Defendants to be identified, parts reported and small number of accredited journalists given access
The Court of Appeal has given its decision, with fully reasoned Judgments to follow, on the recent appeal by Guardian News and Media Ltd against a decision by Nicol J that the pending terrorism trial of two defendants identified as AB and CD should be held entirely in secret. The defendants can now be named as Erol Incedal and Mounir Rarmoul-Bohhadjar.
Lord Justice Gross delivering the decision of the bench, alongside Simon and Burnett JJ, made plain that the Court of Appeal had not treated the hearing as a review of the decision of Nicol J but had come instead to an independent conclusion on the material placed before it.
Setting out from the onset the fundamental importance of open justice as a principle of the common law and a means of ensuring public confidence in our legal system, Gross LJ reminded that exceptions are rare and must be justified on the facts.
Three issues fell to be decided by the Court of Appeal.
Issue (1): trial in camera
The case was exceptional. The Court of Appeal was persuaded on the evidence before it that there was 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 appeared to be good reason on the material the Court of Appeal had seen, the Crown might be deterred from continuing with the prosecution. The Judges were also of the clear view it was unrealistic to contemplate a split trial in this case – with the core of the trial being split into open and in camera hearings. In their judgment, as a matter of necessity, the core of the trial had to be heard in camera.
The Court of Appeal was not persuaded, however, that there would be a risk to the administration of justice if the following elements of the trial were heard in open Court:
i) Swearing in of the jury.
ii) Reading the charges to the Jury.
iii) At least a part of the Judge’s introductory remarks to the Jury.
iv) At least a part of the Prosecution opening.
v) The verdicts.
vi) If any convictions result, sentencing (subject to any further argument before the trial Judge as to the need for a confidential annexe).
There was no dispute that a transcript of the proceedings would be kept, save in respect of a certain (few) discreet matters. Further the Court of Appeal directed that the position as to publication was to be reviewed at the conclusion of the trial.
Unlike Nicol J, the Court of Appeal agreed that a small number of “accredited journalists” might be invited to attend the bulk of the trial (subject to being excluded when a small number of matters were discussed in accordance with the Certificates that had been submitted by the Crown) on terms which would compel confidentiality until review at the conclusion of the trial and any further order. Expressing that such terms needed refining, the Court of Appeal indicated the following:
i) It had in mind a small number of accredited journalists drawn from the media parties to the proceedings.
ii) Notes could be made but could not be taken away at the end of the day’s or session’s proceedings; they would be securely stored until the end of the trial.
iii) A transcript of the proceedings (excluding the ex parte areas) would be available for review at the conclusion of the proceedings in connection with any further consideration of publication.
iv) An order should be “tailor made” to deal with this unusual situation.
Issue (2): anonymisation of the defendants
On the basis that the trial was to be conducted in camera, the Court of Appeal was not persuaded, on the material before it, that there was a risk to the administration of justice warranting anonymisation of the Defendants.
The Judges expressed grave concern as to the cumulative effects of (1) holding a criminal trial in camera and (2) anonymising the defendants. It was difficult to conceive of a situation where both departures from open justice would be justified. Per Gross LJ, “Suffice to say, we are not persuaded of any such justification in the present case”.
Issue (3): section 4(2) of the Contempt of Court Act 1981
Orders made under section 4(2) of the CCA 1981 on reporting the hearing before the Court of Appeal and that before Nicol J were lifted, the Court noting in relation to the hearing before Nicol J on 19 May 2014 that the usual restrictions contained in section 37 of the Criminal Procedure and Investigations Act 1996 applied.
The Court of Appeal’s decision has attracted a great deal of commentary, notably the decision to allow a few “accredited journalists” to attend the bulk of the trial.
The criminal trial is due to commence on Monday 16 June 2014 at the Central Criminal Court.
A case report on the public judgment of the Court of Appeal will appear on this website once it has been handed down.
BBC News Report – Fully secret terror trial blocked by Court of Appeal
The Telegraph – Terror trial to be heard in secret despite open justice victory