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Not quite a totally secret trial ... Ministerial Certificate not quite a trump card !
The Court of Appeal (Criminal Division), having taken time to consider the case, has given its DECISION - HERE (pdf 7 pages). JUDGMENTS are to follow at a later date and there is to be an OPEN judgment, a PRIVATE judgment and an EX PARTE judgment [12].
The Court of Appeal stressed that it did not merely "review" the decision of Nicol J but had made an independent decision based on the material before it. The material included certificates from the Home Secretary and Foreign Secretary together with supporting schedules of material [10].
The CORE of the trial could be held
in camera [14] but a number of significant matters should be in open court [16]. In para 14, the Court of Appeal referred to there being '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.' That does not appear to be a particularly demanding test for determining when departure from a 'fundamental principle of the common law' [2] may be departed from.
In open court may be: the swearing in of the jury; reading of the charges to the jury; at least part of the the judge's introductory remarks to the jury; at least part of the the prosecution opening; the verdicts, and if any convictions result, sentencing (subject to any further argument before the trial judge as to the need for a confidential annexe).
At the conclusion of the trial, the question of publication will be reviewed. (The decision allows also for a possible review during the trial if there is a substantial change of circumstances) [18]. A small number of accredited journalists will be permitted to attend the trial but this is to be on strict terms of confidentiality until a either a review at the end of the trial or any further order [19]. How those journalists will be selected is not discussed by the court.
Anonymity of the defendants is not necessary [20] and the court expressed the opinion that it was difficult to conceive of a situation where both an in camera hearing and defendant anonymity were necessary [21].
From what we know of the case, the court's decision appears to be a sensible balance. However, para. 5 is important:
'As is well-established in our law, these tensions are resolved along the following lines:
i) Considerations of national security will not by themselves justify a departure from the principle of open justice;
ii) Open justice must, however, give way to the yet more fundamental principle that the paramount object of the Court is to do justice; accordingly, where there is a serious possibility that an insistence on open justice in the national security context would frustrate the administration of justice, for example, be deterring the Crown from prosecuting a case where it otherwise should do so a departure from open justice may be justified.
iii) The question of whether to give effect to a Ministerial Certificate (asserting, for instance, the need for privacy) such as those relied upon by the Crown here is ultimately for the Court, not a Minister. However, in the field of national security, a Court will not lightly depart from the assessment made by a Minister.'
Thus, it seems likely that the court will be faced with many more such Ministerial Certificates and that such certificates will amount to an important card in the Crown's hands even if not quite a trump card !
Other links:
Amnesty International UK
UK Criminal Law Blog - raises the important question of whether the jury will be vetted - CPS Jury Vetting and also here.
Twitter comment:
Take care not to laud the Appeal Court judgment on Secret Trials. They started from nil & reasserted a basic right to 2 on a 1-10 scale
— John Cooper (@John_Cooper_QC) June 13, 2014 The Court of Ap said Admin of Justice might "possibly be frustrated" A lower standard of proof to compromise open justice than criminal st.
— John Cooper (@John_Cooper_QC) June 13, 2014
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