First trial to be held in secret: Closed terror case branded ‘outrageous assault’ on open justice…

Chris Greenwood — Daily Mail June 4, 2014

Scales of justiceA trial is to be held entirely in secret for the first time in British history.

Two men accused of a terror plot will go into the dock at the Old Bailey in weeks.

For undisclosed reasons of national security their identities, as well as details of their alleged crimes, will not be heard in public.

The very existence of the trial can be disclosed today only because the Daily Mail fought with other media groups to have the reporting restrictions lifted.

The casting aside of the centuries-old doctrine of open courts sparked anger last night.

‘To hold trials entirely in secret is an outrageous assault on the fundamental principles of British justice,’ said Clare Algare of Reprieve.

‘This Government’s dangerous obsession with secret courts seems to know no bounds. Unless it is resisted, we risk ending up with a justice system that will not be worthy of the name.’

Keith Vaz, Labour chairman of the Commons home affairs committee, said: ‘For a parliamentary democracy with our reputation for a fair legal system, this sets a very dangerous precedent.

‘For an entire trial to be heard in camera, this is unprecedented, very serious and worrying.’

The Court of Appeal was urged by the media groups’ lawyer to restrict the secrecy order because it represented a ‘totally unprecedented departure from the principles of open justice’

Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett said they would make a decision within days.

The Mail has campaigned to expose the threat to democracy and openness that secret courts represent. There has been huge controversy around closed family courts, super injunctions and civil cases involving national security.

Prior to yesterday, the media was banned from even reporting that the trial of the two men, known only as AB and CD, was due to take place in conditions of total secrecy.

AB is accused of ‘engaging in conduct in preparation for terrorist acts’.

Both men are accused of possessing terrorist documents, including a file named ‘bomb making’ held on a memory stick. CD faces a fourth charge under immigration laws of improperly obtaining a British passport.

Senior prosecutors claim the trial may not go ahead if it has to be held in public.

But they have refused to disclose publicly the need for total secrecy.

Anthony Hudson, representing the media organisations, branded this position ‘unreasonable’ and ‘unrealistic’.

He said national security should not be pursued without regard for the values of the society it is trying to protect.

‘This appeal raises important issues relating to not only the constitutional principle of open justice, but also the equally important principle of fairness and natural justice,’ he added.

‘This case is a test of the court’s commitment to that constitutional principle in the admittedly difficult and sensitive cases where the state seeks to have trials involving terrorism heard in secret and relies in support of that on the grounds of national security.

‘It is unprecedented that the trial of two defendants charged with serious terrorism offences should take place entirely in private with the identities of both defendants withheld.

‘No order has ever been made which requires an entire criminal trial to be held in private, with the media excluded and defendants anonymous.’

Commenting on the case, Shami Chakrabarti of Liberty said transparency was not ‘an optional luxury in the justice system’.

She added: ‘This case is a worrying high water mark for secrecy in our courts.

‘There must be clearer explanations before the door is shut on press and public.’

Criminal cases are heard in open courts which the public and media can attend.

Reporting restrictions sometimes cover specific parts of cases, but no previous trial has been held entirely in secret.

The Official Secrets Act enables cases to be heard behind closed doors but the legislation is rarely used in this way.

The power to hold a trial in secret comes from common law and is not covered by recent terrorist legislation.

Richard Whittam QC, who will prosecute the two men, said the Crown Prosecution Service supported open justice.

But he said ‘exceptional circumstances’ had led to the request for secrecy.

In 2008, the Old Bailey heard parts of a murder trial in secret on grounds of national security.

But the defendant, Wang Yam, who battered recluse Allan Chappelow to death, was named and most of the case was heard in public.

The trial of Britain’s most notorious double agent, George Blake, was held partly in secret in the early 1960s.

Charged under the Official Secrets Act, he was sentenced to 42 years for passing secrets to the Soviets.

Last year, the president of the Supreme Court launched a stinging attack on secret justice, saying it is ‘not justice at all’.

Lord Neuberger said hearing evidence behind closed doors was ‘against the principle of justice’.

He said that other than in exceptional circumstances judges should treat requests to hear cases in closed courts with ‘distaste and concern’.

His comments came after a bitter row over Government plans to introduce the Justice and Security Act.

This formally enshrined secret hearings and judgments in the legal system, a radical departure from centuries of tradition.

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