Communicated on 11 October 2019
FIRST SECTION
Application no. 8562/19
Steven DUFF and BBC SCOTLAND
against the United Kingdom
lodged on 6 February 2019
STATEMENT OF FACTS
1. The first applicant, Mr Steven Duff, is a British national who was born in 1975 and lives in Aberdeen. He is a journalist employed by the second applicant, the British Broadcasting Corporation in Scotland (BBC Scotland). They are represented before the Court by Ms R. McInnes, a lawyer practising in Glasgow.The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. Social Care and Social Work Improvement Scotland (SCSWIS) is a statutory regulator in Scotland. Among other things, it has responsibility for overseeing the quality of care for elderly and vulnerable adults in Scotland. Providers of such care must be registered with SCSWIS.
4. In August 2018 SCSWIS brought proceedings in Aberdeen Sheriff Court for cancellation of the registration of The Lawson Muirhead Home, which provided residential care to elderly and vulnerable people. The proceedings followed an inspection which revealed alleged mistreatment of residents of the care home. SCSWIS also applied for interim suspension of the care home’s licence.
5. On 10 August 2018 a hearing took place at Aberdeen Sheriff Court on the application for suspension of the care home’s registration. The first applicant attended court, intending to observe the hearing. At the outset of the hearing, the representative of the care home requested that the court order the hearing to be conducted in closed court. This request was not opposed by SCSWIS. The sheriff granted the request. The interlocutor issued following the hearing recorded that decision as follows:
“The Sheriff ... Closes the court to members of the public and the press as today’s hearing is (i) an interim hearing and (ii) the hearing relates to vulnerable adults.”
6. The court was accordingly cleared and the first applicant was asked to leave. Following the hearing, the sheriff made an order suspending the registration of the care home.
7. On 15 August 2018 the second applicant made an application under rule 3.41.5 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (see paragraph 10 below) for revocation of the order to close the court. It argued that the order amounted to an unjustified interference with its right to freedom of expression.
8. A hearing on the application to revoke the order took place on 16 August 2018. In response to the argument that the applicants had been unable to report on the hearing of 10 August 2018, the sheriff noted that the case had been widely reported in the press. After hearing representations from the second applicant, the sheriff found that no order imposing reporting restrictions had been made and that the application to revoke the order was therefore unnecessary. She emphasised that the decision to close the court only concerned the hearing on 10 August 2018 and had no continuing effect; in the absence of another motion to close the court in future, any further proceedings could be reported.Relevant domestic law
9. The court has the power at common law to sit behind closed doors. According to Macphail’s Sheriff Court Practice, when the court is closed it is normally understood that the press and other reporters may remain on the understanding that they will respect the sheriff’s intention in excluding the public.
10. Rule 3.41 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 applies to “orders which restrict the reporting of proceedings”. Rule 3.41.5 enables any person aggrieved by such an order to apply to the sheriff for its revocation.
COMPLAINTS
The applicants complain under Article 10 of the Convention, alone and in conjunction with Article 13, that the closing of the court on 10 August 2018 resulted in a violation of their right to receive and impart information about the matters raised in the subsequent hearing. They also argue that the absence of any mechanism for challenging the application to close the court to members of the press and public before the order was made amounted to a breach of Article 10, taken alone and in conjunction with Article 13.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ freedom of expression, in particular their right to receive and impart information, within the meaning of Article 10 § 1 of the Convention?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
2. Did the applicants have at their disposal an effective domestic remedy for their Article 10 complaint, as required by Article 13 of the Convention (see MacKay and BBC Scotland v. the United Kingdom, no. 10734/05, 7 December 2010)?
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