Last year, some Australians learnt the outcome of the High Court’s same-sex marriage decision minutes (or more) before it was delivered. This weekend, the result of a UK Supreme Court decision was announced in the UK press four days before it was delivered. The case concerned an investigation of an alleged leak from a government emergency committee to a Sky News reporter. Scotland Yard’s Chief Commissioner asked the Supreme Court to overturn a lower court’s ruling that a court cannot rely on secret (undisclosed) government evidence to order a media organisation to disclose documents relevant to the investigation. However, according to one paper:
The Mail on Sunday understands that the Supreme Court has rejected his demand. Its ruling is due to be published on Wednesday.
As yesterday’s Supreme Court judgment revealed, the Mail’s reporting was accurate.
So, who leaked the Court’s media leak judgment to the media? It seems that no court orders to the Daily Mail’s offices were necessary to solve this mystery. Instead, the Court’s President, Lord Neuberger (whose views on open justice were lauded in the Mail article) addressed the leak in open court shortly after the judgment was announced (see 7 minutes into this video.) While the High Court’s leak was due to a media summary being prematurely uploaded to its website, it seems that the Supreme Court’s leak was due to the Court distributing the judgment a week early to the parties’ lawyers. Lord Neuberger revealed that the Mail got its scoop because one of those lawyers passed the judgment on to a third party. He did not identify the lawyer, the lawyer’s client, the third party or how the Court learnt this information.
The Court’s early distribution of the judgment was pursuant to its own practice note on advance releases of judgments, which states:
The judgment of the Court is made available to certain persons before judgment is given. When, for example, judgment is given on a Wednesday morning, it is made available to counsel from 10.30 am on the previous Thursday morning. In releasing the judgment, the Court gives permission for the contents to be disclosed to counsel, solicitors (including solicitors outside London who have appointed London agents) and in-house legal advisers in a client company, Government department or other body.
The purpose of this practice is to allow the parties to check for typos or ‘minor inaccuracies’, although Julian Assange’s lawyers used its early access to make an unsuccessful last minute application to to reopen the Court’s ruling on his extradition (but not to leak the judgment to Wikileaks!) The Court’s note also makes provision for lawyers’ clients to be informed of the outcome 24 hours early and also for advanced embargoed release to the media to assist in reporting; neither of these procedures is implicated in this leak. All these practices are laudable ones for a final court of appeal. Alas, Lord Neuberger stated that, if such a leak occurs again, it may need to review them.