Phone Hacking Trial: The Verdicts

Introduction

The phone hacking trial has now concluded. On the 138^th day of the trial the jury returned the majority of its verdicts, convicting former News of the World editor Andy Coulson of conspiring to hack mobile telephones. Meanwhile, Coulson’s predecessor, Rebekah Brooks, was cleared of all charges.

The following day the judge, Mr Justice Sweeney, discharged the jury from considering its final verdicts after it became clear the jury would be unable to make a decision. The judge also criticised the Prime Minister, David Cameron, for making potentially prejudicial comments following the initial verdicts while the jury was still deliberating on other charges. It was announced today that there will be a retrial of the charges the jury was unable to decide on.

The prosecutions followed the investigation into the News of the World newspaper before its closure in 2011. The newspaper was closed by its parent company, News International, in July 2011 after the revelation that in 2002 the tabloid has instructed a private investigator to ‘hack’, or intercept, voicemails left on the mobile phone of Milly Dowler, a teenager who was abducted and murdered.

The hacking was possible because mobile phone operators gave customers default PIN codes to access their voicemail by either using another phone or dialling a separate number.

Who was on trial, for what, and what were the verdicts?

Defendants and Charges

There were eight defendants standing trial who were charged jointly with various offences. I shall deal with each defendant in turn.

Rebekah Brooks

She was the former editor of the News of the World. She was charged with five offences.

She was charged, firstly, with conspiracy to intercept communications in the course of their transmission.

This is an offence under section 1(1) of the Criminal Law Act 1977. Section 1(1) of the 1977 provides it is an offence for a person to agree with others to follow a course of conduct which, if it is carried out as they intended, would involve an offence being committed. In essence, it is planning to carry out another offence.

The offence that was allegedly planned and committed was the unlawful interception of communications, or ‘hacking’, under section 1 of the Regulation of the Investigatory Powers Act 2000. This provides it is an offence for a person to intentionally intercept communications in the course of their transmission without lawful authority.

Under section 3 of the 1977 Act, the maximum sentence for conspiracy is the maximum sentence of the offence planned. The maximum sentence for unlawful interception is two years imprisonment under section 1(7) of the 2000 Act. Therefore the maximum sentence for conspiracy here was two years imprisonment.

The nature of this charge was that Brooks was alleged to have agreed with a number of other individuals (including Glenn Mulcaire and Clive Goodman who have already been convicted of phone hacking) for them to hack the voicemails of a number of people.

Verdict: Not guilty.

Brooks was charged, secondly, with conspiracy to commit misconduct in public office.

Again the conspiracy is charged under section 1(1) of the 1977 Act. It is alleged the offence planned was misconduct in public office. This is an offence under the common law (for more information on what the common law is, see this article). The elements of this offence are set out in the case of Attorney General’s Reference No 3 of 2003 (2004). The offence is committed when a public officer wilfully neglects to perform their duty, or misconducts themselves, to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification.

The maximum sentence for this conspiracy is life imprisonment because the maximum sentence for misconduct in public office is life imprisonment.

The nature of this charge was that Brooks allegedly agreed with a number of public office holders, such as police officers, to pay them for confidential information which would later be used in newspaper articles. By acting in this way the office holders would be committing misconduct in public office. Brooks was charged with two counts of this offence because it was alleged she agreed with two different groups of people to make these payments.

Verdict: Not guilty.

Brooks was charged, thirdly, with conspiracy to pervert the course of justice.

Again the conspiracy is charged under section 1(1) of the 1977 Act. It wass alleged the offence planned was perverting the course of justice. This is an offence under the common law. This offence is defined in the case of R v Vreones (1891) as doing an act tending and intended to pervert the course of public justice.

The maximum sentence for this conspiracy is life imprisonment because the maximum sentence for perverting the course of justice is life imprisonment.

The nature of this charge was that it was alleged Brooks agreed with others to permanently remove seven boxes of archived material from the archive of News International. Brooks was charged with two counts of this offence because it was also alleged she agreed with others to conceal documents, computers and other electronic equipment from police officers.

Verdict: Not guilty.

Andy Coulson

He was also a former editor of the News of the World. Additionally, he served as David Cameron’s government director of communications. He was charged with three offences.

He was charged, firstly, with conspiracy to intercept communications in the course of their transmission.

The law is the same as above. The nature of this charge was that Coulson was alleged, along with Brooks, to have agreed with a number of other individuals (including Glenn Mulcaire and Clive Goodman, who have already been convicted of phone hacking) for them to hack the voicemails of a number of people.

