National Security Requires A Secret Trial ?

[Berkut]

There are already aspects of the US court system that are closed to the public: conferences in a judge's chambers or at the bench, victims identities which are protected, witnesses who's identities are masked.  Should all these be done away with too?

No. But since nobody is suggesting that those things be done away with, nor are those things generally done in the interests of "security", I don't see how they are relevant to the discussion.

Privacy and secrecy are not the same thing.

[Admiral Yi]

No. But since nobody is suggesting that those things be done away with, nor are those things generally done in the interests of "security", I don't see how they are relevant to the discussion.

Privacy and secrecy are not the same thing.

They are relevant to the discussion because people seem to be suggesting that open proceedings are an absolute.

And in point of fact, there have been cases where witnesses' identities have been protected for national security reasons.

[Berkut]

No. But since nobody is suggesting that those things be done away with, nor are those things generally done in the interests of "security", I don't see how they are relevant to the discussion.

Privacy and secrecy are not the same thing.

They are relevant to the discussion because people seem to be suggesting that open proceedings are an absolute.

And in point of fact, there have been cases where witnesses' identities have been protected for national security reasons.

But we are not talking about protecting witnesses identities, we are talking about secret trials.

If you cannot grok the difference, then I guess I am ok with you continuing to be astounded that others might see something of a difference.

[Admiral Yi]

Ossum.

[Barrister]

The weird thing I find is that they are asking that everything be held in secret.

The idea that certain evidence needs to be secret (as in - not published)?  I'm okay with that.  Investigative techniques, confidential source information - there's reasons you don't want that in the papers.  Publication bans are long apart of our justice system.

But everything - including the Accuseds names?  Seems weird.

[Sheilbh]

That kind of stuff should not happen. Don't you have a constitutional tradition of public trials? "National security" shouldn't override some of the very basic tenets of rule by law.

It hasn't happened yet. At the minute it sounds like the Crown Court has given these orders. Currently the media is challenging the reporting restrictions. If it goes ahead I imagine the defendants will appeal. Based on what I've read and there's not much out there at the minute in terms of (legal) analysis I think this is the position - and it may be wrong and a little ignorant.

The principle of open justice is considered a 'fundamental' principle of common law and there's Article 6 of ECHR (though I'm not sure how ECHR and common law interact). From what I gather, and I'm not an expert, the leading case was Scott v Scott in 1913. The lower court's decision to hold a hearing in Camera was criticised by Lord Shaw as 'constituting a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security' and that 'there is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves.' Lord Haldane said that any demand to depart from that should be treated 'as one of principle, and as turning, not on convenience, but on necessity'.

We do have a constitutional tradition of public trials, but in camera proceedings are part of the common law. The Criminal Procedure Rules say that in 'exceptional circumstances' the court has 'an inherent right ... to hear a trial in private, for example for reasons of national security'. They are allowed where a public hearing would render the administration of justice impracticable and as Lord Haldane said the test is one of necessity.

It's worth remembering that an in camera trial is still a trial. So the evidence is disclosed and cross-examined by both parties and they will receive a public and a private judgement that deals with evidence heard publicly and in camera and they can appeal from both. So an example would perhaps be if it would reveal the identity of an undercover police officer or operational details of intelligence. If that evidence is essential to either case then the court has to balance whether the interest of public justice is outweighed by the frustration of justice by either side not being able to rely on all of their evidence. In those examples though you'd imagine holding proceedings partly in camera would be enough or there would be other practical ways around it. There are also trials - such as in the Family Court - which are routinely held in private.

A recent criminal case (2010) was heard partly in camera (I believe mainly the defendant's testimony) and that decision of the court was upheld. But it's extremely rare - this is a report about recent proceedings in that case: http://www.theguardian.com/law/2014/jan/23/murder-hampstead-alan-chappelow-echr-wang-yam

I assume that's what's happening here. However the Supreme Court recently heard a (civil) case (Al Rawi) where one party (MI5) applied for a closed material procedure. Which would mean the trial or part of it would be heard in secret and they would be able to rely on evidence which the other party could not fully access and there would be 'special advocates' who would (from my understanding) partly act for the defendant to the court about that evidence. My understanding is that they're not seeking a CMP, but I could be wrong. The Supreme Court rejected that the courts had the right to do that, this is the key paragraph:
'I return to the questions that lie at the heart of this appeal. In my view, the analogy with Davis is compelling. As I have said, the fact that Davis was a criminal case is not material. The issues considered were of application to trials generally. It decided that, subject to certain exceptions and statutory qualifications, the right to be confronted by one's accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.'

Davis was a 2008 criminal case where the House of Lords refused to allow a witness to give evidence anonymously. It would be so large a change that the courts couldn't do that, it would need to be done by Parliament. It's worth noting that a month after Davis Parliament passed a law allowing anonymity, in certain circumstances, for witnesses. Al Rawi was heard in 2011 and the coalition passed a bill in 2013 that does allow for civil CMP in certain circumstances:
http://www.theguardian.com/law/2012/sep/25/secret-courts-the-essential-guide

I think given the Court of Appeal's ruling in the Yam case which had no closed material and was only partly held in private and the steer given by Al Rawi and Davis that the Courts would be reluctant to extend the inherent jurisdiction to allow an entirely in camera trial. Generally there seems to be a reluctance to allow secret trials without explicit legislation from Parliament. But I may be wrong and obviously I don't know much about the law or the case.

[Sheilbh]

The weird thing I find is that they are asking that everything be held in secret.

The idea that certain evidence needs to be secret (as in - not published)?  I'm okay with that.  Investigative techniques, confidential source information - there's reasons you don't want that in the papers.  Publication bans are long apart of our justice system.

Yep. That's what strikes me. I can't imagine why the entire case would need to be heard in private. It's a little baffling.

But everything - including the Accuseds names?  Seems weird.

That does happen where it's a child or affects a third party. Recently there was that horrifying Lostprophets child sex case and the mothers who either abused their children (who were babies) for him or offered them for him to abuse were not named to protect the children involved. Maybe if their families could be at risk or something like that? But I don't know.