How do you write about a secret trial? And should you bother in the first place?

January 30, 2018

My article published in Prospect Magazine 

Can a trial be fair if it is held away from the public eye? Should justice always be open, or are there legitimate exceptions such as national security? And how do you write about a secret trial when you are not allowed to report on what takes place behind closed doors?

These were the questions facing me as I started researching the murder of Allan Chappelow, an 86-year old eccentric who in June 2006 was found brutally murdered at his house in the leafy, literary and ordinarily quiet streets of Hampstead, northwest London.

Chappelow was a man steeped in the traditions of progressive politics. His great grandfather was Joseph Stevens, a radical preacher imprisoned for his campaign to improve factory conditions. His aunt Grace was a famous suffragette. Chappelow himself was a member of the Fabian Society, a conscientious objector during World War Two, and an author whose life’s work was the study of George Bernard Shaw. As a young man, he had even visited the great, socialist playwright in his 94th and final year, and taken the last known photograph of him.

So, even on the surface, there was plenty in this murder case to catch the eye. But the more I looked into the case, the more complex it became. What started as an investigation into a personal tragedy, grew into the unmasking of Britain’s troubled justice system. As a barrister told me, I was entering “murky, murky waters.”

A trial “in camera”

In September 2006, three months after the murder, a Chinese dissident named Wang Yam was accused of the killing. Yet, there was no forensic evidence linking him to the scene of the crime. And while he lived just a few minutes from Allan Chappelow’s house, no witness could credibly place him at the house where the murder took place.

The crucial evidence the police had against the defendant was that he was caught on CCTV depositing the victim’s cheques in his bank account, a strong suggestion that Wang Yam was involved in hijacking the victim’s identity. But a fraud does not a murderer make.

Then, in early November 2007, the home secretary Jacqui Smith was asked to review the case and approve a Public Interest Immune certificate, or PII. Smith signalled her consent by signing her name at the bottom of the page. The consequence of the PII would be that all or parts of Wang Yam’s trial would be held “in camera.” This would make it the first murder trial in modern history to be held behind closed doors.

Previously known as “Crown privilege,” one of the earliest uses of a PII was in 1939 after the bereaved families of a capsized submarine claimed damages, and the government issued a certificate to prevent the disclosure of the vessel’s architectural plans.

The rules governing PIIs were enshrined in Section Three of the Criminal Procedure and Investigations Act 1996. While each year the police and intelligence services send about a thousand low-level requests to Home Office officials—to protect informants, children or other sensitive witnesses in court—only 20 or 30 high-level PII certificates are annually submitted to ministers.

To ensure that the government does not pull the wool over a defendant’s eyes when evidence against them is to be kept secret, the Attorney General appoints a Special Advocate. With the appropriate security clearance, this Special Advocate reviews the secret material, assesses whether it is relevant to the case and if its secrecy is justified. In the court that reviews the detention of suspected foreign terrorists, for instance, a Special Advocate presents arguments in the detainees’ interests, but is unable to discuss the secret evidence with that detainee. Unaware of what the evidence about them is, they are—of course—unable to give their own explanation of it.

Many civil rights advocates have challenged this arrangement, arguing that evidence that can’t be tested by those it concerns is not evidence at all. They argue that the lawyers have to work with one hand tied behind their backs and that evidence has no credibility if it cannot be tested in open court. One such critic was Ian MacDonald who in 1998 was appointed by the Attorney General as special advocate to the Immigration Appeals Commission dealing with national security cases. In December 2004, MacDonald resigned, calling the use of special advocates “an odious blot on our legal landscape.” He was followed soon after by Rick Scannell, another special advocate who condemned the system as “wholly untenable”

Despite such concerns, on 30th November 2007 and just six weeks before the trial’s scheduled start, Wang Yam’s legal team were told that the trial would be held in camera. When they asked why, the Crown Prosecution Service resisted disclosing their reasons. After a few days of increasingly fierce exchanges, the CPS relented and explained that they could not proceed if the trial took place in open court “in the interests of national security and to protect the identity of a witness or other person.”

The first fundamental liberty

In January 2008, Judge Ouseley held a pre-trial hearing at the Old Bailey to review Jacqui Smith’s PII. On behalf of Wang Yam, Geoffrey Robertson QC asserted that the principle of open justice had been paramount in England for centuries. He quoted the radical author John Lilburne who stated at his libel trial in 1649:

“The court must uphold the first fundamental liberty of an Englishman, that all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred.”

