The case of R (Guardian News and Media Limited) v City of Westminster Magistrates’ Court ( EWCA Civ 420) is a landmark decision for open justice and the media’s ability to access court documents. Drawing on a broad survey of domestic, European and international materials, the Court of Appeal overturned the Administrative Court and upheld the existence of an inherent common law power to order disclosure of documents which have been placed before a judge and referred to in open proceedings.
In an era in which litigation has become increasingly document-heavy, the judgment provides an important fillip to investigative journalism and meaningful reporting of court proceedings. It also offers an interesting talking point in the ongoing debate about transparency and the legal process.
The Guardian’s application arose out of extradition proceedings brought by the US Government against two British citizens. During the course of extradition hearings in the magistrates’ court the parties’ lawyers referred the judge to various documents including skeleton arguments, witness statements and items of correspondence. The hearings took place in open court throughout; however the documents were never read out or publicly exhibited.
The Guardian wrote to the District Judge requesting copies of some of the documents. After considering the relevant case law and procedural rules the judge held she had no power to order disclosure. The newspaper sought judicial review of the District Judge’s decision, arguing that the court had a wide common law power to regulate its own procedure and asserting an Article 10 right to access the material.
Decision of the Administrative Court
The Administrative Court (Sullivan LJ and Silber J) dismissed the Guardian’s application ( EWHC 3376 (Admin)). It gave six reasons for upholding the District Judge’s decision:
- First, the cases of R v Waterfield  1 WLR 711 and R v Crook (1991) 93 Cr App R (S) established that the principle of open justice in criminal proceedings did not extend to a right for the public or the press to inspect documents or other exhibits placed before the court.
- Second, no case had been cited which undermined or qualified the approach in those cases.
- Third, those responsible for drafting the Criminal Procedure Rules 2010 must have been aware of Waterfield and Crook but took no steps to reverse or qualify them. It could therefore be inferred that the draftsmen did not intend to undermine or qualify the Waterfield doctrine.
- Fourth, by contrast with the Civil Procedure Rules, there were no provisions in the Criminal Procedure Rules 2010 giving any right of inspection of written evidence.
- Fifth, the Freedom of Information Act 2000 could not be used to obtain the documents sought by the Guardian. FOIA contained a number of checks and balances, and no good reason had been shown why those checks and balances should be overridden by the common law or Article 10.
- Sixth, references to the inherent jurisdiction of the court did not assist the Guardian, particularly since s. 32(1) of FOIA expressly exempts a public authority (which includes a court) from any obligation to produce a document placed in the custody of a court for the purposes of proceedings in a particular cause or matter.
Decision of the Court of Appeal
On 3 April 2012 the Court of Appeal (Lord Neuberger MR, Hooper and Toulson LJJ) unanimously allowed the Guardian’s appeal and reversed the Administrative Court. The leading judgment was delivered by Toulson LJ, whose reasoning starts with a rhetorical flourish:
“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 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.” 
Toulson LJ began by examining the relevant common law authorities. In Attorney General v Leveller Magazine  AC 440 Lord Diplock identified two aspects to the open justice principle. First, the principle requires that “proceedings in the court…should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly”. Second, “nothing should be done to discourage” the publication of fair and accurate reports of proceedings to the general public.
In R v Howell  EWCA Crim 486 Judge LJ held that the courts had a common law power to order disclosure of skeleton arguments adopted by counsel and treated as forming part of the oral submissions. In GIO Personal Investment Services Limited v Liverpool Steamship P & I Association Limited  1 WLR 984 the Court of Appeal held that the court had power to order disclosure of a skeleton argument, but said that members of the public had no general right to see a document on the basis that it had been referred to in court or read by the judge.
