A & Ors, R v

An appeal against an order restricting public access to criminal proceedings under Criminal Procedure Rules 2005, r 67.2, must be determined without an oral hearing. The word “shall” bears its ordinary mandatory meaning. That procedure is compatible with article 6 where the appeal concerns whether an exceptional, justified departure from open justice should continue.

A notice seeking an in-camera hearing is sufficient if, read in its context, it gives affected persons a proper opportunity to address the application. An in-camera order may be upheld where a substantial risk to national security and the administration of justice is established, provided the departure from open justice is confined to what is necessary and the defendant remains able to hear and use the material at issue.

A was to stand trial with others for conspiracy to cause explosions in the United Kingdom. Following his arrest after detention in Pakistan, he alleged torture and involvement by British, American and Pakistani intelligence authorities. His proposed abuse-of-process and evidential challenges made material concerning his treatment abroad relevant.

On 28 November 2005, Sir Michael Astill ordered that the parts of the pre-trial process and trial referring to specified disclosed material should be heard in camera. The defendant, his legal representatives, co-defendants and jury would nevertheless have access to the evidence. The defendant and media organisations sought leave to appeal under section 159 of the Criminal Justice Act 1988.

The central issues were whether the appeal could be decided without an oral hearing under rule 67.2, and whether the narrowly drawn in-camera order was justified.

1. Appeal dismissed. Leave was granted to both the defendant and the media appellants because the restriction on open justice and the subject matter warranted the Court’s own examination of the order.

2. The notice under rule 16.10(1) of the Criminal Procedure Rules 2005 was sufficient. Its purpose was to permit those affected to decide how to respond. In its context, including the other material and submissions, it made clear that national security and witness protection were engaged. Any residual need for particulars should have been raised before the trial judge.

3. Rule 67.2 governed this appeal because the order restricted public access, not reporting of proceedings. Its requirement that leave applications and appeals “shall” be determined without a hearing was mandatory. Written submissions could be considered, but the Court had no discretion to order an oral hearing. That conclusion did not infringe article 6 of the European Convention: unlike a determination of guilt or sentence, the appeal concerned whether the exceptional conditions justifying a closed hearing existed. If the order were wrong, the material would be heard publicly at trial.

4. The Court nevertheless conducted a rehearing on the merits and formed its own judgment on the available material. The absence of an oral hearing did not prevent that review.

5. The defendant’s entitlement to attend his trial did not make the limited order irrational. Criminal justice required that he and his advisers could hear and use material that might assist his defence. That necessary disclosure to the defence did not require general publication to the public.

6. The material unequivocally established a substantial risk of prejudice to national security and the administration of justice if it were aired publicly. The order was no wider than necessary. It allowed potentially helpful material to be disclosed to the defendant while avoiding a risk that the prosecution would have to discontinue. The trial could therefore proceed fairly.

The Court also gave prospective guidance that, where sensitive ex parte proceedings have been tape-recorded and an appeal is contemplated, the trial judge should check the transcript against recollection and notes before it is sent to the Court of Appeal.

• Court of Appeal (Criminal Division): Leave to appeal was granted to the defendant and the media appellants; the appeal against the in-camera order was dismissed: [2006] EWCA Crim 4.
• Central Criminal Court: On 28 November 2005 Sir Michael Astill, sitting as a Deputy High Court judge, ordered that specified parts of the pre-trial process and trial be heard in camera.