Guardian News And Media Ltd & Ors v R. & Incedal [2016] EWCA Crim 11

[2016] EWCA Crim 11

Case No 2015/01756/B2

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

Mr Justice Nicol

T2013/7502

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 09/02/2016

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

LADY JUSTICE HALLETT

LADY JUSTICE SHARP

Between

Guardian News and Media Ltd and orsAppellants

RRespondent

Erol IncedalRespondent

Anthony Hudson QC and Ben Silverstone (instructed by In-House Solicitor, Guardian News and Media Ltd) for Appellants

Richard Whittam QC, Jennifer Carter-Manning and Stuart Baker (instructed by CPS) for Crown

Joel Bennathan QC (instructed by Birnberg Peirce and Partners) for Erol Incedal

Hearing Hearing dates: 30 June, 1 July 2015

12 and 13 October 2015

Judgment

Lord Thomas of Cwmgiedd, CJ:

I: Introduction and factual background

[1]On 1 April 2015 Nicol J made an order dismissing the application made on behalf of various media organisations that the reporting restrictions which applied during the trial of Erol Incedal be varied so as to permit the publication of reports of most, if not all, of what took place during hearings held in private but in the presence of accredited journalists.

[2]Some of those media organisations (the media parties) now apply pursuant to section 159 of the Criminal Justice Act 1988 (CJA 1988) for permission to appeal that order. The media parties are Guardian News and Media Ltd, Times Newspapers Limited, News Group Newspapers Limited, Associated Newspapers Limited, Independent Print Limited, Telegraph Media Group, the BBC and ITN. The application is supported by BSkyB Limited and the Press Association.

[3]The application for permission was referred to the Full Court by the Registrar, and in the course of the hearing before us we gave leave.

[4]In summary, the media parties submit that following the conclusion of the trial against Incedal, there is no longer a significant risk or serious possibility that the administration of justice would be frustrated if the media could publish reports of the core of Incedal’s trial. In consequence, there is no longer a continuing justification for the restrictions on reporting the trial that were imposed by the Court of Appeal’s Order of 12 June 2014 (see paragraph 21 and following below). Alternatively, the publication of reports of parts of the core of the trial would not give rise to such a risk.

[5]The relevant factual background is as follows.

[6]Incedal and his co-defendant, Mounir Rarmoul-Bouhadjar, were arrested on 13 October 2013. On 20 October 2013, they were charged with various terrorism offences. Incedal was charged with engaging in conduct in preparation of terrorist acts contrary to section 5(1) of the Terrorism Act 2006 (the TA 2006): count 1; and he and Rarmoul-Bouhadjar were charged with possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58(1)(b) of the Terrorism Act 2000 (the TA 2000): counts 2 and 3. Rarmoul-Bouhadjar was also charged with possession of false identity documents etc. with improper intention, contrary to section 4 of the Identity Documents Act 2010: count 4.

[7]Though the criminal proceedings against Incedal and Rarmoul-Bouhadjar have concluded, we shall refer to them as the defendant(s) as the context requires.

[8]Incedal was the subject of two trials that took place at the Central Criminal Court before Nicol J and a jury: the first, in 2014 and the second, in 2015. Rarmoul-Bouhadjar had pleaded guilty to count 3 shortly before the first trial. Incedal’s first trial took place between 13 October 2014 and 11 November 2014. On 11 November 2014 he was convicted on count 2. The jury could not agree on count 1 (the charge under section 5(1) of the TA 2006), and a retrial on that count was ordered. The retrial began on 23 February 2015, and on 26 March 2015 Incedal was acquitted. On 1 April 2015, the defendants were sentenced to terms of imprisonment (Incedal to 42 months’ imprisonment and Rarmoul-Bouhadjar to 36 months’ imprisonment) on counts 2 and 3 respectively. The prosecution had decided not to proceed on count 4, which was ordered to lie on the file on the usual terms.

[9]The proceedings against the defendants have been the subject of reporting and other restrictions from the outset.

[10]On 21 October 2013, at a hearing at Westminster Magistrates’ Court, orders were made under section 4(2) and 11 of the Contempt of Court Act 1981 (CCA 1981). Section 4(2) of the CCA 1981 provides for the postponement of reports of legal proceedings held in public. The material parts of section 4 of the CCA 1981 provide that:

“(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. (2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.”

