AS TO THE ADMISSIBILITY OF
Application No. 13366/87
by Lois ATKINSON, Timothy CROOK and
The Independent
against the United Kingdom
The European Commission of Human Rights sitting in private
on 3 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 September 1987
by Lois ATKINSON, Timothy CROOK and The Independent against the United
Kingdom and registered on 9 November 1987 under file No. 13366/87;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure
of the Commission
- the observations submitted by the respondent Government on
18 March 1990 and the observations in reply submitted by the
applicants on 20 June 1990;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, Ms. Lois Atkinson, born in 1944, is a
Canadian freelance journalist currently resident in London. She
frequently prepares accounts of legal proceedings at the Central
Criminal Court for media dissemination.
The second applicant, Mr. Tim Crook, a British journalist
born in 1959, is the present secretary of the Central Criminal Court
Journalists' Association and proprietor of a news service which
transmits court reports to media clients. The first applicant was
under contract to provide a report of the proceedings to the second
applicant.
The third applicant, 'The Independent', is a national
newspaper which regularly publishes accounts of trial and sentencing
proceedings at the Central Criminal Court. The second applicant was
under contract to the newspaper to supply reports of court proceedings.
The applicants are represented by Mr. John Wadham, a solicitor
working for Liberty.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In February 1987, Mr. Tony Alexiou was tried in the Central
Criminal Court on a charge of conspiring to supply a large amount of
heroin. His trial was held in open court and was reported in the
press. Following his conviction by jury, it was decided to postpone
his sentencing until 20 March 1987.
Sentencing procedure involves the production of evidence and
the hearing of a plea in mitigation as to the defendant's character
and antecedents, followed by a statement by the judge setting out the
sentence and the reasons therefor.
On 20 March 1987 the sentence on Mr. Alexiou was listed at
10.00 a.m. in court 17. On that day an application was made to the
judge in camera, by counsel for Mr. Alexiou for an order that the
sentencing proceedings be heard in camera. The application was not
opposed by the prosecution and the judge granted it. The first
applicant attended at 10 a.m. to report the case for the Central News
Agency and for the agency owned by the second applicant and for any
other media which might be interested in carrying her report. She
found that the doors of the court were closed, displaying an "In
Chambers" sign, and she was not permitted to enter. She waited
outside the court for a long period, during which time other reporters
were turned away. Upon the removal of the sign, she entered
immediately in time to hear the presiding judge make the following
remarks to the accused.
"For a number of reasons put forward in the course of your
mitigation, the sentence I pass in your case is three years
and nine months."
The Central Criminal Court Journalists' Association protested
publicly against the unexplained decision to hold the sentencing
proceedings in secret. The order had been made, on or before 20 March
1987, in purported exercise of the inherent power of a trial judge to
sit in camera. On 24 March 1987, the senior judge summoned the
chairman of the Association and offered to give her reasons in private
for the closure of the court, on condition that she sign an
undertaking never to divulge them. This was unacceptable to her and
to the Association.
RELEVANT DOMESTIC LAW AND PRACTICE
At common law, a trial on indictment must be held in a public
court with open doors. This applies to all stages of the trial,
including the sentencing proceedings. Exceptions may be made where
the administration of justice so requires.
In Attorney General v. Leveller Magazine Ltd (1979) AC 440 at
p. 450C, Lord Diplock said that "since the purpose of the general rule
(of hearing trials in public) is to serve the ends of justice it may
be necessary to depart from it where the nature or circumstances of
the particular proceedings are such that the application of the
general rule in its entirety would frustrate or render impracticable
the administration of justice ...".
This power to exclude the public may be exercised in
relation to a plea in mitigation in sentencing proceedings.
In R v. Tower Bridge Magistrates' Court ex p. Osborne (1989)
88 Cr. App. R 28 at p. 31, Watkins LJ said that the discretion to go
into camera "must be exercised circumspectly and in our experience it
is exercised rarely. As (counsel) has reminded us, it is more than in
any circumstances exercised when matters of mitigation of sentence are
being canvassed".
The application for the plea in mitigation to be heard in
camera must itself be heard in camera. In R v. Ealing Justices
the Divisional Court held that the justices had been wrong to refuse
an application for a plea in mitigation to be heard in camera.
