The welcome opening up of the Family Courts to public scrutiny was thrown into sharp relief last week with reports that an unprecedented request had been made by the Crown Prosecution Service for the trial of two men, known only as AB and CD who are charged with various terror offences, to be held in “secret” for reasons of national security.

Initially, even this information had been subject to a strict embargo and it wasn’t until a media challenge was successful, that the mere existence of this momentous request could be revealed.

So, what has happened to get us to this point?

From the very limited information available in the public domain, we know that AB and CD were the subjects of high profile arrests on suspicion of preparing for terrorist acts and possessing instructions for bomb making.

On May 19th , following an application by the CPS, several orders were made by Mr Justice Nicol at the Old Bailey that completely prohibited reporting of any kind in relation to the trial.  These restrictions were based on assertions made by the CPS that, so high was the risk to national security, if the orders were not granted, the prosecution may have to be abandoned all together.

An appeal against the restrictions was brought by the media, whose counsel  (Anthony Hudson) told the Court that he was not aware of any order ever being made that both provided anonymity for the Defendants and required the trial to be held in private – effectively excluding the media in its entirety.  The Orders, therefore, constituted a fundamental and unique departure from the principle of open justice.

If granted, these orders would mean that the public would never know any details of the case against the defendants and would never be aware of the verdict or sentences passed.  This trial, due to open on June 16th, would be the first in modern history to be held away from the public gaze and would be completely contrary to the fundamental principles of transparency and accountability.

It is, of course, well within the inherent power of the Court to take steps to manage proceedings in a way that protects national security, including holding hearings in private, but this power must be reserved for special circumstances.  In his challenge, Mr. Hudson said that this challenge represents a test of the court’s commitment to the constitutional principle of open justice in admittedly difficult circumstances.

Although no-one beyond the Courtroom knows any of the facts and issues in this case and it is therefore difficult to make any sort of informed comment on the matter, it is certainly arguable that a decision in favour of the Crown’s request could be seen as a direct attack on the principles of the free press and open justice.

After all, what could be more in the public interest than matters concerning threats to public safety and security? If justice needs to be seen to be done, how can a trial that takes place behind closed doors be considered just?

Of course, imposing reporting restrictions due to national security is not a particularly common issue for the regional and local press.  But if the public interest in this case demands ‘secret justice’, what is there to stop wide reporting restrictions being imposed in other cases “in the public interest”?  If we are not told what ‘public interest’ considerations apply in this case, what is there to prevent defendants in other cases claiming that the public interest applies equally to them?  Will this case turn out to be the thin end of the wedge?

It is reasonable to ask this question because in 2008, again based on principles of national security, the trial of Wang Yam for the murder of 86 year old Alan Chapplelow was held partially in secret.  However, in this case the Defendant was named and much of the trial itself was held in public.

At the time of writing, the Court of Appeal has yet to hand down its judgment.  Perhaps we are worrying about nothing and the Court will overturn the original decision of Mr. Justice Nicol.  But on the other hand, this could turn out to be a seminal moment in the history of open justice.  This is why everyone who cares for open justice and freedom of expression should be paying close attention to this case.

Are we on the verge of one of the most significant Court decision of recent times? Perhaps we are – in which case, what price freedom of expression then?