Yam, R. v

Criminal Procedure Rules 2005, r 65.6(3), requires an application or appeal against an order restricting public access to a trial to be determined without a hearing. The rule is compatible with Articles 6 and 10 of the European Convention on Human Rights.

Rule 16.10 is procedural only. It does not itself confer power to sit in camera. The Crown Court retains an inherent power to exclude the press and public where the interests of justice require it, but never where exclusion would prevent a fair trial.

The applicant was due to stand trial at the Central Criminal Court for murder and dishonesty offences. Ouseley J ordered that the public be excluded from part of the proceedings. He gave an open judgment and a private judgment.

The applicant sought leave to appeal. He challenged the decision to determine the application on the papers and contended that the asserted risks did not justify a private hearing or the resulting restriction on open justice.

1. The application for leave to appeal was refused. Rule 65.6(3) of the Criminal Procedure Rules 2005 required the court to determine the application without a hearing. The court followed Ex parte A, [2006] EWCA Crim 04, which held that the rule was compatible with Articles 6 and 10 of the European Convention on Human Rights and with the common law. The court was satisfied that the documents, including written submissions from both sides, permitted a fair determination.
2. Rule 16.10 did not confer a substantive power to hold a trial, or part of it, in camera. It prescribed the procedure for seeking such an order and proceeded on the basis that national security or protection of identity could justify one.
3. Section 8(4) of the Official Secrets Act 1920 did not apply to this prosecution. Its preservation of other powers was consistent with the Crown Court's inherent power to exclude the press and public when the interests of justice required it. That jurisdiction could not be exercised if exclusion would make the trial unfair.
4. Having considered the material and the in-camera hearing record, the court upheld the judge's assessment that public disclosure would create sufficiently serious risks that the prosecution might otherwise be abandoned. Excluding the public from the identified parts would avoid those risks while permitting a fair trial. The judge had therefore correctly applied the law to the facts.

• Court of Appeal (Criminal Division): application for leave to appeal against a restriction on public access refused.
• Crown Court: Ouseley J ordered on 15 January 2008 that the public be excluded from part of the forthcoming trial.