It was June 4 2014. That was the date the British public learned that, in spite of their relatively free media, the power of the state – as expressed by the executive and the judiciary – was poised to cross the red line between liberal democracy and authoritarianism.
I am talking about the headline in the Daily Mail: “First trial to be held in secret: Closed terror case branded ‘outrageous assault’ on open justice… and it’s only thanks to a free Press you know it’s happening at all.”
I am also talking about the headline in the Guardian: “Secret terror trial is threat to open justice, human rights campaigners warn.” At last, after all the divisive grief over responding to the phone-hacking scandal and the Leveson Inquiry, we have a united voice from the British media on what is constitutional and deemed as unacceptable.
I cannot say how broken-hearted I am about the prospect of a major criminal trial involving two men charged with serious terrorism offences being held entirely in secret for the first time in modern British legal history. I have spent my entire journalistic life campaigning against courtroom secrecy and this represents a nadir and indication of abject failure.
But the proposal is being contested by the process of law; albeit very limited and garrotted by the lack of a constitutional paradigm for freedom of the media and expression. We have been paying the price for not having a First Amendment for many years. Now we are entering the endgame of something beyond the dissolution of open justice.
The media’s counsel Anthony Hudson put it with a tone, I would suggest, of restrained understatement:
This appeal raises important issues relating to not only the constitutional principle of open justice, but also the equally important principle of fairness and natural justice … This case is a test of the court’s commitment to that constitutional principle in the admittedly difficult and sensitive cases where the state seeks to have trials involving terrorism heard in secret and relies in support of that on the grounds of national security.
The British judiciary is contemplating giving its approval to what is a totalitarian measure of censorship. Hudson said:
It is unprecedented that the trial of two defendants charged with serious terrorism offences should take place entirely in private with the identities of both defendants withheld. No order has ever been made which requires an entire criminal trial to be held in private, with the media excluded and defendants anonymous.
The fact of the matter is that we only know about the brief details of what is being contested because a previous judicial censorship order muzzling the media from revealing these notional facts was challenged at great expense.
We are faced with this disturbing situation because the British executive through its legal prosecution system has tabled a justification of secrecy based on the exceptional circumstances concept. All I know is that as a legal affairs journalist of over three decades standing, exceptional circumstances have become the general. Specific pleas for keeping the public dark have spread out like some mute osmosis liquidating the rights of the public to receive information via the journalistic ears and eyes of the public.
Behind closed doors
In 1994 I and a brilliant colleague in court reporting, Caroline Godwin, challenged the decision to hold an entire criminal trial at the Inner London Crown Court in camera. Everything had been held behind closed doors; even the jury’s verdict.
Caroline had tipped me off and I went to the old Inner London Sessions building in the Borough and made such a fuss that at least I was able to persuade the judge to sentence the defendant in open court. However, that period of sunlight only lasted less than two minutes.
Caroline and I took the issue to the Appeal Court and after months of research and preparation (we were not represented by counsel) we tenaciously argued for the truth of the proceedings to be made public.
This was before a formidable panel of Lord Chief Justice Peter Taylor, Justice Steel and Justice MacPherson. However, there was a problem. The entire hearing was held in camera and so was the ruling. Nothing could be reported. We asked the National Union of Journalists to help assist us in an appeal to Strasbourg. On counsel’s advice they would not back our desire to fight it. Sadly we were informed with not enough time to put in our own papers so we could battle out the issue ourselves.
Caroline and I realised then that there had been a shift in the centre of gravity for democratic scrutiny, natural justice and due process of law. Apart from the marvellous Press Association, only two other journalists, Paul Cheston of the Standard and Marcel Berlins of the Guardian, took an interest in our struggle. John Sweeney, then of the Observer, bought us a mug of tea, doughnut and donated considerable sympathy, but his wish to write on it was stymied by his editor.
In 2014 we have a desperate fight on what is a clear Rubicon that we must not bridge. Now is the time to mobilise consensus, solidarity and a clear public interest to resist the unacceptable. All credit to the Daily Mail and the Guardian for speaking with one voice. Long may it continue.