Secret trials – a little transparency, a lot to worry about – Lawrence McNamara

12 June 2014 by Guest Contributor

Guardian News and Media Ltd -v- AB CD – Read preliminary judgment

The Court of Appeal has published its decision in Guardian News Media v AB and CD. It is not a judgment, the Court says. Judgments – plural – will be given “in due course.” Still, the 24 paragraph decision contains the order and explanation of the order, and gives an indication of some of the reasons that will follow.

Is this a good decision? It is better than it might have been, but there are still deeply worrying problems.

What, then, is the decision? Overruling the trial judge to some extent, Justice Nicol, the Court of Appeal has decided that the criminal trial of AB and CD will not be held entirely in secret.   Some parts will be open to the public, including:

• Swearing in of the jury
• Reading the charges to the jury
• At least a part of the judge’s introductory remarks to the jury and at least a part of the prosecution’s opening address.
• The verdicts
• If there are convictions, the sentencing remarks (though it may be later decided that part of those will remain confidential.

The Court of Appeal has also made it clear that “transcripts of the proceedings will be kept”, though “save in respect of a certain (few) discrete matters, thus far deal with ex parte.”

Some journalists will be “invited” to attend “the bulk of the trial” and take notes, though they will need “accreditation” (whatever that means!) and it appears that they will only be ‘drawn from the media parties to these proceedings’.   Notes and trial transcripts will be stored securely throughout and then, it seems, at the end of the trial there will be some kind of review of what can be reported.

Interestingly, the proposal for the media handling was supported by and perhaps (it is not quite clear from the decision) even proposed by the Home Office and the Department for Foreign & Commonwealth Affairs.  There is no indication either way about the position the defence took on the matter.

Welcome, but worrying

So, what are we to make of the decision? In important respects, it is welcome. There will be at least some degree of openness and transparency. However, on balance, there is more in this decision to worry about than to celebrate.

First, the Court of Appeal has rightly warned that the cumulative effects of secrecy must be considered. However, they consider this only in terms of holding a criminal trial in camera and anonymising the defendants and while finding it “difficult to conceive of a situation where both departures from open justice are justified”, the secrecy issues are only considered at the level of an individual trial. There is no consideration of how those cumulative effects might be important across time and across different areas of law, not least of which are the ways that the Justice and Security Act now provides for secrecy in virtually the full range of civil matters.   In the lead up to this decision I wrote about those issues in more detail on the Inforrm site.

Secondly, is it enough to have “accredited” journalists from the media parties to the current proceedings attending the trial? The answer to that should be a resounding “no”. At the very least, it is not clear why the journalists should only be drawn from the parties to the proceedings. It may be of considerable value to have a freelance journalist there, though presumably a party could nominate such a journalist.

Of at least equal importance – and I would argue of far more importance – there has been no consideration of seeking or allowing attendance by organisations who may be able to offer valuable insights into the extent to which the proposed process protects and is consistent with the rule of law. The court notes that, “The Rule of law is a priceless asset of our country and a foundation of our Constitution. One aspect of the Rule of Law – both a hallmark and a safeguard – is open justice.” This would be enhanced if professional bodies such as the Law Society or the Bar Council were invited to have an independent observer attend the trial. Similarly, NGOs working in the areas of open justice and human rights might be invited to have observers attend. They would of course be subject to any undertakings of confidentiality that apply to others.

These process would of course require resources and time, but in exceptional cases (let’s keep hoping this is exceptional) it is an appropriate exceptional measure.

When Australian David Hicks appeared before a military commission at Guantanamo Bay, the Law Council of Australia had an independent observer there (Lex Lasry QC, who is now a judge of the Supreme Court of Victoria) and valuable independent reports were produced.

An observer at this trial would be able to produce an independent report that may, importantly, provide a measure against which the interest in open justice was served by the processes adopted. Equally importantly, they may be able to feed into any future legislative deliberations about how these issues should be managed.

Thirdly, the decision is a great victory for the government and the security agencies. A little bit of transparency is now in the mix but it seems they have secured what they wanted both in substance (the proposed procedures having been supported by them) and in principle. As the decision states, and it is consistent with all the judicial approaches in the past, “in the field of national security, a Court will not lightly depart from the assessment made by a Minister.”

Fourthly, and perhaps most worryingly of all, the decision continues the normalisation of secrecy. While we await the judgments with interest, there can be little doubt that secrecy now will be easier to request and will be more frequently adopted. No matter that this case is stated to be exceptional, we can be confident that this type of request will become a part of the accepted framework for criminal trials in terrorism matters. After all, if the prosecution, the defence, the court and the media are all content, then why would that not happen? Even if my suggestion that there should be independent observers present was adopted, it still serves to ensure that secrecy is normalised, albeit with somewhat better protections and monitoring.

There need to be more robust protections in place to ensure the public interest in open justice is protected. A failure to put such protections in place risks compliance with and protection of the rule of law itself.

Lawrence McNamara is the Deputy Director and Senior Research Fellow at the Bingham Centre for the Rule of Law

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Read more:

• Reporting restrictions at courts martial: the need for a structured approach – Simon McKay
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