Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates' Court & Anor

This is an application which raises two points in relation to a projected appeal from the Divisional Court. The first is whether the Court of Appeal has jurisdiction to entertain the projected appeal; the second point is, if there is such jurisdiction, whether permission to appeal should be granted.

Because this judgment is not concerned with the substantive merits of the projected appeal, the relevant facts can be briefly stated.

The Government of the United States (“the US Government”) applied to District Judge Tubbs in the City of Westminster Magistrates’ Court to extradite a Mr Jeffery Tesler and a Mr Wojciech Chodan on the ground that they had in some way been implicated in the bribery of Nigerian officials on behalf of a subsidiary of the well-known US company Halliburton. The hearing of the application took five days between November 2009 and February 2010, and judgment was given on 25 March 2010.

The Guardian newspaper has long been interested in corporate bribery and corruption, and it had a keen interest in the proceedings. Two of its journalists attended, and reported on, the hearing, which was held in public in the usual way. During the hearing, various documents (“the Documents”) were produced to the District Judge, and referred to in court; they included counsels’ written arguments, affidavits and witness statements, and correspondence (much of it between the Serious Fraud Office and the US Department of Justice). When the District Judge gave her judgment, the company which owns the Guardian, Guardian News and Media Limited (“GNML”), applied, through counsel, for disclosure of the Documents. That application was refused by the District Judge.

GNML then appealed against this decision by way of case stated to the Divisional Court, and also issued an application for Judicial Review of the decision. The appeal and application came on for hearing before Sullivan LJ and Silber J, who, after hearing argument on behalf of GNML and the US Government as an Interested Party, dismissed both the appeal and the application in a carefully reasoned reserved judgment – [2010] EWHC 3376 (Admin). GNML then applied for permission to appeal to this court, and Maurice Kay LJ directed that there should be an oral hearing, at which the two issues I have identified in para 1 above should be determined.

Section 18(1) of the Supreme Court Act 1981 provides that “[n]o appeal shall lie to the Court of Appeal” in relation to the types of case therein specified, which include “(a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter”.

The US Government’s case is that the District Judge’s refusal to permit GNML to inspect the Documents, although not itself a “criminal cause or matter” was a decision made in the context of a “criminal cause or matter”, namely extradition proceedings, and therefore the Divisional Court’s decision on GNML’s appeal is similarly within the scope of section 18(1)(a) of the 1981 Act, so that this court has no jurisdiction to entertain an appeal from the Divisional Court.

GNML’s case is that, while it accepts that the extradition proceedings were a “criminal cause or matter” (in the light of what Lord Phillips CJ said in R(Government of the United States of America) v Bow Street Magistrates’ Court [2007] 1 WLR 1157), the order refusing its application for sight of the Documents does not fall within that expression, and, accordingly, its projected appeal against the Divisional Court’s upholding of the District Judge’s order is not vitiated by section 18(1)(a) of the 1981 Act.

Ignoring for the moment any previous judicial decisions on this issue, I can see force in each of the competing arguments.

As a matter of language, the District Judge’s refusal of GNML’s application was undoubtedly “in” a criminal matter, in the sense of being an order made in the context of a criminal matter, namely extradition proceedings. If that is right, then the Divisional Court’s refusal of the appeal must also be within section 18(1)(a), and Judicial Review should not be capable of being invoked as a way round the statutory restriction. Such an approach would also mean that the law was clear and simple. It can also be said that there may be some logic in limiting the rights of appeal of a third party in criminal proceedings.

However, it seems to me that, as a matter of language, section 18(1)(a) is capable of being limited to a judgment which is itself concerned with a “criminal cause or matter”, i.e. a judgment which itself involves, or may lead to, a finding of criminality or one carrying criminal sanctions. Further, if an order or judgment is purely civil in its nature and effect, there is logic in the rules about civil appeals applying to it. It can also be said that, where a provision which limits a citizen’s rights of appeal is quite capable of bearing two meanings, it should, as a matter of principle, and of course subject to other arguments be given the interpretation which gives it a narrower effect. (It should be mentioned that GNML accepts that, if it cannot appeal to this court, there is no other route of appeal.)

