Duff and BBC Scotland v. the United Kingdom: press access to court proceedings and Article 10 of the Convention

Introduction

On 13 October 2026, the European Court of Human Rights (Second Section) delivered its judgment in the case of Duff and BBC Scotland v. the United Kingdom (Application no. 8562/19, ECLI:CE:ECHR:2026:1013JUD000856219). The case was heard by a Committee composed of President Péter Paczolay, Judge Oddný Mjöll Arnardóttir, and Judge Hugh Mercer, with Dorothee von Arnim serving as Deputy Section Registrar.

The application was lodged on 6 February 2019 by Mr Steven Duff, a British national born in 1975 and resident in Aberdeen, and by the British Broadcasting Corporation in Scotland (BBC Scotland). Both applicants were represented before the Court by Ms R. McInnes of the Legal Department of BBC Scotland in Glasgow. The respondent Government of the United Kingdom was represented by Ms A. Sornarajah of the Foreign, Commonwealth and Development Office.

At its core, the case concerns the exclusion of a journalist from a court hearing at Aberdeen Sheriff Court following an order to close the court, and the absence of any mechanism by which the press could challenge such an order before it took effect. The applicants brought complaints under Article 10 of the Convention, both alone and in conjunction with Article 13.

Background facts

On 10 August 2018, a hearing took place at Aberdeen Sheriff Court. At the outset of the hearing, one of the parties made an unopposed request that the court order the proceedings to be conducted in closed court. The sheriff granted that request, the court was cleared, and the first applicant — who was present as a journalist employed by BBC Scotland — was asked to leave.

Following his exclusion, the first applicant attempted to obtain information about the hearing from the only person permitted to remain in court, namely an employee of the party that had sought and been granted the closure order. No information was provided. He subsequently sought information from court officers and from the legal representatives of the parties, but again received none.

In their written observations to the Court, the Government disclosed, after making inquiries, that the sheriff had informed them she had not been aware that members of the press were present when the application to close the court was made. She had not noticed whether anyone was present on the public benches, had made no enquiry about whether press were in attendance, had no recollection of any objections being raised, and would not have recognised the first applicant at the time of the hearing.

Relevant domestic law in Scotland

The judgment sets out the domestic legal framework applicable in Scotland. Scottish law recognises the principle of open justice, pursuant to which court proceedings are conducted in public unless provision is made to the contrary. The document identifies the origin of this principle as the Court of Session Act 1693, which continues to govern Scotland's superior civil court, the Court of Session.

The judgment refers to a Court of Session decision, MH v. Mental Health Tribunal for Scotland 2019 SC 432, which explained the operation of the open justice principle. The power to regulate court practice and proceedings is described as an aspect of the sheriff's inherent jurisdiction, and the same open justice principles apply in the Sheriff Court, as confirmed in Sloan v. B 1991 SC 412.

The document further notes that the power to exclude the public from hearings requires a compelling reason, citing Scott v. Scott [1913] AC 417. The special status of journalists and the importance of press access to court proceedings is recognised by the common law, and the exclusion of the media should occur only in the 'rarest of circumstances', as stated in MH v. Mental Health Tribunal for Scotland.

On the procedural side, the judgment records that the media has no legal right to make submissions when a party applies for a hearing to be held in private, referencing Executor of HRH Prince Philip, Duke of Edinburgh, decd v. Attorney General [2023] 1 WLR 1193. A decision to exclude the media may, however, be challenged by way of a petition for judicial review in the Court of Session.

The applicants' complaints

The applicants complained under Article 10 of the Convention, both alone and in conjunction with Article 13, that the closing of the court resulted in a violation of their right to receive and impart information about the matters raised in the hearing.

A second and distinct strand of the complaint concerned the absence of any mechanism by which the applicants could challenge the application to close the court before the closure order was actually made. This procedural dimension is significant: it raises questions not only about the substantive outcome of the hearing but about whether the system afforded any meaningful opportunity for the press to be heard before being excluded.

Admissibility: the exhaustion of domestic remedies

The Government submitted that the applicants ought to have lodged a petition for judicial review of the sheriff's decision in the Court of Session. As part of such proceedings, the Government argued, the applicants could have requested interim orders to prevent the sheriff from proceeding with the hearing on 10 August 2018 pending review.

The Government further contended that even if a judicial review petition might not have prevented a violation of the applicants' rights from occurring, it would nonetheless have constituted an effective remedy. In the Government's submission, a declaration by Scotland's superior court — involving a public statement as to what was required of the sheriff as a matter of law — would have provided adequate redress for the violation that had taken place.

The Court noted the general principle underlying the exhaustion rule: it is based on the assumption, reflected in Article 13 of the Convention, that there is an effective remedy available in the domestic system in respect of the alleged breach, as established in Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII. The Court recorded that it had rejected the unilateral declaration presented by the Government, and that the parties' observations had been considered before the Committee deliberated in private on 22 September 2026.

Significance for press freedom and open justice

The case illustrates the tension that can arise between the discretion of a judicial officer to manage proceedings — including by ordering a hearing to be held in closed court — and the Convention rights of the press to receive and impart information. The factual circumstances are notable: the sheriff was unaware that a journalist was present, made no enquiry about press attendance, and the closure order was granted on an unopposed application.

The domestic legal framework, as described in the judgment, already recognises that exclusion of the media should be a rare measure requiring a compelling reason. However, the case highlights a procedural gap: the media has no legal right under Scottish law to make submissions before a closure order is granted. This gap is central to the Article 13 dimension of the complaint, which concerns the availability of an effective remedy.

The judgment is described as final, though subject to editorial revision. It therefore represents a concluded assessment by the Court of the Convention issues arising from these facts, and may be of broader relevance to discussions about procedural safeguards for press access to court proceedings within Council of Europe member states.

Conclusion

The judgment in Duff and BBC Scotland v. the United Kingdom addresses a specific but important set of circumstances: the exclusion of a journalist from a court hearing in Scotland following an unopposed closure order, and the absence of any prior opportunity for the press to be heard before that order was made. The case engages both the substantive right to receive and impart information under Article 10 and the requirement for an effective remedy under Article 13 of the Convention.

The domestic legal framework in Scotland affirms the principle of open justice and recognises the special position of the press, but the procedural arrangements — as reflected in the facts of this case — left the journalist with no mechanism to intervene before the closure order took effect. The Court's rejection of the Government's unilateral declaration indicates that the matter was considered to warrant a full judicial determination.

Institutions, legal practitioners, and journalists operating in jurisdictions subject to the Convention may find this judgment instructive when considering the procedural safeguards that should accompany applications to exclude the press from court proceedings. The case underscores that open justice is not merely a substantive principle but also carries procedural implications for how closure applications are managed.

This article is for educational and informational purposes only and does not constitute legal advice.

Sources consulted

• CASE OF DUFF AND BBC SCOTLAND v. THE UNITED KINGDOM - European Court of Human Rights, Council of Europe