Thread: Secret trials in the UK Board: Oblivion / Ship of Fools.
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Posted by Eutychus (# 3081) on
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Story here
This has only come to light because an appeal against a case being heard wholly in private has been heard.
quote:
The court heard that AB and CD had been arrested "in high-profile circumstances" and faced allegations of the preparation of terrorist acts and possessing bomb-making instructions. (...) The Head of the Crown Prosecution Service's counter-terrorism team had claimed that if a decision was taken to hold the trial in open court, and to identify the defendants, it might have to abandon the prosecution
![[Ultra confused]](graemlins/confused2.gif)
Posted by deano (# 12063) on
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I dont have a problem with trying them in secret. They need taking off the streets because they will be a danger to the public otherwise, and to try them in public will hamper national security.
No problem at all.
Posted by Crœsos (# 238) on
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The BBC article claims that this sort secret trial is unprecedented, but that's not the case. I can understand why advocates of the idea don't want to cite historical precedent, though.
Posted by Crœsos (# 238) on
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quote:
Originally posted by deano:
I dont have a problem with trying them in secret. They need taking off the streets because they will be a danger to the public otherwise, and to try them in public will hamper national security.
That's a pretty bold assertion, given that by definition you don't know who "they" are or why "they" are supposedly dangerous. That's a fairly remarkable amount of faith in the infallibility and honesty of the government.
Posted by The Rhythm Methodist (# 17064) on
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No problem with that, at all. If they are innocent, they walk away without any lingering suspicion from the public. If they are guilty, a secret trial is far more charitable than anything they would have conferred on their intended victims.
Perhaps there are also good reasons for the case to be abandoned if made public: could be the safety of witnesses or informers, for example.
Posted by deano (# 12063) on
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quote:
Originally posted by Crœsos:
quote:
Originally posted by deano:
I dont have a problem with trying them in secret. They need taking off the streets because they will be a danger to the public otherwise, and to try them in public will hamper national security.
That's a pretty bold assertion, given that by definition you don't know who "they" are or why "they" are supposedly dangerous. That's a fairly remarkable amount of faith in the infallibility and honesty of the government.
Yes. I trust them more than I trust people who would let terrorists walk free on principle.
Posted by Crœsos (# 238) on
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quote:
Originally posted by deano:
quote:
Originally posted by Crœsos:
That's a fairly remarkable amount of faith in the infallibility and honesty of the government.
Yes. I trust them more than I trust people who would let terrorists walk free on principle.
Why bother with a trial then, given that you're already certain of "their" guilt and the government never makes mistakes about this sort of thing?
Posted by deano (# 12063) on
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quote:
Originally posted by Crœsos:
quote:
Originally posted by deano:
quote:
Originally posted by Crœsos:
That's a fairly remarkable amount of faith in the infallibility and honesty of the government.
Yes. I trust them more than I trust people who would let terrorists walk free on principle.
Why bother with a trial then, given that you're already certain of "their" guilt and the government never makes mistakes about this sort of thing?
They are going to get a trial and that's fine. I just don't want it to damage our national security or to pander to those who would smirk if it did get damaged.
Posted by Crœsos (# 238) on
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quote:
Originally posted by deano:
quote:
Originally posted by Crœsos:
Why bother with a trial then, given that you're already certain of "their" guilt and the government never makes mistakes about this sort of thing?
They are going to get a trial and that's fine.
That doesn't really answer the question. If you "know" the accused are guilty, even in the absence of any evidence, why bother with the time and expense of trial?
quote:
Originally posted by deano:
I just don't want it to damage our national security or to pander to those who would smirk if it did get damaged.
You'd think the "trust us, national security is at risk in ways we can't tell you about" excuse would have worn a little thin lately as an explanation for why the government must be sheltered from accountability or scrutiny of any sort, but I guess not.
Posted by Sioni Sais (# 5713) on
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The good(ish) news is that the government doesn't get to decide whether a case is held in secret and goes unreported. Judges decide and they have a pretty good track record for standing up to government ministers, such as the attempts by numerous Home Secretaries to set aside parts of the Human Rights Act.
I still reckon it's a poor idea. We had some ad hoc justice in Northern Ireland and I don't think they helped in the long term.
Posted by deano (# 12063) on
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I don't know they are guilty, which is why they are going to be tried, to find out if they are or not.
Just not where people who enjoy the spectacle of our national security being damaged can watch.
I don't think the notion of damaging our national security should wear thin, nor of removing people from the streets if - IF - they are a threat to the public.
It's a balance and this seems an eminently sensible way of striking that balance.
Posted by Oscar the Grouch (# 1916) on
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Whilst I wouldn't be against secret trials completely, there are all sorts of alarm bells ringing.
First of all, I would rather that we had a public debate about such matters BEFORE the government tried to push through a decision. Let the issues be discussed in general widely and let's evaluate the pros and cons. Then, and only then, can we make a decision about what is truly just.
Secondly, we need to have clear guidelines about when such trials can take place and under what conditions. Who decides? What are the criteria? How can such decisions be challenged?
The track record of the UK government (and the US and the French and....) does not give confidence that we should just leave it in their hands and trust them to "do the right thing". There needs to be a clear and independent evaluation of each occasion when a secret trial is requested.
One suggestion (off the top of my head) would be that such an evaluation should not be undertaken by the country concerned, but referred to an independent body - perhaps a friendly nation. Or perhaps a specialist group within the UN.
Denial of justice simply feeds the martyrdom complex of terrorists and their supporters. Surely, we have learned that by now, haven't we?
Posted by Crœsos (# 238) on
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quote:
Originally posted by Sioni Sais:
The good(ish) news is that the government doesn't get to decide whether a case is held in secret and goes unreported. Judges decide and they have a pretty good track record for standing up to government ministers, such as the attempts by numerous Home Secretaries to set aside parts of the Human Rights Act.
Isn't the judiciary empowered by the state, and therefore a government entity? (This may be complicated in U.K. terminology where "government" can be either shorthand for "the state" or "the current ruling Parliamentary coalition").
One of the interesting conundrums for those facing trial by secret tribunal is the secrecy of the tribunal itself is an argument in favor of conviction. The presumption behind the secrecy is that revealing the evidence presented at trial to those outside the usual government system of classification and security clearances will damage national security. By definition the defendants in such trials are outside that system. So the state is left with the option of either requiring defendants to prove their innocence against secret evidence or be willing to imprison the accused even if acquitted until such time as the secrets revealed during trial are no longer considered important to national security*. There's a third option of just hoping that those acquitted will feel the need to keep the secrets of the government that just imprisoned them, but most states don't feel comfortable with that option.
--------------------
*I understand that several of the prisoners at Guantánamo who were eventually determined to be "wrong place at the wrong time" cases were still detained after that determination was made on the grounds that the conditions of their imprisonment at Guantánamo was classified and they couldn't be trusted not to reveal it if released.
Posted by que sais-je (# 17185) on
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quote:
Originally posted by deano:
I dont have a problem with trying them in secret. They need taking off the streets because they will be a danger to the public otherwise, and to try them in public will hamper national security.
No problem at all.
Should we add "If they are guilty" somewhere in there?
