Media must be able to challenge court reporting ban

7 December 2010 by Adam Wagner

MacKay & BBC Scotland v. the United Kingdom (Application no. 10734/05) – Read judgment / press release

The European Court of Human Rights has ruled that the failure of the Scottish court system allow the BBC  to challenge a court reporting ban was a violation of rights to freedom of expression and information as well as to an effective remedy.

Mr Mackay, a retired journalist, and the British Broadcasting Corporation (BBC) in Scotland, challenged a 15 February 2005 order prohibiting the publication of any report of the trial of two men accused of importing and supplying controlled drugs. The order arose in the midst of an appeal hearing brought by the Crown against a previous judge’s decision to stay the hearing. The BBC faxed the court asking to be heard on the order, but were told they could not be heard until the next day. The order became final.

Relying on Articles 6 (right to a fair trial), 10 (freedom of expression and information) and 13 (right to an effective remedy), the applicants complained that their right of access to a court had been violated by the refusal to hold a hearing at which they could challenge the High Court order of 15 February 2005.

Ultimately, the court found a violation of article 13 (effective remedy) in conjunction with Article 10 (freedom of expression and information). The following is taken from the court’s press release:

No breach of right to fair trial

The Court recalled that the right to report matters stated in open court was not a civil right. Consequently, a limitation imposed on court reporting could not create a civil obligation within the meaning of Article 6 of the Convention (right to a fair trial). The Court thus rejected the applicants’ complaint under Article 6 as inadmissible.

Informal contacts with court officials

It noted that, in the majority of cases in England and Wales, the Criminal Justice Act 1988 made it possible for people or other interested parties to appeal against court orders prohibiting publication of proceedings reports, but that that possibility did not apply to Scotland. It was true that, in practice, when the media in Scotland wished to challenge such court orders, hearings were held in advance of the proceedings on which the media wished to report.

However, the fact remained that, under the present system, the Scottish courts were under no obligation to hold hearings prior to the proceedings to which the court orders related. Each case depended entirely upon the informal contacts the media had with court officials in order to arrange a hearing.

Bearing in mind the importance of the media for any democratic society, the safeguards guaranteed to the press were particularly important. In view of the constraints imposed on the media’s freedom to impart information by the imposition of court orders, it was clear that the current Scottish practice was wanting.

A date had not been fixed for a hearing of the applicants’ submissions challenging the order prohibiting reporting of the criminal appeal proceedings prior to those proceedings taking place. Their application to recall the court order had only been examined in June 2005, which was some three months after the appeal proceedings had been decided. By that time, the interest in any reporting the applicants might have wished to undertake would have been seriously undermined. Accordingly, the applicants had not been able to effectively challenge the judicial order.

No effective remedy

The Court noted also that, while the applicants could have had recourse to the nobile officium (a procedure used when there is no other legal remedy under Scots law) after the judicial order had become final on 17 February 2005, they had believed that their fax of 15 February 2005 had in effect served as an application against the order thus preventing it from becoming final. If the applicants had believed that the order had not become final, they were therefore entitled to conclude that the nobile officium remedy had not been available to them at the time. In the circumstances, the Court concluded that, even if the remedy could have been effective for the purposes of Article 13 in other cases, it had not been so for the applicants.

The applicants did not apply for damages. The parties have been given 3 months to apply for an appeal to the Grand Chamber of the European Court of Human Rights.

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