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.

Government Argues Whole Life Sentences Can Be Imposed Despite Ruling by European Court of Human Rights

Introduction

The Government has argued in the Court of Appeal that whole life sentences can be imposed for the most serious crimes, despite a ruling by the European Court of Human Rights that whole life sentences are unlawful in their current form.

In July last year, the European Court of Human Rights ruled in Vinter v United Kingdom (2013) that whole life sentences – or whole life orders – amount to inhuman and degrading treatment, and therefore breach article 3 of the European Convention on Human Rights (ECHR), because there is no option for them to be reviewed and so no possibility of release for the offender. For more information on the Court’s judgment, see this article.

The case in the Court of Appeal concerns two individuals. The first is Ian McLoughlin, 55, a convicted double killer. McLoughlin was not given a whole life sentence when he was sentenced for his second murder last year because of the European Court’s ruling. Instead, he was given a life sentence with a minimum term of 40 years (for more information on sentences for murder, see this article). The Attorney General, Dominic Grieve, is appealing this sentence, arguing that the sentence passed was ‘unduly lenient’ under section 36 of the Criminal Justice Act 1988 and that a whole life order should have been imposed. He argued that the European Court’s ruling does not prevent whole life sentences being ordered.

The second individual is Lee Newell, 45, also a convicted double killer. He is appealing against a whole life sentence imposed in him last year, arguing that it was unlawful because of the European Court’s ruling.

It is for the Court of Appeal to determine whether whole life sentences remain justified. The appeal was heard on Friday (the 24^th).

The Government’s Argument

The Government argued that whole life orders do not breach article 3, despite the European Court’s ruling, because of section 30 of the Crime (Sentences) Act 1997. This provides that the secretary of state may release a life prisoner if there are exceptional circumstances to justify the release on compassionate grounds. The Government argued that whole life prisoners could use this section to apply for their release because, for example, they have rehabilitated. This would then lead to the review that the European Court has said is necessary to avoid breaching article 3.

It might be thought surprising if this argument is successful: it was rejected by the European Court in Vinter. It was rejected because the power in section 30 is only exercised in restricted circumstances. Prison Service Order 4700, chapter 12, provides the power of release will only be used where, amongst other things, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. Therefore the European Court was not satisfied that this provided a general right of review where a prisoner was claiming that their imprisonment was no longer justified because, for example, they had rehabilitated. This is seemingly powerful reasoning.

However, it is open to the Court of Appeal to read section 30 in a way that requires a general review where a prisoner is claiming there are no longer any grounds – such as punishment or deterrence – to justify their continued imprisonment, so that English law is compatible with article 3. It is entitled to do this under section 3 of the Human Rights Act 1998, which requires all legislation to be read compatibly with the ECHR so far as it is possible to do so. The Court of Appeal has previously contemplated this option, in a case called R v Bieber (2008).

An Alternative Argument

An alternative argument for the Government, and one which I believe was more appealing, was simply to contend the judgment in Vinter was wrong and that in those exceptional circumstances our courts should decline to follow it, an approach adopted in R v Horncastle (2009), a case concerning hearsay evidence.

Why was the decision wrong? In Vinter the European Court of Human Rights considered that reviews were necessary because it would violate human dignity not to allow an individual the chance to rehabilitate. However, as I pointed out in this article, this missed the point. Whole life sentences in England and Wales are imposed when the seriousness of an offence is exceptionally high. We have adopted the policy that some offences are so serious that the only suitable punishment is imprisonment for the remainder of the offender’s life; the offender forfeits their right to rehabilitate. Punishment of the offender and, to a lesser extent, deterring others from committing similar crimes justifies the sentence alone. There is no issue of rehabilitation since we have determined that the severity of some offences warrants a punishment where there is no prospect of rehabilitation. The real issue, then, is whether that approach is justified.

Whether that approach is correct or not – whether punishment and deterrence should trump rehabilitation – is not, I do not believe, a question suited to determination by a court. It is an unresolved philosophical question which legislators should decide until society is settled on how far punishment can justify prison sentences. If the Court of Appeal takes this option, and rules that whole life sentences can continue to be imposed on the basis that the judgment in Vinter misunderstood the nature of English law, then the issue can doubtlessly be revisited in due course by the European Court of Human Rights.

Conclusion

This is an important case. It was heard by five judges rather than the normal three: the Lord Chief Justice, Lord Thomas, sat alongside Lord Justice Leveson, president of Queen's Bench Division; Lady Justice Hallett; Lord Justice Treacy, who heads the sentencing council; and Mr Justice Burnett. If the Government loses the appeal it will strain the United Kingdom’s relations with the European Court even further.

Attorney General Rejects Call to Refer Huhne and Pryce Sentences

The sentences imposed on Chris Huhne and Vicky Pryce will not be referred to the Court of Appeal, the Attorney General has confirmed.

In a letter to David Burrowes MP, the Attorney General, Dominic Grieve, rejected the MP’s call to refer the sentences to the Court of Appeal for being ‘unduly lenient’.

