UK: terrorism trial to be held in partial secrecy

[Anthea]

BBC News UK

Secret trial plan for English court


Criminal trials: Open hearings so that justice is seen to be done

A terrorism trial could be heard entirely in secret for the first time in an English court.

Senior judges have been hearing that the Crown Prosecution Service wants the criminal case to be dealt with completely behind closed doors on grounds of national security.

The Court of Appeal is to rule in the coming days on a media challenge to the restrictions on the case.

The trial relates to two defendants referred to only as "AB" and "CD".

Criminal cases are heard in open courts which the public and media can attend. There are sometimes reporting restrictions covering specific parts of cases - but there has never been a trial that has happened completely behind closed doors.

The major terrorism case involving defendants AB and CD would be the first to involve a jury in a normal courtroom hearing evidence in secret.

The details emerged at an appeal against an order issued in May by Mr Justice Nicol which banned the identification of the defendants and access to the trial. The media were banned from reporting the existence of that order until the Court of Appeal hearing.

The court heard that AB and CD had been arrested "in high-profile circumstances" and faced allegations of the preparation of terrorist acts and possessing bomb-making instructions.

Anthony Hudson, counsel for the media organisations challenging the restrictions, told the appeal judges: "The Crown has sought and obtained an unprecedented order that the trial of two defendants charged with serious terrorism offences should take place entirely in private with the identity of both defendants withheld and a permanent prohibition on reporting what takes place during the trial and their identities.

"This appeal raises important issues relating to not only the constitutional principle of open justice but the equally important principle of fairness and natural justice."

Mr Hudson told the panel of three judges that the planned secret trial meant the court was faced with a test of its "commitment to that constitutional principle".

In 2008, the Old Bailey heard parts of a murder trial in secret on grounds of national security - but the defendant was named and large parts of the case were heard in public.

However, Mr Hudson said that the AB/CD prosecution went much further.

The court also heard that the head of the Crown Prosecution Service's counter-terrorism team had claimed that if a decision was taken to hold the trial in open court, and to identify the defendants, it might have to abandon the prosecution.

Richard Whittam QC, for the CPS, said the AB/CD trial was an exceptional circumstance.

"There is a justification for defendants to be anonymous and there is jurisdiction for the court to sit in private," he said. Mr Whittam said the complete ban on reporting the case would not necessarily exist forever.

Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett said they would give their decision on the appeal in a few days' time.

http://www.bbc.co.uk/news/uk-27704747

[Anthea]

First trial to be held in secret: Closed terror case branded 'outrageous assault' on open justice... and it's only thanks to a free Press you know it's happening at all

Two men accused of terror plot are to appear at the Old Bailey in London

Identity and details of alleged crimes not made public 'for reasons of national security'

Trial disclosed because Daily Mail, Press and broadcasters fought for reporting restrictions to be lifted

Critics have described the move as an 'outrageous assault on British justice'

Decision on whether to restrict secrecy order expected within days

A trial is to be held entirely in secret for the first time in British history.

Two men accused of a terror plot will go into the dock at the Old Bailey in weeks.

For undisclosed reasons of national security their identities, as well as details of their alleged crimes, will not be heard in public.

The very existence of the trial can be disclosed today only because the Daily Mail fought with other media groups to have the reporting restrictions lifted.



The casting aside of the centuries-old doctrine of open courts sparked anger last night.

‘To hold trials entirely in secret is an outrageous assault on the fundamental principles of British justice,’ said Clare Algare of Reprieve.

‘This Government’s dangerous obsession with secret courts seems to know no bounds. Unless it is resisted, we risk ending up with a justice system that will not be worthy of the name.’

Keith Vaz, Labour chairman of the Commons home affairs committee, said: ‘For a parliamentary democracy with our reputation for a fair legal system, this sets a very dangerous precedent.

‘For an entire trial to be heard in camera, this is unprecedented, very serious and worrying.’

The Court of Appeal was urged by the media groups’ lawyer to restrict the secrecy order because it represented a ‘totally unprecedented departure from the principles of open justice’.



Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett said they would make a decision within days.

The Mail has campaigned to expose the threat to democracy and openness that secret courts represent. There has been huge controversy around closed family courts, super injunctions and civil cases involving national security.

Prior to yesterday, the media was banned from even reporting that the trial of the two men, known only as AB and CD, was due to take place in conditions of total secrecy.

AB is accused of ‘engaging in conduct in preparation for terrorist acts’.

Both men are accused of possessing terrorist documents, including a file named ‘bomb making’ held on a memory stick. CD faces a fourth charge under immigration laws of improperly obtaining a British passport.

Senior prosecutors claim the trial may not go ahead if it has to be held in public.

But they have refused to disclose publicly the need for total secrecy.

Anthony Hudson, representing the media organisations, branded this position ‘unreasonable’ and ‘unrealistic’.

He said national security should not be pursued without regard for the values of the society it is trying to protect.

‘This appeal raises important issues relating to not only the constitutional principle of open justice, but also the equally important principle of fairness and natural justice,’ he added.

‘This case is a test of the court’s commitment to that constitutional principle in the admittedly difficult and sensitive cases where the state seeks to have trials involving terrorism heard in secret and relies in support of that on the grounds of national security.

