As summarised in an earlier post, last week the English Court of Appeal (Criminal Division) gave its decision in Guardian News and Media Ltd v AB and CD (“the Decision”). As part of that Decision, the Court of Appeal removed the Defendants’ anonymity and enabled parts of the impending trial to be heard in public, whereas the first instance judge had ordered the Defendants’ anonymity and that “[t]he entirety of the criminal trial of the Defendants should be in private (i.e., with the public and media excluded) and the publication of reports of the trial should be prohibited.” (§7). A few preliminary observations on this follow:

  1. The 12 June document is the Court of Appeal’s decision not a judgment: “in the course of the hearing before us on the 4th June, we indicated that we would give our Decision as soon as possible, with fully reasoned Judgments to follow in due course. The present document contains our Decision.” (§9). For the significance of this, see my third point, below.
  2. The merits of the Decision on the particular facts are debateable. The Decision has been considered by the media: for example, by Simon Israel (Channel 4) as “in effect a score draw” and by Joshua Rozenberg (Guardian) as striking a correct balance between security and secrecy. However, in my opinion, what is interesting and significant about this case is not so much the outcome on these particular facts but rather whether this case will provide any sort of principled precedent for future cases. That leads to my next point.
  3. It is the Court of Appeal’s reasoning (in the awaited judgments) which is potentially of far-reaching significance and which will require careful scrutiny. That there are exceptions to the principle of open justice, including national security concerns, is uncontroversial (§§3-5). More difficult issues arise out of the following passage,

“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 should do so, a departure from open justice may be justified. 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.” (§5(ii)-(iii)))

This passage, and the Decision more generally, gives rise to some difficult questions of general significance regarding security and secrecy. It would be rather unfair to criticise the Decision until the Court of Appeal have had an opportunity to explain their reasoning in the anticipated judgments. However, the position they have adopted does raise some concerns regarding certain key questions. For example,

  • Should defendants/the media be entitled to see all of the evidence relied on by the Crown in support of the need for privacy in a criminal case and should they be entitled to make submissions on such evidence? In this case both the first instance judge and the Court of Appeal received evidence which was not made available to the Defendants/media applicants and which they considered during ex parte hearings, from which the Defendants and the media were excluded:

“The [Crown’s] application was supported by Certificates (“the Certificates”), setting out the reasons relied on in support, signed by the Secretary of State for the Home Department… and the Secretary of State for Foreign and Commonwealth Affairs.. Further material was provided in Schedules to the Certificates… The Certificates but not the Schedules were provided to the Defendants and their legal representatives and to the legal representatives of the media, on terms as to confidentiality. The Judge heard part of the application in open court. He then heard part of the application in private, i.e., in the presence of the Defendants, their legal representatives and the media’s legal representatives. All had access to secret material relied upon in support of the application. Finally, the Judge considered further material in the absence of all except the Prosecution (“the ex parte hearing”). We followed the same course – i.e., part of the hearing in open Court, part of the hearing in private and part (a very small part) ex parte… When we come to produce our full Judgments, there will be an Open Judgment, a Private Judgment and an Ex Parte Judgment.”(§§10-12).

  • Should open justice give way where there is a serious possibility/significant risk that the administration of justice will be frustrated or should the bar be higher – i.e. should open justice only give way where the administration of justice will be frustrated? There are two aspects to this. First, there is a principled aspect – how serious must the threat to the administration of justice be before open justice will give way? The Court of Appeal were satisfied that open justice should give way where there is a serious possibility/significant risk that the administration of justice would be frustrated (§§5(ii) and 14). Secondly, if (and it is not a small if) this is the proper standard then what, evidentially, is needed to satisfy it? In particular, given the facts of this case, should it have been necessary for the Crown to show that without the privacy it sought it would have been deterred from prosecuting the case or would it be sufficient for the Crown simply to have shown that it might be so deterred. It is arguable (to say the least) that, given the importance of open justice, the former evidential standard is the appropriate one. Unhelpfully, the Decision is ambiguous: it appears to require the Crown to show that it would be deterred in the passage when the Court of Appeal describe the principles: “for example, by deterring the Crown from prosecuting a case where it otherwise should do so” (§5(ii), emphasis added), but the standard slips by the time the Court of Appeal come to giving their conclusion on the facts: “on the material we have seen, the Crown might be deterred from continuing with the prosecution.” (§14, emphasis added).
  • What scope is there for judicial deference in relation to such evidence (i) in the context of the principle of open justice vis-a-vis criminal proceedings and (ii) where a major part of the analysis requires a (justiciable) assessment of the threat to the administration of justice? The Decision is not clear on this (“in the field of national security, a Court will not lightly depart from the assessment made by a Minister”, §5(iii))