No Finer British Values

Nick Cohen writes:

The Hon Mr Justice Andrew Nicol appears to have changed his mind over the years.

"Does it really matter if a few cases go unreported?" he asked rhetorically, when he was a radical young barrister. Yes, of course it matters, he replied in his classic study, Media Law.

"Trials derive their legitimacy from being conducted in public; the judge presides as a surrogate for the people, who are entitled to see and approve the power exercised on their behalf. Those who assist the prosecution can and should be protected by other means. No matter how fair, justice must still be seen before it can be said to be done."

Just so.

Our leaders talk of the need to instil "British values" into Muslim children. There is no finer British value than open justice.

From its beginning in medieval England, it has spread across the world. The US supreme court said that openness is the defining characteristic of the integrity of a trial process. The Canadian supreme court has struck down statutes that bring secrecy to trials.

Open democracies can attack dictatorships that dispense with troublesome suspects in the dark and neither Putin nor any other crime boss can accuse them of double standards.

Britain cannot, in no small part because of the double standards of Andrew Nicol. Having praised Britain's liberal traditions when he was a barrister, Nicol became a judge.

Last month, he ruled that the trial of two defendants accused of preparing terrorist offences must take place in secret.

Not only would the evidence be heard in secret, the suspects' names and the charges they faced would be secrets, too. So secret was Nicol's secrecy order that it was a secret itself.

Last week, the court of appeal modified his ruling. Journalists applauded it for finding a way to muddle through with a typically British compromise.

On closer examination, the appeal court's concessions look more of a mess than a muddle: a mess that makes the supposedly independentjudiciary and supposedly free press complicit in a denial of basic liberties.

The court says we can name the accused. They are Erol Incedal and Mounir Rarmoul-Bouhadjar, since you asked.

We can list the charges they face. We will be able to tell you about the judge's opening remarks, a part of the prosecution case and the verdicts, after the trial begins.

Well hoo-bloody-ray, I hear you cry. It's marvellous to live in a free country, really it is.

I wouldn't be too ecstatic. A sly state is playing shrewdly on the insecurities of judges and journalists.

William Hague and Theresa May, the foreign and home secretaries, apparently told the courts that if they refused to allow the bulk of the evidence to be heard in camera they might drop the case against the defendants.

You can see the implicit threat.

The defendants would go free, without facing their accusers – and where is the justice in that, pray? What if they commit offences, perhaps violent offences? The judges would have blood on their hands.

As for editors, the judges have offered them a sweetener, the like of which Britain has never seen.

The bulk of the case will be heard in secret, the deal runs. But a few "accredited" reporters may be able to hear it all.

They can take notes, but must leave their notebooks, secured in court, at the end of each day's proceedings, like schoolchildren handing their exercise books to teacher.

When the case is over, the judge will decide what they can and cannot report and anyone who breaks the rules may go to prison.

I can see the need for "accredited" correspondents being embedded with British forces. But embedded correspondents at the Old Bailey? Who is going to accredit them? MI5?

What happens if the Guardian, say, sends one of its many reporters who have exposed the secret state? Can that same state decide that he or she is not the type of journalist it wants to hear secret evidence and demand a less awkward replacement?

Editors ought to tell the judiciary and the government to go to hell.

But it is hard for journalists to refuse to cover a story – covering stories is what we do, after all.

What if most news organisations refuse to embed themselves in an English courtroom but one of them goes along, legitimises this charade and gets a better story?

The state's offer looks preposterous, but, believe me, it feeds on editors' neuroses. No journalist wants to be last with the news.

Outsiders do not know why the procedures judges use every day to protect police informers cannot be used in this case.

But we know from Edward Snowden's revelations that the secret state pretends it is protecting agents in the field when it wants to protect itself from democratic scrutiny.

Last year, the Guardian published a revealing memo from the listening centre at GCHQ, which deserves to be remembered.

GCHQ lawyers explained that, for political reasons, they did not want to use intercept evidence in criminal trials.

They feared a "damaging public debate" on the scale of GCHQ's activities, which could lead to legal challenges against its mass-surveillance programmes.

I may be descending into conspiracy theory by suggesting that the government wants to hide the scale of legally dubious bugging rather than to protect agents.

But secret justice begets paranoid fantasy, as Andrew Nicol once knew.

In Media Law, he and his co-author, Geoffrey Robertson, drew on Bentham, Blackstone, the radicals of the English civil war and the English judges of the 19th and 20th centuries to explain why open justice was an essential freedom.

It prevented conspiratorial fantasies by allowing the public to learn what was done in its name and with its money.

It kept judges honest or, as Jeremy Bentham put it in the 1820s: "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity."

Nicol quoted with approval the declaration of John Lilburne, the proto-democrat and Leveller leader, when Cromwell tried to convict him of high treason in 1649: "No man ought to be tried in holes or corners, or in any place where the gates are shut and barred."

That strikes me as a principle judges and journalists should not toss aside 300 years later to please a British government that will not defend British values.