Reference:  EWCA Civ 420
Court: Court of Appeal
Judge: Master of the Rolls, Toulson LJ, Hooper LJ
Date of judgment: 3 Apr 2012
Summary: Extradition - Application by Media for Access to Documents referred to in Open Court - Criminal Procedure Rules - Inherent Jurisdiction
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Appearances: Adam Wolanski KC (Appellant)
Instructing Solicitors: Reynolds Porter Chamberlain for GNM; CPS for the US Government (interested party); Leigh Day for Article 19 (interveners)
The US Government applied to extradite two individuals for trial on charges of bribery and corruption. During five days of hearings the parties made reference in open court to numerous documents but did not read out their contents. Upon the handing down of judgment, Guardian News and Media Ltd applied to inspect those documents. The District Judge refused the application and found she had no power to make the order sought. The Administrative Court found that the District Judge was correct and dismissed the application for judicial review. GNM appealed
Whether the Administrative Court was correct in dismissing the application for judicial review
Allowing the appeal:
(1) All tribunals exercising the judicial power of the state, including the Magistrates Court, have an inherent jurisdiction to determine how the constitutional principle of open justice should be applied. This includes the power to make the order sought by GNM in this case.
(2) The courts have recognised that the practice of receiving evidence without it being read in open court potentially has the side effect of making the proceedings less intelligible to the press and the public. Counter measures are needed to address this problem.
(3) Where documents have been placed before a judge and referred to in the course of proceedings, the default position should therefore be that the media should be permitted to have access to those documents on the open justice principle.
(4) Where objections to such an application are raised, the court will need to evaluate the application with reference to 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. Where a case involves a child or a vulnerable adult, there may be strong reasons for not allowing access.
(5) Neither the Freedom of Information Act nor the Criminal Procedure Rules precluded the court from permitting a non-party to have access to documents if the court considered such access to be proper under the open justice principle.
(6) In the current case, GNM put forward good reasons for obtaining access to the documents, which concerned a subject of considerable public interest. There was no suggestion that this would give rise to any risk of harm to any other party, nor would it place any great burden on the court. GNM’s application should therefore succeed.
Toulson LJ, giving the leading judgment, said that “this decision breaks new ground in the application of the principle of open justice”. It is likely to have wide implications, since it establishes that, where issues of public interest are raised, non parties should be permitted access to documents referred to in any tribunal exercising the judicial power of the state, unless good reasons can be shown. The judgments place emphasis on developments in other common law jurisdictions, and may be thought to demonstrate the vitality of the common law. Although the court acknowledged that the Strasbourg jurisprudence may be seen as leading in the same direction, recent ECHR cases on access to information were “not clear cut”.