[11]Section 11 of the CCA 1981 gives the court power to prohibit the publication of matters exempted from disclosure in open court. It provides that:E+W+S+N.I. “In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”

[12]The section 4(2) and section 11 CCA 1981 orders made by the Magistrates were continued at various preliminary hearings that took place at the Central Criminal Court between November 2013 and March 2014.

[13]On 2 May 2014 at a preparatory hearing before Nicol J at the Central Criminal Court, the prosecution applied for an order that all or part of the proceedings should take place in private (we will refer to this for convenience as in camera) and that the section 4(2) and section 11 CCA 1981 orders earlier imposed should be continued. The application was opposed by various media organisations, including the media parties. The prosecution’s application was supported by Certificates setting out the reasons relied on in support by the Secretary of State for the Home Department (SSHD) and the Secretary of State for Foreign and Commonwealth Affairs (SSFCA). Further material was provided in Schedules to the Certificates. The Redacted Certificates, but not the Schedules, were provided to the defendants and their legal representatives and to the legal representatives of the media parties on terms as to confidentiality.

[14]At that stage, one possibility raised in the Certificates, supported by the SSHD and SSFCA and canvassed by the prosecution in argument, was that the court might be prepared to permit certain media representatives to attend some of the private part of the trial, subject to stringent undertakings.

[15]On 19 May 2014 Nicol J handed down an open judgment and a closed judgment. He ordered that: i) The entirety of the criminal trial should be held in camera (with the public and media excluded) and that the publication of reports of the trial would be prohibited under section 11 of the CCA 1981, unless and until the Court made a different order; ii) The names and identities of the defendants should be withheld from the public and publication of their names/identities in connection with the proceedings be prohibited; iii) The publication of reports of the hearing in open court on 19 May 2014 and the open judgment handed down on that day should be postponed until the conclusion of the trial or further order.

The first section 159 appeal

[16]The media parties appealed against the first Order pursuant to section 159(1) of the CJA 1988.

[17]The material parts of section 159(1) of the CJA 1988 provide that:

“(1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against— (a) an order under section 4 or 11 of the [CCA 1981]…made in relation to a trial on indictment; … (b) any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial; and (c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings; and the decision of the Court of Appeal shall be final. … (5) On the hearing of an appeal under this section the Court of Appeal shall have power— … (b) to confirm, reverse or vary the order complained of; … (6) . . . Rules of Court may make in relation to trials satisfying specified conditions special provision as to the practice and procedure to be followed in relation to hearings in camera and appeals from orders for such hearings…”

[18]The relevant Rules of Court are now contained in, amongst other places, Parts 6 and 40 of the Criminal Procedure Rules (CPR) October 2015.Earlier versions of the CPR were in force at the time of the first section 159 appeal and the trial, but the substance of the relevant provisions has remained unchanged.

[19]On 4 June 2014, the application for leave to appeal against the first Order came before the Court of Appeal, Criminal Division (Gross LJ, Burnett and Simon JJ as they then were). The Court of Appeal treated the application as the hearing of the substantive appeal, and subsequently granted leave.

[20]Part of the hearing was in public, part was in private and a very small part was ex parte. On 12 June 2014 the Court of Appeal varied to a limited extent, and in some respects discharged the first Order. Because the trial was then anticipated to begin in a few days, the Court of Appeal gave public written reasons for its decision (together with a Confidential Annex) indicating a judgment would be handed down at a later date. On 24 September 2014, the Court of Appeal handed down a public judgment

[2014] EWCA Crim 1861

;

[2015] 1 Cr. App. R 4

(which repeated and slightly expanded the substance of the written reasons), a private judgment and an ex parte judgment.

[21]In summary, the Court of Appeal: i) Varied to a limited extent the order made by Nicol J that the trial should be held in camera (in that limited parts of the trial which it specified, could be dealt with in open court: see paragraph 24 below); ii) Allowed the media parties’ appeal from the order for the anonymisation of the defendants; iii) Allowed the media parties’ appeal from the section 4(2) CCA 1981 order imposed by Nicol J.

