Press restrictions may continue after trial in the interests of national security
11 February 2016
HH Keith Hollis discusses the Judgment of the Court of Appeal in Guardian News and Media Ltd v R & Erol Incedal
Terrorism has brought many changes in the ways in which we go about our lives. Many of these are quite minor, irritating but generally sensible. The holding of trials where much of the evidence is kept secret is not minor, and in principle must be considered an outrage rather than an irritant. But there are clearly occasions when this has to happen, and it is a great challenge to those who on the one hand have responsibility for preventing terrorism and those on the other hand responsible for ensuring that justice has been done.
The Lord Chief Justice, supported by Lady Justice Hallett and Lady Justice Sharp, supported Mr Justice Nicol’s dismissal of applications made by The Guardian and other media organisations that reporting restrictions applied during the trial of Erol Incedal be varied so as to permit the publication of reports of most, if not all, of what took place during hearings held in private, but in the presence of accredited journalists.
Readers may recall that Mr. Incedal had been subject to two trials on charges relating to terrorism. He was convicted at the first trial on one count (possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58(1)(b) of the Terrorism Act 2000), but acquitted of a more serious count following a retrial. He was sentenced to 42 months imprisonment.
There had been reporting restrictions from the outset. After a pre-trial hearing, a differently constituted Court of Appeal had directed that the trial should have three elements: part would be open; part could be attended by nominated and approved journalists, but without taking notes (and indeed significant steps taken to ensure that there were none); and finally part in camera). Nicol J, who now found himself with the burden of actually conducting such a trial, had originally ordered that the whole trial should be in camera.
The first point of note is the nature of the appeal (and indeed the earlier appeal). As the Lord Chief Justice made clear, referring to Ex p The Telegraph Group, “it is the duty of an appeal court, when considering issues relating to open justice as an appellate court, not simply to review the decision of the judge, but to come to its own independent decision.”
The presently constituted Court of Appeal was concerned about the nature of the earlier decision of the Appeal Court. They paid “an especial tribute to the way in which this trial was managed by the trial judge in consequence of the order” and his making of “the very difficult decisions which arose with conspicuous skill and ability”, coming to “the firm conclusion that a court should hesitate long and hard before it makes an order similar to that made by this court on 4 June 2014, given the unexpected effect it had on the conduct of the trial”. As it happened significantly more evidence was given in open hearings than had been anticipated, and without the need for judicial intervention. An indication of the professionalism and concern of the advocates and those instructing them.
The present appeal was dismissed as, having read the relevant evidence, the Court was “quite satisfied….. for reasons which we can only provide in a closed annex to this judgment that a departure from the principles of open justice was strictly necessary if justice was to be done” and that “because of the nature of that evidence those reasons continue to necessitate a departure from the principle of open justice after the conclusion of the trial and at the present time”.
The judgment acknowledges the loss of the “watchdog function” of the press, and says that public accountability now has to be left to the Intelligence and Security Committee of Parliament. To which it could be added that the relevant material has now been considered by the two relevant Secretaries of State, the DPP, the trial Judge, and it seems six Court of Appeal judges, including the Lord Chief Justice, who have all, albeit with different roles, come to the same regrettable conclusion as to the nature of the material that remains unreported. Indeed even the media seems to have accepted that some of the material at least should be kept out of the public domain.
Much of the real interest in this judgment will be in the analysis of the different constitutional responsibilities respectively of the executive in the form of the relevant Secretaries of State, the DPP, and of course the roles of Counsel and the trial judge.
Independence is the watchword. The DPP has to be independent of the executive so that she can exercise her own judgement firstly as to whether or not to bring a prosecution, and secondly whether or not to bring an application to the Court for the openness of the proceedings to be limited in some way (normally in camera).
But it is for the Court to “determine whether the evidence in issue should be heard in camera by consideration of the nature of the evidence”. The matter cannot be determined on the basis of an implicit threat not to prosecute: “the proper approach of the court is to examine the nature of the evidence and to determine the effect of hearing it in public. Deciding the issue on the basis that the DPP might not continue with the prosecution does not satisfy the test of necessity. In effect, it transfers the decision on whether to depart from the principle of open justice to the DPP”.
