Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
Closed Mixed Outcome
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Court of Appeal upheld reporting restrictions that had been placed on parts of a trial which had been held in private. The trial involved a defendant who had been accused of plotting a terrorist act.
Erol Incedal, the defendant in this case, was charged with engaging in conduct in preparation of terrorist acts contrary to section 5(1) of the Terrorism Act 2006 and had been tried at the Central Criminal Court.  From the start, reporting restrictions had been placed on the trial under the authority of section 4(2) and 11 of the Contempt of Court Act 1981 (“CCA 1981”) which provides for the postponement of reports of legal proceedings held in public. [9-10] The Central Criminal Court judge had ordered that the entire trial be held in camera – in private – until a court ruled otherwise. Media parties, which had opposed the prosecution when they sought this order, appealed to the Court of Appeal, Criminal Division. [15, 17] The Court of Appeal upheld the order to hold the trial in private and made an unusual order allowing accredited journalists to attend the trial but prohibiting them from reporting what they had seen and heard. 
Media parties again appealed following the conclusion of the trial against Incedal. They claimed that there was no longer a significant risk or serious possibility that the administration of justice would be frustrated if the media published reports of the trial, and therefore, there was no longer a continuing justification for the restrictions on reporting. Furthermore, the publication of reports of the trial would not give rise to such a risk. 
Lady Justice Hallett and Lady Justice Sharp delivered the judgement. They began by considering the open justice principle in the context of national security cases. The Court held that it was well established that in cases involving national security, it was for the Director of Public Prosecutions (DPP) alone “to determine whether to prosecute and, if so, whether to apply to the court for part of the proceedings to be heard in camera.”  When the DPP makes an in camera application, the court has to proceed “on the basis that the principle of open justice is fundamental to the rule of law and to democratic accountability”. Any departure from that principle can only be made in unusual or exceptional circumstances, and it is for the DPP “as the party seeking to curtail the principle of open justice, to make a very clear case.” [47-50] However, whether or not departure from the open justice principle is related to national security, it is the court that has the final say regarding whether or not the case should be heard in public.  The test for whether a trial should be conducted in camera is a strict one that requires a showing of necessity; namely, that without excluding the public, justice cannot be done.  The Court also pointed out that the decision to hold a trial in camera is always subject to review in light of changing circumstances. For example, if a defendant is convicted, there is no longer a justification for maintaining restrictions. [63-64]
The court acknowledged that the evidence presented several elements that could constitute a “strong public interest” in the hearings: i) the offences charged were serious; ii) the sentence given was significant for the offence of which he was convicted; iii) the evidence which might explain the defendant’s earlier acquittal on the more serious charge is not known to the public; iv) in terrorism terrorism cases, the public has a strong interest in understanding the counter terrorism branch of the police and the Security and Intelligence Services in so far as information provided to the public does not compromise the effectiveness of their role or otherwise damage national security; and v) The press performs the vital role of protecting the public interest. 
Nonetheless, the court’s decision, based on a private review of the nature of the evidence, was that a departure from the principles of open justice was strictly necessary if justice was to be done and that the same reasons continued to necessitate a departure from the principle of open justice after the conclusion of the trial. [73-74] The court clarified that the press would not be able to exercise its role as “watchdog” of the public interest regarding this prosecution but that, since it was related to terrorism, it would be open to the Intelligence and Security Committee of Parliament to consider any issues that should be examined for public accountability purposes. 
In its judgment, the court included an observation section in which it noted that it was unsatisfactory and problematic that closed judgments containing the detailed reasons why a court decided that evidence should be heard in camera are not retained within the court files or in any specified place within the court, because a court should be able to refer to the earlier decision in order to be consistent and learn from previous approaches. Further, at some point in the future, the disclosure of the decision might be sought when there is no longer a reason to keep the information from the public.  Thus, the Court as the Registrar recommended to form a working party to advise the Court of Appeal, Criminal Division, on what actions it should take in this regard.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case presents a mixed outcome regarding freedom of expression because, while the court upheld restrictions on reporting thereby limiting journalistic freedom, it did so whilst acknowledging the primacy of the open justice principle. The court underlined the exceptional status of national security cases and how they can necessitate a departure from open justice. However, the court also held that these decisions are subject to constant review in the public interest, and that courts should have mechanisms through which there is access to closed judgments so they may be disclosed at future dates when secrecy is no longer necessary.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.