CASE OF MACKAY AND BBC SCOTLAND v. THE UNITED KINGDOM
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General})
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. On 13 September 2004 two men went on trial in the High Court of Justiciary sitting at Glasgow on charges of importing and supplying controlled drugs. The proceedings were filmed and relayed through a closed-circuit television system to a remote viewing room in the court building. On 23 September 2004, it was discovered that police officers and prosecution staff had been watching the proceedings in the remote viewing room with the risk that defence conversations might have been overheard. 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 believed 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. 6. The same day, the trial judge heard argument from counsel for BBC Scotland before making an interim order under section 4(2) of the Contempt of Court Act 1981 preventing the publication of any report of the proceedings. That order was to become final on 30 September 2004 unless any interested party applied to the court for its recall (quashing) or variation. On 29 September 2004, BBC Scotland appeared before the trial judge and made representations in respect of the order. The trial judge varied the interim order to the effect that publication of any report of the proceedings was prohibited until the completion of any appeal and any further trial. The varied order was to become final on 1 October 2004 unless there was another application to recall or further vary it. 7. 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. 8. In advance of the hearing, BBC Scotland 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 BBC Scotland 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 BBC Scotland the same day. No response was received. 9. On the morning of 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 applicants, in their observations to this Court, maintain that their representative attended the High Court hearing that morning but was not heard. The order made by the High Court was to become final on 17 February 2005 unless an application was made to recall or vary it. The order was posted on the Scottish Courts Service website and circulated to the Scottish media. 10. On the afternoon of 15 February 2005, BBC Scotland sent another fax to the High Court stating that it wished to be heard on the order as soon as possible. BBC Scotland were then contacted and advised that a hearing would be fixed but not before 18 February 2005. The Government, in their observations to this Court, maintain that BBC Scotland did not challenge that decision. On 18 February, BBC Scotland sent another fax to the High Court advising that a telephone call to their offices would be sufficient to enable them to arrange representation before the High Court within twenty-four hours. The fax also conveyed BBC Scotland's understanding that, if the High Court dismissed the prosecution's appeal, then BBC Scotland would be heard by the court in respect of the section 4(2) order. 11. The Government maintain that BBC Scotland did not contest the decision not to hold a hearing before 18 February 2005 and, because no application had been made to recall or vary the interim order before 17 February 2005, the interim order became final on 17 February 2005. The applicants maintain that their fax of 15 February 2005 was intended to be an application to recall or vary the interim order; as such, the interim order did not become final on 17 February 2005. 12. The prosecution's appeal was determined on 24 March 2005. On the basis of further information provided by the prosecution as to who had been watching the trial proceedings in the remote viewing room, the Appeal Court recalled the order of the trial judge and substituted an order for desertion pro loco et tempore, which allowed for the re-indictment of one of the original accused. On the same date, the Appeal Court deferred its consideration of BBC Scotland's application for the recall of the section 4(2) order made on 15 February 2005. On 21 June 2005, the Appeal Court recalled that order. 13. 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. 14. 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 Justiciary's ruling in Galbraith v. H.M. Advocate 2001 S.L.T. 465, 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. A full copy of any section 4(2) order is intimated to press and media contacts who are listed with the Scottish Courts Service. The names of cases where section 4(2) orders are in place are available from the Scottish Courts Service website. 15. The concept of nobile officium in Scots law is an extraordinary equitable power vested in, inter alia, the High Court of Justiciary. It was described by the High Court in Anderson v. HMA 1974 SLT 239 as: “...a remedy for any extraordinary or unforeseen occurrence in the course of criminal business in any part of the country...In short, the principle is, that wherever the interposition of some authority is necessary to the administration of justice, and there exists no other judicature by whom it can competently be exercised, or which has been in use to exercise it, the Court of Justiciary is empowered and bound to exercise its powers [of nobile officium], on the application of the proper party, for the furtherance of justice” The procedure is used where there is no other remedy provided for by law. A petition to the nobile officium was brought in BBC Petitioners