The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil Procedure Rules, wider principles still applied. The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied. In the absence of good reason otherwise, documents used but not read out should be made available. The reasons put forward were insufficient to displace the presumption in favour. The applicant had good and proper reasons for wanting them.
It was ‘quite wrong to infer from the exclusion’ by section 32 of court documents from the FOIA that ‘Parliament intended to preclude the court from permitting a non-party to have access to such documents if the court considered such access to be appropriate under the open justice principle.’
Lord Justice Toulson said: ‘In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle. 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 second 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 for 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.’
Judges:
Lord Neuberger MR, Hooper, Toulson LJJ
Citations:
[2012] 3 All ER 551, [2012] 3 WLR 1343, [2012] EWCA Civ 420, [2012] WLR(D) 110, [2012] CP Rep 30, [2012] EMLR 22, [2013] QB 618
Links:
Statutes:
Criminal Procedure Rules 2011 5.7 5.8, Freedom of Information Act 2000 32
Jurisdiction:
England and Wales
Citing:
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Regina v Waterfield QBD 1975
The defendant was convicted of importing pornographic films and magazines. One ground of appeal was that the proceedings were a nullity because the press and public had been excluded from the court room during the showing of the films.
Held: . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Broadcasting Corporation of New Zealand v Attorney General 1982
(Court of Appeal of New Zealand) Woodhouse P said: ‘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 . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Regina v Crook 1991
A journalist appealed against orders excluding the press and public while the judge considered where the jury should sit, and again as to the behaviour of a jury member.
Held: There may be circumstances where it was appropriate to distinguish . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – Howell and Others, Regina v CACD 28-Feb-2003
The defendants appealed against convictions for conspiracy to pervert the course of justice. They had been police officers.
An application was made for the disclosure of the skeleton arguments read by the court, Judge LJ said: ‘Subject to . .
Cited – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
Cited – Atkinson and Crook and The Independent v United Kingdom ECHR 3-Dec-1990
(European Commission of Human Rights) The Commission answered a question as to admissibility, namely whether the sentencing of a convicted criminal defendant in private infringed article 10. The complainants were two freelance journalists.
Cited – Tarsasag A Szabadsagjogokert v Hungary ECHR 14-Apr-2009
The court upheld a complaint by the Hungarian Civil Liberties Union that, contrary to article 10, it had been refused access to details of a complaint in connection with drugs policy on the basis that details of the complaint could not be released, . .
Cited – Grupo Interpres Sa v Spain ECHR 7-Apr-1997
(Commission) The applicant sold information about people’s assets to third parties. He complained that the refusal of the Spanish courts to allow him access to the courts’ archives in order to obtain such information violated his rights under . .
Cited – Matky v Czech Republic ECHR 10-Jul-2006
(French Text) Members of an environmental group sought access to the original project documents lodged with a government department. They wanted to compare the plans with revised plans which were currently the subject of an environmental assessment. . .
See Also – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Cited by:
Cited – Pressdram Ltd v Whyte ChD 30-May-2012
The respondent had been involved in company director disqualification proceedings some 12 years earlier. The claimant, publisher of Private Eye sought disclosure of the associated court papers.
Held: The applicant had provided appropriate . .
See Also – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis SC 15-Feb-2017
The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
Private Hearings are Not in Secret
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. The hearing was listed as in . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
Private Hearings are Not in Secret
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. The hearing was listed as in . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.
Constitutional, Media, Litigation Practice, Magistrates, Extradition, Human Rights
Leading Case
Updated: 07 August 2022; Ref: scu.452439