RPC and Doughty Street seal CoA victory for The Guardian

RPC senior associate Brid Jordan and Doughty Street Chambers’ Gavin Miller QC have won a major case for The Guardian in the Court of Appeal (CoA), which ruled that the media has a right to see documents used in criminal cases.

The Guardian appealed a judicial review ruling given by the Administrative Court that found that the newspaper was not entitled to see court documents relating to a extradition hearing concerning UK solicitor Jeffrey Tesler and Wojciech Chodan.

The US had been given permission to extradite the pair over allegations that they were involved in the bribery of Nigerian officials by Kellogg Brown and Root (KBR), a subsidiary of US company Halliburton. They pleaded guilty to the allegations in Texas.

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. Human rights organisation Article 19 intervened in the appeal with Doughty Street’s Heather Rogers QC instructed by Leigh Day & Co partner Sean Humber.

In civil cases the right to see court documents is well established, whereas in criminal matters no such right existed.

In court, Perry argued that while the papers were not a “criminal cause or matter” the decision to reject The Guardian’s 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 contended 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.

He added that to reject his client’s request was an infringement of article 10 of the Human Rights Act, the right to freedom of expression. Perry dismissed the argument, stating that the extradition application was plain and that under the ’Leander’ principle article 10 is essentially a protection of freedom of speech and not freedom of information.

Furthermore, added Perry, Parliament had expressly exempted public authorities, which would include a court, from any obligation under the Freedom of Information Act to produce a document placed in the custody of the court for the purposes of proceedings in a particular cause or matter.

Ruling in favour of The Guardianand paving the way for further media access to criminal court papers, Lord Justice Toulson said: “The Guardian has a serious journalistic purpose in seeking access to the documents. It wants to be able to refer to them for the purpose of stimulating informed debate about the way in which the justice system deals with suspected international corruption and the system for extradition of British subjects to the USA.”

Court documents should not be excluded from the Freedom of Information Act, the court ruled, adding: “Parliament should not be taken to have legislated so as to limit or control the way in which the court decides such a question unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention.”

The courts should “assist rather than impede” the free press, the court said. Toulson concluded: “The way in which the justice system addresses international corruption and the operation of the Extradition Act are matters of public interest about which it is right that the public should be informed. The public is more likely to be engaged by an article which focuses on the facts of a particular case than by a more general or abstract discussion.”

Legal line-up:

For the appellant Guardian News and Media Group: Doughty Street’s Gavin Millar QC and 5RB’s Adam Wolanski instructed by RPC partner Brid Jordan.

For the interested party the Government of the USA: 6 King’s Bench Walk’s David Perry QC and 6 King’s Bench Walk’s Melanie Cumberland.

For the intervener in the appeal Article 19: Doughty Street’s Heather Rogers QC and Doughty Street’s Ben Silverstone instructed by Leigh Day & Co Solicitors.