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R v Central Criminal Crown Court, ex parte Times Newspapers & Ors

Reference [2006] EWCA Crim 4; [2006] 1 WLR 1361; [2006] 2 All ER 1; [2006] 2 Cr App R 2; [2006] HRLR 10; [2006] Crim LR 757; Times, January 19, 2006
Court Court of Appeal (Criminal Divison)

Judge Sir Igor Judge (President), Openshaw J, and Sir Paul Kennedy

Date of Judgment 13 Jan 2006


Summary

Reporting the courts – Proceedings in camera – Open justice – ECHR, Articles 6 and 10


Facts

The Defendant was charged with conspiracy to cause explosions in the United Kingdom. Prior to his arrest he was detained in Pakistan for a period of 10 months. During this period, which he alleged was unlawful, it was claimed he was tortured. Prior to the commencement of his trial the Defendant served a defence case statement which, in effect, raised issues which would form the basis of an application for a permanent stay. Those issues included whether UK officials were party to his unlawful detention and torture in Pakistan. The trial judge ordered that evidence about the events touching or concerning the Defendant’s treatment out of the jurisdiction be heard in camera. The Defendant and representatives of the media appealed that ruling. A preliminary issue arose as to whether the requirement that appeal be heard without an oral hearing (in accordance with rule 67.2 Criminal Procedure Rules) was incompatible with ECHR articles 6 and 10.


Issue

Whether the requirements of rule 67.2, that the appeal be heard without an oral hearing, was incompatible with ECHR articles 6 and 10.


Held

Dismissing the appeal:

Every infringement of the principle of open justice is significant. Unless the circumstances are highly exceptional, justice must administered in public. However, Article 6(2) of the ECHR recognises that the press and public may be excluded from all or part of a trial in the “interests of national security … or … in special circumstances where publicity would prejudice the interests of justice.” Similarly, Article 10 ECHR recognises that the right to freedom of expression may be subject to such conditions as are prescribed by law and are necessary in a democractic society in the interests of national security. Consistent with these exceptions to the principle of open justice, the absence of a discretion in rule 67.2 was not incompatible with the ECHR.


Comment

This decision is a useful example of the circumstances in which a Court is entitled to derogate from the principle of open justice. It is also illustrative of the importance that is sometimes attached to the exceptions in Articles 6 and 10 of the ECHR.


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Instructing Solicitors

McCormacks the Appellant; Alastair Brett for Times Newspapers Ltd, Guardian Newspapers Ltd and the British Broadcasting Corporation