R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court and another (Article 19 intervening)
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWHC 3376 (Admin) |
| Docket Number | Case No: CO/7737/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2010 |
[2010] EWHC 3376 (Admin)
Before: Lord Justice Sullivan
Mr Justice Silber
Case No: CO/7737/2010
CO/7272/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Gavin Millar QC and Adam Wolanski (instructed by Reynolds Porter) for the Claimant
David Perry QC and Melanie Cumberland (instructed by Crown Prosecution Service) for the Interested Party
The Defendant was not represented
Hearing date: 10 December 2010
Mr. JUSTICE SILBER
This is the judgment of the Court to which both members have contributed:-
I. Introduction
The issue raised on these applications is whether District Judge Tubbs sitting at the City of Westminster Magistrates' Court was correct in law in making a decision on 20 April 2010 by which she refused to permit the inspection by or disclosure to Guardian News and Media Limited (“the Guardian”) of certain documents relied on by the parties and referred to in open court during extradition proceedings. This application must be considered against the background that the Judge made findings which have not been challenged that:-
“All the issues relied upon were fully set out in the oral submissions in open court by senior and able Counsel …Every member of the public and the press heard the clear and able expositions of all the issues in great detail ..There was nothing relied upon and contained in the skeleton arguments which was not repeated orally in open court” (Paragraph 14 of the Case Stated).
The claimant challenges those orders by means first of an appeal by way of case stated against that decision and second of an application for judicial review seeking to quash the decision of the Judge and instead to replace it with declarations first that the court had power to order that the documents referred to in open court during extradition proceedings should be made available to the media and second that on the facts of this case, the documents sought by the claimant should be made available to the media.
It is common ground that we should deal with the appeal by way of stated first because the application for judicial review can only be pursued if there is no alternative remedy. Both parties agree that if the appeal by way of case stated is dismissed, the application for judicial review must also fail. There is also no dispute that the Guardian was a party to a final decision of the Judge and so it is a “person aggrieved” which means that it is entitled to appeal by way of case stated pursuant to section 111 of the Magistrates' Court Act 1980.
II. The Background
The extradition proceedings which led to the present application being brought concerned attempts by the Government of the United States (“the US Government”) to extradite to that country two individuals, who had been allegedly involved in a high profile corruption investigation by the US Department of Justice and the US Securities and Exchange Commission. It is alleged that Mr Jeffery Tesler, who is a London-based solicitor, was an intermediary and facilitator in the bribery of Nigerian officials by Kellogg Brown and Root, which is a subsidiary of a well-known US company Halliburton which is associated with the former Vice-President of the United States Mr. Dick Cheney. The other individual, who the US Government sought to have extradited was Mr Wojciech Chodan, who was a former executive of MW Kellogg, and who is also alleged to have been implicated in the bribery of Nigerian officials.
The Guardian has long been interested in issues of corporate bribery and corruption and has been reporting on this case since 2004. Thus in March 2009, it reported the arrest of Mr Tesler and the issue of a warrant for Mr Chodan's arrest. The main extradition proceedings concerning both Mr Tesler and Mr Chodan took place over five days between November 2009 and February 2010. Two experienced Guardian journalists Mr David Leigh and Mr Rob Evans attended many of the hearings, which were reported in the Guardian.
During the hearings, various documents were referred to during oral argument and they included a statement from DLA Piper, solicitors for MW Kellogg, a witness statement from Mr Tesler's solicitor Mr Stuart Jacobs which was handed to the judge, affidavits from Mr William Stuckwisch the senior trial attorney on behalf of the US Government, and correspondence between the Serious Fraud Office and the US Department of Justice over which agency should prosecute Mr Tesler. These documents were referred to at different times during the hearings. The public and the press were not excluded from any part of the proceedings and no restrictions were sought or made to restrict the reporting of any part of the court proceedings. Copies of the judgments of the Judge in respect of the extradition proceedings against both men were available to the press and the public and they were self-contained documents, which did not incorporate other documents.
When the Judge gave judgment in the case of Mr Tesler on 25 March 2010, an application was made on notice by counsel for the Guardian seeking disclosure:-
I. In the Tesler case of:-
(i) The opening note and skeleton arguments on behalf of the Government and the skeleton argument submitted on behalf of Mr Tesler.
(ii) Affidavits submitted by William Stuckwisch, the senior trial attorney with conduct of the prosecution against Mr Tesler.
(iii) Any other affidavits or witness statements submitted by US Department of Justice Prosecutors.
(iv) Correspondence between the Serious Fraud Office (SFO) and the United States Department of Justice discussing the issue of which agency should prosecute the case.
(v) Correspondence between counsel for Mr Tesler and DLA Piper (acting for MW Kellogg) relating to the question of whether MW Kellogg was being prosecuted by the Serious Fraud Office and an accompanying witness statement from Mr Stuart Jacobs, the solicitor acting for Mr Tesler, handed up at the hearing on 28 January.
II. In the Chodan case of:-
(i) The opening note and skeleton argument on behalf of USA.
(ii) The skeleton argument submitted on behalf of Mr Chodan.
(iii) Affidavits submitted by William J Stuckwisch, the senior trial attorney with conduct of the prosecution against Mr Chodan.
(iv) Correspondence between the Serious Fraud Office and the Department of Justice discussing the issue of which agency should prosecute the case and whether the Serious Fraud Office had ceded jurisdiction or primacy.
(v) Any other affidavits or witness statements submitted by prosecutors for the Department of Justice.
The opening notes and the skeleton argument of Mr. Chodan and the US Government had been provided to the Guardian prior to the hearing. So the only matters on which the Judge was required to give a decision were the applications for the skeleton argument and the opening note of Mr Tesler's applications, the affidavits of Mr Stuckwisch, the other affidavits and the correspondence in both cases set out in the previous paragraph. The opening notes and the skeleton argument of Mr Tesler were not produced until after the hearing.
It is clear that the Guardian have taken a close interest in both of the extradition cases against Mr Tesler and Mr Chodan as they consider that they are of great importance in relation to first the underlying allegations of bribery of public officials; second the issue of whether the extradition regime in place between the United States and the United Kingdom is unbalanced; and third the significance of this case as being an example of an attempt to extradite from the United Kingdom to the United States individuals whose alleged crimes were committed outside the United States.
Mr Leigh has drawn attention to the problems of journalists in reporting extradition cases as requests by journalists to parties to those proceedings for material referred to in proceedings are generally turned down. This, he says makes the accurate reporting of such cases difficult. These concerns of Mr Leigh are shared by Mr Spence of Times Newspapers, which is an Interested Party in this case and which support the Guardian's application.
The case for the Guardian is that the reporting of extradition cases is particularly problematic because first there is great reliance placed on written material which is not heard before a jury and second there is frequent reference to documents which counsel and the judge have read but which are not referred to in detail in oral argument. It is true that little oral evidence is adduced at extradition hearings as section 202 of the Extradition Act 2003 permits documents which are duly authenticated to be received in evidence but as we have explained in paragraph 1 above, the Judge made findings that the issues were all addressed orally.
The case for the claimant in front of the Judge was that the media should be permitted to inspect the documents sought because (a) many of the documents were referred to and relied on during the proceedings but they were not read out in open court as a result of which the media was not in a position fully to understand the arguments of counsel; (b) the case raises important issues of serious public interest; and (c) neither the Crown Prosecution Service nor the United States authorities have asserted any right of confidence in the contents of the documents nor have they asserted that permitting the media to inspect the documents...
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