Senior judges have rejected a press application for access to documents in criminal proceedings, in a case which highlights the limits of open justice.
Two senior reporters covered the hearings and had already been given a copy of some “opening notes” and a “skeleton argument” relied on by some of the parties’ lawyers in court. But the Guardian requested more, including copies of other notes, skeleton arguments, affidavits, witness statements, and correspondence.
The Magistrates’ Court rejected the request, so an appeal was lodged relying on the media’s right to receive and impart information freely, under Article 10 of the European Convention on Human Rights and general open justice principles.
However, Lord Justice Sullivan and Justice Silber rejected the appeal. They relied on a relatively old case, R v Waterfield , stating that the principle of open justice in criminal cases does not extend to a general right for the public or the press to inspect documents or other exhibits that have been placed before a court in publicly-heard proceedings.
The two judges clearly felt the press application was over-ambitious as they noted the issues in the extradition hearings had been “fully set out” in oral submissions in open court, and there was nothing relied upon and contained in the skeleton arguments which had not been repeated orally in open court.
They said in the interests of open justice the press would generally be allowed access to any skeleton arguments or written submissions that were not read aloud in court, but it was not entitled to copies of evidence, exhibits or other documents used in court.
On the plus side, the court agreed the media had enhanced freedom of expression rights under Article 10 as compared with private individuals. This was because the press performed a vital role as a “social watchdog” in a democratic society.
On the down side, the court confirmed that criminal justice in this country is less open than civil justice in various respects.
In civil cases, the right of the press and the public to have access to court documents that have not been read aloud in court is relatively generous. The Civil Procedure Rules 1998 allow public access to litigants’ pleadings – the so-called “statements of case”. The rules also allow for the inspection of any witness statement during a trial, unless the court directs otherwise.
For some reason, similar public-access provisions were not included in the Criminal Procedure Rules 2010. This is an odd state of affairs, because court proceedings are supposed to be particularly transparent where the State prosecutes its citizens – i.e. in criminal cases.
The ruling shows the limits of open justice. The Guardian was said to be considering a further appeal.
Meanwhile, the Lord Chief Justice has shown himself to be in step with modern life by issuing media-friendly guidance on the use of Twitter and other live text-based communications for court reporting.
Lord Judge said reporters would need to seek permission from the relevant judge. But he said that subject to the court being satisfied that there would be no interference with the administration of justice, the “use of an unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice”.
This is Lord Judge’s “interim” guidance, pending the outcome of a consultation on the issue involving the judiciary, the Secretary of State, the Attorney General, Director of Public Prosecutions, Bar Council, Law Society, Press Complaints Commission, Society of Editors, and the public.