– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

In his understated way, Lord Justice Gross announced the latest round of the prize-fight that has defined so much of the debate on the role of the legal system in a liberal democracy since the 9/11 attacks (at [4]): “From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.” This morning’s decision in Guardian Media v AB CD once again saw national security, long-running champion interest in the UK legal systems, take to the ring being heralded (at [4]) as “a national interest of the first importance”.

But after decades of ruling the roost in the UK, and in the era of Al Qaeda in which the function of the state to protect individuals within its jurisdiction has been touted more widely than ever before, national security has been rocked in a succession of legal battles. It started in December 2004, in Belmarsh Detainees, when the right to liberty landed the blow that ended indefinite detention without trial for suspected foreign national terrorist suspects under the Anti-Terrorism Crime and Security Act 2001 (New Labour’s flagship response to 9/11). Five years later, in AF (No.3), the right to a fair hearing ultimately emerged victorious from a series of crunch battles with Control Orders (the system of executive-imposed “house-arrest” restrictions which replaced detention without trial). The embarrassing setbacks in the deportation of Abu Qatada saw a plucky combination of the prohibition of torture and the right to a fair hearing run rings around national security interests. Suddenly, under the European Convention principles brought into the UK legal systems through the Human Rights Act 1998, national security was no longer unassailable. The Home Secretary Theresa Mayfumed:

The problems caused by the Human Rights Act and the European Court in Strasbourg remain and we should remember that Qatada would have been deported long ago had the European Court not moved the goalposts by establishing new, unprecedented legal grounds on which it blocked his deportation. I have made clear my view that in the end the Human Rights Act must be scrapped.

Seeing these victories under the banner of human rights, advocates grew in confidence in propounding rule of law principles in the face of national security. And the courts responded. In Binyam Mohammed’s case, after interminable rounds in the High Court and an ultimate show down in the Court of Appeal, the rule of law emerged victorious (at [17]); “the interests of open justice must prevail”. Everyone loves a home-grown winner, not tainted by coming out of the “European” stable. The courts of the UK seem energised by these developments; after all, how could even the Daily Mail question a judicial approach rooted back 799 years to Magna Carta. David Cameron might well rue claims like:

In many ways the Government has a choice between this country’s ancient rights of habeas corpus and the right not be detained without trial; between Magna Carta and the ECHR.

And so last week a battered and bruised national security turned out once again against the rule of law, now touted (at [2]) as “a priceless asset of our country and a foundation of our Constitution”. But national security is nothing if not adaptable; it keeps bouncing back. For none of the above defeats of national security interests can be characterised as a knock out. The courts may have closed certain doors, but every one of the above judgments has opened new windows for national security interests.

Detention without Trial and Control Orders may have gone. TPIMs, the only form of executive measure that the courts are comfortable with signing off as “human-rights compliant” may well be “withering on the vine”, in the words of Parliament’s Joint Committee on Human Rights, because for the security services they require too extensive a level of disclose to restricted individual for too little security benefit (as seen by multiple cases of absconding from TPIMs). Deporting foreign national terrorists may be harder than ever since Abu Qatada’s case. But the criminal justice system has proven entirely open to adaptation to take up the slack. In the words of Professor Clive Walker:

The prime focus of United Kingdom anti-terrorism policy and laws in the aftermath of 9/11 seemed to be on Belmarsh rather than on the Old Bailey – in other words on detention without trial and latterly on control orders. However, the era of executive measures was never exclusive and is fading.

Criminal law responses to terrorism have picked up where executive responses have fallen foul of judicial scrutiny. And this end point is unsurprising; the criminal justice system enjoys a level of legitimacy that special counter-terrorism measures never will. Adapted offences and special police powers can be sold on civil liberties grounds much more easily than detention without trial. In legislation like theTerrorism Act 2006 we have seen offences emerge that are broader in their scope than anything ordinarily expected within the criminal law, like the offence under section 5 of “acts preparatory to terrorism”, where any act, no matter how insignificant, giving effect to a terrorist intention can carry with it up to life imprisonment. Modern criminal justice in the UK has not come closer to the invocation of a thought crime. And the judiciary have not halted this process, indeed they have encouraged it. Lord Hughes, rejecting one challenge to the similarly objectionable section 6 offence, intoned that “the complaint that is made is not about the certainty of the section, it is about its breadth and its breadth is a matter of policy for Parliament.”

Give national security an inch, and its proponents will take a mile. Invite it in to the criminal justice system, and there is a real risk that it will so thoroughly pollute the system that it will poison the very legitimacy that it sought to feed off. That is how, in AB CD, we got to a case where the authorities sought to import all of the benefits of the secret processes they enjoyed in executive measures proceedings into the criminal justice process, where they could be happily married to extended criminal offences. Today’s judgment fends off this possibility (at [21]):

We express grave concern as to the cumulative effects of (1) holding a criminal trial in camera and (2) anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified. Suffice to say, we are not persuaded of any such justification in the present case.

And this would indeed be a gross departure for the criminal justice system. The possibility would open up the UK to the possibility of cases like that of Prisoner X, who died in an Israeli prison in 2010, with no possibility for public scrutiny of the fairness of his treatment. Following today’s ruling, the media can name the individuals involved in this case as Erol Incedal and Mounir Rarmoul-Bouhadjar. And yet much of the trial will proceed in closed court (at [14]):

We are persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution.

And so in this case secret hearings will be able to proceed with regard to offences as broad as section 5 of the Terrorism Act 2006; one of the offences with which AB is charged. The trial is slated to commence next Monday in the Central Criminal Court. National Security, bloodied but unbroken, wins on points.