CROOK, ATKINSON AND THE INDEPENDENT v. the UNITED KINGDOM - 13366/87 [1990] ECHR 33 (03 December 1990)

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AS TO THE ADMISSIBILITY OF Application No. 13366/87 by Lois ATKINSON, Timothy CROOK and The Independent against the United Kingdom The European Commission of Human Rights sitting in private on 3 December 1990, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL G. SPERDUTI E. BUSUTTIL A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS Mrs. G. H. THUNE Sir Basil HALL MM. F. MARTINEZ RUIZ C.L. ROZAKIS Mrs. J. LIDDY MM. L. LOUCAIDES J.-C. GEUS A.V. ALMEIDA RIBEIRO M.P. PELLONPÄÄ Mr. H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 17 September 1987 by Lois ATKINSON, Timothy CROOK and The Independent against the United Kingdom and registered on 9 November 1987 under file No. 13366/87; Having regard to: - the report provided for in Rule 47 of the Rules of Procedure of the Commission - the observations submitted by the respondent Government on 18 March 1990 and the observations in reply submitted by the applicants on 20 June 1990; Having deliberated; Decides as follows: THE FACTS The first applicant, Ms. Lois Atkinson, born in 1944, is a Canadian freelance journalist currently resident in London. She frequently prepares accounts of legal proceedings at the Central Criminal Court for media dissemination. The second applicant, Mr. Tim Crook, a British journalist born in 1959, is the present secretary of the Central Criminal Court Journalists' Association and proprietor of a news service which transmits court reports to media clients. The first applicant was under contract to provide a report of the proceedings to the second applicant. The third applicant, 'The Independent', is a national newspaper which regularly publishes accounts of trial and sentencing proceedings at the Central Criminal Court. The second applicant was under contract to the newspaper to supply reports of court proceedings. The applicants are represented by Mr. John Wadham, a solicitor working for Liberty. The facts of the case, as submitted by the parties, may be summarised as follows. In February 1987, Mr. Tony Alexiou was tried in the Central Criminal Court on a charge of conspiring to supply a large amount of heroin. His trial was held in open court and was reported in the press. Following his conviction by jury, it was decided to postpone his sentencing until 20 March 1987. Sentencing procedure involves the production of evidence and the hearing of a plea in mitigation as to the defendant's character and antecedents, followed by a statement by the judge setting out the sentence and the reasons therefor. On 20 March 1987 the sentence on Mr. Alexiou was listed at 10.00 a.m. in court 17. On that day an application was made to the judge in camera, by counsel for Mr. Alexiou for an order that the sentencing proceedings be heard in camera. The application was not opposed by the prosecution and the judge granted it. The first applicant attended at 10 a.m. to report the case for the Central News Agency and for the agency owned by the second applicant and for any other media which might be interested in carrying her report. She found that the doors of the court were closed, displaying an "In Chambers" sign, and she was not permitted to enter. She waited outside the court for a long period, during which time other reporters were turned away. Upon the removal of the sign, she entered immediately in time to hear the presiding judge make the following remarks to the accused. "For a number of reasons put forward in the course of your mitigation, the sentence I pass in your case is three years and nine months." The Central Criminal Court Journalists' Association protested publicly against the unexplained decision to hold the sentencing proceedings in secret. The order had been made, on or before 20 March 1987, in purported exercise of the inherent power of a trial judge to sit in camera. On 24 March 1987, the senior judge summoned the chairman of the Association and offered to give her reasons in private for the closure of the court, on condition that she sign an undertaking never to divulge them. This was unacceptable to her and to the Association. RELEVANT DOMESTIC LAW AND PRACTICE At common law, a trial on indictment must be held in a public court with open doors. This applies to all stages of the trial, including the sentencing proceedings. Exceptions may be made where the administration of justice so requires. In Attorney General v. Leveller Magazine Ltd (1979) AC 440 at p. 450C, Lord Diplock said that "since the purpose of the general rule (of hearing trials in public) is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice ...". This power to exclude the public may be exercised in relation to a plea in mitigation in sentencing proceedings. In R v. Tower Bridge Magistrates' Court ex p. Osborne (1989) 88 Cr. App. R 28 at p. 31, Watkins LJ said that the discretion to go into camera "must be exercised circumspectly and in our experience it is exercised rarely. As (counsel) has reminded us, it is more than in any circumstances