No. 2008/00390/D5
Neutral Citation Number: [2008] EWCA Crim 269
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Monday 28 January 2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)

MR  JUSTICE  SILBER

and

MR  JUSTICE  UNDERHILL

__________________

R E G I N A

- v -

WANG  YAM
__________________

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
__________________

Miss K Brimelow appeared on behalf of the Applicant

____________________

Judgment

THE LORD CHIEF JUSTICE:  
1.  The applicant is due to be tried before Ouseley J and a jury in the Central Criminal Court on an indictment charging him with the murder of Allan Chappelow and with offences of dishonesty.  On 15 January 2008 the judge made an order excluding access of the public to part of the proceeding.  The applicant seeks leave to appeal against that order.

2.  Rule 65.6(3) of the Criminal Procedure Rules 2005 provides:

		"Where the appellant wants to appeal against an order restricting public access to a trial the court must decide without a hearing --

			(a)	an application, including an application for permission to appeal; and

			(b)	an appeal."

3.  This court in Ex parte A [2006] EWCA Crim 04 held that this rule was compatible with Articles 6 and 10 of the European Convention on Human Rights and with our common law.  We rejected an application by the applicant that we should disregard this rule and hold an oral hearing of this application.  Had we decided, on consideration of the papers, that the interests of justice required an oral hearing, we would have addressed the question of whether we could override this rule.  In the event, however, we were satisfied that we could deal fairly with the application on the documents, which included written submissions filed on behalf of the applicant and the Crown.

4.  The hearing below took place partly in open court and partly in private.  The judge gave two judgments, one in open court and one in camera.   We propose to adopt the same course.

5.  Rule 16.10 of the Criminal Procedure Rules provides:

		"Where a prosecutor or a defendant intends to apply for an order that all or part of a trial be held in camera for reasons of national security or for the protection of the identity of a witness or any other person, he shall not less than seven days before the date on which the trial is expected to begin serve a notice in writing to that effect on a Crown Court officer and the prosecutor or the defendant as the case may be."

Some passages in the open judgment of Ouseley J might suggest that this rule itself confers power to hold all or part of a trial in camera for reasons of national security or for the protection of the identity of a witness or other person.  That is not, however, the position; nor, when his judgment is read as a whole, did Ouseley J suggest that it was.  Rule 16.10 deals with the procedure for applying for evidence to be heard in camera on the stated grounds.  It assumes, correctly, that those grounds can justify an order for hearing evidence in camera but the justification for such an order does not lie in the rule itself.

6.  Section 8(4) of the Official Secrets Act 1920 gives power to exclude the public from proceedings under the Official Secrets Acts on the ground that publication of the evidence to be given would be prejudicial to the national safety.  That section has no application to the present proceedings.  The section expressly states, however, that the power is "without prejudice to any powers which the court may possess to order the exclusion of the public from any proceedings".  Ouseley J rightly held in his public judgment that he had an inherent power to exclude the press and the public where the interests of justice required it.  He also made it plain that the interests of justice could never justify excluding the press and the public if the consequence would be that the trial would not be fair.

7.  Ouseley J held, on the basis of material placed before him in camera, that if the press and the public were not excluded from certain parts of the trial, "serious risks would be taken".  So serious were these risks that the Crown might well drop the prosecution rather than incur them.  If the press and the public were excluded from the relevant parts of the trial, the trial would go ahead, the risks would not be taken and a fair trial would nonetheless be possible.  In these circumstances the interests of justice required that he should order the exclusion of the press and the public from those parts of the trial.

8.  In seeking leave to appeal Mr Robertson QC has not suggested that the judge's decision was erroneous if his analysis of the facts was correct.  He submitted, however, that the judge was wrong to conclude that, if parts of the trial were not held in camera, the risks would be so great as to justify the Crown in dropping the prosecution.  He described the suggestion that the Crown would do so as "forensic blackmail".  He further submitted that the judge was wrong to conclude that if the press and the public were excluded from parts of the trial, the trial would nonetheless be fair.

9.  These submissions depend upon the facts that were explored by the judge in camera and that were the subject of the private judgment that he gave.  We have considered not merely all the evidence that was placed before the judge, but the transcript of the hearing that took place in camera.  For the reasons that we have set out in our private judgment we have concluded that the judge correctly applied the relevant law to the facts before him and that his decision was correct.  Accordingly, the application is refused.

	__________________________