Secret Trials – initial decision in AB & CD

Secret Trials – initial decision in AB & CD

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Introduction

There was a flurry of interest last week when reporting restrictions were lifted to reveal that there was an application for a whole trial trial to be held in secret. The issue had reached the Court of Appeal before a previous gagging order that prohibited the reporting of the gagging order was lifted.

The idea of a whole trial proceeding without the ability of members of the public to know anything about it, or potentially that it is even happening at all, is a novel one. This is the first time (that we know of) that this had been proposed since 1640. The Kings and Queens of old asserted (to sometimes strong opposition) the right to have trials in secret. This was settled, somewhat dramatically and adversely to him, on 27th January 1649.

Since then, whilst parts of a case has been held in camera (the case of Wang Yam is a good example of this) the principle of open justice has always meant that there has been some information in the public domain.

The trial is scheduled to start on 16th June 2014 and the Court of Appeal reserved judgment until the 12th June 2014.

 

Ruling

We have a transcript of what was handed down on 12th June 2014. That’s slightly more convoluted than saying ‘judgment’; because there is a curiosity straight off in para 1 : “Today, we give our Decision on the recent appeal of the media, accompanied by a brief overview. This is not our Judgment; our Judgments (plural, as will be explained presently) have been reserved and will be given in due course

The Court of Appeal allowed some, very limited, aspects of the trial to be held in public. These are:

  1. Swearing in of the jury.
  2. Reading the charges to the Jury.
  3. At least a part of the Judge’s introductory remarks to the Jury.
  4. At least a part of the Prosecution opening.
  5. The verdicts.
  6. If any convictions result, sentencing (subject to any further argument before the trial Judge as to the need for a confidential annexe).

Frankly, this is not all that much. The important thing to see will be how much of the opening is public. This will tell us something at least. Of course it is often the case that the evidence as it comes out during trial is different to that contained in the Prosecution Opening.

We are also allowed to know their names – no longer AB and CD, but Erol Incedal and Mounir Rarmouc-Bouhadjar. As was recognised by the Court at para 21 “We express grave concern as to the cumulative effects of (1) holding a criminal 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. Suffice to say, we are not persuaded of any such justification in the present case.

Mr Incedal is charged with Possessing Bomb Making instructions and preparing acts of terrorism. Mr Rarmouc-Bouhadjar only with the first of those offences, but a separate offence under the Identity Documents Act.

The core finding is at para 14, the Court was “persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution“.

Importantly, a small number of journalists will be attending the trial in full (apart from some very sensitive parts). They will be allowed to keep notes but these will be kept by the Court at the end of each day, and at the end of the trial subject to any further order.

 

Why is it being held in secret?

Well, if we were to know that in detail it would defeat the purpose of the application …

 

Will the jury be vetted? Is that allowed?

Perhaps surprisingly, this is allowed. It is only in exceptional cases concerned with issues of national security, and requires the permission of the Attorney-General personally. The AG has issued guidance as to how this is conducted.

 

Conclusion

The idea of trials being in secret is a repellant one. Having said that, there will clearly be cases where a derogation from full openness is required. That is something that most people would agree on, it’s the question of where the line should be drawn that is the difficult one.

Here, without knowing more details (which may or may not be in the judgment), it is hard to say how necessary this is. But it will certainly cause debate.

 

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Sara is a barrister at Doughty Street Chambers practising in crime.

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