[22]In its open judgment, the Court of Appeal gave these reasons for concluding that the trial should be held in camera:

“31. We have already outlined the Court's power to hear a trial or part of a trial in camera. This case is exceptional. 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. For good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution. The relevant test is thus satisfied. Indeed, we go further: on all the material, the case for the core of the trial to be heard in camera is compelling and we accede to it. 32. In his open judgment, dated 19th May, Nicol J referred to the witness statement dated 12th May, 2014, made by Ms Mari Reid, the Unit Head of the Counter Terrorism team in the Special Crime and Counter Terrorism Division of the Crown Prosecution Service. Ms Reid there made reference to both the Certificates and the Schedules. She explained that should the factors of concern to the Secretaries of State be ventilated in a public trial, she was "likely to be presented with representations" to the effect that the case should not continue. Against that background, Ms Reid confirmed that there was a "serious possibility" that the trial may not be able to go ahead if (so far as immediately relevant) the application for an in camera hearing was not granted. 33. A short additional witness statement from Ms Reid, dated 16th May, 2014 ("the second statement"), was placed before the Judge but only in the ex parte hearing. Having considered its content, we formed the preliminary view that much of its substance might be provided to those involved in the private hearing and that a gist might be produced for reference in our open judgment. We raised the matter with the prosecution who were receptive to these suggestions. Accordingly, we are able to say that the second statement explained further the position of the relevant interested parties in respect of a small number of discrete matters. It was likely that representations would be made that the case should not continue if evidence of any of these matters were to be disclosed publicly, and inevitable as regards one of those discrete matters. 34. We are well able to understand the difficulty about the factors of concern – both those in the Certificates and the discrete matters in the Schedules – being ventilated in a public hearing. The phraseology of Ms Reid is understandably cautious (see above). However, appreciating as we do, the potential consequences of public disclosure, the risk that the administration of justice would be frustrated if the core of the case was heard in open Court is overwhelming. We are further satisfied that the discrete matters dealt with in the Schedules require the additional protection given in the Order made following our Decision. 35. With a view to minimising any departure from the principle of open justice, we have obviously considered a split trial – i.e., with the core of the trial split into open and in camera hearings. We are, however, of the clear view, for reasons upon which we cannot elaborate in our Open Judgment, that in this case it is unreal to contemplate a split trial. It follows, as a matter of necessity, that the core of the trial must be heard in camera. 36. It is important to reiterate that a defendant's rights are unchanged whether a criminal trial is heard in open Court or in camera and whether or not the proceedings may be reported by the media: thus the defendant in such a hearing has the right to know the full case against him and to test and challenge that case fully. This is a very proper consideration but it does not, in any way, lessen the need for close scrutiny of any suggested departure from the principle of open justice. 37. As already underlined, no departure from the principle of open justice must be greater than necessary.”

[23]The Court of Appeal was not persuaded it was necessary to anonymise the defendants, given its order that the core of the trial would be held in camera: see paragraphs 45 to 47 of its open judgment. But as is obvious from the terms of the judgment, and the orders made as a result, subject to the fact that the names of the defendants could now be reported, the restriction on reporting the remainder of the trial imposed by the first Order pursuant to section 11 of the CCA 1981, otherwise remained in place. We mention the point because at one stage in the hearing before us it was suggested by Mr Anthony Hudson QC for the media parties, that the section 11 order might have been discharged.

[24]The parts of the trial which the Court of Appeal directed should be heard in open court were the swearing in of the jury; the reading of the charges to the jury; at least a part of the judge’s introductory remarks to the jury; at least a part of the prosecution opening; the verdicts and if any convictions resulted, sentencing (subject to any further argument before the judge as to the need for a confidential annex).

[25]The Court of Appeal further directed: i) That a small number of accredited journalists might be invited to attend the “bulk” of the trial (subject to being excluded when the few discrete matters were discussed in accordance with the Certificates and the Crown’s submissions) on terms which compelled confidentiality until review at the conclusion of the trial, and any further order. ii) That the position as to publication should be reviewed at the conclusion of the trial, thus permitting (if need be) a further application for leave to appeal under section 159 of the CJA 1988 (the Court of Appeal said that as trials are dynamic processes, its order did not preclude a review by the prosecution and the Judge in the course of the trial, in the event of a substantial change of circumstance: see paragraph 38 of its open judgment).

