Resolution CM/ ResDH (2012) 108 [1]

Execution of the judgment of the European Court of Human Rights

MacKay and BBC Scotland against the United Kingdom

(Application No. 10734/05, judgment of 7 December 2010, final on 7 March 2011)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established (see document DH-DD ( 2011)845 );

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment and noting that no award of just satisfaction was made by the Court in the present case (see document DH-DD(2 0 11)845 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of Judgments of the European Court of Human Rights, Action Report

Mackay and BBC Scotland v The United Kingdom

(Application No. 10734/05; judgement final on 07/03/2011)

Information submitted by the Scottish Government on 10 October 2011

Case summary

- This case concerned the applicants ’ inability to challenge a court order which imposed reporting restrictions in a criminal trial in Scotland . The European Court of Human Rights found that the applicants were unable to formally challenge this order, as the procedure for challenge was informal and did not include the requisite safeguards, which the ECHR noted are particularly important in the context of freedom of expression.

- The ECHR found this to be in breach of Article 13 read in conjunction with Article 10 - Lack of an effective remedy and freedom of expression and information.

- The Act of Adjournal (Criminal Procedure Rules Amendment No. 3) (Miscellaneous) 2011 came into force on 28 March 2011, section 6 of which amended Chapter 56 of the Criminal Court Rules to implement the terms of the courts decision.

Individual Measures

- No just satisfaction was claimed or awarded.

- The Government considers no further individual measures are necessary because legislative measures have been put in place to provide an effective procedural remedy to the situation which had subsisted previously as an informal procedure. These measures will safeguard applicants ’ rights under Article 13 read in conjunction with Article 10.

- The order about which the applicants complained had been recalled by the domestic court on 21 June 2005.

General Measures

             - The judgment has been published in the following law reports, legal journals and newspapers.

             Law Reports

             2010 All ER (D) 267 (Dec)

             Legal Databases

             Bailii - http://www.bailii.org/eu/cases/ECHR/2010/1968.html

             Case analysis on Westlaw.

             Lexis - All England Report above.

             Scottish Legal Information Centre (SLIC) - Issue 49 mentions the judgment and Issue 1 of 2011 has a link to commentary on the judgment.

             http://sa45eda/sgld/slic/Wiki% 2 0Pages/Human%20Rights%20Bulletins.aspx

             Newspapers

             Independent, http://www.independent.co.uk/news/media/tv-radio/human-rights-court-rules-on- reporting-2153691.html

             Scotsman, http://news.scotsman.com/scotland/Scottish-courts-are-not-protecting.6652809.jp

             Herald, http://breakingnews.heraldscotland.co m /breakin gnews/mode=article&site=hs& id=N0012681291730721522A

             Times, 4 January 2011

- The judgment has been disseminated to Michael Anderson, Legal Secretary to the Lord President, Court of Session, Edinburgh, who has made the judges and senior officials of the Court aware of the judgment; and to the Scottish Court Service, an independent statutory body responsible for providing the staff, buildings and technology to support Scotland ’ s courts and the work of the independent judiciary. It has also been disseminated to the Rules Council membership of which includes the judiciary, Scottish Court Service, Crown Office, Law Society of Scotland and the Faculty of Advocates.

- The Government has taken the following general measures. The Act of Adjournal (Criminal Procedure Rules Amendment No. 3) (Miscellaneous) 2011 ( http://www.legislation.gov.uk/ssi/2011/194/contents/made ) came into force on 28 March 2011, section 6 of which amended Chapter 56 of the Criminal Court Rules to implement the terms of the decision.

- The instrument puts the previous administrative arrangements into a legally binding form. This means that the court is required to take certain steps to communicate the existence of section 4(2) orders (which ban reporting) and that there is a procedure for the making by aggrieved parties of applications for the revocation or variation of such orders. Such applications are determined following a hearing which will, ordinarily, take place within 48 hours of the making of the application and be before the judge who made the order.

[1] Adopted by the Committee of Ministers on 6 June 2012 at the 11 44 th Meeting of the Ministers’ Deputies .