26 October 2011 | By Katy Dowell
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Media law has been dominated by the News International phone-hacking scandal, but its worth remembering that newspapers will also use the courts for investigatory purposes.
This week, Guardian News and Media Ltd (GNM) was in court trying to do just that. The newspaper has been given permission for a full appeal hearing over whether it should have access to legal papers relating to the extradition of the UK solicitor Jeffrey Tesler to the US.
The Master of the Rolls Lord Neuberger chaired the judicial panel that heard the application alongside Lord Justices Jackson and Aikens. Neuberger MR said the uncertainty in the law around public access to the papers in question meant a full hearing was necessary.
This is the third time the newspaper group has been in court on the matter. Doughty Street Chambers’ Gavin Millar QC was instructed by Reynolds Porter Chamberlain for the newspaper.
The case was brought against the City of Westminster Magistrates’ Court, but legal responses were provided by the US Government, which instructed leading criminal silk David Perry QC of 6 King’s Bench Walk.
The Guardian wants access to papers discussed during the course of the extradition hearing in which judgment was handed down by District Judge Caroline Tubbs last March. Those papers include counsels’ written arguments, affidavits and witness statements, and correspondence between the Serious Fraud Office and the US Department of Justice.
Tubbs ruled that Tesler should be extradited to the US, where he is wanted on suspicion of being “implicated in the bribery of Nigerian officials on behalf of a subsidiary of the well-known US company Halliburton”.
It was at this point that Tubbs first rejected GNM’s application for disclosure of the documents. The newspaper appealed the decision through the divisional court and issued a judicial review application of the ruling.
The appeal and application were heard before Lord Justice Sullivan and Mr Justice Silber, who, after hearing arguments from GNML and the US Government as an interested party, dismissed both the appeal and the application.
Lord Justice Kay gave the claimant permission to go the CoA, stating that an oral hearing should be scheduled to determine whether a full hearing should be convened.
In court earlier this month, Perry argued for the US Government that while the papers were not a “criminal cause or matter” Tubbs’ decision to reject the disclosure application was made in the context of a “criminal cause or matter” . As such, he argued, the CoA had no jurisdiction to hear an appeal from the district court.
Countering, Miller argued that while the extradition proceedings were a “criminal cause or matter”, the order refusing its application for sight of the documents did not fall within that expression.
Giving the substantive judgment Neuberger MR said the area of law concerning access to legal papers “is less than satisfactory”.
He added: “Given that, in the absence of authority, it appears to me that either party’s case would be maintainable, I consider that we should accept the case which can best be reconciled with the authorities taken as a whole, or, perhaps to put the same point another way, the case which minimises future confusion and uncertainty.
“In my judgment, that approach justifies the conclusion that, in relation to GNML’s projected appeal, this court does have jurisdiction to hear it.”
If successful The Guardian’s application will no doubt have implications for media access to papers in other controversial extradition proceedings, the most famous of which being Gary McKinnon’s case (24 February 2010).