Tuesday, 10 June 2014

A TOTALLY secret trial?

Update 11th June: The Court of Appeal is expected to hand down its decision in the AB / CD case on 12th June.  Fuller judgment to follow later.

'Open Justice is not a mere procedural rule.  It is a fundamental common law principle' - Bank Mellat v HM Treasury No. 1 [2013] UKSC at para. 102 where the judgment of Lord Dyson in Al Rawi v Security Service [2012] 1 AC 531 is cited.

AB and CD are men who are to stand trial for certain "terrorism" offences.  Initially there was a ban on even reporting that the trial was due to take place.  Happily, that aspect of the case was overturned as a result of media action.  It seems that an order of Mr Justice Nicol that the ENTIRE trial may be held in secret remains in place though the order is under appeal.

English Common Law came to recognise the importance of hearings in OPEN COURT.  In Attorney-General v  Leveller Magazine [1979] AC 440, Lord Diplock stated that open justice 'provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains public confidence in the administration of justice.'  Nevertheless, Lord Diplock noted that the rule is subject to exceptions.  There may be departures from the rule 'where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation ...'  His Lordship continued: 'Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of the proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes to be necessary in order to serve the ends of justice.'

As far as I know, those words of 35 years ago
remain as succinct an overview of the law as one is likely to find.  When any application is made for a closed hearing on some aspect of a case, the judge will need to be satisfied that no alternative order is suitable to protect the interest in question.

It should not be supposed that the European Convention on Human Rights necessarily requires open hearings.  Article 6 (Right to a Fair Trial) is a qualified right. Article 6(1) states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.  [My emphasis].

In the coming weeks, the various law blogs and commentaries may well be kept busy with this case !

Links of interest:

BBC News - 4th June - Secret trial plan for English court 

The Guardian 5th June 2014 - Britain's first secret trial: this way lies trouble

The Week - Britain's first secret trial: what is the justice system hiding?

See also

Nigel Pascoe QC - Do you really mean a wholly secret trial

Some recent Supreme Court observations:

For discussion of Open Justice, see the decision of the Supreme Court of the UK in the civil case of Bank Mellat v HM Treasury 2013.  In civil cases there is now statutory provision for closed material procedure - Justice and Security Act 2013.  Further detailed discussion is to be found in the Supreme Court judgment in A v BBC [2014] UKSC 25 Lord Reed from para 23.  At para 23 Lord Reed said:

It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny.The principle is an aspect of the rule of law in a democracy. As Toulson LJ explained in R (Guardian News) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618, para 1, society depends on the courts to act as guardians of the rule of law. Sed quis custodiet ipsos custodes? Whois to guard the guardians? In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny

and at para 27 Lord Reed said:

Since the principle of open justice is a constitutional principle to be found in the common law, it follows that it is for the courts to determine its ambit and its requirements, subject to any statutory provision. The courts therefore have an inherent jurisdiction to determine how the principle should be applied.


  1. As ever a very interesting topic. (Re [2013] UKSC at para. 102 I think you mean para 4.)

    1. Thank you for your comment. There is discussion of open justice in Lord Neuberger's judgment at paras 2 to 8. Also, in para 102, Lord Kerr cites extracts from Lord Dyson's judgment in Al Rawi.

  2. The 4th June 2014 hearing was published on 24 September 2014.

    The case will now go to a retrial in early 2015.

    From a D Telegraph report:

    But the public cannot even be told the reason why the jury was stood down and are still in the dark over what evidence it was considering because more than two thirds of the "extraordinary” trial was heard in secret.

    Other parts were only heard in front of ten accredited journalists who cannot report anything due to stringent court orders.

    The case has fuelled concerns that it is damaging the centuries-old tradition of open justice.

    Indeed. It is always a strange one when the CPS state that '...the administration of justice would be frustrated if such all or part of cases are not held in secret.........

    What shenanigans are being covered up??