Practice and Procedure

Criminal law

PUBLISHED April 19, 2012

Proceedings - Extradition proceedings - Court of Appeal - Jurisdiction

R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court: CA (Civ Div) (Master of the Rolls Lord Neuberger of Abbotsbury, Lord Justices Hooper, Toulson): 3 April 2012

The US government, the interested party in the instant proceedings, sought the extradition of two British citizens, T and C, to that jurisdiction from the UK.

The application regarding T was heard over a five-day period, that regarding C was heard over the course of one day. Both applications were conducted wholly in open court. T and C were both ordered to be extradited. Prior to judgment being delivered, the claimant national newspaper wrote to the court and asked to be provided with copies of various documents which had been referred to during the course of the extradition proceedings, including counsel's skeleton arguments, affidavits and witness statements and correspondence between the Serious Fraud Office and the US Department of Justice. The district judge held that the court did not have the power to direct the provision of the documents requested and dismissed the claimant's application. In giving her judgment she acknowledged the importance of the principle of open justice, emphasised that the public and press had not been excluded from any part of the proceedings and that all the issues relied upon by the parties had been fully set out in oral submissions in open court.

Further, she noted that written copies of her judgment, which had set out the reasons for the extradition orders, had been made available to any member of the press or public who had requested them. The claimant applied for judicial review of that decision, contending that the judge had been wrong to hold that she had not had the power to allow the application when, at common law, a magistrates' court had power to regulate its own procedure and that the common law principle of open justice had been bolstered by article 10 of the European Convention on Human Rights.

The Divisional Court dismissed the claimant's application. It held that: (i) it was settled law that the principle of open justice in criminal proceedings did not extend to a right for the public or the press to inspect documents or other exhibits placed before the court; (ii) no case had been cited which undermined or qualified that established principle; (iii) those responsible for the Criminal Procedure Rules 2010, SI 2010/60, which had been in force at the relevant time, had to have been aware of the settled law but had not taken steps to reverse or qualify it and so it could be inferred that they had intended that law to remain as it had stood; (iv) by contrast with the Civil Procedure Rules, there had been no provisions in the Criminal Procedure Rules 2010 that gave any right of inspection of written evidence; (v) the Freedom of Information Act 2000 (the 2000 act) could not be used to obtain the documents that had been sought by the claimant because the 2000 act contained a number of checks and balances, and no good reason had been shown why such checks and balances should be overridden by the common law and/or article 10 of the convention; and (vi) reference to the inherent jurisdiction of the court did not assist, especially since section 32(1) of the 2000 act expressly exempted a public authority from any obligation to produce a document placed in the custody of a court for the purpose of proceedings in a particular matter.

The claimant sought permission to appeal that decision. In granting permission, the Court of Appeal, Civil Division, held that it had jurisdiction to entertain the appeal notwithstanding section 18(1) of the Senior Courts Act 1981 (the 1981 act), which provides that no appeal shall lie to the Court of Appeal in relation to the types of case therein specified, which include '(a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal case or matter'. The Court of Appeal held that the claimant's application had been wholly collateral to the extradition proceedings ([2011] All ER (D) 207 (Oct)). The instant proceedings concerned the claimant's appeal.

It submitted that the Divisional Court had erred. The court was also asked to consider whether there were any implications arising from the Court of Appeal's decision in respect of section 18(1)(a) of the 1981 act. Consideration was given to sections 68 and 69 of the Courts Act 2003 (the 2003 act). The appeal would be allowed.

(1) In a case where documents had been placed before a judge and referred to in the course of proceedings, the default position should be that access should be permitted on the open justice principle. Where access was sought for a proper journalistic purpose, the case for allowing it would be particularly strong. However, there might be countervailing reasons, but 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 proportionality exercise which would be fact-specific. 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 access to the documents might cause to the legitimate interests of others (see [85], [92], [109] of the judgment).

In the instant case, the claimant had put forward good reasons for having access to the documents which it had sought. There had been no suggestion that it would have given rise to any risk of harm to any other party, nor would it have placed any great burden on the court. On the application of the common law principle of open justice, the claimant's application for access to the documents would be allowed (see [87], [88], [91], [92], [109] of the judgment).

(2) The words 'criminal cause or matter' had to have a different meaning in section 68 of the 2003 act than they did in section 18(1) of the 1981 act. To give those words in section 68 of the 2003 act a narrow meaning would lead to the undesirable result that issues such as those dealt with in the Criminal Procedure Rules would have to be the subject of rule-making by some other body. That could not have been the intention of parliament (see [106], [110] of the judgment). Decision of Divisional Court [2011] 3 All ER 38 reversed.

Gavin Millar QC and Adam Wolanski (instructed by Reynolds Porter Chamberlain) for the claimant; the defendant did not appear and was not represented; David Perry QC and Melanie Cumberland (instructed by the Crown Prosecution Service) for the US government as interested party; Heather Rogers QC and Ben Silverstone (instructed by Leigh Day & Co) for article 19 as intervening party.M