Posted by Gareth (# 2494) on
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Secret trials happen all the time in the Family Courts.
http://www.blanchardslaw.co.uk/blog/children-and-the-family-court-is-it-time-to-open-up-the-system-to-public-scrutiny/
Posted by HCH (# 14313) on
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The obvious problem with secret trials for anyone is that the standard of justice involved is not publicly verifiable and therefore cannot be guaranteed as consistent with other such trials or with public trials.
For us to trust the outcome of a secret trial requires that we have the utmost faith in the honesty and competence of the judges, juries and legal representation involved, despite not knowing their identities. As yourself: do you trust all judges completely and equally?
Other possibilities come to mind as well. Suppose I read in the newspaper that so-and-so has been charged with a crime, and I then realize that although I have not been questioned by anyone, I happen to be in a position to provide the accused with an alibi. As the proceeding is public, I am in a position to come forward. If the proceeding is secret, I may not even know that this individual is under suspicion.
As I understand it, the usual preference is to acquit someone who is in fact guilty rather than to convict someone who is in fact innocent. The idea of a secret trial seem to me to be at odds with this preference.
Posted by Eutychus (# 3081) on
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quote:
Originally posted by The Rhythm Methodist:
Perhaps there are also good reasons for the case to be abandoned if made public: could be the safety of witnesses or informers, for example.
From the quote in the OP, emphasis mine: quote:
The Head of the Crown Prosecution Service's counter-terrorism team had claimed that if a decision was taken to hold the trial in open court, and to identify the defendants, it might have to abandon the prosecution
In other words, the reason invoked is none of the ones The Rhythm Methodist outlines; it's that they do not want to reveal the identity of the defendants.
I'm having a hard time imagining why that might compromise the prosecution case.
And I don't buy the argument of security through obscurity.
[ 04. June 2014, 21:13: Message edited by: Eutychus ]
Posted by chris stiles (# 12641) on
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quote:
Originally posted by deano:
I don't know they are guilty, which is why they are going to be tried, to find out if they are or not.
There are plenty of instances of prosecutors filtering evidence to defence lawyers so that they don't have access to the information that could be used to cast doubt (or even prove innocent) on the charges faced by their clients (often because the police are trying to cover their arses).
That some of these cases are brought to light is down to the open nature of these trials.
The instances in the US of secret trials where defence attorneys aren't even allowed to see the evidence against their clients would seem to end up perpetuating the same set of abuses. I have little reason to believe that it wouldn't end up being exactly the same over here.
Posted by orfeo (# 13878) on
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quote:
Originally posted by The Rhythm Methodist:
No problem with that, at all. If they are innocent, they walk away without any lingering suspicion from the public. If they are guilty, a secret trial is far more charitable than anything they would have conferred on their intended victims.
And how does anyone get to assess whether they are innocent, then?
Posted by orfeo (# 13878) on
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quote:
Originally posted by Gareth:
Secret trials happen all the time in the Family Courts.
http://www.blanchardslaw.co.uk/blog/children-and-the-family-court-is-it-time-to-open-up-the-system-to-public-scrutiny/
That isn't a criminal matter, so calling it a 'trial' is a complete misnomer.
Posted by The Rhythm Methodist (# 17064) on
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Originally posted by orfeo:
quote:
And how does anyone get to assess whether they are innocent, then?
In exactly the same way as in a non-secret trial. I'm sure there will still be at least one judge, and perhaps a jury. In common with other trials, I expect evidence will be presented and a verdict reached. You know - the sort of thing that happens in courts every day, when people are trying to assess guilt or innocence.
Posted by Crœsos (# 238) on
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quote:
Originally posted by The Rhythm Methodist:
In common with other trials, I expect evidence will be presented and a verdict reached.
Why would you expect that? If the evidence is too sensitive to be revealed to the public, you'd think it would also be too sensitive to reveal to suspected terrorists.
States that try people in secret and anonymously have a very bad history.
Posted by no prophet (# 15560) on
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quote:
Originally posted by orfeo:
quote:
Originally posted by Gareth:
Secret trials happen all the time in the Family Courts.
http://www.blanchardslaw.co.uk/blog/children-and-the-family-court-is-it-time-to-open-up-the-system-to-public-scrutiny/
That isn't a criminal matter, so calling it a 'trial' is a complete misnomer.
They do call them trials in Canada. Trial seems to be defined as being in a court room in an adversarial process with a judge deciding something with the force of law. They are not secret, but the names of the people involved cannot be publicized and judges do clear the court of spectators for some aspects of the proceedings, usually if the presence of others will inhibit the witnesses.
I am uncomfortable with any form of legal proceeding that is secret. I am also uncomfortable with fully public information about everything. There's an balance isn't there?
Posted by The Rhythm Methodist (# 17064) on
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Originally posted by The Rhythm Methodist:
quote:
In common with other trials, I expect evidence will be presented and a verdict reached.
Originally post by Croesus
quote:
Why would you expect that? If the evidence is too sensitive to be revealed to the public, you'd think it would also be too sensitive to reveal to suspected terrorists.
I think the clue is in the word 'trial'. A 'trial' rather implies there will be evidence, and that someone will present this evidence to someone else....with a view that a verdict may be reached.
Should there be reason to withhold specific information or details from the suspects, I cannot see why this would affect the normal process of evidence being presented to those who will judge the issue...or prevent conclusions being reached. I would expect that to happen irrespective of any special arrangements....and it will therefore still be a trial.
You may have misgivings about the secrecy involved, and I wouldn't personally welcome a general move towards closed sessions. I would assume someone feels they have very good reasons for this departure from standard procedure.
Posted by Crœsos (# 238) on
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quote:
Originally posted by The Rhythm Methodist:
I think the clue is in the word 'trial'. A 'trial' rather implies there will be evidence, and that someone will present this evidence to someone else....with a view that a verdict may be reached.
How this works in practice can very important. The adversarial process is not some quaint technicality from a bygone day, it's a rather critical part of the process for reasons I wouldn't think needed to be explained.
But apparently I do. Consider the relationship between a prosecutor (someone) and a grand jury (a group of someone elses). Prosecutors present evidence and the grand jury decides whether that evidence is sufficient to issue an indictment. This process is considered insufficient for determining guilt or innocence, mostly due to the lack of an adversarial advocate on behalf of the accused. Hearing only one side of the story is considered insufficient to reach any kind of certainty.
In other words, a trial should consist of more than simply "someone . . . present[ing] this evidence to someone else".
quote:
Originally posted by The Rhythm Methodist:
Should there be reason to withhold specific information or details from the suspects, I cannot see why this would affect the normal process of evidence being presented to those who will judge the issue...or prevent conclusions being reached. I would expect that to happen irrespective of any special arrangements....and it will therefore still be a trial.
Most trials in the Western tradition allow the suspect to mount a defense. This is premised on the idea that the accused know both what they're accused of and the evidence against them.
quote:
Originally posted by The Rhythm Methodist:
I would assume someone feels they have very good reasons for this departure from standard procedure.
Someone always feels they have very good reasons. That's why we have no colloquialism about the road to Hell being paved with intentional malice.
Posted by The Rhythm Methodist (# 17064) on
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Originally posted by Croesos:
quote:
Most trials in the Western tradition allow the suspect to mount a defense. This is premised on the idea that the accused know both what they're accused of and the evidence against them.
You seem to be assuming that there will be matters of substance withheld from the accused - things which will render them less able to defend themselves. I can't extrapolate that from what I know - which amounts only to the trial being held in closed session. Perhaps you have grounds to believe the suspects will be deprived of their right to mount an effective defence, in which case you're better informed than I am. But if your knowledge is no more extensive than mine, then it would seem rather speculative to assume that a secret trial is somehow unfair to defendants.
Posted by Crœsos (# 238) on
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quote:
Originally posted by The Rhythm Methodist:
Originally posted by Croesos:
quote:
Most trials in the Western tradition allow the suspect to mount a defense. This is premised on the idea that the accused know both what they're accused of and the evidence against them.
You seem to be assuming that there will be matters of substance withheld from the accused - things which will render them less able to defend themselves. I can't extrapolate that from what I know - which amounts only to the trial being held in closed session.
In closed session for reasons of national security. In other words, it has been argued that the facts to be presented at trial are simply too dangerous to be known by the general public.
quote:
Originally posted by The Rhythm Methodist:
Perhaps you have grounds to believe the suspects will be deprived of their right to mount an effective defence, in which case you're better informed than I am.
Just a fairly simple line of reasoning I've already explained. If revealing the evidence to be presented is a danger to national security, presenting it to the defendants would be a similar danger since, if they're acquitted, it would be difficult for the state to guarantee their silence. The same logic that would apply to the public at large would seem to apply to the defendants.
Of course, some information considered dangerous to national security is already known to the defendants. Specifically their identities.
Posted by Eutychus (# 3081) on
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quote:
Originally posted by Crœsos:
Of course, some information considered dangerous to national security is already known to the defendants. Specifically their identities.
Which are, apparently, as I keep saying, the reason invoked for not having the trial in public.
Can somebody more awake than me offer a plausible national-security-like line of reasoning for not revealing the identities of the defendants?
[ 05. June 2014, 04:58: Message edited by: Eutychus ]
Posted by Oscar the Grouch (# 1916) on
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At a guess - if the identities of the defendants were made public, that could reveal to a terrorist organisation:
a) That their cover was completely blown. Hence, as long as identities are concealed, it may be possible to find out more about the organisation and its plans, rather than spook them into going completely underground.
b) That some of its members are double-agents who have betrayed them. Hence, as long as identities are concealed, the double agents can continue to work and possibly thwart still more atrocities.
(I've always wanted a legitimate reason to use the word "thwart")
I think it has to be something along these lines - that concealing identities is believed to be necessary in order that action against the terrorist group can continue.
Posted by Leorning Cniht (# 17564) on
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quote:
Originally posted by Eutychus:
Can somebody more awake than me offer a plausible national-security-like line of reasoning for not revealing the identities of the defendants?
Well, I think we can safely assume that any co-conspirators of the defendants know that they've been arrested too.
How about the suggestion that these people were caught by a double agent, who will not be put on trial, so revealing the identities of the men on trial will allow people to determine the identity of the government agent?
Or one of the accused is a close relative of a senior politician, and Britain would be less trusted by its allies if they knew that a terrorist's relative was reading all the shared intelligence information.
A bit far-fetched, maybe?
Posted by ExclamationMark (# 14715) on
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If the judiciary were more representative I'd be happy. Until they are, I'm not. It's a lot of old male lawyers (who aren't good enough at law to become QC's) who are deciding what we can and can't know about.
There may be issues of security: there may be no cover ups going on - but recent history of judges, courts and hearings (e.g Hillsborough) suggest that there's enough doubt to have it all seriously questioned. Even at the lowest level of courts (Magistrates) cock ups on all sorts of level are an everyday event.
Posted by Alan Cresswell (# 31) on
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Of course, the vast majority of trials are defacto secret. If you're sufficiently interested, you could probably find out who has been tried at your local Sheriffs Court (or equivalent) in the last month. But, in the majority of those cases the only people present would be court officials, lawyers, a jury, some witnesses, the defendants and maybe a family member or two. They don't get reported in the media, simply because they're of very little public interest. The absence of members of the media in the court doesn't make the trial any less fair.
Posted by Gee D (# 13815) on
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quote:
Originally posted by ExclamationMark:
If the judiciary were more representative I'd be happy. Until they are, I'm not. It's a lot of old male lawyers (who aren't good enough at law to become QC's) who are deciding what we can and can't know about.
I can't think when last a barrister was made a judge of the Supreme Court here without first having been a QC or SC*, and there have been very few of the District Court either.
From memory, it's a long. long time since any barrister was appointed a High Court judge in England without first having been a QC either.
*Since 1993, there have been no appointments as QC in NSW; all have been SC instead.
Posted by Eutychus (# 3081) on
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Thank you Oscar and Leorning. I'm not sure I find these explanations reassuring, though.
Posted by Eutychus (# 3081) on
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quote:
Originally posted by Alan Cresswell:
The absence of members of the media in the court doesn't make the trial any less fair.
Not in and of itself, but the potential for a journalist to be sitting there does. Trials are conducted in the awareness that they are a public event, and that makes all the difference in my view.
Posted by Alan Cresswell (# 31) on
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There will be representatives of the public present, the members of the jury. They will be doing the job a jury always does, hear the evidence and consider that, and decide whether the prosecution has presented a case that proves guilt beyond reasonable doubt.
To what extent does the presence of other members of the public in the court make a trial more fair? Whether that's a real presence, or a virtual presence through media reporting?
Posted by Sioni Sais (# 5713) on
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quote:
Originally posted by Alan Cresswell:
There will be representatives of the public present, the members of the jury. They will be doing the job a jury always does, hear the evidence and consider that, and decide whether the prosecution has presented a case that proves guilt beyond reasonable doubt.
There may be for now, but IIRC, trial by jury was suspended in Northern Ireland for cases connected to "The Troubles".
quote:
To what extent does the presence of other members of the public in the court make a trial more fair? Whether that's a real presence, or a virtual presence through media reporting?
The very fact that the press can attend must put counsel, court staff the judge and everyone in the court on their mettle.
Posted by Eutychus (# 3081) on
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quote:
Originally posted by Alan Cresswell:
There will be representatives of the public present, the members of the jury. They will be doing the job a jury always does, hear the evidence and consider that, and decide whether the prosecution has presented a case that proves guilt beyond reasonable doubt.
To what extent does the presence of other members of the public in the court make a trial more fair? Whether that's a real presence, or a virtual presence through media reporting?
In the case in hand, one wonders what the future of the jurors will be. Ordinary members of the public will have become privy, it is apparently being argued, to terribly sensitive information. They may not be able to discuss their deliberations, but are they to be bound over not to discuss the trial at all, ever after? That seems hard to justify, let alone enforce.
The point of members of the public (not necessarily the media) being present is that the whole proceedings can be seen to be conducted properly by independent observers. In a trial like this, the opportunity for the jury to be completely intimidated by the prosecution appears to be a very real risk.
(This is one of my more secular reasons for being a prison chaplain [which in France does not make me part of the prison staff]. I am an independent observer who can turn up pretty much anywhere in the prison uninvited. I fulfil a general undertaking not to disclose sensitive information, but I'm convinced that the very fact I and others like me can have this kind of access makes a major contribution to preventing abuses).
Posted by Alan Cresswell (# 31) on
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quote:
Originally posted by Sioni Sais:
quote:
Originally posted by Alan Cresswell:
There will be representatives of the public present, the members of the jury. They will be doing the job a jury always does, hear the evidence and consider that, and decide whether the prosecution has presented a case that proves guilt beyond reasonable doubt.
There may be for now, but IIRC, trial by jury was suspended in Northern Ireland for cases connected to "The Troubles".
You seem to be suggesting a "slippery slope" argument. We had a recent thread here on the logical fallacies presented by that argument.
But, I agree it could be seen as a progression of prior practice. It is quite common for parts of trials to be conducted with the media excluded, for example to protect the identity of witnesses.
The protection of the identity of the defendants is a new step, and one that does require the entire trial to be held in secret. Though, there are a fair few men who have been acquitted of rape who would have probably liked their trials to be secret.
There is a major debate to be had, and I agree with some earlier comments that it should have been had prior to any particular trial being made private, about protecting the reputation of people who are "innocent until proven guilty". A trial is a very public exercise in dirt flinging, and we all know that dirt sticks. There is, of course, a spectrum relating to severity/perception of charges and the profile of the accused. Someone not in the public eye getting charged and acquitted of a minor offence does no harm, the same person getting charged and acquitted of a sexual offence involving children could destroy their life. A public figure charged of a crime is reported widely, and if found not guilty that earlier coverage is still there - and, often the reporting will reveal personal details that they would prefer not to be public. Wind that up to public figures charged with serious offences and that could ruin someone even if found not guilty.
I think there may be a case for giving defendants the right to a secret trial if they want it (they may of course want the chance to make their innocence publicly demonstrated). Of course, secrecy need not be maintained if there's a guilty verdict.
Posted by Alan Cresswell (# 31) on
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quote:
Originally posted by Eutychus:
one wonders what the future of the jurors will be. Ordinary members of the public will have become privy, it is apparently being argued, to terribly sensitive information. They may not be able to discuss their deliberations, but are they to be bound over not to discuss the trial at all, ever after? That seems hard to justify, let alone enforce.
Jurors are already bound over not to discuss the trial or their deliberations. Even letting it be known what case they deliberated on would be contempt of court. This jury will not be the first to hear sensitive evidence presented in closed court, they won't be the last.
Posted by Eutychus (# 3081) on
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quote:
Originally posted by Alan Cresswell:
I think there may be a case for giving defendants the right to a secret trial if they want it
I couldn't agree less. Trials are public by nature. In my experience all you would achieve here is immunity for the rich.
One ongoing annoyance for me is the way my local paper reports criminal cases, sometimes naming the defendant and sometimes not. In my observation, the better off the defendant, the less likely they are to be named (unless they are a really public figure), irrespective of whether they are found guilty or innocent. If you're going to name some, you should name all.
quote:
Originally posted by Alan Cresswell:
Even letting it be known what case they deliberated on would be contempt of court. This jury will not be the first to hear sensitive evidence presented in closed court, they won't be the last.
If this is true, then it's all the more reason for the non-involved public to be able to attend. What kind of justice is it if the entire proceedings - detail of accusations, evidence, identity of the parties, length of the hearing, sentencing - is secret?
Bear in mind that we wouldn't even know this trial existed if an appeal against this secrecy hadn't been lodged, and reporting restrictions on the appeal lifted. I find that chilling.
Posted by Gareth (# 2494) on
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quote:
Originally posted by orfeo:
quote:
Originally posted by Gareth:
Secret trials happen all the time in the Family Courts.
http://www.blanchardslaw.co.uk/blog/children-and-the-family-court-is-it-time-to-open-up-the-system-to-public-scrutiny/
That isn't a criminal matter, so calling it a 'trial' is a complete misnomer.
What a curious approach to make. And, I'm afraid, quite insupportable.
It involves barristers making legal arguments and judges deciding on them, and the consequences (such as children removed from families) are enforced by the police.
Posted by Eutychus (# 3081) on
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quote:
Originally posted by Gareth:
It involves barristers making legal arguments and judges deciding on them, and the consequences (such as children removed from families) are enforced by the police.
I agree that there is a problem with this sort of thing happening behind closed (or semi-closed) doors, and whether the fact the child is a minor makes a difference can be debated, but - rightly or wrongly - there is a precedent for this in a way which, in modern times, I don't think there is where no minors are involved.
Posted by Marvin the Martian (# 4360) on
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quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by Eutychus:
one wonders what the future of the jurors will be. Ordinary members of the public will have become privy, it is apparently being argued, to terribly sensitive information. They may not be able to discuss their deliberations, but are they to be bound over not to discuss the trial at all, ever after? That seems hard to justify, let alone enforce.
Jurors are already bound over not to discuss the trial or their deliberations. Even letting it be known what case they deliberated on would be contempt of court. This jury will not be the first to hear sensitive evidence presented in closed court, they won't be the last.
Besides which, the UK has an Official Secrets Act that would ban all present at the trial - defendants and jurors included - from revealing what they heard during it. Doing so could carry a penalty of up to two years imprisonment on top of any penalties for contempt of court.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Gareth:
quote:
Originally posted by orfeo:
quote:
Originally posted by Gareth:
Secret trials happen all the time in the Family Courts.
http://www.blanchardslaw.co.uk/blog/children-and-the-family-court-is-it-time-to-open-up-the-system-to-public-scrutiny/
That isn't a criminal matter, so calling it a 'trial' is a complete misnomer.
What a curious approach to make. And, I'm afraid, quite insupportable.
It involves barristers making legal arguments and judges deciding on them, and the consequences (such as children removed from families) are enforced by the police.
You'll have to provide evidence of police involvement.
Posted by Gee D (# 13815) on
:
I understand that the police will enforce custody etc orders of the Family Court. You may remember a case a couple of years ago where the order was that the children remain in Aust with their father; the police found the children and restored them to his custody, leaving the wife to return to Italy. That's but a very public example of what happens on a daily basis.
Cases concerning children are in a rather special category, with steps taken to protect their privacy. But the decisions are available on the net so that a judge's reasoning is exposed to public view. It's just that letters or pseudonyms are used to protect the children. The same often happens in criminal cases of rape or child sexual abuse. The hearings are open but names are avoided.
Finally, there are frequently decisions made appearing on the net as "decision restricted" or some such. Those are decisions suppressed until a case has been completed. Usually they are decisions on the admissibility of evidence, and it is better that they remain suppressed until a verdict is returned in the trial before publication is made.
Posted by Eutychus (# 3081) on
:
Understood. And as I said, all this is different to the case in hand (or at least what I can establish about it), in which as things stand there is no guarantee of anything ever being made public.
Posted by Moo (# 107) on
:
quote:
Originally posted by Alan Cresswell:
If you're sufficiently interested, you could probably find out who has been tried at your local Sheriffs Court (or equivalent) in the last month. But, in the majority of those cases the only people present would be court officials, lawyers, a jury, some witnesses, the defendants and maybe a family member or two.
AIUI there are quite a few people who attend court as a hobby. Presumably they have time on their hands and prefer to use it this way.
I have the impression that it is relatively rare for no one to be in the courtroom who has no business there.
Moo
Posted by Crœsos (# 238) on
:
Secret trials present an added difficulty for any legal system based on precedent. If precedent is secret, you've effectively created a system of secret law, where the public is kept deliberately unaware of what laws bind them.
There's a reason anonymous detention and secret trials were some of the more favored tools of recent history's most infamous regimes. Is there any functional difference between the state having the power to hold someone anonymously and try them in secret and the state having the power to simply "disappear" people?
Posted by Anglican't (# 15292) on
:
quote:
Originally posted by orfeo:
quote:
Originally posted by Gareth:
quote:
Originally posted by orfeo:
quote:
Originally posted by Gareth:
Secret trials happen all the time in the Family Courts.
That isn't a criminal matter, so calling it a 'trial' is a complete misnomer.
What a curious approach to make. And, I'm afraid, quite insupportable.
It involves barristers making legal arguments and judges deciding on them, and the consequences (such as children removed from families) are enforced by the police.
You'll have to provide evidence of police involvement.
Sorry, Orfeo, I don't quite understand the point you're making here. Can you clarify?
Posted by Eutychus (# 3081) on
:
I have to say that, unusally, I agree with Croesos entirely here.
Posted by Anglican't (# 15292) on
:
quote:
Originally posted by Crœsos:
Secret trials present an added difficulty for any legal system based on precedent. If precedent is secret, you've effectively created a system of secret law, where the public is kept deliberately unaware of what laws bind them.
I wouldn't have thought this was such a problem as this would be a first-instance case. Precedents largely come from the higher courts.
That said, what happens if an appeal arises out of the trial? Not sure of the position then.
Posted by Crœsos (# 238) on
:
quote:
Originally posted by Anglican't:
quote:
Originally posted by Crœsos:
Secret trials present an added difficulty for any legal system based on precedent. If precedent is secret, you've effectively created a system of secret law, where the public is kept deliberately unaware of what laws bind them.
I wouldn't have thought this was such a problem as this would be a first-instance case. Precedents largely come from the higher courts.
That said, what happens if an appeal arises out of the trial? Not sure of the position then.
It's not very hard to anticipate a system where the state and its prosecutors would know the applicable law, but defendants and their attorneys would be kept in the dark. (Perhaps literally, for the defendants.) Mounting a defense when you don't know what law you're accused of breaking would be next to impossible.
Posted by Anglican't (# 15292) on
:
That's a different issue. I agree it's not impossible but I don't think that's been a common problem in England for trials of this kind. That said, I'm not sure how having a reporter in the public gallery makes a difference if one's got duff counsel making a speech.
Posted by Crœsos (# 238) on
:
quote:
Originally posted by Anglican't:
That's a different issue. I agree it's not impossible but I don't think that's been a common problem in England for trials of this kind.
There haven't really been any "trials of this kind" (i.e. secret trials) in England since the days of the Star Chamber, so the lack of problems arising from them is unsurprising.
quote:
Originally posted by Anglican't:
That said, I'm not sure how having a reporter in the public gallery makes a difference if one's got duff counsel making a speech.
There's not just the lack of a reporter in the public gallery, there's the lack of a publicly-accessible transcript or a publicly-accessible opinion of the court. That's more or less necessary for a trial to be secret. That's bound to be an obstacle for the next defense attorney defending a client against similar secret charges. She won't have an idea what the precedents involved are, though the prosecutors will.
Posted by Anglican't (# 15292) on
:
Sorry, to clarify, by 'of this kind' I was referring to high-profile terrorism trials.
Regarding your second point, Croesos, my point is that a first-instance decision is not a strong precedent, if it's a precedent at all. There are many strong objections to secret trials, I'm not sure this is a strong one.
Posted by Crœsos (# 238) on
:
quote:
Originally posted by Anglican't:
Sorry, to clarify, by 'of this kind' I was referring to high-profile terrorism trials.
I'm pretty sure that the point of a secret trial is that it's not "high-profile". The point of secrecy is to keep the profile as low as possible. Given that the identities of the accused and the specifics of the charges against them are unknown, I'd say the profile of this case is actually pretty low.
Posted by Anglican't (# 15292) on
:
The case is high profile. As the BBC article says:
quote:
The court heard that AB and CD had been arrested "in high-profile circumstances" and faced allegations of the preparation of terrorist acts and possessing bomb-making instructions.
I presume from this that AB and CD are known to the public in some way.
Posted by no prophet (# 15560) on
:
quote:
Originally posted by Marvin the Martian:
Besides which, the UK has an Official Secrets Act that would ban all present at the trial - defendants and jurors included - from revealing what they heard during it. Doing so could carry a penalty of up to two years imprisonment on top of any penalties for contempt of court.
Which. I think, it the balanced approach that is called for in situations where some harm may arise from full public knowledge. I think the optics of process are bad when things are fully secret, and one begins to suspect that the trials may be political in some way, with government having sway over proceedings. And even when not, it looks bad.
I do have a concern generally with the idea that judges should make decisions, and that courts are run by lawyers in accord with procedures unfamiliar to the non-lawyer.
Posted by Anglican't (# 15292) on
:
quote:
Originally posted by no prophet:
I do have a concern generally with the idea that judges should make decisions, and that courts are run by lawyers in accord with procedures unfamiliar to the non-lawyer.
The purpose of having a lawyer in court is to put you in the position that you would be in if you had legal knowledge.
I’m not sure how one could have a legal system based on procedures devised by non-lawyers without there being the risk of injustice.
Posted by Oscar the Grouch (# 1916) on
:
quote:
Originally posted by Leorning Cniht:
I think we can safely assume that any co-conspirators of the defendants know that they've been arrested too.
Not necessarily.
We know that terrorist cells of this kind are set up so that if one falls, it shouldn't have much of an impact on others. I think it is highly possible for two people to be arrested and (with the right conditions) it be possible for the government to keep this secret from people further up the chain of command (such as it is in these situations). So you could argue a case that keeping complete secrecy maintains the myth that "all is well".
quote:
Originally posted by Leorning Cniht:
Or one of the accused is a close relative of a senior politician, and Britain would be less trusted by its allies if they knew that a terrorist's relative was reading all the shared intelligence information.
More plausible, I think, would be that one of the accused is a close relative of someone senior in another country and that if this person's identity were to become public, there would be a whole shitstorm of diplomatic argument and public unrest which would probably result in said person's government being forced into demanding their release.
Posted by Eutychus (# 3081) on
:
quote:
Originally posted by Oscar the Grouch:
More plausible, I think, would be that one of the accused is a close relative of someone senior in another country and that if this person's identity were to become public, there would be a whole shitstorm of diplomatic argument and public unrest which would probably result in said person's government being forced into demanding their release.
That's the best scenario addressing my question this morning that I've read so far. But I don't think it makes for a very good justification.
Posted by Anglican't (# 15292) on
:
The news report says the two suspects were arrested in 'high-profile circumstances'. I can think of two men who were arrested in such circumstances not so long ago and might have done the things accused of here (I'm not going to name them as I don't want to go to prison).
As to the reason for secrecy, I suspect (but am just guessing) that it relates to the manner in which crucial evidence was obtained.
Posted by Eutychus (# 3081) on
:
I don't think being forced to fall back on speculation is a good sign of a transparent, free society, either.
Posted by no prophet (# 15560) on
:
quote:
Originally posted by Anglican't:
The purpose of having a lawyer in court is to put you in the position that you would be in if you had legal knowledge.
I’m not sure how one could have a legal system based on procedures devised by non-lawyers without there being the risk of injustice.
I know. Been sued twice, and been to administrative tribunals 6 times. All found in my favour by the way. Also been an expert witness some 200 times. I get the idea. In practice, I would prefer to see the lawyers role diminished in many circumstances, with their role to ensure natural justice and and fair process, not to make things unnecessarily complicated and engage in posturing and rhetoric. The prevent of the risk of injustice does not mean the lawyers should be central. -- currently we are taking a run a administrative law which has been progressively lawyer-dominated in my profession by the lawyers, so I do have a bias, but it's not about eliminating the lawyers, it is defining their role and at times limiting it.
Posted by Alan Cresswell (# 31) on
:
quote:
Originally posted by Eutychus:
quote:
Originally posted by Alan Cresswell:
I think there may be a case for giving defendants the right to a secret trial if they want it
I couldn't agree less. Trials are public by nature. In my experience all you would achieve here is immunity for the rich.
One ongoing annoyance for me is the way my local paper reports criminal cases, sometimes naming the defendant and sometimes not. In my observation, the better off the defendant, the less likely they are to be named (unless they are a really public figure), irrespective of whether they are found guilty or innocent. If you're going to name some, you should name all.
In that case, I think justice is best served by naming no-one, at least not until the legal process is concluded. If a man is brought to trial and found not guilty, yet everytime he meets someone he gets "wait, aren't you the Mr Bloggs who was charged with raping that young girl?" justice has not been served.
But, I'm probably arguing for anonymity of the accused rather than secrecy of the trial. Which aren't quite the same thing.
The accused is still presumed innocent. What is gained by publicising the name of an accused?
Posted by Alan Cresswell (# 31) on
:
quote:
Originally posted by Crœsos:
quote:
Originally posted by Anglican't:
quote:
Originally posted by Crœsos:
Secret trials present an added difficulty for any legal system based on precedent. If precedent is secret, you've effectively created a system of secret law, where the public is kept deliberately unaware of what laws bind them.
I wouldn't have thought this was such a problem as this would be a first-instance case. Precedents largely come from the higher courts.
That said, what happens if an appeal arises out of the trial? Not sure of the position then.
It's not very hard to anticipate a system where the state and its prosecutors would know the applicable law, but defendants and their attorneys would be kept in the dark. (Perhaps literally, for the defendants.) Mounting a defense when you don't know what law you're accused of breaking would be next to impossible.
I'm not sure it's possible to set precedent by a secret trial. For the reasons you've stated.
Clearly, the prosecution should make full disclosure to the defense of the details of the evidence and the law they're charging the accused with. Neither of those depends on something that might have previously happened in a secret trial. If some of the lawyers involved have been part of a secret trial for a similar crime (and, it could be the defence lawyer as well as the prosecution) they may have gained some relevant experience. But, even without secret trials it's entirely possible for a lawyer to be lacking experience of similar crimes. For rare crimes (which includes serious terrorism charges) the number of lawyers with experience to do a good job of defending or prosecuting is very small, because there aren't enough such trials for lots of lawyers to build up experience. Secret or open, the chances are that the same sets of lawyers will face off each time.
Posted by hatless (# 3365) on
:
Terrorism has become the excuse for more and more powers being taken by governments, and increasing erosion of civil rights. Massively extended detention without trial, the power to stop and search vehicles and people, Guantanamo Bay, 'extraordinary rendition,' torture - and all this while terrorist attacks have actually been decreasing.
The UK Threat Levels since 2006 have been set at Severe, Critical, Severe, Critical, Severe, Substantial, Severe, Substantial. These are the top three levels. Such a paranoid view serves no purpose, in my view, other than to justify the state in giving itself greater power. I think it has to be resisted.
[ 05. June 2014, 20:00: Message edited by: hatless ]
Posted by Oscar the Grouch (# 1916) on
:
quote:
Originally posted by Eutychus:
That's the best scenario addressing my question this morning that I've read so far. But I don't think it makes for a very good justification.
FWIW, this is my preferred scenario. It explains the rather obscure threat that were the defendants' identities to be revealed, the prosecution would have to withdraw. As I understand it from what I have read, it really does seem as if the case for secrecy hinges on the identities of the accused.
Also - I agree that it doesn't seem a terribly good justification and I certainly wouldn't attempt to defend it. All I will say is that those in possession of the details were convinced of the necessity of this course of action. And whilst I have no great desire to defend the present UK government, I think we have to acknowledge that even for them this is an extreme step and was probably only taken after careful thought and legal advice.
But the fact that everyone is just guessing in the dark is a strong reason for there being some sort of independent assessment of such cases.
Posted by Eutychus (# 3081) on
:
quote:
Originally posted by Alan Cresswell:
But, I'm probably arguing for anonymity of the accused rather than secrecy of the trial. Which aren't quite the same thing.
Agreed.
Posted by Crœsos (# 238) on
:
quote:
Originally posted by Alan Cresswell:
But, I'm probably arguing for anonymity of the accused rather than secrecy of the trial. Which aren't quite the same thing.
The accused is still presumed innocent. What is gained by publicising the name of an accused?
A system where the state can hold someone both anonymously and incommunicado? What could possibly go wrong?
quote:
Originally posted by Alan Cresswell:
I'm not sure it's possible to set precedent by a secret trial. For the reasons you've stated.
Given that English law is based on precedent, I'm not sure how you can have a trial under that law that isn't a precedent. And if precedent isn't binding in these cases, doesn't that make the courts determinations fairly arbitrary?
Posted by Anglican't (# 15292) on
:
quote:
Originally posted by Crœsos:
Given that English law is based on precedent, I'm not sure how you can have a trial under that law that isn't a precedent. And if precedent isn't binding in these cases, doesn't that make the courts determinations fairly arbitrary?
Because it's a first-instance decision* and so would have little value - if any - as a precedent. I very much doubt that a case of this kind is going to require any novel interpretation of statute, etc. To the extent that it does, these issues are likely appealable to the Court of Appeal.
(*This is a civil term, not sure what the criminal equivalent is?)
Posted by Gee D (# 13815) on
:
It is not only a first instance decision, but also a jury one - and jury decisions do not set precedents. The jury foreman simply answers that the jury finds the accused guilty or not guilty on each of the offences charged. There are no reasons given for the decision.
Perhaps the judge's summing up to the jury could set a precedent, but that is very rare. The only one I can think of is Sir Owen Dixon's summing up in R v Porter (1933) 55 CLR 182, which is the classic statement on insanity as a defence in a murder trial. Some other decisions by judges in the course of a trial can become precedents, and one that springs to mind is Judge Levine's decision that the accused doctor could not be guilty of an abortion as he had an honest belief that what he was doing was for the good of the mother.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Anglican't:
Sorry, Orfeo, I don't quite understand the point you're making here. Can you clarify?
The point I'm making is that in common parlance you only call something a 'trial' when it's a criminal matter. Talking about 'secret trials' in the family court sounds very much like someone having a beef with the family law system and trying to make it sound like a deep, dark conspiracy.
Privacy in the family law system has absolutely nothing in common with closed criminal trials, because the purpose of civil and criminal matters is utterly different. Criminal matters are a contest between the accused individual and the State (in the UK and Australia, amongst others, "the Crown"). The State is acting as a representative of the community. The community is entitled to know what is being done in their name. No such community interest exists in most family law matters.
In my experience, civil matters are described as being set down for 'hearing', not for 'trial'.
Posted by Anglican't (# 15292) on
:
I see, thanks. I’m afraid that’s not my experience at all in England, with lawyers and non-lawyers alike using ‘trial’ (see, for example, this part of the Civil Procedure Rules).
There’s been press coverage and campaigning of late about the family courts, with some feeling that important decisions - particularly about children - are made behind closed doors. While these are obviously not criminal matters, I’m not sure the issues involved are a million miles apart.
[ 06. June 2014, 11:11: Message edited by: Anglican't ]
Posted by Alan Cresswell (# 31) on
:
quote:
Originally posted by orfeo:
The State is acting as a representative of the community. The community is entitled to know what is being done in their name. No such community interest exists in most family law matters.
Though, such community interest does exist in a lot of cases. For example, when whichever state organisation charged with child protection puts a child in protective custody that decision will be brought to court. In the UK at least, such cases are almost always conducted under reporting restrictions - although, not total secrecy.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Anglican't:
I see, thanks. I’m afraid that’s not my experience at all in England, with lawyers and non-lawyers alike using ‘trial’ (see, for example, this part of the Civil Procedure Rules).
So I see.
I had a look at our own
Federal Court Rules, partly because I know they were drafted quite recently (and indeed know one of the people heavily involved in drafting them), and it's rather fascinating to see the terminology, which has both 'hearing' and 'trial' in various spots.
Perhaps most fascinating of all is Part 30, which is headed 'Hearings', but then most of the individual rules have headings that mention 'trials' instead.
I'm almost tempted to ask my friend whether or not he saw a meaningful distinction, but I suspect he doesn't want to be reminded of the whole exercise as it was very lengthy. Judges are somewhat particular as drafting clients, because (1) they have very strong views as to the wording they want, and (2) the wording they want is usually highly traditional and they are suspicious that any modernisation will change the meaning.
Posted by Gee D (# 13815) on
:
That may be your experience Orfeo, but not mine. Civil cases in NSW are set down for trial in the District and Supreme Courts. In the Equity Division of the Supreme Court, the usual description is hearing, but trial is normally used at Common Law and in the District Court. It's so long since I was in the Local Court that I can neither remember the name used then nor know the current term.
I do work in the Federal Court, and given the diverse origins of work there, the general description in common talk is hearing, but the word trial is used for such matters as claims for damages under the Trade Practices Act and so forth. That diversity of work helps explain the different use of terms in the Rules. Civil cases in the ACT Supreme Court, where I do quite a bit of work, are normally called trials.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Gee D:
That may be your experience Orfeo, but not mine. Civil cases in NSW are set down for trial in the District and Supreme Courts. In the Equity Division of the Supreme Court, the usual description is hearing, but trial is normally used at Common Law and in the District Court. It's so long since I was in the Local Court that I can neither remember the name used then nor know the current term.
I do work in the Federal Court, and given the diverse origins of work there, the general description in common talk is hearing, but the word trial is used for such matters as claims for damages under the Trade Practices Act and so forth. That diversity of work helps explain the different use of terms in the Rules. Civil cases in the ACT Supreme Court, where I do quite a bit of work, are normally called trials.
In other words, the terminology is all over the shop. A drafter's nightmare. ![[Razz]](tongue.gif)
I was going to mention how New South Wales is a bastion of tradition (what with having separate equity and common law courts for decades and decades after everyone else joined them), but then you threw me by saying the ACT has 'trials' as well.
*consults ACT legislation website*
There is actually a provision here headed "trials and other hearings" - making a 'trial' a particular class of 'hearing'.
You learn something new every day. Occasionally, it may even be useful.
Posted by Ricardus (# 8757) on
:
I know the conversation has moved on, but isn't it weird that deano thinks the Government is totally ignorant and incompetent when it comes to business and market forces, but that it's completely incorruptible and doesn't need any accountability when it comes to law and order?
Posted by deano (# 12063) on
:
quote:
Originally posted by Ricardus:
I know the conversation has moved on, but isn't it weird that deano thinks the Government is totally ignorant and incompetent when it comes to business and market forces, but that it's completely incorruptible and doesn't need any accountability when it comes to law and order?
But that's the better way round than assuming they know how to plan and centrally manage an economy, and that we need to watch them in case they lock up some people who wove fwuffy bunnies.
My way round keeps the economy moving along and keeps terrorists off the streets. I don't think the other way is worth pursuing.
Posted by Ricardus (# 8757) on
:
What's wrong with the way that says the Government can't be trusted to run a centrally planned economy, AND can't be trusted to run secret trials?
Given that nobody on the Ship, to my knowledge, argues for centralised planning, that would seem to be the least controversial option, as well as being logically coherent ...
Posted by Eutychus (# 3081) on
:
quote:
Originally posted by deano:
My way round keeps the economy moving along and keeps terrorists off the streets.
1) This is like anti-virus progams. A lack of terrorists on the streets is taken as proof that the policy works.
2) Even assuming it does keep terrorists off the streets, my worry is that it might condemn the innocent without the rest of us even knowing about it. Transparency in judicial matters helps catch - or at least highlight - miscarriages of justice. I don't meet many people I believe to be innocent in jail, but I can tell you, it's no picnic.
3) The "way round" you see things has absolutely no bearing on whether your opinion is actually the right one. And ideally, we wouldn't have to choose between incompetency in one field and ability in the other. Why not have both?
[x-post with Ricardus, who said some of the same things but without a cute picture]
[ 06. June 2014, 19:04: Message edited by: Eutychus ]
Posted by orfeo (# 13878) on
:
quote:
Originally posted by deano:
My way round keeps the economy moving along and keeps terrorists off the streets. I don't think the other way is worth pursuing.
It keeps people who have been labelled as terrorists off the streets. Which isn't the same thing. Part of the purpose of a rigorous system is to ensure is that there's a decent correlation between the label and the reality.
Any time this sort of thing comes up, it's hard for me as an Australian not to be reminded of
Muhamed Haneef. It's a classic illustration of how 'facts' can be 'established' by a kind of runaway train if there isn't anyone around with both the power and the inclination to question whether there really is truth to the claims that the executive arm of government are using to lock someone up.
Thankfully for Mr Haneef the ordeal only took weeks to play out, not years, but it remains an utterly embarrassing illustration of what happens when a government eager to show that it is tough on terrorism jumps at a supposed opportunity.
Posted by Nick Tamen (# 15164) on
:
quote:
Originally posted by orfeo:
The point I'm making is that in common parlance you only call something a 'trial' when it's a criminal matter. . . .
