Court of Appeal - Appeal from Divisional Court - Whether permission to appeal to be granted

R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court: CA (Civ Div) (Lord Justices Neuberger (master of the rolls), Jackson, Aikens): 25 October 2011

The interested party, the US government, wished to extradite to the US two individuals, T and C, who had allegedly been involved in a high-profile corruption investigation by the US Department of Justice and the US Securities and Exchange Commission.

The claimant had long been interested in issues of corporate bribery and corruption and had been reporting the instant case since 2004. Extradition proceedings concerning T and C took place over five days between November 2009 and February 2010. Two of the claimant’s journalists attended the extradition hearing, which was held in public. During the hearing, various documents were produced to the district judge and referred to in court (the documents). The documents included counsels’ written submissions, affidavits, witness statements and correspondence.

In March 2010, judgment was delivered, following which the claimant applied, through counsel, for disclosure of the documents. The application was refused. The claimant appealed that decision by way of case stated to the Divisional Court. Further, it issued an application for judicial review. The appeal and application were both dismissed (see[2011] 3 All ER 38). The claimant applied for permission to appeal, with that application forming the basis of the instant proceedings.

The issues for determination were: (i) whether the Court of Appeal had jurisdiction to entertain the projected appeal; and (ii) if there was such jurisdiction, whether permission to appeal would be granted. Consideration was given to section 18(1) of the Senior Courts Act 1981 which provided, so far as material, that: ‘No appeal shall lie to the Court of Appeal - (a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter.’ Further consideration was given to article 10 of the European Convention on Human Rights. The application would be allowed.

As a matter of language, section 18(1)(a) of the act was capable of being limited to a judgment which was itself concerned with a ‘criminal cause or matter’, namely a judgment which itself involved, or might have led to, a finding of criminality or one that carried criminal sanctions. Further, if an order or judgment was purely civil in its nature and effect, there was logic in the rules about civil appeals applying to it (see [11] of the judgment).

Having considered established principles, the court held that it had jurisdiction to hear the appeal. The claimant’s application was wholly collateral to the extradition proceedings themselves, as was highlighted by the fact that the original application had been made by someone who had not been a party to those proceedings. Further, the order made by the district judge that refused the claimant’s application had not involved the court invoking its criminal jurisdiction or making an order which had any bearing on the extradition proceedings (see [36] of the judgment).

Permission to appeal would be granted. The point at issue was of some general importance and the jurisprudence on article 10 of the convention might justify reconsideration of earlier decisions (see [46] of the judgment).

Per curiam: ‘I think it will be clear from the above discussion of the relevant cases on section 18(1)(a) [of the Senior Courts Act 1981] and its statutory predecessor, the state of the law on the issue we have to determine is less than satisfactory. Given that, in the absence of authority, it appears to me that either party’s case would be maintainable, I consider that we should accept the case which can best be reconciled with the authorities taken as a whole, or, perhaps to put the same point another way, the case which minimises future confusion and uncertainty’ (see [35] of the judgment).

Gavin Millar QC and Adam Wolanski (instructed by Reynolds Porter Chamberlain) for the claimant; the defendant did not appear and was not represented; David Perry QC and Melanie Cumberland (instructed by the Crown Prosecution Service) for the US government as the interested party.