Donaldson LJ said that "it is precisely in the wholly exceptional case
where a court is justified in excluding the public that it is
impossible to demonstrate that fact in public". He went on to say
that the proper course was to clear the court in order to consider the
application, then to announce the decision and either proceed in
public or in camera, as the case might be. He also said that in his
view it was desirable that the decision whether or not to proceed
in camera should be announced in open court, although he did not lay
this down as a requirement to be followed in every case. The hearing
in camera of the application to go into camera, on the other hand,
is such a requirement.
Section 29 (3) of the Supreme Court Act 1981 which was in force
at the relevant time provided:
"In relation to the jurisdiction of the Crown Court, other than
its jurisdiction in matters relating to trial on indictment, the
High Court shall have all such jurisdiction to make orders of
mandamus, prohibition or certiorari as the High Court possesses
in relation to the jurisdiction of an inferior court."
This precluded any application to the High Court for judicial
review of a decision of a judge in a trial on indictment to hold part
of the proceedings "in camera".
On 31 July 1989, the Criminal Justice Act 1988 came into
force. Section 139 of the Act provides for an appeal to the Court of
Appeal (if leave is granted) against an order restricting access of
the public to the whole or any part of a trial.
The procedure for such appeals is set out in Rule 24 A of the
Crown Court (Amendment) (No. 2) Rules 1989 and Rule 16 B of the
Criminal Appeal (Amendment) Rules 1989. Pursuant to these rules, the
application for leave to appeal and the appeal itself are to be
determined without a hearing.
COMPLAINTS
1. The applicants complain that the decision by the trial judge
to hear the sentencing proceedings in R. v. Alexiou in secret amounted
to a violation of their right to receive and impart information,
contrary to Article 10 of the Convention. As a result, the public was
deprived of its right to receive information about the nature and
disposal of a serious criminal offence. In this connection, the
applicants contend that the exceptions to the principle of open
justice allowed for under the Convention and under United Kingdom law
did not exist in the case of Alexiou's sentencing proceedings whose
trial had been held in open court.
Nor were the applicants permitted to hear the reasons for the
closure of the court, and they therefore contend that the decision
could not be said to have been justified under Article 10 para. 2 of
the Convention.
2. The applicants also complain under Article 6 para. 1 of the
Convention that they were denied a fair hearing of their right to
report matters stated in open court.
3. The applicants further complain that they have no remedy,
effective or otherwise, under United Kingdom law against orders made
in purported pursuance of the inherent power of a trial judge to sit
in camera.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 September 1987 and
registered on 9 November 1987.
On 8 September 1988, the Commission decided to invite the
Government to submit written observations on the admissibility and
merits of the application under Articles 10 and 13 of the Convention.
The Government were invited to submit their observations by
30 October 1989.
The Government's observations were submitted on 18 March 1990
after two extensions in the time-limit and the observations in reply
submitted by the applicants on 20 June 1990 after one extension in the
time-limit.
On 3 October 1990, the Commission resumed its examination of
the admissibility of the application.
THE LAW
1. The applicants complain that the decision of the trial judge
to hold the sentencing proceedings in R v. Alexiou in camera violated
their right to receive and impart information contrary to Article 10
(Art. 10) of the Convention.
Article 10 (Art. 10) of the Convention provides:
1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. This Article
(Art. 10) shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
The Government have submitted that the second applicant, owner
of a news agency, and the third applicant, a newspaper, cannot complain
that they are victims of any alleged violation of Article 10 (Art. 10)
of the Convention, since the detriment suffered, if any, as a result
of the court's decision was too remote and too indirect. The second
and third applicants have submitted that they had a direct interest in
reporting the outcome of the Alexiou case, since the first applicant
was under contract to report on the case to the second applicant and
the second applicant was under contract to supply reports of court
proceedings for the third applicant.
The Commission however finds it unnecessary to decide whether
the second or third applicants are victims within the meaning of Article
25 (Art. 25) of the Convention for the reasons set out below.
