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Media organisations lose challenge over terror trial reporting restrictions

Published 09/02/2016

Court artist sketch by Elizabeth Cook of Erol Incedal (centre)
Court artist sketch by Elizabeth Cook of Erol Incedal (centre)

Media organisations have lost a challenge against continuing restrictions on reporting a terrorism trial which was held in conditions of unprecedented secrecy.

Lord Chief Justice Lord Thomas and two other judges at the Court of Appeal in London announced their decision on Tuesday.

The case centred on what should now be allowed to be reported following the Old Bailey trial of law student Erol Incedal.

The appeal judges had heard from a lawyer representing a number of broadcasters and newspaper publishers that the case raised "important issues about the constitutional principle of open justice".

Incedal, of south-east London, was acquitted last year of plotting with a terrorist in Syria either to target individuals such as former prime minister Tony Blair or carry out a ''Mumbai-style'' outrage using a Kalashnikov.

Much of the trial was in private, with only a small group of journalists being allowed to attend, but barred from reporting on anything they saw or heard. In addition, parts of the trial were held in secret, with the press as well as the public excluded.

Media organisations challenged a decision by the trial judge to refuse to lift r eporting restrictions which had covered the parts of the trial which were held in private.

Announcing the decision, Lord Thomas emphasised the importance of open justice, but said that the trial judge had made the correct decision "in the interests of national security".

Incedal was cleared of planning a gun attack at the end of a retrial, but he was jailed for three-and-a-half years last April for possessing a bomb-making manual on a memory card he had at the time of his arrest in October 2013. He was convicted of that offence in 2014.

His friend Mounir Rarmoul-Bouhadjar, who had admitted having an identical document, was jailed for three years by trial judge Mr Justice Nicol.

The media argued that the judge was wrong to hold that the restrictions had to stay in place, and that the end of the trial meant that the sole justification for the reporting restrictions - that reporting could seriously prejudice the administration of justice - had now gone.

Incedal admitted in evidence heard in open court that he had the document on a memory card, but argued that he had a reasonable excuse for having it and so was not committing an offence.

But the jury heard the basis for his belief that he had a reasonable excuse during the private sessions - and those reporters who were present are currently banned from reporting that information.

The organisations say there is substantial and genuine public interest in reporting of the matters that lay at the heart of the prosecution's case against Incedal, and that without such reporting the public is left unable to understand the real issue at the trial, and the reason for his acquittal on the main charge.

The Crown had sought complete secrecy for the trial - with Incedal and Rarmoul-Bouhadjar being kept anonymous - but lawyers for the media mounted a successful challenge at the Court of Appeal in 2014.

Appeal judges lifted the anonymity, saying the defendants should be named, and declared that while the ''core'' of the trial could be held in secret it must start and end in public.

Lord Thomas said: " We are quite satisfied from the nature of the evidence for reasons which we can only provide in a closed annex to this judgment that a departure from the principles of open justice was strictly necessary if justice was to be done.

"It was in consequence necessary that the evidence and other information heard when the journalists were present was heard in camera."

He added: " Because of the nature of that evidence those reasons continue to necessitate a departure from the principle of open justice after the conclusion of the trial and at the present time.

" This has the consequence that any public accountability for matters relating to the prosecution cannot be achieved through the press in its function as 'watchdog' of the public interest.

"However, as the issues relate to terrorism and those charged with combating it, it will be open to the Intelligence and Security Committee of Parliament to consider any issues it considers need to be examined and for any public accountability to be achieved in that way."

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