Mr. JUSTICE SILBER
This is the judgment of the Court to which both members have contributed:-
I. Introduction
- The issue raised on these applications is whether District Judge Tubbs sitting at the City of Westminster Magistrates' Court was correct in law in making a decision on 20 April 2010 by which she refused to permit the inspection by or disclosure to Guardian News and Media Limited ("the Guardian") of certain documents relied on by the parties and referred to in open court during extradition proceedings. This application must be considered against the background that the Judge made findings which have not been challenged that:-
"All the issues relied upon were fully set out in the oral submissions in open court by senior and able Counsel …Every member of the public and the press heard the clear and able expositions of all the issues in great detail ..There was nothing relied upon and contained in the skeleton arguments which was not repeated orally in open court" (Paragraph 14 of the Case Stated).
- The claimant challenges those orders by means first of an appeal by way of case stated against that decision and second of an application for judicial review seeking to quash the decision of the Judge and instead to replace it with declarations first that the court had power to order that the documents referred to in open court during extradition proceedings should be made available to the media and second that on the facts of this case, the documents sought by the claimant should be made available to the media.
- It is common ground that we should deal with the appeal by way of stated first because the application for judicial review can only be pursued if there is no alternative remedy. Both parties agree that if the appeal by way of case stated is dismissed, the application for judicial review must also fail. There is also no dispute that the Guardian was a party to a final decision of the Judge and so it is a "person aggrieved" which means that it is entitled to appeal by way of case stated pursuant to section 111 of the Magistrates' Court Act 1980.
II. The Background
- The extradition proceedings which led to the present application being brought concerned attempts by the Government of the United States ("the US Government") to extradite to that country two individuals, who had been allegedly involved in a high profile corruption investigation by the US Department of Justice and the US Securities and Exchange Commission. It is alleged that Mr Jeffery Tesler, who is a London-based solicitor, was an intermediary and facilitator in the bribery of Nigerian officials by Kellogg Brown and Root, which is a subsidiary of a well-known US company Halliburton which is associated with the former Vice-President of the United States Mr. Dick Cheney. The other individual, who the US Government sought to have extradited was Mr Wojciech Chodan, who was a former executive of MW Kellogg, and who is also alleged to have been implicated in the bribery of Nigerian officials.
- The Guardian has long been interested in issues of corporate bribery and corruption and has been reporting on this case since 2004. Thus in March 2009, it reported the arrest of Mr Tesler and the issue of a warrant for Mr Chodan's arrest. The main extradition proceedings concerning both Mr Tesler and Mr Chodan took place over five days between November 2009 and February 2010. Two experienced Guardian journalists Mr David Leigh and Mr Rob Evans attended many of the hearings, which were reported in the Guardian.
- During the hearings, various documents were referred to during oral argument and they included a statement from DLA Piper, solicitors for MW Kellogg, a witness statement from Mr Tesler's solicitor Mr Stuart Jacobs which was handed to the judge, affidavits from Mr William Stuckwisch the senior trial attorney on behalf of the US Government, and correspondence between the Serious Fraud Office and the US Department of Justice over which agency should prosecute Mr Tesler. These documents were referred to at different times during the hearings. The public and the press were not excluded from any part of the proceedings and no restrictions were sought or made to restrict the reporting of any part of the court proceedings. Copies of the judgments of the Judge in respect of the extradition proceedings against both men were available to the press and the public and they were self-contained documents, which did not incorporate other documents.
- When the Judge gave judgment in the case of Mr Tesler on 25 March 2010, an application was made on notice by counsel for the Guardian seeking disclosure:-
I. In the Tesler case of:-
(i) The opening note and skeleton arguments on behalf of the Government and the skeleton argument submitted on behalf of Mr Tesler.
(ii) Affidavits submitted by William Stuckwisch, the senior trial attorney with conduct of the prosecution against Mr Tesler.
(iii) Any other affidavits or witness statements submitted by US Department of Justice Prosecutors.