The issue is not, however, free of authority, and it is therefore necessary to consider the cases on the issue.

In Amand v Home Secretary [1943] AC 147, the House of Lords had to consider whether the Court of Appeal could entertain an appeal against the Divisional Court’s refusal of a claim for habeas corpus by a Netherlands subject, who was being held by the UK authorities with a view to handing him over to the Netherlands Government, who intended to try him for desertion. The issue required consideration of the statutory predecessor to section 18(1)(a), namely section 31(1)(a) of the Supreme Court of Judicature (Consolidation) Act 1925.

It seems to me that the applicant in Amand [1943] AC 147 raised two points: this is perhaps most clearly apparent from the argument as reported at [1943] AC 147, 150. The first point was that the allegation and projected trial for desertion in the Netherlands was not a “criminal cause or matter” given that it was not an offence against English law and/or was a “purely military offence”. The second point was that, even if that was wrong, the decision in the habeas corpus application itself was not within the ambit of section 31(1)(a), as the application was not a “criminal cause or matter”.

Viscount Simon LC, with whom Lord Atkin and Lord Thankerton agreed, referred to the fact that the “distinction between cases of habeas corpus in a criminal matter, and cases when the matter is not criminal goes back very far”. He then said that “[i]t is the nature and character of the proceeding in which habeas corpus is sought which provide the test”, and “[i]f the matter is one the direct result of which may be the trial of the applicant and his possible punishment for an alleged offence by the court claiming jurisdiction to do so, the matter is criminal” – [1943] AC 147, 156. Lord Wright said that

“[T]he immediate proceeding [i.e. the habeas corpus application] … was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act … to deliver the appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter.”

Lord Porter said at [1943] AC 147, 164, that for section 31(1)(a) to apply “it is enough if the proceeding in respect of which mandamus was asked is criminal”.

It seems to me that these observations, particularly those of Lord Wright, at the very least arguably support the US Government’s case here. In the absence of any further authority, it might be difficult to resist the contention that we should apply that reasoning and hold that we had no jurisdiction to entertain GNML’s appeal. However, it is fair to say that the observations and decision in Amand [1943] AC 147 were made in the context of an appeal in relation to a decision which involved the parties, and in particular the defendant, in the criminal proceedings themselves, and where the decision sought to be appealed was one which could have had, and was intended to have, a direct impact, on the outcome of those proceedings.

In R v Southampton Justices ex p Green [1976] QB 11, the Court of Appeal had to consider whether it had jurisdiction to entertain an appeal against the Divisional Court’s refusal to quash an order estreating a recognisance. Lord Denning MR, who gave the only reasoned judgment on that issue at [1976] QB 11, 15, held the court did have jurisdiction. He purported to follow Amand [1943] AC 147, relying on Viscount Simon LC’s statement at [1943] AC 147, 156 that “the matter is criminal” if “the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence”.

With all due respect to Lord Denning, that observation of Viscount Simon was directed to what I have referred to as the first point in Amand [1943] AC 147, whereas the question of jurisdiction before the court in Green [1976] QB 11 involved what I have referred to as the second point in Amand [1943] AC 147.

Lord Denning MR applied the same reasoning in R v Sheffield Crown Court ex p Brownlow [1980] QB 530, 537, in relation to a case concerning the right of a chief constable to vet a jury in criminal proceedings against two police officers. However, at [1980] QB 530, 543 and 546 respectively, Shaw and Brandon LJJ specifically left the point open, on the ground that it was, in the event, unnecessary to decide the point, as, contrary to Lord Denning’s view, they considered that the court lacked jurisdiction for another reason.

The decision in Brownlow [1980] QB 530 can fairly be said to have left the law on the extent of the limitation on the Court of Appeal’s jurisdiction under section 31(1)(a) in an even more opaque state than it was after Green [1976] QB 11.