Verdict: Guilty.

Coulson was charged, secondly, with conspiracy to commit misconduct in public office.

The law is as before. The nature of this charge was that Coulson allegedly agreed, along with Goodman, with a number of public office holders, such as police officers, to pay them for confidential information to be used in newspaper articles. Coulson was charged with two counts of this offence because it was alleged he agreed to make payments on two different occasions.

Verdict: Jury discharged. To be retried.

Ian Edmonson

He was the former news editor of the News of the World. He was charged with one offence.

He was charged with conspiracy to intercept communications in the course of their transmission.

The law is the same as above. The nature of the charge was that Edmonson was alleged, along with Brooks and Coulson, to have agreed with a number of other individuals (including Glenn Mulcaire and Clive Goodman, who have already been convicted of phone hacking) for them to hack the voicemails of a number of people.

Verdict: Not guilty.

Stuart Kuttner

He was the former managing editor of the News of the World. He was charged with one offence.

He was charged with conspiracy to intercept communications in the course of their transmission.

The law is the same as above. The nature of the charge was that Kuttner was alleged, along with Brooks, Coulson and Edmonson, to have agreed with a number of other individuals (including Glenn Mulcaire and Clive Goodman, who have already been convicted of phone hacking) for them to hack the voicemails of a number of people.

Verdict: Not guilty.

Clive Goodman

He was the former royal editor of the News of the World. He was charged with two offences.

Goodman was charged with conspiracy to commit misconduct in public office.

The law is as before. The nature of the charge was that Goodman allegedly agreed, along with Coulson, with a number of public office holders, such as police officers, to pay them for confidential information to be used in newspaper articles. Goodman was charged with two counts of this offence because it was alleged he agreed to make payments during two different periods.

Verdict: Jury discharged. To be retried.

Cheryl Carter

She was Brooks’ former personal assistant. She was charged with one offence.

She was charged with conspiracy to pervert the course of justice.

The law is as before. The nature of the charge was that it was alleged Carter agreed, along with Brooks, with others to permanently remove seven boxes of archived material from the archive of News International.

Verdict: Not guilty.

Mark Hanna

He was the former head of security at News International. He was charged with one offence.

He was charged with conspiracy to pervert the course of justice.

The law is as before. The nature of the charge was that it was alleged Hanna agreed, along with Brooks, to conceal documents, computers and other electronic equipment from police officers.

Verdict: Not guilty.

Charlie Brooks

He was Brooks’ husband. He was charged with one offence.

He was charged with conspiracy to pervert the course of justice.

The law is as before. The nature of the charge was that it was alleged Brooks agreed, along with Brooks and Hanna, to conceal documents, computers and other electronic equipment from police officers.

Verdict: Not guilty.

Final Comments

The trial was one of the costliest trials in legal history, with the total costs estimated at nearly £100 million. Details about the costs involved can be found here. The original indictment (the document formally charging the defendants) appears below.

The Indictment

INDICTMENT

REGINA v Ian Edmondson, Rebekah Brooks, Andrew Coulson, Stuart Kuttner, Clive Goodman, Cheryl Carter, Charles Brooks and Mark Hanna

The charges are as follows:-

Count 1

STATEMENT OF OFFENCE

Conspiracy to intercept communications in the course of their transmission without lawful authority, contrary to section 1(1) of the Criminal law Act 1977.

PARTICULARS OF OFFENCE

IAN EDMONDSON, REBEKAH BROOKS, ANDREW COULSON and STUART KUTTNER between 3 October 2000 and 9 August 2006 conspired together, and with Glenn Mulcaire, Clive Goodman, Greg Miskiw, Neville Thurlbeck, James Weatherup and persons unknown, to intercept, without lawful authority, communications in the course of their transmission by means of a public telecommunications system, namely mobile phone voicemail messages.

Count 2

STATEMENT OF OFFENCE

Conspiracy to commit Misconduct in Public Office, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

CLIVE GOODMAN and ANDREW COULSON, between the 31st August 2002 and the 31st January 2003, conspired together and with persons unknown to commit misconduct in public office.

Count 3

STATEMENT OF OFFENCE

Conspiracy to commit Misconduct in Public Office, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

CLIVE GOODMAN and ANDREW COULSON, between 31 January 2005 and 3 June 2005, conspired together and with persons unknown to commit misconduct in public office.