(iv) Correspondence between the Serious Fraud Office (SFO) and the United States Department of Justice discussing the issue of which agency should prosecute the case.
(v) Correspondence between counsel for Mr Tesler and DLA Piper (acting for MW Kellogg) relating to the question of whether MW Kellogg was being prosecuted by the Serious Fraud Office and an accompanying witness statement from Mr Stuart Jacobs, the solicitor acting for Mr Tesler, handed up at the hearing on 28 January.
II. In the Chodan case of:-
(i) The opening note and skeleton argument on behalf of USA.
(ii) The skeleton argument submitted on behalf of Mr Chodan.
(iii) Affidavits submitted by William J Stuckwisch, the senior trial attorney with conduct of the prosecution against Mr Chodan.
(iv) Correspondence between the Serious Fraud Office and the Department of Justice discussing the issue of which agency should prosecute the case and whether the Serious Fraud Office had ceded jurisdiction or primacy.
(v) Any other affidavits or witness statements submitted by prosecutors for the Department of Justice.
- The opening notes and the skeleton argument of Mr. Chodan and the US Government had been provided to the Guardian prior to the hearing. So the only matters on which the Judge was required to give a decision were the applications for the skeleton argument and the opening note of Mr Tesler's applications, the affidavits of Mr Stuckwisch, the other affidavits and the correspondence in both cases set out in the previous paragraph. The opening notes and the skeleton argument of Mr Tesler were not produced until after the hearing.
- It is clear that the Guardian have taken a close interest in both of the extradition cases against Mr Tesler and Mr Chodan as they consider that they are of great importance in relation to first the underlying allegations of bribery of public officials; second the issue of whether the extradition regime in place between the United States and the United Kingdom is unbalanced; and third the significance of this case as being an example of an attempt to extradite from the United Kingdom to the United States individuals whose alleged crimes were committed outside the United States.
- Mr Leigh has drawn attention to the problems of journalists in reporting extradition cases as requests by journalists to parties to those proceedings for material referred to in proceedings are generally turned down. This, he says makes the accurate reporting of such cases difficult. These concerns of Mr Leigh are shared by Mr Spence of Times Newspapers, which is an Interested Party in this case and which support the Guardian's application.
- The case for the Guardian is that the reporting of extradition cases is particularly problematic because first there is great reliance placed on written material which is not heard before a jury and second there is frequent reference to documents which counsel and the judge have read but which are not referred to in detail in oral argument. It is true that little oral evidence is adduced at extradition hearings as section 202 of the Extradition Act 2003 permits documents which are duly authenticated to be received in evidence but as we have explained in paragraph 1 above, the Judge made findings that the issues were all addressed orally.
- The case for the claimant in front of the Judge was that the media should be permitted to inspect the documents sought because (a) many of the documents were referred to and relied on during the proceedings but they were not read out in open court as a result of which the media was not in a position fully to understand the arguments of counsel; (b) the case raises important issues of serious public interest; and (c) neither the Crown Prosecution Service nor the United States authorities have asserted any right of confidence in the contents of the documents nor have they asserted that permitting the media to inspect the documents would be damaging.
- The United States Government opposed disclosure both before the Judge and in this court on the basis that the principle of open justice did not extend to the provision to the press of copies of documentary evidence merely because they were placed before the court. Mr. Tesler and Mr. Chodan also oppose disclosure but they have neither been represented at the hearing nor adduced any submissions.
