Law Report: Procedure on pre-trial hearings in camera

Ex parte Guardian Newspapers Ltd Court of Appeal, Criminal Division (Lord Justice Brooke, Mr Justice Kay and Mr Justice Maurice Kay) 30 September 1998

AN ORDER that a pre-trial application to stay criminal proceedings as an abuse of the process of the court be heard in camera was an order within Rule 24A of the Crown Court Rules 1982, and notice should accordingly be given of an application for such an order.

The Court of Appeal allowed the appeal of Guardian Newspapers Ltd under section 159(1)(b) of the Criminal Justice Act 1988 against an order made by Collins J at the Central Criminal Court that the part of the criminal proceedings before him concerning the defendants' application to stay the proceedings as an abuse of process be held in camera.

Notices were served on the Crown Court under Rule 24A of the Crown Court Rules 1982 indicating an intention to apply for an order that part of the proceedings in question be heard in camera. The notices failed to state whether national security or the protection of the identity of a witness was the reason for the application, and failed to specify to which part or parts of the proceedings the notice related.

Guardian Newspapers Ltd unsuccessfully opposed the making of the order, and subsequently served a notice on the Registrar of Criminal Appeals seeking leave to appeal under section 159(1)(b) of the 1988 Act.

Michael Tugendhat QC (Siobhain Butterworth) for the Guardian; Robert Boyle (Serious Fraud Office) for the Crown; Alun Jones QC and James Wood (Simons Muirhead & Burton) for the first defendant; Edmund Lawson QC and Mukul Chawla (Kingsley Napley) for the second defendant.

Lord Justice Brooke said that it fell to the court to decide for the first time whether the reference to "an order that all or part of a trial be heard in camera" in Rule 24A(1) was apt to refer to an order that a pre-trial application to stay proceedings for abuse of process be heard in camera. If the rule did not apply, then there were no rules of court to require any public notice of such an application, nor to regulate the carriage of an appeal which undoubtedly lay pursuant to section 159(1)(b) of the 1988 Act.

That would be an odd result, since it was well known that Parliament had legislated in 1988 in anticipation of the outcome of proceedings taken against the United Kingdom in the European Court of Human Rights by representatives of the press, who complained that English national law gave them no right of appeal against an order of a court denying them their right to report court proceedings pursuant to Article 10 of the European Convention on Human Rights.

It appeared to the court that the relevant rules ought to be interpreted purposively in order, if possible, to comply with the clear intention of Parliament that our national law and procedures should be altered in order to bring them in line with the requirement of Article 13 of the Convention that national law should pro-vide an effective remedy to citizens who complained that their Convention rights had been infringed.

The words "all or part of a trial" in Rule 24A should thus be interpreted as meaning "all or part of the trial process", with the beneficent effect that pre-trial proceedings of the kind in the present case were not left in an unregulated limbo, contrary to the clear intention of Parliament.

In the present case the judge's order should be set aside, because the procedure adopted had been seriously flawed. A notice served under Rule 24A should specify which of the two grounds, i.e. national security or protection of the identity of a witness, was relied on, and should be dated.

If a defendant sought to rely on reasons of national security, it was incumbent on the judge to ensure that he received relevant evidence from those who were the guardians of national security, so that he might balance the potential risks to national security and to justice if he were to direct that all or part of a hearing should be conducted in camera.