On Secret Trials
Jeremy Bentham said that secrecy was an instrument of conspiracy and ought never to be the system of regular government. The reason why can be no more eloquently captured than by Toulson LJ in the recent case of R (Guardian Newspapers) v City of Westminster Magistrates Court  EWCA Civ 420:
“Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves?”
The proposals for secret trials go to the heart of these weighty questions. It would be the erosion of a fundamental tenet of how our society exists. The reasons behind the proposals need to be considered and the question asked: when government proposes such a radical usurpation of open justice do their arguments withstand scrutiny?
The Prime Minister’s position is expressly this:
“As I see it, there are some significant gaps in our defences, gaps because of the moving on of technology – people making telephone calls through the internet, rather than through fixed lines. There are also gaps in our defences because it isn’t currently possible to use intelligence information in a court of law without sometimes endangering national security.”
This is simply not correct. Under the Regulation of Investigatory Powers Act 2000 there is no legal differentiation between how a communication is sent before the intelligence agencies can intercept it. The question is always whether, at the time it was intercepted, was it in “the course of its transmission”.
It is worth remembering that RIPA 2000 does not treat telecommunications evidence the same. If a listening device in a car, picks up a telephone conversation via a hands-free system, that is not an interception of a communication (even though the government’s Code of Practice suggests it might be) – nor is a telephone conversation that is overheard or recorded independently of the communications system. Equally an employer or organisation which operates a private communications system can consent to the telephone calls taking place over that system being routinely listened to.
As to the use of intercepted product, the prohibition relates generally to the exclusion of its use in legal proceedings but again, there are a number of exceptions – most recently for public inquiries (as in the case of the 7/7 inquiry) – but also in certain circumstances proceedings in the relatively low level Employment Tribunal. There remains a prohibition on criminal proceedings – it is often flouted and abused by all parties to the proceedings – perhaps most perniciously by defendants. A number of prosecutions have collapsed as a result of the problems the prohibition creates.
Of course the absurdity of the current legal regime is that intercept from foreign jurisdictions is admissible in British criminal trials.
The Deputy Prime Minister’s position also demonstrates a disconcerting ignorance of the law in this area. He is reported as stating that it is a matter for judges as to whether they go into private session. The problem with his stance is that the Supreme Court in Al Rawi v Security Service  UKSC 34 has said if the government wants secret hearings it a matter for the legislature, not judges.
The arguments about the state of English law as a basis for advancing these draconian proposals simply do not add up. But there have been glimpses of the real reason behind the approach from the Justice Secretary Ken Clarke:
“I can’t force the Americans to give our intelligence people full cooperation – if they fear our courts, they won’t give us the material. Sometimes national security demands that you have to give a guarantee of complete confidentiality to third party countries – and not just the Americans”.
This is really evidence not of the need for secret hearings but of the imbalance of our relationship with the United States. There is a dearth of reported decisions where the issue of the disclosure of US intelligence has caused disclosure issues although the case of Binyam Mohammed is a clear example of where the issue has arisen. This it seems is the real reason behind the proposal to hold secret hearings so that intercept product can be heard in the absence of suspects.
However the government appears to have forgotten about the Privy Council report on the question of using intercept as evidence in 2008 (Cmnd 7324), which concluded that a limited number of new successful prosecutions would be made possible by the use of intercept as evidence. This conclusion, which was based on an empirical study by leading prosecutors, sits uneasily alongside an argument that our whole system of justice should change because of concerns from the United States about the protection of its sources.
The system of special advocates, recognised as a practical and effective compromise by British judges and the European Court of Human Rights which balances the competing interests of the State (including its foreign allies) and the individual has been able to accommodate the pressures ably since they were introduced over ten years ago.
There is a sobering warning about how these proposals can be abused in practice. The case of R (BSkyB) v Central Criminal Court  EWHC 3451 (Admin) is the classic example. A broadcaster was requested to produce communications exchanged between one of its journalists and a source. The judge held a secret hearing. BSkyB challenged the legality of this. On judicial review, Moore-Bick LJ, quashed the order stating:
“Here there was a failure to observe a fundamental principle of law bearing directly on the fairness of the proceedings, a matter which the court should be very slow to condone. Moreover, however carefully the judge considered the secret evidence, that can be no substitute for allowing B Sky B to challenge it, for the reasons given by Lord Kerr in Al Rawi”
However, the real significance of the judgment is the comments that follow on the whole premise of the investigation that related to alleged breaches of the Official Secrets Act. The court said:
“The information sworn in support of the application did not contain any evidence tending to indicate that either suspect was either a member of the security or intelligence services or had been formally notified that he was subject to the provisions of section 1(1) of the Act and, despite requests from B Sky B for clarification, no case to that effect was ever advanced at the hearing. Nor, despite the references in the information to military operations at home and abroad, did the Commissioner seek to establish that there were grounds to suspect an offence under sections 2 (defence) or 3 (international relations). In the end, therefore, it all came down to section 1(3) and the critical questions were whether there were reasonable grounds to suspect that there had been a disclosure of information relating to security or intelligence that might cause damage to the work of, or to any part of, the security or intelligence services, or a disclosure of the kind of information that would be likely to cause such damage or which fell within a class or description of information the unauthorised disclosure of which would be likely to have that effect”.
It is not difficult to comprehend that had the original application been heard in secret that justice was likely to have miscarried. This is where we all have to reflect on how we respond when our government seeks to erode our most basic rights. Otherwise we may find ourselves like, Kafka’s Joseph K, “without having done anything wrong (being) arrested one fine morning” and when he asked for what is I am to be arrested for, is told “we are not authorised to tell you that”.
The sober reality is that coining terms like intelligence, source protection, the threat to national security obfuscates substance and is an attempt to comfort the public that there is, even if that cannot be told, good reasons for the proposals. Such comfort will seem a cold and distant memory if one fine morning, the State comes for you and your pleas for justice cannot be heard because the door to open justice has been firmly closed.