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‘The rule of law is a fine concept but fine words butter no parsnips’

The Guardian has been happily tubthumping about its victory for ordinary citizens (oh, and the media) in the rather grandly titled The Queen on the application of Guardian News and Media Limited v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (reported here.)  I just like the case because of Lord Justice Toulson’s opening line about parsnips. 

The Guardian wanted to have a look at documents relating to the extradition of two Britons to the US.   The case had been heard in open court, that is to say the public were allowed to watch, but there were many documents referred to which the public could not physically see.  These documents included the skeleton arguments of the barristers. 

Skeleton arguments are, essentially, a brief outline of what an advocate is going to say in court.  In this case, one barrister gave his skeleton argument and then made his arguments over the course of the whole day. 

To slightly flippantly summarise the background, the Guardian reporters wanted the barristers’s crib sheets so they could write their piece as they couldn’t be bothered to attend court for the full 5 days.  The judge said no but, ultimately, the Court of Appeal said yes as ‘justice must be seen to be done.’

This case is regarding the release of documents in criminal cases.  There has never been an issue about requesting documents in the Civil Courts, as long as the case is in open court.  You write into the Court, request your documents, pay your money and desperately hope that the bureaucratic wheels will turn. 

In some courts this process works extremely well – if you need a copy of probate and know the deceased’s details, the paperwork will be with you pretty much by return. 

In others, not so much.  If I were a spy and needed to hide important paperwork, I would just post it to the Central London County Court – Dewey himself would struggle in there. 

To be fair to the Courts, though, the District Judge in the Guardian case quite rightly pointed out that ‘the Court has very limited Court staff time and photocopying facilities’ (as quoted by Toulson LJ at paragraph 11) and few courts will have to deal with more paper than Central London.  However, it still doesn’t make me happy when they lose my skeleton argument somewhere between the front door and the Judge’s desk…

For all of that, I would wholeheartedly agree that justice should be seen to be done.’   Even if, in this case, ‘justice’ is allowing the journalists to copy the barristers’ homework.

 

Mark Baldwin

mark@macnamaraking.com

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