Ali, R. v

An ex parte notification hearing in a criminal trial is permissible only in exceptional circumstances. Its source is the court’s inherent jurisdiction to ensure a fair trial, not a prosecution manual or the Criminal Procedure Rules. There must be no practicable inter partes alternative. The hearing must be necessary to prevent inadvertent trial mismanagement causing unfairness to the defendant. Material and discussion must be strictly confined to what is necessary. R v H does not impose a blanket prohibition on such hearings outside public-interest-immunity applications, although it underlines their dangers. The Rules provide the procedural framework for a properly justified hearing.

The respondent was convicted at the Central Criminal Court of two offences of possessing explosive substances with intent and one offence of preparing terrorist acts. He received life sentences, with a concurrent minimum term of 40 years on the explosive-substance counts and 25 years on the terrorist-preparation count.

During the trial, the prosecution held two notified ex parte hearings with the judge. They were not public-interest-immunity applications. The prosecution said that they concerned sensitive, non-disclosable material and were intended to prevent inadvertent trial mismanagement. The respondent contended that the hearings had no legal basis and rendered the convictions unsafe. He also renewed his application for leave to appeal sentence.

1. Conviction appeal dismissed. Public and open justice, and the defendant’s right to be present and participate, were the starting points. Under Attorney-General v Leveller Magazine [1979] AC 440, the court may exceptionally depart from openness under its inherent jurisdiction where necessary for the ends of justice. That principle can extend to an ex parte hearing, although excluding the defendant is a particularly grave departure.
2. Exceptional notification hearings are lawful. Such a hearing may be held only where the need is exceptional; no practicable inter partes alternative, including an in-camera hearing, exists; the hearing is necessary to avoid inadvertent trial mismanagement causing unfairness to the defendant; and the material and discussion are confined to the minimum necessary. Tight judicial case management is essential because private disclosure of material damaging to a defendant creates acute risks.
3. R v H [2004] UKHL 3 did not prohibit this narrow procedure. Its statement that neutral or defence-damaging material should not be brought to the judge arose in the statutory disclosure and public-interest-immunity context. It did not decide whether an exceptional notification hearing could be held outside that context, and it provided no affirmative foundation for the procedure.
4. The legal source of the power was the court’s inherent jurisdiction, rather than the CPS Disclosure Manual or the Criminal Procedure Rules. Rules 1(1) and 3.2(1) nonetheless supplied a framework through which the power could be exercised consistently with just and active case management. The court held that the two hearings fell within the stated limits and disclosed no material irregularity. In any event, the convictions were safe.
5. Sentence application refused. The trial judge was entitled to treat the viable explosive devices developed and deployed as placing the first two offences in category 1A. He was also entitled to find that the respondent intended an extreme and fatal attack in central London. The court found no improper influence from the notification hearings and no arguable sentencing error.

The court added that a practice founded solely on the CPS Manual was unsatisfactory, and invited consideration by the Head of Criminal Justice and the Criminal Procedure Rules Committee of an appropriate formal procedure.

• Court of Appeal (Criminal Division): Granted leave to appeal conviction, dismissed that appeal, and refused the renewed application for leave to appeal sentence in [2019] EWCA Crim 1527.
• Central Criminal Court: On 26 June 2018 the respondent was convicted on all three counts. On 20 July 2018 the Recorder of London imposed concurrent life sentences with specified minimum terms.
• Single Judge: Refused leave to appeal conviction and sentence; the respondent renewed both applications before the full court.