Erol Incedal – a law student from London – was sentenced in April 2015 to three and a half years in prison after being found guilty of possessing a bomb-making manual. But his trial was held under such tight reporting restrictions that it is hard to say whether justice was done.
The court accepted the prosecution’s argument that the risk to national security meant that proceedings should be held out of view of the media and wider public, a decision the BBC reported as imposing “an unprecedented level of secrecy in courts that are normally open to the public”.
After appeals from the media, the England and Wales Court of Appeal ruled recently that the controversial reporting restrictions would not be lifted. The Appeal Court judges said that a departure from the principle of open justice was necessary for justice to be done and found that, in this case, open justice, via the media as “watchdog” was not appropriate.
… any public accountability for matters relating to the prosecution cannot be achieved through the press in its function as “watchdog” of the public interest. However, as the issues relate to terrorism and those charged with combating it, it will be open to the Intelligence and Security Committee of Parliament to consider any issues it considers need to be examined and for any public accountability to be achieved in that way.
What will be perhaps less well reported are the problems with the way courts handle national security sensitive information that this case has exposed.
The judges observed that they would normally look to previous decisions to ensure a consistent approach. But in this case relevant “closed judgments” were not retained within court files – meaning it is impossible for judges to tell whether they were being consistent. The judges requested that a working group should be set up to consider ways in which previous “closed judgements” could be made available to courts dealing with similar cases. This is the latest development in a case marred by confused and inconsistent information handling.
The case wouldn’t have come to public notice at all had a journalist not spotted the reporting restriction on a court list. Alarmed at the departure from the principle of open justice, a consortium of media organisations challenged the far-reaching restrictions and condemned what appeared to be a secret criminal trial.
A unique compromise was reached as a result, and Incedal’s trial and retrial were eventually held in partial secrecy with varying levels of access. The first level involved a small number of sessions heard in open court; the second allowed a handful of accredited journalists to access some of the private sessions, although they still could not report on the proceedings and had to leave their notebooks locked in a safe. In the third, sessions remained entirely closed, with only judge, jury, and participants in the case present.
This three-tier system did little to appease concerns: only 10 hours of evidence were heard in public, whereas 28 were heard by the accredited journalists and 30 were heard in private. The media’s inability to report the prosecution’s main argument meant that the reasons for secrecy remained unclear. Although Incedal was found guilty of possessing a bomb-making document at the first trial and jailed for three and a half years, it was not even possible to report the evidence that led the jury to find him not guilty of preparing an act of terrorism in the second.
The seemingly ad hoc approach to information control adopted in the case suggests a serious lack of planning. This situation has been roundly criticised. Newspapers, pressure groups, academics – and even the Lord Chief Justice – have called for clearer guidelines and rules in future.
This situation could have been avoided had lessons been learnt from recent history. We have compared the Incedal case with security censorship during World War II in a paper for History & Policy. We observed striking parallels. The procedures adopted in 1939 had not been well planned – those responsible for implementation had little understanding of the press and there were few channels of communication with the security services. The result was a clumsy duplication of functions that quickly brought the system into disrepute.
It took many months of negotiation between all parties to resolve the worst of these difficulties. The result was a self-regulated system that was based on a spirit of “friendly co-operation” and was designed to balance national security with the maximum possible freedom of the media. Contemporary policymakers would be wise to consider this precedent.
The experience of World War II suggest that successful information control measures require careful planning, clear guidelines, and cooperation. If it is accepted that terrorism is as much of a threat to the British way of life in 2015 as was Nazi Germany seven decades ago, then lawmakers must be willing to engage with interested parties.
The handling of the Incedal case failed in this respect. Such a situation is in nobody’s interest.