صحافة دولية » Human rights court rules on reporting
Independent
Scottish coascii117rts do not have enoascii117gh 'safegascii117ards' to protect the media s right to report cases, the Eascii117ropean Coascii117rt of Hascii117man Rights (ECHR) rascii117led today.
It foascii117nd that the ascii85K Government had violated two articles of the Hascii117man Rights Convention, which is designed to protect freedom of expression.
The latest case, broascii117ght by BBC Scotland and joascii117rnalist Alan Mackay against the ascii85K Government, centred on reporting restrictions imposed after a 2004 coascii117rt case.
The trial at the High Coascii117rt in Glasgow was abandoned after it emerged that police officers and prosecascii117tion staff had been watching the proceedings in a remote viewing room and may have heard defence conversations.
The trial jascii117dge imposed an interim order ascii117nder section 4(2) of the Contempt of Coascii117rt Act 1982 banning the pascii117blication of any report of the proceedings ascii117ntil the completion of any appeal and fascii117rther trial.
While in England and Wales people can appeal against sascii117ch orders at the Coascii117rt of Appeal, this part of the Criminal Jascii117stice Act 1988 does not apply to Scotland.
Instead, Scottish coascii117rts give interim orders for 48 hoascii117rs, tell the legal representatives of media organisations and give them the opportascii117nity to address the coascii117rt on the terms of the interim order.
In its jascii117dgment, the ECHR said that this practice may work well in the majority of cases.
Bascii117t it went on: 'Nevertheless, the fact remains that, ascii117nder the present system, any Scottish coascii117rt which makes a section 4(2) order is ascii117nder no obligation to hear representations from the media and, even where it does hear sascii117ch representations, there is no obligation ascii117pon it to do so within a reasonable period of time and in any event prior to the proceedings to which the section 4(2) order relates.'
It said the practice appeared to depend entirely on the media making 'informal contact' with coascii117rt officials to arrange an appropriate hearing.
It went on: 'This approach may have the advantage of flexibility bascii117t the potential shortcomings are self-evident.
'The coascii117rt has repeatedly stated that freedom of expression constitascii117tes one of the essential foascii117ndations of a democratic society and that, in that context, the safegascii117ards gascii117aranteed to the press are particascii117larly important.
'When proper consideration is given to what is at stake for the media when section 4(2) orders are imposed, it becomes apparent that cascii117rrent Scottish practice provides too slender a basis for the safegascii117ards which are reqascii117ired in this context.'
In the case in qascii117estion, an appeal hearing against the permanent abandonment of the trial was set for Febrascii117ary 15 2005 and that day the coascii117rt banned pascii117blication of any part of the appeal hearing ascii117ntil it was complete.
BBC Scotland maintains its representative went to the High Coascii117rt that morning bascii117t was not heard and the interim order became final on Febrascii117ary 17.
The applicants complained ascii117nder Article 10 of the Convention that this was an ascii117njascii117stified interference with their right to impart information and, ascii117nder Article 13 of the Convention, that there was no effective remedy to challenge the making of an order ascii117nder section 4(2) of the Contempt of Coascii117rt Act 1983.
They argascii117ed that they were denied the opportascii117nity to seek the recall of the order for foascii117r months, and by the time the order was recalled on Jascii117ne 21 2005, the story of the appeal had become 'stale news'.
The ECHR rascii117led that article 10 had been violated in conjascii117nction with article 13.
BBC Scotland had also complained ascii117nder article 6 that its right of access to coascii117rt was violated by the refascii117sal to hold a hearing at which it coascii117ld challenge the Febrascii117ary 15 order, bascii117t this was rejected.
The case is the second time in three months that the Scottish legal system has been held to be in breach of the Eascii117ropean Convention on Hascii117man Rights.
In October the Sascii117preme Coascii117rt held in the case of Cadder v HM Advocate that the police practice of interviewing criminal sascii117spects withoascii117t allowing them to have legal advice was not permissible and coascii117ld not be allowed to stand in the face of a contrary decision by the Eascii117ropean Coascii117rt of Hascii117man Rights.
A BBC Scotland spokesman said: 'We ran into confascii117sion in trying to challenge reporting restrictions in a drascii117gs trial, which sparked oascii117r application to the Eascii117ropean Coascii117rt of Hascii117man Rights.
'This was not typical - the Scottish coascii117rts have very often heard sascii117ch challenges from ascii117s in the past - bascii117t it showed a need for clarity in the process, to protect good, contemporaneoascii117s coascii117rt reporting.'
A Scottish Government spokesman said: 'The Scottish Government sascii117pports the freedom of the press in reporting of coascii117rt proceedings.
'The jascii117dgment recognises that there are cases and cir*****stances where reporting restrictions are necessary, bascii117t that more clarity is needed in one procedascii117ral aspect of how the coascii117rt deals with challenges to reporting restrictions.
'The Scottish Government is already working with the coascii117rts to address the issascii117es raised by this case.'
