The "core" of a major terrorism trial can be held in secret – but the case must start and end in public and the defendants may be identified, the Court of Appeal decided today.
The decision means that the defendants, who had been anonymised as AB and CD, can be named as Erol Incedal and Mounir Rarmoul-Bohhadjar.
Media organisations had contested the "unprecedented" decision by Mr Justice Nicol last month at the Old Bailey that the pending trial of two defendants identified only as AB and CD should be held entirely in secret, with the press and public barred .
Counsel Anthony Hudson, for the media, had told Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett: "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."
Richard Whittam QC, for the Crown, had said it supported open justice but there were exceptional circumstances which had led to exceptional procedures being sought in the case.
Today's decision means that, while the core of the trial will be in private, the swearing-in of the jury, the reading of the charges to the jury, part of the prosecution opening, the verdict and – if applicable – any sentencing will be in public.
A spokesman for the Attorney General said: "The principle of open justice is key to the British legal system and trials will always be held in public unless there are very strong reasons for doing otherwise.
"The measures applied for by the Crown Prosecution Service 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.
"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."
Lord Justice Gross said: "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."
He said: "In our judgment, as a matter of necessity, the core of the trial must be heard in camera."
Announcing the decision on naming of the defendants, the judge said the court was not persuaded "on the material before us that there is a risk to the administration of justice warranting anonymisation of the defendants".
He said: "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."
The trial is due to start at the Old Bailey on June 16.
Lord Justice Gross said: "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, which includes criminal trials being held in public and the publication of the names of defendants.
"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: "These principles as to open justice were essentially not in dispute before us. However, it was also common ground that there are exceptions."
For example, the court has a "common law power" to hear a trial, or part of a trial in private, he said.
Lord Justice Gross added: "National security is itself a national interest of the first importance and the raison d'etre of the security and intelligence agencies, who themselves operate within a framework of law and oversight.
"For the 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."
Considerations of national security "will not by themselves justify a departure from the principle of open justice", said the judge.
He added: "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, by deterring the Crown from prosecuting a case where it otherwise should do so, a departure from open justice may be justified."
Lord Justice Gross said that 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 was 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," he said.
He made it plain that the appeal judges had not treated the hearing as a review of the decision of Mr Justice Nicol but had come to an independent conclusion on the material placed before them.
It was important to underline that a defendant's rights were unchanged whether a criminal trial was heard in open court or in camera and whether or not the proceedings might be reported by the media, he said.
The position as to publication would be reviewed at the conclusion of the trial and, as trials were "dynamic processes", their order did not preclude a review by the Crown and the judge in the course of the trial, in the event of a substantial change of circumstances.
One issue canvassed before Mr Justice Nicol was whether a small number of "accredited journalists" might be invited to attend the bulk of the trial – subject to being excluded when a small number of matters were discussed – on terms which compelled confidentiality until review at the conclusion of the trial and any further order.
"The judge was not persuaded, essentially on grounds of practicality. We respectfully disagree. The arrangements can be agreed or can be dealt with in our order, if need be, following further brief argument," Lord Justice Gross said.
"Any breach would obviously carry the likelihood of severe sanctions and, as has been observed on previous occasions, reliance must be placed on the responsibility of the media."
Incedal is charged with an offence contrary to section 5, Terrorism Act 2006 (preparation of terrorist acts) and an offence contrary to section 58, Terrorism Act 2000 (collection of information).
Rarmoul-Bouhadjar is charged with an offence contrary to section 58, Terrorism Act 2000 (collection of information) and an offence contrary to section 4, Identity Documents Act 2010 (possession of false identity documents etc with improper intention).
The trial is due to start at the Old Bailey on 16 June.
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