Count 4

STATEMENT OF OFFENCE

Conspiracy to commit Misconduct in Public Office, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

REBEKAH BROOKS between 1 January 2004 and 31 January 2012, conspired with John Kay, Fergus Shanahan, Geoffrey Webster and Bettina Jordan-Barber and persons unknown to commit misconduct in public office.

Count 5

STATEMENT OF OFFENCE

Conspiracy to commit Misconduct in Public Office, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

REBEKAH BROOKS, between 9 February 2006 and 16 October 2008, conspired with Duncan Larcombe, John Hardy and Claire Hardy and with persons unknown to commit misconduct in public office.

Count 6

STATEMENT OF OFFENCE

Conspiracy To Pervert The Course Of Justice, contrary to Section 1(1) Criminal Law Act 1977

PARTICULARS OF OFFENCE

REBEKAH BROOKS and CHERYL CARTER between 6 July 2011 and 9 July 2011 conspired together to do a series of acts which had a tendency to and were intended to pervert the course of public justice, namely permanently to remove seven boxes of archived material from the archive of News International.

Count 7

STATEMENT OF OFFENCE

Conspiracy To Pervert The Course Of Justice, contrary to Section 1(1) Criminal Law Act 1977

PARTICULARS OF OFFENCE

REBEKAH BROOKS, CHARLES BROOKS and MARK HANNA, between the 15 July 2011 and the 19 July 2011 conspired together and with Lee Sandell, David Johnson, Daryl Jorsling, Paul Edwards and persons unknown to do an act or a series of acts which had a tendency to and were intended to pervert the course of justice, namely to conceal documents, computers, and other electronic equipment from officers of the Metropolitan Police Service who were investigating allegations of phone hacking and corruption of public officials in relation to the News of the World and The Sun newspapers.

INDICTMENT ENDS

Right to Die Campaigners Lose Appeal at Supreme Court

The Supreme Court has ruled there is no right to be assisted to die. Although a majority of the nine judges ruled the court had the authority to declare the current law breaches the right to a private life, the majority concluded there was no such breach.

More to follow.

A Right to Die – Part 1: The Background

The Supreme Court will decide tomorrow whether there is a right to die so that those who are physically unable to end their own lives can receive assistance from individuals and medical professionals.

This article sets out the background to the case and the issues. Part 2 of the article will discuss the Supreme Court’s judgment.

The Issue

Some individuals who have permanent and catastrophic physical disabilities decide (with full mental capacity) that they want to end their own lives. They are unable to end their lives because of their disability and seek assistance, either from individuals such as relatives, or from medical professionals, to end their lives. However, the law provides that it is a criminal offence to assist another to commit suicide.

Section 2(1) of the Suicide Act 1961 provides it is an offence for a person to do an act capable of encouraging or assisting the suicide or attempted suicide of another person, if that person intends to encourage or assist suicide or an attempt at suicide. The maximum sentence for the offence is 14 years imprisonment.

Under section 2(4) of the Act, a prosecution for encouraging or assisting suicide may only be brought with the permission of the Director of Public Prosecutions (DPP), the head of the Crown Prosecution Service (CPS).

On the face of it, the law is clear: helping others to commit suicide is a very serious offence. Suicide itself is not an offence, under section 1 of the 1961 Act.

Individuals who want assistance to end their lives have argued that article 8 of the European Convention on Human Rights (ECHR) permits them to determine how their lives should end. Article 8(1) of the ECHR sets out the right to a private life and is part of the law in the United Kingdom under the Human Rights Act 1998. It provides: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’. Those wanting to end their lives argue that self-determination is an important part of their private lives; therefore to prevent their determination to end their lives by denying them assistance to die breaches their human rights. Accordingly they argue the Suicide Act 1961 should be changed or not enforced to be human rights compliant.

The challenge for the courts has been to try and determine where the law actually lies.

Previous Cases

The first major case in this area was R (Pretty) v Director of Public Prosecutions (2001). Dianne Pretty suffered from motor neurone disease and was unable to end her own life. Her husband was willing to assist her with her final wish. Assisting his wife would amount to assisting suicide under the 1961 Act. Pretty therefore sought an assurance from the DPP to the effect that he would not allow her husband to be prosecuted. When the DPP refused to give such an assurance Pretty brought a claim arguing that her human rights would be breached in not allowing her to be assisted. She argued, amongst other things, that the right to life under article 2(1) of the ECHR included a right to die, and that she should be able to determine when her life ended under article 8(1) of the ECHR, as discussed above. The House of Lords (the previous name for the Supreme Court) dismissed her arguments, holding that there was no right to die and that article 8 did not include a right to determine when to die. The court held that even if it was wrong about article 8, and there was a right to determine when to die, then the current law in the Suicide Act 1961 was justified under article 8(2) as being in accordance with the law and necessary in a democratic society to protect the vulnerable from abuse should be law be changed to allow assisted suicide; the law in the Suicide Act was proportionate to the aim of protecting the vulnerable in society.

