Decision to hold terrorism trial in camera overturned by Court of Appeal



The defendants were charged with various terrorism offences. By order of the 19 May 2014, Nicol J held that their trial be held in camera, with names anonymised and that the hearing not be reported.

The media appealed against this order and the CA (Crim Div) varied the order, with judgment handed down on 24 Sep 2014. The Court of Appeal’s order was as follows. The core of the criminal trial would still be held in camera, however, part of the trial would be in public and a number of “accredited journalists” could attend certain parts heard in private, although they would not be able to report on those parts of the proceedings pending a review at the end of the trial. The names of the defendants were made public; the Court stressed only in very exceptional circumstances would a trial be held in camera and the name of a defendant be anonymised. The Court also discharged the reporting restrictions made by Nicol J in relation to the first-instance hearing and declined to make an order for reporting restrictions of the Court of Appeal hearing

In its reasoning, the Court noted that an aspect of the rule of law is open justice, which includes criminal trials being held in public and that any departure from public criminal trials must be necessary and proportionate. However, the Court accepted that there would at times be tensions between open justice and the interests of national security, and where such tensions arise the Court’s primary role is do justice. The Court, citing Re A & Ors[2006] EWCA Crim 4 and R v Wang Yam [2008] EWCA Crim 269, employed the ‘serious possibility test’, i.e. where there is a serious possibility that the Crown will not prosecute a case if the trial is held in public, a departure from open justice may be justified.

Anthony Hudson and Ben Silverstone were involved in this case.