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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Guardian News And Media Ltd v Incedal & Anor  EWCA Crim 1861 (24 September 2014)
Cite as:  EMLR 2,  EWCA Crim 1861,  1 Cr App R 4,  HRLR 28
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ON APPEAL FROM MR JUSTICE NICOL
Mr Justice Nicol
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SIMON
MR JUSTICE BURNETT
| GUARDIAN NEWS AND MEDIA LTD, ASSOCIATED NEWSPAPERS LIMITED, BBC, BSKYB LIMITED, EXPRESS NEWSPAPERS, INDEPENDENT PRINT LIMITED, ITN, MIRROR GROUP NEWSPAPERS LIMITED, NEWS GROUP NEWSPAPERS LIMITED, TELEGRAPH MEDIA GROUP, TIMES NEWSPAPERS LIMITED, PRESS ASSOCIATION
|- and -
|1. EROL INCEDAL
2. MOUNIR RARMOUL-BOUHADJAR
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Henry Blaxland QC and Richard Thomas (instructed by Birnberg Pierce and Partners) for the First Defendant
Naeem Mian (instructed by G T Steward Solicitors) for the Second Defendant
R Whittam QC and Stuart Baker (instructed by CPS) for the Prosecution
Hearing date: 4 June 2014
Crown Copyright ©
The Rt Hon Lord Justice Gross:
i) Erol Incedal is charged with an offence contrary to s. 5, Terrorism Act 2006 ("TA 2006", preparation of terrorist acts) and an offence contrary to s.58, Terrorism Act 2000 ("TA 2000", collection of information).
ii) Mounir Rarmoul-Bouhadjar is charged with an offence contrary to s.58 TA 2000 (collection of information) and an offence contrary to s.4, Identity Documents Act 2010 ("IDA 2010", possession of false identity documents etc with improper intention).
i) The entirety of the criminal trial of the Defendants should be in private (i.e., "in camera", with the public and media excluded) and the publication of reports of the trial be prohibited.
ii) The names and identities of the Defendants should be withheld from the public and publication of their names/identities in connection with the proceedings be prohibited.
iii) The publication of reports of the hearing in open court on 19th May, 2014 and the open judgment handed down on that day be postponed until the conclusion of the trial or further order.
The order was made by Nicol J pursuant to his common law powers, together with those contained in s.11 and s.4(2), Contempt of Court Act 1981 ("CCA 1981").
i) Issue (I): Trial in camera;
ii) Issue (II): Anonymisation of the Defendants;
iii) Issue (III): S.4(2), CCA 1981.
i) To the limited extent indicated in the Decision, we varied the order made by Nicol J for the trial to be in camera.
ii) We allowed the media's appeal from the order made by Nicol J for anonymisation of the Defendants.
iii) We allowed the media's appeal from the s.4(2), CCA 1981 order imposed by Nicol J in respect of that part of the 19th May hearing held in open Court, together with his open judgment of that date.
iv) We had already indicated, on the 4th June, that anything said in the open hearing before us on that day could be reported.
THE FRAMEWORK OF PRINCIPLE
" ..As Lord Bingham of Cornhill said in R v Davis  AC 1128, para. 28, the rights of a litigating party are the same whether a trial is conducted in camera or in open court and whether or not the course of the proceedings may be reported in the media .. "
A QUESTION OF JURISDICTION
" (1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against
(a) an order under section 4 or 11 of the [CCA 1981] .made in relation to a trial on indictment;
(b) any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial; and
(c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings;
and the decision of the Court of Appeal shall be final.
(4) Subject to Rules of Court made by virtue of subsection (6) below, any party to an appeal under this section may give evidence before the Court of Appeal orally or in writing.
(5) On the hearing of an appeal under this section the Court of Appeal shall have power
(b) to confirm, reverse or vary the order complained of; ..
(6) .Rules of Court may make in relation to trials satisfying specified conditions special provision as to the practice and procedure to be followed in relation to hearings in camera and appeals from orders for such hearings and may in particular, but without prejudice to the generality of this subsection, provide that subsection (4) shall not have effect. "
" (1) The general rule is that the Court of Appeal must hear in public
(a) an application, including an application for permission to appeal; and
(b) an appeal .
but it may order any hearing to be in private.
(3) Where the appellant wants to appeal against an order restricting public access to a trial, the court
(a) may decide without a hearing
(i) an application, including an application for permission to appeal; and
(ii) an appeal; but
(b) must announce its decision on such an appeal at a hearing in public."
" Duty of applicant for order restricting public access
69.5 (1) This rule applies where the appellant wants to appeal against an order restricting public access to a trial.
(2) The party who applied for the order must serve on the Registrar
(a) a transcript or note of the application for the order; and
(b) any other document or thing that that party thinks the court will need to decide the appeal .
Respondent's notice on appeal against reporting restrictions
69.6 (1) This rule applies where the appellant wants to appeal against an order restricting the reporting of a trial.
(6) The respondent's notice must
(f) identify any other document or thing that the respondent thinks the court will need to decide the appeal. "
" .for this court to entertain an appeal without considering the closed material would, at least in many cases, not be doing justice, either in the sense of fairly determining the appeal or in the sense of being seen fairly to determine the appeal, notwithstanding that the material will be considered in a closed hearing."
ISSUE (I): TRIAL IN CAMERA
i) Swearing in of the jury.
ii) Reading the charges to the jury.
iii) At least a part of the Judge's introductory remarks to the jury.
iv) At least a part of the Prosecution opening.
v) The verdicts.
vi) If any convictions result, sentencing (subject to any further argument before the trial Judge as to the need for a confidential annexe).
Our Order has been drawn up accordingly.
i) The selection of the journalists in question is not in the hands of the Secretaries of State. Instead, as provided in our Order, up to ten accredited journalists (as defined in the Order) may attend the trial subject to the terms as to confidentiality there set out. As further provided in our Order, any disagreement about which accredited journalists should be permitted to attend the private parts of the trial is to be resolved by the Appellants amongst themselves or, failing such resolution, is to be referred back to this Court.
ii) Journalistic presence at a criminal trial fulfils two distinct but related purposes: public scrutiny of the proceedings, coupled with contemporaneous reporting. We acknowledge that what will be lost is contemporaneous reporting but that is an inevitable corollary of an order for an in camera hearing and will, in any event, be reviewed at the conclusion of the trial. However, the proposal for the attendance of accredited journalists means that the scrutiny function of the media will be preserved throughout the trial (save for the discrete ex parte aspects).
ISSUE (II): ANONYMISATION OF THE DEFENDANTS
ISSUE (III): S.4(2), CCA 1981
" In any such proceedings [i.e., legal proceedings held in public] the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose. "