Pretty appealed the decision to the European Court of Human Rights in Strasbourg (Pretty v United Kingdom (2002)). The European Court agreed with the House of Lords but for different reasons. It held that preventing Pretty from determining when to end her life did interfere with her rights under article 8(1) because self determination formed a part of an individual’s private life. However, that interference was justified under article 8(2) for the reasons the House of Lords gave.

The next case to deal with these issues was R (Purdy) v Director of Public Prosecutions (2009). Debbie Purdy suffered from multiple sclerosis. There would come a time when life would be unbearable for her. She wanted to end her life in due course while she was still physically able to do so. By this stage she would require assistance, so she planned to travel to a country where suicide was lawful (such as to the the Dignitas clinic in Switzerland). Her husband was willing to help her make the journey but she was concerned he would then be prosecuted under the 1961 Act for assisting suicide. She sought information from the DPP on the factors he would take into account in deciding whether to prosecute, but he refused. She brought a claim relying on article 8(1). She argued that the Suicide Act interfered with her private life and breached her rights because the restrictions imposed on her private life were insufficiently defined in law. It was argued the law was insufficiently defined since it was unclear when the DPP would allow a prosecution under section 2(4) of the 1961 Act. The House of Lords agreed: article 8(2) required restrictions on human rights (including the right to determine when one’s life will end) to be in accordance with the law. This meant it had to be accessible and sufficiently precise so that individuals could understand its scope and foresee the consequences of their actions so they could avoid breaking the law. However, the DPP’s policy was insufficiently precise and individuals could not foresee how it would apply to them. Therefore the DPP had to clarify his policy. That revised policy can be viewed here.

The Current Case

The two previous cases set up the arguments in the current case, R (Nicklinson) v Ministry of Justice. This concerns three conjoined cases. The first is brought on behalf of Tony Nicklinson, who recently died. The second is brought by Paul Lamb. Lamb is and Nicklinson was unable to commit suicide even with assistance and would require another to terminate their lives. The arguments on their behalf contend that a blanket ban against assisted suicide breaches their right under article 8(1) to determine when they die and is not proportionate. The third claim is brought by an individual known only as ‘Martin’. He can end his own life with assistance but has no close relatives able to assist him. He would require the assistance of a medical professional and is arguing that the DPP’s guidance on when prosecutions will be brought is still unclear in relation to health professionals.

All three were unsuccessful in the High Court. In the Court of Appeal, Nicklinson’s and Lamb’s appeals were dismissed. The Court of Appeal held that the ban was proportionate for the same reasons given in Pretty; it was inappropriate to give rights beyond article 8(1) because it would be against the will of Parliament, who had expressed its opposition to assisted suicide through the Suicide Act 1961. It was for Parliament to change the law, not the courts.

Martin’s appeal was successful. The Court of Appeal agreed that the DPP’s policy was not sufficiently clear in relation to medical professionals assisting suicide. The DPP appealed this decision. The Supreme Court has considered all the issues together.

Thoughts on the Case

It is likely that the Supreme Court will agree with the Court of Appeal. It would be surprising if it concludes there is a right to die. What is more likely is that it confirms the issue is for Parliament to decide, not the courts. Nevertheless, the Court is taking the matter very seriously. It sat as a panel of nine. Only the most important legal cases demand a panel of nine Supreme Court Justices. Ordinarily cases are heard by five Justices. More important cases are heard by seven Justices. The most important cases of all are heard by nine Justices.

If, as predicted, the Supreme Court decides tomorrow that the matter is an issue for Parliament, it will be down to Parliament to decide if it will legislate to allow assisted suicide. It may get the opportunity to consider that later this year, when Lord Falconer’s Assisted Dying Bill receives further consideration. This is based on the system in Oregon, United States, where assisted suicide is permissible.

What are your thoughts? Should we allow assisted suicide?

Supreme Court Confirms CRB Checks Breach Human Rights

The Supreme Court ruled last week that the former system of CRB checks breached human rights to privacy, upholding an earlier ruling by the Court of Appeal.

