The law governing third parties’ access to court documents ought to be clear but is not. Whether a case is properly classified as a criminal or civil one ought also to be straightforward but is also most unclear. Both were in play in the case of R (Guardian News and Media) v City of Westminster Magistrates Court ( EWCA Civ 1188).
In this case the Guardian obtained permission to appeal to the Court of Appeal against a judgment of the Administrative Court refusing it access to documents relating to an extradition case concerning Jeffrey Tesler (pictured) and alleged bribery of Nigerian officials on behalf of the well-known US company Halliburton.
The extradition hearing before the Magistrates’ Court had been held in public. Two of the Guardian’s journalists had attended and reported on it. During the hearing, various documents were produced to the District Judge, and referred to in court: they included skeleton arguments, affidavits and witness statements, and correspondence (much of it between the Serious Fraud Office and the US Department of Justice). The Guardian applied for access to those documents but was refused by the District Judge and that refusal was upheld by the Administrative Court (Sullivan LJ and Silber J):  EWHC 3376 (Admin).
The Corner House case  EWHC 246 (Admin) recentlyconsidered the rights of non-parties to access documents in judicial review proceedings (under CPR r.5.4C) such as the judicial review claim form (and attached grounds of claim), the acknowledgment of service, summary grounds of resistance, the detailed grounds of defence, skeleton arguments and witness statements. It also considered whether other documents “filed with or attached to” such documents were accessible: r5.4C(1)(a).
But there is no equivalent guidance/rules in criminal proceedings or in proceedings involving a “criminal cause or matter”. The Guardian’s case is that although the extradition proceedings were a “criminal cause or matter”, the order refusing its application for sight of the documents does not fall within that expression.
The concept of “criminal cause or matter” is important for a number of reasons. Section 18(1) Senior Courts Act 1981 specifically excludes any right of appeal to the Court of Appeal from any judgment of the High Court in “any criminal cause or matter”. Accordingly, decisions of the Administrative Court in cases falling within the ambit of that subsection can only be appealed directly to the UK Supreme Court.
An appeal to the Supreme Court in a criminal cause/matter is possible only if
(a) the High Court certifies a point of general public importance is involved; and
(b) the High Court or Supreme Court grants permission to appeal: Administration of Justice Act 1960, s.1(1)(a), (2).
The extra hurdle of certification is not discriminatory against criminal litigants: R v Dunn  1 WLR 958. There is no appeal to the Supreme Court in respect of a refusal to grant permission in criminal judicial review. The concept of a “criminal cause or matter” is also relevant to the recovery of costs.
The law in relation to what constitutes a criminal cause or matter has proceeded on a piecemeal basis. It is certainly a wider concept than “criminal proceedings”: see R (Aru) v Chief Constable of Merseyside  1 WLR 1697. So, for example, a production order against a journalist, which is made in the Crown Court but in non-criminal proceedings, is nevertheless a criminal cause/matter. In R (Purdy) v DPP  1 AC 345, the House of Lords accepted that a decision not to promulgate guidance about the prosecution of assisted suicide was not a criminal/cause matter. By contrast, in R (Pretty) v DPP  1 AC 800, a decision not to grant proleptic immunity (via an undertaking from the DPP not to prosecute) for assisted suicide was a criminal cause/matter.
Proceedings by a vexatious litigant challenging the DPP’s decision to discontinue a number of private prosecutions were not a “criminal cause/matter”: Ewing v DPP  EWCA Civ 70. In that case the Court of Appeal explained, somewhat tortuously, that:
“Proposed proceedings for judicial review in a criminal cause or matter are civil proceedings. It therefore follows that an application to bring those proceedings is itself a civil proceeding and … [a person subject to a civil proceedings order] requires permission under s.42(3) [of the Senior Courts Act 1981] before he could make such an application.” 
Some cases seem, despite the clear wording of s.18, to have slipped through the net. So, in R (Noone) v Governor of Drake Hall Prison  1 WLR 1743 (a case concerning the determination of the correct release date of a prisoner), the point was not taken that the claim was ostensibly a criminal cause/matter and the case ultimately reached the Supreme Court via the Court of Appeal.
In the Guardian case, the Court of Appeal (Lord Neuberger MR, Jackson and Aikens LJJ) analysed the case law on “criminal cause or matter” – to decide whether it had jurisdiction to hear the appeal. It decided that “the best way of applying the ‘rather tangled’ jurisprudence developed over the past thirty-five years, and ensuring maximum coherence (or maybe it is more realistic to say, minimum incoherence) is to hold that we have jurisdiction to hear the appeal”. Having decided that it had jurisdiction to hear the appeal it readily granted permission to appeal since (a) many of the leading cases on access to court documents in extradition cases pre-dated the Human Rights Act and (b) the case obviously raised issues of general importance. It did add “that there are strong practical and principled reasons as to why the appeal should fail”.
The outcome of the appeal will be interesting for the guidance it will provide on both these important issues – which affect the media on a regular basis.
Alex Bailin QC is a barrister at Matrix Chambers