17 March 2008

FOURTH SECTION
Application no. 10734/05
by A. MACKAY and BBC Scotland
against the United Kingdom
lodged on 23 March 2005

STATEMENT OF FACTS
THE FACTS
The first applicant, Mr Alan Mackay, is a British national who was born in 1954 and lives in Glasgow. He is a journalist employed by the second applicant, the British Broadcasting Corporation in Scotland (BBC Scotland). They are represented before the Court by Mr A. Bonnington, a solicitor‑advocate practising in Glasgow.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
During the trial of two men at the High Court of Justiciary sitting in Glasgow, misconduct of police officers who were due to give evidence for the prosecution was discovered by court officials. The police officers had been watching the proceedings by video link in a remote viewing room in another part of the court building. When this was brought to the attention of the trial judge on 28 September 2004 he took the decision to desert the trial diet simpliciter since he took the view that no fair trial could continue before him. This decision had the effect of bringing the prosecution case to an end resulting in the acquittal of the accused. The desertion simpliciter meant that the accused could not be reindicted.
The same day the trial judge heard argument from counsel for the BBC before making an order under section 4(2) of the Contempt of Court Act 1981 preventing the publication of any report of the proceedings.
 The Crown appealed against the decision of the trial judge to desert the trial diet simpliciter. The appeal was scheduled to be heard by the High Court of Justiciary (sitting as an appeal court in Edinburgh) on 15 February 2005.
In advance of the hearing, the BBC sent a number of letters to the Clerk of the High Court of Justiciary, seeking an opportunity to address the court should an application to prevent publication of any report of the appeal proceedings be made.
On 5 February 2005, counsel for the BBC was told verbally by court officials that no opportunity would be made available for it to make representations in court. A further fax asking for a hearing was sent by the BBC the same day. No response was received.
On 15 February 2005, the High Court of Justiciary, on the unopposed motion of the Crown, made a section 4(2) order prohibiting the publication of a report of any part of the appeal hearing until completion of the appeal.
The appeal was determined on 24 March 2005, the court recalling the order of the trial judge and substituting an order for desertion pro loco et tempore, which allowed for the re-indictment of one of the original accused.
B.  Relevant domestic law and practice
Section 4(2) of the Contempt of Court Act 1981 provides that where legal proceedings are held in public, in any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.
Section 159 of the Criminal Justice Act 1988 provides that in England and Wales, where such an order is made, an aggrieved person may appeal such an order to the Court of Appeal. The section does not apply to Scotland. Instead, following the High Court of the Justiciary's ruling in Galbraith v. H.M. Advocate 2000 S.C.R. 935, where the question was considered obiter dicta it appears that the practice of Scottish courts will be to make interim orders for forty-eight hours, to give notice of the interim order to the legal representatives of media organisations and give them the opportunity to address the court on the terms of the interim order.
COMPLAINTS
The applicants complain under Article 6 of the Convention that their right of access to court was violated by the refusal to hold a hearing at which they could challenge the order made by the High Court of Justiciary on 15 February 2005. They further complain under Article 10 of the Convention that this was an unjustified interference with their right to impart information as guaranteed by that Article. Finally, under Article 13 of the Convention, they complain that there was no effective remedy to challenge the making of an order under section 4(2) of the Contempt of Court Act 1983. In particular, they rely on the fact that such a remedy is available in England and Wales under section 159 of the Criminal Justice Act 1989.

QUESTIONS TO THE PARTIES

1.  Was the failure to organise a hearing at which the High Court order of 15 February 2005 could be challenged a breach of the applicants' right of access to Court as guaranteed by Article 6 of the Convention?

2. Do the facts of the case disclose a breach of Article 10 of the Convention?