Thursday 23 May 2013
Found: 2 articles.
BBC FAILS IN APPEAL AGAINST ANONYMITY ORDER
The BBC has failed in an appeal against an order protecting the anonymity of a man convicted of an indecent assault and deported to his home country following a 15-year legal battle to remain in the UK, who has raised judicial review proceedings challenging his deportation.
The Lord President, Lord Gill, sitting with Lord Menzies and Lord Kingarth in the Court of Session Inner House, held that the court can exercise its “inherent jurisdiction” and grant an order to protecting an individual's anonymity where that is necessary to “preserve the integrity of the judicial process”.
The petitioner, “A”, had married a British citizen and had been granted indefinite leave to remain in the UK, but in 1996 was jailed for four years after being convicted on two counts of indecent assault and one count of gross indecency against his stepdaughter and subsequently served with a deportation notice.
A series of appeals and challenges ultimately failed, but the anonymity order, together with an order under section 11 of the Contempt of Court Act 1981, was granted because it was feared that if it became known that he was about to return to his country of origin, there was a “real risk” that he would be subjected to violence, with the threat of physical injury and possibly death," in contravention of his rights under articles 2 and 3 of the European Convention on Human Rights.
The BBC argued that the section 11 order could not be granted without the anonymity order, and no proper basis had been shown for the latter. The reclaimer, not having had advance notice of the petitioner's application for those orders, was not represented at the hearing. Since the section 11 order had been granted without prior notice to the media and without the judge having considered the permitted exceptions to notification under section 12(2), the proper course was to recall the section 11 order and invite a fresh application.
However, the appeal judges refused the reclaiming motion.
Delivering his opinion, the Lord President said: “In recent years the inherent jurisdiction of the Court of Session has been repeatedly recognised. It has been applied in a string of cases in which the conduct of a party has prevented, or at least substantially imperilled, the fairness of the trial; or by inordinate delay in the prosecution of an action.
“In such cases the court exercises its inherent jurisdiction in order to prevent a party from compromising the just and proper conduct of the proceedings. It thereby preserves the integrity of the judicial process.
“But in my opinion the inherent jurisdiction is wider than that. It lies at the heart of the court's constitutional function as a court of justice. In fulfilling its duty to do justice by all men, the court must have regard not only to the justice of its decision, but also to the justice of the procedures by which it gives it.
“It therefore has the inherent power, in my opinion, to withhold the identity of a party where, regardless of the outcome of the case, the disclosure of that party's identity would constitute an injustice to him; for example, where disclosure would endanger his safety, or would be commercially ruinous.
“Moreover, I consider that the court's inherent jurisdiction may be extended to the protection of third parties whose rights and interests may be affected in similar ways.”
However, the judges agreed that the case highlighted a “procedural deficiency” in that the present procedures for enabling the media to be heard in relation to directions in terms of section 11 of the Contempt of Court Act 1981 are “not adequate and require to be reviewed”, but that any such review ought to be carried out by the Court of Session Rules Council or, in due course, the Scottish Civil Justice Council, with any new procedures to be formulated after consultation with interested parties.
REFORM OF SCOTTISH LEGAL SYSTEM TO BE DISCUSSED AT SPLG CONFERENCE
The proposed closure of ten sheriff courts and seven justice of the peace courts across Scotland is to be discussed at the Scottish Public Law Group’s (SPLG) annual public law conference.
The issue of court closures will be addressed by the executive director of the Judicial Office of Scotland Steve Humphreys at the SPLG conference, which will be held at the Roxburghe Hotel in Edinburgh on Monday 10 June. But court closures are only the tip of the iceberg with regard to current proposals for reform of our legal system.
2013 has seen the enactment of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013, setting up a Scottish Civil Justice Council to revise rules of court.
The Scottish Government is also consulting on wider reforms such as the privative jurisdiction of the Sheriff Court, the removal of many cases from the Court of Session to the remaining sheriff courts, and the new structure in sheriff courts of two tiers of sheriffs and a sheriff appeal court.
In addition, Sheriff Principal Taylor's review on the expenses of litigation is likely to be published in June.
Legislation is also currently going through the Scottish Parliament to reform the Scottish tribunal system. Dr Joe Morrow, president of two Scottish tribunals, has been heavily involved in the reform of the tribunal system, and is to update the conference on progress. He and Mr Humphreys will be joined by Sarah O'Neill, who will look at the reforms from the perspective of the consumer.
Christine Grahame, convenor of the Scottish Parliament's Justice Committee, will chair the session, entitled ‘Reform of the Scottish Legal System’.
These speakers will speak as part of an all-day conference (6 hours CPD) on recent developments in public law, including ongoing reform of the Scottish legal system. Other high profile speakers and chairs include Lady Paton and Lord Brodie, Jonathan Swift QC and Tim Eicke QC, Professor Adam Tomkins and Professor Aileen McHarg and many more.
Early booking is advised and may be made online.