[26]In relation to the presence of the accredited journalists, the order as drawn up provided that up to 10 accredited journalists (as defined in the order) could attend the trial subject to terms as to confidentiality which the order also set out. The Court of Appeal said the attendance of accredited journalists would not make the trial unworkable. Their presence was not objectionable in principle, having regard to the fact that the selection of the journalists was not in the hands of the Secretaries of State but was to be resolved by the media parties themselves. Further, the accredited journalists’ presence served to minimise the extent of the departure from the principle of open justice. The fact that accredited journalists could not report what took place was an inevitable corollary of the order for an in camera hearing; and would be the subject of review at the conclusion of the trial in any event. See paragraphs 39 to 41 of the open judgment.

[27]Incedal’s trial and retrial were heard in three distinct parts (or stages as they were referred to at trial) as the Court of Appeal had directed. Stage 1 was in open court, so the public and the media could attend and report what happened without restriction. Stages 2 and 3 were heard in camera in the presence of the judge and Court staff, the jury, the defendant, police, prosecution and defence lawyers, and – for Stage 2 only - the accredited journalists. The accredited journalists could take notes during Stage 2 but could not take those notes out of court, or disclose what took place (save to nominated legal representatives for the purposes of obtaining legal advice).

[28]The issue of what should be dealt with in open court or in camera, was kept under review during the course of the trial itself (where the prosecution indicated it was willing to consider moving a particular topic from Stage 2 to Stage 1 if invited to do so by the accredited journalists, though in the event no such request was made). In the event, at the behest of the prosecution, substantially more of the trial was held in open court than the Court of Appeal had directed, and reports of the open court proceedings received widespread coverage in the media.

[29]At the conclusion of Incedal’s retrial, Nicol J further reviewed the position as to publication. He had directed at a preliminary hearing that transcripts should be made of the entirety of the trial, and this facilitated the process of review, during and at the end of the trial.

[30]On 1 April 2015, the judge dismissed the media parties’ application that he should lift the reporting restrictions in whole or in part. He gave an open and closed (that is, private) judgment. Counsel and solicitors for the media parties were permitted to read the closed judgment, subject to undertakings that its contents should not be disclosed. The judge decided in summary, that nothing material had changed in view of Incedal’s acquittal to justify the relaxation on the prohibitions advocated by the media parties, and that the application was rejected for reasons which he could only explain in his closed judgment.

[31]In his open judgment Nicol J also referred to the fact that during the trial, the prosecution had been willing to consider any representations from the accredited journalists that a topic should be moved from Stage 2 to Stage 1; and he invited the parties (for this purpose, the prosecution, the defence and the accredited journalists through their legal representatives) to agree what material could be moved into Stage 1. He also made himself available to adjudicate on any outstanding disputes.

[32]As a result of the various reviews that took place by the prosecution, and by the parties, certain material was moved from both Stages 3 and 2 to Stage 1. The judge was informed of the process, but did not supervise the detail of what was moved by agreement.

The procedure at this appeal

[33]We adopted a similar procedure in relation to the hearing of this appeal and the evidence adduced by the parties, as was adopted at the first section 159 appeal. Thus, we heard part of the appeal in open court, part in private and a very small part ex parte. The prosecution and counsel for Incedal were present throughout the private hearing; the accredited journalists and their legal representatives were present for most, but not all, of the private hearing. Rarmoul-Bouhadjar took no part in the appeal. In addition to the material that was before the judge, we were provided with updated material by the parties, including Certificates and Schedules from the SSHD and the SSFCA. The Redacted Certificates, but not the Schedules, were provided to Incedal and his legal representatives and to the accredited journalists and legal representatives of the media parties on terms as to confidentiality.

[34]We should add that this court has the power to receive evidence not provided to all parties to an appeal, as this court explained in its open judgment of 24 September 2014 at paragraphs 20 to 30. See further, section 159(5)(b) of the CJA 1988 as augmented by CPR (2015) rule 40.5(2) and 6(f).

[35]We rejected an application made by Mr Hudson QC that the media parties should have sight of all the material produced to us.Though this involved a derogation from the principle of open justice, it was obviously necessary for us to do this to resolve the issues that were raised by this appeal and to do justice in the instant case: see further, paragraph 71 below.

