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Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009

Volume 712: debated on Wednesday 8 July 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009.

Relevant Document: 17th Report from the Joint Committee on Statutory Instruments.

For many years the Government have expressed their desire to return to jury trial in all cases as quickly as possible in Northern Ireland. Sadly, the risks of community-based and paramilitary-based pressures on jurors in Northern Ireland remain acute, and of a different order from other places in the UK. Although major progress has been made over recent years and local politicians are working together in the Northern Ireland Assembly to create a brighter future, there is still progress to be made.

A small minority of those in Northern Ireland remain wedded to the ways of the past and continue to find terrorism and sectarianism acceptable. We must ensure that the criminal justice system is equipped to deal with these people.

As the issue of non-jury trial was debated in detail in 2007, a light-touch review was undertaken in January this year to inform the decision to extend. Next time, a more substantial review will be undertaken. During this year’s review, a wide range of stakeholders was consulted on potential renewal of the provisions, including the political parties, NGOs and practitioners.

During the development of the current non-jury trial system, the noble Lord, Lord Carlile of Berriew, provided particularly invaluable assistance. As part of the recent consultation he was again consulted. He concluded, based on the discussions that he has had throughout Northern Ireland, that extension was a justified step. The chief constable and Ministers also agreed that extension was necessary.

Although it is difficult to compare the old Diplock system and the new system, there does appear to be a continuing reduction in the number of non-jury trials. During the last two years of the Diplock system, 125 non-jury trial cases were dealt with. As reported to Parliament last year, the DPP issued 29 certificates for non-jury trials during the first year of the operation of the system, relating to 28 cases. Since then, he has issued a further 12 certificates. That means that, in almost two years, there have been only 41 occasions on which the DPP felt that a non-jury trial was necessary because any measures to protect the jury would not suffice.

Our criminal justice system relies on members of the public to act as jurors. The Government must therefore do everything possible to protect them from intimidation and the fear of intimidation. Sadly, even with non-jury trials being available in Northern Ireland, juror intimidation continues. Four cases in particular have been brought to the Government’s attention. In one of them, the judge considered the intimidation to be serious enough to discharge a juror, and in another the entire panel was dismissed. Witness intimidation also continues: 159 offences were reported to the PSNI last year.

There is a fear that the same intimidating tactics would be used against jurors if the option of a non-jury trial for the most serious cases was removed. Cases connected with paramilitaries or serious sectarianism are the most likely to pose these risks to jurors. This was key to including the provisions in the 2007 Act. Since then, we have unfortunately seen an upsurge in activity from dissident republicans. The threat from them is now higher than it was two years ago. This was brutally illustrated recently by the murders of Sappers Quinsey and Azimkar and Constable Carroll at the beginning of March this year. Furthermore, the horrific murder of father of four Kevin McDaid highlights that, while small in number, there are still those who feel that sectarianism and hatred have a place in Northern Ireland.

The order extends the effective period during which persons charged with indictable offences can be tried without a jury in certain circumstances, as set out in the Justice and Security (Northern Ireland) Act 2007. Without this order, the non-jury trial system in that Act will expire on 31 July 2009. Trial without a jury under the Act is possible only where the Director of Public Prosecutions for Northern Ireland has issued a certificate under Section 1 of the Act. The DPP may issue a certificate where he suspects that one or more of four conditions in the legislation are met and is satisfied that there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.

The four conditions are: that the defendant is, or is an associate of, a current or former member of a currently or formerly proscribed organisation; that the offence was committed on behalf of a proscribed organisation, or that a proscribed organisation was involved with the carrying out of the offence; that an attempt, by or on behalf of a proscribed organisation, was made to prejudice the investigation or prosecution; and that the offence was committed as a result of, in connection with or in response to religious or political hostility. This approach is risk-based and ensures that there is a non-jury trial only where it is absolutely necessary. There is the presumption of a jury trial unless one or more of the conditions applies.

