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New Clause 2

Volume 114: debated on Wednesday 8 April 1987

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Certifying Out

`In Part I of Schedule 4 to the 1978 Act there shall be inserted before "under" in Note 2 the words "triable summarily or an offence for which no sentence of imprisonment exceeding five years may be imposed, or;in offence.":.—[ Mr. J. Enoch Powell.]

Brought up, and read the First time.

With this, it will be convenient to discuss the following: New clause 3—Attorney General's Discretion—

'In Part I of Schedule 4 to the 1978 Act there shall be added after Note 4 the following note—
"5. For the avoidance of doubt it is declared that the Attorney General may, in considering whether to give a certificate under Note 1 or Note 2 above, take into consideration, without prejudice to any other matters, any grounds on which it appears to thim that that offence could be tried otherwise than as a scheduled offence consistently with the interests of justice having regard to all the circumstances.".'.

New clause 7—Attorney General's discretion to certify out—

`In Part I of Schedule 4 to the 1978 Act there shall be added after Note 4 the following note :—
"5. The Attorney General, in considering whether to give a certificate under Note 1 or Note 2 above, shall, without prejudice to any other relevant matters, have regard primarily to the seriousness of the alleged offences and the likelihood of any intimidation of a jury the effect of which would be to prejudice substantially the prospect of a just and fair trial.".'.

With these three new clauses that the House is debating together we come to one of the most important aspects of the Bill and to a subject upon which there was considerable unity of feeling in the Standing Committee that considered the Bill. The three new clauses deal with two separate issues. I hope you will agree, Mr. Deputy Speaker, that the Question, That new clause 3 be read a Second time, should be put separately to the House. I understand that the official Opposition wish the Question on new clause 7 also to be put separately to the House.

Two different issues are raised by the three new clauses. Under the principal Act, a maximum list of scheduled offences is prescribed. However, offences that are so prescribed are not treated as scheduled offences if the Attorney-General performs an operation that has become slangily known as "certifying out The effect of new cause 2 would be to increase the number of listed offences that the Attorney-General has the power to schedule out.

The other new clauses deal with the considerations that the Attorney-General may take into account in deciding whether or not to schedule out an offence, thus causing it to be tried otherwise than as a scheduled offence.

It would be a mistake to suppose that any of my hon. Friends or I wish there to be for any longer than may be absolutely necessary any divergence between the law and the process of law in Northern Ireland and that in the rest of the United Kingdom. In particular, we look forward to the day when jury trial will apply in the Province as it applies in the rest of the United Kingdom, but we find that there is a vicious circle into which any consideration of this matter is entrapped.

5.15 pm

Scheduled offences that are not certified out by the Attorney-General are tried by a judge sitting without a jury. It is claimed that that is the only practicable manner in which such offences, having a terrorist connotation, can be tried with any prospect of a fair trial and a just result. Unfortunately, however, there is no means of testing that assertion. Indeed, there has been no means of testing that assertion for the past 15 years or more. It is ironic that the principal reason for the establishment of the Diplock courts in the early 1970s was not anxiety about the intimidation of juries but the supposed risk of juries bringing in a perverse verdict. Therefore, the background to the institution of the trial of scheduled offences not certified out by a judge sitting without a jury is now relatively far back in experience and rests on a proposition that, by definition, it has been impossible to test in practice.

There is a widespread feeling, which is shared in many quarters, that it would not be impossible for scheduled offences, even if there were a terrorist connection, to be tried in a court where the judge sat with a jury, but in present circumstances that is bound to remain a proposition that cannot be tested. Therefore, we are locked into a theory from which we cannot escape by any form of demonstration. There can be no experiment with the validity of the basis for the Diplock courts.

In Committee there was a general wish that we should obtain for ourselves some means of experimenting. The methods of experimenting that were considered differed, but I do not think that I am misstating the matter when I say that the Committee was united in its desire to find some escape from the vicious circle and some means by which, tentatively and experimentally perhaps, we may discover whether we are still justified in assuming that no scheduled offence that has a terrorist connotation should be tried in an ordinary court sitting with a jury.

Therefore, we are anxious to enlarge the scope of certification out. To that end new clause 2 is directed. It extends the list of scheduled offences to which the power of the Attorney-General to certify out is applicable. It does so in accordance with the specific recommendation of paragraph 134 of the Baker report, which recommended:
"all scheduled offences which are triable summarily or which carry a maximum sentence of imprisonment for five years or less should be capable of being certified out, ie, as not to be treated as scheduled offences."
That is the simple and limited object and effect of new clause 2. I hope that it will commend itself not only to the House but to the Government, bearing as it does the recommendation of the Baker report, which it has been the anxiety of my hon. Friends and myself as closely as possible to regard as the standard to be applied in judging this legislation.

The mere certifying out of offences by the Attorney-General does not enable us to judge the continuing validity of the argument for the maintenance of the Diplock courts as long as certification out is limited, as it is at present. It is our understanding — I think this was made clear in Committee — that the Attorney-General in practice certifies out only where he is satisfied that there is no terrorist connection or connotation in the offence. For example, in the case of murder, if he is satisfied that the motives were domestic, he regards it as within his scope to certify out that particular offence so that it is not tried as a scheduled offence. However, we were led to suppose that the Attorney-General has regarded himself as, in effect, limited in the exercise of his certifying out power to removing from the Diplock courts cases where there is no reasonable ground for supposing a terrorist connotation or purpose in the offence.

Obviously if that continues to be the rule applied by the Attorney-General, although it is nowhere prescribed in the legislation, we shall never have any evidence or means of saying, "Here is a scheduled offence which is terrorist in connotation. It has been proved possible in practice to try it by an ordinary court with a jury. Therefore, we are free from the automatic assumption that a scheduled offence not certified out on the present rule automatically and for ever must be tried without a jury."

