This week, there will be a decision made on whether a Court in Britain should sit in secret for the first time in modern British legal history. The case concerns two people – AB and CD – who have been accused of engaging in conduct in preparation of terrorism acts and possession of documents or records containing information of the kind likely to be used by a person committing or preparing an act of terrorism. The trial is due to start on June 16th. The evidence on which the Crown relies to argue for a secret trial cannot be presented in an open Court. Nothing can be made public – the Crown argues that if the trial is held in public, the prosecution may be faced with a position with not proceeding with the case. This is part of the The Justice and Security Act, introduced in 2013.
Secret intelligence can be introduced by the government but will only be seen by the judge and security-cleared "special advocates". The special advocate who represents the interest of an individual claimant cannot reveal precise details of the evidence and may only provide a "gist" or loose summary. Therefore, those in the dock may not be aware of all the allegations made against them.
Closed hearings are not unprecedented. Cases in the family division of the high court relating to child custody and divorce issues are regularly held in private to protect confidentiality. So why does the Government want secret courts? One reason given is to preserve the integrity of the UK's secret intelligence exchanges with the US and other allies.
The independent reviewer of terrorism legislation, David Anderson QC, has described secret courts as "tolerable" as a last resort. Many organizations such as ‘Liberty’ view secret courts as unacceptable and has stated “one of the most serious casualties of the ‘War on Terror’ was the ancient principle that justice should be done in public after hearing arguments from both parties”.
British justice has always operated on a principle of open and transparent information, which allows everyone to know the basis on the decisions reached. Secret courts means secret justice, and as we will never know the veracity of the information on which the decision is made to hold the proceedings in secret, we will not even know what the case is about. Whatever the nature of the case, we need to make sure that the “war on terror” does not dupe us to think that this is acceptable. It is not.