- The Judge's full judgment to which we pay tribute for its clarity refused the application for disclosure. She explained that:-
(a) Magistrates' Courts are creatures of statute and they cannot invoke "an inherent jurisdiction" the limits of which have not been set out with precision in order to direct disclosure to members of the public and the press of documents or exhibits requested by them on the basis that they had been referred to during the course of an open court hearing in criminal proceedings;
(b) The Criminal Procedure Rules do not contain any presumption general or otherwise that those documents are open to public inspection;
(c) The decision in Waterfield [1975] 1 WLR 711 shows that in the context of criminal cases the principle of open justice does not extend to a right to inspect documents or other exhibits placed before the court; this approach is still good law and binding authority;
(d) There was no legal principle that members of the public and the press have a right to inspect or be provided with copies of any documents or exhibit referred to or relied upon in the course of open court proceedings in a criminal matter with a result that the court did not have power to direct disclosure of the documents requested; and
(e) Open justice requires that criminal proceedings are conducted in an open court with access to the public and the press who may see, hear and report on those proceedings and which are therefore subject to proper public scrutiny. They do not require disclosure of the kind of documents sought by the Guardian.
- The question for the High Court as stated by the Judge was whether the court was correct in law in failing to provide for the inspection by or disclosure to, Guardian News and Media Limited of the court documents specified in Guardian News and Media Limited's application.
III. The Submissions
- Mr David Perry QC counsel for the US Government agrees with the submissions of Mr Gavin Millar QC counsel for the Guardian that:-
(a) The court has an inherent power to control the conduct of proceedings: Attorney General v Leveller P Magazine Limited and Others [1979] AC 450 c-d. In doing this the court must follow Rule 101 of the Criminal Procedure Rules 2010 which provides that "the overriding objective of the new code is that criminal cases be dealt with justly";
(b) Under section 70 of the Extradition Act 2003 a judge hearing an extradition case has the same powers as does a judge of the Magistrates' Court on a summary trial; and that
(c) It is a cardinal principle of justice that it be performed in public and that the press and the other media should be free to report what goes on in court.
- What is in dispute are the subsequent submissions of Mr Millar which are first that the application of the principle of open justice requires first that in criminal cases, all evidence communicated to the court should be available for inspection by the press if it can show an adequate reason for its production, and second that nothing should be done to discourage or frustrate the publication to a wider public of fair and accurate reports of proceedings: see Attorney General v Leveller per Lord Diplock at 450. Mr Millar proceeds to contend that the court can only depart from the general rule that justice be administered in public where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest.
- Mr Millar submits that the common law principle of open justice is bolstered by Article 10 of the European Convention on Human Rights ("ECHR") because where the media seeks information consisting of evidence given in a court of law, their Article 10 rights will be engaged when the media is seeking the information for the purpose of disseminating matters more widely because to do so is in the public interest. This, he said, is particularly so when much of the information sought is already in the public domain as was explained by Lord Judge CJ when giving the judgment of the Court of Appeal in A by his litigation friend v Independent News and Media [2010] EWCA Civ 343 at [32] to [45]. He contends that the judgment records that recent Strasbourg jurisprudence shows that the press as a social watchdog has enhanced rights under Article 10 when compared with private individuals.
- The Guardian's case is first that such right of access has been triggered and second that none of the exceptions set out in Article 10(2) of the ECHR have been relied on to show that withholding this information was necessary in a democratic society in pursuit of one of the legitimate aims set out in that article. Mr Millar rejects the contention that practical problems would arise if the court had power to direct the provision of documents because there is no evidence that such problems have actually arisen in the civil jurisdiction where the CPR gives explicit power to the court to make such orders. The case for the Guardian is that pursuant to the provisions of section 3 of the Human Rights Act 1998, the Criminal Procedure Rules 2010 have to be read in the light of Article 10 of the ECHR so as to confer on the press the right to inspect the documents in this case so as to ensure compliance with the Guardian's Article 10 rights.
- Mr Millar contends that on the facts of the case, the Judge ought to have granted the application because first much of the information about the case was in the public domain, second the case raises pressing issues of public interest, third permitting the claimants to see the documents would not frustrate or render impracticable the administration of justice and fourth granting the Guardian's application would not interfere with any rights under the ECHR of any parties to the extradition proceedings or of any third parties.
- Mr David Perry QC submits that the appeal should be dismissed because the Judge was correct to find that the Guardian, like any other non-party, was not entitled whether under the court's inherent jurisdiction or under the Criminal Procedure Rules to inspect the documents which were the subject of the application to the Judge. Mr Perry relies on the Judge's factual conclusion in paragraph 14 of her judgment, which we have set out in paragraph 1 above.