Therefore new clause 3 and, in a different manner, new clause 7 open the door of experiment to differing degrees. The door is opened more widely by new clause 7 than by new clause 3 because, in the nature of this type of experiment, if we are going to engage in it at all, all we need to do is to give an indication to the Attorney-General that, in the exercise of his discretion, on the basis of all the facts put before him, he is free, if he so decides, to certify out a scheduled offence notwithstanding the fact that there are terrorist or paramilitary overtones to that offence. It is in no way a direction that he should do so, but it leaves the consideration open so that he can take that into account. He would be free to take into account — indeed, he would need to take into account — any reasons there might be for supposing that in that particular case a fair trial was possible in the ordinary courts.

The material submitted to the Attorney-General, as it was explained to the Committee, already contains a far-reaching indication as to the exercise of the Attorney-General's discretion if he is given this additional hint. Of course, he has the power already and, as I understand it, there is no restriction at the moment upon his power to certify out. There is no specification of the grounds on which he must or must not certify out. Therefore, we are underlining the fact that there is no need for the certifying out power to he limited to cases where no terrorist connotation can possibly exist.

In short, in the clause we are inviting the possibility of experimental certifying out being explored, however tentatively, by the Attorney-General in the exercise of his responsibilities.

New clause 3 is a tentative hint. It may be that it is best to start such an experiment tentatively and, therefore, it may well be that new clause 3, as my hon. Friends and I believe, is a wiser approach than new clause 7. That will be a matter for debate. However, the purpose is the same, and I believe that it is a purpose which was felt strongly not only in Committee but quite widely in Northern Ireland and among persons of different political persuasions.

If we can, we would like to find a gradual escape, if it has to be gradual, from a system of justice that is not comparable to that which prevails elsewhere in the United Kingdom. It is for that purpose that, in due course, with your permission, Mr. Deputy Speaker, I shall invite the House to consider that new clause 3 be read a Second time.

Perhaps I can now deal with the point raised by the right hon. Member for South Down (Mr. Powell) as to whether it would be possible to have separate Divisions on new clause 3 and new clause 7. Consideration has been given to that matter and the Chair would be prepared to allow a separate Division on one or other of those new clauses, but not on both. The House might like to consider the matter as the debate proceeds.

:I am grateful for that indication, Mr. Deputy Speaker. Perhaps during the debate there can he consultation through what are sometimes known as the usual channels about how that matter should be dealt with.

At the outset, I welcome the Attorney-General back to the Chamber, and particularly to this debate.

As the right hon. Member for South Down (Mr. Powell) has just said, all the new clauses that are the subject of this debate are attempts to find a way to bring about a gradual restoration of normal jury trial in Northern Ireland. It was in 1972 that the Diplock commission recommended the suspension of jury trial for what it called terrorist offences. It argued that there may have been miscarriages of justice in trials for alleged paramilitary activities, and it said that it was concerned not at the prospect of perverse convictions—it thought that an effective judge would be able to prevent that — but at the prospect of perverse acquittals. The recommendations were avowedly intended to increase the conviction rate.

That requires two comments at the outset. First, whether the interests of justice require an increase in the conviction rate must depend on whether it was guilty people who were being acquitted. What is a perverse acquittal is a subjective judgment. Secondly, it makes no contribution to reducing paramilitary activity or to protecting people from violence to convict the wrong people.

The Diplock commission produced no evidence that there were too many acquittals and, so far as I am aware, no one has shed any further light on whether there are, or were, too many acquittals, except to make assertions and counter-assertions. The Diplock commission said that too few people were being convicted and it went on to prescribe two reasons for that alleged situation. Its major argument, as the right hon. Member for South Down has reminded us, was that juries were prejudiced. One might have thought that prejudiced juries would sometimes be led into perverse convictions, as well as perverse acquittals, but the commission said that it was not troubled about that. It was concerned that prejudiced juries would let out those who should have been convicted.

At that time there was a property qualification for jury service and juries were predominantly Protestant. Therefore, all the fuss was about the danger of Protestant juries acquitting Protestant paramilitaries. Of course, since the Juries (Northern Ireland) Order 1979, any jury is likely to include members of both traditions. If jury trial were extended now, it is possible that there would he an undue number of jury disagreements. That is something that we have to see. It is something about which we can only speculate at the moment. The danger that most influenced the Diplock commission clearly no longer exists.

The commission said that juries might be being intimidated. It produced no evidence, but what is always said is that there is no record of people complaining that they are intimidated—"They wouldn't, would they?" If people are frightened, they will not go around announcing why they are frightened. That invites two comments. First" we sometimes speak as if, when we have explained why there are no complaints of intimidation, we have produced a positive reason for believing that there is intimidation. Explaining the absence of evidence is not equivalent to producing the evidence. At best, it is neutral. As there is some obligation on those who wish to base their arguments on the existence of intimidation to establish that it really exists, that burden of proof remains undischarged.

5.30 pm

Secondly, it is not true that jurors never complain when they are intimidated. There are many cases on record" certainly on this side of the water—for example, in the Central Criminal Court—when jurors have reported to a judge attempts to intimidate them. If there are no similar cases in Northern Ireland, that must be some reason for believing that intimidation is not, and was not, taking place.

Indeed, we have a test even now as to whether there is likely to be intimidation if jury trial is restored. We know that there are cases being heard for offences which are not in the schedule and for which Diplock trial is not prescribed, but which have paramilitary connotations—cases of corruption, fraud and demanding with menaces, which relate to the methods by which some paramilitary organisations finance their activities.

If cases in which paramilitary organisations were interested immediately attracted intimidation, we would expect to hear of intimidation in those trials. In fact, we hear no such thing. Of course, I accept that that is not conclusive. What matters is whether jurors will perceive themselves to be intimidated. They have to go back from the court and live in local communities. That is why we cannot simply return to jury trial at a stroke. The House is probably agreed on that. However, we can return gradually, as the right hon. Member for South Down said.