exercised when matters of mitigation of sentence are being canvassed". The application for the plea in mitigation to be heard in camera must itself be heard in camera. In R v. Ealing Justices the Divisional Court held that the justices had been wrong to refuse an application for a plea in mitigation to be heard in camera. Donaldson LJ said that "it is precisely in the wholly exceptional case where a court is justified in excluding the public that it is impossible to demonstrate that fact in public". He went on to say that the proper course was to clear the court in order to consider the application, then to announce the decision and either proceed in public or in camera, as the case might be. He also said that in his view it was desirable that the decision whether or not to proceed in camera should be announced in open court, although he did not lay this down as a requirement to be followed in every case. The hearing in camera of the application to go into camera, on the other hand, is such a requirement. Section 29 (3) of the Supreme Court Act 1981 which was in force at the relevant time provided: "In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court." This precluded any application to the High Court for judicial review of a decision of a judge in a trial on indictment to hold part of the proceedings "in camera". On 31 July 1989, the Criminal Justice Act 1988 came into force. Section 139 of the Act provides for an appeal to the Court of Appeal (if leave is granted) against an order restricting access of the public to the whole or any part of a trial. The procedure for such appeals is set out in Rule 24 A of the Crown Court (Amendment) (No. 2) Rules 1989 and Rule 16 B of the Criminal Appeal (Amendment) Rules 1989. Pursuant to these rules, the application for leave to appeal and the appeal itself are to be determined without a hearing. COMPLAINTS 1. The applicants complain that the decision by the trial judge to hear the sentencing proceedings in R. v. Alexiou in secret amounted to a violation of their right to receive and impart information, contrary to Article 10 of the Convention. As a result, the public was deprived of its right to receive information about the nature and disposal of a serious criminal offence. In this connection, the applicants contend that the exceptions to the principle of open justice allowed for under the Convention and under United Kingdom law did not exist in the case of Alexiou's sentencing proceedings whose trial had been held in open court. Nor were the applicants permitted to hear the reasons for the closure of the court, and they therefore contend that the decision could not be said to have been justified under Article 10 para. 2 of the Convention. 2. The applicants also complain under Article 6 para. 1 of the Convention that they were denied a fair hearing of their right to report matters stated in open court. 3. The applicants further complain that they have no remedy, effective or otherwise, under United Kingdom law against orders made in purported pursuance of the inherent power of a trial judge to sit in camera. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 17 September 1987 and registered on 9 November 1987. On 8 September 1988, the Commission decided to invite the Government to submit written observations on the admissibility and merits of the application under Articles 10 and 13 of the Convention. The Government were invited to submit their observations by 30 October 1989. The Government's observations were submitted on 18 March 1990 after two extensions in the time-limit and the observations in reply submitted by the applicants on 20 June 1990 after one extension in the time-limit. On 3 October 1990, the Commission resumed its examination of the admissibility of the application. THE LAW 1. The applicants complain that the decision of the trial judge to hold the sentencing proceedings in R v. Alexiou in camera violated their right to receive and impart information contrary to Article 10 (Art. 10) of the Convention. Article 10 (Art. 10) of the Convention provides: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article (Art. 10) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. The Government have submitted that the second applicant, owner of a news agency, and the third applicant, a newspaper, cannot complain that they are victims of any alleged violation of Article 10 (Art. 10) of the Convention, since the detriment suffered, if any, as a result of the court's decision was too remote and too indirect. The second and third applicants have submitted that they had a direct interest in reporting the outcome of the Alexiou case, since the first applicant was under contract to report on the case to the second applicant and the second applicant was under contract to supply reports of court proceedings for the third applicant. The Commission however finds it unnecessary to decide whether the second or third applicants are victims within the meaning of Article 25 (Art. 25) of the Convention for the reasons set out below. The Commission has examined whether the decision of the court to hold the sentencing