Scottish courts have an “inherent power” to depart from the principle of open justice and make an order for anonymity to prohibit publication of and to protect the identity of alleged victims of extortion, appeal judges have confirmed.
The judges ruled that the complainer’s “right to privacy” and the “public interest” in encouraging blackmail victims to come forward “strongly favoured” imposing a “limited restriction” on the freedom of the press to report criminal proceedings.
The application to the nobile officium of the High Court of Justiciary by a man referred to as “Mr A” raised an important issue concerning the “balance between open justice and the claim which an alleged victim in an offence such as extortion may have to anonymity,” as well as the procedure to be followed in addressing such applications, the court said.
The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that the accused was reported to the Procurator Fiscal in Dundee in December 2016 for extortion and subsequently served with a summary complaint, which alleged that she made threats towards the petitioner that she would take certain steps if he did not pay her a sum of money.
Following the calling of the summary complaint on 18 August 2017, a number of news articles were published in which details of the complaint, the petitioner’s name and occupation, as well as his photograph, and the nature of the threats alleged to have made towards him were all revealed.
On 8 September, an application on behalf of the petitioner for an order under section 11 of the Contempt of Court Act 1981 was presented to a part-time sheriff sitting in Dundee, who granted what appeared to be a “final order” restricting publication of any reporting of the prosecution which might identify, or lead to, the identification of the petitioner.
However, on 12 September a resident sheriff at Dundee heard a challenge by the BBC to the original order and on 13 September he revoked the section 11 order and refused the petitioner’s application for anonymity at common law on the basis that he did not have the power to make the order sought, but the sheriff allowed time for an appeal to be lodged.
‘Interests of Justice’
The petitioner duly lodged an application to the nobile officium and on 19 September 2017 the court pronounced an interim order, which found the petitioner entitled to anonymity, and made an order under section 11 of the 1981 Act, as well as fixing a full hearing on the petition for 4 October.
Following a full hearing on the petition the court made an order granting the petitioner anonymity in the prosecution, permitting him to be referred to as “Mr A” in both the prosecution and the present petition, and made an order in terms of section 11 of the 1981 Act that the publication of his name, or any particulars or details relating to him and calculated to lead to his identification in connection with the prosecution or the present petition, should be prohibited.
Counsel for the petitioner, Kenneth McBrearty QC, had submitted that he was “entitled to protection” from the courts on the grounds that he was the victim of an extortion, which related to private matters of a sexual or intimate nature, and that the principle of open justice, including free reporting of his identity, “required to yield to both the interests of justice and his right to personal and private life”.
It was also argued that the “public interest” in ensuring blackmail victims come forward “strongly favoured” the granting of some form of restriction and that a “limited restriction” preventing disclosure of his identity did not make significant inroads into the public interest in reporting criminal proceedings.
The appeal judges ruled that the submissions, which were not opposed by the Crown or the BBC, were “well founded”.
Delivering the opinion of the court, Lord Turnbull said: “The sheriff has an inherent power at common law to regulate proceedings in the Sheriff Court, to maintain its authority and to ensure fair and impartial administration of justice. This inherent power includes the power to depart from the general rule of open justice by withholding and prohibiting publication of information as to the identity of individuals, if appropriate.”
He added: “In our opinion, the sheriff who heard the application on 12 September erred in failing to recognise that he had jurisdiction to make the order for anonymity at common law which was requested and he ought to have done so. He ought then to have granted an order under section 11 of the Contempt of Court Act.
“We also recognise that the Procurator Fiscal ought to have raised the matter in court at the first calling of the case and ought to have given the sheriff hearing the matter on 12 September more assistance than simply adopting a neutral stance.”
The inherent power to withhold the identity of a complainer, or other information, where it is in the interests of justice to do so, was recognised in cases such as HM Advocate v Mola 2007 SCCR 124, HM Advocate v McAllister 2014 SLT 1023 and in A v SSHD 2013 SC 533, which was upheld by Lord Reed in the UK Supreme Court in A v BBC AC 588.
The judges also noted that there was a well-established line of authority from England which vouched the proposition that the “interests of open justice will often require qualification in cases in which the crime of blackmail or extortion is alleged”.
In the UK Supreme Court case of Re Guardian News and Media Limited  2 AC 697, Lord Rodger of Earlsferry observed that the circumstance of a victim giving evidence in a prosecution for blackmail was an “obvious example” of where an order under section 11 of the Contempt of Court Act might require to be made.
The observations made in these cases had “equal force” in this jurisdiction, the judges said.