Wednesday, 15 October 2014

Secret Justice Is No Justice At All, by Loz Kaye

The trial of Erol Incedal, accused of plotting a terrorist attack in Britain, is now underway at the Old Bailey.

Just months ago, I would not even have been able to write that sentence. The fact that we know it is happening at all is thanks to pressure from British journalists and the Court of Appeal.

The trial is still going ahead with significant parts of the evidence being heard in secret. Once more, our shared British freedoms and principles of law that go back centuries are being chipped away.

Initially, senior Old Bailey judge Mr Justice Nicol had ruled that the trial of two men was to be held  wholly in secret and the accused be kept anonymous.

This was challenged by media organisations ,and in June the existence of the trial of “AB” and “CD” was acknowledged.

Anthony Hudson for the media groups told the appeal judges, “As far as we are aware no order has ever been made that the entire criminal trial to be held in private, with the media excluded...”

The appeal judges agreed, allowing “AB” to be identified as Erol Incedal. Lord Justice Gross was unequivocal.

He said, “We express grave concern as to the cumulative effects of holding a criminal trial in camera and anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified.”

As ever the justification for a secret trial has been that familiar catch all “national security”.

In particular senior prosecutors claimed that the trial was in danger of not getting underway if details were revealed.

That has clearly not been the case. Such headlines as “Blairs may have been terror target” have not stopped the prosecution.

In the run-up to this trial, it has been described as unprecedented and unique. Well, it is only unique until the next time.

In fact, a parallel secret legal system has been growing up in this country over the last few years.

So-called super injunctions have been a cause of much controversy, and they are not just about the doings of celebrities, but also firms like Trafigura.

Liberty has warned about the use of secret evidence in the Special Immigration Appeals Commission, leaving people unable to defend themselves properly.

Above all, the passing of the Justice and Security Act showed that the intention was not for this case to be unique.

The coalition government actively intend secret courts and the suppression of evidence through closed material procedures.

For all that the Liberal Democrats have claimed to be a break on the Conservatives' worst instincts, this is the reality that they have created, neither liberal nor very democratic.

We are now left with the bizarre situation in the Erol Incedal trial that the secret part of proceedings can be attended by 10 journalists who will not be permitted at this stage to report on the evidence that they hear.

This makes us look ridiculous in the eyes of the world, and hands a get-out to dictators wanting to muzzle the free press.

Surely, we need to be able to hear the evidence for the very reasons of national security and our confidence that justice is being carried out correctly.

Otherwise we are in danger that all the general public comes away with is that this is just about somebody having a bit of paper with Tony Blair's address on it.

The secrecy does nothing to make us safer. Quite the reverse.

It allows conspiracy theories to flourish, and raises the question of whether there are other trials we do not know about. It acts as a recruiting sergeant for the very people who wish us harm.

Of course we want to get to the truth if someone was plotting a “Mumbai style” attack on our streets. That is why we have courts, and that justice needs to be seen to be done, not just pushed through without scrutiny.

As Reprieve's Clare Algar put it, “To hold trials entirely in secret is an assault on the fundamental principles of British justice”.

Even if we know some of the detail of the Incedal case, this trial still leaves justice undermined.

This is a real threat to the very British values that those who argue for the national security state claim to uphold.

Loz Kaye is the Leader of the Pirate Party UK.

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