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?

Huhne and Pryce Released from Prison

Today Chris Huhne and Vicky Pryce have been released from prison following their convictions for perverting the course of justice.

They were released after serving eight weeks of an eight month prison sentence.

They were convicted after Ms Pryce accepted Mr Huhne’s speeding penalty points. He was in danger of losing his driving licence. For the full original story, see this article.

Huhne pleaded guilty on the first day of his trial. Pryce was convicted at her second trial. Her first trial collapsed following concerns about the jury. On both occasions she pleaded the defence of marital coercion.

The pair is awaiting a decision on how much of the prosecution’s cost they will have to pay. The Crown Prosecution Service (CPS) is claiming £108,541 from Huhne. It is claiming £48,695 from Pryce.

Home Detention Curfew

Huhne and Pryce only served one quarter of their sentences. Normally, prisoners are released on licence at the half way point of their sentence. However the Home Detention Curfew (found in section 246 of the Criminal Justice Act 2003) provides that prisoners can be released on licence earlier. Prisoners will be subject to a curfew and electronically monitored (known as ‘tagging’).

Some prisoners are exempt from the Home Detention Curfew scheme, but for those who are eligible, most prisoners will be released on Home Detention Curfew. The scheme is designed to help reintegrate prisoners back into society.

Mitchell to Sue the Sun for Defamation

Ex-cabinet minister Andrew Mitchell has confirmed that he is suing the Sun over claims he swore at police officers outside Downing Street and called them plebs.

The former minister denied the claims a number of times, but later resigned as chief whip of the Conservative Party on 19 October 2012, a month after the claims initially surfaced.

Mitchell later acquired CCTV footage of the incident which appeared to cast doubt on the officers’ claim that a number of members of the public had witnessed the event. He claimed the officers had lied about the event and that he had been framed. Three police officers and another individual were later arrested in connection with the incident.

The Crown Prosecution Service (CPS) has now received police files concerning the incident and will decide if any charges should be brought against the arrested individuals.

Defamation Law

Defamation is a complex area of law. The following is a brief outline of the law.

In essence, a defamatory statement makes an allegation about a person which injures their reputation. That is to say, it is a statement which lowers the estimation of a person in the minds of right-thinking members of society. The statement must be communicated to at least one other person apart from individual that the statement is about. Defamatory statements could include, for example, an accusation that an individual is a criminal, or insane, or dishonest, or immoral.

English law divides defamatory statements into two groups: libels and slanders. Libel refers to statements that are in a permanent form, such as newspaper articles, or that are broadcast on screen. Slander on the other hand refers to statements made in a temporary form, such as in conversation.

A claim for libel can be made even if an individual suffers no damage beyond loss of reputation. However, in the case of slander a claim can only be made if there is actual damage beyond loss of reputation, unless it is an accusation of criminal conduct that is punishable with imprisonment, an allegation that the individual is suffering from a serious contagious or infectious disease, an allegation that a woman is unchaste or adulterous, or an allegation that an individual is unfit in business.

There are various defences to defamation claims. These include, but are not limited to:

• proving the statement to be true (this is called ‘justification’);
• that the statement is fair comment on a matter of public interest;
• the statement was not made (denial);
• the words used did not have any defamatory meaning;
• the making of the defamatory statement was innocent and an offer of amends has been made; and
• the statement was spread by an individual, but not made by them, and the individual had no reason to believe it was a defamatory statement (called ‘innocent dissemination’) (for example a newspaper seller who spreads a defamatory statement by selling a newspaper with a defamatory article within it, but who does not author the article, or have reason to believe there was such an article within it, has a defence).

When a defamation claim is successful, damages can be awarded to compensate for loss of reputation and any other loss flowing from the defamatory statement. An individual can also seek an injunction (court order) preventing the republication of the statement. Alternatively, if an individual knows a defamatory statement is about to be made about them (for example, an individual becomes aware of an approaching news article) they can seek an injunction to stop publication in the first place.

An interesting feature of defamation claims is that the burden of proof is reversed. Burden of proof simply means who is responsible for proving their case. Normally, the individual bringing the claim must prove their case on the balance of probabilities (i.e. 51% or more). In defamation, this burden is reversed and it is for the defendant to show the statement they made was not defamatory on the balance of probabilities.

Huhne and Pryce Jailed for Perverting the Course of Justice

Former cabinet minister Chris Huhne and his ex-wife Vicky Pryce have been jailed for eight months each for perverting the course of justice.

