Do you really mean a wholly Secret Trial?

You have only to state the proposition for its absurdity to become obvious. Total secrecy in the land of Coke, Bingham or Denning? You must be joking, aren’t you? You don’t have to be a card-carrying committed human rights lawyer to entertain such thoughts. Enough to be a citizen of a free country.

So it is not at all surprising that the Times has thundered, the Guardian pronounced and my least favorite of the three, the Daily Mail screeched from the rooftops. And in principle, I agree with all of them. Who, I wonder, would not? For the fear expressed is that not only would the trial be in secret entirely, but so too any reporting of any evidence indefinitely. Total silence. Save for the result.

The problem lies in the detail. The issue can only be discussed in terms of general principle, because revealing the facts would let the cat out of the bag. It must be a pretty large beast to advance the argument, but then the Times etc and I simply do not know. Or if they know more, they cannot say. And I certainly don’t know anything, save the few details published. And if I did, I certainly would not set out to advise the Court of Appeal,

So where does that leave any discussion in a free country? With some diffidence, I suggest that in principle there should be a way round the most extreme difficulties thrown up by unique facts. A way in which the public may appreciate the operation of Justice in their name.

Let us think in terms of an irreducible minimum disclosure of what any highly sensitive case of this character is likely to be about, taking our cue from the nature of the charges, which happily now have been revealed.. And let me try to stick to principle rather than invented detail. With one exception.

What one defendant says or communicates to another person about a plan to do lethal or other damage must be the heart of any main charge, taken together with any practical steps to achieve the aim.

It follows that we, the public, who wish to know the basis of a trial or understand its consequence are entitled to the guts of that irreducible minimum.. What U said to V about the plan. What Y said to Z about the turning of theory into practice. The vehicle perhaps to be used. The type of place where equipment is to be stored before use.

But we do not NEED to know either identity or precise locations to be able to put the essential allegation into public perspective. It would make it much more interesting if we did and let that bloke from the popular press take an evocative picture of the actual scene, but that is all up for negotiation in an exceptionally serious case.

Further, the need to protect vulnerable and frightened witnesses is perfectly well understood. All measures to protect their identities are likely to command respect. But cases can be reported, nonetheless. It happens every day.

Similar questions about technology and sources can be resolved in the same way. By resolved, I mean made subject to an unambiguous ruling,
May I risk a little license to make up a silly example, but it will do nicely for my purposes.

You do not have to be an intelligence guru to know that it is possible to record from outside a room what is being said inside. Those sound waves, children, can go through glass and be picked up with the right type of microphone. [ Please sir, may we try? No Perkins, don’t interrupt]

What if Perkins in the fullness of time developed a microphone which could carry out the same exercise a mile away? Well I told you it was a silly example. But the point is that it would not be essential, as opposed to desirable, to reveal that that was the specific covert device used to record the conversations upon which the prosecution want to rely in pursuit of their case.

Why not? Because the question for the jury ultimately is the reliability of the ensuing transcript and not necessarily the means by which such a transcript was obtained. So here a series of transcripts could be taken from different buildings but at the same distance to demonstrate the relative accuracy which was possible. Nobody has to be told of Perkins’ brilliant invention which led them to be recorded a long way from the place where they were talking. Or whispering for that matter.

That may be rather cumbersome and very simplistic. Assume of course from the present rulings huge and unique intelligence issues faced with a terrible responsibility to combat an avalanche of terror. But my perceptive readers have the basic point. You SHOULD be able to achieve a fair and at least partly reportable trial by judicial commonsense and pragmatism. Not perfect, but a damn site better than no report at all. I can see that such a reduced report could protect the identity of the proposed victim or victims and that, as in many of these trials, real issues would arise about presenting intelligence evidence. Even so, we cannot contemplate a totally unreportable case. Something must be capable of being reported ultimately, even if much cannot be.

By way of example, an agreed summary of an.opening. Or at the extreme contemplated by a totally unreported trial, – if such a creature can ever be permitted – as full a summary of the trial after it’s conclusion as possible.

All of which has encouraged me to look into the Thunderer’s offer to take up
an I pad edition for £3 a week.

What price Justice in a free country?

Nigel Pascoe QC


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