If the court rejects a submission for the withholding of material, and the DPP decides that the trial should still go ahead, the Court stressed that:
“the Executive cannot then refuse to provide the evidence required by the DPP on the basis that it perceives that it is not in the interests of national security to provide it. The court has made its decision and the Executive must abide by it… If the DPP decides on continuation, then the Executive must give the prosecution its full cooperation and assistance”.
Two procedural matters are of interest. Firstly a recommendation that Judges in such cases involving national security may on occasion need to be provided with the assistance of independent counsel if requested. The other is in a concluding observation that there was no mechanism for retention of closed Judgments, and that there should be. An obvious point perhaps, but one that raises interesting issues as to how such closed Judgments are later accessed, or even known about.
At the end of the day Mr. Incedal was acquitted of the more serious charge. There was a judge, a jury, counsel and solicitors, a number of observing, albeit constrained, journalists, an appeal procedure, and doubtless a recording of the proceedings. In respect of the reporting restrictions, these were considered twice by the Court of Appeal. It would be too easy, and inaccurate, just to dismiss this as “secret” justice.
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The Incedal appeal decision is a very disturbing restraint on open justice on what has been hitherto the largely sacrosanct ground of criminal trials. A greater judicial concentration on the extent of powers to hold criminal trials in camera would have been welcome and worthwhile. There should have been much fuller reflection on whether under official secrets legislation, or under the Contempt of Court Act 1981, or under some kind of inherent capacity of the courts, the criminal courts can tolerate the state authorities claiming the facility of prosecution without public proof. The courts would rightly tolerate none of this sort of behaviour in R v Davis [2008] UKHL 36 – if Parliament could tolerate it (and they could), let them explain why and how. The courts should have stuck to their more hallowed principles.
In the absence of exploring such basic legal boundaries, I rather fear that the Court of Appeal was engaging in not much more than posturing for the benefit of the media (or even for itself with its concerns about who owns the closed records). It may have been helpful to some extent for the court to point out to the DPP that the threat of discontinuance is not determinative of whether the court exercises its discretion to hold in camera hearings, and that the court will take its own decision based on all factors relevant to the administration of justice. The court could even appear to flex its muscles and warn the intelligence agencies that they had to cooperative and cough up the evidence to the DPP if the court decided that the show must go on. But, without much flourish at [62], its comprised position is noted: ‘when the decision is made by the court, subject to any appeal, they must abide by that decision even if they disagree with it. If a decision is made by the prosecutor to proceed, then the Security Services and the police must provide to the prosecutor all the assistance the prosecutor requires. It is part of their duty to abide by the rule of law and the constitutional principles we have set out.’ Here is the rub – ‘If a decision is made by the prosecutor to proceed …’. It remains open to the prosecution to discontinue in the light of the decision taken by the court about open hearings. We all expect that the DPP will continue to act independently of the executive when taking a decision under section 23A of the Prosecution of Offences Act 1985, but that provision still gives prosecutors the wide discretion to discontinue proceedings without the need to obtain the leave of the court, though judicial review might be available (R (FB) v DPP [2009] 1 Cr App R 580). In addition to the statutory power, the prosecution may offer no evidence at the trial under common-law powers (Cooke v DPP (1992) 95 Cr App R 233), and the court cannot demand otherwise (Canterbury and St Augustine Justices, ex parte Klisiak [1982] QB 398). Furthermore, even if the DPP wishes to continue, there remains the further possibility that at any stage after the indictment has been signed and before a Crown Court judgment, the Attorney General can enter a Nolle Prosequi which again can be entered without showing cause or obtaining leave (R v Allen (1862) 1 B & S 850).
In this way, while it would be simplistic to claim that ‘secret justice’ was readily tolerated in this case, it has become rather less clear now as to when open justice will prevail in the criminal courts.