R -v- Daniel Khalife
Ind. No. T20230071 & 7324
In the Crown Court at Woolwich
Before:
Mrs Justice Cheema-Grubb
Between:
The King
-v-
Daniel Khalife
RULINGS ON APPLICATIONS MADE AT THE START OF THE TRIAL: IN CAMERA ORDER, SPECIAL MEASURES AND REPORTING RESTRICTIONS
Redacted Public Ruling
Introduction
1. Mr Mark Heywood KC applies on behalf of the prosecution for part of this trial to be held in camera, (also known as in private, ie in the absence of press and public), for a variety of special measures and for reporting restrictions. Each application is evidenced with supporting documents. The statements in support have been disclosed to the defence on terms as to confidentiality and (with some redactions) to the press, apart from two matters which, along with the true names of the relevant witnesses, were provided to the court alone, in respect of the applications for anonymity of witnesses. The applications were made initially and largely in open court so that the press and public had as much information about them as possible. The court heard submissions from a representative of the press. The court then sat briefly in chambers without press and public present, and for an even shorter time, received the material ex parte. I have considered whether any of the submissions or material considered in the in private or ex parte sessions can be repeated in open court but make no such order. I confirm that the only material I have seen ex parte is the list of true names, a single paragraph , provided at my request, which describes Colonel A1’s office and role (he providing a risk assessment which the defence have seen, to Ministry of Defence witnesses due to be called and for whom anonymity is sought), and a single damage assessment concerning the risks to counter terrorism policing and staff from hostile states.
2. Although the principles applicable to the determinations I must make are uncontroversial, I must summarise them briefly. If granted the effect of these applications is to reduce the openness of the trial. Open and transparent justice is a fundamental principle of the common law and also a means of ensuring public confidence in our legal system. Being normative, it is unsurprisingly reflected in international conventions. However it is not an absolute rule. The test for departure is always one of necessity justified by cogent evidence – nothing less stringent will do; that test is a high one. It may be satisfied by action necessary to avoid frustrating or rendering impracticable the administration of justice see eg Guardian News and Media Ltd v Incedal [2014] EWCA Crim 186 and In re Guardian News and Media Ltd [2016] EWCA Crim 11.
3. The principle of open justice maintains that subject to certain situations all hearings must take place in open court and be freely reported. In the ordinary process of a criminal trial, evidence should be called in a way that enables the accused to identify those who provide it and this offers the best opportunity for the accused to understand and challenge it. Evidence called in public can be challenged in an open arena and there is an obvious and healthy pressure on anyone who gives evidence in the normal way in a criminal trial, because exposure of untruthfulness or any improper partiality is more likely, the greater the audience who are aware of it. Any part of a hearing that is not open to the press and the public, or the calling of witnesses who are not identified in public and any restrictions on reporting the trial in full, must be as a result of weighty countervailing factors. Any derogation from the open justice principle must be proportionate to a serious prospect of a risk to the administration of justice, and it must be the minimum required. All the applications made by Mr Heywood to some greater or lesser extent interfere with open justice.
4. Where the purpose of the restriction is to protect the national interest, clearly that purpose might be frustrated by anything less than an order restricting disclosure of the relevant information to a very limited circle of people who would be entitled to be present in the privacy of an in camera hearing and disclosure beyond that circle, even to a single individual might compromise those national security interests that the substantive order is seeking to protect.
5. Finally, orders restricting openness either on the basis of statutory provisions or the inherent powers of the court can never justify excluding the press and the public (or indeed restricting reporting) if the consequence would be that the trial would not be fair.
6. Daniel Khalife is charged with committing acts prejudicial to the safety or interests of the state (count 1), eliciting information about members of the armed forces (count 2), perpetrating a bomb hoax (count 3) and escape from custody (count 4). In essence he is accused of dealing with information available to, or obtained by, him as a member of the armed forces, which, at the very least, might have been useful to an enemy (said to be Iran), for a purpose prejudicial to the safety or interests of the State. Axiomatically, some of the evidence to be relied in counts 1 and 2 necessarily concerns the nature and content of information said to be of a kind likely to be useful to those hostile to the security and safety of the United Kingdom. Accordingly, the prosecution has applied for restrictions on public access to limited parts of the evidence and consequential orders relating to reporting.
