For many years, parts of a criminal trial, notably those involving spies, have been heard behind closed doors. But even taking into account the peculiarly British acceptance of secrecy this was extraordinary.
If the prosecution had its way, Erol Incedal, a London law student, would have remained anonymous and his trial heard in total secrecy.
After an appeal from lawyers representing the media, arrangements were eventually made for some parts to be in open court and for a small group of journalists to be present during some of the secret evidence sessions when Incedal went on trial at the Old Bailey.
During the trial, the reporters had to leave their notebooks behind, in court.
At the end of the trial, eight reporters’ notebooks were taken and are now under lock and key at MI5’s headquarters in Thames House on Millbank in central London.
My Guardian colleague, Ian Cobain, one of the reporters who covered the trial, has repeatedly asked the Home Office for the basis, in law, for MI5 to confiscate a private citizen’s property in this way.
Officials have not been able to explain it. While they say there was nothing sinister in this as the court order provided for the Crown to store them securely, and they say there was nowhere safe at court, the effect is that MI5 has effectively impounded them.
“Only once before, in more than 30 years of journalism, has a state security officer impounded one of my notebooks. And that was in Saddam Hussein’s Iraq”, says Cobain.
Incedal, 27, from south London, was arrested in October 2013 after police shot at the tyres of his Mercedes when he was pulled over near Tower Bridge in central London.
During the parts of his trial which were not held in secret, the jury heard that a listening device had been inserted inside the car 13 days earlier, capturing his conversations about jihadist groups, his supposed love of the word terrorism, and a plan that he had to purchase a gun.
An examination of his laptop resulted in the recovery of communications with a British jihadist called Ahmed, who was encouraging him to carry out a terrorist attack.
Incedal was jailed for 42 months after being convicted of the possession of a bomb-making manual that was found on a memory card hidden inside his iPhone case at the time of his arrest.
But the jury was unable to reach a verdict on the more serious charge of plotting a terrorist attack. At a retrial, a second jury cleared him of the charge, despite being told he had already been convicted of possession of a bomb-making manual.
Because Incedal’s defence case, and much of the prosecution case, was heard in secret, journalists cannot explain why the jury reached its decision.
The Guardian and other news organisations are now appealing against the trial judge’s refusal to let those journalists report what they heard. At the appeal, Lord Thomas, the Lord Chief Justice, said secrecy surrounding the case raised “really difficult constitutional issues” about the independence of prosecutors from government.
He pointed out that the Crown Prosecution Service had initially claimed it might have to drop the trial unless it was heard entirely in secret. That claim was made as a result of “representations from the executive”, Thomas said.
Though much of this appeal by the media was also heard in secret, he said the constitutional implications of what had occurred were such that he needed to raise the issue in open court.
The fact that the representations for complete secrecy had been made by “the executive”, and the way the CPS responded to them “goes to the independence of the prosecutorial decision”, Thomas said. “It is one of the really difficult constitutional issues that arises in this case.”
Lawyers for the media argue there is a “powerful public interest” in the public being permitted to know what happened behind closed doors at the Old Bailey trial.
The appeal has been adjourned until October, to give time for further examination of what actually happened during Incedal’s trials.
Until then, perhaps for ever, the public will not know why “the executive” made representations and what constitutional issues are at stake.