As we take each step, we can monitor the consequences and see whether juries are perverse or whether they complain of being threatened. As the right hon. Gentleman reminded us, the problem at present is that once we say that we are suspending jury trial because there is a danger of intimidation, we have no means of knowing whether there would have been intimidation if we had not suspended jury trial. We can learn that only if we return a step at a time. Until we break out of the circle, we have no means of knowing what the consequences would be if we broke out of the circle. Thus, we are exploring how we can begin the way back.

We agree with the right hon. Member for South Down. We can go back at least as far as the recommendation of Sir George Baker. The Diplock offences are not defined by reference to the characteristics of any specific case, and we accept that they could not be. There could not easily be a separate investigation in each case. Those offences are defined by reference to the statutory provisions that created them or to the common law name that has been attached to them. No doubt they are those categories of offences that were thought to be most frequently committed by those engaged in paramilitary activities, but even the authors of the original Act in 1973 recognised that they do not always have a connection with terrorism.

We are all familiar with the study by Mr. Dermott Walsh into people convicted under the Diplock procedure, in which 40 per cent. had no observable connection with terrorism. We know that the majority of the cases related to robbery aggravated by the use of real or imitation weapons. Many of those offences are committed, not for political reasons, but out of simple old-fashioned greed. When the category of offences that were capable of being certified out by the Attorney-General was extended in January 1986, that category was not included, although it was the category in which there was most obviously a problem.

Even if an offence is connected with paramilitary activities, it does not follow that it is appropriate to apply to it all the provisions relating to scheduled offences. So it was thought that someone should have the power to consider, in relation to each specific case, whether those provisions should apply — hence the power of the Attorney-General to certify out in those cases.

The new clauses are about two things, as the right hon. Member for South Down said. New clause 2 provides that that power to certify out should be extended, at least to the extent recommended by Sir George Baker. We would argue that the Baker recommendations are not the ultimate in our ambitions, but anything less than Baker is totally unacceptable and new clause 2 seems to be the minimalist position that would begin the road back.

I am following the right hon. and learned Gentleman's argument, and concur with most of it. On reflection, does he not accept that it might have been an unnecessary imputation on the integrity of a jury that happened to be made up of householders that they would automatically discriminate against one religion because they were of another? Does the right hon. and learned Gentleman acknowledge that the real reason given to us in the early days for the abolition of jury trials was not intimidation of juries but intimidation of witnesses? That is not a reason for keeping the whole category. In other words, I agree with what the right hon. and learned Gentleman is saying, but I should like to pinpoint the fact that the only evidence of intimidation was intimidation of witnesses.

The hon. Gentleman is right. There is a great deal in the Diplock report about the intimidation of witnesses, but it does not seem to me that that problem is somehow minimised if one abolishes jury trial. One needs witnesses, whether one has a jury or not. In so far as the argument rests on that, as the hon. Gentleman properly pointed out, that is not a reason for not returning to jury trial.

In many ways, new clauses 3 and 7 are to the same effect. The burden is that when the Attorney-General is called on to exercise his discretion on whether to certify out he should consider, not only whether the case has paramilitary connections, but whether, even if it has, the reasons that induced the authors of the Act to provide for trial without jury operate in that case. Is there a reason to fear intimidation of jurors or perhaps witnesses? Is there a reason to think that the jury would be perverse?

New clause 3 would give the Attorney-General a discretion, if it does not already exist, to take those matters into account. As the right hon. Member for South Down said, new clause 7 says that the Attorney-General must take those matters into account. We say that at least he should take them into account because they are clearly relevant to the decision that he has to make, but let me say at once that I do not feel so strongly on that that I would insist on a Division on new clause 7 to the exclusion of new clause 3. Perhaps we can discuss that.

The issue is simple. If the old, valued, venerated right to trial by jury, which generations of our forebears have believed to be an essential bulwark of personal freedom, is to be denied to certain defendants in Northern Ireland, that denial requires to be justified by specific reasons. Once that is settled, if it is to be denied in a particular case, it should be a case to which those specific reasons apply.

There are two very good grounds for trying to find a way back towards jury trial in Northern Ireland—not only that it is fair and in the interests of justice, but that without it the Diplock procedure is more likely to alienate than to attract or inspire confidence in the legal system. It is less rather than more likely to bring terrorists to justice.

I was glad to hear the right hon. and learned Member for Warley, West (Mr. Archer) say that he would not necessarily press new clause 7 to a Division. In the spirit of gradualism referred to by the right hon. Member for South Down (Mr. Powell), and because of the need to return to as normal a system as possible, given the circumstances, in Northern Ireland, new clause 3 probably goes sufficiently far enough at this stage.

I want briefly to address my remarks to new clause 2. Sir George Baker's report has been referred to. Paragraph 136 of the report gives the most compelling reasons why we should follow the course advocated by the right hon. Member for South Down in new clause 2. Paragraph 136 states:
"More importantly many witnesses have told me of robberies and aggravated burglaries which had no connection or certainly no apparent connection with terrorism or terrorists or paramilitary organisations but because 'a firearm, imitation firearm or weapon of offence was used to commit the offence' became scheduled and were not capable of being certified out."
If we can remove as many cases as possible from those categories to enable normal circumstances to apply, so much the better.

The Diplock courts in Northern Ireland at the moment deal only with scheduled offences— offences associated with terrorism as defined in schedule 4 to the Northern Ireland (Emergency Provisions) Act 1978. There is widespread concern in the House and outside that the schedule is far too wide, in that offences committed by persons who are not connected with terrorism may nevertheless fall within the remit of the schedule. I understand that it was alleged in a recent study undertaken by the Cobden trust that no fewer than 40 per cent. of those tried by the Diplock courts had no apparent connections with terrorism. Therefore, I believe that it should be possible to deschedule cases that have no apparent connection with serious terrorist offences, to make them triable by a jury. I also believe that the list of scheduled offences should regularly and rigorously be examined with a view to excluding as many offences as possible. I hope that the Attorney-General will be able to say something about that possibility.

