Hearings in Private (‘In Camera’)

|Legal Guidance

Principle

This guidance describes the circumstances in which individuals may be excluded from court hearings.

It has long been established in England and Wales that criminal proceedings should take place in open court and be freely reported. This is the principle of open justice.

Article 6(1) ECHR guarantees the general right to a public hearing. The right is subject to the express restrictions set out in the second sentence of Article 6(1).

There are certain situations where proceedings can be heard in private (‘in camera’), when the public are excluded and the doors of the court-room closed. These situations are governed by Part 6 of the Criminal Procedure Rules.

Guidance

Common Law

At common law, there is a presumption that a trial on indictment must be held in a public court with open doors. The same principle applies to proceedings in Magistrates’ Courts: see Section 121(4) Magistrates’ Court Act 1980.

The following principles may be derived from the House of Lords case of A-G v Leveller Magazine Ltd [1979] AC 440:

  • The normal rule is that criminal proceedings should be conducted publicly.
  • Nonetheless, courts do have power to order that the public be excluded.
  • The exercise of that power, in common with any other derogation from the principles of open justice, should be strictly confined to cases where the public's presence would 'frustrate or render impracticable the administration of justice'.

In Re Times Newspapers Ltd [2009] 1 WLR 1015, the Court of Appeal reiterated that:

“justice requires proceedings in court to be held in public…It is only where the proper administration of justice would be affected that any derogation from this principle can be permitted”

All courts, therefore, have the inherent power, by virtue of their general right to control their own procedure, to sit ‘in camera’. As made clear above, there must be a compelling reason to adopt such a course. A decision to sit ‘in camera’ is not justified solely to save individual from embarrassment or to conceal facts which it might, on more general grounds, be desirable to keep secret. See R v Malvern Justices, ex parte Evans; R v Evesham Justices, ex parte McDonagh (1988) 87 Cr. App. R. 19.

The same applies in relation to risk of financial damage or damage to reputation. R v Dover Justices, ex parte. Dover DC [1992] Crim.L.R. 371, DC.

Even when it is claimed that the safety of a witness or party will be endangered by an open hearing, the court should consider carefully whether he can be adequately protected by means less drastic than totally excluding the public - Reigate Justices, ex parte Argus Newspapers (1983) 5 Cr App R (S) 181.

Hearing a matter in private is a course of last resort and the justices should have applied their minds to how else they might have dealt with the matter (e.g. an order under the Contempt of Court Act 1981, section 11, protecting the identity of the accused).

Statute

Children other than infants in arms may not generally be allowed in court, except as witnesses (Section 36 of the Children and Young Persons Act 1933).

There is a power to clear a court of the public, but not the press, while a child or young person is giving evidence in relation to an offence or conduct contrary to decency or morality (Section 37 of the Children and Young Persons Act 1933).

Restrictions on access to the Youth Court (Section 47(2) of the Children and Young Persons Act 1933).

The court can order that the public be excluded during any part of the proceedings, if the publication of the evidence would be prejudicial to the national safety. Sentence must be passed in public.  See Attorney General v Leveller Magazine (1979) 68 Cr App R 342 (Section 8(4) of the Official Secrets Act 1920 and Section 11(4) of the Official Secrets Act 1989).

A Crown Court is able to receive evidence ‘in camera’ if it thinks fit in the interests of justice in proceedings to obtain evidence for use overseas (Section 4 of the Criminal Justice (International Co-operation) Act 1990).

A judge of the Crown Court may order that the hearing of a ‘challenge for cause’ to a jury or juror be ‘in camera’ or in chambers. For further information, please refer to the CPS legal guidance on Jury Vetting. (Section 118(2) of the Criminal Justice Act 1988).

There are specific provisions for offences relating to the Official Secrets Act (OSA). All cases involving official secrets legislation should be referred to the Special Crime and Counter Terrorism Division, see referral guidance here.

Rules of Court

Procedure

A Crown Court or High Court Judge may hear certain matters in chambers. Examples include bail applications to the Crown Court and applications to a judge in chambers for leave to prefer voluntary bills of indictment.

The business of the Crown Court, which may be conducted in chambers, can be found in Part 6 of the Criminal Procedure Rules.

