Britain's secret terrorism trial and the outrageous decision to ban the media from reporting on it
Picture the scene. It is a court room in Russia, or Saudi Arabia, China or the Yemen. There is a judge, the black-robed lawyers and a jury. In the dock are two defendants charged with serious terrorism offences and facing them is a jury of unknown people.
The secret trial is at odds with the concept of open justice
There are no reporters and the public is barred from the court. The names of the accused are not even allowed to be known.
Any evidence against the two men will be permanently prohibited from being reported. The government says there are pressing national security reasons for holding the trial in secret but says it cannot divulge what they are.
Outraged? You should be. This is not happening in some country with fragile human rights but in Britain right now. For the first time in modern British legal history a major criminal trial involving serious terrorism offences could be held entirely in secret.
It could have been worse: until today it had not even been possible to report the existence of the forthcoming trial against the two men known only as AB and CD, but three appeal court judges lifted a gagging order that encompassed the reporting of the media challenge against the secret trial.
We know that both men were arrested last year in what were described as “high profile circumstances”. AB has been charged with engaging in preparations for terrorism and CD is accused of improper possession of a British passport. Both men are charged with possessing a document entitled “bombmaking” which was found on an SD card.
The government case against the media challenge, presented by Richard Whittam QC, is that the Crown Prosecution Service believes that if the trial is not heard in private there is a "serious possibility" that the trial might not go ahead.
Whittam said the government accepted that there should be open justice "where at all possible”, but this case concerned exceptional circumstances. Anthony Hudson for the media told the judges, who will make their decision in the next couple of days, that there was a previous ruling that stated that “national security cannot be pursued without regard to the values of the society it is there to protect".
He said that no order had ever been made which required a criminal trial to be held in private with the media excluded and the defendants unnamed. The problem for Hudson in making his argument was he too had only limited access to the material that forms the basis of the prosecution case.
The judges’ decision will have a profound affect on British justice. There is no known precedent for a totally secret trial and the outcome is crucial; not just to the media but the principle that justice has to be seen to be done.
What next? Will media organisations be forced to erase any material in their archives that may possibly prejudice jurors who go online to research the case they are sitting on? Well, actually, yes. Proposals are about to come before the House of Lords which will give the attorney general the power to request the media to take down archive material even though jurors who look at it are breaking the rules.
This new Criminal Justice and Courts Bill has been prompted by concerns that jurors are rejecting judges’ warnings to not do research. It creates a new criminal offence for jurors, punishable with up to two years in jail for those who conduct prohibited research.
So why, if it is an offence to do this, do they need to clean the archive? It is like making smoking in pubs illegal and then, just in case, closing down all the pubs.
Quite rightly there is outrage, with the complaints led by Bob Satchwell, executive director of the Society of Editors. He said: “The Bill gives extremely wide powers of an unprecedented nature to the attorney general, who is after all a member of the government, and to crown courts, over what has hitherto been lawfully published material.”
And how would this cover the international media? We would be back in the 1930s when the rest of the world knew the future king as having an affair with a married woman but the British papers made no mention. But in this case it could be worse: as Pia Sarma, editorial legal director of The Times, commented: “Stories will be airbrushed from history and history littered with black holes.”
And all this comes following the European Court of Justice ruling that search engines such as Google have a duty to remove search results that are considered irrelevant or excessive in their impact on people’s privacy. Less that a week after that ruling 41,000 people have demanded their information is wiped off Google. These include paedophiles, dodgy doctors and politicians.
This week I am going to see Kevin Spacey at the Old Vic in his one-man performance as the famed American human rights lawyer Clarence Darrow. It should be compulsory watching for our justice ministers.