- It is appropriate to start by considering whether, as Mr. Millar contends to be the position, Article 10 of the ECHR permits the Guardian to inspect the documents which have been referred to in open court during the proceedings and then considering if the answer is in the negative whether the Guardian has the right at common law.
IV. Article 10 of the ECHR
- First, there is a dispute as to whether the Article 10 rights of the Press are greater than those of individual members of the public. It seems clear that the Press have an enhanced right in their role as exercising the function of "social watchdogs" or "public watch dogs" (Tarsasag A Szabadsagjogokert v Hungary (Application no 37374/05) Judgment 14 July 2009).
- The Guardian attaches great importance in this appeal to Article 10 of the ECHR. The relevant parts of it state that:-
"(1) Everyone has the right to freedom of expression. This right should include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers..
(2) The exercise of these functions, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, …for the protection of the reputation of others, [or] for preventing the disclosure of information received in confidence, …"
- Lord Rodger of Earlsferry said in In re Guardian News and Media Limited [2010] WLR 325 that "on the existing Strasbourg case law, a right to obtain" any "information [which would not otherwise be available]" to a person "is not within the scope of Article 10(1)" [34].
- In reaching that decision Lord Rodger relied on the decision of the Strasbourg Court in Leander v Sweden (1987) 9 EHRR 433 in which the applicant had complained that a decision refusing him access to information about himself in what were said to be sensitive records maintained by the executive arm of the Swedish Government was a breach of among other rights, his Article 10 rights. In rejecting this complaint, the Strasbourg Court said in paragraph 74 that Article 10 did not:-
"in circumstances such as those of the present case, confer on an individual a right of access to a register containing information on his personal position".
- Mr Millar says that matters have now moved on since then and he relies on the decision of the Strasbourg Court in Tarsasag a Szabadsagjogokert v Hungary (supra); in that case there was a complaint by the Hungarian Civil Liberties Union that its Article 10 rights had been infringed when it had been refused access to details of a complaint in connection with a drugs policy on the basis that details of the complaint could not be released according to domestic law without consent of the author. It was held that the claimant's Article 10 rights had been infringed.
- In paragraph 35 of its decision the court having referred to the Leander case said that:-
"the court has more recently advanced towards a broader interpretation of the notion of 'the freedom to receive information'... and thereby towards the recognition of a right of access to information".
- The reason why the Strasbourg Court had reached that decision was that it distinguished paragraph 74 of the Leander case on the grounds that:-
"the present case essentially concerns an interference – by virtue of a censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to other official documents…"preliminary obstacles created by the authorities in the way of press functions call for the most careful scrutiny". (Paragraph 36)
- The Tarsasag case was applied by the Court of Appeal in the case of the Independent News and Media Limited and Others v A [2010] 1 WLR 262 in which a number of media groups sought an order authorising the attendance of a limited number of their representatives at the Court of Protection hearing with a view to the court later granting them permission to report information about certain proceedings. In those proceedings the parents and sister of a man with severe disabilities sought an order that they should be jointly appointed as deputies and to take decisions on his behalf in relation to his personal welfare, his property and other affairs. The Court of Appeal (Lord Judge CJ, Lord Neuberger of Abbotsbury MR and Sir Mark Potter P) dismissed an appeal against the decision of the trial judge that the media should be granted authorisation to attend the hearing.
- In reaching that decision, Lord Judge CJ giving the judgment of the Court of Appeal attached substantial weight to the Tarsasag and Leander cases explaining in paragraph 44 that they:-
"Were decisions involving access to records kept by the executive arm of the government whereas the present case concerns access to what goes on in court, which renders the case for saying article 10 is engaged stronger… Further the complaint in this case is that of the media who want the information for public purposes, as in the...Tarsasag case, rather than being a complaint of an individual as in the Leander... cases. In addition the basis of the media interest is what is lawfully and appropriately in the public domain."
