An application by Guardian News & Media for access to documents referred to in open court in an extradition case has been unsuccessful. As reported by the Guardian on 25 March 2010, it made an application to District Judge Tubbs for copies of these documents. However, in a ruling of 20 April 2010 the District Judge dismissed this application, refusing access to the documents.
The Guardian sought documents essentially in four categories: (i) Skeleton arguments; (ii) prosecution affidavits and witness statements; (iii) certain correspondence between the SFO and the US Department of Justice; (iv) certain correspondence from Mr Tesler’s solicitors. All these documents had been referred to in open court in the course of the hearing. The Skeleton Arguments were subsequently provided voluntarily by the prosecution and the defendant.
The District Judge said that there was nothing in the Skeleton Arguments which had not been developed orally and that, as a result, he would not have ordered their disclosure. In relation to the other documents, she said that there was no equivalent to the civil rules allowing access to documents mentioned in court (CPR 5(4) and 33.12) in the Criminal Procedure Rules and no presumption that documents or exhibits in criminal cases would be made public. She relied on the case of R v Waterfield ( 1 WLR 711) as authority for the proposition that the principle of open justice does not extend to a right to the public to inspect documents or exhibits placed before the court. As a result, she held that the Court had no power to direct the provision of the documents requested.
We suggest that this decision is wrong for a number of reasons. The right to open justice must be practical and effective. Full reporting and understanding of a case involves not just hearing what is said in open court but also being able to read the documents. It has long been recognised in the civil context that there should be no distinction between documents read by the court and documents read out in open court – now that it is no longer the practice of counsel to read documents aloud in open court or to lead the judge through the evidence, document by document (see SmithKline Beecham Biologicals SA v Connaught Laboratories Inc  4 All ER 498). It is difficult to see why the same approach should not be taken in criminal cases. The reliance on the Waterfield decision was misplaced. That case did not directly concern the right of the press to look at exhibits but rather the question as to whether certain films had to be shown in open court. It was assumed that there was no public access to exhibits without any analysis of the point.
Most importantly, the District Judge failed to address the fact that as a public authority the court is bound to act in a way that is consistent with rights under the European Convention on Human Rights. The Convention right of access to information found in Article 10 (and recently affirmed in the court reporting context by the Court of Appeal in A v Independent News and Media  EWCA Civ 343) means that Article 10 is engaged when the media are seeking access to information from a public authority. Although the right to access is not absolute, interference with the positive obligation to make information available to the media must be justified under Article 10(2). No such justification was advanced or even considered by the District Judge.
It is interesting to compare the approach taken in the Tesler case to the approach to these issues in Canada where the applicable legal principles have been analysed in a number of Supreme Court cases (Dagenais v. Canadian Broadcasting Corp.  3 S.C.R. 835, R. v. Mentuck, 2001 SCC 76, and Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41) and can be summarised as follows:
1. There is a rebuttable presumption that judicial proceedings are open and public: Toronto Star, para. 14.
2. Section 2(b) of the Charter guarantees freedom of communication and freedom of expression, fundamental freedoms which depend for their vitality on public access to information of public interest including access to that which goes on in the courts: Toronto Star, para. 2.
3. If public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of the system of justice then a temporary or permanent denial of access may be warranted: Toronto Star, para. 3.
4. The circumstances in which access may be denied are limited:
“Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively “open” in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of the justice or unduly impair its proper administration”: Toronto Star, para. 4
5. The Dagenais/Mentuck test is applicable at every stage of the judicial process but must be applied in a flexible and contextual manner: Toronto Star, para. 8.
6. A limitation on access should only be ordered when the salutary effects of the order outweigh its negative impact on the freedom of expression of those affected by the ban. As stated in Dagenais and modified in Mentuck, restrictions on access should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice: Toronto Star, para. 26.
7. Finally, the Dagenais/Mentuck test should not be applied mechanistically:
“Regard must always be had to the circumstances in which a sealing order is sought by the Crown, or by others with a real and demonstrated interest in delaying public disclosure. The test, though applicable at all stages, is a flexible and contextual one. Courts have thus tailored it to fit a variety of discretionary actions, such as confidentiality orders, judicial investigative hearings, and Crown initiated applications for publication bans“: Toronto Star, para. 3.
The application of these principles is illustrated by the recent decision in Global BC v The Queen  BCCA 169. Mr. Fry had been convicted of first degree murder. He confessed to the crime to a “crime boss” in a police undercover operation involving a number of undercover police officers. The confession was recorded on videotape which was an exihibit and was played at the trial in open court (subject to a restriction on identifying undercover officers). After the conviction the media applied for access to the videotape. The trial judge dismissed the application. The Court of Appeal held that there is a strong common law presumption in favour of access to information provided in the judicial process and that real risk to the administration of justice must be shown, not speculation, if access is to be denied. As a result the appeal was allowed.
There can be no doubt that if these principles had been applied in the Tesler case disclosure of the exhibits would have been ordered. We suggest that similar principles should, indeed, be applied in England.
[Update] We understand that the Guardian is seeking a judicial review of the District Judge’s decision.