7. Furthermore, because of the nature of the positions held by some witnesses and arising from the hostile State context of this case, there are applications for a number of special measures to enable the provision by them of relevant evidence, anonymously or under a pseudonym, again with consequential orders including reporting restrictions. In addition there is an application for an order to prevent reporting of the identity of other witnesses and for a delay in reporting including in court of fifteen minutes.
8. These are my reasons for making the orders sought. It has not been necessary for me to give any Closed ie ex parte ruling because although I have considered the limited material provided to me ex parte, that material speaks for itself and will be available to any reviewing court. The witness anonymity applications having been heard largely in public there is a small part of my ruling which has to be delivered in the absence of the public and media as it includes reference to statements in support which have been redacted, properly, from the material provided to the press prior to the applications being made: Criminal Procedure Rules 18.18.
In camera
9. This application is made under the court’s inherent power to protect the due administration of justice. It is recognised that in criminal proceedings in England and Wales the general rule is that the whole of the proceedings take place in public, the public are entitled to have access to them and that the press, as the watchman and scrutiniser on behalf of the public, may report everything that takes place in a criminal court. In both domestic case-law and the jurisprudence of the European Court of Human Rights this is a strong rule. It may only be displaced by unusual or exceptional circumstances. However, the paramount object of the court is to do justice. Accordingly, where the court judges that there is a serious possibility insistence on open justice would genuinely frustrate the administration of justice by deterring the Crown from prosecuting a case where it would otherwise do so, a departure from open justice may be the only way of achieving justice. Such a situation would provide “compelling reasons” to adopt such a course: see R v Malvern Justices, ex parte Evans; R v Evesham Justices, ex parte McDonagh (1988( 87 Cr App R 19.
10. While evidence of the likely impact of not sitting in camera is not essential, any obvious danger arising from refusing the application, whether to the current prosecution or future cases may be of importance to the court’s assessment of where the balance of the public interest lies. R. v The Crown Court at the Central Criminal Court Ex parte A; Times Newspapers Ltd; Guardian Newspapers Ltd and British Broadcasting Corporation [2006] EWCA Crim 04 and Guardian News and Media Ltd and others [2014] EWCA Crim 1861, [2015] 1 Cr App. R 4
11. Notice of the application must be given in a formal manner consistent with the interference that such an order makes to open justice, in accordance with Criminal Procedure Rule 6.6. Save for curtailment of the requirement of publication of notice in a prominent place in the court five days before the hearing, to 24 hours, it is agreed that the formal notification procedures required by the Rules have been complied with.
12. Application is made for the court to exercise its common law powers to sit in camera only for those parts of the trial where evidence is given about, or reference made to, the sensitive content of a series of seven exhibits which remain classified (‘the material’) identified in this ruling (using the trial exhibit references) as MC/3, MC/4, a part of AIH/1/OGE/1 and parts of AIH/1/MRF/1. MC/2 which was the first exhibit in the list has been withdrawn from the application in circumstances explained later.
13. The prosecution’s skeleton argument describes these seven by title and their content is summarised in one or two lines. Each is classified and would be shared, in the normal course of events, within the military and authorised others, on a ‘need to know’ basis. During the course of the hearing Mr Heywood KC indicated that the prosecution would temper the application to the extent that, in addition to the title and short description of this material, an ‘expanded summary’ which explains the intended audience of each document as well as its length and general contents, would also be provided in open court and to be reported. However, the application was maintained for the detailed presentation and examination of that material on the basis of national security and avoidance of harm to the administration of justice.
14. The material is classified on its face and marked as such in accordance with the structure of the government’s security classification policy as ‘Official’. This is the third and lowest level of classification, below ‘Secret’ or ‘Top Secret’. The material is alleged to have been obtained by Mr Khalife during the indictment period, while he was a member of the armed forces and retained by him. Some parts were allegedly communicated by him. In order to maintain the integrity of the material in accordance with its classification, steps have been taken during the preparatory stages of these proceedings, to ensure that it will be held and handled in accordance with its classification. Those representing Mr Khalife have received the material having signed undertakings in such terms.
