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Trial must not be completely secret, appeal court rules

12 June 2014

An attempt to hold a completely secret criminal trial has been rejected by the Court of Appeal in London.

The unprecedented move was sought by the Crown Prosecution Service in a terrorism case and was said to be in the interests of national security.

Mr Justice Nicol in the High Court had granted an order which banned identification of the accused and media access to the trial, but the appeal judges ruled that while the "core" of the trial could be partly heard in secret, parts had to be in public.

Media also should be allowed to name the accused as Erol Incedal and Mounir Rarmoul-Bouhadjar.

A small number of accredited journalists will be allowed to attend the trial, on strict terms of confidentiality until either a review at the end of the trial or any further order.

Giving judgment, Lord Justice Gross said the court had "grave concerns" about the cumulative effect of anonymising defendants and holding the hearings in secret, and it weas "difficult to conceive of a situation where both departures from open justice will be justified". The court would apply these guidelines:

"(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."

The media and public will be allowed to attend the swearing-in of the jury, parts of the prosecution's introductory remarks setting out the case, the verdicts and, in the event of convictions, the sentencing.

The Crown Prosecution Service has said it will accept the decision, and "will tailor its approach to the prosecution accordingly".

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