Open justice requires acces to court papers

Court of Appeal

Published July 12, 2012

Regina (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court and Another

Before Lord Neuberger of Abbotsbury, Master of the Rolls, Lord Justice Hooper and Lord Justice Toulson

Judgment April 3, 2012

On the basis of the open justice principle, access should generally be permitted to documents which had been placed before a judge and referred to in the course of court proceedings. The case for allowing access would be particularly strong where access was sought for a proper journalistic purpose.

If there were grounds of opposition to the application for disclosure the court would undertake a fact-specific proportionality exercise.

The Court of Appeal so held, allowing the appeal of the claimant, Guardian News and Media Ltd, against the decision of the Divisional Court of the Queen’s Bench Division (Lord Justice Sullivan and Mr Justice Silber) ([2011] 1 WLR 1173) not to grant judicial review of the refusal of District Judge Tubbs at the City of Westminster Magistrates’ Court on April 20, 2010, to order disclosure of documents referred to in extradition proceedings brought by the Government of the United States of America against two British citizens, Jeffrey Tesler and Wojciech Chodan.

Mr Gavin Millar, QC and Mr Adam Wolanski for the claimant; Mr David Perry, QC and Ms Melanie Cumberland for the Government of the United States of America, an interested party; Ms Heather Rogers, QC and Mr Ben Silverstone for Article 19, intervening. The City of Westminster Magistrates’ Court, did not appear and was not represented.

LORD JUSTICE TOULSON said that the courts had an inherent jurisdiction to determine how the open justice principle should be applied. Broadly speaking, it applied to all tribunals which exercised the judicial power of the state.

Although the sovereignty of Parliament meant that the courts’ responsibility for determining the scope of the principle might be affected by a statute, Parliament ought not to be taken to have legislated so as to limit or control the way in which the court decided such questions unless the language of the statute made it plain beyond possible doubt that that was what Parliament had intended.

It would be quite wrong to infer that by excluding court documents from the Freedom of Information Act 2000 Parliament thereby intended to preclude the court from granting a non-party access to such documents if the court considered access to be proper under the open justice principle. The Administrative Court had approached the issue from the wrong direction.

The question was whether the 2000 Act demonstrated unequivocally an intention to preclude the courts from determining how the open justice principle should be applied in a particular case. The provisions of the Criminal Procedure Rules were similarly not relevant to the central issue.

The critical question was the merits of the claimant’s application. It was for access to documents placed before the district judge and referred to in the course of the extradition hearings.

The practice of introducing documents in that way for the judge’s consideration, without reading them fully in open court, had become commonplace in civil and, to a lesser extent, in criminal proceedings.

The claimant had a serious journalistic purpose in seeking access to the documents. It wanted to be able to refer to them in order to stimulate informed debate about the manner in which the justice system dealt with suspected international corruption and the system for extraditing British subjects to the USA. The courts should assist rather than impede such an exercise unless some strong contrary arguments could be made out.

The way in which the justice system addressed international corruption and the operation of the Extradition Act 2003 were matters of public interest about which it was right for the public to be informed. The public was more likely to be engaged by an article focusing on the facts of a particular decision than by a more general or abstract discussion.

After listing the four counter-arguments his Lordship rejected each of them. They were: that the open justice principle was satisfied where the proceedings were held in public and their reporting was permitted; that allowing the claimant’s application would go further than the courts had in the past considered necessary; that as the issues raised in the extradition proceedings had been ventilated very fully in open court, there was no need for the press to have access to the documents for reporting; and that to allow the application would create a precedent which would lead to serious practical problems.

In a case where documents had been put before a judge and referred to in the course of proceedings, in his Lordship’s judgment the default position should be that access should be permitted on the open justice principle; and if access was sought for a proper journalistic purpose, the case for allowing it would be particularly strong.

There might, however, be countervailing reasons. It was not sensible or practical to look for a standard formula for determining how strong the grounds of opposition needed to be in order to outweigh the merits of the application. The court had to carry out a fact-specific proportionality exercise.

Central to the court’s evaluation would be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which might be caused to the legitimate interests of others by access to the documents.

The claimant had put forward good reasons for having access to the documents it sought. There had been no suggestion that access would give rise to any risk of harm to any other party, nor that it would place any great burden on the court. Accordingly the claimant’s application should be allowed.

The common law principle of open justice was the basis of his Lordship’s decision, not article 10 of the European Convention on Human Rights. The decision was ground-breaking on the application of the principle of open justice.

Lord Justice Hooper and the Master of the Rolls delivered concurring judgments.