Before issuing a certificate for a non-jury trial, the DPP considers whether other measures, such as making an application to the court for screening off the jury from the public, would allow him to be satisfied that there was no risk that the administration of justice might be impaired if the trial were to be conducted with a jury.

Non-jury trial remains an exceptional measure that is used only where there is no alternative. I am satisfied that extension of the non-jury trial arrangements for a further period is a necessary and proportionate step. I beg to move.

I thank the Minister for so clearly laying out the details of this statutory instrument and in particular for clarifying the conditions under which the DPP can reasonably expect to license a non-jury trial.

My party and I support the order—although, not surprisingly, it is with great regret. I asked the Minister’s officials during the previous debate how many times Diplock courts had been used in recent years, and I should clarify that she gave me the answer just now. The number was higher than I thought. However, it demonstrates to all the truth of what is going on in my home Province.

There is still far too much organised crime; there is, as the Minister pointed out, a significant amount of terrorism from dissidents and—to correct her a little—a certain amount still from loyalists in the line of sectarianism and hatred. Unfortunately, it is now directed against immigrants such as Poles, Chinese and Romanians. It takes the form of gangs and organised crime. We saw the same sort of thing conducted on a smaller scale by a bunch of football thugs in Coleraine after the Rangers-Celtic match, when a father of a family—a very good man, a community worker—was murdered quite unnecessarily.

I have pressed for some time my colleague in another place, Owen Patterson, to be more critical of the way in which the Province is being led, both by its Secretary of State and the PSNI leadership. The chief constable is leaving; he has been known to be leaving for some considerable time; a replacement has not yet been found. The PSNI replaced its deputy, who left some time ago, before replacing the chief, knowing that the two were going to go together, which was ridiculous. It had a wonderful opportunity to pick the No. 1 and let the No. 1 have influence in who his No. 2 was going to be—but, no, they did not do that, because they knew better, didn’t they? That sort of thing is going on in Northern Ireland. It intimidates people and prevents their devolving justice and policing. I would find it very difficult today to vote for devolution of policing and justice—that is a personal issue; where my party stands on it is probably slightly different.

As the Minister said, there is also a serious risk of juries being intimidated—in fact, they are being intimidated from time to time—and it is even more difficult to bring witnesses to court, because they, too, are at serious risk of intimidation due to the family structure of the little Province, where everybody knows everybody, criminal gangs operate in particular communities and it is extremely hard to find witnesses to come forward. I met some potential witnesses after the young police constable was killed in Craigavon. I was there the morning after. It is easy to understand that attitude when you stand on the ground, see the sight-lines and know who lives there. If I was in one of those houses near to where that poor young man was killed, I would not be too keen to go into court as a witness and say, “I saw Bloggs; that was him”. I am making the Government’s case here, in outlining where I believe there is a need to continue, sad as it is, with what I call the Diplock, or non-jury, courts.

What is perhaps more worrying and more interesting is something that I have not actually read, but my noble friend Lord Trimble told me about it. In today’s Irish Times it is reported that the Republic of Ireland, or Ireland as it is now correctly known, is also debating in both Houses of the Dail a proposal to bring in non-jury trials. That is for similar problems to those we have in the north. Much as I would love to see non-jury trials come back to my Province in the next year or two, by the time this order runs out, it depresses me to think that it will not happen. Therefore, I must support the Government’s action in extending the Act.

I, too, thank the noble Baroness for introducing this order in her usual clear and precise way. I want also to place on the record my thanks for the meeting yesterday with the Northern Ireland Office. The officials were extremely helpful and we had a useful exchange of views and ideas. However, it is frustrating and disappointing that the Government did not hold a full public consultation on the immensely important extension of this order.

The noble Baroness referred to a light-touch review being undertaken. It means that neither this Committee nor anyone else in Parliament can scrutinise the basis on which the Secretary of State has taken the decision to extend these provisions.

