How open will this newly opened justice be? – Lawrence McNamara,

As the dust settles after Thursday’s Court of Appeal decision on whether a terrorism trial can be held in secret, there continue to be more questions than answers about what we know and what we will know.

The Court of Appeal decided that a few small parts of the trial will be held in open court and that only some ‘accredited’ journalists from media organisations who were parties to the proceedings will be ‘invited’ to attend the trial.  Even then, all will remain secret until the end when it will be decided what, if anything, can be reported.

Reactions have fallen into two categories, perhaps with a few surprises about who lands where on the spectrum.

To some minds, the decision is good because the trial will not be held in secret and the Court of Appeal has been seen to protect open justice.  The Law Society’s chief said the decision ‘appears to have struck a sensible balance’. Legal commentator Joshua Rosenberg says the appeal court ‘got it just about right’. Shadow Justice Secretary Sadiq Khan welcomed the decision as ‘a victory for the precious open and transparent nature of our justice system’. Amnesty International also saw it positively.

Many others saw a small victory in the decision but were less than sanguine about it.  The Guardian argues that the degree of openness is ‘more symbolic than substantial’. Human rights organisation Liberty were worried by the ‘wholesale deference to vague and secret ministerial “national security” claims’. Arguing for Parliamentary attention to the issues, Conservative backbencher Dominic Raab MP was worried that the decisions still ‘allows the state to hand-pick journalists to report on the case, subject to undefined conditions’.  David Davis MP was ‘wary’ about the decision amid ‘habitual’ government demands for secrecy.

My own view falls into the latter group; the decision leaves us with a lot to worry about for the future.

But what happens next?  What might we reasonably expect in this case?   At the very least, the courts should provide information about facts, procedures and reasons.

What kinds of facts? It seems unlikely that a full explanation of any of these matters could endanger national security.  For instance:

• Who were the media parties to the proceedings?  The decision refers only to the Guardian whereas it seems clear there were others joining the Guardian in its application.
• Which organisations or individuals are being considered for ‘invitation’?
• Which organisations are being ’invited’?  Which individuals are being invited?  Are any of the media parties not being ‘invited’? If an organisation is invited, can it choose its own journalist?  Were any refused permission to attend?
• Have other organisations or individuals asked to be admitted?   If so, what was the outcome?
• What, exactly, are the orders which will restrict reporting?  What undertakings, if any, have journalists been asked to make?

Procedures should be explained if the idea of open justice is to have any meaning.  Again, surely an explanation of these issues cannot imperil security and, again, some examples:

• What is the process for deciding which organisations and/or journalists are being invited?
• Who ‘invites’ a journalist to attend?
• Who decides who will be ‘invited’ or who will be permitted to attend?
• What are the criteria for ‘accreditation’?
• Will decisions about accreditation be explained?
• Can the prosecution or defence object to any organisation or individual being invited or permitted to attend?

Most importantly, the court needs to explain its reasons:  why are the procedures used thought to be appropriate?   Of very serious significance, why is it only the media who are being considered? The media may not always be the best or most effective representative the public interest.

As the public, we should be cautious about both the process and the media’s role. It is not at all inconceivable that journalists will moderate the way they report so that they do not risk their ‘accreditation’.  That may mean pulling punches on how a matter is reported, how legal arguments and judicial reasoning are analysed and evaluated, or accepting (rather than contesting) decisions about what can be reported. This is especially so if processes are opaque and if a journalist may be taken off the ‘approved’ list at the will of the government.

If the public interest in open justice is to be protected in a way that even comes close to being consistent with the rule of law – and we are a long way short of that now – the courts must deal carefully and thoroughly with the thorny issues that arise from the Court of Appeal’s decision.

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