II: The jurisdiction of the court to allow accredited journalists to attend

[36]The order made by the Court of Appeal, permitting accredited journalists nominated by the media to attend a hearing in camera but prohibiting the reporting of what took place in their presence, was an unusual one in the criminal context (although an analogous course – that is, a private hearing with accredited journalists present, but with a prohibition on reporting - was contemplated in relation to sentence review hearings under ss.71-75 of the Serious Organised Crime and Police Act 2005: see R v P and Derek Stephen Blackburn

[2007] EWCA Crim 2290

; [2008] 2 Cr. App. R. (S.) 5, at paragraph 36).

[37]It was not however contended by any of the parties to the first section 159 appeal or before us, that the court does not have jurisdiction to make such an order (let alone that there were grounds for us to depart from a previous decision of this court that it does so). Nor was it suggested at either appeal that the effect of permitting nominated accredited journalists to attend certain parts of the trial held in camera somehow compromised the private nature of the hearing.

[38]The common law power of the court to make orders derogating from the principle of open justice is dealt with both in the Court of Appeal’s open judgment of the 24 September 2014 (at paragraph 11 for example) and in Part III of our judgment below. Once the court in this case had determined there were (compelling) reasons for the core of the trial to be held incamera, it was obviously necessary that there should be an order, under section 11 of the CCA 1981, prohibiting the publication of reports of the in camera part of the proceedings.

[39]The presence of the accredited journalists on strict terms as to confidentiality, did not affect either of these two imperatives, or therefore the legal validity of the orders that were made.

III: The making public of more of the evidence

[40]The media parties accepted that some of the evidence given in the trial should remain out of the public domain. They contended that the evidence on the core issues which the accredited journalists had heard should be made public as there was no longer, even if there ever had been, any proper justification for departing from the principles of open justice.

[41]It is convenient first to summarise those principles and the approach the court should take. (1). The principles in relation to ordering a departure from open justice in national security cases

[42]It is important to distinguish on constitutional principles, the respective functions of those involved in cases involving national security when an application is made to the court to hear part of the evidence when the public and the media are excluded.

(a) Role of the Director of Public Prosecutions

[43]It is well established that the decision on prosecution under our constitution is a decision to be made by the Director of Public Prosecutions (the DPP), independently of the Executive. This position has been made clear in a number of cases including R v DPP ex p Manning

[2001] QB 330

at paragraph 23, A

[2012] EWCA Crim 434

and Moss & Sons Ltd v CPS

[2012] EWHC 3658 (Admin)

at paragraphs 26 to 30.

[44]The independence of the DPP is subject only to the superintendence of the Attorney General and the possibility of judicial review. When there is a judicial review, the court will disturb the decisions of an independent prosecutor only in highly exceptional cases: R (Corner House) v SFO

[2009] AC 756

at paragraph 30 of the judgment of Lord Bingham.

[45]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.

[46]After the decision of the court, it is again for the DPP to make the decision on whether to continue with the prosecution, taking such advice as the DPP thinks necessary and taking into account, where appropriate, the interests of national security (see R (Corner House) at paragraphs 38-42). (b). The approach of the court in determining whether part of the proceedings should be held in camera

[47]When the DPP makes the application to the court, the court proceeds on the basis that the principle of open justice is fundamental to the rule of law and to democratic accountability: see the judgment of Lord Judge CJ in R (Mohamed) v Foreign Secretary (No 2) at paragraphs 39 and 41. It is not necessary to set out the various formulations of the principle. It is impossible to improve on the eloquent statements made just over 100 years ago by those who gave judgments in the House of Lords in Scott v Scott

[1913] AC 417

: see Viscount Haldane LC at 437-9 and Lord Shaw of Dumfermline at 476-8, particularly the passages at 476-7 and the citations from Bentham and Hallam.

[48]It has, however, always been recognised that there are exceptions which have been developed in cases over the years and to which it is again unnecessary to refer. The general principle is clearly expounded by Lord Diplock in A-G v Leveller Magazine

[1979] AC 440

at 449 - 450:

“As a general rule the English system of administering justice does require that it be done in public: Scott v. Scott [1913] A.C. 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this. However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.”

[49]It is for the DPP, as the party seeking to curtail the principle of open justice, to make a very clear case. The stringency of the test was expressed by Viscount Haldane in Scott v Scott at page 438 as requiring it to be shown that a hearing in camera was “strictly necessary” and “that by nothing short of the exclusion of the public can justice be done”; a similarly stringent test is put forward by Earl Loreburn at page 445.

