Access to Documents in Criminal Proceedings – Guardian Challenge Secures Change

03 April 2012. Published by Keith Mathieson, Partner

The Court of Appeal has ruled that where documents have been placed before a judge and referred to in the course of open proceedings, the default position should be that access should be permitted on the open justice principle.

Where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.

According to Lord Justice Toulson, the decision "breaks new ground in the application of the principle of open justice".

The Court recognised that there may be persuasive countervailing arguments against providing access to some documents.  For this reason the Court did not think it sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application.  In each case a fact-specific proportionality exercise will have to be conducted. 

Central to the evaluation will 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 may have to the legitimate interest of others, for example vulnerable children, where there seems no obvious public-interest reason in publicity.

The decision, handed down this morning, concerned an application by Guardian News and Media Limited for access to documents referred to in extradition proceedings brought by the Government of the United States.

The question to be determined by the Court of Appeal was whether the District Judge, who made two extradition orders on the application of the US Government in early 2010, had power to allow the Guardian access to documents which were supplied to the judge, referred to during the course of the hearings but not read out in open court. The documents include affidavits or witness statements, written arguments, and correspondence between the Department of Justice and the Serious Fraud Office. The application was initially made by the Guardian in the course of the extradition hearings. The District Judge refused the application on the grounds that she had no power to allow it and her decision was upheld on appeal by the Administrative Court.

In an unanimous decision the Court of Appeal ruled that public access to documents referred to in open court is necessary in some cases in order to satisfy the constitutional principle of open justice.

According to the decision the principle of open justice is not necessarily satisfied by the holding of proceedings in public. It is wider. It is to enable the public to understand and to scrutinise the justice system of which the courts are its administrators.  The fact that the issues were ventilated fully in open court does not preclude access to the documents.

On the merits of the Guardian's application the Court of Appeal found that the Guardian had a serious journalistic purpose in seeking access to documents. Its evidence was that it wants to be able to refer to the documents for the purpose of stimulating informed debate about the way in which the justice system deals with suspected international corruption and the system of extradition of British subjects to the USA. As a matter of public interest the courts should assist and not impede such an exercise. The public should be informed and is more likely to be engaged by an article which focuses on the facts of a particular case than by a more general discussion.

The evidence before the Court was that the Guardian was hampered in its ability to report as fully as it would have wished. That being the case Lord Justice Toulson considered that courts should be cautious about making an editorial judgment about the adequacy of material already available to a paper for its journalistic purpose.

The decision is based on the common law principle of open justice, and not on Article 10 jurisprudence. As the application was decided as a matter of constitutional principle this important development will not be constrained by the limitations of Article 10. In any event Lord Justice Toulson was of the view that it was not entirely clear that the application, on its facts, would have benefitted from developments in Article 10 jurisprudence on access to information.

The Court of Appeal was persuaded by the decisions of other common law countries where the principle of access to documents referred to in legal proceedings has been established previously.  In a helpful intervention from Article 19 the Court was referred to developments in Canada, New Zealand, South Africa and the United States. In the United States the Federal Courts have recognised a presumption favouring access to "judicial documents" at common law.  Had this matter been before a US court that presumption would have applied in favour of disclosure of the documentary evidence admitted at the extradition hearing.

The application by the Guardian pre-dates the 2011 amendment to the Criminal Procedure Rules. These Rules introduced at Rule 5.8 a procedure for the supply of information about a case to the public.  As such the 2011 Rules were not directly relevant to the application and were not argued before the Court. However the two concurring judges, Lord Justice Hooper and The Master of the Rolls, took the opportunity to clarify the scope of Rule 5.8 of the 2011 Criminal Procedure Rules which is headed "Supply to the Public including reporters of information about a case".

Lord Justice Hooper concluded that rules as now drafted give the court the necessary power to make an order of the kind ought by the Guardian (this question was left open by the Master of the Rolls). Both Lord Justice Hooper and the Master of the Rolls agreed that the words "a document … containing information about the case" in Rule 5.8(7)(b) should not be interpreted narrowly. It includes written statements made by witnesses and any exhibits.

A copy of the decision is accessible here: The Queen on the Application of Guardian News and Media Limited v City of Westminster Magistrates' Court and the Government of the United States of America

Brid Jordan of RPC acted for Guardian News and Media Limited.

(Originally blogged by Bríd Jordan)

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