Gavin Millar QC stood next. He represented various media outlets including BBC, the Guardian, the Times and Daily Mail. He was irritated as, unusually, the CPS had refused to tell him why they were asking for parts of the trial to be held in secret. “It was like driving in the dark,” he said.

Despite the vigorous protests, Justice Ouseley issued an order barring the media from reporting on the in camera proceedings. Thus Wang Yam’s murder trial became the first in modern history to be held in secret.

Starting on the morning of 10th March, and continuing into the next day, Wang Yam’s testimony was heard in camera. To ensure that journalists and members of the public were barred, a guard stood next to the locked courtroom door. In all, less than four of the twenty-nine days that made up the trial were held in closed court. In addition to Wang Yam’s testimony, four witnesses provided their evidence in closed sessions on Wednesday 20th and Friday 22nd February.

On 2nd April 2008, after four days of deliberations, the jury returned to the courtroom. They found Wang Yam guilty of three charges, including the illegal transfer of money, the theft of cash from a cash machine and the handling and receiving of stolen goods. As to the other charges of burglary, mail theft, and most importantly murder, the jury could not all agree on his guilt. With only the briefest of pauses, the judge thanked the jury for all their efforts and declared a mistrial.

At a retrial later that year—in which even more of the evidence was heard behind closed doors— Wang Yam was found guilty of murder, and sentenced to a minimum of 20 years in prison.

Appeal to Europe

Wang Yam’s lawyers next took the case to the Court of Appeal, and then the European Court of Human Rights, arguing primarily that he had not had a fair trial because the secret material had not been heard in open court. The European justices referred the case back to the UK, requesting sight of the secret material (which had been blocked by Justice Ouseley).

In a hearing before the UK Supreme Court in December 2015, David Pannick QC argued on behalf of his client Wang Yam that the original trial had been unfair because it was in breach of Article Six of the European Court of Human Rights, particularly that part of his case had not been heard in public. “We say that the trial judge had no legal power prohibiting the disclosure of this sensitive material to the European Court.”

On behalf of the Crown, James Edy and Jonathan Hall replied that the matter had been adequately dealt with by the lower courts and that it should not be left to a European court to dictate UK national security policy. In other words, foreign-born judges should not have access files that contained British secrets.

During the hearing, one of the judges asked if the defence lawyers had requested a Special Advocate with high-security clearance who could have reviewed the sensitive material attached to the PII. Wang Yam’s lawyers said that they had not, to which the judge looked surprised.

In their decision, released a few weeks later, the Supreme Court justices declared that Mr Justice Ouseley had the power to prevent the in camera material from being shared with the European Court of Human Rights. Without access to this sensitive material, the European judges wouldn’t know what national security issues were at stake and therefore would struggle to determine if Wang Yam had been denied his rights. Given the judges’ deference to each country’s security issues, the defence lawyers’ submission to the European court was now unlikely to succeed.

Wang Yam remains in jail and will almost certainly not be considered for release until 2027. He continues to maintain his innocence.

The new secret justice

Since Wang Yam’s unprecedented trial in 2008, there has been one other major murder trial held in the UK that was conducted in secret, the trial of “AB” and “CD” in which two men were found guilty of possession of bomb-making manuals. Before sentencing the two men at the Old Bailey in London, Mr Justice Nicol rejected an application from 11 media organisations for the reporting restrictions to be removed.

In June 2014, the Court of Appeal ruled that the media should be provided with limited information, including the defendants’ names: Erol Incedal and Mounir Rarmoul-Bouhadjar. Incedal was also accused of plotting a terrorist attack on the streets of London but was later acquitted. The majority of the trial, however, remained off limits to the press.

Since 2013, under legislation which was—remarkably—enacted under David Cameron and Nick Clegg’s self-styled avowed “coalition of liberty,” there has been new facility to extend a whole range of civil proceedings in secret in England and Wales. Originally, the proposal was going to cover inquests, which could—ridiculously—have thrown a veil of secrecy over a legal procedure whose whole purpose is to establish a clear public record of how a death took place. In the end, the final proposals backed down on this.

But nonetheless, the Justice and Security Act in 2013 contained some chilling provisions. Critics point to a key passage in the supreme court’s decision in 2011 on Al Rawi v the security service in which Brian Kerr said: “Evidence which has been insulated from challenge may positively mislead… the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies… a central place in the concept of a fair trial.”

Since 2013, the number of these so-called “closed material procedures” (CMPs) has risen despite mounting concern from the civil liberties community. From 25th June 2013 to 24th June 2014, there were five CMP cases. In the following year ten. Last year there were thirteen. In light of the growing anxiety about terror-related threats, there is little political appetite to roll back the secret court legislation.

