The Guardian is attempting to overturn the Attorney General’s veto of the publication of Prince Charles’ correspondence with seven Government departments. An application for judicial review was heard over two days last week by the Lord Chief Justice, Lord Judge, with Lord Justice Davis and Mr Justice Globe.

Full Law and Media Round Up – 13 May 2013 at Inforrm’s Blog.

Do you hope to enter
Fame’s immortal dome?
Do you put the washing out
Or have it done at home?
Have you any morals?
Does your genius burn?
Was you wife a what’s its name?
How much did she earn?

Had your friend a secret
Sorrow, shame or vice –
Have you promised not to tell
What’s your lowest price?
All the housemaid fancied
All the butler guessed
Tell it to the public press
And we will do the rest.

The full poem can be read on Guardian.co.uk…

(From The Cambridge Edition of the Poems of Rudyard Kipling)

In his view, Lord Neuberger’s 2011 report on ‘super-injunctions’, while “well-intentioned”, “legitimises the fuelling of publicity which in turn creates irreversible intrusion and mischief”.

“For allowing the publication of the fact that an injunction has been granted, together with basic facts about the specific case (facts which often go well beyond what can really be described as basic) creates publicity and hysteria about who the person seeking the injunction is, and also encourages online speculation fuelled by those in the know (probably started by mischievous journalists). Not to mention that all of these things actually increase the costs massively.”

Benaim suggests … “restricting publication of the fact of an injunction where a court has found there to be no, or insufficient, public interest to justify intrusion into a private life”, which he considers “a pretty reasonable prospect”.

This proposition raises important questions around open justice and transparency. When Lord Neuberger’s committee report came out in May 2011, I argued that it cut through the “super injunction hysteria” and its recommendations would provide a balanced way of monitoring the number and type of injunctions being granted, without transgressing an individual’s legitimate claim to Article 8 rights, as decided by a judge.

I don’t think it was a satisfactory state of affairs that, at the press conference announcing the report’s release, Lord Neuberger was unable to tell journalists precisely how many so-called super injunctions and anonymised privacy injunctions had been granted since 2000. According to the report, specific records were not “kept in respect of such matters”. The committee’s recommendations sought to prevent that type of data blackout occurring again.

As quoted above, Benaim is concerned that publishing facts about the specific case “creates publicity and hysteria about who the person seeking the injunction is”…  “and also encourages online speculation…”

My question, then, is how he proposes to track injunctions, if at all? How does he propose that data is collected around the number and type of injunctions granted? Who should have access to the records?

If we were to lose our newfound access to regular statistics and published anonymised judgments and return to the unmonitored secrecy of yore, how would we prevent a repeat of events that led up to the committee’s creation in April 2010? According to the Judiciary, it was formed as a response to “growing public concerns about the use and effect of what were termed super-injunctions and the impact they were having on open justice”. Would we not be back at square one?

Benaim is right that there has been some tabloid manoeuvring on this issue and fuelling of the fire (and in other quarters too), but the report indicated a wider public concern about open justice, which needed to be addressed.

Payments for private information

Finally, there is one really interesting point he makes, which seems worth flagging up:

“Also, isn’t there something particularly wrong and distasteful about kiss-and-tells and similar types of arrangement with the tabloids? By this I mean the payment of money to someone (usually an unknown) for a story about something private which is only of interest to the tabloid because it relates to a well-known person. This, I argue, should rarely, unless there is a particularly strong and legitimate public interest argument, be afforded much weight by the courts.”

It strikes me that is one issue that needs further attention: how should financial transactions of private information be managed in a new system of regulation? If such transactions were subject to regulation, what implication would there be for the public interest, freedom of expression and an individual’s right to privacy?

“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.

Article 19′s submission

Update: added Brid Jordan’s comment piece, 04.04.12

The Open Justice UK group has been refused permission to live tweet a case in Scotland, as Cristiana Theodoli (@_cric) explains here. While journalists have applied to tweet and tweeting was allowed during sentencing in the Tommy Sheridan trial last year, not one journalist has gained authorisation to live tweet a full trial, according to Theodoli (specific permission is required for journalists, unlike England & Wales).

Open Justice UK liaised with the Scottish court ahead of the selected trial but:

“Today, just a day or two before the trial is due to start, we received a short email stating that the Judge has a number of concerns that he feels should be taken up at a senior level and the timescale would not allow for it.”

Meanwhile, at a High Court (Chancery division) hearing in London last Thursday (23 February) the Guardian secured access to court documents relating to News International and Glenn Mulcaire.

