A major terrorism trial is to be heard in secret, the Court of Appeal has heard.
The only reason the public knows the trial is happening at all is because media groups yesterday secured a partial lifting of reporting restrictions.
Media organisations had launched a challenge to orders made by Mr Justice Nicol on 19 May at the Old Bailey in relation to the trial of two defendants who can only be identified as AB and CD.
Counsel Anthony Hudson told the Court of Appeal yesterday: "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."
Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett said they would give their decision on the appeal in a few days.
Hudson said the appeal raised important issues relating to the constitutional principle of open justice but also the equally important principle of fairness and natural justice.
"This case is a test of the court's commitment to that constitutional principle in the admittedly difficult and sensitive circumstances where the state seeks to have trials involving terrorism held in secret and relies, in support of that, on grounds of national security."
He said it was fully accepted that Mr Justice Nicol and the appeal judges had a very difficult exercise to carry out.
Hudson said that, as far as he was aware, no order had ever been made which required an entire criminal trial to be held in private with the media excluded and the defendants anonymised.
This required the "most anxious scrutiny" by the Court of Appeal.
"We submit that the orders made mark such a significant departure from the principle of open justice that they are inconsistent with the rule of law and democratic accountability."
Richard Whittam QC, for the Crown, said it supported open justice but that the court was aware of the exceptional circumstances that had led to exceptional procedures in the case.
In a leader column the Daily Mail said today: “Yes, national security is of paramount importance, but being unable to report that a trial is being held in secret is surely the thin end of a deeply sinister totalitarian wedge.”
Justice Secretary Chris Grayling has insisted he is "very confident" that judges will be acting in the interests of justice if they decide to hold the trial behind closed doors.
He said that the question of whether all or part of the current case should be held in private was "a matter for the courts".
He told BBC Radio 4’s Today: "Of course, the default in our justice system should be transparency. We shouldn't see situations where large amounts of process in our court system suddenly become secret.
"But the law does – and it's not just statute law, it's also the common law – allow very rare occasions where trials or parts of trials can take place in camera, in private. This is always a matter for the judges.
"I know our senior judiciary very well, I know that they will want to protect the interests of justice, and I am very confident that if they take a decision on a very difficult matter like this, they will do so in the interests of justice.
"In this particular case, if there is really good reason, if it is in the interests of justice for the judge to decide in one way or the other, so be it.
"That is why we trust judges. That's why we have them – to take the right decisions on behalf of all of us."
But director of civil liberties body Liberty Shami Chakrabarti said the case risked setting "a very dangerous precedent".
"It is just not justice," Chakabarti told Today. "The dangers of this kind of process are obvious, in terms of fairness and public confidence in a decent justice system.
"This may be an enormous precedent, but this contagion of secret justice has been spreading through our legal system since before 9/11, and each time the authorities either legislate or apply to the court for further secrecy, we are told this is exceptional, and before you know it you wake up one morning and the exceptional has become routine."
Bob Satchwell, executive director of the Society of Editors, said: "Justice has to be fair and it has to be seen to be done.
"Secrecy impinges on the first principle and reporting restrictions drive a coach and horses through the second principle.
"This is not about the media, it's about the public's right to know what is done in our name by the state. The media is simply a conduit to the public.”
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