by Daniel Clark
Is a court required to hear submissions from a journalist before deciding to exclude the media from a hearing?
The position in the UK common law is no, they do not. But in Duff & BBC Scotland v The United Kingdom, the European Court of Human Rights (ECtHR) has taken the opposite view.
In the first section of this blog, I describe the background to the application: namely, a journalist’s exclusion from a hearing before a Sheriff sitting at Aberdeen Sheriff Court.
In the second section, I set out the two articles of the European Convention on Human Rights – Article 10 and Article 13 – that were said to have been violated by the Sheriff’s decision.
In the third section, I explain the court’s reasoning for concluding that the applicant’s Article 10 and Article 13 rights were violated.
Finally, I reflect on where this decision might lead. While I don’t think it requires a change to primary legislation, I do think it will require an amendment to court rules and, alongside that, development in the common law.
Before continuing, it is important to engage in a brief definitional exercise.
A public hearing is one which anyone – the media, public, and the parties – may attend.
A private hearing is one which the parties and media may attend but from which the public are excluded.
A closed hearing is one which the parties attend but the public and media are excluded. In some courts, such as the Court of Protection, closed hearings refer to ones from which a party is also excluded, either on or without notice to the excluded party. That is not the type of the hearing that this case is about.
Background to the application
On 10 August 2018, a Sheriff sitting at Aberdeen Sheriff Court heard an application by Social Care and Social Work Improvement Scotland (SCSWIS) for the cancellation of the registration of the Lawson Muirhead Home. The Home provided care for vulnerable and older adults, and the application was premised on alleged mistreatment of residents there.
At the outset of the hearing, the care home representative requested that the court sit in closed conditions i.e. with the public and press excluded. This was unopposed by SCSWIS and the Sheriff ordered the hearing to be closed. This had the effect of excluding Mr Steven Duff, a journalist employed by BBC Scotland. After the hearing, the Sheriff suspended the Home’s registration.
The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 sets out the procedure by which a Sheriff may issue a reporting restriction order. Where a Sheriff makes an interim reporting restriction order, this interim order must be sent to ‘any interested person’ (which would include the media) and ‘any person directly affected by the making of an order’ will be given the opportunity to ‘make representations to the court’. As per Rule 3.41.5, ‘a person aggrieved by an order may apply to the sheriff for its variation or revocation’.
It was through this rule that, on 15 August 2018, BBC Scotland applied for the order closing the court to be revoked. On 16 August 2018, the Sheriff found that that there had been no order that restricted the reporting of proceedings, and therefore an application to revoke such an order was unnecessary. She was also clear that the exclusion of the press was only relevant to the hearing on 10 August, and that there had been reporting of the decision to suspend the Home’s registration.
That is true. The suspension was reported by the BBC on 12 August 2018. In essence, and for the most part, the report is the presentation of various press releases, and makes no reference to the decision to exclude the media.
Steven Duff and BBC Scotland applied to the European Court of Human Rights. They claimed that the decision to exclude them from the hearing was contrary to their rights under Article 10 and Article 13 of the European Convention on Human Rights (ECHR).
Article 10 and Article 13
The ECHR was incorporated into UK domestic law by the Human Rights Act 1998.
Article 10 enshrines the right to freedom of expression. This involves the right ‘to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’.
It is, however, a qualified right. Freedom of expression ‘may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society’. It therefore does not interfere with the common law presumption that a court may sit in closed conditions, and indeed this was not questioned in the appeal before the ECtHR.
Article 13 of the ECHR grants a right to an effective remedy by a national authority for those whose rights are violated. If there is no such effective remedy, a victim may appeal to the European Court of Human Rights. Article 13 is not separately listed in the 1998 Act because the existence of the Act is said to satisfy its requirements.
The decision of the ECtHR
The court found the application admissible, concluding that the Sheriff’s decision to sit in closed court violated the Article 10 rights of Steven Duff and BBC Scotland. The court concluded that the Article 13 rights of the applicants had also been violated because there was no effective remedy in domestic law. The applicants were awarded twenty-five thousand euros, plus tax, but the court held that the finding of a violation of Convention rights ‘constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicants’.
Domestic law
While this was a case about the law in Scotland, which is a mix of civil and common law, it was nevertheless brought against the UK. As such, the outcome applies to the whole of the UK.
The ECtHR judgment gives a brief overview of the relevant domestic law. In particular, the court highlights the common law presumption that hearings are conducted in open court unless there is a decision to the contrary. The exclusion of the media may happen only in the ‘rarest of circumstances’ but there is no legal right for the media to make submissions when a party applies for a case to be heard in private (as per The Executors of HRH Prince Philip, The Duke of Edinburgh (Deceased) v Guardian News and Media [2022] EWCA Civ 1081).
