No basis for hearing in camera

Case no. 19/2023
Order made on 27 June 2023 

The Prosecution Service
vs.
T

T, who was previously employed by the Danish Security and Intelligence Service PET, was charged with unauthorised disclosure of confidential information. 

The Prosecution Service requested that the District Court schedule a court hearing to hear the case as a guilty plea and prior to that order that the entire hearing be held in camera. The District Court ordered that the hearing of the guilty plea was to be held in camera.

This order was appealed to the High Court which held that only the part of the hearing where the ex-amination of T, the documentation or the procedure concerned issues such as the PET’s work assignments, work methods and classified information which could potentially harm somebody should be held in camera. The High Court also held that the initial reading of the charges, including the time of the offences, was not to be in camera.

The case before the Supreme Court concerned the issue of whether the conditions for holding the hearing in camera out of regard for Denmark’s relations to foreign powers (Section 29(1)(2) of the Danish Administration of Justice Act) or personal security (Section 29(3)(3) of the Act) were met. 

The Supreme Court held that the criminal proceedings against T were of considerable public interest, and that the requirements for hearing the case in camera should be considered in the light of, among other things, the European Court of Human Rights’ practice concerning Article 6(1) of the European Convention on Human Rights (right to a fair trial). 
 
The Supreme Court considered that the Prosecution Service’s and PET’s accounts of the facts relied on in support of an order for hearing in camera was of such a general and generic nature that it was impossible for the Courts to perform the review required under the Administration of Justice Act and the ECHR, and that the conditions for a hearing in camera could thus not be regarded as having been met based on the information available in the case.

The Supreme Court noted that this decision did not prevent the District Court from issuing a new order for hearing in camera based on an overall assessment of the facts, if the Prosecution Service requests a hearing in camera again and provides a sufficient account of the harm that could potentially result if the information was to be made public in an open hearing.

The Supreme Court thus amended the High Court’s order and refused the Prosecution Service’s request for a hearing in camera.