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Media groups lose appeal against secret trial of Erol Incedal Erol Incedal trial: media groups lose appeal over reporting restrictions
(about 5 hours later)
Warning: this article omits information that the Guardian and other news organisations are currently prohibited from publishing.Warning: this article omits information that the Guardian and other news organisations are currently prohibited from publishing.
The court of appeal has refused to lift reporting restrictions on the secret trial of a law student who was cleared of plotting a terrorist attack in London. The court of appeal has refused to lift reporting restrictions following the secret trial of a London law student who was cleared of plotting a terrorist attack on the streets of the capital.
However, the lord chief justice, Lord Thomas, invited Westminster’s intelligence and security committee (ISC) to investigate the role that MI5 and MI6 played in imposing secrecy on the case. However, the lord chief justice, Lord Thomas, said that only the director of public prosecutions (DPP) could ask a court to sit in secret, and warned that MI5 and MI6 must not in future threaten to withhold evidence in a bid to secure courtroom secrecy.
He also said the intelligence agencies and the police must abide by the decisions of the courts, and must provide prosecutors with all the assistance they require. Following an appeal brought by the Guardian and other UK media organisations, Thomas invited the parliamentary intelligence and security committee to investigate the role that MI5 and MI6 played in decisions that were taken around the prosecution of Erol Incedal.
Furthermore, in the judgment that followed an appeal by UK media organisations, Thomas said the courts should be able to examine the secret judgments made in previous cases concerning national security. He asked that a working party be established to consider how this could be achieved. Related: Why is the crux of the Incedal case a secret? You're not allowed to know
Handing down his judgment at the court of appeal, Thomas said: “It is important to distinguish on constitutional principles, the respective functions of those involved in cases involving national security. “It is a significant, important and proper part of the duties of the security services of the United Kingdom that they act in accordance with the law,” Thomas said. “No part of the executive can refuse to provide the evidence required by the [DPP] on the basis that it perceives that it is not in the interests of national security to provide it.
“In a case involving national security ... it must be for the DPP [director of public prosecutions], and the DPP alone ... to determine whether to prosecute and, if so, whether to apply to the court for part of the proceedings to be heard in camera.” “In a case involving national security ... it must be for the DPP, and the DPP alone ... to determine whether to prosecute and, if so, whether to apply to the court for part of the proceedings to be heard in camera [in secret].”
He added that “public accountability” of the agencies could be achieved through an investigation by the ISC. In a bid to deal with the accumulation of case law that remains secret, even to the courts, Thomas said also that he was establishing a working party that would examine ways in which closed judgments that were handed down in cases concerning national security could be available to courts dealing with similar cases in the future.
Thomas said Sir Andrew Nicol, the judge who had presided over the trial of Erol Incedal, had been right to impose reporting restrictions, notwithstanding the importance of the open justice principle. Incedal, 28, from south London, was arrested in October 2013 and found to be in possession of a bomb-making manual on a memory card hidden inside his mobile phone case.
Incedal, 28, from south London, was arrested in October 2013 and found to be in possession of a bomb-making manual on a memory card hidden inside his mobile phone. Following representations from the intelligence agencies – of a nature that Thomas has described as “absolutely impermissible” – the Crown Prosecution Service decided that it wished to prosecute him in secret.
Initially, the Crown Prosecution Service wanted to prosecute him in secret. The media were told that, although they would be permitted to report the verdict, they would not not be informed of his identity. He would be referred to only as AB. The media were told that although they would be permitted to report on the charges against Incedal and the eventual verdict, they would not be permitted to hear the evidence, nor be informed of his identity. He would be referred to only as AB.
After the media objected, the court of appeal ordered that Incedal could be identified and that the trial should be heard in three parts: open court sessions, secret sessions, and intermediate sessions which the press could attend, but not report, pending a review by Nicol. After the media objected, the court of appeal ordered that Incedal could be identified and that the trial should be heard in three parts: there would be open court sessions, secret sessions, and intermediate sessions which the press could attend, but not report, pending a review by the trial judge, Mr Justice Nicol.
Throughout his trial at the Old Bailey, Incedal argued that he had a reasonable excuse for having the manual in his possession. The jury rejected this claim, however, and he was jailed for 42 months. Throughout each of those intermediate sessions, the small number of journalists allowed into court nine at the Old Bailey were expected to surrender their mobile phones, which were locked in soundproof boxes.
His friend Mounir Rarmoul-Bouhadjar, also 28, pleaded guilty to possession of the same manual and was jailed for three years. Both men have since been released from prison. At the end of each session, the journalists were obliged to hand their notebooks to police officers, to be locked in a safe at the back of the court. The officers watched closely to ensure the journalists did not attempt to remove any notes from the court.
The jury failed to reach a verdict on the more serious charge against Incedal, that of planning a terrorist attack. After a retrial, a second jury acquitted him. During his trial at the Old Bailey, Incedal argued that he had a reasonable excuse for having the manual in his possession. The jury rejected this claim, however, and he was jailed for 42 months.
At the end of the retrial, Nicol decided against lifting the reporting restrictions. This meant the reasons why the jury reached its not guilty verdict could not be reported. Nor could the basis for Incedal’s claim that he had a reasonable excuse for having the manual. His friend Mounir Rarmoul-Bouhadjar, also 28 and from south London, pleaded guilty to possession of the same manual and was jailed for three years. Both men have since been released from prison.
The media launched a second appeal, during which Thomas disclosed in open court that MI5 and MI6 had been responsible for the initial demands for all-embracing secrecy. However, the jury failed to reach a verdict on the more serious charge that Incedal faced: that of planning a terrorist attack. After a retrial, a second jury acquitted him.
He said the agencies’ suggestion that they might withhold evidence from the CPS if the trial was not heard in secrecy was “absolutely impermissible”. At the end of the retrial, Nicol decided against lifting the reporting restrictions, with the result that the reasons why the jury reached its not guilty verdict could not be reported. Nor could the basis for Incedal’s claim that he had a reasonable excuse for possession of the manual be explained to the public.
“It cannot be for the security services to say: ‘Well we may not cooperate,’ because that would suggest that they are not subject to the rule of law,” Thomas said, adding that the media’s appeal raised important issues about public confidence in MI5 and MI6 and the accountability of the agencies. Thomas said that the media’s second appeal raised important issues concerning public confidence in MI5 and MI6 and the accountability of the agencies. He said public accountability of the agencies could be achieved through an investigation by the ISC.
The lord chief justice added that nothwithstanding the importance of the open justice principle, Nicol had made the correct decision, in the interests of national security, and that the courts “should hesitate long and hard” before agreeing to a trial being heard in the same three-part manner.