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The Semi-Secret Terror Trial - A Leap of Faith in the Judiciary

About The Author

Merry Van Woodenberg (Guest Contributor)

Merry was called to the Bar by Middle Temple in 2012. She will be commencing a pupillage at 9 – 12 Bell Yard in October 2014. Merry currently works at Corker Binning, a leading London law firm specialising in business crime, fraud, general crime and extradition. Merry regularly contributes to the Corker Binning blog, Halsbury's Law Exchange, MSN News UK and ITV News. She has also had articles published in The Lawyer, Counsel Magazine and Euromoney Magazine.

“An unprecedented attempt to hold the first ever completely secret criminal trial in the UK has been blocked by the Court of Appeal”, crowed the BBC.

“The majority of a major terrorism trial will be heard in secret despite the Court of Appeal allowing some access”, cried the Telegraph.

Both news providers are saying the same thing, of course, but with a different spin. Is the decision by the Court of Appeal in Guardian News and Media v AB CD to be seen as a victory for open justice, or a victory for Kafkaesque ‘justice’? Perhaps it is somewhere in between: a difficult decision made by a panel of esteemed judges delicately striking the balance between the rule of law and the demands of national security? Albeit it may be the least sexy choice, I am persuaded the answer is the latter.

Background to the case – the judgments of Nicols J and Gross LJ

Last week, the papers reported that Mr Justice Nicol ruled on 19 May 2014 that the criminal trial of two defendants, known then only as ‘AB’ and ‘CD’ should, for the first time in modern British legal history, be held fully in camera (in private) as the evidence which was to be called was so sensitive as to risk damaging national security if used in a public trial. Nicol J had further held that the very existence of the trial could not be reported, but an appeal from the press led to Gross LJ setting aside that ruling. The power for a judge to order that parts of a trial be held in camera is part of the court’s long-standing common law case management powers combined with powers drawn from the Contempt of Court Act 1981.

CD is charged with improper possession of a UK passport (contrary to s.4 Identity Documents Act 2010). AB is charged with engaging in conduct in preparation of terrorist acts (contrary to s.5 Terrorism Act 2006), and is further charged with CD of being in possession of document or records containing information of the kind likely to be used by a person committing or preparing an act of terrorism, specifically a document entitled ‘Bombmaking’ (contrary to s.58 Terrorism Act 2000). Lawyers who regularly conduct terrorism cases are likely to be familiar with this document, along with another document called ’39 Ways to Serve and Participate in Jihad’. Individuals have been charged with, and convicted of, possessing these documents in conjunction with other terrorist offences, yet those trials have not been held in private. What is different in this case? Well, we may never know.

Decision of the Court of Appeal

The Court of Appeal heard the appeal in three parts: partly in open Court, partly in private and partly ex parte. The full judgments have been reserved. I say judgments plural, because there will be three of them to mirror the various hearings: an Open Judgment, a Private Judgment, and an Ex Parte Judgment.

The issues which the Court had to consider can be split into three issues: firstly, whether the trial should be held in camera; secondly whether the defendants should remain anonymous; and thirdly the issue of appropriate reporting restrictions. The Court ruled that “In our judgment, as a matter of necessity, the core of the trial must be heard in camera” as “there is a significant risk... that the administration of justice would be frustrated were the trial to be conducted in open Court”.

The Court did however lift the order regarding anonymisation of the defendants, stating that they had grave concerns about “the cumulative effects of (1) holding a criminal trial in camera and (2) anonymising the defendants” stating that it is “difficult to conceive of a situation where both departures from open justice will be justified”. The defendants have therefore now been named as Erol Incedal and Mounir Rarmoul-Bouhadjar.

Reporting restrictions are to be imposed, but the position as to publication will be reviewed at the conclusion of the trial and a select group of ‘accredited journalists’ will be able to attend the secret parts of the trial. Their notes will then be taken from them and stored until the conclusion of the trial. A transcript of the proceedings will be kept, save in respect of a few discrete matters which were dealt with ex parte.

So what will be in public and what will be in private?

The Court of Appeal have ruled that the following parts of the trial can be heard in open Court: the swearing in of the jury; the reading of the charges to the jury; part of the Judge’s introductory remarks to the jury; at least a part of the Prosecution opening; the verdicts; and potentially (if convictions result), the sentencing. Everything else – namely, all of the evidence – will be heard in camera.

Is the ruling a worrying one?

Justice must not only be done, it must be seen to be done. The ability of the public to see and media to report on criminal trials is an important mechanism in holding the state and its prosecutors accountable, and in ensuring the rule of law is upheld. It is for this reason that the words ‘secret courts’ elicit thoughts of totalitarianism, dictatorships, and knocks on the door in the dead of night.