. . . In my experience, civil matters are described as being set down for 'hearing', not for 'trial'.
A tangent I guess, but just as others have said for England and Canada, this is not the case in the US. If evidence is presented to a trier of fact, whether a judge or a jury, for the purpose of rendering judgment then it's a trial. Doesn't matter whether it's criminal or civil in nature.
A hearing here is a court proceeding on a motion, typically without evidence.
Posted by Gee D (# 13815) on
:
That's a good start Nick Tamen, but not the whole story here. A large area of work in our Federal Court is to hear appeals from decisions of the Federal Circuit Court*, and various administrative tribunals. These would be called hearings rather than trials.
Orfeo, As for being a bastion of tradition, one of these days I'll explain the difference between a Decree, an Order and a Decretal Order in Equity to you. They went, rather sadly, with the 1970 rchanges. A good aspect of the tradition is that even with modern pleadings, there is much greater strictness in NSW than in other jurisdictions - England in particular being a horror. Parties come to court knowing just what the case is and the defence to it.
* Nothing like the US use of Circuit in this.
Posted by Eutychus (# 3081) on
:
Hooray.
Posted by Oscar the Grouch (# 1916) on
:
Good news, I think.
But it is still all very strange. I still do not understand what possible argument there could have been for trying to keep the defendents' names secret.
Posted by Eutychus (# 3081) on
:
Well at first glance it is tempting to assume they (the prosecution) just decided to see what they could get away with...
Posted by Autenrieth Road (# 10509) on
:
Are there news reports of the defendants' original arrest?
Posted by Alan Cresswell (# 31) on
:
So, anyone expecting a news story saying the case has been dropped?
Posted by Eutychus (# 3081) on
:
quote:
Originally posted by Autenrieth Road:
Are there news reports of the defendants' original arrest?
There's one here, for instance, as found here. There's a Wikipedia page for everything!
[ 12. June 2014, 21:42: Message edited by: Eutychus ]
Posted by Alan Cresswell (# 31) on
:
If the only report on the arrest that can be found is in the Docklands and East London Advertiser I think someone needs to re-write the definition of "high profile".
Posted by Autenrieth Road (# 10509) on
:
Thanks, Eutychus. The linked articles about their initital appearance in court after their arrest already has them identified as only AB and CD, so as not to endanger an ongoing terrorism investigation. I wonder if their names appeared anywhere. For example is there a police or jail log saying they were taken into custody, using their names? Or were all records anonymized from the beginning?
I think it's cause for grave concern if people can be arrested and treated in a way such that no-one can find out what happened.
The article you linked to reporting the appeals court decision had a quote from someone saying if it's a matter of national security and lives are endangered, then secrecy could be justified. What seems to be missed is that the erosion of due process also endangers a nation and people's lives.
[ 12. June 2014, 21:52: Message edited by: Autenrieth Road ]
Posted by Eutychus (# 3081) on
:
That's true. The fact that the prospect of a wholly secret trial has receded should not obscure that possibility.
Posted by Ricardus (# 8757) on
:
quote:
Originally posted by Alan Cresswell:
If the only report on the arrest that can be found is in the Docklands and East London Advertiser I think someone needs to re-write the definition of "high profile".
Google brings up plenty of references ...
Posted by Alan Cresswell (# 31) on
:
I bow to superior Google-fu. I can't remember what search terms I tried, but could only get stories on the decision to allow the names to be released.
Posted by Ricardus (# 8757) on
:
quote:
Originally posted by Alan Cresswell:
I bow to superior Google-fu. I can't remember what search terms I tried, but could only get stories on the decision to allow the names to be released.
Well, tbh I only got the Tower of London arrest reference from the East London and Docklands Advertiser, so it's not as though publishing the names would have made everyone immediately say 'Oh, yes, those guys'.
Anyway I agree with your basic point. Being arrested after a car chase by armed police is dramatic and, thankfully, rare, but it doesn't usually mean the defendents get anonymity in court.
Posted by Anglican't (# 15292) on
:
Docklands and East London Advertiser is a great paper.
Posted by lilBuddha (# 14333) on
:
quote:
Originally posted by Ricardus:
Well, tbh I only got the Tower of London arrest reference from the East London and Docklands Advertiser, so it's not as though publishing the names would have made everyone immediately say 'Oh, yes, those guys'.
Funny, a google search will change day to day. Yesterday I gt the Guardian as well as the East London and Docklands Advertiser.
Today I got those as well as the mail, the express, military.com, london24, and channel 4.
Secrecy is the enemy of liberty. We should all take care of how much liberty we are willing to forsake for the illusion of safety.
Posted by Anglican't (# 15292) on
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The other thing is that secrecy causes confusion: the two terrorist suspects arrested in high-profile circumstances I had in mind are completely different to AB's and CD's real identities.
Posted by Sioni Sais (# 5713) on
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Have you considered that confusion may be the intention? Soviet Russia used maskirovka in war and peace: there was plenty of information, but it was such a collage of truths, lies, fantasy and fiction that no one knew what was going on. Not even the Politburo.
Posted by Anglican't (# 15292) on
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I can't say I do. I suspect the intelligence services held a sincere view that release of the details of this trial had repercussions and so pushed the notion to its fullest extent. A judge then came along and then tested that view against other factors, such as open justice.
Posted by lilBuddha (# 14333) on
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Sincerity is irrelevant to the concerns raised on this thread.
Posted by Anglican't (# 15292) on
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I think it's relevant to the point that I was trying to address.
Posted by lilBuddha (# 14333) on
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Yes, but what I am saying is that sincerity =/= correct.
CIA torture as an example. Do you think the CIA are all merely sadists? No, such programmes exist because many people involved sincerely believe they work, and that the net is beneficial.
Without oversight, too much is in the hands of too few.
[ 15. June 2014, 17:30: Message edited by: lilBuddha ]
Posted by Alisdair (# 15837) on
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Secret justice is no justice at all.
No matter how much people may make excuses and justifications the fact remains that pwoer is always abused and once a precedent is set---that secret trials are okay---a reason can always be found to extend the boundaries to include the next set of circumstances.
The old mantra of 'those who fail to learn from history are doomed to repeat it' certainly applies here. Many of our ancestors paid dearly in blood before this country was largely rid of the kind of autocratic paternalistic and self-interested abuses of power that produce 'secret trials', and all the other unpleasantnesses of an overweening and irresponsible government.
Anyone who thinks this kind of thing is somehow 'okay' really needs to get a grip of where we have come from, and why, imperfect as it may be, we have the system of government we now do, as opposed to what went before. Try looking at the last thousand years.
Posted by Anglican't (# 15292) on
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quote:
Originally posted by lilBuddha:
Yes, but what I am saying is that sincerity =/= correct.
Well, true, but in this case it appears that the security services/CPS, etc. had a number of reasons why they thought the entire trial, including the identity of the defendants, should be heard in camera. There are a number of competing reasons - some of which have been rehearsed in this thread - why the entire trial, including the identity of the defendants, should be held in open court.
A process has taken place to evaluate those competing reasons to see which are stronger. In some areas, the security services'/CPS's view has been upheld, but not in others.
[ 15. June 2014, 19:54: Message edited by: Anglican't ]
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