Secret Trials: Secrecy at the Expense of Justice – Lawrence McNamara

We have learned from media reports in the last two days that prosecutors have asked the courts to hold an entire terrorism trial in secret. 

There is no official word on precisely what is being requested.  The judiciary web site still provides no information whatsoever at the time of writing (48 hours after the first media reports).  It provides no statement about or transcript of what was said in open court.  But it seems clear enough that the request for secrecy is a fairly sweeping one.

If the Court of Appeal answers, ‘yes’, in the coming days – or the Supreme Court if it comes to that – then the damage to our justice system and public confidence in it will be serious.

But two matters warrant attention whatever the appellate court’s decision.  First, the mere fact this question is being asked already speaks of damage done.  Secondly, when viewed in light of the increasing use of secrecy in judicial proceedings more widely, it becomes apparent that our justice system is ill-equipped to take account of the public interest in open justice in the longer term.

On the first point, the prosecutorial request constitutes a watershed moment: it is now acceptable for our prosecuting authorities to ask that procedures be used which permit an individual to be imprisoned without public scrutiny of the processes or decision, in circumstances where the justification – national security – makes it inherently difficult to know or to challenge the rationale.  There is no question that under the Criminal Procedure Rules and their inherent powers, the courts have power to manage proceedings in ways that protect national security. This includes holding hearings in private for reasons of national security, though the courts should of course be slow to take these steps and must provide some notification that a secrecy application is to be considered, so that it can be challenged.

What makes this application so remarkable, it seems, is that the proposal is not to hold parts of a hearing in private but to hold an entire trial in private.   On its face, it seems an astonishing request.  As Robertson & Nicol’s Media Law 5th ed (page 472-3), states with regard to private hearings, a judge ‘should be alert to the importance of adjourning into open court as soon as it is apparent that it is not necessary to exclude the public.’  (As an aside, the co- author of that statement is none other than Mr Justice Nicol who is the judge in the matter currently under consideration.)

Without knowing the facts of the case or the issues that arise, it is close on impossible to say that it is Nicol’s decision is inappropriate.  But it seems astounding that there could be a proposal that no part of the trial could be open to the public.  That the prosecuting authorities, who should be model litigants, are seeking to override the public interest in open justice is very worrying.  It suggests we have come further than ever before down the path towards secrecy being the norm rather than the exception. It is particularly worrying because, since the Justice and Security Act came into force last year, the request is made in an environment where there are far more extensive secrecy provisions that ever before in civil matters. That is, more and more avenues that would allow for scrutiny of the state and of those charged with offences or otherwise involved in terrorism matters are being shut down.

Lord Chancellor and Justice Secretary Chris Grayling has said that,

“If it is in the interests of justice for the judge to take a decision one way or the other, so be it, that’s why we have them. That’s why we trust the judges, that’s why we have them, to take the right decisions of behalf of all of us.” 

This was certainly not the view that underpinned the Justice and Security Act, which sought to drastically decrease the scope of judicial decision-making in the public interest.

The media intervention in the case is especially important because we do not yet know what the attitude of the defence has been.  It may well suit the defendant to have the public excluded.  However, the media submissions are very likely to have been made in the absence of factual material that would make the submissions fully informed and able to address the specific issues in question.  It is an unsatisfactory position when the court is unable to hear informed submissions that can fully grapple with the issues and perhaps suggest practical alternatives that can balance secrecy, security and open justice to better effect than either prosecution or defence proposals.  But, again, we simply don’t know what those are.

Several judges told me in interviews for a major research project in 2010-2012 that terrorism trials are and should be ordinary criminal trials.  Their words should be heeded.  Ordinary trials are not secret trials.

While there will be a jury and there seems no suggestion that the case be withheld from the defendant, we are clearly now out of the civil justice realm and firmly setting about closing the extent to which criminal justice is a public process.  And this is very dangerous. As former Director of Public Prosecutions, Lord Ken Macdonald QC, told the House of Lords in 2012, public confidence in the justice system is achieved through openness, transparency and the ability to scrutinise procedures and judgments.

Turning to the second point, how well equipped is our justice system to take adequate account of the public interest in open justice and the public right to know about matters of great public interest?  Those matters may include the actions of the authorities investigating terrorism and the actions of those in the community who would commit such offences.  It seems we are a long way from anything that approaches adequate.

A crucial point of consideration is that while national security may be a justifiable reason for secrecy at times, there will be a point in future where the need for secrecy is no longer justifiable.  As time passes and circumstances change, what previously may have required secrecy no longer will.  But there are no clear mechanisms which ensure that information can later be made public.  Moreover, neither the parliament nor the courts have been willing to implement mechanisms that would ensure any review of closed judgments in civil matters (The Queen (on the application of Maya Evans) v SSD [2013] EWHC 3068 (Admin)).  As it stands, closed judgments will accumulate but, unlike government archives, there is no point at which they are reviewed.

While the present matter is a criminal case, there is nothing to ensure that there will be any narrative description of what happens.  Even where a defendant is found guilty, there is no systematic publication of sentencing remarks, which can often provide a description of what happens.  This should be remedied in all cases but especially in cases where secrecy is invoked.  It does not mean that there cannot be secrecy when it is required, but it should mean that whatever can be made public should be made public.

The very fact that the judiciary web site is completely silent on the case following two days of headlines is disappointing. Whatever happens, processes should be put in place to ensure there is better communication when secrecy is proposed.

There is also the somewhat blurry area of ‘private’ hearings and any judgments or rulings which follow.  While ‘closed judgments’ appear to made pursuant to statutes such as the Justice and Security Act or that which regulates SIAC, it is not clear whether ‘private’ judgments have the same status. Any review processes in future would need to take account of this.

In all, the current case is disappointing.  There have been very important moves to increase transparency in courts, including in criminal cases.  The Criminal Procedure Rules were revised in 2011 to allow for greater public access to court documents, and the Court of Appeal (in a case argued by the Guardian) held that open justice requires that there be such information available so that public scrutiny of the justice system is meaningful and effective.  However, where national security is mentioned then the game changes.  Yet, it is in precisely these cases – where great trust and powers have been placed in intelligence, investigatory and prosecuting authorities – transparency is most important.

It is to be hoped that Court of Appeal finds a better solution than what is currently proposed.

This request for secrecy is a landmark in the trend to institutionalise and normalise secrecy.  It will inevitably damage public trust in our justice system and our governments.  It is difficult to see that damaging that trust will foster national or international security.

A cloak of secrecy in criminal trials will not result in ‘secret justice’.  It will result in secrecy at the expense of justice.

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