Guardian News And Media Ltd & Ors v R. & Incedal

A court may depart from open justice in a national-security criminal case only where the departure is strictly necessary for justice to be done. The court must determine necessity for itself by examining the evidence or material and the effect of public disclosure. The prosecutor’s view that a prosecution may not continue if disclosure is ordered cannot determine that question.

The court must give the highest regard to an evidentially based ministerial assessment of national security. It nevertheless remains responsible for deciding whether that interest necessitates a closed hearing or reporting restriction. Any restriction must be no wider than necessary and is subject to review during and after trial.

Guardian News and Media Ltd and other media organisations appealed under section 159 of the Criminal Justice Act 1988 against Nicol J’s refusal, on 1 April 2015, to relax reporting restrictions applying to the private parts of Erol Incedal’s terrorism trial.

An earlier Court of Appeal order had allowed limited parts of the trial to be heard in public, permitted accredited journalists to attend much of the remaining private evidence under confidentiality undertakings, and required review after trial: [2014] EWCA Crim 1861. Incedal was convicted of one document-possession count, but acquitted after retrial of the more serious preparation-of-terrorist-acts count.

The central issue was whether the conclusion of the proceedings removed the necessity for withholding from publication evidence heard in camera.

1. The appeal was dismissed. Having independently scrutinised the evidence, including material considered in closed session, the court held that continuing to withhold the evidence heard in camera was still strictly necessary for justice to be done.
2. Open justice is fundamental to the rule of law and democratic accountability. The common-law exception is narrow: a departure must be supported by a very clear case, be necessary in the particular circumstances, and go no further than necessity requires. That approach followed Scott v Scott [1913] AC 417 and A-G v Leveller Magazine [1979] AC 440.
3. In a national-security case, the DPP independently decides whether to prosecute. Where the DPP seeks an in-camera hearing, however, the court alone decides whether the evidence should be heard publicly. It must assess the nature of the evidence and the consequences of disclosure. It must not decide necessity by reference to a possibility that the DPP will otherwise discontinue the prosecution. The prosecutor decides whether to continue only after the court’s ruling.
4. The court should attach the highest regard to a Secretary of State’s evidentially based assessment of national-security interests. The constitutional responsibility for deciding whether those interests justify a derogation from open justice nevertheless remains with the court. If the court permits public evidence and the DPP continues the prosecution, the Executive must provide the assistance and evidence required by the prosecution.
5. A closed-hearing or reporting order is subject to continuing review during trial and review at its conclusion. The attendance of accredited journalists under binding confidentiality did not compromise the private character or legal validity of the hearing. The court observed, however, that such arrangements made trial management materially more difficult and should be adopted only after considerable hesitation.
6. The court concluded that neither Incedal’s acquittal on the more serious count nor the end of the trial removed the national-security grounds for the restrictions. Public accountability could instead be pursued, where appropriate, through the Intelligence and Security Committee of Parliament.

• Court of Appeal (Criminal Division): The media parties’ appeal under section 159 of the Criminal Justice Act 1988 was dismissed: [2016] EWCA Crim 11.
• Central Criminal Court (Nicol J): On 1 April 2015, the judge dismissed the media parties’ application to vary reporting restrictions affecting the private parts of Incedal’s trial.
• Court of Appeal (Criminal Division): On an earlier section 159 appeal, the court varied the in-camera order to permit limited public hearings, discharged the defendants’ anonymisation and the section 4(2) reporting-postponement order, but retained reporting restrictions for the private core of the trial: [2014] EWCA Crim 1861; [2015] 1 Cr. App. R 4.