CENTRAL CRIMINAL COURT
B e f o r e :
| WANG YAM
|- and -
H.M. ATTORNEY GENERAL
Mr James Eadie QC and Mr Jonathan Hall (instructed by The Treasury Solicitor) for the Attorney General
Hearing dates: 16th December 2013
Crown Copyright ©
MR JUSTICE OUSELEY :
"Limitation on publicity
There has been no occasion for this court to give any part of its judgment in closed form. This judgment may be reported without restriction. But in order to confirm the position, we reiterate the order which we made at the outset of the hearing. There were orders made by Ouseley J at the trial, which prevented any publication which could reveal the grounds or reasons for excluding the public from part of the proceedings, or any evidence, submissions, judicial decisions or other matter heard or dealt with in camera. Those orders are to remain in force. They are attached hereto, together with an informative explanation. Similarly there must be no publication of anything which could reveal the grounds on which a limited part of the proceedings before us was conducted in camera, or anything which occurred during that part of the hearing before us.
Order of Ouseley J, 15 January 2008.
It is ordered under section 11 of the Contempt of Court Act 1981, and all other powers enabling, that:
the court having ordered that the press and public be excluded from part of these proceedings for the due administration of justice, no report is to be published revealing the grounds or reasons for the making of the order or any evidence, submissions, judicial decisions or other matter heard or dealt with in camera, other than that which has been said in public in these proceedings. For the avoidance of doubt the reasoned judgment delivered by the Honourable Mr Justice Ouseley on 15 January can be published. This order does not affect the operation of the normal rules of contempt of court applicable to any evidence, submission or discussion dealt with in public, in the absence of any specific order.
This order to remain until further order.
"Informative: Media organisations are reminded that purporting to reveal or speculating as to what was or may have been said in camera may be an attempted contempt of court, punishable as a contempt: A  1 WLR 1361."
"that there would be a real risk of serious harm to an important public interest were either the Order to be discharged in its entirety, or in part, permitting disclosure of the "in camera" information, or were disclosure to be made to the Strasbourg court of the information in the draft "response document".
This was supported by a closed schedule, not seen by Ms Brimelow but she was aware of its existence.
The trial and appellate decisions
"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."
The ECtHR proceedings
The powers of the ECtHR
"…complete freedom in assessing not only the admissibility and the relevance but also the probative value of each item of evidence before it. Only the Court may decide whether and to what extent the participation of a particular witness would be relevant for its assessment of the facts and what kind of evidence the parties are required to produce for due examination of the case. The parties are obliged to comply with its evidential requests and instructions, provide timely information on any obstacles in complying with them and provide any reasonable or convincing explanations for failure to comply… It is therefore sufficient that the Court regards the evidence contained in the requested decision as necessary for the establishment of the facts in the present case." (para 208).
"213. The Court reiterates that the judgment by the national authorities in any particular case that national security considerations are involved is one which it is not well equipped to challenge. However, even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and the relevant evidence. If there was no possibility to challenge effectively the executive's assertion that national security was at stake, the State authorities would be able to encroach arbitrarily on rights protected by the Convention."
"…legitimate national security concerns may be accommodated in its proceedings by means of appropriate procedural arrangements, including restricted access to the document in question under Rule 33 of the Rules of Court and, in extremis, the holding of a hearing behind closed door. Although the Russian Government were fully aware of those possibilities, they did not request the application of such measures, even though it is the responsibility of the party requesting confidentiality to make and substantiate such a request."
"…one would normally expect an appeal court to be entitled to have access to all the material available to the court below and to see all the reasoning of the court below. Otherwise, it is hard to see how an appeal process could be conducted fairly or even sensibly. …"
The scope of the order restricting references to the "in camera" material
"The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say-
i. (c) where the court sits in private for reasons of national security during that part of the proceedings about which the information is published;"