In an approved judgment released on Monday (27 February), Mr Justice Vos set out the reasons he has allowed the Guardian (“and any other media organisations that request them”) to access redacted documents, including the “generic Particulars of Claim”, “the Notice to Admit” and the “Response”, mentioned at the phone hacking pre-trial review on 19 January 2012. No parties objected to the Guardian’s request to access a fourth document, the “generic list of issues”.

I’ve flagged up a few key parts below.

Mr Mulcaire’s counsel were concerned

“…that reporting of some parts of the 3 documents will create a substantial risk that the course of justice in the further criminal proceedings that Mr Mulcaire may face will be seriously impeded or prejudiced.” [3]

Vos J found:

“There is a distinct and crucial public interest in scrutinising the decision-making process in this case, and in knowing the facts on which the decisions are being made.” [80]

He said:

“it seems to me to be entirely legitimate for GNM and other media organisations to wish to see unredacted copies of the core documents on the basis of which these proceedings have been and are being conducted.” [81]

…

“First, so far as can be judged today, reporting of the parts of the 3 documents that Mr Mulcaire wishes to see redacted would not, with the one exception already mentioned, give rise to a ‘not insubstantial’ risk of prejudice to the administration of justice in Mr Mulcaire’s future trial (if there is one)”… [82]

He concluded that GNM should be provided with unredacted copies of the three documents, save for several stipulated redactions detailed in par 87 (reasons discussed in the judgment).

The judgment discusses the application of the CPR Part 5.4C(2) and the “Open justice availability of documents to non-parties” (CPR Part 5.4C.10).

You can read the judgment in full, below:

HT: @adamwagner1 for alerting me to the published judgment.

Baroness Buscombe, who will step down from the self-regulation body in the new year this week, was at City University London to deliver the Centre for Law, Justice and Journalism annual lecture.

[Update: the Conservative Peer Lord David Hunt has been named as Buscombe's successor and will take up the position on 17 October]

Following her speech, she took issue with a question from data journalist James Ball, who introduced himself as from the Guardian.

Rattled by his question about her position on enforced regulation compliance, she several times referred to the Guardian in subsequent questions, saying: “I’m worried that the Guardian, as usual, is going to misquote me”.

“Can I just ask you what you are going to tweet to the Guardian,” she asked Ball, at one point.

“I’ve been misquoted non-stop for three years by the Guardian”, she said. “It’s really boring.”

She was assured that there would be a recording of the event made available.

Ball, who is not a media reporter, asked Buscombe about her suggestion that publications should not be able to opt-out of regulation.

There should be some of “back stop” power outside the PCC, which would “demand compliance”, Buscombe had stated in her lecture.

… if a publisher is “in” the system but doesn’t like an adjudication, he is at liberty to opt out of the system altogether. This is not sustainable, either in principle or in practice.

The solution? There should be some form of back stop power, vested in another body and, given that body needs sufficient powers to demand compliance, it will, regrettably have to be one regulated by the state.

This need not nor should it in any way compromise freedom of expression or lead to some form of licensing; it is just to ensure that compliance with the system is universal and no-one can just choose to opt out.

The problem was, she later added, that the Express and Star national newspapers don’t have to opt-in to a regulation system.  They can do what they like unless someone takes them to a court of law. [Express owners, Northern & Shell were removed from the self-regulatory system in January 2011 after the company failed to renew its membership].

But, the PCC chairman said, she was fully opposed to any form of statutory regulation.

She later claimed she was “having a bit of fun” with her jibes at the Guardian newspaper.  Other suggestions in her lecture included:

• A whistleblowing system within newspapers: “ there should, as a matter of course, be a credible independent whistle blowing system in place, within all media organisations – so that any beleaguered journalist can have free access, without fear, to a second opinion as to his rights in law.”

• The development of international regulatory frameworks with varying sanctions and rules of compliance: “All websites that comply with a system could carry an internationally recognised kite mark to give the reader and viewer the confidence that it is a trusted site, as opposed to a free for all; that would, I am convinced, encourage more publishers to opt in to the system as it would attract more unique visitors.”

She called for a “need for change in culture and practice” in British media. “I do not limit this to tabloids or News International,” she said.

Buscombe defended the body’s handling of phone hacking and said she was “weary” of responding to that question. The PCC is not set up to investigate criminality, nor should it be, she added.

Earlier, in defence of the PCC’s existing sanctions, she claimed:

“I wish some critics of the PCC could hear editors when the PCC have adjudicated against them; it is not music to the ears, believe me, they hurt.”

Media blogger Jon Slattery also has a report, here.