Lexploria

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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CROOK, ATKINSON AND THE INDEPENDENT v. THE UNITED KINGDOM

CROOK, ATKINSON AND THE INDEPENDENT v. THE UNITED KINGDOM