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

Courts have an inherent common law jurisdiction to determine the requirements of open justice. Where documents have been placed before a judge and referred to in proceedings, the default position is that access should be permitted. A proper journalistic purpose strengthens the case for access. Documents need not have been read aloud or formally treated as read in open court.

Access remains subject to a fact-specific proportionality assessment. Central considerations are the purpose of open justice, the material’s potential contribution to public understanding and scrutiny, and any harm to others’ legitimate interests. Statutory exemptions from freedom of information obligations do not remove this jurisdiction. Parliamentary interference with the courts’ responsibility for open justice requires unequivocal statutory language.

The United States Government sought the extradition of Geoffrey Tesler, a London solicitor, and Wojciech Chodan, a former executive of a company associated with Kellogg Brown and Root. Both were British citizens alleged to have participated in bribing Nigerian officials. Their extradition hearings took place in public, and the district judge ordered their extradition.

Guardian News and Media Limited, whose journalists were investigating international corruption and extradition arrangements, requested copies of written arguments, affidavits, witness statements and correspondence placed before the district judge and referred to during the hearings. The documents had not been read aloud in full. The district judge refused the applications because she considered that she lacked power to grant access.

The Administrative Court, comprising Sullivan LJ and Silber J, dismissed the Guardian’s judicial review claims. The Guardian appealed, supported by written submissions from Article 19, an organisation campaigning for freedom of expression. The United States Government opposed the appeal. The central questions were whether the court possessed a common law power to permit access and whether access should be granted in these circumstances.

1. The appeal was allowed unanimously. The Guardian was to be allowed access to the requested documents. Toulson LJ’s common law reasoning was adopted by Hooper LJ and the Master of the Rolls.

2. Open justice was a constitutional common law principle whose requirements were for the courts to determine, subject to legislation. Its purpose extended beyond preventing judicial impropriety to enabling public understanding and scrutiny of the justice system. All tribunals exercising the state’s judicial power possessed an inherent jurisdiction to determine its application. Their statutory origin did not require a separate statutory grant of that jurisdiction.

3. The exclusion of court documents from the Freedom of Information Act 2000 did not preclude courts from permitting access under the common law. Parliament’s intention to limit the courts’ responsibility for open justice had to be plain beyond possible doubt. The criminal procedural rules supplied a process for exercising an existing power.

4. Where documents had been placed before a judge and referred to during proceedings, the default position favoured access. A proper journalistic purpose made the case particularly strong. R v Waterfield concerned whether exclusion from viewing a film invalidated criminal proceedings. GIO Personal Investment Services Limited v Liverpool and London Steamship P & I Association Limited concerned access sought to assist separate litigation, without issues of informing the public on matters of general interest.

5. Receiving written material without reading it aloud could make proceedings less intelligible to the public. Access might therefore be necessary, as the concerns expressed in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc indicated. Neither reading every document aloud nor formally declaring it read was required. Where credible evidence showed that reporting had been hampered, courts should be cautious about making editorial judgments concerning the adequacy of information already available.

6. The court had to undertake a fact-specific proportionality assessment rather than apply a standard formula. Central considerations were the purpose of open justice, the material’s potential value in advancing it, and risks to others’ legitimate interests. Sensitive information concerning children or vulnerable adults could raise different considerations. Here, the Guardian demonstrated good reasons for access, and disclosure presented neither an identified risk of harm nor a substantial burden on the court.

7. The decision rested on the common law, fortified by persuasive authorities from other common law jurisdictions. Article 10 of the European Convention on Human Rights was not the basis of decision. Its application remained uncertain because the court lacked the information monopoly present in the principal Hungarian authorities.

8. Hooper LJ and the Master of the Rolls agreed that rule 5.8(7)(b) included witness statements and exhibits. They also agreed that the expression criminal cause or matter in section 68 of the Courts Act 2003 should receive an appropriately broad meaning. Hooper LJ would additionally have been minded to find an independent power under the amended rules. The Master of the Rolls expressly left that unnecessary and unargued question open.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 420 , allowed the Guardian’s appeal and directed access to the requested documents.
• Court of Appeal: In an earlier decision, [2011] EWCA Civ 1188 , held that it had jurisdiction to entertain the appeal because the access application was wholly collateral to the extradition proceedings.
• High Court, Administrative Court: Sullivan LJ and Silber J dismissed the Guardian’s judicial review claims, agreeing that the district judge lacked power to order access.
• City of Westminster Magistrates’ Court: District Judge Tubbs refused the Guardian’s document applications on 20 April 2010, having concluded that the court lacked the necessary power.