We should be particularly hesitant about accepting the notion of a terrorism trial being adjudicated behind closed doors because of the historical injustices committed in the name of fighting terrorism. Terrorism may have worn a different face then, but a quick Wikipedia search for the Birmingham Six or the Guildford Four may serve to illuminate why media oversight is essential to the proper administration of justice. I say historical, but of course some of these injustices are not a matter of history, but a current shame even in countries with a supposedly proud record of defending human rights. Guantanamo Bay, anyone? In the desperate drive to eradicate the threat of terrorism, the rule of law can be seen as an inconvenience, rather than as an essential safeguard. It is in this arena and against this background that some of the most shameful atrocities perpetrated by security services, states and prosecutors have been committed. This is why it is important that the general public are able to oversee what is being done in their name.

The erosion of individual rights, and the extension by the State of its own powers, is always wrapped up in rhetoric to the effect that “It’s for your own good. This is how we keep you safe”. This has been the party line time and time again, and the dangers of this rhetoric have been noted time and time again.

Bearing these dangers in mind, there may be ways in which the orders imposed by the Court of Appeal could be improved upon. Some further explanation of which accredited journalists will be permitted to attend the trial would be welcome. It would also be desirable to have independent observers attend the trial. By far the most worrying aspect of this decision though, is that it could set a precedent and make it easier to argue that other trials should be held in camera. The Court stated that this case is an ‘exceptional’ one. Let us hope it truly is, in which case these draconian measures would not be used again in a hurry; yet I think that may be wishful thinking. This decision may encourage prosecutors to apply for more hearings to be held in camera when it suits them. Yet trials of serious terrorism offences have been held in public for centuries, with this being the first example of one where the majority of the trial will be in camera. This may be necessary in this instance on the specific facts of the case, but we must rely on our judiciary to not allow that power to be abused.

Importance of National Security

Anyone who has ever picked up an Orwell book knows that fear is the key to making society complicit in the erosion of individual rights. Yet there is a very real threat here. Our security services must by their very nature act in secret in order to protect us from the threat of terrorism. There has always been a terrorist threat of some kind, but the threat from Al-Qaeda and its associates is multi-headed and different from what has come before (if only because of the readiness of its adherents to literally throw themselves in the line of fire for the cause). We can only hypothesise at what evidence or information is so sensitive as to risk damaging national security; information as to the investigative methods employed by the security services? Information about a man on the inside? Information which would enable terrorists to better avoid the security services notice? We may never know, but it is not hard to imagine the need for secrecy if the information falls in to some of those categories. It must always be borne in mind however that the holding of secret-trials in the terrorism arena can be seen as somewhat counter-intuitive and could act as a recruitment tool: “look at these great defenders of human rights, who convict good men behind closed doors. So much for the Western values they expound”.

Yet the CPS stated, and the Court of Appeal accepted that there was a significant risk, that if conditions of secrecy were not imposed then the trial of these two individuals could not go ahead. These defendants could be guilty of very serious terrorist offences. Can it be right if our justice system would not allow them to be tried, and they walked free? Is that justice, or injustice?

It is important to remember that the rights of a defendant are unchanged whether the trial is heard in public or in private. The defendants have well-qualified and extremely competent lawyers, thoroughly used to defending these types of trials, who will perform their duties in court in the same manner in a private hearing as in a public one.

Most importantly, the defendants are fully entitled to the right of trial by jury. Even if the general public are not able to examine the evidence, 12 members of the public will hear all of the evidence and make their decision accordingly. There must always be an element of faith in the jury, because their deliberations and reasons cannot be revealed. The need for trust in the jury system may be somewhat enhanced in this case, but it is a system which we do trust, and this case should be no different.

Conclusion

The people best placed to make the call about the requirements of this trial are those who have a) heard all of the evidence; b) have extensive knowledge of the relevant law and procedure and c) are experienced in making difficult legal decisions.... namely, the Court of Appeal judges who made the decision. “Exceptions (to open justice) are rare and must be justified on the facts”, states Lord Justice Gross in the Court of Appeal’s decision. It must be considered that these facts, which are unknown to me or you, or the many journalists commenting on the story, may indeed justify such an exception.

The real question is: do we trust out judiciary to make the right call? There is good reason why our judges are renowned the world over for their proficiency and respect for the rule of law. There is no easy answer to a question which involves the delicate balancing of countervailing rights and practicalities, particularly when the principles in issue are as sacrosanct as open justice and national security, but it is our judges who are specifically trained in making those difficult decisions which involve the weighing up of competing interests. In the absence of any first-hand knowledge of the evidence in this case and its sensitivity, we must have a little faith in our judiciary, and hope that this decision does not set a precedent which is abused at the expense of the rule of law.

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Tagged: Anti-Terror, Constitution, Courts, Criminal Law, Human Rights, Justice, Rule of Law

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