[50]Thus in each case, it is for the court to determine on this very strict test whether the detailed reasons that have been put forward in the particular circumstances for departing from the general principle of open justice as regards particular matters or evidence in the course of proceedings necessitate a departure from the fundamental principle of open justice. As Lord Steyn said in In re S (a child)

[2005] 1 AC 593

at para 18, that principle can only be departed from in unusual or exceptional circumstances. (c). The decision is to be made in relation to the evidence in issue

[51]Where the reason for departing from the principle of open justice is based on reasons relating to national security, it is for the court and the court alone to determine if the stringent test has been met. It, and it alone, decides whether the evidence or material in question should be heard in public or not.

[52]In making that decision the court will pay the highest regard to what is stated by the Secretary of State in his or her Certificate. As Lord Hoffman made clear in Secretary of State for the Home Department v Rehman

[2003] 1 AC 153

at paragraph 50-57, a court should not depart from the view of the Secretary of State on national security issues, provided there is an evidential basis for the decision of the Secretary of State. That is because under our constitution the identification and delineation of national security interests is for the Executive branch of the state. Although the circumstances will be very rare, the court is also free to depart from the views set out in the Certificate as to the weight to be attached to the national security interests. That is because it is always for the court to make the decision on whether those interests necessitate the departure from the principle of open justice.

[53]Thus when a prosecutor seeks a ruling from the court in relation to hearing evidence in camera, it is for the court to determine that application by deciding whether the evidence or material in issue should or should not be heard in camera. The test for the court is one of necessity. The prosecutor’s view as to whether or not the prosecution will continue if the evidence is to be heard in public or the material public is not the determining factor. That is because there is an important distinction in the constitutional functions of the court and the prosecutor which we have described.

[54]In the judgment given on 24 September 2014 in which this court determined whether the core issues should be heard in camera, but in the presence of nominated journalists, it determined the issue by considering whether there was a serious possibility that an insistence on open justice in the national security context would deter the prosecution from prosecuting a case where otherwise it should do so. It held that if the prosecution did not prosecute, there would be serious prejudice to the administration of justice as the defendant was charged with such serious offences (see paragraphs 17 and 18).

[55]There are observations in two cases that may be thought to support that approach, namely R v A

[2006] EWCA Crim 4

[2006] 2 Cr App R 2

at paragraphs 11 and 42 and R v Wang Yam

[2008] EWCA Crim 269

at paragraph 7, both referred to in the judgment of 24 September 2014 at paragraph 17. i) In the first case, the prosecution submitted to the trial judge before the trial started that, “having regard to the substantial risks to national security” if evidence were heard in open court and the press and public not excluded, the prosecution “might decide” it might not pursue the allegations in relation to serious terrorism offences. The trial judge determined the application on that basis. However, it is clear from the judgment of this court, that the court determined the issue by its consideration of the evidence in issue. It decided that without an in camera order, the threat to national security and the interests of justice were unequivocally clear if the evidence was heard in public (see paragraph 42 of the judgment). ii) In the second case an application was made to the trial judge on the basis that, due to the serious risk to national security, the prosecution might drop the case if the press and public were not excluded from part of the trial. The judge decided that “serious risks might be taken” if the press and public were not excluded, as the prosecution might well decide to drop the prosecution rather than to incur the risks; that as the trial would go ahead and it would be fair if the press and public were excluded, the interests of justice therefore required the exclusion of the press and the public. However the basis on which this court dismissed the application for leave to appeal was a consideration of the evidence in issue. An unsuccessful attempt was made to re-open the issue after the conclusion of the trial, but the judgment of this court does not assist on the point in issue:

[2010] EWCA Crim 2072

[56]As was made clear in Ex p The Telegraph Group

[2001] 1 WLR 1983

at paragraph 3, it is the duty of this court, when considering issues relating to open justice as an appellate court, not simply to review the decision of the judge but to come to its own independent decision. It is apparent that the decisions in both A and Wang Yam were reached after consideration of and on the basis of the evidence in issue.

[57]However, even if the decisions in those cases in this court had not in fact been made on that basis, there was no argument on the approach adopted by the trial judges and no consideration of the constitutional position which we have set out. The constitutional position makes clear that it is for the court itself to determine whether the evidence in issue should be heard in camera by consideration of the nature of the evidence rather than by a statement of the DPP that unless the evidence is heard in camera, there may be no prosecution. 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.

