Open justice emerged triumphant from the hellish fog around of Binyam Mohamed’s torture claim this month, giving the media another strong precedent in favour of unrestricted court reporting.
The case concerned Foreign Secretary David Miliband’s failed attempt to prevent the publication of seven paragraphs from earlier High Court rulings on grounds of national security.
The paragraphs included some of the reasoning behind the High Court’s decision that Mr Mohamed was correct in claiming the UK authorities were involved in wrongdoing in relation to his torture when he was detained abroad on behalf of the CIA.
Fortunately the case came before a Court of Appeal bench which included Lord Judge, the Lord Chief Justice, who has repeatedly expressed a clear appreciation of the media’s role in reporting court proceedings in a democracy.
In rejecting Mr Miliband’s plea for secrecy, Lord Judge said: “In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens. Without the commitment of an independent media, the operation of the principle of open justice would be irremediably diminished.
“Although expressed in wide and general terms – and perhaps inevitably so expressed – in my judgment the principles of freedom of expression, democratic accountability and the rule of law are integral to the principle of open justice and they are beyond question.”
Lord Judge added: “Where litigation has taken place and judgment given, any disapplication of the principle of open justice must be rigidly contained, and even within the small number of permissible exceptions, it should be rare indeed for the court to order that any part of the reasoning in the judgment which has led it to its conclusion should be redacted.”
He said the rejection of torture had for centuries had a constitutional resonance for the English people which could not be over-estimated. He cited case law stating that torture corrupts and degrades the state which uses it, and he noted that when judicial torture was once routine all over Europe, its rejection by English common law was a source of national pride.
This is the judge who, over the years, has taken a close personal interest in the publication of guidance on the correct application of reporting restrictions and who wrote the foreword to the Judicial Studies Boards’ latest guidance, Reporting Restrictions in the Criminal Courts, issued last October.
And last November, it was Lord Judge who gave the keynote speech at the Society of Editors’ Conference, declaring that he had a “core belief in the principle of open justice.”
The seven paragraphs from the High Court judgments included a statement that the treatment reportedly suffered by Mr Mohamed “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.”
Lord Judge said it was important to note that the relevant paragraphs did not reveal information which would provide any potential material of value to a terrorist or a criminal, and the information had already been publicly disclosed in court proceedings within the United States.
Mr Mohamed’s open justice victory highlights the importance of a robust judiciary willing to withstand political pressure from the executive, particularly following the enactment of the Coroners and Justice Act 2009 which will enable certain inquests to be heard in secret.
When the legislation was being debated, the government said secrecy might be needed in some cases for reasons of national security. It wanted the option of holding a secret inquest, presided over by a judge alone in private, when evidence from intelligence services was likely to play a major role.
The safeguard built in to the Act is that the Lord Chief Justice (currently Lord Judge) must first have “indicated approval” to the Lord Chancellor of the appointment of the judge in charge of the secret inquiry into the relevant death.
It’s not an enormous safeguard, but it does raise the possibility of the Lord Chief Justice refusing to approve the appointment of the secret-inquiry judge if he has misgivings about the case being heard without the disinfectant glare of publicity. The secret proceedings might at the very least be left in limbo by such a move, perhaps increasing pressure for the case to be heard in public.
So long as Lord Judge is Lord Chief Justice, it seems the media and public can have confidence that bids for courtroom secrecy will be probed by a healthily sceptical judicial eye.
But the battle to maintain properly open justice remains on-going.
Judges and their core beliefs come and go, and it goes without saying that even Lord Judge said he could envisage cases where the national interest in restricting publicity might outweigh the public interest in open justice.
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