the interim order stage.”