ARMED FORCES BILL—REPORTING RESTRICTIONS IN COURTS MARTIAL

  I am Legal Manager to Times Newspapers Limited, the publisher of The Times and The Sunday Times. I have recently seen a copy of the letter that Nuala Cosgrove of the Guardian Legal Department, sent you concerning the reporting of Courts Martial proceedings and how they are no longer subject to judicial review. This has effectively removed the former right of the media to appeal a reporting restrictions order by a Judge Advocate in courts martial proceedings. This defect in the law was pointed out to the media by Andrew Nicol QC in the proceedings against Fusilier Bartlam, last year, in which the media did make representations to the Judge Advocate.

  Not only would Times Newspapers wish to put its full weight behind Ms Cosgrove's letter and the need to amend the law so that there is a provision similar to section 159 Criminal Justice Act 1988 to ensure that media organisations have an appeal route by which they can challenge reporting restrictions in future courts martial proceedings, but we feel that it is worthwhile setting out our own recent experience in another court martial case where the Judge Advocate threatened to hear the whole case "in camera". Had we not sent counsel, Ms Lucy Moorman of the same chambers as Mr Nicol, down to HMS Nelson in Portsmouth to make representations about the need for open justice, the court martial might well have been heard "in camera" and the media would have had no easy way of appealing the Judge Advocate's ruling.

  The trial of Captain Robert Tarrant concerned serious allegations of bullying while at sea and on patrol. He was the commander of a nuclear powered submarine, HMS Talent. The courts martial was held in a building in HMS Nelson to which the public do not ordinarily have access. Our barrister and defence correspondent and all the rest of the press representatives and photographers had to be met at the gates and escorted on and off the premises. As a result, unless the media or a member of the public turned up, asked to be admitted, received a pass and was escorted to the relevant building, the trial would have been entirely behind closed doors and away from public scrutiny.

  At a pre-trial hearing, the Judge Advocate had determined that, after the "jury panel" had been sworn in, the Court would move "in camera" for the remainder of the trial on grounds of national security. Not surprisingly, neither the prosecution nor the defence seemed to have objected to the proposal. There was however a clear public interest in the proceedings being held in open court except when it came to highly sensitive intelligence matters which clearly should be held in camera.

  Applications for a hearing to be held in camera are themselves heard in camera (at least under the Criminal Procedure Rules 2005, 16.10). However, rule 16.10 also provides for a notice of an "in camera" application to be displayed in a prominent place in the precincts of the Court. This would have been totally ineffective in this case because the court venue was not accessible by the public. It was entirely because The Times Defence Correspondent had heard about the case and taken an interest that we heard that the Judge Advocate was intending to hear it in camera unless the Media made representations.

  Prior to my instructing Ms Moorman to make representations to the Judge Advocate, the prosecution and/or court had refused to provide even the minimum information eg the charges against Captain Robert Tarrant. This reluctance to share information and embrace the principle of open justice characterised the approach of the prosecution throughout.

  Thanks to Ms Moorman's representations to the Judge Advocate, the Prosecution was forced to concede that, with only a little amendment, the opening statement could be made in open court. However, both the Prosecution and the Judge Advocate remained adamant that not a single question could be asked of the main prosecution witnesses in open court on grounds of national security. However, after hearing the prosecution's opening statement, it became clear that there were substantial parts of the evidence that could be heard in open court. Having, with some reluctance, heard further submissions, the Judge Advocate made further concessions that some witnesses' evidence, including the first Prosecution witness, could, on reflection, be heard in open court.

  The point which needs making is quite simply this. Had The Times not sent a barrister down to HMS Nelson to make representations the Judge Advocate could all too easily have made a series of reporting restriction orders or indeed have held the whole courts martial in camera. This would have been effectively unappealable given the current state of affairs as set out in Ms Cosgrove's letter. We must therefore ask that very serious consideration is given to amending the Armed Forces Bill as suggested.

  I look forward to hearing from you.

January 2006