David Davis comments across the papers on the court of appeal ruling regarding the terrorism secret trial


As published in The Guardian:
Secret hearings for terror trial raise fears for press freedom

The prospect of “a small number” of journalists being officially selected to attend secret sessions in a terror trial has raised fresh concerns about media freedom.

The unusual condition was contained in a court of appeal decision in relation to the forthcoming Old Bailey trial of two suspects, formerly known as AB and CD, who were named on Thursday as Erol Incedal and Mounir Rarmoul-Bouhadjar.

Theresa May, the home secretary, and William Hague, the foreign secretary, signed certificates stating that the trial must be secret on the grounds of national security.

The Guardian and other media had objected to the entire trial being held in secret and the defendants remaining anonymous. The court of appeal agreed that the two men should be named and that the opening of the case should be held in public but ordered that the bulk of the case be conducted in secret.
A few “accredited journalists” from media organisations that had made the legal challenge would be permitted to attend the “bulk” of the trial but not to report on the proceedings until there had been further legal arguments. Any notes made would have to be stored in court.

The Conservative MP David Davis, while welcoming the relaxation of restrictions, nevertheless warned that “we should be wary of accepting, as the new norm, in camera trials with controlled journalistic access”.

He also said he might pursue the issue: “If a journalist on a British newspaper is refused, I would expect to raise this matter in parliament.”

Dominic Raab, another Conservative MP, has called for a debate. He told the Commons on Thursday: “(The appeal ruling) still allows the state to hand-pick journalists to report on the case, subject to undefined conditions. “

Jodie Ginsberg, chief executive of Index on Censorship, said: “We have grave concerns about the precedent set by requiring journalists to be accredited by the crown prosecution service to report a trial. Open justice should be just that – fully open – and this means allowing all press to attend and report on hearings. We are concerned that the ‘exception’ being applied in this case could risk becoming the norm.

“The ruling clearly states that the ‘accredited journalists’ allowed to attend the trial would be drawn from the media organisations that were part of the appeal proceedings. This implies two-tiered system of journalism and making judgment calls about who is important enough to cover a trial.”

Cage, an organisation that follows rendition and terrorism cases, said: “The appointment of approved journalists by state officials is a worrying sign and has hallmarks of the system used at hearings at Guantanamo Bay.”

Incedal and Rarmoul-Bouhadjar are both 26 and from London. They have both pleaded not guilty to the charges.

As published in The Guardian:

Attempt to hold terrorism trial entirely in secret is overturned: Judges reject CPS request on grounds of open justice Accused men named after legal challenge by media

An attempt by the Crown Prosecution Service to hold a terrorism trial entirely in secret has been overturned by the court of appeal. The request, unprecedented in recent criminal justice history, would have prevented anyone knowing even the identity of the two men accused.

Following the ruling, it can now be reported that Erol Incedal and Mounir Rarmoul-Bouhadjar are aged 26 and from London. They have both pleaded not guilty to the charges.

The compromise reached over the highly sensitive Old Bailey case, known formerly only as the crown v AB and CD, sets fresh standards for imposing restrictions on the principle of open justice.
The ruling follows a legal challenge by the Guardian and other media which succeeded in overturning the CPS’s attempt to conduct the case entirely in secret with the accused remaining anonymous.

The three judges, Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett, also declared that some of the opening speeches of the trial and the final verdicts could be held in open court.

A few “accredited journalists” will, additionally, be permitted to attend the “bulk” of the trial but will not be able to report on the proceedings until there have been further legal arguments and any notes made will have to be stored in court. A transcript of the case could eventually be released but only after further legal argument.

Gross said: “We express grave concern as to the cumulative effects of holding a trial in camera and anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified . . . We are not persuaded of any such justification in the present case.”

But the judges accepted that most of the case would have to be heard behind closed doors for reasons of national security. “This case is exceptional,” Gross continued. “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 . . . In our judgment, as a matter of necessity, the core of the trial must be heard in camera.”

The Conservative MP David Davis said: “We should be wary of accepting as the new norm in camera trials with controlled journalistic access. This demand for secrecy which has become habitual from the government is at odds with the traditions of our nation when the threats were much higher than they are today.”

Incedal is charged with preparation of terrorist acts under the Terrorism Act 2006 and with collection of information contrary to the Terrorism Act 2000. Rarmoul-Bouhadjar is also charged with collecting information under the Terrorism Act 2000 as well as with possession of false documents contrary to the Identity Documents Act 2010.

The application for an entirely secret trial was supported by certificates from the home secretary, Theresa May, and the foreign secretary, William Hague, stating that it was required on the grounds of national security. No appeals against the ruling are anticipated. A spokesman for the attorney general said: “The CPS has indicated it accepts the judgment of the court, and will tailor its approach to the prosecution accordingly.”

Sadiq Khan, the shadow justice secretary, said:”This judgement is a victory for the precious open and transparent nature of our justice system and public confidence will be enhanced as a result.”