The Article 10 strand
The UK government conceded that the exclusion of journalists from the court was an interference with their Article 10 rights.
It is an established common law principle that the media should only be excluded from a court in the ‘rarest of circumstances’. The court considered that there was an ‘apparent failure of the sheriff to consider whether there were grounds for exceptionally excluding the applicants from the hearing […] [which] means that the applicants’ exclusion from court was not prescribed by law’ (para 16 of the judgment).
The Article 13 strand
It was the position of the UK government that the applicants could have applied to the Court of Session for judicial review of the Sheriff’s decision to exclude the media. While this might not have prevented the violation of their Article 10 rights, the Court of Session could have issued a statement of what was expected in considerations of this kind. As such, that was an effective remedy in domestic law.
However, the court was astute to the fact that, even if the applicants had applied for judicial review, this would not have provided a timely remedy:
It would have been practically impossible in this case for the applicants to have obtained an interim order of the Court of Session in judicial review proceedings in time to prevent the sheriff’s order closing the court being made. The Government themselves accepted that such a prospect was highly unlikely. That being the case, judicial review proceedings would at best have offered them the possibility to challenge the lawfulness of their exclusion from the court after the full effect of exclusion had occurred. The Court is therefore not persuaded that judicial review proceedings, being of a post‑hoc character, could have provided adequate redress in respect of the alleged violations of the Convention.
(para 13)
The UK government had also advanced the argument that it would be ‘impractical and unnecessary’ for the reporting restrictions procedure to be extended to closed proceedings: ‘In their view such a procedure would prevent the court from taking practical steps to regulate its business in an effective way’ (para 17).
However, the court was clear that an effective remedy to the violation of Article 10 rights would require being able to make submissions on the exclusion, and also to obtain a ruling before the hearing (para 12 and 18 of the judgment). This was not available to the applicants, and the court therefore found a violation of Article 13.
Comment
While it may be formally true that a journalist can apply for judicial review of a decision excluding them from a hearing, it clearly does not remedy the right to receive information as enshrined in Article 10. Even if the decision to close the hearing is overturned by another judge, this does not rectify the original injustice: that the opportunity for a journalist to observe court proceedings has disappeared.
Of course, a remedy arising from the judicial review proceedings may be that the journalist can have access to the court transcript. However, this requires the hearing to have been recorded and/or assumes that a full and accurate transcript actually exists. There are no guarantees in either regard.
Although not a closed court, but a hearing held in private that reporters can attend, The Transparency Project have written about two instances (before magistrates and before a circuit judge) where reporters were excluded in family court proceedings but transcripts later obtained showed that the exclusion had not been decided in accordance with the family court rules, which are helpfully specific.
In absence of a transcript, the journalist could be given access to an agreed note of the hearing. This gives rise to a risk of defamation if the note is inaccurate in some way. It would also represent the court, lawyers, and parties making the decision about what is, and is not, relevant to a journalist.
To put it another way, there is no adequate alternative to a journalist actually being in court and observing the proceedings for themselves.
As Charlie Moloney has written for Hold the Front Page, this ruling may lead to a change in law that would allow journalists to make submissions about a decision to exclude them in the same way that they can object to reporting restrictions. If not, ‘it is possible that we may see further such claims in future unless steps are taken to give court reporters a practical method of asserting their right to observe a court hearing’.
I agree with Charlie Moloney that we may see similar claims in the not-too-distant future. It seems to me that the court’s decision will also necessitate a fundamental re-structure of the common law in this area. Primary legislation, if indeed it’s coming, will inevitably take time. In the meantime, the courts will surely need to grasp the nettle and upend their procedures.
But what might compliance with this decision look like? It may be the case that the media must proactively be notified every time there is an application for a closed hearing. That sounds overly burdensome, not least because some closed proceedings may need to be urgently heard so as to prevent some injustice from occurring. Frankly put, there will not always be adequate time to both alert the media and give a media representative time to attend the hearing.
Alternatively, it may be appropriate for a judge to simply consider the impact of closing the proceedings, and hearing from journalists if they are present in court. This would accord with the principle that anonymity orders or reporting restrictions must be decided by the judge and not simply agreed between the parties (as per para 21(7) of JIH v News Group Newspapers Ltd (Rev 1) [2011] EWCA Civ 42). It would also accord with how BBC Scotland initially attempted to overturn the decision to close the hearing. This approach would not necessarily require primary legislation but would require a change to court rules and, inevitably, a development of the common law.
Surely, developments such as these are exactly what the common law excels at.
My thanks to the three individuals who provided comment and feedback on an early draft of this blog.
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