In relation to every scheduled offence, irrespective of where it appears in the schedule, the prosecuting authority should have a duty to consider whether the offence should be descheduled, and the descheduling should occur wherever possible. Furthermore, the accused should have the right to apply to the court to have his individual case descheduled on the ground that it is not connected with terrorism. That could take place either at the first appearance before a magistrate or in any subsequent appearance. The accused would have the right of appeal to the High Court.

Through the introduction of such safeguards, and perhaps as a result of the introduction of a panel of three judges, reductions in the size of trials, reductions in the delays before suspects are brought to trial and a statutory limit to remands in custody, many of the anxieties felt by hon. Members about the use of the Diplock courts can be set to one side. We all accept that there must be a gradual approach, and the right hon. Member for South Down phrased his remarks in terms that ought to commend themselves to hon. Members on both sides of the House. If there is a Division, I intend to follow up the support that I have given to the right hon. Gentleman in adding my name to the new clause by joining him in the Lobby.

The main factor that brings the system of criminal justice in Northern Ireland into disrepute is that there are so many trials without juries. We had an important and useful discussion about that issue in Committee. We understand that current Government practice is never to certify out an offence in which there is any suggestion of terrorist involvement. That point was made very clear to the Committee.

I notice that the Attorney-General is shaking his head. I hope that he will give us further clarification about that.

The right hon. Member for South Down (Mr. Powell) said that that was a self-defeating strategy. It means that so long as anyone is willing to engage in any kind of terrorist activity in Northern Ireland we will always have trials without juries. We are not on a path that will take us back to full jury trial.

My understanding, like that of the right hon. Member for South Down, is that the Government are not required, within the current powers to certify out, always to ensure that if there is any terrorist connection there should not be a jury trial. I very much hope that the Government—whose representative is not listening to my brief remarks — in responding to the new clause will at the very least, even if they do not accept the new clause, agree to some changes in the guidelines under which they currently operate. I hope that they will try to certify out initially —and I do not mind if the process is gradual in the first phase—some of those offences in which there is thought to be a terrorist connection to see whether a valid jury trial can take place.

It seems to me and to all people of common sense that it is in the interests of everyone, including those who have been charged with terrorist offences, that they should be tried by a jury. The current practice brings the system of criminal justice in Northern Ireland into massive disrepute among the nationalist community. I cannot remember the figure, but a shocking proportion of the people in that community have no confidence or faith in the criminal justice system at the moment.

We were told in Committee that the Government will never certify out any case where there is any suggestion of terrorist involvement. We are asking for a change in those guidelines. We want the Government to try to certify out in certain cases as part of the progress towards a return to jury trial. I welcome the fact that the Attorney-General has been shaking his head, but we were told otherwise in Committee. I hope that he has better news for us today.

5.45 pm

I am very grateful to the right hon. and learned Member for Warley, West (Mr. Archer) for his comments. We always consider the opinions and views of the right hon. and learned Gentleman with great care, especially on legal matters. His reputation as Solicitor-General will be remembered and respected for a long time by all hon. Members.

As a very new Solicitor-General I was present during the passage of the Northern Ireland (Emergency Provisions) Bill in 1973 and I spoke in the debate. After that I went to Belfast and spent a long time with the Director of Public Prosecutions for Northern Ireland working out the procedure that we would adopt. It is interesting that the Baker report, in paragraph 139, emphatically rejects the criteria that would be set out. I want to attempt to assist the House with one or two examples.

The right hon. Member for South Down (Mr. Powell) has resumed his championship—which he did so well in Committee—of the Baker report and he has challenged me to explain why the scheduled offences that are triable summarily or have a maximum penalty of five years should not be made capable of being certified out. I hope that I shall not bore the House, but I must describe those cases that are still left with that ban. There are very few. In summary, the exceptions are breach of the exclusion order; contributions towards acts of terrorism; withholding information about acts of terrorism; offences under proscribed organisations legislation; unlawful collection of information; training in use of firearms or explosives; offences under the Protection of Person and Property Act (Northern Ireland) 1969; making and possessing a petrol bomb; obtaining property by deception, but only where nuclear material is involved; escaping from detention; clothing, hoods, masks and things of that sort. The view that I and the Government have taken is that those offences are likely to be committed only by terrorists. It would be wrong to extend my discretion to those when in practice I would be totally unable to exercise that discretion.

In a moment we will debate the criteria that I used in deciding whether to exercise discretion. I hope to persuade the House that if a particular case is "connected with the emergency", that is sufficient to justify a decision by me not to exercise discretion. The hon. Member for Birmingham, Ladywood (Ms. Short) referred to "any suggestion of terrorist involvement". The procedure is nothing like as remote as that. If a case is "connected with the emergency", there is a real risk—and this repeats the argument that has continued since 1973 — that the outcome of any jury trial would be affected either by intimidation or by the juror's fear of subsequent retribution.

The right hon. and learned Member for Warley, West mentioned perceived intimidation. In the unhappily divided society of Northern Ireland, it is also possible that jurors trying such cases may be swayed by sympathy with or opposition to the underlying aims of those in the dock to return perverse verdicts. It would be to abandon common sense and, as the right hon. and learned Gentleman said, it could lead to many hung juries.

In the circumstances of Northern Ireland, those risks apply generally to any terrorist-related trial. If I were given discretion to certify out such offences, I would have to certify out cases which I simply cannot conceive would be covered by new clause 2. It is better that the mode of trial should he determined automatically on objective criteria by reference to the offence. My discretion to certify out mitigates the rigour of that approach and allows some cases involving scheduled offences to go for trial by jury, but my judgment is essentially subjective, and if we placed too much emphasis on it I might be put in an impossible position.

New clauses 3 and 7 address the basis on which I exercise the discretion conferred on me by schedule 4. I remind the House that the Government are firmly committed to the principle of trial by jury, and we look forward to the day when it will be possible to restore full jury trials in Northern Ireland. But, as the right hon. and learned Gentleman conceded, that time has not yet arrived. There remains a clear risk that jury trials involving some offences in Northern Ireland would not result in true verdicts, either because of intimidation or because of prejudice leading to a perverse verdict. That is the justification for the Diplock court procedure.

