The UK needs a more coherent system to manage information in matters of national security, and should balance security with maximum media freedom, says Dr Henry Irving, associate fellow at the University of London’s School of Advanced Study (SAS).
This week’s Court of Appeal decision on reporting restrictions during the 2014–15 terrorism-related trials of Erol Incedal and Mounir Rarmoul-Bouhadjar, highlights the need to improve existing systems.
Drawing on his Institute of English Studies research into the workings of Britain’s wartime Ministry of Information, Dr Irving maintains that the overbearing and ad hoc treatment of the media during the case echoes Second World War censorship at its worst.
He has teamed up with Dr Judith Townend (below) director of SAS’s Information Law and Policy Centre (ILPC), to call for a coherent system of information control, based on clear national security guidelines and a relationship of trust and collaboration both with the media and other interested parties.
‘We can learn lessons from how censorship was handled during the Second World War – both good and bad – to help us strike the right balance today between national security and the public interest,’ says Dr Irving.
‘Although there were many difficulties in the relationship between military authorities, the Ministry of Information and the media during the early days of the war, by 1942 a spirit of ‘friendly cooperation’ had grown up between censors and journalists, making it easier to manage a voluntary system that relied on trust. Unfortunately, that kind of trust appears to be in short supply in 2015.’
Originally, the terrorism-related trial of Erol Incedal and Mounir Rarmoul-Bouhadjar was going to take place in private, with the media and public excluded. The rules were slightly relaxed after an appeal by a consortium of media organisations, and an unprecedented arrangement permitted a handful of 10 ‘accredited’ journalists to hear some of the closed evidence both for and against the defendant. However, at the end of the trial Sir Andrew Nicol, the trial judge, ruled that they could not report on the proceedings and had to leave their notebooks locked in a safe.
Journalists complained of heavy-handed treatment, and after the Old Bailey re-trial of Incedal, in which he was acquitted of preparing an act of terrorism, more than a dozen UK media organisations asked the Court of Appeal to lift reporting restrictions so they could report parts of the private sessions they had attended.
The England and Wales Court of Appeal has now ruled that, despite the media’s contention that maintaining secrecy of core issues was no longer, if it had ever been, justified, the controversial and highly publicised reporting restrictions in the trial, will not be lifted.
'Public right to impart and receive information must be a central consideration'
‘It is sometimes legitimate to withhold information from the public in the interests of national security, but only where this is strictly necessary and when safeguards exist to maintain open justice and freedom of expression,’ explains Dr Townend.
‘But a public right to impart and receive information must be a central consideration. This should determine the whole information control process, and not only addressed as an afterthought. Issues of freedom of expression and open justice should be acknowledged from the outset of the censorship process.
‘Additionally, this case has drawn attention to inadequate information handling issues in national security sensitive matters – for instance, the Court of Appeal has drawn attention to the fact it was unable to rely on previous relevant ‘closed’ decisions because they could not be found on the court file. Its establishment of a working party to advise further is very welcome, although there are much wider issues to consider too.’
In a paper published today in History and Policy, the researchers say the case raises significant questions about the interpretation of national security guidelines, procedures for notification, the harsh approach to information control and the documentation of decision-making. They lay out a number of suggestions for how a planned system of information control could be implemented, which is based on cooperation with the media, rather than compulsion, and start from the principle that information should, where possible, be released.
‘Once a coherent process was brought in during the Second World War, things ran relatively smoothly, with the media acting responsibly in terms of what they reported,’ says Dr Irving.
‘If we could implement a clear system today, based on similar principles, it should be possible to balance national security with the maximum possible media freedom, without putting lives or the nation at risk.’
- Ends -
Notes about the case
- In October 2014, the second defendant Mounir Rarmoul-Bouhadjar pleaded guilty to possessing a terrorist document.
- At trial, the first defendant Erol Incedal was found guilty of an offence contrary to section 58 of the Terrorism Act 2000 (collection of information) but the jury failed to reach a verdict on an offence contrary to section 5 of the Terrorism Act 2006 (preparation of terrorist acts). He was acquitted in a second trial in spring 2015.
- Rarmoul-Bouhadjar and Incedal were sentenced to imprisonment for three years and three and a half years, respectively, for their possession of a bomb-making document.
- On 9 February 2016, the Court of Appeal handed down judgment refusing an appeal brought by a group of media organisations that it should be allowed to report certain core issues of the case. Guardian News And Media Ltd & Ors v R. & Incedal  EWCA Crim 11 (09 February 2016), available at: http://www.bailii.org/ew/cases/EWCA/Crim/2016/11.html