In R v Lambeth Metropolitan Stipendiary Magistrate ex p McComb [1983] QB 551, both members of the Court of Appeal, Sir John Donaldson MR and May LJ, expressed the view that Green [1976] QB 11 proceeded under a misinterpretation of Amand [1943] AC 147. However, they considered that they were bound by Green [1976] QB 11 to conclude that the Court of Appeal had jurisdiction to entertain an appeal against the Divisional Court’s upholding of a decision that the Director of Public Prosecutions could freely remove exhibits, lodged in the Crown Court in criminal proceedings against the applicant, in order to return them to the Republic of Ireland, to enable them to be used in criminal proceedings against the applicant in the Republic – see at [1983] QB 551, 563 and 568. Had it not been for Green [1976] QB 11, May LJ would have “dismissed the appeal in limine”.

Whatever one’s view of the reasoning in Green [1976] QB 11, it seems to me that, if matters had stopped there, this court would have been bound to follow the decision, unless and until the House of Lords or Supreme Court overruled or modified it. In other words, the law was tolerably clear at least below the House of Lords.

However, matters did not stop there. In Day v Grant, R v Manchester Crown Court ex p Williams [1987] 1 QB 972n, decided in January 1985, the Court of Appeal had to consider whether it had jurisdiction, by then under section 18(1)(a), to entertain two appeals relating to witness summonses issued by the Crown Court. Sir John Donaldson MR, with whom Kerr and Lloyd LJJ agreed, held that there was no jurisdiction, effectively relying on the speeches of Lord Wright and Viscount Simon in Amand [1943] AC 147 – see at [1987] QB 972n, 976. After considering the cases which I have just discussed, and admitting the difficulties they generated, Sir John said at [1987] 1 QB 972n, 977 that he “[could] not think of a case in which the order appealed from arises more clearly in a criminal cause or matter than this”. He also said that if the House of Lords could “consider Amand’s case [1943] AC 147, … it would be an exercise which would be applauded both by the judiciary and perhaps even more by practitioners.”

While it may appear hard to quarrel with the actual decision in Day [1987] 1 QB 972n, in the light of the wording of section 31(1)(a) and the decision in Amand [1943] AC 147, the decision can be said to have re-opened the somewhat Pandoran box which appeared to have been closed in McComb [1983] QB 551.

Very shortly after the decision in Day [1987] 1 QB 972n, the House of Lords had the opportunity to give the sort of guidance which Sir John Donaldson had in mind. In re Smalley [1985] AC 622, involved a different jurisdictional point (in fact one similar to that on which the majority decided Brownlow [1980] QB 530). Nonetheless, Lord Bridge of Harwich, who gave the only reasoned speech, did discuss the decision in Green [1976] QB 11. At [1985] AC 622, 633, Lord Bridge quoted Lord Denning’s view that the issue in Green [1976] QB 11 concerned “a civil debt upon a bond and as such it is not a criminal cause or matter”, and the difficulties this had led to. Having considered Amand [1943] AC 147, Lord Bridge said on the following page that he “could find nothing in the speeches in that case which throws any light one way or the other on the totally different question” which arose in Green [1976] QB 11, and that, as it was not “necessary for present purposes to give a concluded answer to that question” he was “not prepared to hold that Green’s case [1976] QB 11 was wrongly decided.”

So, having had the opportunity to do so, Lord Bridge decided to refrain from giving the guidance which Sir John Donaldson had said would be welcome to the judiciary and practitioners. No doubt this was for good reason, but it is regrettable. However, it can be said to support the contention that the observations in the speeches in Amand [1943] AC 147, parts of which I have quoted above, are not as broad in their sweep as they might otherwise have been taken to be.

In Carr v Atkins [1987] QB 963, Sir John Donaldson MR, sitting with Stephen Brown and Croom-Johnson LJJ, both of whom agreed with his judgment, returned to the fray and appreciated the need for some clarification and guidance in what he understandably described as a “rather tangled situation” - [1987] QB 963, 970. In that case, it was held that the Court of Appeal had no jurisdiction to hear an appeal from the Divisional Court’s refusal to quash an order of the Crown Court for the production of certain documents under section 9 of the Criminal Evidence Act 1984, in criminal proceedings.