- Mr Millar contends that the Tarsasag case and the Independent News case show that the press have a right of access to documents of the kind sought in the present case. That is not correct because the decisions relied on by Mr Millar go no further than showing that in the Tarsasag case, the press were entitled to information about those claims and in the Independent case the press could discover what was said at the court hearing. Significantly, those two decisions do not give the press an unfettered right to the kind of documents sought in the present appeal.
- The Independent and the Tarsasag cases would only have been of assistance to the Guardian's case if its case in the present claim had been that it had been denied access to details of the claim (as in the Tarsasag case) or access to hear the proceedings (as in the Independent case). That clearly is not the case. We do not consider that there is any basis or any justification for extending the Article 10 rights of the Guardian so as to entitle it to inspect additional documents merely because its journalists have a genuine concern to see them. In addition, if the Guardian's case was correct and its journalists had a genuine desire to inspect documents which had been made available for the purpose of criminal proceedings (including unused material), such documents would then automatically become open for inspection even if they had not been relied on and even though they had been produced solely for the purpose of the criminal proceedings. This extension of Article 10 sought by the Guardian cannot be justified. For those reasons we do not think that Article 10 assists the Guardian.
V. The Position at Common Law
- First, we unhesitatingly approach this case as Mr. Millar suggests that we should on the basis of the need for cases to be "subject to the full glare of a public hearing" (per Lord Woolf M.R, in R v Legal Aid Board, ex parte Kaim Todner [1999] QB 966 at page 977) and that "Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice" (per Lord Steyn in In Re S (Identification: Restrictions on Publication [2005] 1 AC 593, 607-608 [30]). These and similar statements relied on by Mr. Millar are, of course, accepted but the obligations imposed by them have been met as there was no attempt to hold any part of the case in private and, as I have explained, the Judge found that "there was nothing relied upon and contained in the skeleton arguments which was not repeated orally in open court" (Paragraph 14 of the Case Stated). In addition it is not suggested that the judgments in the extradition proceedings against Mr. Tesler and Mr. Chodan are not comprehensive and self-contained documents.
- Second, a crucial issue in this case is whether the principle of open justice entitles the Guardian to inspect the documents and material, which is the subject matter of the case stated, and this entails consideration of what the principle of open justice requires and entails. The classic statement was delivered by Lord Diplock in Attorney-General v Leveller Magazine [1979] AC 440 when he stated at page 450A that: -
"The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they 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. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this."
- This shows that the requirements of the open justice would ordinarily be satisfied if first the proceedings in question are held in public and second that fair and accurate contemporaneous media reporting of the proceedings is not prevented by any action of the court. The Leveller case was not dealing with the right of the press to have access to documents before the courts.
- Third, the approach in that case also pre-dates the presentation of much written material to the court in the form of skeleton arguments which judges have to and do consider in private. Lord Scarman said about this trend in Home Office v Harman [1983] AC 280, 316 that:-
"When public policy in the administration of justice is considered, public knowledge of the evidence and the arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done".
- Lord Bingham CJ later considered this warning when he explained in SmithKline Beecham Biologicals Special Advocate v Connaught Laboratories [1999] 4 All ER 498, 511-512 that:-
"Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and of judges pre-reading documents (including witness statements) out of court, have become much more common. These means of saving time in court are now not merely permitted, but are positively required, by practice directions. 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.
In such circumstances, there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern. In some cases (especially cases of obvious and genuine public interest) the judge may in the interests of open justice permit or even require a fuller oral opening, and fuller reading of crucial documents, than would be necessary if economy and efficiency were the only considerations. In all cases the judge's judgment (delivered orally in open court, or handed down in open court in written form with copies available for the press and public) should provide a coherent summary of the issues, the evidence and the reasons for the decision.