Huhne and Pryce were sentenced to eight months each in prison, following their convictions for perverting the course of justice after swapping speeding points. Further details on the sentences and the convictions can be found in this article.

The MP had asked the Attorney General to use his power to refer cases to the Court of Appeal where it is thought the sentence is unduly lenient. The Court of Appeal can then increase the sentence if it agrees.

In his response the Attorney General explained that his power to refer cases was ‘exceptional’ and to be used only where the sentencing judge falls into ‘gross error’. The Attorney General concluded, after reference to the sentences given in similar cases, that the sentences passed on Huhne and Pryce were not ‘characteristic of the gross error required’ for a referral to the Court of Appeal. The sentences will therefore remain the same.

The Attorney General’s letter can be read here.

For the original article on the referral by David Burrowes MP, see here.

The Law on Appealing Unduly Lenient Sentences

Sections 35 and 36 of the Criminal Justice Act 1988 allow the Attorney General to refer certain sentences to the Court of Appeal (Criminal Division) if he or she thinks a sentence is ‘unduly lenient’. The Attorney General must obtain the leave (permission) of the Court of Appeal to make a reference to it. Leave must be applied for within 28 days of the sentence being passed. If the Court of Appeal grants leave it will then review then sentence. It can then pass a sentence that it regards as appropriate, extending it if necessary.

Huhne and Pryce Sentences Referred for ‘Undue Leniency’

The sentences imposed on Chris Huhne and Vicky Pryce have been referred to the Attorney General for being ‘unduly lenient’.

The former cabinet minister and his ex-wife were sentenced to eight months’ imprisonment on 11^th March for perverting the course of justice, after Pryce accepted Huhne’s speeding points in 2003. For more information on the sentences given, see this article.

The Conservative MP David Burrowes has referred the sentences to the Government’s senior law officer, the Attorney General, for being ‘unduly lenient’. In a letter to the Attorney General the MP argues that the sentences do not reflect the ‘seriousness of the offence and the need for it to be exemplary and provide deterrence’.

The Attorney General will now have to decide whether to apply to the Court of Appeal for leave (permission) to appeal the sentences for being unduly lenient. While there are no sentencing guidelines for perverting the course of justice, the Attorney General can look at the sentences given in other cases to help him decide whether or not he believes the sentences to be unduly lenient. If the Attorney General does decide to apply to the Court of Appeal, and it agrees to review the sentences, it could increase their length. We will now have to wait to see whether the Attorney General will apply to have the sentences reviewed.

The Law on Appealing Unduly Lenient Sentences

Sections 35 and 36 of the Criminal Justice Act 1988 allow the Attorney General to refer certain sentences to the Court of Appeal (Criminal Division) if he or she thinks a sentence is ‘unduly lenient’. The Attorney General must obtain the leave of the Court of Appeal to make a reference to it. Leave must be applied for within 28 days of the sentence being passed. If the Court of Appeal grants leave it will then review then sentence. It can then pass a sentence that it regards as appropriate, extending it if necessary.

What do you think of the length of the sentences?

Dappy Guilty of Affray and Common Assault

The N-Dubz rapper Dappy has been found guilty of affray and common assault (assault by beating) in relation to a fight at a petrol station. The 25-year old was convicted by a jury at Guilford Crown Court following an incident on the 28 February 2012. It was reported that he sighed and shook his head when the verdicts were announced.

The court heard that at 3.30am at a petrol station the rapper approached two girls and tried to persuade them to get into a car and attend a recording studio with him. When they refused and ridiculed him the rapper became angry and subsequently spat at another man, David Jenkins, when he stepped in to protect the girls. Following this Jenkins placed the rapper in a headlock and a fight ensued with a number of people.

Dappy faced a further two counts of common assault, having allegedly spat at the two girls but missing them. He was acquitted on these counts.

The case was adjourned for sentencing until the 15^th February so that a pre-sentence report can be prepared. This document will assess what punishments might be suitable for the convicted rapper.

Some notes on the law

Although common assault and affray are offences that are often reported in the media their legal meanings are not entirely clear to the public. So what exactly is common assault? Common assault involves either the offence of assault or battery. Assault is intentional or reckless conduct which causes another to believe that unlawful force will imminently be used against them. Battery is the intentional or reckless unlawful application of force to another. Recklessness is defined in law as foreseeing the possibility of certain outcome as a result of your actions but still going on to take the risk of it. The law tells us that when we charge a person for assault or battery it must be under section 39 of the Criminal Justice Act 1988. It also tells us that when we charge a person for battery we must charge them with ‘assault by beating’.  So in Dappy’s case he was charged with assault by beating, namely battery. He unlawfully applied force to David Jenkins by spitting on him.

Turning now to affray, the essence of this offence is the use or threat of violence by one person against another which would cause a third person at the scene to fear for their personal safety. In addition, a person must intend to use or threaten violence or realise that his conduct may be violent or threaten violence. So the offence focuses on how violent conduct affects those who might observe it. It is a public order offence, charged under section 3 of the Public Order Act 1986.