Strasbourg Cannot Restore the Hearing Scotland Closed

A Strasbourg committee ruled on 13 October 2026 that shutting a BBC journalist out of Aberdeen Sheriff Court in 2018 broke Article 10. It also found no effective way to challenge that closure before the room was cleared.

The hearing itself cannot be put back. What the court restored is a rule for the next sheriff who is asked to send the press away, and Scottish officials still have not said they will build that step.

The Quiet Settlement Strasbourg Would Not Accept

The case is Duff and BBC Scotland v the United Kingdom, application 8562/19, lodged on 6 February 2019. Steven Duff, an Aberdeen journalist born in 1975, and his employer asked the European Court of Human Rights to look at a closed sitting on 10 August 2018.

A three-judge committee of the Second Section deliberated on 22 September 2026 and notified its unanimous Strasbourg committee judgment on 13 October 2026. The judgment is final, subject only to editorial revision. The United Kingdom had asked the court to dispose of the file on a private settlement. The committee refused that offer and gave reasons in public.

THE STRASBOURG ORDER

• Two breaches: Article 10 on freedom of expression, and Article 13 taken with Article 10 on the lack of an effective remedy.
• Costs: EUR 25,000 jointly, plus any tax, to be converted into sterling, with three months to pay from 13 October 2026.
• Damages: none. Duff and BBC Scotland had claimed EUR 10,000 each; the finding of a breach was held enough.
• The refused bill: they had also claimed GBP 64,240.50, exclusive of tax, in costs. The court called that excessive and substituted EUR 25,000.

Rosalind McInnes, legal director of BBC Scotland, who acted in the case, said the decision shows that a court cannot shut out journalists without hearing them in advance. She called it BBC Scotland’s second Strasbourg win on open justice since 2010.

Nobody on the Public Benches Was Counted

Duff was the only journalist in court that morning, following a Care Inspectorate move against Muirhead Care Home in Alford, named in the Strasbourg papers as The Lawson Muirhead Home. Counsel for the operator asked for a private hearing. The regulator did not object. The sheriff granted the request and the room was cleared.

Duff said he was surprised the bid came at all, and more surprised that nobody opposed it. The operator’s lawyer had spoken of vulnerable people and commercial interests. “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. “I knew immediately it was wrong.”

The written order said the court was closed to the public and the press because the sitting was an interim hearing and because it related to vulnerable adults. That is the sheriff’s order closing the court, as later set out in the 2019 statement of facts. After the sitting, the sheriff suspended the home’s registration.

Duff then tried to find out what had been said. The only person left in the room was an employee of the party that had asked for the doors to shut. That person gave him nothing. Court officers gave him nothing. The lawyers gave him nothing. The morning’s evidence stayed inside the room.

She had not been aware that there were members of the press in attendance when the application had been made to her for an order to close the court, and had not noticed whether anyone was present on the public benches in the court; she had not made any enquiry about whether members of the press were present and had no recollection of objections being made by any person; and at the time of the hearing the first applicant was not a person she would have recognised.

The sheriff’s later account to the United Kingdom government, recorded in Duff and BBC Scotland v the United Kingdom

On 15 August 2018 BBC Scotland applied under the 1999 Act of Sederunt rules that let a person challenge a reporting restriction. At a hearing the next day the sheriff said she had made no reporting ban, so the application was unnecessary. The closure, she said, had applied only to 10 August 2018. By then the evidence from that morning was already gone.

What the Closed Hearing Was For

The Care Inspectorate, the statutory regulator also known as Social Care and Social Work Improvement Scotland, had gone to Aberdeen Sheriff Court after a July 2018 spot inspection. It wanted the home’s registration cancelled and its licence suspended in the meantime. Karen Reid, then the inspectorate’s chief executive, described what inspectors said they found.

THE CARE INSPECTORATE FINDINGS

• Restraint: Inspectors said they saw evidence of vulnerable people tied to chairs with belts, which Reid called extremely dangerous and unacceptable.
• Food and medicine: Residents were not getting enough food, and some were not given essential medicines.
• Staffing: There were not enough staff to help people who needed support, and inspectors found little grasp of why that was wrong.
• Scale: The home was looking after 35 residents when the inspectorate went to court.

Duff called it an issue of obvious public interest. The Strasbourg court later treated the press as a public watchdog on exactly that kind of case, and held that once a reporter is put out of the room, no later ruling can restore the chance to report what was said.

Scots law already said open justice is the rule. The committee traced that line to the Court of Session Act 1693, to Scott v Scott in 1913, and to a 2019 Court of Session judgment, MH v Mental Health Tribunal for Scotland, which said the media should be excluded only in the rarest of circumstances. A sheriff has inherent power to regulate the courtroom. The committee found this sheriff did not weigh those rules at all.

