Public Law

Back in February I blogged about the BBC’s success in gaining access to productions in a criminal trial in Scotland. As I mentioned in my blog, the position is different in England and Wales because a CPS protocol says that prosecution material which has been relied upon by the Crown in court should normally be released to the media. Nonetheless, issues over access to documents in court can still arise where the documents sought are the written arguments of the lawyers presenting the case and the supporting documents they refer to in making their arguments. Earlier this month in R (o.t.a Guardian Newspapers) v. City of Westminster Magistrates Court, USA as Interested Party, the Court of Appeal ruled that with due regard to the principle of open justice the default position is that there should be access to court documents. Where access is sought for proper journalistic purposes, the case for allowing it will be particularly strong.

The Guardian applied for access to documents relating to the extradition proceedings of a London solicitor and a former executive of Halliburton accused of bribery. The Guardian had been present in court but refused access to the written arguments submitted by the USA and the defendants, affidavits supporting the extradition, and various other letters and documents. Although the case was heard in an open court the Guardian argued that the increasing use of written arguments makes it difficult for the media to follow complex cases in an open court without having access to the written arguments and corresponding documents.

Interestingly, in reaching their decision to allow access, the Court of Appeal relied more on the common law than European human rights case law – in particular case law relating to Article 10 of the Convention which protects freedom of expression. Toulson LJ who gave the leading judgement noted that, “The development of the common law did not come to an end on the passing of the Human Rights Act” and that “…I base the decision on the common law and not on article 10.” Also of note was Toulson LJ’s observation that section 32 of the Freedom of Information Act, which excludes access to court documents, was irrelevant in this case. His reasoning was that Parliament should not be taken to have legislated to limit or control the way in which the court decides a question affecting openness, unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention.

With written arguments from lawyers just as common in the courts of Scotland it will be interesting to see what use, if any, the Scottish media make of this decision.

Niall McLean