As we have heard, the primary justification by the UK Government for non-jury trials in Northern Ireland is to avoid paramilitary and community-based pressures on jurors. The Government say that it is difficult to judge the level of juror intimidation in Northern Ireland yet conclude that it remains prevalent, and indeed we have heard the noble Lord explain that. What is happening in Northern Ireland is extremely difficult, but should not be used as an excuse for the police not to look after jurors, although intimidation appears to be a growing problem. However, the Government have failed to provide any substantial evidence to this end. Can the Minister give examples or cite evidence that she may have as opposed to that of the noble Lord, Lord Glentoran?

We also cannot tell whether the Secretary of State considered any revisions to the scheme. For example, the United Nations Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, recently raised concerns regarding the use of non-jury trials and the lack of a sufficient appeal mechanism for challenging a decision by the Public Prosecution Service for Northern Ireland to hold a trial in the absence of a jury. The HRC has noted the lack of obligation on the director to provide “objective and reasonable grounds” when applying different rules of criminal procedure, which is contrary to Article 14 of the ICCPR. The right to legal challenge, particularly judicial review, is a basic right that was acknowledged by the Northern Ireland Office in its 2006 consultation paper regarding the replacement of the Diplock courts. It stated that,

“the DPP’s decision will be challengeable by means of judicial review. This will enable defendants to be sure that the decision has been taken properly”.

However, the actual legislation permits judicial review only in exceptional circumstances. Was this something the Government considered amending when reviewing the legislation?

We are further concerned that by continuing with provisions for non-jury trials in Northern Ireland, the Government are sending the wrong signals to the public. Mr Eddie McGrady, the SDLP MLA for South Down, told the House of Commons General Committee on Delegated Legislation:

“If we want to send the message of the return to normality, this is not the message to send. However the proposal is refined by using the phrase ‘non-jury trials’ … in Northern Ireland, they are seen as the continuation of the Diplock courts and the continuation of the oppressive system of justice”.

Northern Ireland is not experiencing an emergency as defined by Article 15 of the ECHR, and to continue to trial provisions in Northern Ireland as if there were an emergency perpetuates a lack of confidence in the rule of law. It may be argued that judges sitting alone can impartially and independently hold trial and therefore non-jury trials are not a breach of the right to a fair trial, but jury trials are inexorably linked to the common law system in legislation, so non-jury trials undermine this principle and weaken public confidence in the justice system and the overall peace process in Northern Ireland.

According to the criminal justice review, more than three-quarters of the population of Northern Ireland believes that juries are better at deciding cases in the Crown Court than are judges sitting alone. In the words of the review, jury trials reflect,

“a symbol of normality with all that means for public confidence”.

The HRC stated that the Government should carefully consider whether the situation in Northern Ireland warrants judicial procedures that are intrinsically different from the rest of the UK, with a view to abolishing such distinctions. The introduction of jury trials for all cases would be a way to acknowledge and commend the enormous political and social strides that have been made in the past decade, furthering reciprocal confidence between the people and the state. The original legislation provided for special measures to protect jurors. Will the Minister tell us how these are working?

Finally, although the Government will have decided to renew the non-jury trial provisions before the acts of decommissioning by loyalist paramilitaries last weekend, which are very welcome, do they not agree that non-jury trials must be looked at in a different context? Will the Minister consider withdrawing the order and replacing it with a provision to extend the provisions for just one year, as proposed by my noble friend Lord Carlile of Berriew?

The Merits of Statutory Instruments Committee, in considering the Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009, said under the heading “Who supported the extension, and why?”:

“Lord Carlile met and discussed the issues with a wide range of practitioners and stakeholders, including political parties and interested NGOs throughout Northern Ireland. His conclusion, on the basis of the discussions he had, was that the case was made out to extend the provisions for a further year”.

