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

The common-law principle of open justice gives a court inherent jurisdiction to permit a non-party to inspect documents placed before the judge and referred to in public proceedings. The principle enables public understanding and scrutiny of the justice system; it is not confined to policing the conduct of the judge.

Access should ordinarily be permitted, and a proper journalistic purpose creates a particularly strong case. The court must conduct a fact-specific proportionality exercise, weighing the value of disclosure for open justice against any harm to legitimate interests. Procedural rules regulate the process for an application but do not displace the underlying common-law power.

The Guardian sought access to written arguments, affidavits or witness statements, and correspondence supplied to a District Judge in extradition proceedings under the Extradition Act 2003. The documents had been referred to at hearings held in public, but had not been read out in full.

The District Judge refused the request on the basis that she lacked power to grant it. The Administrative Court dismissed the Guardian’s judicial-review claim. It held that the open-justice principle did not confer a right to inspect exhibits or documents and that neither the procedural rules nor the freedom-of-information regime assisted.

The Guardian appealed. The central issue was whether the magistrates’ court had power, under the common-law principle of open justice, to allow a journalist access to the documents.

1. Appeal allowed. Toulson LJ, with whom Hooper LJ and the Master of the Rolls agreed, held that the Guardian should be allowed access to the requested documents.

2. Open justice is a constitutional common-law principle. It applies broadly to tribunals exercising the judicial power of the state. Courts therefore have inherent jurisdiction to decide what the principle requires in their own proceedings. A statute will limit that responsibility only if its language makes Parliament’s intention unequivocally clear.

3. Section 32 of the Freedom of Information Act 2000 did not curtail that jurisdiction. Its exclusion of court documents from that Act was concerned with the statutory information regime. It did not prevent a court itself from granting access where open justice required it. Likewise, rule 5.8 of the Criminal Procedure Rules 2011 provided an application process; it did not displace the common-law power.

4. The purpose of open justice extends beyond deterring judicial impropriety. It enables the public to understand and scrutinise the justice system. Modern reliance on written material not fully read aloud can make proceedings less intelligible to the press and public. That consequence may require access to documents which were placed before the judge and referred to in court.

5. Where such access is sought, the default position is that it should be permitted. A proper journalistic purpose is especially weighty. The court must undertake a fact-specific proportionality exercise. It should consider the purpose of open justice, the material’s potential value in advancing it, and the risk of harm to others’ legitimate interests. No fixed formula determines the weight of countervailing considerations.

6. The Guardian had a serious journalistic purpose connected with public debate about international corruption and extradition. Disclosure posed no identified risk of harm, confidence breach, or substantial burden. Earlier decisions concerning exclusion from viewing an exhibit or a private commercial interest in evidence did not govern these circumstances.

7. The court based its decision on the common law, not article 10. Toulson LJ observed that Strasbourg jurisprudence might point in the same direction, but did not decide the scope of any article 10 access right. Hooper LJ would also have construed rule 5.8(7) as extending to witness statements and exhibits; the Master of the Rolls agreed with that construction while leaving open whether the rule itself conferred the power.

• Court of Appeal (Civil Division): Allowed the Guardian’s appeal and directed disclosure under the common-law principle of open justice: [2012] EWCA Civ 420.

• Administrative Court, Queen’s Bench Division: Dismissed the Guardian’s judicial-review challenge to the District Judge’s refusal to permit access to the documents.

• City of Westminster Magistrates’ Court: The District Judge refused the Guardian’s request for access to material used in the public extradition hearings.