It was against this political background of an increasing official recourse to secret justice that I was throwing myself ever-more deeply into the Wang Yam case.

Walking up to the wall

So why was Wang Yam’s murder trial held in secret?

One clue comes from Nicholas Phillips, the former president of the UK Supreme Court and as such a man who would know much better than most how far he could say before falling foul of the law, who wrote an article about secret trials for the London Review of Books and mentioned the murder of Allan Chappelow. Phillips lives in northwest London and, on the way to the outdoor swimming pond on Hampstead Heath, he happened to cycle past 9 Downshire Hill. In his piece he wrote:

“Very unusually, a large part of his trial was held in camera, because apparently Wang Yam had some link with the security services, which he wished to rely on by way of defence.”

We also know from court documents published online, that during the hijacking of the victim’s identity, Wang Yam tried to “get alongside” a group of Chinese gangsters. He said that he had been handed the cheques and credit card by three fraudsters whom he had come to know, and that he was “playing them along as a means of assembling evidence against them and reporting them.”

According to various news articles available online—published by the Times, Guardian, Daily Mail, Independent and many others—Wang Yam had acted as a “low level informant” for the British Secret Intelligence Service. Also known as MI6.

From his CV, which the police found at his flat on Denning Road in Hampstead, and which was disclosed in open court, we also know that before arriving in London in 1992, Wang Yam worked at Beijing Technical University. Based at room number 230 in Building 10, he worked as a researcher developing electrical sensors for China’s burgeoning nuclear research programme.

But what did he do for MI6, and what relevance does it have to the murder? If I knew, I can’t say. This is because according to Judge Ouseley’s order—which he has affirmed as recently as 2015—the press is not even allowed to speculate as to why the trial was heard in secret.

In effect, this means that not only am I not allowed to report material that might speak to what happened in camera but, according to the letter of the law, I cannot repeat testimonies, emails or other reports already in the public domain for fear of triggering a contempt of court ruling from the judge. I can’t even repeat newspaper articles that have been in the public domain for over a decade.

Indeed, the government is so anxious that I don’t contravene the judge’s order, that the Attorney General for England and Wales sent a letter to my home address with a warning: we know what you are doing, watch out. They pointed out that breach of the judge’s order was contempt of court (punishable by imprisonment), and recommended that I seek independent legal advice.

So what else can I say about the closed court sessions?

Not much. All I can do is walk up to the wall set by the judge and try to describe it. I can’t look over it, nor can I guess why the wall was built. What I can say, is that whatever is contained within the secret appendix attached to the Public Interest Immunity certificate, and disclosed during the in camera sessions, must be of such scope and scale, that it is important enough to override centuries-old tradition of open justice. After all, Wang Yam’s was the first murder trial in modern British history to be held behind closed doors.

Some might argue that there is no point in writing a book about a story with such a lacuna at its heart. That it is best written as fiction, where legal restrictions do not apply. I believe the exact opposite is true. It is exactly because the government has imposed reporting restriction that I have the responsibility to write this story with a passionate grip on the truth, an objective eye and in as much depth as I am legally able.

I can also reveal that though the secrecy surrounding Wang Yam’s trial remains intriguing, and the inability to report on it is truly frustrating, from what I have learned during my two years of research, none of the evidence or testimony heard during the secret parts of Wang Yam’s trial would have changed the jury’s minds. In appears to me that the secret trial was actually a massive red herring.

With one exception.

Because significant parts of the proceedings were held in secret, the media was unable to fully examine the evidence. This led to a cloud of mystery which Wang Yam’s lawyer Geoffrey Robertson argued dissuaded witnesses from coming forward. Indeed, it was only in 2014, six years after the first trial, that Jonathan Bean—who lived four doors from the victim—testified that he had suffered a violent burglary a few months after Chappelow’s murder. Bean told the local police at the time that he believed that the two crimes were linked. Critically, this report never made it to the homicide investigation. Robertson believes that if this evidence had been supplied to the original jury—which was after all split as to the defendant’s guilt—they may well have come up with a different outcome.

So how do you write about a secret trial? You do your best. You push the envelope, challenge the publishers and their lawyers, tell the story as well as you can. Sometimes, as with Blood on the Page, there are elements of the narrative that must remain off stage. But the task of a writer is to tell the full story and, as far as you can tell it, you tell the truth.

Thomas Harding’s book Blood on the Page is published by William Heinemann, £20