The issue contained in the new clauses is the basis upon which it should be decided that one person is tried by a jury while another is tried in a Diplock court. The Government's firm view is that the decision should rest as far as possible on objective grounds and that it should be determined not by reference to the offender but by the nature of the offence. That avoids any requirement for what could be a prejudicial decision, based on a subjective assessment, that a case should go for trial before a judge sitting without a jury. Just as Sir John Junor frequently does in his column in the Sunday Express, comparisons will be made between one sentence and another. As the right hon. and learned Gentleman with his legal experience will realise, until one knows all the facts it is difficult to compare one sentence with another and to criticise them.

We recognise that that approach has limitations. That is why we have the fallback of the 1978 Act, which provides that I may certify some cases for jury trial. That exercise must rest on a subjective assessment, but at least the decision will not be prejudicial. For example, when a defendant appears in an ordinary Crown court, it will be because I have specifically decided that the offence has no terrorist connections. It could be summed up in a sentence —although I do not have the phrase exactly right—by saying that the offence should be causally, not coincidentally, connnected with terrorism.

In the light of the Baker report, Parliament has already significantly extended the scope of my discretion to certify out. I assure the House that I exercise those responsibilities with great care, just as the right hon. and learned Gentleman did while in office. I have maintained the practice of considering every case that is capable of being certified out, and I have tried to do so within 24 hours, because the granting of immediate bail may rest on my decision. I do so on the basis of a note about each case which has been prepared, with equal care, by the Director of Public Prosecutions in Northern Ireland. The figures given by my right hon. and noble Friend the Lord Chancellor in the other place a short time ago show that, during the past five years, I considered 2,685 applications for certification and that I certified out 1,865 of those cases, which represents well over two thirds. That is a fairly large proportion, and it has come about because I receive the most carefully prepared notes on each case from someone of the rank of at least assistant director in the Northern Ireland Director's office. We do not rely on gossip or talk from the Royal Ulster Constabulary. We need hard evidence before we refuse to certify out.

I suppose that I could consider whether, in all the circumstances, any risk would be involved in sending a case for trial by jury. I doubt whether there is a distinction between asking, "Will there be a fair trial", and the causal connection approach. In considering whether a case is connected with the emergency, I take account of the likelihood that such cases, if sent for trial by jury, would be affected by intimidation or by the jurors' fear of subsequent retribution and the possibility of a perverse verdict. That is why we have the Diplock courts. In the circumstances of Northern Ireland, those risks apply generally to any terrorist-related trial. So, when deciding to issue a certificate for a case, I must decide whether, if I authorised a jury trial, it would be likely to result in a miscarriage of justice for those reasons. It would be wrong to apply a specific criterion along those lines, whether on the face of the legislation or not, because it would suggest that there should be specific evidence of a risk of a miscarriage of justice.

I have argued that, in the circumstances of Northern Ireland, such a risk exists in a general sense, regardless of the precise circumstances of each case. It would not be in the interests of justice or of the community to tip the balance towards jury trials simply because there may be no measurable risk of a miscarriage of justice in a case.

Those figures are available. I am sure that the House will accept my assurance that when I take decisions I am very well informed and do so with the greatest care.

The figures could be read in two ways. Either the Attorney-General carefully allows the jury trial in the maximum number of cases—1,865 out of 2,685—or the present line is drawn badly and the Attorney-General must carry out much unnecessary, exhausting, detailed work when instead he should amend the procedures so that he need not spend so much time certifying out so many cases.

The hon. Lady is saying that. I should delegate part of it——

I do not see how else we can do it while we have scheduled offences.

I said that I would give two or three examples. A terrorist, or illegally held, gun may be used by a man to murder his wife. That was an example given in the Baker report. We do not prosecute for possession of the weapon, which would be a scheduled offence, because it has been a long tradition in the Province that murder always stands by itself and is not aligned with other counts. If a police officer or a soldier used excessive force against a citizen —let us take the bad example of going as far as beating him up — and that citizen, purely in self-defence, punched the soldier to protect himself, I would certify out. If he over-reacted and produced a knife or an iron bar, it may be different, but we consider the matter as sympathetically as possible, as the figures show.

This has been a useful debate, but this is not the moment to move so far in the direction suggested by the right hon. Member for South Down.

Question put, That the clause be read a Second time:——

The House divided: Ayes 125, Noes 189.

Division No. 138]

[6 pm


Adams, Allen (Paisley N)Beckett, Mrs Margaret
Alton, DavidBeggs, Roy
Anderson, DonaldBeith, A. J.
Archer, Rt Hon PeterBenn, Rt Hon Tony
Ashdown, PaddyBennett, A. (Dent'n & Red'sh)
Atkinson, N. (Tottenham)Bermingham, Gerald
Barnes, Mrs RosemaryBoothroyd, Miss Betty
Barron, KevinBoyes, Roland

Brown, Hugh D. (Provan)Lewis, Terence (Worsley)
Bruce, MalcolmLitherland, Robert
Callaghan, Jim (Heyw'd & M)Livsey, Richard
Campbell-Savours, DaleMcCusker, Harold
Canavan, DennisMcDonald, Dr Oonagh
Carlile, Alexander (Montg'y)McKay, Allen (Penistone)
Carter-Jones, LewisMcNamara, Kevin
Clark, Dr David (S Shields)Madden, Max
Clarke, ThomasMaginnis, Ken
Clay, RobertMallon, Seamus
Clelland, David GordonMarek, Dr John
Clwyd, Mrs AnnMarshall, David (Shettleston)
Cocks, Rt Hon M. (Bristol S)Martin, Michael
Cohen, HarryMason, Rt Hon Roy
Coleman, DonaldMaynard, Miss Joan
Cook, Frank (Stockton North)Meacher, Michael
Corbett, RobinMikardo, Ian
Corbyn, JeremyMolyneaux, Rt Hon James
Cunningham, Dr JohnMorris, Rt Hon J. (Aberavon)
Dalyell, TamNellist, David
Deakins, EricOrme, Rt Hon Stanley
Dewar, DonaldOwen, Rt Hon Dr David
Dixon, DonaldPark, George
Dobson, FrankParry, Robert
Dormand, JackPike, Peter
Dubs, AlfredPowell, Rt Hon J. E.
Eastham, KenPowell, Raymond (Ogmore)
Edwards, Bob (W'h'mpt'n SE)Prescott, John
Fatchett, DerekRadice, Giles
Fields, T. (L'pool Broad Gn)Richardson, Ms Jo
Fisher, MarkRoberts, Allan (Bootle)
Flannery, MartinRobertson, George
Foot, Rt Hon MichaelSheldon, Rt Hon R.
Foster, DerekShields, Mrs Elizabeth
Garrett, W, E.Shore, Rt Hon Peter
Godman, Dr NormanShort, Ms Clare (Ladywood)
Golding, Mrs LlinSkinner, Dennis
Gould, BryanSmith, C.(Isl'ton S & F'bury)
Hamilton, James (M'well N)Smith, Rt Hon J. (M'ds E)
Hardy, PeterSmyth, Rev W. M. (Belfast S)
Hattersley, Rt Hon RoySoley, Clive
Haynes, FrankSpearing, Nigel
Heffer, Eric S.Strang, Gavin
Hogg, N. (C'nauld & Kilsyth)Taylor, Matthew
Howells, GeraintWainwright, R.
Hoyle, DouglasWalker, Cecil (Belfast N)
Hughes, Robert (Aberdeen N)Wallace, James
Hughes, Sean (Knowsley S)Wardell, Gareth (Gower)
Hughes, Simon (Southwark)Wareing, Robert
Janner, Hon GrevilleWelsh, Michael
Jenkins, Rt Hon Roy (Hillh'd)Winnick, David
Jones, Barry (Alyn & Deeside)Young, David (Bolton SE)
Kaufman, Rt Hon Gerald
Kennedy, CharlesTellers for the Ayes:
Kilfedder, James A.Mr. Lawrence Cunliffe and Mr. Ron Davies.
Kinnock, Rt Hon Neil
Leighton, Ronald


Alexander, RichardBraine, Rt Hon Sir Bernard
Amess, DavidBrinton, Tim
Ancram, MichaelBrittan, Rt Hon Leon
Ashby, DavidBrooke, Hon Peter
Atkins, Robert (South Ribble)Brown, M. (Brigg & Cl'thpes)
Atkinson, David (B'm'th E)Bryan, Sir Paul
Baker, Nicholas (Dorset N)Buck, Sir Antony
Baldry, TonyBudgen, Nick
Batiste, SpencerBulmer, Esmond
Beaumont-Dark, AnthonyButterfill, John
Bellingham, HenryCarlisle, John (Luton N)
Benyon, WilliamCarlisle, Kenneth (Lincoln)
Biffen, Rt Hon JohnCarlisle, Rt Hon M. (W'ton S)
Biggs-Davison, Sir JohnCash, William
Blackburn, JohnChapman, Sydney
Blaker, Rt Hon Sir PeterClark, Sir W. (Croydon S)
Bonsor, Sir NicholasClarke, Rt Hon K. (Rushcliffe)
Boscawen, Hon RobertCockeram, Eric
Bottomley, PeterColvin, Michael
Bottomley, Mrs VirginiaConway, Derek
Bowden, Gerald (Dulwich)Coombs, Simon

Cope, JohnMills, Sir Peter (West Devon)
Cormack, PatrickMoate, Roger
Couchman, JamesMoynihan, Hon C,
Douglas-Hamilton, Lord J.Mudd, David
Durant, TonyNelson, Anthony
Dykes, HughNicholls, Patrick
Fairbairn, NicholasOnslow, Cranley
Fallon, MichaelOppenheim, Phillip
Farr, Sir JohnOsborn, Sir John
Fenner, Dame PeggyOttaway, Richard
Finsberg, Sir GeoffreyPage, Sir John (Harrow W)
Fletcher, Sir AlexanderPage, Richard (Herts SW)
Fookes, Miss JanetPawsey, James
Forsyth, Michael (Stirling)Peacock, Mrs Elizabeth
Forth, EricPowell, William (Corby)
Fox, Sir MarcusPowley, John
Garel-Jones, TristanPrice, Sir David
Gilmour, Rt Hon Sir IanPym, Rt Hon Francis
Gower, Sir RaymondRaffan, Keith
Griffiths, Sir EldonRaison, Rt Hon Timothy
Hamilton, Neil (Tatton)Renton, Tim
Hargreaves, KennethRhodes James, Robert
Harris, DavidRidsdale, Sir Julian
Harvey, RobertRossi, Sir Hugh
Havers, Rt Hon Sir MichaelRowe, Andrew
Hawkins, Sir Paul (N'folk SW)Ryder, Richard
Hayward, RobertSackville, Hon Thomas
Heathcoat-Amory, DavidSainsbury, Hon Timothy
Heddle, JohnSayeed, Jonathan
Henderson, BarryScott, Nicholas
Hicks, RobertShaw, Sir Michael (Scarb')
Hind, KennethShelton, William (Streatham)
Hirst, MichaelShepherd, Colin (Hereford)
Holt, RichardShepherd, Richard (Aldridge)
Howell, Ralph (Norfolk, N)Silvester, Fred
Irving, CharlesSims, Roger
Jopling, Rt Hon MichaelSkeet, Sir Trevor
Kershaw, Sir AnthonySmith, Tim (Beaconsfield)
King, Rt Hon TomSpeller, Tony
Knight, Greg (Derby N)Spencer, Derek
Knight, Dame Jill (Edgbaston)Spicer, Jim (Dorset W)
Knox, DavidSquire, Robin
Lang, IanStanbrook, Ivor
Latham, MichaelStanley, Rt Hon John
Lawrence, IvanStern, Michael
Lennox-Boyd, Hon MarkStevens, Lewis (Nuneaton)
Lewis, Sir Kenneth (Stamf'd)Stewart, Andrew (Sherwood)
Lilley, PeterStradling Thomas, Sir John
Lloyd, Sir Ian (Havant)Sumberg, David
Lloyd, Peter (Fareham)Taylor, Teddy (S'end E)
Luce, Rt Hon RichardTemple-Morris, Peter
Lyell, NicholasTerlezki, Stefan
McCrindle, RobertThomas, Rt Hon Peter
McCurley, Mrs AnnaThompson, Patrick (N'ich N)
Macfarlane, NeilThorne, Neil (Ilford S)
MacGregor, Rt Hon JohnThornton, Malcolm
MacKay, Andrew (Berkshire)Townend, John (Bridlington)
Maclean, David Johnvan Straubenzee, Sir W.
McLoughlin, PatrickWalden, George
McNair-Wilson, M. (N'bury)Walker, Bill (T'side N)
McQuarrie, AlbertWard, John
Madel, DavidWardle, C. (Bexhill)
Malins, HumfreyWarren, Kenneth
Malone, GeraldWatts, John
Maples, JohnWells, Bowen (Hertford)
Marlow, AntonyWheeler, John
Mather, Sir CarolWhitfield, John
Maude, Hon FrancisWinterton, Nicholas
Mawhinney, Dr BrianWood, Timothy
Maxwell-Hyslop, RobinWoodcock, Michael
Mayhew, Sir PatrickYoung, Sir George (Acton)
Mellor, David
Merchant, PiersTellers for the Noes:
Meyer, Sir AnthonyMr. David Lightbown and Mr. Michael Neubert.
Miller, Hal (B'grove)
Mills, Iain (Meriden)

