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Departures from open justice in criminal proceedings: Guardian News and others v R and Incedal

February 15, 2016

On 11 November 2014 Erol Incedal was convicted of possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism: s 58(1) (b) Terrorism Act 2000 (the 2000 Act). The jury had been unable to reach a verdict on a more serious charge of engaging in conduct in preparation of terrorist acts: s 5(1) Terrorism Act 2006 (the 2006 Act). Following his conviction Incedal was sentenced to 42 months imprisonment. There is nothing unique about the prosecution of these types of offences, indeed according to Home Office figures, in the year ending 31 March 2015, 50% of those charged with terrorist offences were charged with s 5 offences and during the same period there were 31 convictions (across the range of terrorist offences). What makes the Incedal case different was not that it took place almost entirely in secret – although this fact is troubling – but the role of the media in challenging the orders made in the course of the proceedings.

Following the charges Incedal (and a co-accused) were brought before the Westminster Magistrates’ Court where orders were made under s 4(2) and 11 of the Contempt of Court Act 1981 (the 1981 Act). The former provides, in summary, for the court to postpone for such period as it thinks necessary publication of any report of the proceedings where it appears necessary to avoid a substantial risk of prejudice to the administration of justice. The latter provides for a relevant court – one empowered to withhold a name or other matter – to give directions prohibiting publication as necessary for that purpose. At a later preparatory hearing before the Central Criminal Court the prosecution sought an extension of these orders and an order that all or part of the proceedings should be heard in private. This was supported by what the court of appeal called “certificates” signed by the Secretaries of State for the Home and Foreign Office. These contained schedules of supporting material. The defendant and representatives of the media were provided a redacted copy of the certificates but did not see the schedules. It was canvassed at this hearing that “certain media representatives [would be permitted to] attend some of the private part of the trial, subject to stringent undertakings”. The judge subsequently prepared two judgments (one open and one closed) and ordered that the entirety of the trial should be heard in private, the names of the defendants should be withheld and that reports of the hearing and his open judgment should not be published until after the trial or further order. The media appealed the orders pursuant to s 159(1) of the Criminal Justice Act 1988 and the Criminal Procedure Rules, Parts 6 and 40 (wrongly referred to as the “CPR” in the judgment, not Crim PR pursuant to Rule 2.3(2)(b)).

The Court of Appeal allowed the appeal in part, varying the terms of the order to a limited extent and discharging in certain respects the first order. Again the judgment was in open and closed form. In summary it held that parts of the trial could be heard in open court, that the defendants could be identified and permitted the media to report the proceedings contemporaneously. Its reason for holding that some of the proceedings could be heard in camera was that there was “a significant risk – at the very least a serious possibility – that the administration of justice would be frustrated” if the trial was held in public since the Crown may be deterred from continuing with the prosecution if the order was not granted. The Court of Appeal directed that “a small number of accredited journalists might be invited to attend the ‘bulk’ of the trial” on confidential terms and any publication would be reviewed at the end of the trial.

The practical effect of the orders was that the trial was held in three distinct stages: stage one was in open court; stage two was in camera but included accredited journalists; and stage three was in camera and excluded journalists. Notes of stage two proceedings could be taken but not removed from court and there could be no disclosure of what took place. The stages were kept under review and varied as the circumstances necessitated. Indeed at the prosecution’s behest significantly more of the trial was held in open court. At the end of the trial, the media asked that the prohibition on reporting some aspects of it be lifted but this was dismissed by the trial judge on the basis that “nothing material had changed in light of Incedal’s acquittal to justify the relaxation on the prohibitions”. This was subject to a further appeal.

The court began by dealing with a number of procedural matters. It had the power to receive evidence not provided to all parties to an appeal: s 159(5) (b) of the 1988 Act and Rule 40.5(2) and 6(f) of the Crim PR. In addition although permitting accredited journalists access to in camera proceedings was unusual, there was an “analogous course” contemplated in relation to sentence review hearings where a defendant provides assistance to law enforcement: ss 71 to 75 Serious Organised Crime and Police Act 2005 and R v P and Blackburn [2007] EWCA Crim 2290 (discussed in chapter 7 of Covert Policing Law & Practice). It then considered the principles in relation to ordering a departure from open justice in national security cases.

First was the independence of the decision-making of the Director of Public Prosecutions. This autonomy is subject only to the superintendence of the Attorney General and in extremely rare cases the courts by way of judicial review. In the context of a national security investigation, the Court of Appeal at paragraph 45, framed the position in the following way:

“Thus in a case involving national security when the police or the Security and Intelligence Services will put the evidence garnered in the course of the investigation before the DPP and set out their views as to why it might be necessary for an application to be made to the court for part of the proceedings to be held in camera, it must be for the DPP, and the DPP alone, subject to the superintendence of the Attorney General and the ultimate supervisory jurisdiction of the court in exceptional cases, to determine whether to prosecute and, if so, whether to apply to the court for part of the proceedings to be heard in camera.”