After analysing the authorities Toulson LJ concluded:
“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 present case no statutory provision ousted the court’s power to order disclosure. The Respondent’s FOIA arguments carried little weight. The exclusion of court documents from the scope of the Act was “both unsurprising and irrelevant”. Under FOIA the Information Commissioner is responsible for deciding whether a public body should be ordered to produce a particular document. The Commissioner’s decision may be appealed to a tribunal, whose decision is amenable to judicial review by the High Court. It would be odd if the question whether a court should allow access to a document lodged with the court were to be determined in such a roundabout way . On a more fundamental level, Parliament should not be taken to have limited the courts’ responsibility for determining the scope of the open justice principle “unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention”. The language of FOIA did not evince such an intention -.
The Criminal Procedure Rules were also irrelevant to the central issue. In any event, the 2011 rules now lay down a procedure facilitating the production of documents. This is entirely consistent with the court having an underlying jurisdiction to make such an order .
Article 10 and the Strasbourg case law
The case law on Article 10 and access to information has evolved over time. In Leander v Sweden (1987) 9 EHRR 433 the European Court interpreted the right narrowly, stating that:
“Article 10 does not, in circumstances such as those in the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.”
By contrast in Tarasag v Hungary (2011) 53 EHRR 3 the court adopted a more expansive interpretation. After citing Leander the court said that it had
“recently advanced towards a broader interpretation of the notion of ‘freedom to receive information’ and thereby towards the recognition of a right of access to information.” It added that, “the state’s obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities.”
The evolution of the Strasbourg jurisprudence was highlighted by the Court of Appeal in Independent News and Media Limited v A  EWCA Civ 343. In the present case, however, Toulson LJ expressly chose not to base his decision on Article 10. Although some of the Strasbourg case law appeared to support the Guardian’s arguments, the issue was not entirely clear-cut. Unlike in Tarasag, this was not a case where the court could be said to possess “a monopoly of information”. The question whether refusal of access to the Guardian amounted to covert censorship was significant since “there is force in the argument that Article 10 is essentially a protection of freedom of speech and not freedom of information (Leander)” .
Case law from other common law jurisdictions
Toulson LJ’s judgment also contains detailed reference to the case law of several other common law jurisdictions. For instance, in Attorney General of Nova Scotia v MacIntyre  1 SCR 175 the Supreme Court of Canada ruled that the public was entitled to inspect search warrants and supporting material filed in a criminal court. Dickson J explained that “at every stage the rule should be one of public accessibility…curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance”.
In Rogers v Television New Zealand Limited  NZSC 91 a majority of the Supreme Court of New Zealand decided that the media’s right to access and broadcast part of the court records outweighed the rights of the acquitted defendant to prevent such access. McGrath J commented that: “Open justice strongly supports allowing the media access to primary sources of relevant information rather than having to receive it filtered according to what the courts see as relevant.” Tipping J described a risk that “by denying access to their records, [courts] give the impression they are seeking to prevent public scrutiny of their processes and what has happened in a particular case”.
In a similar vein, the Constitutional Court of South Africa emphasised the media’s right to access court documents in Independent Newspapers v Minister for Intelligence Services  ZACC 6. Giving the judgment of the majority Moseneke DCJ stated:
“From the right to open justice flows the media’s right to gain access to, observe and report on, the administration of justice and the right to have access to papers and written arguments which are an integral part of court proceedings subject to such limitations as may be warranted on a case-by-case basis in order to ensure a fair trial.”
Toulson LJ explained that, while his decision was ultimately based on the common law principle of open justice, it was “fortified by the common theme of the judgments in other common law countries”. Those decisions collectively provided “strong persuasive authority” in support of his reasoning .
The merits of the Guardian’s application for disclosure
Turning to the merits of the Guardian’s application, Toulson LJ rejected the Respondent’s argument that the open justice principle was satisfied if proceedings are held in public and reporting of the proceedings is permitted. This was too narrow a characterisation of the underlying purpose:
“The purpose is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators.” 