Question accordingly negatived.

New Clause 3

Attorney General's Discretion

'In Part I of Schedule 4 to the 1978 Act there shall be added after Note 4 the following Note—

"5. For the avoidance of doubt it is declared that the Attorney General may, in considering whether to give a certificate under Note 1 or Note 2 above, take into consideration, without prejudice to any other matters, any grounds on which it appears to him that that offence could be tried otherwise than as a scheduled offence consistently with the interests of justice having regard to all the circumstances.".'. — [Mr. Molyneaux.]

Brought up, and read the First time.

Question put, That the clause be read a Second time:—

The House divided: Ayes 125, Noes 188.

Division No. 139]

[6.12 pm


Adams, Allen (Paisley N)Haynes, Frank
Alton, DavidHeffer, Eric S.
Archer, Rt Hon PeterHogg, N. (C'nauld & Kilsyth)
Ashdown, PaddyHowells, Geraint
Atkinson, N. (Tottenham)Hoyle, Douglas
Barnes, Mrs RosemaryHughes, Robert (Aberdeen N)
Barron, KevinHughes, Sean (Knowsley S)
Beckett, Mrs MargaretHughes, Simon (Southwark)
Beggs, RoyJenkins, Rt Hon Roy (Hillh'd)
Beith, A. J.Jones, Barry (Alyn & Deeside)
Benn, Rt Hon TonyKaufman, Rt Hon Gerald
Bennett, A. (Dent'n & Red'sh)Kennedy, Charles
Bermingham, GeraldKilfedder, James A.
Boyes, RolandKinnock, Rt Hon Neil
Brown, Hugh D. (Provan)Leighton, Ronald
Bruce, MalcolmLewis, Terence (Worsley)
Callaghan, Jim (Heyw'd & M)Livsey, Richard
Campbell-Savours, DaleMcCusker, Harold
Canavan, DennisMcDonald, Dr Oonagh
Carlile, Alexander (Montg'y)McKay, Allen (Penistone)
Carter-Jones, LewisMcNamara, Kevin
Clark, Dr David (S Shields)Madden, Max
Clay, RobertMaginnis, Ken
Clelland, David GordonMallon, Seamus
Clwyd, Mrs AnnMarek, Dr John
Cocks, Rt Hon M. (Bristol S)Marshall, David (Shettleston)
Cohen, HarryMartin, Michael
Coleman, DonaldMason, Rt Hon Roy
Cook, Frank (Stockton North)Maynard, Miss Joan
Corbett, RobinMeacher, Michael
Corbyn, JeremyMikardo, Ian
Cunningham, Dr JohnMillan, Rt Hon Bruce
Dalyell, TamMolyneaux, Rt Hon James
Davis, Terry (B'ham, H'ge H'l)Morris, Rt Hon J. (Aberavon)
Deakins, EricNellist, David
Dewar, DonaldOrme, Rt Hon Stanley
Dixon, DonaldOwen, Rt Hon Dr David
Dobson, FrankPark, George
Dormand, JackParry, Robert
Dubs, AlfredPike, Peter
Eastham, KenPowell, Rt Hon J. E.
Edwards, Bob (W'h'mpt'n SE)Powell, Raymond (Ogmore)
Fatchett, DerekPrescott, John
Fields, T. (L'pool Broad Gn)Radice, Giles
Fisher, MarkRichardson, Ms Jo
Flannery, MartinRoberts, Allan (Bootle)
Foot, Rt Hon MichaelRobertson, George
Foster, DerekRobinson, G. (Coventry NW)
Freud, ClementSheldon, Rt Hon R.
Garrett, W. E.Shields, Mrs Elizabeth
Godman, Dr NormanShore, Rt Hon Peter
Golding, Mrs LlinShort, Ms Clare (Ladywood)
Gould, BryanSkinner, Dennis
Hamilton, James (M'well N)Smith, C.(Isl'ton S & F'bury)
Hamilton, W. W. (Fife Central)Smith, Rt Hon J. (M'ds E)
Hardy, PeterSmyth, Rev W. M. (Belfast S)
Hattersley, Rt Hon RoySoley, Clive