Second, where the DPP makes an application, the court proceeds on the basis that the principle of open justice is fundamental to the rule of law and democratic accountability. She must make “a very clear case”. The threshold is a high one: the leading authority remained Scott v Scott [1913] AC 417 where the House of Lords described it as requiring it to be “strictly necessary” and “that by nothing short of the exclusion of the public can justice be done”. The principle can only be departed from in unusual or exceptional circumstances.

Third, the decision must be made “in relation to the evidence in issue”. Where the reason for departing from the principle of open justice is said to be national security it is for the court alone to decide whether the threshold has been met. It decides whether the evidence or other material can be heard in public or not. In determining this the court will “pay the highest regard” to what the Secretary of State says in the certificate on national security issues providing there is an evidential basis for it. National security is an issue for the executive; determining whether there is evidence supporting the view and whether open justice should be fettered are decisions for the judiciary. The court may, though it is likely to be rare, depart from the views of a Minister as set out in a certificate. The test is one of necessity not whether the prosecution will continue with the case if the application is not successful. The earlier judgment of the Court of Appeal had considered that the risk of discontinuance of the criminal proceedings would cause serious prejudice to the administration of justice. Some support for this approach could be found in R v A [2006] EWCA Crim 4 and R v Wang Yam [2008] EWCA Crim 269.

In Incedal the Court of Appeal made it clear that the constitutional position required that the correct approach of the court was for it to consider whether the nature of the evidence made it necessary to hear the evidence in camera rather than any view expressed by the DPP. The court, at paragraph 57, held:

“Determining the matter on the basis of the DPP’s view would remove from the court its proper constitutional function of determining whether a departure from the principle of open justice would be necessitated, as the decision would rest on the implicit threat of the DPP not to prosecute unless the court were to defer to the view of the DPP on the effect of the evidence in issue rather than making its own determination of the effect of the evidence in issue. The proper approach of the court is to examine the nature of the evidence and to determine the effect of hearing it in public. Deciding the issue on the basis that the DPP might not continue with the prosecution does not satisfy the test of necessity. In effect, it transfers the decision on whether to depart from the principle of open justice to the DPP.”

If the court decides not to make an order that evidence is not heard in camera and the DPP decides to prosecute, the function of the executive is to give its full cooperation and assistance. The intelligence agencies must “abide by the rule of law”.

After the making of an order, the court remained under an obligation to subject its decision to continuous review. This, held the Court of Appeal, imposed a very substantial burden on the trial judge who would normally be assisted by trial counsel in the case. However, it also expressed the view that in some national security cases the court may be “greatly assisted by an independent lawyer assigned to provide assistance”. Such a lawyer would need to be vetted and provided to the judge in appropriate cases.

In the Incedal case, the court expressed the view that the making of an order that accredited journalists should be permitted to attend made the management of the trial difficult. In future, it “should hesitate long and hard before it makes” a similar order. As to the currency of the existing order, the court held that whilst it was not the function of the court to hoist the national security flag and the court automatically saluting it, the evidence in the case made a departure from the principles of open justice strictly necessary. The appeal was therefore dismissed. By way of finale, the court expressed understandable concern that closed judgments were not retained on the file or within the court building. It was not clear where they were located. The court ought to be able to consult them in the interests of consistency of approach. The court directed the Registrar to establish a working group to advise on the course of action it should take in future cases.

This is an important constitutional decision, underscoring the need for the office of the Director of Public Prosecutions to be independent both in name and in practice. Lines of demarcation were necessary between the Crown Prosecution Service and intelligence agencies – the agencies could not revoke its cooperation if the Crown decided to prosecute after a failed application for proceedings to be held in camera. It also touched on the question of Ministerial certificates: these are creatures of the executive and subject to the duty of candour (discussed here). However, the limitations on oversight of the application of this doctrine as far as the agencies are concerned are limited in scope and in theory open to abuse. Complaint lies to the Investigatory Powers Tribunal and there have been no reported decisions on the issue.

There are a number of key practical points arising out of this important judgment:

  1. An application the 1981 Act must be determined by reference to the evidence in issue, not the risk of discontinuance
  2. The DPP must be scrupulously independent of the police and intelligence agencies
  3. Orders under the 1981 Act providing for access by accredited journalists to some or all of in camera proceedings are unlikely to be made having regard to the burden this places on the judge in case management terms
  4. Where an order is refused and the DPP decides to prosecute, the police and agencies must cooperate with the prosecution
  5. In obtaining Ministerial certificates the agencies and executive are under a duty of candour.

© Simon McKay (2016). Please ask for my permission before using or copying the material contained in this blog. If you do, attribute it to me, with a link to the original content. This is opinion, not legal advice.

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