R v Crook (Tim) 93 Cr App R 17 gives guidance to judges about whether the receiving of information in the privacy of chambers is required in the interests of justice.

Applications in private for an order for non-disclosure on the basis ‘public interest immunity’ are governed by Part 15 Criminal Procedure Rules.

Appeal to the Court of Appeal against orders of the Crown Court

Section 159 of the Criminal Justice Act 1988 creates a specific right of appeal against orders of the Crown Court derogating from the principle of open justice.

Section 159 does not extend to decisions of Magistrates’ Courts in relation to open justice or to such decisions made by the Crown Court otherwise than in connection  with trials on Indictment (for example  on appeal from the Magistrates’ Court). In respect of such decisions, the remedy of an aggrieved person remains what it was prior to Section 159, namely to apply for judicial review.

In Guardian News and Media Ltd v AB [2014] EWCA Crim (B1), there was an application for a trial to be held in private. In their ruling, the Court of Appeal, at para 2, stated that:

“The Rule of Law is a priceless asset of our country and a foundation of our Constitution. One aspect of the Rule of Law — a hallmark and a safeguard — is open justice, which includes criminal trials being held in public and the publication of the names of defendants. Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system; exceptions are rare and must be justified on the facts. Any such exceptions must be necessary and proportionate. No more than the minimum departure from open justice will be countenanced.”

However, they went on to say, at para 5, that:

“… open justice must, however, give way to the yet more fundamental principle that the paramount object of the Court is to do justice … Accordingly, where there is a serious possibility that an insistence on open justice in the national security context would frustrate the administration of justice, for example, by deterring the Crown from prosecuting a case where it otherwise should do so, a departure from open justice may be justified.”

An application for proceedings to be heard in camera should itself be heard in camera, see (R v Tower Bridge Justices, ex parte Osborne 88 Cr. App R. 28).

Procedure in the Crown Court

CrimPR 6.6 and 6.7 set out the procedure for an application for an order that all or part of a trial be held in private. The application must be made not less than five business days before the trial is due to begin and the application must be served on the Crown Court and each other party.

When sending your notice to the appropriate officer of the Crown Court, you should include in your letter this paragraph:

“I would draw your attention to the requirements of Rule 6 of the Criminal Procedure Rules. That Rule requires that the attached notice should be displayed in a prominent place in the Court immediately on receipt. Please confirm, by return of post, that this has been done.”

The appropriate officer of the Crown Court must then ensure that a copy of the notice is prominently displayed in the vicinity of the courtroom. The application must be determined at a hearing, which must be in private unless the court otherwise directs, after the accused has been arraigned but before the jury is sworn.

If a matter suddenly arises which means that the Rule cannot be complied with, the Court of Appeal has left open the question of whether a judge has an inherent power to order evidence to be heard in camera. See R v Southwark Crown Court Ex Parte Godwin (1991) Crim LR 302.

The Rule has no relevance to:

  • Any other type of application  for a hearing  in camera; or
  • Any of the matters that may be dealt with in chambers.

A court must not hear a trial in private until the business day after it orders such a trial or the disposal of any appeal or review of the order, if later.

Conduct of hearing

It is unacceptable for defendants and their solicitors to be excluded from a hearing ‘in camera’, (with the exception of ex parte applications concerning Public Interest Immunity material). Similarly, it is unacceptable for Counsel to be restricted as to what they may disclose to their instructing solicitors and clients, see R v Preston (1994) 2 AC 130.

It is essential that any material relating to an ‘in camera’ hearing is handled in accordance with the relevant Government Security Classifications. This means that material relating to the hearing is likely to be recorded and stored in a physical rather than an electronic file.  

In any case where part or all of the proceedings were heard ‘in camera’, a note must be made on the electronic file to indicate that such material exists. The note of the hearing must make it clear which parts of the hearing were ‘in camera’ and which were in open court and retained in accordance with the relevant security handling requirements. Prosecutors should be aware that that material is likely to be required to be marked as ‘SECRET’ or ‘TOP SECRET’, in line with the Government Security Classifications.

Continuous Duty Review

The decision of the court to hear evidence in camera or withhold information from the public and/or the press is subject to continuous review during the trial in the light of any changes in circumstances, and to review at the conclusion of the trial (See Guardian News and Media Ltd [2016] 1 Cr.App.R. 33, CA).