In the 1820s Jeremy Bentham wrote that “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.” In 1649 John Lilburne, the proto-democrat and Leveller leader, stated upon Cromwell’s attempt to convict him of high treason: “No man ought to be tried in holes or corners, or in any place where the gates are shut or barred.”
The principle of open justice is one which has been embedded within the British justice system for hundreds of years. It is therefore little surprise that the recent application by the Crown Prosecution Service, supported by Certificates from Theresa May, the Home Secretary, and William Hague, the Foreign Secretary, to hold the trial of two terror suspects entirely in secret, has caused a bit of a furore.
The decision was initially upheld by the Hon Mr Justice Andrew Nicol, who as part of a previous study, Media Law, argued thus:
“Trials derive their legitimacy from being conducted in public; the judge presides as a surrogate for the people, who are entitled to see and approve the power exercised on their behalf. Those who assist the prosecution can and should be protected by other means. No matter how fair, justice must still be seen before it can be said to be done.”
It would appear that the Hon Mr Justice Nicol’s opinion on the matter has altered over the years. The Court of Appeal came to an alternative compromise, whereby each party has been appeased but none have been granted what they desired.
The Crown Prosecution Service exerted significant pressure over the courts by suggesting that if the trial were to be made public, they would be forced to drop all charges rather than release information into the public domain. Such a situation would have justice neither seen nor done, and would thus amount to a failure of justice, and the potential ongoing threat of the two Defendants.
The original decision, overturned by the Court of Appeal, would have been unprecedented in recent legal history, the trial would have been held entirely in secret and not even the names of the defendants would have been made public. We now know the defendants’ names, the charges against them, and that both men have pleaded not guilty. Journalists will be allowed to be in court when the Jury are sworn in, report at least part of the judge’s introductory remarks, and part of the opening speech by Counsel for the Prosecution. The substance of the trial thereafter will be held in camera for reasons of national security, although the verdicts will also be heard in open court.
As part of the Court of Appeal judgment a select group of accredited journalists will be allowed to view the in camera aspects of the trial, however they must not publish any information regarding this until further legal arguments have taken place, and reporting restrictions lifted, if that ever were to happen. In an attempt to prevent any transgression of these conditions all notes made by journalists must be left in the Court at the end of each day.
Considering the unease of the media following the Leveson Inquiry, this has been viewed by some as a further attempt to restrict the freedom of the press. In the present case, particular concern surrounds the ability of the court, or the Government to select which journalists can, and which cannot have access to the trial. Can journalists act as representatives of the people, when they are prevented from reporting what they see, and should those restrictions be lifted, only a carefully chosen few provided with the information in the first place? The problem with such an approach is that secrecy leads to a lack of trust, and a lack of trust can lead to accusations of conspiracy. It hardly needs stating that the press are unhappy with such an arrangement.
There is however, the legitimate consideration of national security, a balance must be struck. If the press and the public believed that an open trial would genuinely endanger the safety of the citizens of this country, or any other, then I believe that there would be little objection to the trial being held in camera.
However, the public do not sufficiently trust that those in power hold the people’s interests entirely above their own. This may be wise, it is natural to be suspicious of those who hold the power to do us harm, particularly when those people enjoy the accepted legitimacy held by the State. It is because of this that they must be held accountable for their actions. They are held accountable by the people who are informed by journalists, who should have access to a transparent justice system. However, those in power also have a duty to protect the people, and hence a dilemma arises, the solution to which must be a balanced compromise based on the weight of each threat. It is the duty of the courts to check the power of the Executive.
The Court of Appeal summarised their decision:
“This case is exceptional. We are persuaded on the evidence before us that there is 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 appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution. We are also of the clear view that in this case it is unreal to contemplate a split trial – with the core of the trial being split into open and in camera hearings. In our judgment, as a matter of necessity, the core of the trial must be heard in camera.”
The Court of Appeal reached an acceptable compromise, which maintains the secrecy of information which could harm national security, whilst also restating their commitment, in principle more than practice in this case, to open justice. The Court has set a precedent whereby even in the most exceptional cases, a trial cannot be held entirely in secret, but also one which may be used as a basis for arguments in favour of secret trials in the future. The Court of Appeal described this case as “exceptional” and in camera trials should remain exactly this.