Public Law

Courts often make orders forbidding the publication of information relating to parties in court and the media sometimes challenge those orders. Such a challenge was made successfully by the BBC in the case of SRC on behalf of NSEC v Ewan Kemp.

Here, the court action in question involved medical negligence in the treatment of a child. As part of settlement discussions, those acting on behalf of the child persuaded the court to make orders under section 11 of the Contempt of Court Act 1981 (“Section 11 Order”) and section 46(1) of the Children & Young Persons (Scotland) Act 1937 to protect the identity of the child. The BBC sought to lift the Section 11 Order on the grounds that it was in the public interest to ensure as great a degree of freedom to report court proceedings as possible.

Neither party to the personal injury action took part in the hearing but an amicus curiae was appointed by the court to present the case for keeping the order in place. The court accepted that before making any order granting anonymity there was a balance to be struck between the requirements of Article 8 (right to respect for private and family life) and Article 10 (freedom of expression) of the ECHR. In this case the balance was in favour of publication.

The court then went on to consider the power of the court to make Section 11 Orders more generally. Lord Brailsford concluded that before a court can make a Section 11 Order it must already have a power, quite separate from the 1981 Act itself, to allow names or other information to be withheld. Although the court does have power to exclude people from court hearings that is not the same as anonymising written opinions or judgments.

Niall McLean

Associate at Brodies LLP
Niall is a member of Brodies' market leading Government, Regulation and Competition practice. Niall gives both public and private sector clients advice in a broad range of areas including: corporate crime and investigations, governance, defamation and reputation management, public law and statutory interpretation.
Niall McLean