Sir John Donaldson then went on to say at [1987] QB 963, 970 that the Court of Appeal was now “freed from the authority of Green’s case [1976] QB 11” and “the time has come to look at [the issue] afresh”. However, while he decided at [1987] QB 963, 970-1, that “an order … under the Act of 1984 and all subsequent proceedings relating to such an order … are properly to be characterised as orders in a criminal cause or matter”, he gave no further firm guidance. However, he did, somewhat tentatively, suggest that the implication from Lord Bridge’s speech was that Green [1976] QB 11 “may well have been rightly decided … not on the basis of Amand’s case [1943] AC 147 … [but because] questions of the estreatment of bail are so collateral to a criminal trial that they do not themselves constitute a criminal cause or matter” – [1987] QB 963, 970.

While it contains no clear general principles in relation to the problem before us (save that it confirms the justification for the decision in Day [1987] QB 972n), Carr [1987] QB 963 appears to give some sort of tentative guidance through the confusing case-law, in that it suggests that, where a projected appeal concerns an issue which is essentially civil (or at least non-criminal) in nature and which is purely collateral to the criminal proceedings in which it arises, section 18(1)(a) does not preclude the Court of Appeal entertaining the appeal.

The House of Lords was given a further opportunity to consider the issue in Government of the United States of America v Montgomery [2001] UKHL 3, [2001] 1 WLR 196. The actual decision in that case was that a confiscation order and an earlier protective freezing or restraining order against a person (and his family) in the High Court under the Criminal Justice Act 1988 in favour of the US Government, following that person’s conviction in the US for fraud, were not orders in a “criminal cause or matter” within section 18(1)(a).

Lord Hoffmann, with whom Lord Cooke, Lord Hutton and Lord Scott agreed, considered Green [1976] QB 11, and “like Lord Bridge of Harwich in In re Smalley [1985] AC 622, 634 … express[ed] no view upon it”, but doubted the actual reasoning of Lord Denning, adding that he “doubt[ed] the wisdom of trying to formulate any definition of ‘criminal cause or matter’ to supplement the undefined expression used by Parliament” – [2001] 1 WLR 196, paras 16-17.

At [2001] 1 WLR 196, para 19, while accepting that “in most cases it would be right to regard orders made by way of enforcement of orders made or to be made in criminal proceedings as part and parcel of those proceedings”, Lord Hoffmann did “not accept … the extreme proposition … that the nature of the proceedings in which the original order was made will necessarily determine whether the machinery of the enforcement through the courts is a criminal cause or matter”. He expanded on that by saying that “the consequences of an order in criminal proceedings may be a claim or dispute which is essentially civil in character”, and “[t]here is no reason why the nature of the order which gave rise to the claim or dispute should necessarily determine the nature of the dispute in which the claim is enforced or the dispute determined.”

Lord Hoffmann then explained that the claim in question involved High Court proceedings mirroring proceedings for civil debt recovery or enforcing a proprietary claim, so that section 18(1)(a) had no application – [2001] 1 WLR 196, paras 20-23.

Lord Hobhouse agreed in the result, saying at [2001] 1 WLR 196, paras 37-8 that the proceedings in question were “brought in an English court under the civil jurisdiction” and that the restraining orders “were not made in the US criminal proceedings: they were made in the English [civil] proceedings”. In the subsequent paragraph, he said that Amand [1943] AC 147 laid down “the test [which involves] asking whether the court making the order in question was exercising or claiming a criminal jurisdiction”.

As I think will be clear from the above discussion of the relevant cases on section 18(1)(a) 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.

In my judgment, that approach justifies the conclusion that, in relation to GNML’s projected appeal, this Court does have jurisdiction to hear it. GNML’s application was wholly collateral to the extradition proceedings themselves, as is highlighted by the fact that the original application was made by someone who was not a party to those proceedings, and the order made by the District Judge refusing GNML’s application did not involve the court invoking its criminal jurisdiction or making an order which would have any bearing on the extradition proceedings.

I accept that this conclusion may be said to fall foul of the wide principle which may appear to have been laid down, perhaps most clearly by Lord Wright, in Amand [1943] AC 147. However, my conclusion is consistent with the conclusion reached in Green [1976] QB 11, which, despite two opportunities, the House of Lords has not overruled or disapproved. Indeed, some of the observations of Lord Bridge in Smalley [1985] AC 622, and, perhaps more arguably, some of the observations of Lord Hoffmann in Montgomery [2001] 1 WLR 196, appear to suggest that the reasoning in Amand [1943] AC 147 does not in fact go as wide as it might appear at first sight to go.

