Information is knowledge, knowledge is power

21 January 2011 by

R (on the application of Guardian News and Media Limited) v City of Westminster Magistrates’ Court [2010] EWHC 3376 – Read judgment

The Guardian newspaper has failed to convince the High Court that it should be able to see  key documents in the trial of three men threatened with extradition to the United States on charges of corruption and bribery. The case highlights the finely balanced right to freedom of information.

Since the European Convention of Human Rights came into force in 1953, the scope of the rights contained within it has grown along with the jurisprudence it has given rise to. As times have changed, the Article 8 right to respect for private life has, for example, grown to encompass increased rights for both pre- and post-operative transsexuals. More recently, the Article 10 right to freedom of expression has also been said by the European Court of Human Rights to include a right to access certain kinds of information. The scope of human rights, like many legal definitions, appear to have a metastatic tendency. However, in a recent case involving Art 10 the High Court drew a line in the sand, at least as regards the limited sphere of access to court documents in extradition cases.

The Guardian newspaper had been covering the cases of Mr. Jeffrey Tesler and Mr. Wojciech Chodan since 2004. The United States government was seeking the extradition of these men based on their alleged involvement in high-profile corruption operations involving the bribery of Nigerian officials by subsidiaries of a well-known US company affiliated with former Vice-President Dick Cheney.

When District Judge Tubbs handed down judgment in those cases in the City of Westminster Magistrates’ Court, the Guardian applied for various documents, including skeleton arguments, correspondence and affidavits which had been relied upon and referred to during the extradition proceedings. However, on 20 April 2010 the judge refused to permit the disclosure of those documents to the Guardian, which subsequently challenged the decision by way of appeal and judicial review.

In the High Court the Guardian emphasised its role as a media watchdog, and highlighted the public interest in various aspects of the proceedings, such as the substantive bribery allegations in themselves, and the extradition relationship between the UK and the USA. It noted that without such documents it was difficult to report on such cases, since in extradition proceedings great reliance is placed on written material which is not heard before a jury, nor referred to in oral argument.

In essence its legal argument had two main strands. As a matter of common law it argued that the principle of open justice required that in criminal cases, all evidence communicated to the court should be available for inspection by the press if it could justify such inspection, and that nothing should be done to frustrate the publication to a wider public of fair and accurate reports of proceedings.

This linked in with its second main argument, which was based upon Art 10 of the ECHR. The Guardian argued that because it was seeking the information for the purpose of disseminating it more widely in the public interest, its Art 10 rights were engaged. The basic idea is that in order to facilitate free expression, you logically also need to facilitate the sharing and receipt of information upon which such expression is based. On this basis, pursuant to section 3 of the Human Rights Act 1998, the Guardian argued that any relevant Criminal Procedure Rules touching upon the availability of court documents had to be interpreted in a way compatible with its rights of inspection.

The High Court accepted that the press, as a social watchdog, has enhanced rights under Article 10 when compared with private individuals, and noted the recent case of Tarsasag a Szabadsagjogokert v Hungary, in which the European Court acknowledged that it had “more recently advanced towards a broader interpretation of the notion of ‘the freedom to receive information’…and thereby towards the recognition of a right of access to information”. This was particularly so in cases where the press was denied access to information.

Nevertheless, the High Court concluded that the the Art 10 rights of the Guardian were not engaged in this case:

We do not consider that there is any basis or any justification for extending the Article 10 rights of the Guardian so as to entitle it to inspect additional documents merely because its journalists have a genuine concern to see them.

It said that the existing cases would only have been of assistance to the Guardian if it had been denied details of the claim involved in the extradition proceedings, or denied access to attend. There was no authority which indicated that it should be allowed access to written materials of the type requested, and to extend the scope of Article 10 in this way would mean that the Guardian could inspect documents which had been produced for proceedings even when they had not been relied on and had been produced purely or the purpose of the proceedings. The court was of the view that “such an extension could not be justified”.

It then concluded that the common law did not avail the Guardian either. Although the principle of open justice entails that the fair and accurate reporting of court proceedings is not to be prevented, the case of R v Waterfield [1975] 1 WLR 711 established that there is a distinction between oral evidence, and written evidence as exhibits – members of the public had a right to hear the former (including written material which had been treated as if it was presented orally), but no right to see the latter. This principle was applied to the press in R v Crook (1991) 93 Cr App R (2) 37 in the Court of Appeal.

It is easy to understand the logic of the argument that a right to freedom of expression entails a right to receive information. Not all expression is provoked by spontaneous inspiration. Indeed, the release and provision of information is an important part of the very concept of discourse. Nevertheless, on the law as it stands, there is a distinction to be drawn between a right to receive information, and a right to access information. In Tarsasag, the Court said at paragraph 26 of its judgment:

The Court has consistently recognised that the public has a right to receive information of general interest. Its case-law in this field has been developed in relation to press freedom which serves to impart information and ideas on such matters… In this connection, the most careful scrutiny on the part of the Court is called for when the measures taken by the national authority are capable of discouraging the participation of the press, one of society’s “watchdogs”, in the public debate on matters of legitimate public concern.

However,  this general right to receive information does not entail a general right to receive information in the absence of a willingness on the part of those holding the information to release it; this would be tantamount to a general right of access which the  European Court has persistently declined to recognise (see para. 36 of the judgment of Lord Justice Buxton in R v Bow County Court, ex p Pelling [2001] 1 UKHRR 165). As recently as January 2010, Lord Rodger stated in In re Guardian News and Media Limited [2010] 2 WLR 325 that on the existing Strasbourg case law, a right to obtain any information which would not be otherwise available to a person “is not within the scope of Article 10(1)”.

The judgment of the court in the Tarsasag case may soften the ground for further expansion of Art 10, but the High Court was right to proceed on the basis that it did not definitively establish a general right of access to official information. Rather than holding that the government was required to facilitate access to all documentation in which there was a public interest, the European Court only went so far as to require it to allow the press access to information about the nature of a complaint. The political legislative and administrative implications of asserting a more general right would be immense, and so it may be appropriate that the courts confine themselves to an incremental approach, or leave the scope of such a right to be determined through the political choices made in legislation such as the Freedom of Information Act 2000.

In this respect, the Deputy Prime Minister recently made clear the intention of the Coalition Government to expand the scope of that legislation to cover “potentially hundreds more bodies”. After all, he said, “information is knowledge, and knowledge is power”.

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