Nevertheless, the tension between efficient justice and open justice is bound to give rise to problems which go wider than Order 24, rule 14A. Some of those problems were explored in the judgement of Potter LJ in Gio Personal Investment Services Ltd v. Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd Intervening) [1999] 1 WLR 984. As the court's practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman's warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain."
- The issue of access of the press to skeleton arguments was considered in the context of criminal appeals in R v Howell [2003] EWCA Crim 486 when at the conclusion of the hearing, a request had been received from a member of the press who had been present in court to be granted access to written skeleton arguments presented by counsel for the parties. Judge LJ giving the judgment of the court stressed the distinction between on the one hand words written on paper which "the court stated that they would be regarded as if they had been advanced orally in court" and, on the other hand written material which would not normally have been dealt with orally and which is not to be disclosed.
- Dealing with the first kind of evidence which is written on paper but expressly stated by the court to be treated as if advanced orally, Judge LJ explained that:
" The situation which sometimes arises, and which arose here, can be readily explained. We were helpfully provided by counsel with very lengthy, written submissions, analysing a vast body of material. We had pre-read them. It would have been wasteful of limited time for counsel to have read them out, or to have repeated them using different words. We therefore indicated that we should consider those written submissions after the conclusion of the hearing when we were reflecting on the case as a whole. It was implicit in what we said, and we are sure that counsel understood that we intended to convey, that we should treat the words written on paper as if they had been deployed in oral argument in open court. And that, indeed, is what we did. Subject to questions arising in connection with written submissions on PII applications, or any other express justification for non-disclosure on the basis that the written submissions would not properly have been deployed in open court, we have concluded that the principle of open justice leads inexorably to the conclusion that written skeleton arguments, or those parts of the skeleton arguments adopted by counsel and treated by the court as forming part of his oral submissions, should be disclosed if and when a request to do so is received".
He then proceeded to state (with emphasis added) that:-
"Subject to the detail to which we shall come in a moment, having read those two skeleton arguments, we see nothing in them that serves in any way to change our view, whether by way of emphasis let alone by way of principle. So the judgment will stand as at paragraphs 193 - 197. We shall indicate that, it seems to us that, and I shall read this from paragraph 197:
...the principle of open justice leads inexorably to the conclusion that written skeleton arguments, or those parts of the skeleton arguments adopted by the counsel and treated by the court as forming parts of his oral submissions, should be disclosed if and when a request to do so is received."
- It is noteworthy that after discussion with counsel, Judge LJ made it clear that "we are not ordering disclosure of statements" but in so far as part of the evidence is dealt with in the judgment or in the course of skeleton arguments or in the course of oral argument that part of it must be disclosed.
- Mr Millar has only been able to draw attention to one criminal case where he contends there has been an extension to this principle and that was the decision of the Court of Appeal in Howell (supra) but that does not assist the Guardian because in the present case, the Judge found that
"…There was nothing relied upon and contained in the skeleton arguments which was not repeated orally in open Court. In those circumstances and having the judgment in Howell in mind, I would not have thought it would be appropriate for this Court to direct that the skeleton arguments must be disclosed. In some cases it may be difficult to tell whether oral argument has fully covered all the points and in such cases it would be appropriate to err on the side of caution and allow disclosure to the press if asked. It would follow that where disclosure of the skeletons was appropriate members of the public would also be entitled to copies if they requested them." (Paragraph 14 of the Case Stated)
- Fourth, although Mr. Millar sought to obtain assistance from the rules governing the disclosure of material arising in civil litigation, those rules do not apply in criminal or extradition cases which have a different applicable regime. He referred us to the decision of Park J in Chan U Seek v Alvis Vehicles Limited [2005] 1 WLR 2965 in which it was held in a civil case that a non-party, which was the role of the Guardian in extradition proceedings could inspect and copy certain documents from the court file after the end of the trial. The reasoning of the judge was that the court's inherent jurisdiction did not entitle it to make the order sought (paragraph 16) but that the wording of CPR5.4(5) (b) permitted the granting of the order (paragraphs 28 to 46). There is nothing equivalent to CPR5.4(5) (b) in the Criminal Procedure Rules 2010 and so this case does not assist the Guardian.
