R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court and another (Article 19 intervening)

Hearing date: 7 February 2012

Introduction

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."

This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice. In a valuable report by the Law Commission of New Zealand on Access to Court Records, 2006, Report 93, the Commission summarised the principle at paragraph 2.2:

"Open justice is a fundamental tenet of New Zealand's justice system. It requires, as a general rule, that the courts must conduct their business publicly unless this would result in injustice. Open justice is an important safeguard against judicial bias, unfairness and incompetence, ensuring that judges are accountable in the performance of their judicial duties. It maintains public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny, and that "Justice should not only be done, but should manifestly and undoubtedly be seen to be done"."

The Commission quoted, at paragraph 2.11, the following passage from the judgment of the President of the Court of Appeal, Woodhouse P, in Broadcasting Corporation of New Zealand v Attorney General [1982] 1 NZ LR 120, 122:

"…the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process may be regarded as fulfilling its purposes."

There are exceptions to the principle of open justice but, as Viscount Haldane explained in Scott v Scott, they have to be justified by some even more important principle. The most common example occurs where the circumstances are such that openness would put at risk the achievement of justice which is the very purpose of the proceedings.

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. Unsurprisingly there may be differences of view about such matters.

In this case the question has arisen whether a District Judge, who made two extradition orders on the application of the US Government, had power to allow the Guardian Newspaper to inspect and take copies of affidavits or witness statements, written arguments and correspondence, which were supplied to the judge for the purposes of the extradition hearings. They were not read out in open court but they were referred to during the course of the hearings. The judge, DJ Tubbs, refused the Guardian's application. She found that she had no power to allow it to do so for reasons which she set out in a careful judgment. The Administrative Court (Sullivan LJ and Silber J) agreed with her in an equally careful judgment delivered by Silber J. The Guardian appeals against the refusal of its applications with leave of the court. The court has allowed Article 19, a not for profit organisation which campaigns globally for free expression, to intervene in support of the Guardian's appeal by way of written submissions.

Facts

Extradition proceedings were brought by the US Government under the Extradition Act 2003 against two individuals alleged to have been involved in the bribery of Nigerian officials by Kellogg Brown and Root (KBR), a subsidiary of the well known US company Halliburton.

The two people were Geoffrey Tesler, a London based solicitor, and Wojciech Chodan, a former executive of MW Kellogg, a company associated with KBR. Both men are British citizens.

The Tesler extradition application was heard over five days between November 2009 and January 2010. The Chodan application was heard on 22 February 2010. The hearings were conducted in open court throughout. The US Government was represented by David Perry QC and the defendants were similarly represented by leading counsel. The District Judge gave judgment in the Tesler case on 25 March 2010 and in the Chodan case on 20 April 2010. Both defendants were ordered to be extradited.

Prior to the delivery of the District Judge's judgments, the Guardian wrote to the court asking to be provided with copies of various documents which had been referred to in the course of the extradition hearings. In summary the documents were:

1. The opening notes and skeleton arguments submitted on behalf of the US Government and the skeleton arguments submitted on behalf of the defendants.

2. Affidavits submitted by William Stuckwisch, the US senior trial attorney responsible for the conduct of the prosecutions.

3. Other affidavits or witness statements submitted by prosecutors for the US Department of Justice.

4. Correspondence between the Serious Fraud Office (SFO) and the US Department of Justice discussing which agency should prosecute the case.

5. Correspondence between solicitors acting for MW Kellogg and counsel for Mr Tesler on the subject of whether MW Kellogg was being prosecuted by the SFO and an accompanying witness statement from the solicitor acting for Mr Tesler, which had been handed up to the judge at the hearing on 28 January 2010.

The judge gave a judgment on 20 April 2010 ruling against the Guardian. She acknowledged the importance of the principle of open justice. She emphasised that the public and press had not been excluded from any part of the proceedings. She stated that all the issues relied upon by any of the parties had been fully set out in oral submissions in open court by senior counsel – in one case over a period of four days and in the other case over a whole day. Every member of the public and the press in attendance heard the clear and able expositions of all the issues in great detail. Copies of her written judgments setting out her reasons for ordering extradition were available to any member of the public or press requesting them. After considering the case law and the Criminal Procedure Rules she held that "this Court does not have the power to direct the provision of the documents requested". She concluded by referring to problems which would arise if she were wrong in her view of the law:

"Practical problems would arise if the view was taken that the decision I have just outlined is wrong in principle and that members of the press and the public may require as of right to be provided with written copies of documents and exhibits relied upon in the open court proceedings. There are a very large and growing number of extradition cases, many with a high public profile, passing through this Court in a very tight timetable required by the Extradition Act. To whom would any "direction" for the provision of the material be directed? In this case the applicants wish to see affidavits and files of correspondence some of which are provided by the Government, some of which are provided by the defence. In these cases alone the requested documents run to hundreds of pages. The Court itself is provided the papers by the parties in extradition proceedings. Those documents are not usually retained by the Court at the conclusion of the...