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

The statutory exclusion of appeals from judgments of the High Court in a criminal cause or matter does not extend to every decision arising in the context of criminal proceedings. The Court of Appeal may have jurisdiction where the disputed decision is essentially non-criminal, wholly collateral to the criminal proceedings, made on the application of a non-party, and incapable of affecting those proceedings.

Permission to appeal may be appropriate where a question is of general importance and developments in Article 10 jurisprudence arguably justify reconsidering earlier authority.

During public extradition proceedings, documents including written arguments, evidence and official correspondence were placed before the District Judge and referred to in court. Guardian News and Media Ltd, which was not a party to the extradition proceedings, sought access to them. The District Judge refused its application.

The Divisional Court dismissed both an appeal by case stated and a judicial review claim in [2010] EWHC 3376 (Admin). Guardian News and Media Ltd sought permission to appeal. The Court of Appeal had to decide whether section 18(1)(a) of the Supreme Court Act 1981 excluded its jurisdiction and, if not, whether permission should be granted.

1. Jurisdiction. The Court of Appeal had jurisdiction to hear the projected appeal. The exclusion in section 18(1)(a) of the Supreme Court Act 1981 had to be applied in the light of the authorities as a whole. The applicant's request for documents was wholly collateral to the extradition proceedings. It was made by a non-party, did not invoke the court's criminal jurisdiction and could have no bearing on the extradition proceedings themselves.
2. The authorities did not establish that every order made in the context of a criminal cause or matter necessarily assumed the same character. Amand v Home Secretary was decided where the challenged decision directly affected a participant in the criminal proceedings and their outcome. Its reasoning therefore did not compel the conclusion that jurisdiction was excluded in this materially different setting.
3. The conclusion in R v Southampton Justices, ex p Green was consistent with jurisdiction, although Lord Denning MR's reasoning in that case was demonstrably flawed and was not to be relied upon. The collateral-character explanation tentatively advanced in Carr v Atkins provided a sounder reconciliation. It was also consistent with the observation in Government of the United States of America v Montgomery that a dispute resulting from a criminal order may nevertheless be essentially civil.
4. The contrary decisions concerning witness summonses and production orders were not called into question. Those orders arose directly within criminal proceedings. Final coherence in this tangled field could be supplied only by the Supreme Court, but the present conclusion minimised inconsistency among the binding and persuasive authorities.
5. Permission. Permission to appeal was granted. The proposed appeal raised a point of general importance and arguably engaged Article 10 of the European Convention on Human Rights. Developments in Strasbourg jurisprudence arguably justified reconsideration of earlier domestic decisions concerning access to documents used in open court. The court deliberately expressed no view on the substantive merits.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1188 , the court unanimously held that it had jurisdiction and granted permission to appeal.
2. High Court, Divisional Court: Sullivan LJ and Silber J dismissed the appeal by case stated and the judicial review claim in [2010] EWHC 3376 (Admin) .
3. City of Westminster Magistrates' Court: The District Judge refused Guardian News and Media Ltd's application for access to documents produced and referred to during extradition proceedings.