Background
Steven Duff, a journalist employed by BBC Scotland, attended a hearing at Aberdeen Sheriff Court on 10 August 2018. At the start of the hearing, a party made an unopposed request for the hearing to be held in private. The sheriff granted the request, the courtroom was cleared, and Duff was required to leave.
The applicants could not obtain information about what occurred from the party’s employee who remained in court, court staff, or the parties’ legal representatives. Under Scottish law, proceedings are generally public and exclusion of the media is reserved for the rarest circumstances. The applicants complained under Articles 10 and 13 that the closure prevented reporting and that no timely procedure enabled them to challenge it.
The Court’s Holding
The Court unanimously held that Article 10 was violated. The Government accepted that closing the hearing interfered with the applicants’ freedom to receive and impart information, and that the interference was not lawful because the sheriff had failed to apply the governing open-justice principles. The Court noted that the sheriff had apparently not considered whether exceptional grounds justified excluding the press or balanced the competing rights involved.
The Court also found a violation of Article 13 taken with Article 10. Judicial review was not an effective remedy in these circumstances because it was post hoc: it could not realistically have secured an interim ruling before the hearing closed, and a later ruling could not restore the applicants’ lost opportunity to observe and report on the proceedings. An effective remedy required a chance to make submissions on a proposed closure and obtain a decision before the hearing occurred.
Key Takeaways
- Excluding journalists from a hearing without applying open-justice principles is not an interference with press freedom “prescribed by law.”
- For a press-access claim, a remedy that operates only after a closed hearing has taken place may be ineffective because the lost reporting opportunity cannot be restored.
- The Court awarded the applicants EUR 25,000 jointly for costs and expenses, while treating its findings as sufficient just satisfaction for non-pecuniary damage.
Why It Matters
The judgment underscores that access to court proceedings is a practical safeguard for the press’s public-watchdog role. Courts considering closure must engage with the exceptional nature of excluding the public and media, rather than treating an unopposed party request as dispositive.
It also requires an effective, timely domestic route for affected journalists or media organisations to contest a proposed closure before it takes effect where exclusion would permanently prevent contemporaneous reporting.