“Secret” and “trial” are two words that should not appear together. As the adage goes, justice should be done, and seen to be done. Hence the widespread disquiet about the trial of two people accused of serious terrorism offences, and the damaging precedent it sets.
Draconian as the restrictions are, they might have been still more absurd. Before a ruling by the Court of Appeal this week, the very existence of this important trial could not be revealed, and commentary about the affair not be published – an astonishing state of affairs. In all events it will, on current plans, be held entirely in secret, something that has not happened in centuries.
Thus the trials of spies in two world wars, the cases of generations of IRA terrorists (in some instances the subject of serious miscarriages of justice), of Cold War-era traitors and the post-9/11 suspects have been dealt with under the more or less normal rules of reporting, evidence and transparency. The trials of these people – some, after all, innocent – were all the more robust for being conducted in public view.
Most galling of all, even the outcome of the current trial is to be kept secret. In truth, given the power of the internet, this is unlikely to hold, but that is hardly a satisfactory remedy – especially if rumour is substituted for fact.
No attempt has been made by the Department of Justice to justify what is happening. It is difficult to imagine what particular circumstances have led to this secrecy, which compares unfavourably with some of the more repressive regimes in history.
The 2013 Justice and Security Act allowed for some parts of a trial to be hidden from public view. This came under fierce attack, including a scathing letter signed by 700 legal experts. But one justification for it – that, in a time of increasingly transnational threats, the UK ought not to make public intelligence material garnered from its allies – had some reason to it. That the legislation appears to have laid the groundwork for entire trials to be held in secret, however, is lamentable.
We have been here before, after a fashion. “Extraordinary rendition”, the export of suspects for possible torture on foreign territory, has already been a feature of the “war on terror”, and the law of habeas corpus has been compromised to deal with this supposedly existential threat.
And yet, murderous and appalling as all terror attacks are, and real as the threat to social cohesion that extremism represents, they do not approach the possibility of national extinction that was posed in 1939, or when we thought Russian nuclear missiles were liable to rain down upon us. Thus, the secrecy being attached to this trial cannot be proportionate to the scale of threat, unless the pair in question were in possession of powerful atomic or chemical weapons. It seems unlikely, but, then again, we are not being told what threat they did represent to society.
Elements of secrecy are a feature of many trials – anonymity for rape victims for example, and for witnesses in cases of national security – and there have always been rules about the fair reporting of proceedings. Few raise objections to them, for obvious reasons.
But we should be wary about arbitrary extensions: the track record is of abuse – take, for example, the misuses of Public Immunity Certificates in the Iraq “supergun” affair 20 years ago. Secrecy has always undermined justice, and is doing so again, on an unprecedented scale, today.Reuse content