Criminal law

Guardian News and Media Ltd v AB CD  12 June 2014

Descriptive name –  Criminal law – Trial – Open court – Defendants being charged with offences related to terrorist activity – Crown applying for order that trial be held in private and defendants remain anonymous – Judge granting application – Applicant newspaper appealing – Whether judge erring – Contempt of Court Act 1981, ss 4(2), 11.

The Crown applied for an order that the trial should be held in private in its entirety and that the defendants should remain anonymous. The application was supported by the Secretary of State for the Home Department and the Secretary of State for Foreign and Commonwealth Affairs. The Secretaries of State suggested that a small number of accredited journalists might be invited to attend the bulk of the trial (subject to certain exclusions) on terms which compelled confidentiality until review at the conclusion of the trial and any further order.  Part of the application was held in open court, part was heard in private (namely in the presence of the defendants, their legal representatives and the media’s representatives) and part was heard in the absence of all but the prosecution (the May hearing). The court ordered that: (i) the entirety of the criminal trial should be in private and the publication of reports of the trial be prohibited; (ii) the names and identities of the defendants were to be withheld from the public and publication of their names/identities in connection with the proceedings was to be prohibited; and (iii) publication of reports of the hearings in open court that had led to the order and the open judgment handed down on that day was to be postponed until the conclusion of the trial or further order (the order). The order was made by the judge pursuant to his common law powers together with those contained in ss 11 and 4(2) of the Contempt of Court Act 1981. The applicant newspaper, pursuant to s 159 of the Criminal Justice Act 1988, was granted leave to appeal from the order and contended that it be set aside.

The court ruled:

(1) A defendant’s rights were unchanged whether a criminal trial was heard in open court or in camera and whether or not the proceedings might be reported by the media. No departure from the principle of open justice was to be greater than necessary (see [15], [16] of the judgment).

On the evidence, there was a significant risk, or at the very least a serious possibility, that the administration of justice would be frustrated were the trial to be conducted in open court. On the material, there appeared to be good reason from the Crown being deterred from continuing with the prosecution. It was unreal to contemplate a split trial with the core of the trial being split into open and in camera hearings. As a matter of necessity, the core of the trial had to be heard in camera. However, there would be no risk to the administration of justice were the following elements of the trial to be heard in open court: (i) swearing in of the jury; (ii) reading of the charges to the jury; (iii) at least part of the judge’s introductory remarks to the jury; (iv) at least part of the prosecution’s opening; (v) the verdicts; and (vi) if any convictions resulted, sentencing (subject to any further argument before the trial judge). Further, the position as to publication was to be reviewed at the conclusion of the trial, thus permitting (if needed) a further application for leave to appeal under s 159 of the 1988 Act. The court indicated that: (i) a small number of accredited journalists drawn from the media parties to the proceedings; (ii) notes could be made if the journalists so chose but could not be taken away at the end of the day or session - they would be securely stored until the end of the trial; (iii) a transcript of the proceedings (excluding the ex parte areas) would be available for review at the conclusion of the proceedings in connection with any further consideration of publication; and (iv) an order should be tailor made to deal with the situation as the matter could not be encompassed within any order made under ss 4(2) or 11 of the 1981 Act (see [14]-[16], [18], [19], [24] of the judgment).

(2) It was difficult to conceive of a situation where the departure from open justice of both holding a criminal trial in camera and anonymisation of the defendants would be justified (see [21] of the judgment).

On the footing that most of the trial was to be conducted in camera, the court was not convinced that there was a risk to the administration of justice that warranted anonymisation of the defendants. Properly understood, the Crown’s material did not support that outcome provided that the bulk of the trial was in camera. Accordingly, naming of the defendants would be permitted. There was no justification in the present case for departing from open justice to the extent that the bulk of the trial would be in camera and the defendants would be anonymised (see [20], [21], [24] of the judgment).

(3) The order under s 4(2) of the 1981 Act in respect of that part of the May hearing which took place in open court and the open judgment given by the judge on that day had not been justified. The May hearing had been a preparatory hearing and subject to statutory reporting restrictions. Therefore, the applicant’s success might be limited at least so far as it related to the open part of the May hearing. However, the open judgment that followed the May hearing was no longer subject to any order under s 4(2) of the 1981 Act (see [23], [24] of the judgment).

Per curiam: ‘… (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, by deterring the Crown from prosecuting a case where it otherwise would 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.’ (see [5] of the judgment).                         

Anthony Hudson and Ben Silverstone (instructed by the in-house solicitor, Guardian News and Media Ltd) for the applicant.

Henry Blaxland QC and Richard Thomas (instructed by Birnberg Pierce and Partners) for AB.

Naeem Mian (instructed by GT Stewart Solicitors) for CD.

R Whittam QC and Stuart Baker (instructed by the Crown Prosecution Service) for the Crown.

Charlotte Hennessey   Solicitor (non-practising).

The defendants were due to be tried for terrorism related offences. The court ordered that the entirety of the criminal trial be held in private and that the defendants would remain anonymous. Further restrictions were placed on reporting the hearing and judgment that had resulted in that order having been made. The Court of Appeal, Criminal Division, ordered that, although the core of the trial should be in private, part would be held in open court. Further, the anonymity orders would be lifted and, finally, the order that had prohibited reporting of the earlier proceedings had not been justified.