15. Mr Heywood observes that the defendant will not be prejudiced in his ability to challenge the case based on this material should the order be made, but if the order is not made there is, indeed, a real danger that the Crown will be deterred from prosecuting cases of this kind, including this case, by the risk of material, properly protected, becoming public through the trial process.
16. The true value and sensitivity of the material is in dispute. Mr Khalife intends to rely upon an expert report from a senior lecturer in War Studies Dr Frank Ledwidge. While recognising that Iran is a firm adversary of the United Kingdom Dr Ledwidge does not accept that any of the material subject of this application would provide any more than limited utility to an enemy state. His report includes an assertion that MC/2 (which was one of the exhibits originally part of the application), is outdated and freely available on the internet in a later version. This latter discrete matter has been checked and for reasons which may well be explored during the trial and which it is not necessary for the court to summarise here, MC/2 has been withdrawn from the application for an in camera hearing.
17. On behalf of Mr Khalife, Mr Hussain KC does not submit that the order sought would risk the fairness of the trial and he takes a neutral stance on the application.
18. A response from the press has been presented by Mr Duncan Gardham, a journalist. On behalf of more than half a dozen media organisations including the BBC and the Press Association he settled written arguments and addressed the court on them in moderate and sensible terms. In respect of this part of the applications, he understands that one of the important issues in the case will be whether the information allegedly passed to foreign agents actually posed a threat to national security. If so, the press are concerned that the applications made by the prosecution for in camera proceedings and anonymity could cause problems in reporting key aspects of the case, in particular in explaining the defendant’s case to the public. He draws attention to the Official only classification involved and so distinguishes this case from those in which a higher degree of sensitivity and risk to national security can properly be claimed. He adopts a formulation of Mr Heywood’s namely that if there is substance to the indictment charges the cure has to be less bad than the disease. As the classification is at no more than Official level, and such documents are, he observes, regularly put before the courts and disclosed in public there is insufficient sensitivity to engage the risk the prosecution must demonstrate. He added that the concern of the press was that at some crucial stage of the case while the defendant was giving evidence or the defence expert was being called to deal with the detail of the material, the press would have to leave and be unable to understand that part of the evidence or explain it. In particular, that they would be deprived of an opportunity to seek to lift the reporting restriction, something they might attempt because the classification was Official rather than Secret or Top Secret.
19. Aware that one of the matters I must consider is whether, in accordance with rule 6.6.3(c) no measure other than an in camera order will suffice, Mr Gardham adopts a suggestion that if there has to be a restriction on public access the court should adopt a compromise in which nominated journalists may have access to the parts of the trial otherwise closed to the press and public, with reporting of those parts banned, subject to any subsequent application to allow a report, being granted.
20. Mr Heywood’s response in anticipation of this latter submission, was that if the security classification prohibits those not authorised to see the detail of the seven exhibits from seeing them, it makes no difference that they are being presented in a criminal trial. Some are Ministry of Defence documents accessible to those who have log in details for the purpose. Four of the material exhibits are about Falcon, a communications system about which Mr Khalife was taught by military trainers and its civilian provider. Putting Dr Ledwidge’s evidence, which is not agreed, to one side for present purposes; the classification remains, none has been de-classified and the question then is whether the court should, for another good public policy purpose, extend the category of those to whom access is provided by allowing members of the press into the court when it is sitting in camera. Obviously access is being provided to the jury as fact-finders in the trial and as such it is unavoidable. The further extension to members of the press who will not be able to report it is unjustified and endangers the administration of justice.
21. I am sure that there is a substantial risk of prejudice to national security and to the administration of justice from public access to or reporting of the parts of this trial where the material is referred to in any more detail than the extended summary the prosecution will distribute. This is a conclusion I have reached on the basis of the nature and classification of the evidence itself ie the material in the seven exhibits. Secondly, I am satisfied that the proposed restriction is necessary for the avoidance of the risk, to the extent that without exclusion of the public and a reporting restriction there is a substantial risk to the administration of justice. It seems to me that this is a case in which the court is entitled to decide what the degree of danger to the administration of justice is, based on all the information before it, including the fact of the application being made, the nature of the material concerned and the rationale of the arguments relied on. If it needs to be spelled out it is self-evident that if the charge relates to alleged misuse of classified material such that information of a type useful to an enemy state is alleged to have been obtained for transmission or efforts at actual transmission, then public discussion of such material is likely to lead to damage to the security of the nation and integrity of its defence. No responsible prosecutor would put such material into the public domain and if the court insisted that the high test for holding the parts of the trial where the material was to be referred to specifically in private had not been met, the prosecution would be unlikely to proceed with the trial.