At paragraph 85 of his judgment Toulson LJ summarised the test that would be applied by the courts in future:
“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; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons… I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of 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.” [Emphasis added]
The Guardian had a serious journalistic purpose in seeking access to the documents: it wanted to use them to stimulate informed debate about the way in which the justice system deals with suspected international corruption and the system for extradition of British citizens to the USA . These are matters of public interest and unless a strong contrary argument could be made out the courts should assist such an exercise . There was no suggestion that disclosure might harm any other party, nor would it place any great burden on the court. Accordingly, the application should be allowed .
The Court of Appeal’s decision is a resounding and clear exposition of the open justice principle as it applies to access to court documents. The judgment is likely to have real practical benefits for journalists and the wider public.
Litigation today is notoriously paper-focussed. Proceedings are often indecipherable to anyone without access to the relevant documents. Lord Bingham CJ described the problematic consequences in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc  4 All ER 498, 511:
“The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.”
The Court of Appeal’s judgment goes some way to addressing these difficulties by establishing a clear presumption in favour of allowing access to documents that have been placed before the judge and referred to in open court. While access in any particular case will be determined by applying a proportionality test, it is clear the interests of the media will weigh heavily in the balance.
In several high profile cases the media has unsuccessfully applied for access to documents referred to in open court. During the inquest into the 7/7 bombings, for example, the media asserted a general right to reproduce all evidence shown in open court unless there was a specific justification prohibiting them from doing so. The coroner, Hallett LJ, rejected the application. Referring to the decision in Waterfield, she concluded: “The fact that a document is referred to in court or even exhibited does not mean in my view that the media have a right to a copy of it, as opposed to a right to report it, describe it and comment upon it.” The correctness of that approach is now doubtful in the light of the Court of Appeal’s ruling.
The judgment emphasises the importance of factual detail in engaging the attention of the public: “The public is more likely to be engaged by an article which focuses on the facts of a particular case than by a more general or abstract discussion” . This continues a theme found in several previous cases (see Jameel v Wall Street Journal  1 AC 359; In re Guardian Newspapers Limited  2 AC 697; JIH v News Group Newspapers  1 WLR 1645; Flood v Times Newspapers Limited  UKSC 11).
Toulson LJ’s use of comparative case law is also noteworthy. Towards the end of his judgment he said that:
“The courts are used to citation of Strasbourg decisions in abundance, but citations of other senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere”.
Reference to comparative jurisprudence in media cases is increasingly common (see, for example, In re Guardian Newspapers Limited  2 AC 697 and Flood v Times Newspapers Ltd  UKSC 11 at ). While Toulson LJ’s enthusiasm for comparative case law is to be welcomed, this author would also sound a note of caution about the use of such materials.
A parochial approach to the common law is obviously undesirable. This is especially so in relation to fundamental questions about open justice, which arise in every legal system. However a bare statement that foreign material “fortified” the Court of Appeal’s conclusion tells us nothing about the actual role the material played in the judge’s reasoning.
In particular, care should be taken to identify the purpose of referring to comparative case law: Does the material provide evidence of prevailing standards in civilized societies? Or is it a source of rationales and arguments for analysing particular rights? If the latter, are those ideas readily transplantable or are they the product of unique circumstances in another jurisdiction? The methodology of selecting comparative material is also important: Has the judge conducted a balanced survey across a broad range of countries? Or have they merely selected decisions that support their conclusions?
No two jurisdictions are identical and an effort should always be made to assess foreign case law within its unique constitutional context. Toulson LJ’s judgment will encourage media practitioners to refer to more foreign case law when litigating English claims. Provided it is considered within a rigorous analytical framework, such material can be a useful resource for a judge developing the English common law.
Discussions about open justice are often long on grandiloquent rhetoric and short on substance. The Court of Appeal’s judgment in Guardian News and Media does not fall into this trap. Instead, it provides a careful and considered development of the common law. The salutary effects of transparency are well documented. The benefits of this decision will inure not only to journalists who report on court proceedings but to the participants in the legal process – the lawyers, litigants and judges – whose actions are henceforth exposed to more meaningful scrutiny.
Edward Craven, Barrister, Matrix Chambers