The Commission has examined whether the decision of the court
to hold the sentencing proceedings in camera can constitute an
interference with the applicants' freedom of expression within the
meaning of Article 10 para. 1 (Art. 10-1) of the Convention in that
they were prevented from receiving information and imparting it to
the public. The Government have submitted that Article 10 (Art. 10)
does not apply to the facts of the present case. The Commission
recalls that the Court has held that "the right to freedom to
receive information basically prohibits a Government from restricting
a person from receiving information that others wish or may be willing
to impart to him" (see Eur. Court H.R., Gaskin judgment of 7 July
1989, Series A no. 160 and Leander judgment of 26 March 1987, Series
A no. 116).
The Commission considers however that the general principle
stated by the Court may not apply with the same force in the context of
court proceedings. The Commission considers that regard must be had
in this context to Article 6 para. 1 (Art. 6-1) of the Convention
which provides that as a general rule proceedings should be
conducted in public. Although the right to a hearing in public may
be waived, the waiver must not run counter to any important public
interest (see Eur. Court H.R. Håkansson and Sturesson judgment of 21
February 1990, Series A Vol. 171 para. 66).
The Commission recalls the important role played by the press
in the field of the administration of justice:
"There is a general recognition of the fact that the courts
cannot operate in a vacuum. Whilst they are the forum for
the settlement of disputes, this does not mean that there
can be no prior discussion of disputes elsewhere, be it in
specialised journals, in the general press or amongst the
public at large. Furthermore, whilst the mass media must
not overstep the bounds imposed in the interests of the
proper administration of justice, it is incumbent on them to
impart information and ideas concerning matters that come
before the courts just as in other areas of public
interest. Not only do the media have the task of imparting
such information and ideas: the public also has a right to
receive them ..."
(Eur. Court H.R. Sunday Times judgment of 26 March 1979,
Series A no. 30, p. 40, para. 65)
In order that the media may perform their function of
imparting information there is a need that they should be accurately
informed.
Assuming that the decision of the court to hold part of the
proceedings in camera constituted an interference with the applicants'
right to receive and impart information as guaranteed by Article 10
para. 1 (Art. 10-1) of the Convention, the Commission must consider
whether this interference was prescribed by law and whether it was
necessary in a democratic society for one or more of the purposes set
out in Article 10 para. 2 (Art. 10-2) of the Convention.
As regards the lawfulness of the decision, the Commission
notes that the courts have under common law an inherent jurisdiction
to exclude the public where the administration of justice so requires.
The Commission further notes that the applicant has not complained
that the decision was not lawful. The Commission accordingly finds
that the restriction was "prescribed by law" within the meaning of
Article 10 para. 2 (Art. 10-2).
As regards the purpose and necessity of the restriction, the
Government have submitted that the exclusion of the public pursued the
aims of the prevention of crime, maintaining the authority and
impartiality of the judiciary and the protection of the rights of
others. The Government comment on the very sensitive matters which
may be raised in mitigation, which if disclosed, could put persons,
including third parties (e.g. family members) at grave risk,
particularly where organised crime, for example drugdealing, is
involved. The Government state that because of the sensitivity of the
information submitted during the proceedings in camera they are unable
to give further details.
The applicants consider that the decision to exclude the
public cannot be considered necessary. It cannot be challenged and
was in any case disproportionate, since the court could, for example,
have imposed a reporting ban on part of the proceedings or could have
had sensitive information conveyed in a written note to the judge in
open court.
The Commission recalls that the proceedings took place in
camera following application by the defendants' counsel and that the
public were excluded during the sentencing proceeding but were allowed
to re-enter to hear the judge pass sentence. The Commission
acknowledges that to reveal the information in question would
necessarily thwart the purpose of holding that part of the proceedings
in camera. It considers, however, that it is apparent from the
context that matters were raised in mitigation on behalf of the
defendant, which were considered to require exclusion of the public
and that the exclusion of the public pursued the aim of maintaining
the impartiality and authority of the judiciary and the rights of
others.
It remains to be considered whether the restriction was
necessary in a democratic society for these aims. The Commission must
have regard to the essential function of freedom of the press in a
democratic society and establish whether a "pressing social need"
justified the restriction, taking into account that the Contracting
States have a certain margin of appreciation (Eur. Court H.R., Lingens
judgment of 8 July 1986, Series A no. 103, pp. 25-26, paras. 39-41).