[58]Approaching the respective decisions in the way we have set out thus accords with the well-established principle as set out in Scott v Scott and A-G v Leveller, that it is for the court to determine what information or evidence is to be made public or what is not. That is the sole issue for the court. The duty of the DPP is to make the decisions in relation to prosecution. Therefore, after the court has made its ruling on whether the evidence should be heard in camera, the DPP must decide in the light of the decision of the court whether to continue with the prosecution.

[59]Quite apart from constitutional principle, there is a further reason why the court must determine the issue by reference to the evidence in issuerather than by reference to the views of the DPP on whether the prosecution might not proceed.It is well established that it is for the court during the course of the proceedings and at their conclusion to review the question as to whether the information or evidence provided in camera should be made public. If the court’s decision was premised on the basis that the DPP might not continue with the prosecution if the material was made public, it is difficult to see how it would be open to the court to decide subsequently to make that evidence public, as the prosecution would have proceeded only on the basis it would not be and the court had not made a determination as to the effect of that evidence on national security and why it could not be made public.

[60]In the present case, as will appear, if the decision of the court had been expressly made on the basis of the nature of the evidence and the effect of making it public, it would have been much easier to identify at the conclusion of the trial whether there were good reasons which necessitated continuing to withhold the evidence from the public.

(d) Duty of the Executive to provide the evidence

[61]It is necessary, in the light of some of the material provided to the court, to make it clear that if the DPP decides to proceed with a prosecution on the basis of the court’s decision to allow certain information or evidence to be heard in public, no part of the Executive can refuse to provide the evidence required by the DPP on the basis that it perceives that it is not in the interests of national security to provide it. The court has made its decision and the Executive must abide by it. It must also abide, subject to the qualification set out in paragraph 44 above, by the decision of the prosecutor, whether in the light of the decision of the court, the prosecution should continue. If the DPP decides on continuation, then the Executive must give the prosecution its full cooperation and assistance.

[62]It is a significant, important and proper part of the duties of the Security Services of the United Kingdom that they act in accordance with the law. In our experience the Security and Intelligence Services of the United Kingdom are conspicuous in their adherence to this principle and these duties. The adherence to principle and duty ensures public confidence in operations that must, for their effectiveness, often be carried out in secret. Thus, when the decision is made by the court, subject to any appeal, they must abide by that decision even if they disagree with it. If a decision is made by the prosecutor to proceed, then the Security Services and the police must provide to the prosecutor all the assistance the prosecutor requires. It is part of their duty to abide by the rule of law and the constitutional principles we have set out.

(e) Importance of the principles in relation to review

[63]The decision of the court to hear evidence in camera or to withhold information from the public and/or the press is, as we have set out, subject to continuous review during the trial in the light of any changes in circumstances and to review at the conclusion of the trial.

[64]For example, if a person is convicted, the reasons for maintaining the restriction may no longer be applicable: an example is R v Marine A and others [2104] 1 WLR 3326 at paragraphs 26, 27 and 110 -120.

[65]Thus during the trial and at the end of the trial of Incedal, the judge was, quite apart from the specific order of 4 June 2014 (set out at paragraph 25 above), bound to review the initial decision and whether the reasons for the withholding of the evidence from the press and public remained good and continued to necessitate a departure from the principle of open justice. Indeed, as we have already said, during the course of the trial, information/evidence initially heard in camera was on occasions made available to the public.

[66]We appreciate that such a duty imposes a very substantial burden on the trial judge. In most cases, the judge will be able to discharge this duty with the assistance of trial counsel for the prosecution and for the defendant(s). However, there are some cases, of which the present case involving issues of national security may be an example, where the judge would be greatly assisted by an independent lawyer assigned to provide assistance in the same way as in the present case both the judge and this court were assisted by counsel for the media parties; that has only occurred because of the unprecedented circumstances in which accredited journalists heard the evidence on the core issues given in camera. We would expect assistance by an independent lawyer cleared to the appropriate level of security to be provided to a judge where such assistance was requested by the judge.

(f) The presence of journalists during the trial

[67]As a result of the order of 4 June 2014, as we have explained above, accredited journalists were present under strict conditions at some parts of the trial from which other journalists and the public were excluded.