- Similarly, the CPR contains provisions in Civil Procedure Rule Part 32.13 which provides in relation to civil proceedings that: -
"(1) A witness statement stands as evidence in chief is open to inspection during the course of the trial unless the court otherwise directs.
(2) Any person may ask for directions that a witness statement is not open to inspection"
- These provisions were introduced because the witness statement, which stands as evidence in chief, is deemed to be part of the evidence in a trial as if given orally and as such, it is open to inspection. In other words, it is very similar to the approach advocated in Howell, but in respect of witness statements used as evidence-in chief where the court expressly states that it regards written skeleton arguments as being part of the material adduced orally. It is also noteworthy that the right to inspect in CPR Part 32.13 only applies "during the course of the trial".
- There is no comparable provision to CPR 5.4(5) (b) or CPR Part 32.13 in the Criminal Procedure Rules 2010 even though the experienced committee who drafted them must have been aware of those provisions in the CPR but chose not to copy them or any other provision which gave a right of inspection.
- Although there is no authority which would entitle the Guardian to inspect the documents, which are the subject matter of this appeal, there is authority against this approach which shows that the principle of open justice in criminal proceedings does not extend to a right for the public or the press to inspect documents or other exhibits placed before the court. The decision of the Court of Appeal in R v Waterfield [1975] 1 WLR 711 shows clearly that there is a distinction between oral evidence and written evidence such as exhibits. Members of the public in court have a right to hear the former, but no right to see the latter.
- The significance of the decision in Waterfield is that the issue on the appeal was whether the proceedings in the Crown Court were a nullity as part of them had not been held in public because a number of films which were the subject of the charges of importation and sale of indecent material had been shown to the jury during the course of the trial at a time when the trial judge had closed the court to the public and the press.
- The appeal was dismissed and Lawton LJ explained at page 714 (with my emphasis added) that:-
"When evidence is given orally, all in court hear what is said. When written evidence is produced it may or may not be read out. In most cases part of what is written is read out, but not the whole. When a piece of real evidence is produced a witness has to say from where it came. This having been done, the jury looks at the exhibit. Usually the judge does too and counsel in the case may do so. The exhibit, however, is not shown to other persons who may be in court. They may be able to see what the article is: it may be a pistol or a knife. Sometimes they cannot; and if what is produced is a folder containing photographs (a common form of exhibit) they will not know what the photographs show unless either the judge, counsel or a witness describes them. The jurors have a duty to look at exhibits and to give them such significance as they think proper. Sometimes jurors have to use mechanical or electrical devices to appreciate what is of importance about an exhibit. Jurors with defective eyesight use their spectacles. Whatever is used is no more than a means by which the jurors look at and assess the real evidence which has been produced. The members of the public in court have no right to claim to be allowed to look at the exhibits. A film put in evidence has to be looked at by a jury and a screen and a projector are necessary to enable them to do so. Members of the public in court have no more right to see a film than they have to see any other exhibit; and the circumstances may be such that it would be impracticable, even impossible, to show the film in the courtroom itself. An example is provided by Attorney-General ex rel. McWhirter v. Independent Broad-casting Authority [1973] Q.B. 629. When the Court of Appeal decided to look at the television film which was in issue in that case they had to go to the respondents' premises to do so. The showing there was no more part of any hearing which had to be open to the public than is a judge's retirement to his room in order to read lengthy exhibits."
- This reasoning and in particular in the passage underlined shows that members of the public have no right to see any exhibit as if this was not the case, the Court of Appeal would at least have stated that there was a defect in the proceedings because there was a right to see the material shown in private, which was an exhibit in the case. This approach was applied to members of the press in R v Crook (1991) 93 Cr App R (S) 37 by the Court of Appeal (Lord Lane CJ, Macpherson and Pill JJ) who rejected a challenge by a journalist to orders excluding the public from proceedings. Waterfield was referred to and in answer to the point that it only related to members of the public and not the press, Lord Lane CJ explained at page 24 that "it would not be right as a general rule to distinguish between excluding the press and other members of the public". As a general rule this still holds good, even though, as we have explained in paragraph 23 the press have enhanced rights under article 10 as "social watchdogs" or "public watchdogs".