Background

The factual background to the case, and an explanation of the Court of Appeal’s judgment, can be found in this earlier article. I will not repeat them here.

In short, the case centred on CRB checks, which are obtained by prospective employers to check whether prospective employees have convictions or other history making them unsuitable for employment. The particular issue for the Supreme Court was whether enhanced CRB checks – which disclose all previous convictions and cautions irrespective of how long ago they were acquired, their triviality, or their relevance to the proposed employment – were an unjustified interference with an individual’s right to a private life, as guaranteed by Article 8 of the European Convention on Human Rights (ECHR). Enhanced CRB checks are often obtained for roles requiring work with children or vulnerable adults.

Article 8

In the present case the claimants (those bringing the claim) argued that disclosing the information contained in enhanced CRB checks to prospective employers breached their right to privacy, as protected by Article 8 of the ECHR. Article 8 guarantees an individual a right to privacy. However, that right is not absolute. The right can be interfered with if it is necessary to achieve certain aims, such as the protection of the rights of others, and where interferences are clearly defined in law. The Government contended that the law permitting enhanced CRB checks protected the rights of others, namely the rights of children and the vulnerable, and were therefore justifiable interferences with the right to privacy

These arguments required the Supreme Court to determine three issues:

1) Did enhanced CRB checks interfere with the claimants’ right to privacy?

2) If so, were those interferences in accordance with the law?

3) If they were in accordance with the law, were they necessary?

I will discuss each of the issues in turn.

Interference

The first issue for the court was whether enhanced CRB checks actually interfered with claimants’ right to privacy. The Supreme Court noted the right to privacy includes a right to form relationships with other human beings and that excluding individuals from employment would be likely to affect the formation of relationships. Since CRB checks could result in a person being excluded from employment (and from forming relationships), it followed that releasing data about an individual’s convictions would interfere with their private life.

In Accordance with the Law

Since the CRB checks interfered with the private lives of the claimants, the second issue was whether the interference was in accordance with the law. This entails that the law must be adequately accessible and foreseeable. The majority of the Supreme Court also held that this meant the law should not subject an individual to arbitrary interference. It concluded that the law on CRB checks did not guard against arbitrary interference because it drew no distinction between the types of offences a person had committed, how long ago they were committed, the sentence received or the relevance of the offences to the proposed employment; it simply allowed the disclosure of all previous offending in an arbitrary manner. Since the law permitted arbitrary interference, the interferences were not in accordance with the law.

Accordingly, since the interferences were not in accordance with the law, they amounted to a breach of article 8: the claimants’ private lives were interfered with in an unlawful way.

Necessary in a Democratic Society

Although the court concluded the law on enhanced CRB checks was unlawful because it was not in accordance with the law, it nevertheless went on to determine whether the interference would have been justified as being necessary in a democratic society. This issue is a question of proportionality, which in law is a three-part test. Firstly it is asked if the disputed law pursued a legitimate aim; secondly, it asks if the disputed law was rationally connected to the aim; finally, it asks whether the disputed law was any more that was necessary to achieve the aim. The court held that although the law aimed to protect the vulnerable, it was not rationally connected to that aim because it permitted the disclosure of totally irrelevant convictions. Therefore the law was not proportionate.

Overall then, the law on enhanced CRB checks interfered with the claimants’ right to privacy and was unjustified; article 8 had been breached. The Supreme Court’s judgment can be read here.

Comment

This is an unsurprising decision. However, it is curious that the Government decided to appeal the Court of Appeal’s judgment. Shortly after the Court of Appeal handed down its judgment, as I explained in this article, the Government changed the law on CRB checks to filter old and irrelevant convictions from CRB checks in order to ensure the law complied with article 8. The Government spent vast sums of money appealing a decision even though it was prepared to follow the decision and change the law to make it complaint with article 8. That is not a commendable use of public funds.

What are your thoughts?

‘Cannot be Named for Legal Reasons’: What Reasons?

Introduction

A frequent feature of many news reports on criminal trials is that certain individuals ‘cannot be named for legal reasons’. In this article I shall explain some of the main ‘legal reasons’ – known as reporting restrictions – that prevent the publication of the names of certain individuals or other information.

Children

The primary category of reporting restrictions applies to children. Since children are vulnerable, reporting restrictions are almost always imposed when they are concerned in criminal proceedings. For these purposes, children are those under the age of 18.