proceedings in camera can constitute an interference with the applicants' freedom of expression within the meaning of Article 10 para. 1 (Art. 10-1) of the Convention in that they were prevented from receiving information and imparting it to the public. The Government have submitted that Article 10 (Art. 10) does not apply to the facts of the present case. The Commission recalls that the Court has held that "the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him" (see Eur. Court H.R., Gaskin judgment of 7 July 1989, Series A no. 160 and Leander judgment of 26 March 1987, Series A no. 116). The Commission considers however that the general principle stated by the Court may not apply with the same force in the context of court proceedings. The Commission considers that regard must be had in this context to Article 6 para. 1 (Art. 6-1) of the Convention which provides that as a general rule proceedings should be conducted in public. Although the right to a hearing in public may be waived, the waiver must not run counter to any important public interest (see Eur. Court H.R. Håkansson and Sturesson judgment of 21 February 1990, Series A Vol. 171 para. 66). The Commission recalls the important role played by the press in the field of the administration of justice: "There is a general recognition of the fact that the courts cannot operate in a vacuum. Whilst they are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them ..." (Eur. Court H.R. Sunday Times judgment of 26 March 1979, Series A no. 30, p. 40, para. 65) In order that the media may perform their function of imparting information there is a need that they should be accurately informed. Assuming that the decision of the court to hold part of the proceedings in camera constituted an interference with the applicants' right to receive and impart information as guaranteed by Article 10 para. 1 (Art. 10-1) of the Convention, the Commission must consider whether this interference was prescribed by law and whether it was necessary in a democratic society for one or more of the purposes set out in Article 10 para. 2 (Art. 10-2) of the Convention. As regards the lawfulness of the decision, the Commission notes that the courts have under common law an inherent jurisdiction to exclude the public where the administration of justice so requires. The Commission further notes that the applicant has not complained that the decision was not lawful. The Commission accordingly finds that the restriction was "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2). As regards the purpose and necessity of the restriction, the Government have submitted that the exclusion of the public pursued the aims of the prevention of crime, maintaining the authority and impartiality of the judiciary and the protection of the rights of others. The Government comment on the very sensitive matters which may be raised in mitigation, which if disclosed, could put persons, including third parties (e.g. family members) at grave risk, particularly where organised crime, for example drugdealing, is involved. The Government state that because of the sensitivity of the information submitted during the proceedings in camera they are unable to give further details. The applicants consider that the decision to exclude the public cannot be considered necessary. It cannot be challenged and was in any case disproportionate, since the court could, for example, have imposed a reporting ban on part of the proceedings or could have had sensitive information conveyed in a written note to the judge in open court. The Commission recalls that the proceedings took place in camera following application by the defendants' counsel and that the public were excluded during the sentencing proceeding but were allowed to re-enter to hear the judge pass sentence. The Commission acknowledges that to reveal the information in question would necessarily thwart the purpose of holding that part of the proceedings in camera. It considers, however, that it is apparent from the context that matters were raised in mitigation on behalf of the defendant, which were considered to require exclusion of the public and that the exclusion of the public pursued the aim of maintaining the impartiality and authority of the judiciary and the rights of others. It remains to be considered whether the restriction was necessary in a democratic society for these aims. The Commission must have regard to the essential function of freedom of the press in a democratic society and establish whether a "pressing social need" justified the restriction, taking into account that the Contracting States have a certain margin of appreciation (Eur. Court H.R., Lingens judgment of 8 July 1986, Series A no. 103, pp. 25-26, paras. 