‘It is unprecedented that the trial of two defendants charged with serious terrorism offences should take place entirely in private with the identities of both defendants withheld.

‘No order has ever been made which requires an entire criminal trial to be held in private, with the media excluded and defendants anonymous.’

Commenting on the case, Shami Chakrabarti of Liberty said transparency was not ‘an optional luxury in the justice system’.

She added: ‘This case is a worrying high water mark for secrecy in our courts.

‘There must be clearer explanations before the door is shut on press and public.’

Criminal cases are heard in open courts which the public and media can attend.

Reporting restrictions sometimes cover specific parts of cases, but no previous trial has been held entirely in secret.

The Official Secrets Act enables cases to be heard behind closed doors but the legislation is rarely used in this way.

The power to hold a trial in secret comes from common law and is not covered by recent terrorist legislation.

Richard Whittam QC, who will prosecute the two men, said the Crown Prosecution Service supported open justice.

But he said ‘exceptional circumstances’ had led to the request for secrecy.

In 2008, the Old Bailey heard parts of a murder trial in secret on grounds of national security.

But the defendant, Wang Yam, who battered recluse Allan Chappelow to death, was named and most of the case was heard in public.

The trial of Britain’s most notorious double agent, George Blake, was held partly in secret in the early 1960s.

Charged under the Official Secrets Act, he was sentenced to 42 years for passing secrets to the Soviets.



Last year, the president of the Supreme Court launched a stinging attack on secret justice, saying it is ‘not justice at all’.

Lord Neuberger said hearing evidence behind closed doors was ‘against the principle of justice’.

He said that other than in exceptional circumstances judges should treat requests to hear cases in closed courts with ‘distaste and concern’.

His comments came after a bitter row over Government plans to introduce the Justice and Security Act.

This formally enshrined secret hearings and judgments in the legal system, a radical departure from centuries of tradition.

http://www.dailymail.co.uk/news/article ... ening.html

[Anthea]

BBC News UK

Fully secret terror trial blocked by Court of Appeal

An unprecedented attempt to hold the first ever completely secret criminal trial in the UK has been blocked by the Court of Appeal.

Judges said that the "core" of the terrorism trial could be partly heard in secret but parts must be in public.

They said media also should be allowed to name the two defendants as Erol Incedal and Mounir Rarmoul-Bouhadjar.

Prosecutors said their unique application for a secret trial was in the interests of national security.

They had previously warned that they may have to abandon the prosecution if judges did not ban the press and the public from every part of the proceedings against the two defendants.

Until Thursday, the men were previously only known as AB and CD respectively.

In their decision, judges said that the trial of the two men was of an exceptional nature and the core of it must be held in private. But they added that they had "grave concerns" about the cumulative effect of anonymising defendants and holding the hearings in secret.

The judges said that the media and public would be allowed to attend the swearing-in of the jury, parts of the prosecution's introductory remarks setting out the case, the verdicts and, where there are convictions, the sentencing.

The court added that a small number of journalists could be allowed to attend the closed parts of the trial, subject to agreement relating to the confidentiality of the proceedings. Their notes would be securely stored until the end of the trial.

Mr Incedal and Mr Rarmoul-Bouhadjar were arrested in October 2013 in circumstances that were widely reported at the time. Mr Incedal is charged with preparing for acts of terrorism contrary to the Terrorism Act 2006 and a further allegation of collecting information useful to terrorism.

Mr Rarmoul-Bouhadjar is charged with collecting information useful to terrorism and possession of false identity documents.

Lord Justice Gross said: "Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system.

"Exceptions are rare and must be justified on the facts. Any such exceptions must be necessary and proportionate. No more than the minimum departure from open justice will be countenanced."

He said that those exceptions could include withholding information on the basis of national security because that was "a national interest of the first importance".

"For the [secret intelligence] agencies to operate effectively, at least much of their work is secret and must remain so as a matter of necessity. From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.
'Administration of justice'

The judge said that the court accepted the exceptional nature of the case against the two defendants and that there was a significant risk or "at the very least a serious possibility" that the Crown would have good reasons to halt the prosecution were the case to be heard in open court.

"In our judgment, as a matter of necessity, the core of the trial must be heard in camera [behind closed doors]."

"We are not persuaded, on the material before us, that there is a risk to the administration of justice warranting anonymisation of the defendants," he continued. "Nor do we think that, properly understood, the Crown's material supported that outcome, provided the bulk of the trial was in camera.

"We add only this. We express grave concern as to the cumulative effects of holding a criminal trial in camera and anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified. Suffice to say, we are not persuaded of any such justification in the present case."

A spokesman for the attorney general said the Crown Prosecution Service would abide by the court's decision.

"The measures applied for by the CPS in this case were, they believed, justified in order for the trial to proceed and for the defendants to hear the evidence against them while protecting national security," said the spokesman.

"We are pleased that the court recognised the strength of some of these arguments, and that the case can go ahead. The CPS has indicated it accepts the judgment of the court and will tailor its approach to the prosecution accordingly."

http://www.bbc.co.uk/news/uk-27806814

[KabirKuhi]

Why trial, they should go ------------> execution.