[68]We have no doubt from our review of the course of the trial that the presence of the accredited journalists during significant parts of the trial made the management of the trial very much more difficult than if the trial had been conducted, as is conventional in such cases, with part in public and part in camera in the absence of any representatives of the media. We would wish to pay an especial tribute to the way in which this trial was managed by the trial judge in consequence of the order; he conducted the trial and made the very difficult decisions which arose with conspicuous skill and ability.

[69]It was not possible for this court to have foreseen these difficulties, but the experience of the way in which it affected the conduct of the trial leads us to the firm conclusion that a court should hesitate long and hard before it makes an order similar to that made by this court on 4 June 2014 given the unexpected effect it had on the conduct of the trial. (2).

(a) The countervailing considerations

[70]It is clear that there is a strong public interest in the evidence heard in camera in the presence of the nominated journalists being placed in the public domain: i) The offences with which Incedal was charged were serious offences. ii) He was sentenced to a significant term for the offence of which he was convicted. iii) The evidence which might explain why he was acquitted on the more serious offence is not known to the public. iv) As with all cases involving allegations of terrorism, there is a strong public interest in understanding the role of the counter terrorism branch of the police and of the Security and Intelligence Services, provided that what is made public does not materially compromise the effectiveness of their role or otherwise might damage national security v) Whereas the prosecution, the Executive and those representing a defendant might all have the same or different reasons, depending on the circumstances of the case, for keeping matters out of the public domain, the press performs the vital role of protecting the public interest.

[71]The prosecution relies on the Certificates of the Secretaries of State and other statements. The detail of the reasons why national security would be seriously affected by a decision to make public a significant part of what was heard in camera were in documents in part considered at hearings to which the media were present and in part in closed sessions, as we have already said: see paragraphs 33 to 35 above. The determinative essence of the case made by the prosecution for the continuation of the withholding of the evidence was in any event “gisted” for the media parties.

(b) Our decision

[72]We have scrutinised the reasons with great care. As Maurice Kay LJ expressed the position in another case, in which the Security and Intelligence Services and the operation of the policy of “neither confirm nor deny” (NCND) were involved, Home Secretary v Mohamed (formerly CC)

[2014] 1 WLR 424

at paragraph 20:

“It is not simply a matter of a governmental party to litigation hoisting the NCND flag and the court automatically saluting it. Where statute does not delineate the boundaries of open justice, it is for the court to do so.”

[73]We are quite satisfied from the nature of the evidence for reasons which we can only provide in a closed annex to this judgment that a departure from the principles of open justice was strictly necessary if justice was to be done. It was in consequence necessary that the evidence and other information heard when the journalists were present was heard in camera.

[74]Because of the nature of that evidence those reasons continue to necessitate a departure from the principle of open justice after the conclusion of the trial and at the present time.

[75]This has the consequence that any public accountability for matters relating to the prosecution cannot be achieved through the press in its function as “watchdog” of the public interest. However, as the issues relate to terrorism and those charged with combatting it, it will be open to the Intelligence and Security Committee of Parliament to consider any issues it considers need to be examined and for any public accountability to be achieved in that way.

Outcome

[76]For the reasons we have given, the appeal is dismissed.

OBSERVATION

[77]It remains likely that judges will for some time be faced with determining applications for parts of trials to be held in camera for reasons of national security and that there will be appeals to this court.

[78]Usually where courts have to determine issues that are similar, a court will try to achieve a consistency of approach by referring to previous decisions. In cases of this kind, whilst the judgments given in open court are a matter of public record and can be referred to, the closed judgments which contain the detailed reasons why the court has decided that the evidence should be heard in camera are not retained within the court files or, as far as we have been able to ascertain, in any specified place within the court.

[79]This is not satisfactory. A court ought to be able to refer to earlier decisions to achieve consistency and take advantage of the experience to be derived from the way in which the issues were approached. Furthermore, for the reasons we have explained, it must always be a possibility, that at a future date, disclosure will be sought at a time when it is said that there could no longer be any reason to keep the information from the public, including this court’s reasons for upholding the decision of the trial judge.

[80]We have therefore asked the Registrar of this Court to form a working party from those interested in these matters to advise the Court of Appeal, Criminal Division on the course of action it should adopt.