Under the headline ‘Britain’s first secret trial’, the Daily Mail’s front page yesterday told the story of this and other newspapers’ battle to prevent the authorities from holding in secret the trial of two men accused of terrorism offences.
What the Government and its lawyers wanted was to deny the Press the right to publish anything about the trial at all. Not only could the accused not be named or identified in any way, the hearings would be heard wholly behind closed doors.
Not a word of what was said could be published — and even to report that the trial was taking place in secret would itself be an offence punishable by imprisonment.
Quite rightly this provoked an uproar. Campaigners condemned it as ‘a very serious step that threatens a founding pillar of our democracy’.
Keith Vaz, chairman of the Commons Home Affairs Select Committee, said that ‘for a parliamentary democracy with a reputation for a fair legal system, this sets a very dangerous precedent’.
And it is only because the Mail and other newspapers appealed in court this week against such draconian restrictions that the public is allowed to know about the trial at all.
The case concerns two men, known only as AB and CD, accused of a terror plot. They are alleged to have possessed terrorist documents, including a file named ‘bomb making’, and senior prosecutors have refused to disclose publicly the reason for total secrecy where the trial is concerned.
There are, of course, times when secrecy is vital to our country’s security, when evidence should be presented behind closed doors. If our intelligence services were not allowed to operate in secret and to conceal some of what they know in the courts, they could scarcely operate at all.
When the former CIA employee Edward Snowden stole thousands of classified documents from the U.S. National Security Agency and leaked them to media outlets so they would be broadcast across the world, he was accused by MI5 director-general Andrew Parker of handing a ‘gift to terrorists’ and imperilling the lives of hundreds of agents working to protect our safety.
Even the Human Rights Act, which guarantees the right of every citizen to a fair trial, concedes that ‘the Press and public may be excluded from all or part of a trial in the interests of national security’.
Article 10 of the Act, which guarantees ‘the right of expression’, accepts that exercise of this freedom may be subject to such limitations as are ‘prescribed by law and are necessary in a democratic society in the interests of national security’.
But while there is no doubt that covert intelligence operations must remain secret for the sake of the greater good, there is always the danger that politicians and the Establishment will be tempted to use ‘national security’ as an excuse to bury facts essential to the proper pursuit of justice — if only to save themselves or the government of the day from embarrassment.
We saw this some 20 years ago in the notorious Arms-to-Iraq scandal, in which three directors of the engineering company Matrix Churchill were put on trial for supplying arms to Saddam Hussein’s Iraq despite a trade embargo against the country.
They had been given the nod to do so by the then Minister of State for Trade, Alan Clark. Yet the then Home Secretary Kenneth Clarke was prepared in the name of ‘national security’ to allow three men to be sent to prison rather than divulge information that could prove their innocence.
Fortunately for them and for justice, he was unsuccessful. But it was the same Kenneth Clarke who last year provoked another major political row by introducing a Justice and Security Bill which, in its original form, would have allowed such a draconian extension of the government’s power to impose secrecy on the courts that he was forced to water it down.
As I said, there are times when evidence has to be withheld for the sake of national security. But the crucial point is that we have to be extremely vigilant when a government issues blanket secrecy orders. And when it attempts to prohibit the Press from reporting even that a trial is taking place in conditions of secrecy, its attitude smacks, as the Mail put it yesterday, of the ‘thin end of a deeply sinister totalitarian wedge’.
The furore over this case is just the latest chapter in a long-running saga over the Establishment’s apparent determination to hide our legal system behind a wall of secrecy — and how this is not only an affront to the basic principles of justice, but can actively encourage terrible abuses of law to flourish.
It is an irony that this plan for the first trial in British history to be held entirely in secret should be made at the very time when a crucial battle is being fought to tear away the blanket of secrecy that exists in another very important part of our legal system: the Family Division.
Courts in the Family Division can operate in total secrecy, deciding whether social workers can forcibly remove children from their families or whether the elderly can have their property seized and be forced against their will to live in care homes.
Last year, the Daily Mail exposed the shocking case of Wanda Maddocks, who was jailed in secret by the mysterious Court of Protection — which comes under the Family Division — for removing her 80-year-old father from a home where he was very unhappy and allegedly being ill-treated.
Until the Mail fought successfully for the right to cover this case, secrecy surrounded not only the fact that Miss Maddocks had been imprisoned, but that her case had happened at all.
It is an affront to any definition of justice that every year tens of thousands of such cases take place behind closed doors, and that those involved in the proceedings are warned that if they reveal anything of what is happening to them to anyone outside the court — including the Press or even their MP — it could land them in prison.
The Court of Protection was set up by Parliament under the Mental Capacity Act 2005 with the best of intentions: to enable the state to step in confidentially to help individuals it deems do not have the mental capacity to care for themselves or for their children.
But the secret nature of its operation has corrupted justice in too many cases. Indeed, it has become such a national scandal that when last year a senior judge, Lord Justice Munby, was appointed head of the Family Division he launched a heroic campaign to open up these courts to what he called ‘the glare of publicity’.
And he did so, as he made clear, because he realised that where courts are permitted to operate in secret, it is inevitable this will lead to miscarriages of justice that make a mockery of the most basic principles of our legal system. Keith Vaz may have been technically right to claim, when commenting on this terrorism case, that ‘for an entire trial to be heard in camera (in secret) is unprecedented’.
This may be true of criminal trials, where it has always been a sacred principle that they should be open to public view.
But in the Court of Protection, we already have a glaring example of how, when the workings of justice cannot be reported, every kind of abuse can flourish unseen.
For years, I have been investigating and reporting on family courts, trying to follow what is going on behind that wall of secrecy. Almost every week I have come across stories which, if only they could be properly reported, would shock the British public to the core.
Even the limited evidence in the few cases I can report frequently inspires a storm of anguished letters complaining of similar miscarriages of justice.
At least Sir James Munby is admirably trying to redress the problem of secrecy in the Family Division, in the knowledge that it is only by allowing the ‘glare of publicity’ to be shone into the very murky darkness in which they operate that the system can be cleaned up and put back on the rails, as Parliament intended.
But how tragic it is that, just when a courageous attempt is being made by one honest judge to curb the suffocating secrecy in our family courts, other dark forces should be at work to extend that secrecy into areas into which it has never been allowed to creep before.