The reasoning in Green [1976] QB 11 is not to be relied on: it is demonstrably flawed. In Montgomery [2001] 1 WLR 196 Lord Hoffmann obviously was unconvinced by the reasoning, and in Carr [1987] QB 963 Sir John Donaldson held that the reasoning was no longer binding. However, my conclusion in this case appears to be consistent with Sir John Donaldson’s suggested justification for the conclusion in Green [1976] QB 11, and with his tentative guidance, given in the most recent case on the issue in this court, Carr [1987] QB 963. I also think that the conclusion lies comfortably with Lord Hoffmann’s observations in Montgomery.

Furthermore, it does not seem to me that the conclusion that the Court of Appeal has jurisdiction in this case for the reason which I have given would mean that any other decision of this court which had gone the other way (i.e. Day [1987] 1 QB 972n and Carr [1987] QB 963) would be called into question.

I am far from saying that, in the absence of any authority, I would have reached the same conclusion, or that I would be confident that, if they were called on to clarify the law in this area, the Supreme Court would reach the same conclusion. As mentioned above, the competing arguments, at least to the extent that I have considered them, appear finely balanced.

During oral argument, Aikens LJ suggested that some assistance as to the proper approach this court should take might be found from the judgment of the court given by Lord Phillips MR in Great Peace Shipping Limited v Tsavliris Salvage (International) Limited, “The Great Peace” [2003] QB 679. In that case, the Court of Appeal decided that it should not follow an earlier decision of the court, Solle v Butcher [1950] 1 KB 671. This was on the ground that it had been wrongly decided because it was inconsistent with a decision of the House of Lords, Bell v Lever Bros Ltd [1932] AC 161, even though Bell [1932] AC 161 had been decided before, and considered by the Court of Appeal in, Solle [1950] 1 KB 671.

At [2003] QB 679, para 157, the Court explained that Solle [1950] 1 KB 671 had “been a fertile source of academic debate”, and had “given rise to a handful of cases that have merely emphasized the confusion in this area of our jurisprudence”. Accordingly, particularly as the court could “see no way that Solle v Butcher could stand with Bell v Lever Bros” ([2003] QB 679, para 160), “coherence [could only] be restored to this area of our law … by declaring” in effect that Solle [1950] I KB 650 was wrongly decided.

In my opinion, any sort of final coherence in relation to the scope and effect of section 18(1)(a) can only be provided by the Supreme Court, but I believe that, consistently with the spirit of the approach in The Great Peace [2003] QB 679, the best way of applying the “rather tangled” jurisprudence developed over the past thirty-five years, and ensuring maximum coherence (or maybe it is more realistic to say, minimum incoherence) is to hold that we have jurisdiction to hear the appeal in this case for the reasons given in paras 36-9 above.

The application for permission to appeal can be much more expeditiously disposed of. It is true that the reasoning of the Divisional Court was full and careful and that there are strong practical and principled arguments as to why the projected appeal should fail. It is also true that the Divisional Court’s decision is consistent with previous authorities, particularly R v Waterfield [1975] 1 WLR 711, R v Crook (1991) 93 Cr App R (S) and R v Howell [2003] EWCA Crim 486.

However, the point is of some importance, not least because it at least arguably engages Article 10 of the European Convention, which did not apply in domestic law when Waterfield [1975] 1 WLR 711 and Crook (1991) 93 Cr App R (S) were decided. And while Article 10 could be invoked domestically when Howell [2003] EWCA Crim 486 was decided, there is an arguable case for saying that the Strasbourg jurisprudence has developed since then – see the discussion in Independent News and Media Ltd v A [2010] EWCA Civ 343, [2010] 1 WLR 262.

As I consider that permission to appeal should be granted because the point at issue is of some general importance and because the jurisprudence on Article 10 may justify reconsideration of earlier decisions on the issue, I do not think it would be appropriate to go further into the arguments which would be raised on any substantive appeal.

In the event, for the reasons set out above, I would hold that the Court of Appeal has jurisdiction to hear GNML’s appeal, and I would grant GNML permission to appeal.

I agree.

I also agree.