The nature of the reporting restrictions depends upon the court in which the child is appearing. In those cases where a child is appearing in the youth court, reporting restrictions are automatically imposed by section 49 of the Children and Young Persons Act 1933. Section 49 provides that no report can be published which reveals the name, address or school of any child, or which includes any information likely to lead to the identification of the child. Further, no picture of the child may be published. The restrictions apply whether the child is the defendant, the alleged victim or a witness: section 49(4) of the 1933 Act.

The court may lift the reporting restrictions in certain circumstances. Firstly, the court can lift the restrictions if it necessary to avoid injustice to the child: section 49(5)(a) of the 1933 Act. Secondly, restrictions can be lifted if the child is unlawfully at large and it is necessary to lift the restrictions for the purpose of detaining them: section 49(5)(b) of the 1933 Act. However, restrictions can only be lifted under this category where the child has been charged with, or convicted of, a serious offence: see section 49(6) of the 1933 Act. Finally, restrictions can be lifted under section 49 where the child has been convicted of an offence where the court is satisfied that it is in the public interest to do so: section 49(4A) of the 1933 Act. For example, Jon Venables and Robert Thompson were revealed as the killers of two-year-old James Bulger in November 1993, despite being only aged 11 themselves.

It is an offence to publish a report in contravention of section 49: section 49(9) of the Act. It is punishable by a fine of up to £5,000.

In those cases where a child is appearing in a magistrates’ court or the Crown Court, reporting restrictions may be imposed by the court under section 39 of the Children and Young Persons Act 1933. The reporting restrictions are not automatic, unlike section 49. Section 39 provides that a court may direct that no newspaper report can reveal the name, address, or school, or any information likely to lead to the identification of the child. Further, a direction may be given that no picture of the child may be published. Section 39 applies to sound and television reports just as it applies to reports in newspapers: section 57(4) of the Children and Young Persons Act 1963. The restrictions apply whether the child is the defendant, the alleged victim or a witness: section 39(1)(a) of the 1933 Act.

The court may lift the reporting restrictions at its discretion. It is an offence to breach a direction given under section 39: section 39(2) of the Act. It is punishable by a fine of up to £5,000.

Sexual Offences

Another important category of reporting restrictions concerns those who allege a sexual offence has been committed against them.

Under the Sexual Offences (Amendment) Act 1992, the alleged victim in a case involving one of the sexual offences mentioned in section 2 of the Act, which includes rape, is  automatically entitled to anonymity. Once an allegation of one of the relevant offences has been made, nothing may be published which is likely to lead members of the public to identify the alleged victim: section 1 of the 1992 Act. Under section 1, the reporting restriction lasts for the lifetime of the alleged victim.

Under section 3 of the 1992 Act, the restriction may be lifted by the court in two circumstances. Firstly, the court may lift the restriction if it is required by the defence so that witnesses will come forward and the conduct of the defence is likely to be seriously prejudiced if the restriction is not lifted: section 3(1) of the 1992 Act. This covers those cases where the defendant believes there are witnesses to the alleged crime that can corroborate the defendant’s account of the incident. Secondly, the court may lift the restriction if it is satisfied that the restriction imposes a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to relax the restriction: section 3(2) of the 1992 Act.

In addition to the court being able to lift the restriction, the alleged victim may also waive their right to anonymity in writing: section 5(2) of the 1992 Act.

It is an offence to publish information in breach of the restriction, punishable by a fine of up to £5,000: section 5(1) of the 1992 Act.

Name and Other Matters

Another broad power to impose reporting restrictions is located in section 11 of the Contempt of Court Act 1981. This provides that where the court uses a power it has under the common law (for more on the common law, see this article) to allow a name or other matter to be withheld from the public in the proceedings, the court may give directions prohibiting the publication of the name or matter in relation to the proceedings if it is necessary for a certain purpose.

This provision allows the courts to restrict reporting of, for example, the name and addresses of witnesses. It even allows the court to restrict reporting of the defendant’s name. This might be necessary where, for example, the defendant’s life might be endangered if their identity is known publicly. However, section 11 only applies where the court has already used a power it has to withhold a name or other matter. It cannot be used where the information has already been made public.

Publishing information in breach of this restriction is punishable as contempt of court.

Conclusion

There is a range of restrictions on court reporting. This article has sought to explain some of the most commonly imposed restrictions. A guide examining all reporting restrictions in the criminal courts has been published by the Judicial College, the Newspaper Society, the Society of Editors and Times Newspapers Ltd. The third edition was published today. It can be read here. It will be especially useful to the journalists amongst you. The range of restrictions should not, however, mislead anyone into believing that the British justice system is one that routinely restricts open reporting of criminal matters. On the contrary, the default principle of British justice is open justice: ‘…justice should not only be done, but should…be seen to be done’. This was seen last week when the Court of Appeal refused to hold a criminal trial wholly in private. Reporting restrictions are only imposed by the law when they are justified.

