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Public access to documents in criminal cases

11 January 2011. Published by Keith Mathieson, Partner

The Administrative Court has upheld the decision of a district judge to refuse the press access to documents placed before a magistrates court in connection with extradition proceedings:

R (on the application of Guardian News & Media) v City of Westminster Magistrates Court [2010] EWHC 3376.

The case concerned the attempted extradition to the US of two men alleged to have been involved in the bribery of Nigerian officials.  During the hearings in the magistrates court, various documents were handed to the judge.  These included correspondence, skeleton arguments and witness statements.  The Guardian asked the judge to order that the documents should be disclosed to its reporters.  The judge declined to do so on the basis that, among other things, there was no legal principle that members of the press or public were entitled to be provided with documents relied upon in open court proceedings.  The judge ruled that "all the issues relied on were fully set out in the oral submissions in open court" by Counsel.

The Administrative Court held that there were six reasons why the judge had been right not to order disclosure:

    1. The principle of open justice in criminal proceedings does not extend to a right for the public or press to inspect documents placed before the court: see Waterfield [1975] 1 WLR 711.
    2. No case had been cited that undermined or qualified the reasoning in Waterfield.
    3. It is a reasonable inference that the draftsmen of the Criminal Procedure Rules 2010 were aware of Waterfield and, by making no change to the law, intended that Waterfield should remain in force.
    4. The Criminal Procedure Rules 2010 give no right of inspection to documents (in contrast to the CPR).
    5. The Freedom of Information Act 2000 could not be used to obtain the documents.  That statute contains checks and balances and no good reason had been advanced as to why those checks and balances should be overridden by the common law or Article 10.
    6. The court had no inherent jurisdiction to order disclosure.

See further section 10.5 of the Privacy Law Handbook