Publicity and the soul of justice; letting the media spotlight in

Posted on 17th Apr 2012 in Case Comment

In a week that sees another high-profile extradition, this time of Abu Hamza to the USA to face terrorism charges, the question put by Lord Justice Toulson in Regina Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420; [2012] WLR (D) 110 Guardian ruling”) – “Quis custodiet ipsos custodes?” (who will guard the guards themselves?) – highlights not only the availability of document access to non-parties in extradition proceedings but, on a broader interpretation, raises interesting questions of just how the Rule of Law itself is to be policed effectively as the ever growing and high-profile interactions between the media and the courts continue to develop.

As highlighted by the recent ICLR summary, the case involved the Guardian newspaper’s appeal against the refusal of its application to obtain documents relating to the extradition proceedings of two British citizens, Geoffrey Testler and Wojciech Chodan. The extradition involved allegations of bribery of Nigerian officials and the documents requested by the Guardian included: affidavits submitted by the both US senior trial attorney responsible for the conduct of the prosecutions and others at the US Department of Justice; files of correspondence between the SFO and US Department of Justice and correspondence between solicitors acting for MW Kellogg, of which Mr Chodan was a former executive, and counsel for Mr Testler. The documents themselves were not read out in open court but were referred to during the course of the hearings.

Allowing the appeal, Toulson LJ recognised the role of the Strasbourg jurisprudence and article 10 of the European Convention on Human Rights (“ECHR”) but ultimately made clear that he based his decision on the common law principle of open justice, citing this as the principle at the “heart of our system of justice” and as paramount to allowing the public to understand the justice system. He referred to the persuasive authorities of the other common law countries as a sign that common law was in vigorous health and perhaps also to remind the court of the fundamental rights and principles that Acts such as the ECHR and the Human Rights Act 1998 seek to preserve. His decision, he said, may be deemed to have broken new ground since R v Waterfield [1975] 1 WLR 711 35 years ago, but did so in its application rather than the nature of the principle itself.

Yet, whilst indicating that the default position in such cases should be to allow access to documents when based on the open justice principle, his Lordship was careful to avoid recommending a standard formula to determine any grounds of opposition needed to outweigh the merits of any case for disclosure. Recommending a fact-specific proportionality exercise to be undertaken in each case, he noted that the court’s evaluation should be based upon the potential value of the material in advancing the open justice principle whilst at the same time assessing any risk or harm which access to the documents may cause to the legitimate interests of others. The policing of the Rule of Law through open justice therefore clearly requires a carefully balanced approach.

In assessing the merits of the application against the counter arguments, his Lordship also discussed the issue of time and practicality in document access; a tension which has been highlighted in many of the recent extradition cases. The Prime Minister’s comments following the Hamza ruling on the length of time of legal processes echo those expressed in the Guardian ruling with concerns that the practicality of adhering to both the timetable imposed by the Extradition Act and at the same time providing large amounts of requested material would lead to inevitable delays and public expense. Toulson LJ however considered this point unimpressive and in particular cited in his judgment the process laid down in Criminal Procedure Rules as providing a sensible application process for document requests. Administrative and procedural concerns in this instance were therefore outweighed by the interests of a just and fair legal system.

It is yet to be seen what impact the Guardian ruling will have upon future disclosure and open justice issues both in extradition proceedings and otherwise and whilst it is the inherent jurisdiction of the court to determine how the principle of open justice is to be applied, the courts, Toulson LJ warned, should exercise caution in making any editorial judgments about the adequacy of material available to the media for journalistic purposes.

The interaction between the media and the legal professions will doubtless continue to make headlines and was notably also explored in the first of the ICLR Encounters debates held last week. Although the methods and suitability of the two professions’ abilities to uncover truths and justice were hotly debated, their interaction was nevertheless implicit. Indeed, their relationship is perhaps reiterated most clearly in Toulson LJ’s judgment, whereby the serious journalistic purpose of seeking access to documents in order to stimulate informed debate on and about the justice system must be upheld, albeit proportionately, in order to assist the transparency and principles of the legal process.

Guest blog posting by: Eleanor Hutchinson

Trainee Solicitor
Maclay Murray & Spens LLP
11 April 2012