Do you agree with reporting restrictions? Do you think they are too extensive?

Court of Appeal Rules Trial Cannot be Held in Secret

The Court of Appeal has today ruled that a terrorism trial cannot be held entirely in secret and the names of the defendants cannot be withheld.

Background

The Crown Prosecution Service (CPS) brought terrorism charges against two defendants, known as AB and CD. AB is charged with preparing acts of terrorism under section 5 of the Terrorism Act 2006, and with collecting information likely to be useful for terrorism under section 58 of the Terrorism Act 2000. CD is also charged with an offence under section 58 of the 2000 Act, and with possession of false identity documents with an improper intention under section 4 of the Identity Documents Act 2010.

Much of the evidence to be relied on has been obtained by the work of the intelligence services. It is by its very nature secret. Therefore the prosecution applied to have the entire trial conducted in private with the names of the defendants withheld. The application was supported by Ministerial Certificates from the Home Secretary and the Foreign Secretary which set out why the evidence should be kept secret. Mr Justice Nicol initially dealt with the application.  Part of the hearing was open, part was in private (in the absence of the media), and part was held in the absence of all except the prosecution (known as an ‘ex parte’ hearing) (this is where the highly sensitive material was discussed). Nicol J’s two primary conclusions were, firstly, that the trial could be conducted entirely in camera (in private) and, secondly, the defendants’ names could be withheld.

The media appealed both of these conclusions to the Court of Appeal under section 159 of the Criminal Justice Act 1988. Sitting in the Court of Appeal, Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett overturned Mr Justice Nicol’s decision.

The court noted that open justice is a fundamental principle of the common law and a way of ensuring public confidence in the legal system (for more on the common law, see this article). The reason for this is clear: if we can see justice in action and can verify that the course of justice proceeds correctly, we can have confidence in the justice system. The court said exceptions to the principle of open justice are rare and must be ‘necessary and proportionate’.

The court further noted that national security is also a national interest of the highest importance, and the work of the security services must remain secret as a matter of necessity. Consequently, tensions can arise between the secrecy demanded by national security and the openness demanded by open justice.

The court explained that the tension between national security and open justice is resolved according to the following principles:

• Firstly, considerations of national security will not by themselves justify departing from open justice.
• Secondly, open justice must, however, give way to the more fundamental principle that justice must be done. Therefore, where there is a serious possibility that insisting on open justice in the national security context would frustrate justice by, for example, deterring a prosecution where there should be one, a departure from open justice may be acceptable.
• Thirdly, the question of whether to give effect to a Ministerial Certificate (which states the need for secrecy) is for the court. However the court will not lightly depart from an assessment made by a Minister.

Applying these principles, the court held, firstly, that there was a significant risk that the administration of justice would be frustrated if the trial were to be conducted in open. Indeed, the prosecution might not continue at all if it was forced to reveal secret information in public. Therefore it was necessary that the core of the trial must be held in camera. However, there would be no risk to the administration of justice if the following elements of the trial were heard in open court:

• Swearing in of the jury;
• Reading the charges to the jury;
• At least part of the judge’s introductory remarks to the jury;
• At least part of the prosecution’s opening;
• The verdicts; and
• If any convictions result, sentencing (subject to further legal argument).

These elements will therefore be conducted in open court.

The court held, secondly, that given the core of the trial would be held in private, there was no risk to the administration of justice requiring the names of the defendants to be withheld. They can therefore be named as Erol Incedal (AB) and Mounir Rarmoul-Bouhadjar (CD).

Accordingly, the Court of Appeal disagreed with Mr Justice Nicol on both issues. Although it permitted the core of the trial to be held in private, it refused to permit an entirely secret trial and declined to withhold the names of the defendants. It added the following warning: ‘We express grave concern as to the cumulative effects of (1) holding a trial in camera and (2) anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified’.

Comment

This decision should be welcomed. The very core of British justice is open justice. Indeed, it is said that ‘…justice should not only be done, but should…be seen to be done’. An entirely secret trial would have set a dangerous precedent. While it cannot be said a trial should never be entirely secret (where the interests of justice so require), it can be said that only the most exceptional circumstances will justify this course. Those circumstances were not present here.

What are your thoughts on open justice?

