Guardian News and Media Ltd R (on the application of) v City Of Westminster Magistrates' Court

Open justice in criminal proceedings ordinarily requires public hearings, public communication of evidence given orally, and freedom to publish fair and accurate reports. It does not ordinarily give the press or public a right to inspect written evidence, exhibits, affidavits or correspondence merely because they were placed before the court or referred to in open proceedings.

Written submissions may be disclosable where the court has adopted them as part of oral argument. That limited principle does not extend to documents which were not so deployed. Article 10 of the European Convention on Human Rights does not create a general right for the media to obtain additional court documents. Nor can the absence of an equivalent inspection rule in the Criminal Procedure Rules be overcome through inherent jurisdiction or the Freedom of Information Act 2000.

The Guardian challenged a decision of District Judge Tubbs refusing access to documents used or referred to during extradition proceedings concerning two individuals. The documents included affidavits, witness statements, skeleton arguments and correspondence between prosecuting authorities.

The proceedings had been conducted in public. The District Judge found that the issues relied on in the documents had been fully addressed orally in open court and that the judgments were comprehensive and self-contained. The Guardian appealed by way of case stated under section 111 of the Magistrates’ Courts Act 1980 and also sought judicial review. The central issue was whether the press had a legal right to inspect or obtain copies of the documents.

1. The appeal was dismissed. The judicial review application consequently failed because the appeal by way of case stated provided the alternative remedy.

2. The principle of open justice requires proceedings to be held in public, evidence communicated to the court in criminal cases to be communicated publicly, and fair and accurate reporting not to be discouraged. Those requirements had been satisfied. The hearings were public, the relevant issues had been addressed orally, and the judgments were self-contained.

3. Article 10 of the European Convention on Human Rights gives the press enhanced protection in its watchdog role, but it does not confer an unfettered right to inspect additional documents merely because journalists have a genuine public-interest reason to see them. The authorities concerning access to information and attendance at hearings did not establish a right to obtain documents placed before a criminal court.

4. The decision in R v Waterfield remained applicable. In criminal proceedings there is a distinction between oral evidence, which the public may hear, and written evidence or exhibits, which the public has no general right to inspect. R v Crook confirmed that the general rule applied to the press as well as other members of the public.

5. The limited approach in R v Howell concerned written submissions expressly adopted by the court and treated as oral argument. It did not require disclosure of documents which had not been so deployed. The Civil Procedure Rules, including rules permitting inspection in civil proceedings, did not apply to criminal or extradition proceedings, and the Criminal Procedure Rules 2010 contained no equivalent right.

6. Neither the court’s inherent jurisdiction nor the Freedom of Information Act 2000 supplied the requested right of access. Section 32(1) of that Act specifically exempted information held only because it was contained in documents filed with or held by a court for proceedings.

• High Court (Administrative Court): dismissed the appeal by way of case stated and held that the associated judicial review application must also fail.
• City of Westminster Magistrates’ Court: District Judge Tubbs refused the Guardian’s application for inspection or disclosure of specified documents referred to or relied upon during extradition proceedings.