Lasting Powers of Attorney: recent key developments
Clarification of the default position for disclosure requests by non-parties on the basis of open justice
Extradition proceedings were brought against the US Government under the Extradition Act 2003 regarding two British citizens before District Judge Tubbs (DJ Tubbs). The proceedings were conducted in open court in their entirety and it was held that both defendants were to be extradited. Prior to DJ Tubbs issuing her judgment, Guardian News and Media Ltd (G) made a written request for disclosure of certain documents referred to during the proceedings, but not read out. The documents included, inter alia, affidavits and witness statements.
DJ Tubbs decided against G’s request. Whilst acknowledging the importance of the open justice principle, DJ Tubbs highlighted the fact that the public and press had not been excluded from any part of the proceedings and stressed how, in turn, all oral submissions were available to both press and public. After reviewing the applicable case law and Criminal Procedure Rules 2010, she held that the District Court did not have the power to approve G’s request. DJ Tubbs emphasised the delay and public expense incurred in copying and providing the paperwork referred to during proceedings and the impact this would have on contemporaneous reporting of the case in hand.
G subsequently made an application for judicial review of DJ Tubbs’ decision, arguing that at common law she did have the power to allow its application for disclosure with reference to Attorney General v Leveller Magazine  ACC 440, whereby a Magistrates’ Court has the power to regulate its own procedure. To this end, it was contended that a District Judge hearing an application for an extradition order under the Extradition Act is deemed a court of law by virtue of section 77 of the Extradition Act. G also relied on Article 10 of the European Convention on Humans Rights, as incorporated by the Human Rights Act 1998, arguing that the right to freedom of expression reinforced the common law open justice principle.
G further submitted that the case raised issues of a public interest and therefore G had a journalistic purpose for requesting disclosure of the documents; the administration of justice would not be jeopardised by G reviewing the documents in question; and the rights of the parties involved in the extradition proceedings, and those of third parties, would not be contravened by G having sight of the documents. In addition, G contended that owing to the focus on efficiency in recent years, judges are increasingly reading documents provided to them in private rather than reading out their content during proceedings. Consequently, journalists have to rely on one of the parties willingly disclosing the paperwork to them in order to accurately report all details of the case.
Lord Justice Sullivan and Justice Silber of the Administrative Court found against G’s application. They held that R v Waterfield  1 WLR 711 and R v Cook (1991) 93 Cr App R (S) were settled authorities for the principle of open justice in criminal proceedings not extending to enable the public, and the press, to review documents or other exhibits put before the court during such proceedings and that no authority had followed since to overrule this. Further, the Criminal Procedure Rules 2010 (‘the Rules’) did not outline any provision to overrule Waterfield and Cook and therefore it was implicit that the drafters of the Rules did not intend to reverse these authorities; no provisions in the Rules give the right to disclosure of the evidence requested by G. Finally, it was held the Freedom of Information Act 2000 could not be relied upon by G in that the ‘checks and balances’ put in place by the 2000 Act were not overridden by the Common Law and Article 10 arguments submitted by G. Further, any arguments based on the ‘inherent jurisdiction of the court’ did not stand as section 32(1) of the 2000 Act provides that a public authority is exempt from any obligation to disclose a document ‘placed in the custody of a court for the purposes of proceedings in a particular cause or matter’ (para 22).
G appealed against their application for judicial review having been rejected with leave of the court. The Court of Appeal allowed Article 19, a not for profit organisation centred on campaigning in favour of free expression globally, to intervene in support of G’s appeal. Article 19 issued written submissions during the proceedings outlining the approach taken by courts in other common law countries regarding the requirements of the open justice principle.
In conjunction with the arguments presented to the Administrative Court outlined above, it was argued on behalf of G that the authorities of Waterfield and Cook were distinguishable on the facts and that no concrete principles regarding disclosure were issued by these authorities.
Lord Justice Toulson provided the leading judgment. He emphasised the common law nature of the open justice principle and, therefore, ‘the courts…inherent jurisdiction to determine how the principle should be applied’ (para 69).
His honourable Lord Justice found the references to the Freedom of Information Act irrelevant, in that if Parliament intended to ‘limit or control’ (para 73) the way in which the courts interpret the common law principle of open justice this should be expressly conveyed in the wording of the statute. Similarly, references to the Criminal Procedure Rules was deemed irrelevant as the Rules lay down the process for a request such as G’s but the ultimate power lies with the courts.
Lord Justice Toulson considered G’s application to be of the utmost importance in that disclosure was for the purpose of G ‘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’. In turn, ‘Unless [sic] some strong contrary argument can be made out, the courts should assist rather than impede such an exercise’ (paras 76-77).
Lord Justice Toulson considered the counter-arguments to be as follows: that the open justice principle is satisfied if the proceedings are held in public and reporting permitted; G’s application would go further than the court’s had gone in the past; the issues of the extradition proceedings in question were openly referred to in court and disclosure was thus unnecessary and, finally, the practical problems, such as delays, disclosure would entail. He considered such counter-arguments to not be strong enough, in particular stressing that the practice of courts is not ‘frozen’, the authority of Waterfield was ‘quite different’ on the facts (para 80) and a case considered thirty-five years ago and therefore not, in his opinion, the authority for determining how the current case should be resolved.
He ultimately ruled that the default position with regard to the open justice principle should be that access is permitted and that, ‘where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong.’ However, the courts will carry out a proportionality exercise that will be ‘fact-specific’ and which will include an assessment of the ‘risk of harm which access to the documents may cause to the legitimate interests of others’ (para 85). Exercising this proportionality assessment, Lord Justice Toulson allowed G’s application. Lord Justice Hooper and the Master of the Rolls agreed with the judgment of Lord Justice Toulson and allowed G’s appeal.
Requests made by the public and press for disclosure of documents referred to, but not openly read out, during the public proceedings of a matter investigated by a regulator are now strongly bolstered by this decision, particularly if the request is made for ‘journalistic purposes’. Only the ‘legitimate interests of others’ stand to curtail arguments centred on the open justice principle.
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