Teenager Will Not be Retried for Terror Offences

A teenager who was allegedly plotting to carry out a ‘Columbine-style’ terror attack will not face a retrial for terror offences after a jury was unable to reach a verdict.

Michael Piggin, 18, from Loughborough, was charged with possessing items for the purpose of terrorism and with possessing a document containing information likely to be useful for a person committing or preparing an act of terrorism. He had earlier pleaded guilty to possessing explosives and possessing a knife in a public place.

It was the second time the teenager had faced the charges after another jury failed to reach a verdict in November 2013, when Piggin was 17 and could not be named because of his age.

The prosecution had alleged that the teenager was planning a ‘Columbine-style’ attack in his home town, after air rifles, component parts of pipe bombs, a crossbow and swastika flag were found in his bedroom. Videos were shown of him making Neo-Nazi salutes, shouting ‘EDL’ outside a mosque, writing racist graffiti on a wall and throwing petrol bombs behind a leisure centre.

Piggin, who was diagnosed with Asperger’s syndrome after his arrest in February 2013, said he wrote about attacks to cope with bullying. He said he tested explosives ‘for entertainment’. He denied possessing a Mujahideen Poisons Handbook. Throughout the trial he denied having any real plan for attacks and said it had ‘just been in his head’. Further, he said he ‘didn’t have a problem with Muslims in general’ and described his racist comments as ‘banter’.

He will be sentenced on 13 June for the offences he pleaded guilty to.

What is the law on the offences Piggin was charged with?

Terrorist Offence: Possessing Items for Terrorist Purposes

The offence of possessing items for terrorist purposes is located in section 57(1) of the Terrorism Act 2000. It provides that a person is guilty of an offence if they possesses an article in circumstances which cause reasonable suspicion that the possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.

Section 1 of the Terrorism Act 2000 defines ‘terrorism’ as:

• the use or threat of ‘action’,
• which is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
• which is made for the purpose of advancing a political, religious, ideological or racial cause.

‘Action’ includes:

• serious violence against a person,
• serious damage to property,
• endangering a person’s life (other than the life of the person committing the action),
• creating a serious risk to the health or safety of the public or a section of the public, or
• anything designed to seriously interfere with or seriously disrupt an electronic system.

The definition of terrorism is very widely drawn and basically involves the use or threat of violence for political, religious, ideological or racial causes.

Under section 57(3) of the 2000 Act, if it is proved that an article was at the same premises as the defendant, or at premises they occupied or habitually used (except for public places), the court may assume the defendant possessed the article unless the defendant proves they did not know of the presence of the article or had no control over it.

Under section 57(2) of the 2000 Act, it is a defence for a person to prove that the article was possessed for a reason unconnected with terrorism.

The maximum penalty on conviction is 15 years’ imprisonment: section 57(4) of the 2000 Act.

Terrorist Offence: Documents Likely to be Useful to Terrorists

The offence of possessing a document containing information likely to be useful for a person committing or preparing an act of terrorism is found in section 58(1) of the Terrorism Act 2000. It provides that a person is guilty of an offence if he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or if they possess a document or record containing information of that kind.

Section 58(2) of the 2000 Act makes it a defence for a person to prove they had a reasonable excuse for their action or possession.

The maximum penalty on conviction is 10 years’ imprisonment: section 58(4).

Possessing Explosives

Under section 4(1) of the Explosive Substances Act 1883, a person who makes or knowingly has in their possession (or under their control) any explosive substance in circumstances causing reasonable suspicion that they are not making or possessing them for lawful reasons shall be guilty of an offence, unless they can show it was made or possessed for a lawful reason.

The maximum penalty on conviction is 14 years’ imprisonment, and the explosives must be forfeited: section 4(1) of the 1883 Act.

A prosecution for this offence may only be brought with the consent of the Attorney General: section 7(1) of the 1883 Act.

Possession of a Knife in a Public Place

It is an offence under section 139 of the Criminal Justice Act 1988 for a person to have with them in a public place a blade or sharply pointed objected, unless it is a folding knife with a blade of less than three inches.

It is a defence under section 139(4) of the 1988 Act for a person to prove they had a good reason or lawful authority for having the article in a public place, or that they had it with them for use at work, religious reasons, or as part of any national costume.

The maximum penalty on conviction is four years’ imprisonment under section 139(6) of the 1988 Act.

It is also worth noting that carrying a knife in public can be charged as possession of an offensive weapon, under section 1 of the Prevention of Crime Act 1953.