Guardian News And Media Ltd v Incedal & Anor

Open justice is a fundamental common-law safeguard. A departure in criminal proceedings, including a hearing in camera, requires a fact-specific necessity and proportionality assessment. The departure must go no further than necessary.

National security alone is insufficient. A private trial may be justified where there is a serious possibility that an open hearing would frustrate the administration of justice, including by deterring a prosecution which ought otherwise to proceed. The court makes that decision, while giving proper weight to a ministerial assessment.

Defendant anonymity requires a separate and clear justification. Speculative flexibility about later publication will not suffice. Postponement under section 4(2) of the Contempt of Court Act 1981 likewise requires necessity to avoid a substantial risk of prejudice.

The defendants faced terrorism-related charges, together with an alleged false-identity-document offence. On 19 May 2014 Nicol J ordered that their entire trial be held in camera, that they remain anonymous, and that reports of the open part of that hearing and judgment be postponed.

A group of media organisations appealed under section 159 of the Criminal Justice Act 1988. The appeal was heard afresh, partly in open court, partly in private, and to a limited extent ex parte. The court considered the permissibility and extent of a private terrorism trial, the defendants’ anonymity, and the reporting postponement under section 4(2) of the Contempt of Court Act 1981.

1. The media appeal was allowed in part. The court upheld the necessity for the core of the trial to be held in camera, but varied the order to minimise the departure from open justice. It allowed the appeals against anonymisation and against the section 4(2) postponement order.

2. Open justice is a fundamental feature of the rule of law. Exceptions are rare, must be justified by the facts, and must be necessary and proportionate. National security does not itself justify departure. However, where there is a serious possibility that an open hearing would frustrate the administration of justice, including by deterring the Crown from continuing a prosecution which ought to proceed, a private hearing may be justified. The court decides that question, although it will not lightly depart from a ministerial national-security assessment.

3. On the closed and private material, the risk of frustration of justice was overwhelming. A split trial was unrealistic. The core therefore had to be heard in camera. Yet the jury being sworn, the charges, parts of the judge’s introduction and prosecution opening, verdicts, and any sentencing were to be public insofar as consistent with the order. Up to ten accredited journalists could attend private parts subject to confidentiality, preserving scrutiny even though contemporaneous reporting was restricted. Publication was to be reviewed at the trial’s conclusion.

4. An in-camera hearing is a departure from open justice, not natural justice. The defendants retained the right to know and challenge the full case. The Court of Appeal could consider ex parte material lawfully considered below. Its power arose by necessary implication from section 159(5)(b) of the Criminal Justice Act 1988, reinforced by the relevant Criminal Procedure Rules; the fresh nature of the appeal did not preclude that course.

5. Anonymity was not justified once the core trial was private. A possible benefit of preserving flexibility for later publication was too speculative. The court expressed grave concern about the cumulative effect of a wholly or largely private criminal trial and defendant anonymity.

6. There was no demonstrated need for postponement under section 4(2) of the Contempt of Court Act 1981 in respect of the open appeal hearing or Nicol J’s open judgment. Statutory reporting restrictions applicable to preparatory hearings under the Criminal Procedure and Investigations Act 1996 nevertheless remained relevant to the earlier hearing.

• Court of Appeal (Criminal Division) — Allowed the media organisations’ appeal in part, varied the in-camera order, and set aside the anonymity and section 4(2) postponement orders: [2014] EWCA Crim 1861.
• High Court — Nicol J had ordered on 19 May 2014 that the entire criminal trial be held in camera, the defendants be anonymised, and reporting of specified open proceedings be postponed.