- As is well known, the Criminal Procedure Rules 2010 were drafted by an experienced committee who would have been aware of the decision in Waterfield but they chose not to revoke or qualify it in any way. It is noteworthy that Bennion on Statutory Interpretation (5th Edition) at page 711 states at section 235 that:-
"Parliament is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions. If therefore parliament has a subsequent opportunity to alter the effect of a decision on the legal meaning of an enactment but refrains from doing so the implications may be that parliament approves of that decision and adopts it. This is an aspect of what may be called tacit legislation".
- The same reasoning would apply to the Criminal Court Rules in which it can be inferred that the draftsman of them did not intend to undermine or qualify the Waterfield doctrine.
- There is in place legislation dealing with the right of citizens to obtain information of the kind sought in the present appeal. The Freedom of Information Act 2000 puts in place a regime which enables citizens of this country to obtain information from public authorities but there are certain possible providers of information who are exempt from complying with requests for information. The exempt requests would include requests to those responsible for looking after documents at the Magistrates' Court (whether it be the Ministry of Justice or the Court Service) which is a "public authority" within the meaning of the Act. Section 32 (1) of the Act states that
"Information held by a public authority is exempt information if it is held only by virtue of being contained in-
(a) a document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter".
- This would appear to cover the request which is the subject of the present application and it would be strange if a request for information which is specifically exempted under the Freedom of Information Act 2000 could nevertheless be made at common law or under Article 10. I should add that the 2000 Act has not been said to be incompatible with Article 10 or any other provision of the ECHR and we did not understand Mr. Millar to suggest that it was.
VI. Conclusion
- There are six main reasons why the claim must fail and they are now set out in no particular order of importance.
- First, as has already been explained, it is settled law as established in Waterfield that the principle of open justice in criminal proceedings does not extend to a right for the public, or after Crook for the press, to inspect documents or other exhibits placed before the court.
- Second, no case has been cited to us, which undermines or qualifies the reasoning in Waterfield. It is noteworthy that although Mr Millar relies upon Article 10 of the ECHR, as I have explained, he has not produced any case, which shows that the public or the press have any right to see the material which is the subject of this case stated bearing in mind the District Judge's findings in paragraph 14 of the Case Stated which we have set out in paragraph 1 above.
- Third, those responsible for the Criminal Procedure Rules 2010 must have been aware of cases such as Waterfield and Crook and took no steps to reverse or qualify them. It is a reasonable inference that they intended that the law as laid down in these cases should remain in force.
- Fourth, by way of contrast with the CPR, there are no provisions in the Criminal Procedure Rules 2010, which give any right of inspection of written evidence notwithstanding that the Rules are very detailed falling into 76 parts and containing over 500 separate provisions. These Rules were made pursuant to provisions in section 69 of the Courts Act 2003, and the absence of any rule conferring a right of inspection contrasts with the provisions in the CPR.
- Fifth, the Freedom of Information Act 2000 cannot be used to obtain the documents sought in this application. That Act contains a number of checks and balances, and no good reason has been advanced as to why those checks and balances should be overridden by the common law and/or Article 10.
- Sixth, insofar as Mr. Millar relies on the inherent jurisdiction of the court, Park J concluded that it did not assist and similarly it would not apply especially in the light of the prohibition in the Freedom of Information Act 2000, which is referred to in paragraph 53 above.
- The appeal must be dismissed and we answer in the affirmative the question for the High Court stated by the Judge, which was whether the court was correct in law in failing to provide for the inspection by, or disclosure to, Guardian News and Media Limited of the court documents specified in Guardian News and Media Limited's application.
