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?
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