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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Times Newspapers Ltd & Ors v Soldier B & Ors [2008] EWCA Crim 2396 (24 October 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/2396.html Cite as: [2009] 1 WLR 1015, [2008] EWCA Crim 2396 |
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Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE MACKAY
and
MR JUSTICE KING
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Times Newspapers Ltd and Guardian News & Media Ltd (Appellants) |
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and |
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Soldier B -v- Regina and Soldiers A, C. D, E and F (Respondents) and Secretary of State for Defence (Interested Party) |
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John McKenzie (Solicitor Advocate) and Stuart Lindsay on behalf of soldier B
Gavin Millar QC and Anthony Hudson on behalf of The Times Newspapers Ltd and Guardian News & Media Ltd
Jonathan Glasson on behalf of The Secretary of State for the Defence
Nadim Bashir on behalf of the Crown
Hearing dates: 6 & 7 August 2008
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Crown Copyright ©
Lord Justice Latham :
"Clearly as we all agree the fundamental principle is that unless the circumstances are highly exceptional justice must be administered in public. And this fundamental principle is subject to a number of recognised exceptions under common law. If there are to be any restrictions they must be the minimum necessary, and the burden is on those seeking the order to show that there is a substantial risk of prejudice to national security and to the administration of justice without an in camera hearing. A court cannot sit in private purely because it believes that to sit in public would be prejudicial to national security. However, if the fact of national safety appears to endanger the true administration of justice, for example by deterring the crown from prosecuting cases where it should do so, the court may sit in private. Those are all quotations from the jurisprudence which has been placed before me.
But we have also discussed s. 94 (2) of The Army Act 1955. But I have found no case where this has been tested in the Court of Appeal, and no authority has been brought to my attention. However, I agree with Mr Hudson that this section must be construed in a way which is compatible with the European Convention on Human Rights, and a judge should only exercise his discretion to exclude the public were absolutely necessary for the interests of national security. This construction means that the hurdle over which an applicant must jump before this fundamental principle of open justice is affected is a very high one. So there must be material made known to the court upon which it can reasonably, or which the court can reasonably reach its conclusions. Now I have examined a bundle of evidence produced by the Crown, and the defence relating to the defendants, their former and current activities, their fears for the integrity of future operations involving them, and their colleagues, and their fears for the physical safety of themselves and their families. I also heard evidence that these subjective fears could be objectively justified. This evidence also includes assertions about the way the defence is to be conducted by reference to dates, locations and other colleagues. Having all that evidence I am satisfied that there would be a substantial risk of prejudice to national security, both in terms of safety of individuals, and the adverse effect it would have on operational effectiveness and therefore providing a n advantage to potential enemies. And I am also satisfied there would be a substantial risk of prejudice to the administration of justice because the defence would not be able to pursue certain lines of questions and enquiries, and therefore the defendant may not receive a fair hearing. And I have listened to what Mr Hudson has said about the way that that can be addressed, but given the evidence that I have heard I do not think that that is a practical suggestion. Therefore in the exercise of my discretion under s. 94 (2) of The Army Act 1955, and in line with common law exceptions to the fundamental principle of open justice, I am going to order that all proceedings in this case will be in camera".
"… since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from the statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice."
"… the basis of the modern law is as Viscount Haldane declared it was in Scott v Scott. It follows: (1) that, in the absence of express statutory provision (e.g. s.8 (4) of the Act of 1920), a court cannot sit in private merely because it believes that to sit in public would be prejudicial to national safety, (2) that, if the fact of national safety appears to endanger the true administration of justice, e.g. by deterring the crown from prosecuting in cases where it should do so, a court may sit in private, (3) that there must be material (not necessarily formally adduced evidence) made known to the court upon which it can reasonably reach its conclusion."
"(1) Subject to the provisions of this section, a court-martial shall sit in open court and in the presence of the accused.
(2) Nothing in the last foregoing sub-section shall affect the power of a court-martial to sit in camera on the ground that it is necessary or expedient in the interests of the administration of justice to do so; and without prejudice to that power a court-martial may order that, subject to any exemptions the court may specify, the public should be excluded from all or any part of the proceedings of the court if it appears to the court that any evidence to be given or statement to be made in the course of the proceedings or that part as the case may be, might otherwise lead to the disclosure of any information which would or might be directly or indirectly useful to an enemy."
"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purposed for which it was so held."
"But, s. 11 was not enacted for the benefit of the comfort and feelings of defendants. The general rule enunciated in the passage I have quoted from Attorney-General v Leveller Magazine Limited [1979] A.C. 440, 450, may not, as is there stated, be departed from save where the nature or the circumstances of proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice."