The crimes of Britain's secret MI5 MI6 courts

[TonyGosling]

Media groups lose appeal against secret trial of Erol Incedal
Court rules against attempt to lift reporting restrictions on terrorism trial held in conditions of unprecedented secrecy
http://www.theguardian.com/law/2016/feb/09/media-groups-lose-appeal-ag ainst-secret-trial-of-erol-incedal?CMP=share_btn_fb

Ian Cobain - Tuesday 9 February 2016
Warning: this article omits information that the Guardian and other news organisations are currently prohibited from publishing.

The court of appeal has refused to lift reporting restrictions on the secret trial of a law student who was cleared of plotting a terrorist attack in London.

However, the lord chief justice, Lord Thomas, invited Westminster’s intelligence and security committee (ISC) to investigate the role that MI5 and MI6 played in imposing secrecy on the case.

He also said the intelligence agencies and the police must abide by the decisions of the courts, and must provide prosecutors with all the assistance they require.

Furthermore, in the judgment that followed an appeal by UK media organisations, Thomas said the courts should be able to examine the secret judgments made in previous cases concerning national security. He asked that a working party be established to consider how this could be achieved.


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Handing down his judgment at the court of appeal, Thomas said: “It is important to distinguish on constitutional principles, the respective functions of those involved in cases involving national security.

“In a case involving national security ... it must be for the DPP [director of public prosecutions], and the 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.”

He added that “public accountability” of the agencies could be achieved through an investigation by the ISC.

Thomas said Sir Andrew Nicol, the judge who had presided over the trial of Erol Incedal, had been right to impose reporting restrictions, notwithstanding the importance of the open justice principle.


Incedal, 28, from south London, was arrested in October 2013 and found to be in possession of a bomb-making manual on a memory card hidden inside his mobile phone.

Initially, the Crown Prosecution Service wanted to prosecute him in secret. The media were told that, although they would be permitted to report the verdict, they would not not be informed of his identity. He would be referred to only as AB.

After the media objected, the court of appeal ordered that Incedal could be identified and that the trial should be heard in three parts: open court sessions, secret sessions, and intermediate sessions which the press could attend, but not report, pending a review by Nicol.

Throughout his trial at the Old Bailey, Incedal argued that he had a reasonable excuse for having the manual in his possession. The jury rejected this claim, however, and he was jailed for 42 months.

His friend Mounir Rarmoul-Bouhadjar, also 28, pleaded guilty to possession of the same manual and was jailed for three years. Both men have since been released from prison.

The jury failed to reach a verdict on the more serious charge against Incedal, that of planning a terrorist attack. After a retrial, a second jury acquitted him.

At the end of the retrial, Nicol decided against lifting the reporting restrictions. This meant the reasons why the jury reached its not guilty verdict could not be reported. Nor could the basis for Incedal’s claim that he had a reasonable excuse for having the manual.

The media launched a second appeal, during which Thomas disclosed in open court that MI5 and MI6 had been responsible for the initial demands for all-embracing secrecy.

He said the agencies’ suggestion that they might withhold evidence from the CPS if the trial was not heard in secrecy was “absolutely impermissible”.

“It cannot be for the security services to say: ‘Well we may not cooperate,’ because that would suggest that they are not subject to the rule of law,” Thomas said, adding that the media’s appeal raised important issues about public confidence in MI5 and MI6 and the accountability of the agencies.