The pair were jailed after she took driving licence penalty points for him after he was caught speeding near Stansted in 2003.

Huhne had previously pleaded guilty to the offence just before his trial began. He was given a 10% discount off his sentence for his plea of guilty. Otherwise he would have been sentenced to nine months.

Pryce, however, pleaded not guilty and claimed the defence of marital coercion, arguing that Huhne forced her to accept the points on his behalf. The jury at her first trial were unable to make a decision but a second jury found her guilty after twelve hours of deliberations.

The judge, Mr Justice Sweeney, told the pair that the only good that had come out of the process was that they had now both been brought to justice for their joint offence. He told them that ‘[a]ny element of tragedy is entirely your own fault’. He said that Huhne had lied ‘again and again’ and had fallen from a ‘great height’. The judge described Pryce as ‘controlling, manipulative and devious’ but said that Huhne was ‘more culpable’ for the offence.

Huhne and Pryce were told by the judge that they would serve half of their eight-month sentences, unless they were released earlier under supervision.

Meanwhile, the CPS has said that the cost of Huhne’s prosecution was £79,015 and Pryce’s was £38,544, totalling £117,558. It is seeking to reclaim those costs. The CPS is also seeking to recover a further £31,000 from Huhne for costs resulting from his attempt to have the case stopped.

For the original article on this case, see this article.

For discussion of Ms Pryce’s first trial and the issues surrounding the jury, see this article.

For the article on Ms Pryce’s conviction, see this article.

Some Notes on Sentencing

It is common practice for defendants who plead guilty to be given a ‘discount’ on their sentence. This is to reflect that a guilty plea prevents witnesses from having to go through the stressful experience of giving evidence and that a guilty plea saves the need for a costly trial. When a defendant pleads guilty at the earliest opportunity they can be given one third off of their sentence. When a defendant pleads guilty after the trial date is set they can be given up to one quarter off of their sentence. If a defendant pleads guilty just before the start of a trial (as Huhne did) or after the trial has started they can be given up to a tenth off of their sentence.

Most prisoners are eligible for release after serving one half of their sentence. But this depends on the circumstances. Some prisoners are also eligible to be released before they have served one half of their sentence, and will be subject to a curfew and electronic monitoring (known as ‘tagging’). Again, this depends on the circumstances.

What do you think of the sentences? Were they too long? Alternatively, do you think they were too short?

Pryce Guilty of Perverting the Course of Justice

Today the ex-wife of former cabinet minister Chris Huhne has been found guilty of perverting the course of justice for accepting his speeding points.

Vicky Pryce, 60, was convicted at Southwark Crown Court in London. The jury accepted the prosecution’s case that Ms Pryce falsely accepted Mr Huhne’s speeding points back in 2003 so that he would avoid prosecution. Mr Huhne already had 9 penalty points on his licence and faced losing it if he accumulated 12 points. Mr Huhne previously pleaded guilty to the offence in February, after initially claiming he was innocent.

Ms Pryce had adopted the little used defence of marital coercion at her trial, claiming that Mr Huhne coerced her into accepting the points and was present at the time when she accepted them. The jury rejected this, however. The court had heard that Ms Pryce wanted to expose Mr Huhne after he admitted an affair. In an email to a Sunday Times journalist, Pryce had said she wanted to ‘nail him’. For more information on the facts of this case and the defence of marital coercion, see this original article: http://lawscapeuk.blogspot.co.uk/2013/02/perverting-course-of-justice-and.html

The verdict came after 12 hours of deliberations. This was a retrial of the offence after the first trial was stopped when the jury failed to reach a decision. The judge, Mr Justice Sweeney, had expressed concern about the first jury’s ‘fundamental deficit in understanding’ of the trial process. For more information about the first trial and the concern about the jury, see this article: http://lawscapeuk.blogspot.co.uk/2013/02/perverting-course-of-justice-again-can.html

The Crown Prosecution Service (CPS) has said that costs in the case amounted to £100,000. It said that Chris Huhne challenged the prosecution and then pleaded guilty at the last minute, which was expensive. The CPS has said it intends to apply for the costs of the case to be ordered to be paid by Huhne and Pryce.

The judge has told both Pryce and Huhne that they should be under ‘no illusions’ about the likely sentence they will receive. Perverting the course of justice is a serious offence and it is often punished with imprisonment. The pair will be sentenced at a later date. In the meantime they both remain on bail.

What sentence do you think Huhne and Pryce should be given? Do you think accepting speeding points for another person is a serious offence? Should the pair be given harsher sentences because of their high profile positions?