Abstract
The British government set itself on a dangerous course earlier this year when the prosecution – backed by certificates from ministers – applied for an entire terrorism trial to be held in secret. So great was the need for secrecy to protect national security, it was argued, that the public should not even be told the defendants’ names or addresses.
The Court of Appeal disagreed, in part, saying that the defendants should be named, and other information be given. But it also decided that the “core” of the trial should be held in secret. A few journalists, bound by strict undertakings, will be allowed to attend next month, but with no guarantee of being allowed to report anything.
This is not the first time the government has argued that national security justifies holding hearings in secret. But previous cases involving claims by state agencies for court cases to be held in secret suggest that few such applications are in fact justified. The Supreme Court was persuaded to sit in secret and used a closed material procedure – which it did with clear and deep reservations – in the Bank Mellat case last year. In a dissenting judgment on the secrecy issue, Lord Hope warned that the state “will need to be much more forthcoming if an invitation to this court to look at closed material were to be repeated in the future”.
There was also criticism of the secret material, which it was said did not go any further than other information already in the public domain and did not justify the hearing being held in secret.
That case involved the so-called closed material procedure, under which the state can present to a court material that is not shown to the opposition or its legal team. The opposition's only representation is by a so-called special advocate, who has been vetted and is allowed to see the material as long as he (or she) does not disclose its contents or discuss it with the people he supposedly represents.
In other words, the state's opponent has to fight with one hand – possibly both – tied behind his back. And all this, of course, is now supported by legislation. Other cases, such as the terrorism trial mentioned above, involve allegations that national security will be endangered if the public is allowed to know the evidence on which the jury will be asked to convict. There are, of course, justifications for secrecy, but they must be shown to be strictly necessary to enable the court to administer justice between the parties, and the secrecy must be kept to a minimum. Examples of such cases include litigation involving the welfare of children, claims of threatened breaches of an individual's privacy and those involving commercially valuable secret information. But one always suspects that the state is overdoing it with claims that holding a terrorism trial in public will damage national security
It was claimed in the official secrets trials of both the Foreign Office clerk Sarah Tisdall, who was convicted and jailed, in 1984 and the senior civil servant Clive Ponting, who was acquitted, in 1985 that disclosures they made to the press were damaging to national security. It is unlikely they were – the disclosures simply served to emphasise the dishonesty behind government statements and increase the distrust with which the public views its elected rulers.
The government's reaction to the disclosures by Edward Snowden, the former National Security Agency contractor, serves only to heighten public suspicion, particularly the bizarre incident in which officials insisted on smashing up a computer at The Guardian even though the intelligence service's experts must have known that the material was no more than electronic copies and that many more copies were available in other jurisdictions beyond their reach.
There are questions over the legality of the activities of security services in the UK and US, and particularly the recent admission by British security chiefs that they believe they do not need a warrant to monitor e-mails and internet searches deemed to be international communications.
One wonders, in the light of the Snowden disclosures, whether the information that might endanger national security in the terrorism trial was concerned with the methods used to gather the information that led to the charges being brought. The defendants are Erol Incedal and Mounir Rarmoul-Bouhadjar, both aged 26 and from London.
Incedal denies preparing terrorist acts under the Terrorism Act 2006 and collecting information contrary to the Terrorism Act 2000. Rarmoul-Bouhadjar denies collecting information under the Terrorism Act 2000 and possessing false documents contrary to the Identity Documents Act 2010.
This is not to say the trial should not be held, but that it should not be held in secret. Every time a court agrees to secrecy, the fundamental principle of open justice is diminished.
Eventually, it might become so diminished that it will disappear. If that happens a fundamental right will have been lost, which would be a price too high to pay. One does not defend a society and its principles by undermining or dismantling them. But that is what the growth of secrecy in the courts threatens to do.