Secret trials are an aberration of British justice. Trust the judges and not the executive

6 Jun 2014 at 11:29

One of the cornerstones of British justice is that it is transparent. In other words secret trials are an abhorrence. As there will be much wailing and gnashing of teeth by the press about a terrorist trial which may be heard in secret it might be helpful to set out the law which is very, very clear.

According to Blackstone’s criminal practice 2014.
“The exercise of the power in common with any other derogation from the principles of open justice should be strictly confined to cases where the public’s presence would frustrate or render impractical the administration of justice.”

In Re TIMES newspapers (2009) it was held that the power should only be used in ‘exceptional circumstances……a last resort’.
And in YAM (2008) Lord Chief Justice Phillips went further,
“Interests of justice can never justify excluding the press and the public if the consequences would be that that trial was unfair”.

In R v Malik (2007) it was held that there is as ‘fundamental presumption of open justice’.

The process for applications are set out in the Criminal Procedure rules. The application will be in private and usually relates to national security, or where a person has assisted in an investigation, ie, a supergrass.

So to make an application the Prosecution has to jump through enormous hoops with a legal presumption against them.

Such trials are a rarity and rightly so. Only the most senior and experienced High Court judges can rule on this.

But there is a danger. The security services are hardly experienced in fair play, nor should they be. Their job is to protect us. But so is an independent judiciary who are not in the pockets of the government of the day. And they have a very good track record. Remember the super gun trial where innocent men were to be hung out to dry? The judiciary intervened. Remember the royal butler Paul Burrell accused of theft where the prosecution did not want to disclose the role of the Queen? The judiciary intervened.

I trust our judges to do the right thing more than any arm of the executive. If this trial is to be held in secret it must not be the beginning of a trend. Pleading national security must be backed by hard evidence