Partially Clandestine Criminal Trials Risk Standardising Secrecy
In a decision handed down 4 June 2014, the UK Court of Appeal addressed the issue of secrecy in criminal trials on the grounds of national security.
UK Government Ministers requested that a criminal trial be conducted entirely behind closed doors and the defendants anonymised. The trial judge acquiesced to the request, but the Court of Appeal overturned this in part. It is submitted that the decision does go some way to preserving the interest in the public administration of justice, but some unease remains and courts ought to be apprehensive of accepting any in-roads into open justice.
Two defendants are facing multiple criminal charges of (mostly inchoate) terrorism offences. On 19 May 2014, the trial judge Nicol J ruled that the entirety of the criminal trial could take place in camera (i.e. in private, to the exclusion of the public and the media), and that the defendants’ identities could be withheld from publication.
The prosecution adduced ministerially-endorsed Certificates setting out reasons in favour of conducting the criminal trials in secret. The justification centred upon preservation of national security. Various representatives of the media appealed the trial judge’s decision to permit the trial to go ahead completely in camera and to censor any publication of the names of the accused.
The Court of Appeal decided that the evidence available to it indicated a significant risk that the administration of justice would be frustrated if the trial were conducted in open court. As a result, the core of the trial could be held in camera. However, some parts of the trial could be conducted in open court, namely: swearing in of the jury, reading of the charges, the judge’s introductory remarks, the prosecution’s opening, the verdicts and (if applicable) sentencing.
The Court of Appeal also decided that a small number of accredited journalists could attend the bulk of the trial (subject to exclusion from discussion of some matters in accordance with the Certificates) on terms of confidentiality until a review at conclusion of the trial.
On the other hand, the Court of Appeal could not countenance conducting part of the trial in secret and anonymising the defendants. The defendants could therefore be named as Erol Incedal and Mounir Rarmoul-Bouhadjar. The reasons for this will be substantiated in forthcoming judgments. An early indication of the court’s approach appears in the introduction, which describes the Rule of Law as a priceless asset and foundation of the UK’s Constitution. One aspect of the Rule of Law is open justice: trials being held in public and the names of defendants publishable. This fundamental principle of the common law ensures public confidence in the legal system. Justice must not only be done, but also seen to be done.
The Court of Appeal decision is agreeable in that it emphasises the need for adequate justification for departures from the principle of open justice. It expressly limits such departures to circumstances of necessity and requires a proportionality analysis to be undertaken. The court’s vigilance concerning the cumulative effects of various in-roads into open justice is encouraging.
But the fundamental tension between the public interest in national security and the public interest in the open administration of justice remains. The case was described as exceptional and the need for some secrecy was determined as justified on the facts of the case. Although it is ultimately for courts to decide whether to give effect to a Certificate advocating secrecy in the interests of national security, the judges appear to adopt an openly deferential stance to ministerial urging.
It is argued that the courts ought to be especially vigilant of the risks of accepting any intrusions into open justice and fair trial rights, not just the cumulative effect of many. This is an area in which a quantitative assessment of the impact of multiple incursions, although to some extent helpful, risks undermining the cause of open justice, by permitting several small in-roads and standardising a certain amount of secrecy.