39-41). The Commission recalls that Article 6 para. 1 (Art. 6-1) makes express reference to the possibility that criminal proceedings may in certain specified circumstances take place in camera. While this provision does not directly affect the operation of Article 10 (Art. 10), the Commission considers that the rights of the defendant and the interests of justice must be given particular weight. It recalls in this regard that the exclusion was at the request of the defendant and was agreed by the prosecution and the presiding judge. The Commission finds therefore that having regard to the margin of appreciation the interest of the media in reporting the proceedings was outweighed in the present case. While the reasons for the court's decision were not made public, the Commission notes that the senior judge offered to inform the chairman of the Central Criminal Court Journalists' Association in confidence of the reasons for the exclusion but that this offer was refused. The Commission considers that the interference with the applicants' rights in this case was justified under Article 10 para. 2 (Art. 10-2) as necessary in a democratic society for the above-mentioned purposes. It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicants complain that they were deprived of a fair hearing in respect of the decision to hold the sentencing proceedings in camera, since they were unable to challenge or appeal the decision before courts. They invoke Article 6 para. 1 (Art. 6-1) of the Convention, which, in its first sentence, provides: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ..." The Commission recalls that the case-law of the Commission and the Court has established that Article 6 para. 1 (Art. 6-1) of the Convention guarantees to everyone an effective right of access to the courts for the determination of their civil rights and obligations. The Commission must therefore consider whether a right was at all involved in the present case and, if so, whether that right was a "civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The Commission notes that, generally speaking, Article 6 para. 1 (Art. 6-1) of the Convention is not aimed at creating new substantive rights which have no legal basis in the State concerned but at providing procedural protection to rights which are recognised in domestic law. It is not however decisive whether a particular benefit or expectation is characterised under the domestic legal system as a right since the term right must be given an autonomous interpretation under Article 6 para. 1 (Art. 6-1) of the Convention (e.g. Eur. Court H.R., König judgment of 28 June 1986, Series A no. 27 para. 87). In W. v. the United Kingdom (Eur. Court H.R., W v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 32, para. 73), the Court stated: "It is true that Article 6 para. 1 (Art. 6-1) extends only to 'contestations' (disputes) over (civil) 'rights and obligations' which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for (civil) 'rights and obligations' in the substantive law of the Contracting States (see, amongst other authorities, the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192)." The Commission recalls however that the courts have an inherent jurisdiction under common law to exclude the public from a trial where the interests of justice so require and that by statute, the High Court had no power no review such decisions. The Commission also recalls that in a previous case it found the right to report matters stated in open courts could not be described as a right which was civil in nature (see cf. Nos 11553/88 and 11658/88, Dec. 9.3.87, to be published in D.R. 51). In these circumstances, the Commission finds no indication that the applicants enjoy any civil right under domestic law to report on the sentencing proceedings held in camera. The Commission accordingly finds that the applicants' complaints do no involve a civil right or obligation within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3. The applicants also complain that they have no effective remedy in respect of their complaints. Article 13 (Art. 13) provides that: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." Article 13 (Art. 13) does not require a remedy under domestic law in respect of any alleged violation of the Convention. It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, para. 52). The Commission has found above that the interference with the applicants' rights under Article 10 (Art. 10) of the Convention was justified under paragraph 2 (Art. 10-2) of that provision as being necessary inter alia in a democratic society for the protection of the rights of others and for maintaining the impartiality and authority of the judiciary. The Commission also finds that the facts of the present case fail to disclose an "arguable claim" of a violation of Article 10 (Art. 10) of the Convention. Consequently, the applicant cannot derive from Article 13 (Art. 13) of the Convention a right to a remedy for the alleged violation of Article 10 (Art. 10). It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, by a majority DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)

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You are here: BAILII >> Databases >> European Court of Human Rights >> CROOK, ATKINSON AND THE INDEPENDENT v. the UNITED KINGDOM - 13366/87 [1990] ECHR 33 (03 December 1990) URL: http://www.bailii.org/eu/cases/ECHR/1990/33.html Cite as: [1990] ECHR 33

European Court of Human Rights