Muirhead Shut Before the Evidence Was Heard

The public learned the inspectorate’s allegations from statements after the sitting, not from anyone who had watched the evidence tested. The home was ordered not to operate after 31 August 2018. Residents were moved. In September 2018 the operator went into liquidation. Joint liquidator Iain Fraser of FRP Advisory said all 82 staff had been made redundant.

FROM THE INSPECTION TO STRASBOURG

1. July 2018: Care Inspectorate inspectors carry out a spot inspection at Muirhead Care Home near Alford.
2. 10 August 2018: Aberdeen Sheriff Court sits in private, asks Duff to leave, and suspends the home’s registration.
3. 15-16 August 2018: BBC Scotland seeks to revoke the closure order; the sheriff says no reporting ban was made.
4. 31 August 2018: The home must stop operating. Residents are moved to other homes.
5. September 2018: The operator goes into liquidation and 82 staff are made redundant.
6. December 2018: Police Scotland arrest three people after inquiries into residents’ welfare.
7. 6 February 2019: Duff and BBC Scotland lodge application 8562/19 in Strasbourg.
8. 28 September 2021: The Crown Office says the case was dealt with by an alternative to prosecution.
9. 13 October 2026: The European Court of Human Rights notifies the judgment.

The Crown Office said the procurator fiscal received a report concerning a 79-year-old man and two women, aged 78 and 57, over alleged incidents between 7 September 2015 and 31 August 2018. After considering the facts, prosecutors offered an alternative to prosecution, which can mean a warning, a compensation order, or a work order. Nobody was tried. The closed sitting of 10 August 2018 was never rerun in public, so the evidential hearing that had drawn a reporter to court still has no public record. Even as the Strasbourg holding moved around, the first question it met was what that morning had actually been about.

After Mackay, Only Reporting Bans Were Patched

McInnes was right that this was a second trip to Strasbourg. The first was the 2010 Mackay and BBC Scotland judgment, application 10734/05, notified on 7 December 2010 and final on 7 March 2011. Alan Mackay, then a BBC Scotland journalist, had been stopped from reporting a 2004 drugs trial under section 4(2) of the Contempt of Court Act 1981, and had no proper way to challenge the order in time.

TWO STRASBOURG DEFEATS ON OPEN JUSTICE

The Committee of Ministers later closed the Mackay file after the 2011 criminal court rule change, the Act of Adjournal that amended Chapter 56 of the criminal rules so the media could challenge a reporting ban. That patch never reached a different tool, the sheriff’s power to clear the court. In Duff, the applicants said the reporting-restriction procedure should be extended to closures. The United Kingdom said that would be impractical and unnecessary, and would stop a court running its list.

Why a Court of Session Petition Could Not Arrive in Time

The government’s main defence was not that the sheriff had been entitled to clear the room. It conceded the order interfered with Article 10, and that the interference was not lawful because the sheriff had failed to apply the law in this case. The fight was over remedy. London said Duff should have petitioned the Court of Session for judicial review, and asked for an interim order to stop the 10 August 2018 sitting.

The committee rejected that. Scots law, it noted, gives the media no legal right to make submissions when a party asks for a private hearing. Judicial review after the event could not repair a report that had already been lost. The government itself accepted that getting an interim order from the Court of Session in time was highly unlikely. A remedy that cannot bear fruit in time, the committee said, is not an effective remedy.

That is the holding that outlives Muirhead. Article 10 in this case is about a morning in 2018. Article 13 is about what a sheriff must now be able to hear before the public benches are emptied. The committee said an effective remedy meant the chance to make submissions on the request to close the court, and to get a ruling, before the hearing itself took place.

No Right to Be Heard Before the Doors Close

A Judicial Office for Scotland spokesperson said the office noted the ruling, called the case historic, and said much has changed in the eight years since. Restrictions on the press, the spokesperson said, are rare and used only where the interests of justice demand it or statute requires it. The Scottish justice system, the statement added, has a longstanding commitment to open justice.

A Scottish Government spokesperson said the government noted the judgment on a judicial decision taken in 2018, recognised the importance of open justice and freedom of expression, and would consider the Strasbourg decision carefully with the Scottish court authorities for any ongoing implications. Judicial decision-making, the spokesperson said, is a matter for the independent judiciary.

Those lines sit beside the argument the same government ran in Strasbourg, that a prior-hearing procedure for closures would get in the way of court business. After Mackay, ministers and the courts did change the criminal rules on reporting bans. They have not said they will write an equivalent step for a sheriff who is asked, on the morning, to send the only journalist in the building out of the room.

Duff put the point more plainly. Journalists and the public, he said, should have as much access to the court system as possible, and closed hearings should be the exception. The 10 August 2018 evidence is still not on the record. The United Kingdom has three months from 13 October 2026 to pay EUR 25,000. The next closed sheriff court is the one this judgment can actually reach.