A little while ago, I argued that liberty, democracy and the rule of law together constitute the constitutional trinity on which many modern states are founded, and that, not only are there the traditionally understood strong liberal and democratic justifications for freedom of expression, there are also equally strong free speech justifications founded in the rule of law. In last week’s decision in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420 (03 April 2012), the Court of Appeal for England and Wales made this point in rhetoric of great eloquence, perspicuity and vigour (though the judgments are curiously ambivalent in their ambit and ambition).
In my earlier post, I argued that, a commitment to the rule of law – where law is equally applied in open court by an impartial judiciary – both reinforces and is reinforced by robust protection of freedom of expression. The proper protection of fundamental rights reinforces the necessity for the protection of free speech as one of those fundamental rights. The proper functioning of impartial judicial tribunals is reinforced by the protection of free speech, which ensures monitoring of and comment upon the operation of such tribunals. The proper role of government is similarly reinforced by the protection of free speech, which ensures monitoring of and comment upon the operation of government. Moreover, the protection of free speech allows for the discussion of laws to ensure that they meet the basic requirements or irreducible minima of good laws. Hence, many of the elements of freedom of expression which we take for granted seem to flow at least as much from the rule of law as they do from liberal and/or democratic free speech justifications.
Against this background, it is clear that the great principle of open justice is one of the foundations of modern media speech rights, and that scrutiny both of the operation of government and of the administration of justice is central to the justification of the watchdog role of the media. Yesterday’s decision in Guardian v Westminster Magistrates emphasises that not only is the ancient principle of open justice crucial to the rule of law, it is at the very heart of the common law tradition (see: David Banisar on Inforrm’s Blog reprinted from the Guardian | Brid Jordan on RPC Privacy Blog | Judith Townend on Meeja Law). This insight is both important and limited – important, in that it re-emphasises the pre-eminence of the principle of open justice; but limited, in that a common law principle is far more susceptible to statutory limitation than is a constitutional one. Lord Justice Toulson, for the Court, begins his judgment with a stirring paean to the principle (with added links):
1. Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well known passage quoted by Lord Shaw of Dunfermline in Scott v Scott  AC 417, 477:
Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.
2. This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice. …
4. There are exceptions to the principle of open justice but, as Viscount Haldane explained in Scott v Scott, they have to be justified by some even more important principle. The most common example occurs where the circumstances are such that openness would put at risk the achievement of justice which is the very purpose of the proceedings.
Toulson LJ concluded that the principle of open justice principle is located not in written text but in the common law, and that the courts have an inherent jurisdiction to determine what open justice requires and how the principle should be applied. It applies to all tribunals exercising the judicial power of the state. Moreover, although parliamentary sovereignty means that the open justice principle may be affected by statute, the courts will conclude that this has occurred only where the language of the statute makes it plain beyond doubt that this is indeed the intention of the legislature. Hence, for Toulson LJ, the case provided a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere. He therefore allowed an application by the Guardian for access to documents which were placed before the District Judge and referred to in the course of the extradition hearings. Many of the issues had been canvassed by the New Zealand Law Commission, and the common law principle was reaffirmed in the strongest possible terms by Toulson LJ for the Court of Appeal in Guardian v Westminster Magistrates in holding that the Guardian was indeed entitled to have access to the documents lodged in court:
76. … 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.
77. Unless some strong contrary argument can be made out, the courts should assist rather than impede such an exercise. The reasons are not difficult to state. 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. …
83. The courts have recognised that the practice of receiving evidence without it being read in open court potentially has the side effect of making the proceedings less intelligible to the press and the public. This calls for counter measures. …
85. In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. … I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.
This is an important decision, not only for the law in England and Wales, but for the common law at large. It emphasises the centrality of open justice and the rule of law to the common law tradition. And, tellingly, it does so, neither in dicta nor in a rule which is found wanting on the facts, but in a ruling which upholds the principle on the facts. Moreover, for Toulson LJ, the fact that he is applying a common law principle rather than a constitutional principle or one derived from the European Convention on Human Rights is very much a virtue. For him, the “development of the common law did not come to an end on the passing of the Human Rights Act”. This is a welcome reaffirmation of the strengths of the common law, but it is more than a touch over-chauvinistic, and certainly more limited than it needs to be. Other jurisdictions go further, providing constitutional foundations for the principle. And these are important, as they provide further protections when the common law reaches its limits.
Toulson LJ located the limits of the common law principle of open justice in plain statutory language. However, in jurisdictions with constitutional and similar texts, legislative provisions can be subjected to further scrutiny. For example, in Ireland and the UK, the statutory incorporations of the ECHR mean that any legislative restrictions upon the principle of open justice must be read in a manner compatible with Convention rights such as Article 6 (fair trial) and Article 10 (freedom of expression). Moreover, in jurisdictions such as Ireland, the US, South Africa, and Canada, where the principle of open justice is underpinned by constitutional provisions, then overbroad or disproportionate legislative restrictions upon the principle of open justice can be struck down as unconstitutional.
Hence, if the UK government were to extend “closed material procedures” (so-called secret courts) by statute, then the common law principle of open justice would be displaced, but that Act would have to be interpreted consistently with the ECHR (or suffer a declaration of incompatibility in the UK courts or an embarrassing – and no doubt controversial – reverse in Strasbourg). And if such a statute were to be introduced in a jurisdiction with a constitution, it would have to survive an additional level of scrutiny, as by being a proportionate or narrowly tailored response to a legitimate end or compelling state interest. Touslon LJ’s decision, therefore, is a welcome reaffirmation of strengths of common law, but it is more limited than it needs to be.
The image at the top of this post is a relief of a blindfolded lady justice on the front wall of the new Criminal Courts of Justice complex in Dublin (here’s a better photo by Will Knott). The blindfold represents the impartiality that is at the heart of the rule of law. Open justice safeguards this impartiality, and ensures that not only is justice seen to be done, but also that it is manifestly and undoubtedly seen to be done.
This post originally appeared on the Cearta.ie blog and is reproduced with permission and thanks.