The principle of open justice means that The Guardian should be given access to documents referred to in court during extradition hearings involving two British citizens wanted by the authorities in the United States, the Court of Appeal held today.
The decision overturned earlier rulings by District Judge Caroline Tubbs at Westminster Magistrates’ Court, and then by the Divisional Court, that the newspaper was not entitled to access to documents which were referred to in open court but not read out.
The ruling marks a major step forward in the right of the press and public to have access to documents submitted to courts.
The Guardian had sought access to opening notes and skeleton arguments submitted by counsel for the US authorities, skeleton arguments submitted on behalf of the defendants, London-based solicitor Geoffrey Tesler and businessman Wojciech Chodan, as well as affidavits or witness statements submitted by prosecutors for the US Department of Justice, and various correspondence.
District Judge Tubbs held when she rejected The Guardian’s original application that it was sufficient that the extradition hearings were in open court, with no restrictions on reporting, that the court did not have the power to direct that the documents should be provided, adding that allowing such access would create serious problems.
The newspaper sought Judicial Review and the Divisional Court – Lord Justice Sullivan and Mr Justice Silber – agreed with the District Judge’s conclusions.
The Guardian appealed against that decision, with the Divisional Court’s consent.
Lord Justice Toulson, delivering the leading judgment in the Court of Appeal, started his ruling by saying: “Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law.”
He added: “While the broad principle and its objective are unquestionable, its practical application may need reconsideration from time to time to take account of changes in the way that society and the courts work.”
He said Gavin Millar QC, for The Guardian, had argued that the court had the power to allow a witness to give evidence in public while allowing him to keep his identity secret.
In the extradition case, the District Judge could have required the relevant documents to have been read in court – and must therefore have an inherent power to achieve the same objective by allowing the newspaper access to the relevant papers.
Case law on the right of the media to access to evidence did not preclude a court allowing the media access to evidence considered at an extradition hearing and referred to in open court.
Millar also argued that the newspaper’s position was supported by decisions of the European Court of Human Rights in relation to Article 10 of the European Convention, guaranteeing the right to freedom of speech.
Lord Justice Toulson said Heather Rogers QC, for human rights and freedom of expression group Article 19, which was allowed to intervene in the appeal, had produced “a helpful and interesting survey of the approach which has been taken by courts in other common law countries”.
He went on: “The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.”
Broadly speaking, the requirements of open justice applied to all tribunals exercising the judicial power of the state.
‘Serious journalistic purpose’
Lord Justice Toulson said: “I turn to the critical question of the merits of the Guardian’s application. The application is for access to documents which were placed before the District Judge and referred to in the course of the extradition hearings.
“The practice of introducing documents for the judge’s consideration in that way, without reading them fully in open court, has become commonplace in civil and, to a lesser extent, in criminal proceedings.
“The Guardian has a serious journalistic purpose in seeking access to the documents. It wants to be able to refer to them for the purpose of stimulating informed debate about the way in which the justice system deals with suspected international corruption and the system for extradition of British subjects to the USA.
“Unless some strong contrary argument can be made out, the courts should assist rather than impede such an exercise.
“The reasons are not difficult to state. The way in which the justice system addresses international corruption and the operation of the Extradition Act are matters of public interest about which it is right that the public should be informed.
“The public is more likely to be engaged by an article which focuses on the facts of a particular case than by a more general or abstract discussion.”
The four main arguments against allowing the newspaper access to the documents, he said, were that holding proceedings in public and allowing reporting had satisfied the open justice principle; that allowing the application would be to go further than the courts had considered necessary in the past; that in this case the issues raised in the extradition proceedings were ventilated very fully in open court, and there was no need for the press to have access to the documents sought for the purpose of reporting them; and that allowing the application would create a precedent which would give rise to serious practical problems.
Lord Justice Toulson said: “The first objection is based on too narrow a view of the purpose of the open justice principle. The purpose is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators.
“The second objection is correct but not of itself decisive. The practice of the courts is not frozen.”
The time had come for the court to acknowledge that in some cases it was necessary to allow public access to documents referred to in open court, said Lord Justice Toulson.
“It is true that there are possible alternative measures,” he added. “A court may require a document to be read in open court, but it is not desirable that a court should have to take this course simply to achieve the purpose of open justice.
“A court may also declare that a document is to be treated as if read in open court, but that is merely a formal device for the exercise of a power to allow access to the document.
“I do not see why the use of such a formula should be required. It may have the advantage of ensuring that other parties have an opportunity to comment, but that can equally be achieved if, in a case such as the present, the applicant is required to notify the parties to the litigation of the application.”
He was, he said, “not impressed” by the fourth objection, based on practical problems it was said would arise if the Guardian’s application were to succeed.