The Commission recalls that Article 6 para. 1 (Art. 6-1) makes
express reference to the possibility that criminal proceedings may in
certain specified circumstances take place in camera. While this
provision does not directly affect the operation of Article 10
(Art. 10), the Commission considers that the rights of the defendant
and the interests of justice must be given particular weight. It
recalls in this regard that the exclusion was at the request of the
defendant and was agreed by the prosecution and the presiding judge.
The Commission finds therefore that having regard to the margin of
appreciation the interest of the media in reporting the proceedings
was outweighed in the present case. While the reasons for the court's
decision were not made public, the Commission notes that the senior
judge offered to inform the chairman of the Central Criminal Court
Journalists' Association in confidence of the reasons for the
exclusion but that this offer was refused.
The Commission considers that the interference with the
applicants' rights in this case was justified under Article 10 para. 2
(Art. 10-2) as necessary in a democratic society for the
above-mentioned purposes.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants complain that they were deprived of a fair
hearing in respect of the decision to hold the sentencing proceedings
in camera, since they were unable to challenge or appeal the decision
before courts. They invoke Article 6 para. 1 (Art. 6-1) of the Convention,
which, in its first sentence, provides:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law. ..."
The Commission recalls that the case-law of the Commission and
the Court has established that Article 6 para. 1 (Art. 6-1) of the
Convention guarantees to everyone an effective right of access to the
courts for the determination of their civil rights and obligations.
The Commission must therefore consider whether a right was at all
involved in the present case and, if so, whether that right was a
"civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention.
The Commission notes that, generally speaking, Article 6 para.
1 (Art. 6-1) of the Convention is not aimed at creating new
substantive rights which have no legal basis in the State concerned
but at providing procedural protection to rights which are
recognised in domestic law. It is not however decisive whether a
particular benefit or expectation is characterised under the domestic
legal system as a right since the term right must be given an
autonomous interpretation under Article 6 para. 1 (Art. 6-1) of the
Convention (e.g. Eur. Court H.R., König judgment of 28 June 1986,
Series A no. 27 para. 87). In W. v. the United Kingdom (Eur. Court
H.R., W v. the United Kingdom judgment of 8 July 1987, Series A no.
121, p. 32, para. 73), the Court stated:
"It is true that Article 6 para. 1 (Art. 6-1) extends only to
'contestations' (disputes) over (civil) 'rights and
obligations' which can be said, at least on arguable
grounds, to be recognised under domestic law; it does
not in itself guarantee any particular content for (civil)
'rights and obligations' in the substantive law of the
Contracting States (see, amongst other authorities, the
Lithgow and Others judgment of 8 July 1986, Series A no.
102, p. 70, para. 192)."
The Commission recalls however that the courts have an inherent
jurisdiction under common law to exclude the public from a trial where
the interests of justice so require and that by statute, the High
Court had no power no review such decisions. The Commission also recalls
that in a previous case it found the right to report matters stated in
open courts could not be described as a right which was civil in
nature (see cf. Nos 11553/88 and 11658/88, Dec. 9.3.87, to be
published in D.R. 51). In these circumstances, the Commission finds
no indication that the applicants enjoy any civil right under domestic
law to report on the sentencing proceedings held in camera.
The Commission accordingly finds that the applicants'
complaints do no involve a civil right or obligation within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows
that this part of the application is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
3. The applicants also complain that they have no effective
remedy in respect of their complaints.
Article 13 (Art. 13) provides that:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
Article 13 (Art. 13) does not require a remedy under domestic
law in respect of any alleged violation of the Convention. It only
applies if the individual can be said to have an "arguable claim" of a
violation of the Convention (Eur. Court H.R., Boyle and Rice judgment
of 27 April 1988, Series A no. 131, para. 52).
The Commission has found above that the interference with the
applicants' rights under Article 10 (Art. 10) of the Convention was
justified under paragraph 2 (Art. 10-2) of that provision as being
necessary inter alia in a democratic society for the protection of
the rights of others and for maintaining the impartiality and
authority of the judiciary.
The Commission also finds that the facts of the present case
fail to disclose an "arguable claim" of a violation of Article 10
(Art. 10) of the Convention. Consequently, the applicant cannot
derive from Article 13 (Art. 13) of the Convention a right to a remedy
for the alleged violation of Article 10 (Art. 10).
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy