Thursday, 12 June 2014

Not quite a totally secret trial ... Ministerial Certificate not quite a trump card !

Previous post 10th June - A TOTALLY secret trial ?

The Court of Appeal (Criminal Division), having taken time to consider the case, has given its DECISION  - HERE (pdf 7 pages). JUDGMENTS are to follow at a later date and there is to be an OPEN judgment, a PRIVATE judgment and an EX PARTE judgment [12].

The Court of Appeal stressed that it did not merely "review" the decision of Nicol J but had made an independent decision based on the material before it.  The material included certificates from the Home Secretary and Foreign Secretary together with supporting schedules of material [10].

The CORE of the trial could be held
in camera [14] but a number of significant matters should be in open court [16].   In para 14, the Court of Appeal referred to there being '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.'  That does not appear to be a particularly demanding test for determining when departure from a 'fundamental principle of the common law' [2] may be departed from.

In open court may be: the swearing in of the jury; reading of the charges to the jury; at least part of the the judge's introductory remarks to the jury; at least part of the the prosecution opening; the verdicts, and if any convictions result, sentencing (subject to any further argument before the trial judge as to the need for a confidential annexe).

At the conclusion of the trial, the question of publication will be reviewed.  (The decision allows also for a possible review during the trial if there is a substantial change of circumstances) [18].  A small number of accredited journalists will be permitted to attend the trial but this is to be on strict terms of confidentiality until a either a review at the end of the trial or any further order [19].  How those journalists will be selected is not discussed by the court.

Anonymity of the defendants is not necessary [20] and the court expressed the opinion that it was difficult to conceive of a situation where both an in camera hearing and defendant anonymity were necessary [21].

From what we know of the case, the court's decision appears to be a sensible balance.  However, para. 5 is important:

'As is well-established in our law, these tensions are resolved along the following lines:
i) Considerations of national security will not by themselves justify a departure from the principle of open justice;
ii) Open justice must, however, give way to the yet more fundamental principle that the paramount object of the Court is to do justice; accordingly, where there is a serious possibility that an insistence on open justice in the national security context would frustrate the administration of justice, for example, be deterring the Crown from prosecuting a case where it otherwise should do so a departure from open justice may be justified.
iii) The question of whether to give effect to a Ministerial Certificate (asserting, for instance, the need for privacy) such as those relied upon by the Crown here is ultimately for the Court, not a Minister.  However, in the field of national security, a Court will not lightly depart from the assessment made by a Minister.'

Thus, it seems likely that the court will be faced with many more such Ministerial Certificates and that such certificates will amount to an important card in the Crown's hands even if not quite a trump card !

Other links:

Amnesty International UK

UK Criminal Law Blog - raises the important question of whether the jury will be vetted - CPS Jury Vetting  and also here.

Twitter comment:


  1. "from what we know of the case, the court's decision appears to be a sensible balance."

    That sensible balance may be wholly dependent upon us not knowing the truth, otherwise...? We can assume that the accused is aware of what threat that they posed to 'national security' but the danger is that the public must not know? The accused after all are the alleged threat and not an informed public. I don't get that??

    “There is not a crime, there is not a dodge, there is not a trick, there is not a swindle, there is not a vice which does not live by secrecy.”
    Joseph Pulitzer

    1. The court had to determine a balance between the need for open hearings and the request for privacy due to national security interests. We clearly do not know all there is to know about the case. Thus, I commented that a reasonable balance appears to have been struck from what we do know. Of course, we are being asked to trust the judges here to determine that balance and one is entitled to have the view that the balance struck is not correct. Nevertheless, the law clearly entrusts this decision to the judges. The law does not demand openness in all situations and neither does the European Convention of Human Rights Article 6.

    2. I wasn't saying that your observation was wrong. From what we know we can maybe accept the judgment as being balanced but the security services have a long history of telling lies. The Courts are primarily dependent upon the advice from the same services seeking secrecy. As much as there is a need to protect vulnerable persons abuses happen in-camera in the family courts that the state or its agencies would never get away with in open courts.

    3. Thanks again. Yes, the judges keep stressing the importance of open justice but then go on to say that they will rarely interfere with the Minister's assessment. I fear that this week has seen an erosion of the open justice principle and NOT, as some have commented, its assertion. I don't know if this matter will go to the UK Supreme Court but I think that there are good grounds for arguing that it should.

  2. Recruiting, training, funding and supporting terrorism is something the UK state wishes to keep secret.

    This likely because their hand in such affairs would be revealed.

    The charges against the accused should be heard in an open court of law..