Mr A. v Procurator Fiscal, Dundee [2017] HCJAC 91

Petition to the Nobile Officium:- In this application the petitioner was the complainer in a summary prosecution in Dundee. The accused person in the prosecution was the second respondent in the petition and the first named respondent was the Procurator Fiscal in Dundee. The third respondents were News Group Newspapers Limited. The circumstances were that on 19 September 2017 the court pronounced an interim order entitling the petitioner to anonymity in the prosecution, ordered that for the purposes of the prosecution references to him should be withheld or removed and reference to “Mr A” substituted, ordered in terms of section 11 of the Contempt of Court Act 1981 that no publication of the petitioner’s name, or any details calculated to lead to his identification in connection with the prosecution, be made and allowed him to be referred to as “Mr A” in the petition to the High Court. At that time a full hearing on the petition was fixed and permitted any interested parties to lodge answers to the petition and required any party intending to appear at the full hearing to lodge a written case and argument. The fourth respondents subsequently became party to the proceedings. The circumstances were that following the calling of the summary complaint, various news articles were published which included details of the complaint including the petitioner’s name and the nature of the threats which the second respondent was alleged to have made to him. Various photographs of the petitioner were also published. On 8 September 2017, an application on behalf of the petitioner for an order under section 11 of the Contempt of Court Act 1981 was made to the sheriff at Dundee. The sheriff granted an order under section 11 of the 1981 Act that restricted publication of any reporting of the prosecution that might identify the petitioner. On 12 September 2017, the third respondents presented written submissions to a different sheriff at Dundee, as the previous part-time sheriff was unavailable. The representations were said to have been in terms of rule 56.3 of the Act of Adjournal (Criminal Procedure Rules) 1996. In those representations it was averred that the original order made on 8 September had been made under rule 56.2(1), which related to interim orders. The representations challenged the making of the original order on the contention that such reporting restrictions would be contrary to the established principles of open justice. Having heard parties, the sheriff revoked the previous order made and refused the petitioner’s application for anonymity at common law. However, the sheriff ordered that the revocation was not to take effect until close of business on 15 September 2017, to allow an appeal to be lodged. On Friday 15 September, the present petition was lodged and an application called before Lord Tyre who granted warrant for service, ad interim suspended the order of the sheriff dated 13 September, recalling the interim order dated 8 September until 19 September 2017 at 16.00 hours and ad interim prohibited any reporting in respect of the petition until then. It was agreed here between parties that a sheriff had power at common law to order that a complainer should be given anonymity where such an application was made. It was further agreed that the general principle of open justice may often require qualification in cases of victims of blackmail or extortion. In relation to the present case it was agreed between parties that the balancing of the competing interests of open justice and maintaining the integrity of the administration of justice necessitated the making of a limited restriction to prevent disclosure of the identity of the petitioner. The court considered that the issues raised were important. The power of the sheriff at common law to withhold the identity of a complainer, or other information, where it is in the interests of justice to do so has been recognised as an example of the inherent power the court has. In England in cases of extortion and blackmail there is clear authority that the principles of open justice may often require qualification, Here the court considered that the same considerations should apply in Scotland. It was the petitioner’s position in the present case that as he was the victim of extortion by the second respondent, and as that extortion related to private matters of an intimate nature, he was entitled to protection from the courts. The court considered that 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 and he ought to have done so and he should then have granted an order under section 11 of the 1981 Act. The court also considered that the Procurator Fiscal should have raised the matter in court at the first calling of the case and should have given more assistance to the sheriff at the hearing on 12 September rather than adopting a neutral stance. In relation to the procedure to be adopted an application for a section 11 order will require to be preceded by a motion to the court at common law to exercise its inherent power to grant anonymity as an order under section 11 is an ancillary order. The court noted that Rule 56.3 applies where the court has made an interim order whereas in the present case the sheriff who made the original order made only a final order rather than an interim order. The court observed that courts considering an application for an order under the 1981 Act should have regard to the requirements of Chapter 56 of the Act of Adjournal. Here the court granted the prayer of the petition which granted the petitioner anonymity in the prosecution, permitting him to be referred to as “Mr A” and to order in terms of section 11 of the 1981 Act, that the publication of his name, or any details relating to him and his identification in connection with the prosecution should be prohibited, as should any publication intended to lead to his identification.