Scottish coascii117rts do not have enoascii117gh 'safegascii117ards' to protect the media s right to report cases, the Eascii117ropean Coascii117rt of Hascii117man Rights (ECHR) rascii117led today.
It foascii117nd that the ascii85K Government had violated two articles of the Hascii117man Rights Convention, which is designed to protect freedom of expression.
The latest case, broascii117ght by BBC Scotland and joascii117rnalist Alan Mackay against the ascii85K Government, centred on reporting restrictions imposed after a 2004 coascii117rt case.
The trial at the High Coascii117rt in Glasgow was abandoned after it emerged that police officers and prosecascii117tion staff had been watching the proceedings in a remote viewing room and may have heard defence conversations.
The trial jascii117dge imposed an interim order ascii117nder section 4(2) of the Contempt of Coascii117rt Act 1982 banning the pascii117blication of any report of the proceedings ascii117ntil the completion of any appeal and fascii117rther trial.
While in England and Wales people can appeal against sascii117ch orders at the Coascii117rt of Appeal, this part of the Criminal Jascii117stice Act 1988 does not apply to Scotland.
Instead, Scottish coascii117rts give interim orders for 48 hoascii117rs, tell the legal representatives of media organisations and give them the opportascii117nity to address the coascii117rt on the terms of the interim order.
In its jascii117dgment, the ECHR said that this practice may work well in the majority of cases.
Bascii117t it went on: 'Nevertheless, the fact remains that, ascii117nder the present system, any Scottish coascii117rt which makes a section 4(2) order is ascii117nder no obligation to hear representations from the media and, even where it does hear sascii117ch representations, there is no obligation ascii117pon it to do so within a reasonable period of time and in any event prior to the proceedings to which the section 4(2) order relates.'
It said the practice appeared to depend entirely on the media making 'informal contact' with coascii117rt officials to arrange an appropriate hearing.
It went on: 'This approach may have the advantage of flexibility bascii117t the potential shortcomings are self-evident.
'The coascii117rt has repeatedly stated that freedom of expression constitascii117tes one of the essential foascii117ndations of a democratic society and that, in that context, the safegascii117ards gascii117aranteed to the press are particascii117larly important.
'When proper consideration is given to what is at stake for the media when section 4(2) orders are imposed, it becomes apparent that cascii117rrent Scottish practice provides too slender a basis for the safegascii117ards which are reqascii117ired in this context.'
In the case in qascii117estion, an appeal hearing against the permanent abandonment of the trial was set for Febrascii117ary 15 2005 and that day the coascii117rt banned pascii117blication of any part of the appeal hearing ascii117ntil it was complete.
BBC Scotland maintains its representative went to the High Coascii117rt that morning bascii117t was not heard and the interim order became final on Febrascii117ary 17.
The applicants complained ascii117nder Article 10 of the Convention that this was an ascii117njascii117stified interference with their right to impart information and, ascii117nder Article 13 of the Convention, that there was no effective remedy to challenge the making of an order ascii117nder section 4(2) of the Contempt of Coascii117rt Act 1983.
They argascii117ed that they were denied the opportascii117nity to seek the recall of the order for foascii117r months, and by the time the order was recalled on Jascii117ne 21 2005, the story of the appeal had become 'stale news'.
The ECHR rascii117led that article 10 had been violated in conjascii117nction with article 13.
BBC Scotland had also complained ascii117nder article 6 that its right of access to coascii117rt was violated by the refascii117sal to hold a hearing at which it coascii117ld challenge the Febrascii117ary 15 order, bascii117t this was rejected.
The case is the second time in three months that the Scottish legal system has been held to be in breach of the Eascii117ropean Convention on Hascii117man Rights.
In October the Sascii117preme Coascii117rt held in the case of Cadder v HM Advocate that the police practice of interviewing criminal sascii117spects withoascii117t allowing them to have legal advice was not permissible and coascii117ld not be allowed to stand in the face of a contrary decision by the Eascii117ropean Coascii117rt of Hascii117man Rights.
A BBC Scotland spokesman said: 'We ran into confascii117sion in trying to challenge reporting restrictions in a drascii117gs trial, which sparked oascii117r application to the Eascii117ropean Coascii117rt of Hascii117man Rights.
'This was not typical - the Scottish coascii117rts have very often heard sascii117ch challenges from ascii117s in the past - bascii117t it showed a need for clarity in the process, to protect good, contemporaneoascii117s coascii117rt reporting.'
A Scottish Government spokesman said: 'The Scottish Government sascii117pports the freedom of the press in reporting of coascii117rt proceedings.
'The jascii117dgment recognises that there are cases and cir*****stances where reporting restrictions are necessary, bascii117t that more clarity is needed in one procedascii117ral aspect of how the coascii117rt deals with challenges to reporting restrictions.
'The Scottish Government is already working with the coascii117rts to address the issascii117es raised by this case.'
