Tuesday, June 10, 2014
Having just completed a series of public terrorism trials in New York, it is interesting to look at the United Kingdom as it struggles to hold a terrorism trial in complete secrecy later this month. A trial level judge has granted the government’s request to hold the terrorism trial in secret on the grounds of ntional security. In this case, “secret” means the defendants will not be named, the proceedings will not be open to the public, and the media cannot publish details about the defendants. While defendants in the United Kingdom sometimes are not named in family or sex abuse matters, for the protection of the defendant (not at the government’s request) and while some proceedings are held in camera, the combination of anonymous defenadnts and secret proceedings is unprecedented. Apparently, UK judges have the discretion to order closed trials in the interests of justice. Prosecutors contend that undisclosed national security reasons would dictate dropping the charges if the trials are not held in secret.
In the United States, this is unprecedented. In fact, with the exception of juvenile proceedings, a US court would never require that a defendant's name be withheld from publication for his or her own protection. Although US prosecutors are given fairly extensive leeway in a terrorism case to withhold discovery on grounds of national security, the trials at least have been public – at least those trials that have been held (remember Guantanamo, where detainees have not been charged or tried). And there is probably something gratifying and calming to the public about being able to follow the evidence in the media as it lead up to the verdict. Transparency helps democracy function, especially at this time of what feels like maximum distrust of government.
While the Brits seem culturally to trust their government more than Americans, and since they have no written First Amendment of Sixth Amendment to govern the public trial/free press controversy, the court’s decision to allow a secret trial may be upheld. On the other hand, the UK is still smarting from what many view as a wrongheaded government decision to follow President Bush into Iraq. That decision was in large measure based on undisclosed information. The court of appeal will have to weigh the public interests involved when it decides the case during the next week or so.
If a secret trial is allowed, Britain must be careful. It has a long, sad and still fresh experience with domestic terrorism and in accommodating its criminal procedure to terrorism’s demands. Several changes in criminal law and procedure that were originally considered necessary and adopted in the Diplock Northern Ireland courts have subsequently been applied to the mainstream criminal process (for example, making permissible a negative inference from silence). Conducting trials in secret should not be one of them.
Sean O’Neill, Secret trial damage “would be irreversible,” London Times, June 6, 2014, http://www.thetimes.co.uk/tto/law/article4110320.ece
Sean O’Neill, Move to hold terrorist trial in secret is challenged, London Times, June 4, 2014, http://www.thetimes.co.uk/tto/news/uk/crime/article4108972.ece