European court rules exclusion of BBC journalist from Aberdeen Sheriff Court breached Articles 10 and 13

About this case:

• Citation:
  8562/19
• Judgment:
  External link
• Court:
  European Court of Human Rights

The Strasbourg court unanimously held that the exclusion of Steven Duff and BBC Scotland violated Article 10 of the European Convention on Human Rights. It also found a violation of Article 13, read with Article 10, because there was no effective means by which the applicants could challenge the closure before the hearing took place.

Mr Duff was represented by Ms R. McInnes of BBC Scotland’s Legal Department in Glasgow. The UK government was represented by Ms A. Sornarajah of the Foreign, Commonwealth and Development Office.

Care home proceedings

The case arose from a hearing at Aberdeen Sheriff Court on 10 August 2018. According to the statement of facts issued when the application was communicated in 2019, the underlying proceedings had been brought by Social Care and Social Work Improvement Scotland, the statutory care regulator, seeking cancellation of the registration of the Lawson Muirhead Home, which provided residential care for elderly and vulnerable adults.

The proceedings followed an inspection said to have disclosed mistreatment of residents, and the hearing concerned an application for interim suspension of the care home’s registration. Mr Duff attended intending to observe the hearing on behalf of BBC Scotland. At its outset, the representative of the care home asked for the proceedings to take place in closed court. The application was not opposed by the regulator and was granted by the sheriff.

The interlocutor subsequently recorded that the court had been closed to the public and press because the hearing was interim in nature and concerned vulnerable adults. Mr Duff was accordingly required to leave.

Following the hearing, the sheriff made an order suspending the care home’s registration.

BBC sought to challenge closure

Mr Duff subsequently tried to obtain information about what had happened during the hearing from the only person permitted to remain in court, from court officers and from the parties’ legal representatives, but was unsuccessful. BBC Scotland then applied on 15 August 2018 for revocation of the closure order, arguing that it amounted to an unjustified interference with its right to freedom of expression.

At a hearing the following day, the sheriff noted that no reporting restriction had been imposed and that the closure applied only to the hearing on 10 August. She therefore considered the application unnecessary, while noting that the case itself had been widely reported in the press. The European court was later informed by the UK government that the sheriff had not been aware that members of the press were present when the application to close the court was made. She had made no enquiry about whether journalists were in attendance and did not recall anyone objecting to the request.

Open justice

The Strasbourg court noted that Scots law recognises the principle of open justice, under which proceedings are conducted in public unless an exception applies. The power to exclude the public requires a compelling reason, while the common law recognises the special status of journalists and the importance of media access to court proceedings. Existing domestic authority provides that exclusion of the press should occur only in the “rarest of circumstances”.

The earlier statement of facts also recorded the position in Macphail’s Sheriff Court Practice that, where a court sits behind closed doors, the press will normally be understood to be entitled to remain provided journalists respect the purpose for which the public has been excluded.

Judicial review could not undo exclusion

The UK government argued that Mr Duff and BBC Scotland had failed to exhaust domestic remedies because they could have petitioned the Court of Session for judicial review of the sheriff’s decision. It submitted that they could have sought interim orders preventing the hearing from proceeding in private pending review. Even if that had not prevented the interference, a later declaration from Scotland’s superior civil court could, it argued, have provided adequate redress.

The applicants maintained that judicial review could not amount to an effective remedy because, once the hearing had taken place without them, the opportunity to observe and report on the proceedings was permanently lost.

The Strasbourg court agreed. It noted that the applicants had no legal right to make submissions when the request to close the court was made. The sheriff had therefore closed the hearing without apparently considering the principle of open justice or balancing any Article 8 interests at stake against the applicants’ Article 10 rights. Their exclusion had “irreversible effects”, as a later ruling could not restore their ability to report on proceedings which they had been unable to attend.

Press as ‘public watchdog’

The court emphasised the importance of freedom of expression as one of the foundations of a democratic society and referred to the role of the press as a “public watchdog”. It held that, in the circumstances, an effective remedy required the possibility of making submissions on the proposed closure and obtaining a ruling before the hearing took place.
The court considered it practically impossible for the applicants to have obtained an interim order from the Court of Session quickly enough to prevent the closure, a prospect which the government itself accepted was highly unlikely. Judicial review would therefore have provided only a post-hoc challenge after the effect of the exclusion had already occurred. It was not an effective domestic remedy which the applicants were required to exhaust.

Violations established

The government conceded that excluding Mr Duff and BBC Scotland interfered with their freedom of expression and that the interference was not in accordance with the law because the sheriff had failed to apply the relevant legal principles in the particular case.

The European court held that the apparent failure to consider whether there were grounds exceptionally justifying the exclusion of the press meant that the interference was not prescribed by law. There had therefore been a violation of Article 10. It also found a violation of Article 13 in conjunction with Article 10. As judicial review could not realistically provide a remedy before the hearing occurred and the government identified no other effective mechanism, the applicants had lacked an effective domestic remedy.

The court held that the findings of violations constituted sufficient just satisfaction for any non-pecuniary damage and awarded Mr Duff and BBC Scotland €25,000 jointly in costs and expenses.