The Guardian view on secret courts: they undermine the rule of law

http://www.theguardian.com/commentisfree/2014/jun/12/secret-courts-rule-of-law

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Open justice is the founding principle of British justice. Jeremy Bentham once called it "the keenest spur to exertion and the surest of all guards against improbity", and senior judges have reiterated the sentiment many times since. For Lord Scarman, it was the safeguard of the proper administration of justice; for Lord Bingham, the core of the rule of law; and, for the current president of the UK supreme court, Lord Neuberger, speaking only last October, it is "a fundamental feature of the rule of law in any modern democratic society".

All of these sentiments were reflected again in the remarks of the court of appeal in its ruling on an application from the Guardian and others to have the trial of two men on terrorism charges heard in open court. This case, the so-called AB and CD trial, where the Home Office and the Foreign Office wanted two anonymous defendants to be tried in secret, is an unprecedented affront to every concept of British justice as it has evolved over a thousand years. It prioritises the interests of national security over accountability in a way unknown even when Britain faced an existential threat during the second world war.

The three appeal court judges, whose arguments will be published later, went to some lengths to recognise the exceptional demands the government was making. Their preliminary observations underlined the fundamental importance of open justice – "a hallmark and a safeguard of the rule of law … a fundamental principle … and a means of ensuring public confidence". Yet the essential implication of their decision is that all the significant parts of the trial will be held in camera. This creeping extension of secrecy in criminal hearings is a dangerous departure from a founding tenet of British justice. There is no value in a principle that is compromised when the going gets tough. Transparency cannot be an optional extra.

That is not to deny that there is, occasionally, a balance to be struck. But it has to be struck so rarely against openness and in favour of national security, and only on such narrowly defined grounds, that it does not jeopardise public confidence. Far too often, the appeal to national security has been shown to be nothing more than a useful drape to cover the inconvenient or the merely embarrassing. Only see the long-running litigation in the Binyam Mohamed case, when the complicity of MI5 in torture would have been suppressed altogether had Lord Neuberger, then Master of the Rolls, not published his draft legal opinion.

It is clear that the appeal court has struggled for the right balance. But in the end it decided it was more important for the courts to do justice than to be seen to do justice. It is an unmitigated good that the judges struck down the demand that the two defendants remain anonymous: as they said, the circumstances that would justify such a cumulative departure from open justice as trying unnamed individuals in secret are almost impossible to envisage. But their decision to allow some of the trial judge's opening remarks to be made in open court, along with the verdicts and any sentences that follow, is a good deal more symbolic than substantial. They have accepted the argument that unless the trial is held almost entirely in secret, it may have to be abandoned entirely. Yet there are often prosecutions where some of the evidence cannot be heard in open court, and where some witnesses remain anonymous or sit behind screens, or both.

And the novel suggestion that a small number of "accredited" journalists be allowed to sit in court although not to report until the end of the trial, and only then subject to further review, is an absurdity – a kind of time-lapse open justice but without any guarantees. Journalists are there as representatives of the people. Their first duty is to the people. The court wants to have it both ways – to protect open justice, while bowing to the demands of national security. Instead it has ended up conceding yet more territory to the remorseless advance of the security state.