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Victory by The Guardian last week in a High Court battle to obtain court documents – witness statements and pleadings – after a case had ended was a victory not just for the newspaper, but for the media as a whole.
Recently there have been increasing problems in the courts over such access. Court procedures have been streamlined to speed up the judicial process. This has meant an increased volume of evidence previously given orally in open court is now presented to judges in written form to be read in private. The status of such evidence is the same as if it had been given orally.
There have already been a number of skirmishes in which journalists have had to argue against the views of litigants’ lawyers that they should not be allowed to see those documents.
One of the first cases in which the problem occurred was the Lloyds litigation where a reporter for Reuters asked for, and was refused, copies of witness statements given in evidence.
Previously the witness would have spoken that evidence in court. But now the witness has only to swear to the written statement’s accuracy and is then cross-examined on it. The media, faced with refusal of such statements, is then operating with one hand behind its back.
In the Lloyds’ case, after an open court application by the reporter concerned and opposition by counsel, the judge ruled that it was an open court and there should be open justice.
There have been similar incidents where sometimes documents have been made available, and sometimes they have not.
However, The Guardian ‘s victory is a land-mark ruling in favour of a freer flow of documentary information between the courts and the media. It provides a powerful weapon to be presented to courts in future. The documents the judge ordered to be made available came from a case which was over. Normally these sort of applications come during the currency of a case. As such this decision gives a clear indicator that even though a case may have finished, if the press takes an interest at a later stage it may still be possible to gain information after, rather than during, the event. It is a major breakthrough in court reporting.
Mr Justice Park in his judgment made clear justice should not only be done but should be seen to be done.
Having equated the press with the public he continued: “The public should not, by reason of modern practice, lose the ability to know the contents of witness statement evidence in chief, which they would have had under the earlier practice when evidence in chief was given orally.”
It had been argued that the statements sought by The Guardian last week should not be made available as the case had ended.
However, the judge said the relevant rules pleaded by The Guardian related to obtaining documents from the records of the court and, in his view, an application for documents could be made after a case had ended.
He said that in his view relevant documents included the pleadings in a case and witness statements.
Stressing that if the evidence in question had been given orally a transcript could have been obtained and The Guardian could then have had an opportunity to study it, he said: “It seems to me undesirable in principle that The Guardian should be deprived of that opportunity.”
Although The Guardian did not have a reporter attending court throughout the hearing he said: “It would be unreasonable for me to refuse to give The Guardian the order which it seeks on that account. A newspaper cannot realistically be expected to have reporters present at all times in all cases in which it is taking an interest. The fact that The Guardian did not have a reporter permanently in court does not in my view make any difference”
JUDGE BACKS PRESS ROLE IN SUPPORTING OPEN JUSTICE
This is an edited extract of Mr Justice Park’s judgment granting The Guardian access to the court files in the Chan v Alvis case.
“In many cases the courts have recognised the reality that the press has a vital role to play in making the values of open justice real and significant. It is an excellent thing that a member of the public can walk into any court room, watch the proceedings and listen to what is said.
“But for the public as a whole to be informed about important or interesting matters which are going on in the courts, the press is crucial.
“It is through the press identifying the newsworthy cases, keeping itself well informed about them and distilling them into stories or articles in the newspapers that the generality of the public secure the effects and the benefits of open justice.
“I am not suggesting that everything is always peace and light between the judges and the press but the judges know and have often said, that the press is critically important to public awareness and scrutiny of the way justice is administered.
By Roger Pearson