BBC Scotland wins 8-year legal challenge over exclusion of reporter from court

A BBC Scotland journalist who was excluded from a court hearing has won a ruling from Europe's highest human rights court.

Aberdeen-based Steven Duff had been investigating an Aberdeenshire care home where residents were reported to have been mistreated in August 2018, when he was asked to leave the Sheriff Court.

The hearing was then conducted in private following a request from the care home operator's legal representative, which the sheriff subsequently granted.

The European Court of Human Rights (ECHR) sided with Duff, stating in Scotland the law recognises the principle of open justice, with court proceedings conducted in public except in the "rarest of circumstances".

Muirhead Care Home in Alford was on the brink of closure by the Care Inspectorate following a spot inspection in July 2018.

Reports said residents were found tied to chairs with belts and had not been given enough food.

"It was an issue of obvious public interest," Duff said.

He said he was the only journalist following the story at the time and was in court on the day of the hearing at Aberdeen Sheriff Court.

"I was very surprised when the counsel for the care home operator asked for the hearing to be in private," he said.

"His reasoning, which mentioned vulnerable people and the commercial interests of his clients, did not make sense as those could be the circumstances of many court cases."

Duff said he was "even more surprised" when there were no objections.

"I knew immediately it was wrong," he added.

The care home closed in 2018, and residents were moved to other homes after a court application from the Care Inspectorate.

Three people were arrested but the Crown Office said the case was dealt with through an alternative to prosecution such as a warning, compensation order, or work order.

In its findings, the ECHR said the power to exclude the public from hearings requires "a compelling reason", and the importance of access to court proceedings for journalists is recognised by common law.

The court took the view that it would have been "practically impossible" for the media to take legal steps to prevent the sheriff's order to close the court on that occasion.

The sheriff later said she had been unaware journalists were present.

"I really think this is an important judgement," Duff said.

"Journalists, and indeed the public, should have as much access to the court system as possible and closed hearings should be the exception.

"This judgement at the ECHR reaffirms that."

BBC Scotland has been awarded costs.

Rosalind McInnes, legal director of BBC Scotland, said: "This decision shows that the court cannot shut out journalists without hearing them in advance.

"This is BBC Scotland's second victory in Strasbourg on open justice since 2010. Reporting the courts to the public remains hugely important to us as a public service broadcaster."