The court of appeal has gone as far as it reasonably could in opening up the forthcoming trial of Erol Incedal and Mounir Rarmoul-Bouhadjar, formerly known as AB and CD, to public scrutiny.
We can now report that Incedal is charged under section 5 of the Terrorism Act 2006, which covers the preparation of terrorist acts. He is also charged under section 58 of the Terrorism Act 2000, collection of information. We can report that Rarmoul-Bouhadjar is also charged with an offence under section 58 and with possessing a false identity document. We cannot report much more about them or the charges they face, but that is only because of normal reporting restrictions that apply ahead of any criminal trial.
The media will now be in court for the start of the men’s trial. Reporters will be allowed to report at least part of the judge’s introductory remarks to the jury, whom they will see sworn in, and at least part of the opening speech by Richard Whittam QC, for the prosecution.
Even then, the shutters will not come down completely. We can now report that prosecutors were “prepared to contemplate at least some journalists being able to attend the trial”. This was noted by Mr Justice Nicol in his judgment on 19 May. Access would be conditional on reporters promising not to report the proceedings until restrictions were lifted by the judge.
Nicol was not persuaded that this limited media access should be allowed, “largely on grounds of practicality”, though he did order the crown to arrange and pay for a daily transcript in case the reporting restrictions were varied later.
Overturning the judge’s decision to ban limited access, the appeal judges said they would be willing to allow a small number of what were described as “accredited journalists” to attend the bulk of the trial. Those reporters would be allowed to take notes (which they would have to leave behind in court every day) but would not be allowed to publish anything unless and until restrictions were lifted. By “accredited journalists” the court apparently meant journalists who were accredited by the news organisations that had backed the media challenge.
Lord Justice Gross, sitting with Mr Justice Simon and Mr Justice Burnett, said that open justice was both a hallmark and a safeguard of the rule of law. Why, then, didn’t the judges go the whole way and permit the trial to be held entirely in public?
They summed it up in a paragraph:
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. We are also of the clear view that in this case it is unreal to contemplate a split trial – with the core of the trial being split into open and in camera hearings. In our judgment, as a matter of necessity, the core of the trial must be heard in camera.
And what was the evidence? There were certificates from the home secretary (who is responsible for MI5) and the foreign secretary (who is responsible for MI6). These were supplemented by schedules that were not shown to the defendants. The intelligence schedules were also kept from the media’s barristers and solicitor.
The appeal judges made a point of saying that it was the cumulative effect of Nicol’s decisions that caused them “grave concern”. They found it difficult to conceive of a situation that would justify both anonymising the defendants and the trial being held in private. Since their judgment is binding on future cases, we can expect prosecutors to request one restriction or the other in future but not both.
I imagine that Nicol, who is to preside over the men’s trial, is feeling pretty sore about the appeal court’s ruling. He was far too cautious. But that’s what the court of appeal is for. Gross, the senior presiding judge, has more judicial experience than Nicol. Three heads are better than one. And it is easier to review someone else’s decision than it is to make the decision yourself.
Crucially, the appeal judges have not thwarted the forthcoming trial. The attorney general, Dominic Grieve, confirmed that it would go ahead, even though the Crown Prosecution Service (CPS) had not got everything that it asked for. The CPS had said it accepted the court of appeal judgment, Grieve added, and that it would “tailor its approach to the prosecution accordingly”.
As is so often the case, judges have to balance conflicting principles. National security considerations do not, by themselves, justify a departure from open justice. But, as Gross said, open justice must give way to the yet more fundamental principle that the court must do justice.
Nicol should have been more willing to question the prosecutors’ demands and more willing to call their bluff. Others will no doubt say that criminal trials should never be held even partly in secret, but I think the appeal judges, fortunately, got it just about right.