22. On the other hand, if the press and public are excluded from the relevant parts of the trial, the trial will go ahead, the risks will not be taken and a fair trial will nonetheless be possible. In these circumstances the interests of justice would be satisfied if I were to order the exclusion of the press and public from those parts of the hearing. I have considered the lesser restriction very carefully. Like the jury, any representative of the press who is allowed to have access to an otherwise private hearing will be bound strictly, to keep what he or she hears confidential for life unless the court is persuaded to lift the reporting restriction.
23. The court undoubtedly has power to order that an in camera hearing take place with nominated members of the press present, see Incedal supra, although the Court of Appeal advised judges to think long and hard before making such an order for practical and other reasons. It must be a fact-based decision grounded in the relevant evidence. In this respect I have regard to the degree to which the actual nature of the material is relevant to the issues for the jury to determine, as they appear to be at this stage and the role of the press as the public’s scrutineer. I also bear in mind, of course, the level of classification of the material and the likely degree of circulation of material at that level, to those authorised to view it. I have determined that an in camera order excluding the public and press except for a number of nominated British journalists is the least necessary step. Combined with a s.11 Contempt of Court Act order this direction will preserve the security of the material to what I consider to be both a necessary and appropriate degree. Any breach of the in camera order, such as by unauthorised disclosure of evidence or any matter dealt with in camera by anyone permitted to be present, will have serious consequences.
24. Accordingly, I make the order for an in camera hearing for parts of the trial where the detail of the material is referred to. The order will allow access to up to three accredited journalists, to be selected from among the press representatives by themselves. Those one, two or three to remain the same for the duration of the trial, attending as they wish of course, but who must commit to being present when the jury is first directed on the nature of an in camera hearing. The court anticipates that this will not be until before that material is adduced in the trial. If agreement cannot be reached among the press on who their representative or representatives will be, the court will decide.
25. The court having reached that judgment no part of the trial which is to be heard in camera may proceed until the following business day or, if an intention to appeal against this ruling is notified to the court, until the appeal is concluded.
Anonymity
26. There are five applications. Notice was given in writing on 9 August 2024. The true names of the three trial witnesses have been provided to the court and I permit the names to be withheld for the purpose of the applications being made. The applications are made under sections 86 and 88 Coroners and Justice Act 2009 for the true name and other identifying details including the unit of the Ministry of Defence for which they work, to be withheld; for the witness to use the pseudonym adopted, screening from the public gallery and for no questions that might lead to the identification of the witness being permitted.
27. There is supporting evidence from two witnesses who are also anonymous for the purpose of the applications. The disciplinary and competency profiles of the three trial witnesses have been researched and a statement is provided by Soldier D, a staff sergeant who has had access to the disciplinary records and competency profiles of each. All three are currently security cleared to Developed Vetting level which is a comprehensive form of clearance, required for individuals with regular unsupervised access to highly sensitive information. The Ministry of Defence enforce an internal process for raising any security concerns in relation to individuals with DV clearance. There are no concerns pending for Soldiers A, B and C. I am satisfied that the rigour of background checks provide the defence and the court with a valid assessment of their character in a formal, albeit limited sense. I see no reason not to accept the content of the statement, nor any reason for Soldier D to be identified given they have no further role in this case beyond the provision of the statement of character.
28. The background to the work the three witnesses do in the Ministry of Defence is described in a signed statement by Colonel A1 who, it is not disputed and I am prepared to accept on the basis of the description of his role I have seen ex parte, has a sufficiently senior position from which to make the assessment of harm and risk to operational security and effectiveness of the relevant unit that the statement sets out. [REMAINDER AND TO PARAGRAPH 33 REDACTED]
34. Mr Hussain KC took a neutral stance on these and all applications.
35. Mr Gardham invites the court to examine each of the applications for anonymity and the like with special care given the number that are made. He observes that granting these applications will have an effect on the way that the public perceive the integrity and transparency of the criminal justice system and of the trial process. He has reminded the court that the pressures associated with the experience of giving evidence has its value and submitted that the court should be slow to conclude that knowing the true name of a witness will enable any enemy state to obtain access to any sensitive device or system. He states that while the media has every confidence in the veracity and accuracy of police and military evidence it is vital that the public do so too and this can be achieved by refusing such applications except where there is such a threat to individual officers as to require divergence from the important and longstanding principle of open justice. The court is grateful for these submissions.
36. Witness anonymity is regarded as a “special measure of last practicable resort”; save in the exceptional circumstances set out in the Act. I have examined and assessed the applications individually and with the sensible points made by the press representative in mind. I determine that the applications should be granted in full because, for the reasons I have set out, I am satisfied that in respect of Soldiers A, B & C the statutory test is met.
Use of pseudonyms and screens
37. There are three special measures applications in respect of witnesses whose written evidence has already been served as part of the case for the prosecution, in their full names. The application is for three witnesses who serve in the British army to give their evidence under pseudonyms Colonel E, soldier F and major H and for them to be screened from the public gallery. The grounds for the application are that the evidence they will give is of such a nature that the court should act to preserve their operational security in the performance of the roles they currently occupy, there is evidence from each witness to support the likely compromise to their effectiveness and security from open identification, and there is no unfairness or prejudice to the defendant from the measures sought. Had anonymity been considered fully before their statements were served they would have been included as part of that more serious application. Furthermore, in line with all such orders the jury will be directed in terms which make clear that no such prejudice should accrue to the defendant but importantly, in this situation the defendant knows the true identities of the witnesses as well.
38. I have considered the individual information each of these witnesses gives. They have provided detailed explanations which I will not repeat but their roles are sufficiently senior and significant in the context of this case, that disclosure of their personal details will be of interest to hostile state adversaries and risk serious harm to national security and to their personal safety. I am satisfied that each witness requires the special measures sought and that the quality of their evidence would suffer if the measures were not granted. The pseudonymity directions sought are granted because they are necessary to protect these witnesses to the extent now possible and no impact on the fairness of the trial will ensue.
Management of personal information
39. The next part of the Crown’s requests concern three police officers. The applications are for them to be permitted to write down their name, rank and unit detail, for it to be provided to the court, but none of that information said aloud. This information has already been provided to the defence and there is no objection to the directions sought.
40. I have read the statements from each officer. Two are each centrally or closely involved in the investigation of this and other hostile state cases. At least one has spent time with the defendant during the course of the investigation. Their evidence is important. The third officer is involved in surveillance in such cases. The applications are supported by the damage and risk assessment which the court has received ex parte. The officers roles are such as to draw the attention of hostile states and I am satisfied on all that I have seen that the special measures sought are necessary and fair. This is not a form of class anonymity. It is a particular measure to provide safety for individuals from wide publication of their names and details when they work in a particularly sensitive area of criminal justice and to enable them to give their best evidence without safety concerns for themselves and their families. I have well in mind the particular point made by Mr Gardham for the press that an application such as this in respect of the primary investigating officers is unusual. Each application must be given careful scrutiny, as all those made in this case have had. The fact that a number are made and granted is not an illustration of a blanket approach, rather it is the result of the nature of this case, the danger to such investigations now and in the future, of interference and interest from hostile states and the particular backgrounds of the witnesses who are required by the Crown to prove the case.
Reporting direction
41. The final part of the applications before the court concerns a reporting restriction pursuant to s.46 Youth Justice and Criminal Evidence Act 1999 sought in respect of an explosive ordnance operator who has provided a statement in support of the application. His role in the case is to do with count 3, the hoax bomb. I have read a statement from the witness dated 29 September 2024. The witness is eligible and it is very clear that the quality of his evidence will be diminished by reason of the fear and distress he expects to suffer if his identity as someone who fulfils his particular role at work, is widely disseminated. I am satisfied that the statutory requirements are made out and that the order should be made.
42. All consequential orders following the granting of the applications are also made.
Cheema-Grubb J
Determination on the in camera application made 8 October 2024
This ruling delivered 9 October 2024