PROCEDURE

The case originated in an application (no. 10734/05) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr A. Mackay, and the British Broadcasting Corporation in Scotland (BBC Scotland) (“the applicants”) on 23 March 2005. Mr Mackay was born in 1954 and lives in Glasgow. When the application was lodged he was working for BBC Scotland as a journalist; he has since retired.

The applicants were represented by Mr A. Bonnington, solicitor-advocate, and subsequently by Ms R. M. M. McInnes, a solicitor for BBC Scotland, assisted by Mr M. S. Jones Q.C., counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton of the Foreign and Commonwealth Office.

The applicants alleged they were unable to challenge a court order prohibiting reporting of a criminal trial in violation of Articles 6, 10 and 13 of the Convention.

On 26 February 2008 the President of the Chamber to which the case had been allocated decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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.

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.

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, 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.

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.

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.

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.

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.