Spearing, NigelWelsh, Michael
Strang, GavinWinnick, David
Taylor, MatthewYoung, David (Bolton SE)
Wainwright, R.
Walker, Cecil (Belfast N)Tellers for the Ayes:
Wallace, JamesMr. Ron Davies and Mr. Lawrence Cunliffe.
Warden, Gareth (Gower)
Wareing, Robert


Alexander, RichardHenderson, Barry
Amess, DavidHicks, Robert
Ancram, MichaelHind, Kenneth
Ashby, DavidHirst, Michael
Atkins, Robert (South Ribble)Holt, Richard
Atkinson, David (B'm'th E)Howell, Ralph (Norfolk, N)
Baker, Nicholas (Dorset N)Irving, Charles
Baldry, TonyJopling, Rt Hon Michael
Batiste, SpencerKing, Rt Hon Tom
Beaumont-Dark, AnthonyKnight, Greg (Derby N)
Bellingham, HenryKnox, David
Benyon, WilliamLang, Ian
Biffen, Rt Hon JohnLatham, Michael
Biggs-Davison, Sir JohnLawrence, Ivan
Blackburn, JohnLewis, Sir Kenneth (Stamf'd)
Blaker, Rt Hon Sir PeterLightbown, David
Bonsor, Sir NicholasLilley, Peter
Boscawen, Hon RobertLloyd, Sir Ian (Havant)
Bottomley, PeterLloyd, Peter (Fareham)
Bottomley, Mrs VirginiaLuce, Rt Hon Richard
Bowden, Gerald (Dulwich)Lyell, Nicholas
Braine, Rt Hon Sir BernardMcCrindle, Robert
Brinton, TimMcCurley, Mrs Anna
Brooke, Hon PeterMacfarlane, Neil
Brown, M. (Brigg & Cl'thpes)MacGregor, Rt Hon John
Bryan, Sir PaulMacKay, Andrew (Berkshire)
Buck, Sir AntonyMaclean, David John
Budgen, NickMcLoughlin, Patrick
Bulmer, EsmondMcNair-Wilson, M. (N'bury)
Butterfill, JohnMcQuarrie, Albert
Carlisle, John (Luton N)Madel, David
Carlisle, Kenneth (Lincoln)Malins, Humfrey
Carlisle, Rt Hon M. (W'ton S)Malone, Gerald
Chapman, SydneyMaples, John
Clark, Hon A. (Plym'th S'n)Marlow, Antony
Clark, Sir W. (Croydon S)Mather, Sir Carol
Clarke, Rt Hon K. (Rushcliffe)Maude, Hon Francis
Cockeram, EricMawhinney, Dr Brian
Colvin, MichaelMaxwell-Hyslop, Robin
Conway, DerekMayhew, Sir Patrick
Coombs, SimonMellor, David
Cope, JohnMerchant, Piers
Cormack, PatrickMeyer, Sir Anthony
Couchman, JamesMiller, Hal (B'grove)
Crouch, DavidMills, Iain (Meriden)
Dorrell, StephenMills, Sir Peter (West Devon)
Douglas-Hamilton, Lord J.Moate, Roger
Dykes, HughMoynihan, Hon C.
Eyre, Sir ReginaldMudd, David
Fairbairn, NicholasNelson, Anthony
Fallon, MichaelNeubert, Michael
Farr, Sir JohnNicholls, Patrick
Finsberg, Sir GeoffreyOnslow, Cranley
Fletcher, Sir AlexanderOppenheim, Phillip
Fookes, Miss JanetOsborn, Sir John
Forsyth, Michael (Stirling)Ottaway, Richard
Forth, EricPage, Sir John (Harrow W)
Fox, Sir MarcusPage, Richard (Herts SW)
Garel-Jones, TristanPawsey, James
Gilmour, Rt Hon Sir IanPeacock, Mrs Elizabeth
Gower, Sir RaymondPowell, William (Corby)
Griffiths, Sir EldonPowley, John
Hamilton, Neil (Tatton)Price, Sir David
Hargreaves, KennethPym, Rt Hon Francis
Harris, DavidRaffan, Keith
Havers, Rt Hon Sir MichaelRaison, Rt Hon Timothy
Hawkins, Sir Paul (N'folk SW)Renton, Tim
Hayward, RobertRhodes James, Robert
Heathcoat-Amory, DavidRidsdale, Sir Julian
Heddle, JohnRossi, Sir Hugh

Rowe, AndrewTemple-Morris, Peter
Ryder, RichardTerlezki, Stefan
Sackville, Hon ThomasThomas, Rt Hon Peter
Sainsbury, Hon TimothyThompson, Patrick (N'ich N)
Sayeed, JonathanThorne, Neil (Ilford S)
Scott, NicholasThornton, Malcolm
Shaw, Sir Michael (Scarb')Townend, John (Bridlington)
Shelton, William (Streatham)van Straubenzee, Sir W.
Shepherd, Colin (Hereford)Waddington, Rt Hon David
Shepherd, Richard (Aldridge)Walden, George
Silvester, FredWalker, Bill (T'side N)
Sims, RogerWard, John
Skeet, Sir TrevorWardle, C. (Bexhill)
Smith, Tim (Beaconsfield)Warren, Kenneth
Speller, TonyWatts, John
Spencer, DerekWells, Bowen (Hertford)
Spicer, Jim (Dorset W)Wheeler, John
Squire, RobinWhitfield, John
Stanbrook, IvorWinterton, Nicholas
Stanley, Rt Hon JohnWood, Timothy
Stern, MichaelWoodcock, Michael
Stevens, Lewis (Nuneaton)Young, Sir George (Acton)
Stewart, Andrew (Sherwood)
Stradling Thomas, Sir JohnTellers for the Noes:
Sumberg, DavidMr. Tony Durant and Mr. Mark Lennox-Boyd
Taylor, Teddy (S'end E)

Question accordingly negatived.