“In the 21st century, open justice should be online justice”


“In the 21st century, open justice should be online justice,” David Banisar, Article 19.

The Guardian has succeeded in its legal bid to gain access to court documents in extradition proceedings (listed at the end of this post).

The Guardian has been seeking access to documents used to justify the extradition of two Britons, Jeffrey Tesler and Wojciech Chodan, to the US. After they were sent to Texas, the pair pleaded guilty to taking part in a decade-long conspiracy to channel bribes worth $180m to Nigerian officials and politicians. (Guardian, 3.04.12)

In a judgment handed down today (Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420) the Master of the Rolls, Hooper LJ and Toulson LJ granted appeal of an Administrative court decision which dismissed the Guardian’s claim for judicial review, following a District Judge’s refusal of access to certain documents.

Although I disagree with the reasoning of the courts below, 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, Toulson LJ [90].

Brid Jordan, Reynolds Porter Chamberlain LLP, who acted for the Guardian, explains

The Court of Appeal has ruled that where documents have been placed before a judge and referred to in the course of open proceedings, the default position should be that access should be permitted on the open justice principle. Where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.

The campaigning organisation Article 19 made a submission in the case (embedded below) which the judgment praised for its “helpful and interesting survey of the approach which has been taken by courts in other common law countries“.

The Court of Appeal judgment comes a month on from the Centre for Law, Justice and Journalism event, Justice Wide Open. In a comment piece for the Guardian marking today’s judgment, Article 19’s senior counsel David Banisar (left) said that the CLJJ event had

…revealed that there were many legal and practical limits to open justice. Few local newspapers now cover local courts and even the larger national media only attend a few cases; transcripts remain the commercial property of the court reporters and video and audio recording of cases is forbidden for reasons that are hard to understand; non-media such as community micro-sites have little access to anything; the FOIA only has limited application to the courts.

Crucially, Banisar flagged up that in the Guardian’s case,

…the growing practice of judges and the lawyers moving to a more document-focused case system and referring to documents that are only partially read out triggered the need to change the rules.

He argued that taking today’s decision forward, the UK should now adopt a similar approach to the US courts – one of “proactive disclosure”.

This blog post opened with the final sentence of Banisar’s piece: In the 21st century, open justice should be online justice.” That is the central tenet of the Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Age’ project, which we launched with the Justice Wide Open event on 29 February 2012. For more information please visit the project page here. A publication with contributions from the speakers at the event is forthcoming.

The Guardian sought to obtain:

1. The opening notes and skeleton arguments submitted on behalf of the US Government and the skeleton arguments submitted on behalf of the defendants.

2. Affidavits submitted by William Stuckwisch, the US senior trial attorney responsible for the conduct of the prosecutions.

3. Other affidavits or witness statements submitted by prosecutors for the US Department of Justice.

4. Correspondence between the Serious Fraud Office (SFO) and the US Department of Justice discussing which agency should prosecute the case.

5. Correspondence between solicitors acting for MW Kellogg and counsel for Mr Tesler on the subject of whether MW Kellogg was being prosecuted by the SFO and an accompanying witness statement from the solicitor acting for Mr Tesler, which had been handed up to the judge at the hearing on 28 January 2010.

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Judith Townend is a freelance journalist and PhD researcher at the Centre for Law, Justice and Journalism, City University London, where she is also co-ordinating the ‘Open Justice in the Digital Era’ project. She is @jtownend on Twitter. This is the reposting of a comment first appeared on Meejalaw at the following url: http://meejalaw.com/2012/04/03/in-the-21st-century-open-justice-should-be-online-justice

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