Guardian wins right to appeal over court papers

The battle by Guardian News and Media to obtain access to documents used in an application for the extradition of a London solicitor to the United States to face bribery allegations is to be heard by the Court of Appeal.

The Guardian is seeking access to legal papers which were used in City of Westminster Magistrates’ Court in March last year when the United States’ Government applied for the extradition of solicitor Jeffrey Tesler.

District Judge Caroline Tubbs ruled that Tesler, who is in his early 60s and comes from Tottenham, north London, should be extradited to the United States after being told that American authorities suspected him of being “implicated in bribery”.

She was told that American authorities accused Tesler of involvement in a conspiracy to channel bribes to senior officials in Nigeria.

Bribes were allegedly paid from a $132million (£88.4m) slush fund to influence the awarding of a $6bn (£4 billion) construction contract for a natural gas plant on Nigeria’s Bonny Island.

Tesler’s lawyers had argued that the alleged corruption was not an extradition offence and that sending him to the US would breach his right to a family life, and also claimed that his access to a fair trial was compromised by the passage of time because the alleged crimes date backed as far as 1994.

The Court of Appeal said today that it was alleged that Tesler – and a second man – were “implicated in the bribery of Nigerian officials on behalf of a subsidiary of the well-known US company Halliburton”.

Guardian News and Media Ltd (GNML), which publishes The Guardian, asked District Judge Tubbs to allow it access to documents referred to at the extradition hearing, including barristers’ written arguments, witness statements and correspondence between the Serious Fraud Office and the US Department of Justice.

The judge rejected the application in a decision which was later upheld by the High Court.

But yesterday the Court of Appeal – the Master of the Rolls, Lord Neuberger, Lord Justice Jackson and Lord Justice Aikens – said GNML should be allowed to argue its case at a full Court of Appeal hearing.

The US Government, an interested party, argued that District Judge Tubbs’ decision, although not itself a “criminal cause or matter” was a decision made in the context of a “criminal cause or matter” – the extradition case – and so the Divisional Court’s rejection of GNML’s appeal meant that the Court of Appeal had no jurisdiction to entertain an appeal.

GNML argued that, while the extradition proceedings were a “criminal cause or matter”, the order refusing its application for sight of the documents did not fall within that expression.

Lord Neuberger said that “the state of the law on the issue we have to determine is less than satisfactory”.

He considered the court “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”.

That approach justified the conclusion that the Court had jurisdiction to hear GNML’s projected appeal.

“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,” Lord Neuberger said.

Granting GNML permission to appeal, he said the case raised “a point of some importance” which “arguably engages” the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights.

When it rejected GNML’s appeal the Divisional Court had given a fully and carefully reasoned decision, which was consistent with previous authorities.

But two of the three authorities on which its decision rested pre-dated the application of the European Convention on Human Rights in English law, and the Strasbourg jurisprudence had developed since the third authority was decided in 2003.

Lord Justice Jackson and Lord Justice Aikens agreed.

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