3 April 2012
In a ground-breaking judgment, the Court of Appeal has directed that journalists should be allowed access to documents referred to, but not read out, in Court proceedings.
Leigh Day were instructed by ARTICLE 19, a not for profit organisation which campaigns globally for free expression, to intervene in a successful appeal by the Guardian newspaper to the Court of Appeal against the refusal of City of Westminster Magistrates Court to disclose documents considered as part of extradition proceedings.
The extradition proceedings were brought by the US Government against two British citizens alleged to have been involved in the bribery of Nigerian officials by Kellog Brown and Root, a subsidiary of the well known US company Halliburton.
Following the hearings of these extradition proceedings, the Guardian, whose reporters had attended the court, requested copies of a number of documents, including witness statements and correspondence, passed to, and considered by, the District Judge but not read out in Court.
The District Judge refused the Guardian’s application for this documentation stating that she had no power to allow the release of the documents.
The Guardian applied for a Judicial Review of the District Judge’s decision. In its application, it confirmed its long interest in investigating stories of bribery and corruption of public officials. It argued that the public interest issues in this case included the following:
What were the two British citizens alleged to have done when participating in the scheme to bribe foreign officials/politicians in Nigeria?
Was the scheme run through London because the UK then had weak laws against overseas corruption?
Why was the US Government, rather that the SFO, seeking to prosecute the two British citizens? Had the SFO taken a back seat so as to allow the US Government to extradite and prosecute them?
Has the UK, by the 2003 Bilateral Extradition Treaty with the USA, made it too easy for the US Government to extradite British citizens, even when the offences alleged were mostly committed in countries other than the USA?
After the Administrative Court dismissed its claim, the Guardian appealed to the Court of Appeal. Leigh Day were then instructed by ARTICLE 19 to intervene in support of the Guardian’s appeal.
ARTICLE 19, The Global Campaign for Free Expression, is an international human rights non-governmental organisation based in London. Established in 1987, ARTICLE 19 works globally to protect and promote the right to freedom of expression, including the right to information. It takes its name from Article 19 of the Universal Declaration of Human Rights which states:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”
Further information about ARTICLE 19 and its work is available on its website, www.article19.org.
Leigh Day and Co. instructed Heather Rogers QC and Ben Silverstone, both of Doughty Street Chambers, in this matter. In their written submissions on behalf of Article 19, they provided the court with a survey of the approach taken by courts in other countries with similar legal systems in relation to the disclosure of documents referred to in court. This survey confirmed that courts in these other countries had all favoured the disclosure of information.
These submissions were described as “helpful” in the leading judgment of Lord Justice Toulson who continued:
“I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority.”
In allowing The Guardian’s appeal and directing that the Guardian should be allowed access to the documents sought, Lord Justice Toulson continued:
“I recognise that this decision breaks new ground in the application of the principle of open justice, although not, as I believe, in relation to the nature of the principle itself.”
Dr Agnes Callamard, Executive Director of ARTICLE 19, commented:
“This is a critical decision for ensuring that courts, and the governments standing before them, act in an open and accountable way.
“Open justice requires that all information that led to a decision be made available to the public. It is a long time coming that the courts are as open as other branches of government.”
Sean Humber of Leigh Day commented:
“The importance of this judgment reverberates from its very first paragraph which states “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.”"
Sean is an expert in many aspects of the law relating to the disclosure of, or request for, information. He has successfully brought claims for breach of confidence, breach of human rights and breach of the Data Protection Act relating to the unauthorised disclosure of confidential information. He has also acted for clients, both individuals and NGOs, with regard to the disclosure of information as part of court proceedings and in making requests for information under the Data Protection Act and Freedom of Information Act, including successful applications to the Information Commissioner and appeals to the Information Tribunal where disclosure of the information has initially been refused.
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