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Appeal judges allow media access to extradition documents

3 April 2012

The Court of Appeal has ruled that The Guardian should have access to court documents referred to in the Geoffrey Tesler extradition hearing, in a judgment which Lord Justice Toulson said “breaks new ground” for open justice.

Geoffrey Tesler, a solicitor, and Wojciech Chodan were ordered to be extradited in 2010 to the US to face allegations relating to the bribery of Nigerian officials by a subsidiary of Halliburton.

The Guardian requested copies of documents referred to in the extradition hearings but not read out in court, including skeleton arguments and affidavits submitted by the US government and correspondence between the SFO and the US Department of Justice.

The district judge decided that the court had no power to release the documents and the Administrative Court rejected a judicial review by the newspaper, on the grounds that the press had no right to inspect documents placed before the court in criminal proceedings.

However, giving the leading judgment today in R(on the application of Guardian News and Media) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, Lord Justice Toulson allowed the newspaper’s appeal.

“The open justice principle is a constitutional principle to be found not in a written text but in the common law,” he said.

“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.”

Toulson LJ said the exclusion of court documents from the Freedom of Information Act was “both unsurprising and irrelevant”.

“It would be quite wrong in my judgment to infer from the exclusion of court documents from the Freedom of Information Act that parliament thereby intended to preclude the court from permitting a non-party to have access to such documents if the court considered such access to be proper under the open justice principle.”

He went on: “The Guardian has a serious journalistic purpose in seeking access to the documents. It wants to be able to refer to them for the purpose of stimulating informed debate about the way in which the justice system deals with suspected international corruption and the system for extradition of British subjects to the USA.

“Unless some strong contrary argument can be made out, the courts should assist rather than impede such an exercise. The reasons are not difficult to state. The way in which the justice system addresses international corruption and the operation of the Extradition Act are matters of public interest about which it is right that the public should be informed.

“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.”

Lord Justice Toulson said the purpose of the open justice principle was not simply to deter “impropriety or sloppiness” by judges but to enable the public to understand and scrutinise the justice system.

He said the courts had recognised that receiving evidence without it being read in open court potentially had the side effect of makings proceedings less intelligible to the press and public and this called for “counter measures”.

Toulson LJ said those who wanted access to documents must explain what purpose they want it for and could be charged a fee.

“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.

“In this case The Guardian has put forward good reasons for having access to the documents which it seeks. There has been no suggestion that this would give rise to any risk of harm to any other party, nor would it place any great burden on the court. Accordingly, its application should be allowed.”

Lord Justice Hooper and Lord Neuberger, the Master of the Rolls, agreed.

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Procedures EU & International