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Tuesday, February 09, 2016 

Even after acquittal, even after release, national security trumps all.

The continuing official secrecy surrounding the trial of Erol Incedal, as reaffirmed today by the Court of Appeal, truly boggles the mind.  Incedal, lest anyone has forgot, was charged with possessing a manual on bomb-making and planning to commit a terrorist act, only for some of the evidence to be judged by the intelligence agencies as so potentially damaging to national security that around 90% of the trial(s) had to be held in secret, or in camera.

Indeed, initially the government not only argued for the trial to be held entirely behind closed doors, it also wanted Incedal and his co-defendant Mounir Rarmoul-Bouhadjar to not so much as be identified, instead known only by initials.  This only failed after a challenge from the media, who in the same ruling were also granted access to most of the closed sessions, with "accredited journalists" invited to observe proceedings.  They are not allowed however to disclose what they heard in those sessions on pain of contempt of court, while their notebooks, taken at the end of each session, are apparently being kept at MI5's headquarters, Thames House, lest anyone less respectful of national security decides they should be placed into the public domain.

The utter absurdity of the situation is best expressed by how the Guardian reports that Incedal has since been released from prison, presumably under licence, from his 42 month sentence for possessing the 5 page manual on explosives.  Whether Incedal is under the same restrictions as both the journalists and members of the jury is not clear, or whether they might only apply until his sentence has been served in full we don't know.  Either way, the man himself is now free.  If he so wishes, he can tell anyone he feels like exactly how and why he was found not guilty of planning a terrorist attack despite the apparently incriminating evidence against him, while the journalists who sat there in the expectation of at some point being able to explain to the public why still cannot.

Almost everything about the case reeks.  The argument for why it had to be heard in secret, at least initially, was that otherwise justice would not have been able to be done.  This would at the very least imply that the case against the accused was fairly airtight, and that having to abandon it would have damaged the public interest more than denying the principles of open justice in this one instance.  Instead, as it turned out, one jury couldn't decide on the planning an attack charge while at the retrial the jury acquitted the accused.  It has not been explained whether a bug was placed in Incedal's car after he was pulled over and arrested for speeding, Incedal having made "demands" the police couldn't accommodate, as well as producing a statement they needed time to "digest", or whether he was already someone of interest to the security services.  We are none the wiser over whether Tony Blair really was a target, as an address to his home in London was found hidden in a glasses case, or if that was something else explained to the apparent satisfaction of the second jury.  The accredited journalists themselves feel used and tainted by the experience, almost to the point of being complicit in the secrecy demanded, unable to speak of anything they heard unless they fancy a spell behind bars themselves.

What is the possible danger in knowing why someone accused of terrorism was found not guilty when that person is no longer so much as in jail?  We aren't allowed to know, so we can't know.  All we are allowed to know is that the Lord Chief Justice remains "quite satisfied ... 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".  Albeit, in this instance, justice meant the accused being acquitted.

Not that the ruling is overly deferential to the executive and others who demanded the secrecy in the first place.  It would seem the security services were not pleased with even the merest glimpses of daylight the Court of Appeal allowed to seep in, as "in the light of some of the material provided to the court" the justices feel the need to make clear that "no part of the Executive can refuse to provide the evidence required by the DPP on the basis that it perceives that it is not in the interests of national security to provide it". "Thus," they continue, "when the decision is made by the court, subject to any appeal, they must abide by that decision even if they disagree with it. If a decision is made by the prosecutor to proceed, then the Security Services and the police must provide to the prosecutor all the assistance the prosecutor requires."  You might have thought that the security services, especially ones that the court says in its experience "are conspicuous in their adherence to this principle and these duties" wouldn't need to be reminded of things like the rule of law, but so it would seem.

The court also makes clear that while public accountability cannot currently be provided by the media, it is open to the Intelligence and Security Committee to consider "any issues it considers need to be examined and for any public accountability to be achieved in that way". While this would previously have not had the government or the securocrats shaking in their shoes, the highly critical report into the draft Investigatory Powers act by the ISC under its new chairman Dominic Grieve would suggest it might finally turn into more of a watchdog than a lapdog.  Likewise, that as a coda the justices observe that previous closed judgments were apparently not available to them as reference and "this is not satisfactory", not least as "it must always be a possibility, that at a future date, disclosure will be sought at a time when it is said that there could no longer be any reason to keep the information from the public", it's as crystal as it could be that while the courts are currently persuaded by cries of "national security", they might not always be.

When there is so little to go on it's almost pointless to speculate on precisely how national security could be damaged by the public knowing why Incedal was not in this instance guilty.  You do have to suspect though that the contact Incedal had with a British man called Ahmed, apparently based in Syria, is key, not least because MI5 and MI6 rather than just one or the other were involved in the push for secrets to remain secret.  Just as it was only remembered days before Moazzam Begg was due to go on trial for terrorism charges linked to Syria that MI5 had apparently OKed his journey, so too you have to wonder if Incedal himself had links to the intelligence agencies that are not being disclosed and which he used as his justification for not being guilty.  Then again, in a case this absurd, where the rule of law has always been a secondary thought, and where only politicians, judges and spooks can be trusted with the reality, who's to say it's not something correspondingly bizarre?

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