Victory for Open Justice

03.04.12 |

In a landmark ruling three senior judges have ordered the release of documents sought by the Guardian Newspaper in relation to an extradition hearing. The Guardian had been seeking access to documents used to justify the extradition of two British nationals to the US. Gavin Millar QC, acting for the newspaper, argued that the documents would help explain why the pair were being extradited, at a time where Britain's extradition treaty with the US has come under substantial scrutiny following a number of high profile cases.

In ordering disclosure, Toulson LJ recognised that the Court of Appeal's decision broke new ground in the application of the common law principle of open justice. However, In the light of the development of common law in England and in other jurisdictions, it was held that a new "default position" was justified, according to which documents placed before a judge and referred to in proceedings should be available for inspection, subject to a balancing exercise as against any countervailing interests.

Heather Rogers QC and Ben Silverstone of Doughty Street Chambers were instructed by Sean Humber of Leigh Day & Co, who acted on a no-fee basis for Article 19, a non-profit organisation which campaigns globally for freedom of expression. Article 19 was able to provide a survey of the approach in other common law countries. In reaching his decision, Toulson LJ was "fortified by the common theme of the judgments in other common law countries". Collectively, they were "strong persuasive authority". The appeal provided a "good example of the benefit which can be gained from knowledge of the development of the common law elsewhere".

The judgment is a victory for open justice and one which should greatly strengthen the hand of journalists in being able to access documents used in criminal cases. This is another significant victory for Gavin Millar QC and the members of the Doughty Street media team who continue to be involved in the leading cases which shape this area of law.

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