Common-law open justice lets in the light; Strasbourg not the key

10 April 2012 by David Hart KC

R (o.t.a Guardian Newspapers) v. City of Westminster Magistrates Court, USA as Interested Party, 3 April 2012, Court of Appeal: read judgment

No, not a case about secret trials, but about the way in which newspapers can get hold of court papers in open oral hearings. And, as we shall see, it led to a ringing endorsement of the principle of open justice from the Court of Appeal, leading to production of the documents to the Guardian.

Bribery allegations against a London solicitor and a former executive of a Halliburton company, and extradition sought by the USA and keenly challenged by the defendants. Some lack of clarity as to why the Serious Fraud Office was not prosecuting the defendants. All in all, a tasty morsel for the Guardian to get its teeth into. It was allowed into the hearing,  but then not allowed critical documents provided to the courts, including the written arguments submitted by the USA and the defendants, affidavits supporting the extradition, and various other letters and documents put before the court.

Why not?

The District Judge hearing the extradition applications refused the Guardian’s application. She said she was bound by the law to do so, and she did not have the power to provide the documents. The Divisional Court who heard the Guardian’s initial challenge agreed. But the Court of Appeal disagreed.

The District Judge added that all the issues had been canvassed openly in court, and that there were practical problems in providing the media or anyone else with photocopies of hundreds of pages of documents.

I read this part of her judgment with increasing surprise, particularly with regard to the provision of the written arguments of the parties. Quite why this problem could not be overcome by the documents being posted on a website or provided in electronic form at court is not entirely clear: compare the massive archives of material which sit on Council planning websites throughout the planning process. On a more modest level, anyone who has appeared regularly in the Queen’s Bench Division over the last 15 years will have known the polite request from the newspaper or agency reporters for the written arguments of the parties, and will have readily provided the documents to the reporters except in a case where there was some confidential issue or an issue affecting children. Many of these cases are of limited interest other than to the parties, by contrast with the highly topical and controversial cases in question involving extradition, particularly to the USA.

The other element of my surprise arose out of her assumption that the oral arguments of counsel can be fully evaluated and reported upon without the media seeing the written arguments placed before the Court and the evidence referred to in those arguments. One of the main reasons for written arguments is to make hearings go more quickly, and hearings go more quickly because the advocates in general do not read out great passages of their arguments or the evidence. Trying to follow the net result is all very well for the judge and the other parties, but not for the media following it without the advocates’ scripts.

As noted above, the Divisional Court said that the District Judge was right, founding on a cased decided in the mid-1970s, Waterfield, about the media being excluded from the court during the showing of a pornographic film the subject of the proceedings. The Court of Appeal, unsurprisingly, thought that Waterfield was not on point.

Looking at the principle of the case, the Court of Appeal thought that there were powerful reasons for making the material available. In his first paragraph, Toulson LJ said this:

Open justice.  The words express a principle at the heart of our system of justice and vital to the rule of law.  The rule of law is a fine concept but fine words butter no parsnips.  How is the rule of law itself to be policed?  It is an age old question.  Quis custodiet ipsos custodes – who will guard the guards themselves?   In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process.  Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.  Jeremy Bentham said in a well known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 407, 477:

“Publicity is the very soul of justice.  It is the keenest spur to exertion and the surest of all guards against improbity.  It keeps the judge himself while trying under trial.”

Words written by the great philosopher whose mummified body is shown in the image heading this post.

Toulson LJ and the Court reached their conclusion after a consideration of Article 10, and the freedom to receive and impart information which forms part of that right. But they were little swayed by the Strasbourg cases such as Tarsasag relied upon. They found more help in the common law, and indeed in the decisions of courts of other common-law jurisdictions, such as Canada, New Zealand, South Africa, and, ironically, the USA (whose government was advancing the arguments opposing access to the documents). As Toulson LJ explained at [88]

I base my decision on the common law principle of open justice.  In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred.  Collectively they are strong persuasive authority.  The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common.  I regret the imbalance.  The development of the common law did not come to an end on the passing of the Human Rights Act.  It is in vigorous health and flourishing in many parts of the world which share a common legal tradition.  This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.

So a firm hint there that the domestic courts may find more help in the common-law traditions, than in many of the Strasbourg decisions seeking to analyse legal problems which arise in markedly different circumstances and contexts than those facing common-law courts. As Toulson LJ concluded at [89]

Some of the observations by the Strasbourg court may be said to support the reasoning behind my decision, but I base the decision on the common law and not on article 10.

Other things of note. Court documents are excluded from production by s.32 of the Freedom of Information Act, and this was relied upon in opposition to the application. Toulson LJ said that this was irrelevant. Indeed, more generally, Parliament should not be taken to have legislated to limit or control the way in which the court decides a question affecting openness, unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention [73].

Secondly, the ruling noted the fact that there is now provision in rule 5 of the Criminal Procedure Rules 2011 (in force since the original refusal) for inspection or copying of documents only went to the process as by which documents may be sought rather than the principles which should underlie their production or non-production.

Thirdly, the judgment does not support production of all such documents in all cases. The “default” position is that there should be

access on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong.  However, there may be countervailing reasons.  In company with the US Court of Appeals, 2^nd Circuit, and the Constitutional Court of South Africa, I do not think that it is 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.  The court has to carry out a proportionality exercise which will be fact-specific.  Central to the court’s 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 cause to the legitimate interests of others. [85]

So the onus will be on the Court to find good reason to disallow access to such documents, and the ruling is by no means limited to the media.

• The right to receive information: journalists-and-inquiries
• Secret justice: do we have a compromise?
• Was it human rights wot won the phone hacking scandal?
• European Court of Human Rights defers to UK common law