Secret Trials: A More Balanced View

Background

One of the fundamental rights protected by Article 6 of the European Convention on Human Rights is the right to a fair trial.

It provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Although judgment must be pronounced publicly, Article 6 recognises that the press and public may be excluded from all or part of a hearing in limited circumstances: in the interests of morals, public order or national security, to protect juveniles or the private life of the parties, or where publicity would prejudice the interests of justice.

Against this backdrop, the recent controversy surrounding the prospect of a “secret trial” has generated significant media attention. The issue came to a head when the Guardian and other outlets successfully challenged the Crown Prosecution Service (CPS), overturning an attempt to conduct a criminal trial entirely in private, with the defendants’ identities withheld and all details kept secret.

The concern is understandable.

Open justice is a core constitutional principle. Jeremy Bentham described publicity as “the keenest spur to exertion and the surest of all guards against improbity”, and Lord Bingham placed open justice at the heart of the rule of law. Any departure from this principle must therefore be approached with extreme caution.

The Case

The case, initially known only as R v AB and CD, was itself concealed. Media organisations could not confirm its existence. The CPS had obtained an order from Nicol J permitting the trial to take place entirely in private, with permanent reporting restrictions and anonymity for both defendants.

The CPS argued that prosecuting the defendants publicly would pose an unacceptable risk to national security. Although the precise legal basis for this claim was not disclosed, the implication was that a public trial would deter prosecution altogether.

The Appeal

Once the existence of the order became known, ironically through the Guardian’s legal challenge.

Public criticism followed.

The Court of Appeal subsequently overturned the order. Lord Justice Gross, Simon J and Burnett J expressed “grave concern” about the cumulative effect of holding a criminal trial in camera while anonymising the defendants, stating that they could “difficultly conceive” of circumstances justifying both departures from open justice.

However, the court accepted that the case was exceptional and that national security concerns required that the “core” of the trial be held in private.

Outcome

Although the media challenge succeeded, many commentators view the result as a pyrrhic victory. Much of the trial will still take place behind closed doors, and journalists’ access to information will be limited and likely subject to censorship. The proceedings are therefore not fully open, and the decision risks setting a concerning precedent for future cases.

Human Rights and Justice

The Human Rights Act 1998 incorporates Article 6 into domestic law, and Article 6 expressly permits exclusion of the public in the interests of national security. This provides some justification for the CPS’s position. As in many areas of public law, the issue is one of balance: between national security and open justice.

In recent years, national security has frequently been invoked to justify intrusions into privacy, such as intelligence‑gathering practices. Here, however, the tension is between national security and the transparency of the justice system.

In this case, the Court of Appeal concluded that the balance had not been properly struck. The Guardian’s editorial argued that national security should be invoked “rarely” to avoid undermining public confidence.

The Binyam Mohamed litigation illustrates the dangers: Lord Neuberger’s draft judgment revealed information that would otherwise have been suppressed, including MI5’s complicity in mistreatment. This example demonstrates the risks of allowing national security concerns to eclipse open justice.

Parties Involved

Media commentary has sometimes mischaracterised the roles of the institutions involved. Although the Government is implicated, the central actors are the CPS and the judiciary.

The CPS sought a secret trial because it believed it could not fulfil its prosecutorial duties without such measures. The judiciary, however, is the constitutional safeguard. It was the Court of Appeal. not the media, that ultimately overturned the order.

Judges are not aligned with government interests; they are the independent arbiters tasked with protecting rights and ensuring legality. While judges are not infallible, criticism directed at them often overlooks their role as the primary check on executive power.

Conclusion

The controversy surrounding this case is understandable. Open justice is a foundational principle, and any departure from it must be justified with compelling reasons. The media undoubtedly amplified public concern, but national security remains a legitimate and weighty consideration.

What is required is a careful balancing exercise. The right to a fair and public hearing must be protected, but the state also has a duty to safeguard national security. The challenge is to ensure that neither value is sacrificed unnecessarily. A defendant must be tried fairly and openly wherever possible, but the safety of the public must also be preserved.

This case demonstrates how difficult that balance can be, and why vigilance is essential whenever justice moves behind closed doors.