That is not quite what the Minister said, although we know that the provisions in the order are for two years. Perhaps she would consider an extension for one year rather than two years, so that both she and the Committee can reflect on the changed circumstances more promptly. The extension under this order is profoundly regrettable.

I thank the Minister for the exposition that she has given of the case for this instrument. Like other noble Lords today, I am delighted to see her back at the Dispatch Box.

I strongly support the instrument in the terms in which it has been laid out. I wanted to pose a question but, having listened to the Minister, I have changed my mind about what the most burning question is. I had wanted to ask why the Government reasonably believed two years ago that it might be possible at this stage to dispense with non-jury trials as an element in the justice system in Northern Ireland. Listening to her, I accept that the reasons she has given provide an answer, in a way—we are dealing with unprecedented and unpredictable circumstances in the recent revival of republican violence.

I find myself with another question, though: why do the Government believe that two years from now they will not be coming back to this House and asking for a further extension? I want to develop a point made by the noble Lord, Lord Glentoran, when he referred to what is happening in the Irish Republic. In fact, the Dáil has moved beyond the point of discussion of this idea; last night the Criminal Justice (Amendment) Bill in Dublin passed its committee stage and it is expected to become law this week. It will mean, bluntly, that it will abolish the use of jury trial for a range of new offences, especially those concerned with organised criminality of the sort that we are dealing with.

We accept that much of this crime in Ireland has a cross-border basis. Is it realistic to suggest that the Irish Republic is moving towards a system where it accepts that it is not going to be using jurors because of the prevalence of intimidation in many of these cases while a few miles away in Northern Ireland, which is an equally fraught terrain, two years from now we will move completely back to jury trials? My suspicion and my fear—I regret this, because I understand exactly the underlying philosophy motivating what the Minister has said, and I accept the desirability of jury trials—is that, in such circumstances, it will not be possible two years from now unless things develop in Irish society in a way that is more benign than we might believe, or than the Irish Ministry of Justice seems to believe as it lays out the rationale for this major change in Irish law.

I have a question about the relationship between the Northern Ireland Office and the Department of Justice, Equality and Law Reform in Dublin. Going back to the days when Sir John Chilcot was the Permanent Under-Secretary, if not before, the relationship between those two offices has traditionally been a close and friendly one—perhaps closer and more consistently friendly than that with other departments of state in Dublin. I wonder whether the Minister is in a position to say anything about whether these current proposals have been discussed with the Department of Justice, Equality and Law Reform in Dublin in the light of what that department is doing with regard to the Irish Republic, where we are with that relationship and the type of discussions that go on.

I repeat, although with a heavy heart, that it would be irresponsible to do anything other than to accept the basis of the instrument.

I would just like to point out that the noble Lord, Lord Bew, and I have not discussed this particular situation at all. Although he was saying similar things to me, they are two totally independent views.

I thank the noble Lords, Lord Glentoran and Lord Bew, and the noble Baroness, Lady Harris. I note the concerns of the noble Lord, Lord Glentoran, about which he has been very frank, and I will take them back. He quoted the recent dreadful attack on the Romanian people, and I agree with him that hate crimes and racism have no place in Northern Ireland; those who carried out the attack have no real place. Racist attacks are unacceptable and will not be tolerated. As the noble Lord knows, the police have arrested six people in relation to those attacks. Three have been charged, of whom two were released on court bail and a third was remanded in custody. The other three arrested have been released on police bail pending further inquiries.

I again take note of the observation made by the noble Lords, Lord Glentoran and Lord Bew, that the Irish Government are expanding the Special Criminal Court in Dublin to deal with organised crime cases. As noble Lords will know, the situation here is that under the 2007 Act we are enabled to take such cases to be tried without a jury where they are connected to paramilitaries or sectarianism and there might be a risk to the administration of justice. It all seems to be going in the wrong direction as far as our hopes are concerned.

I hope that noble Lords will bear with me because I believe that the noble Baroness, Lady Harris, deserves a fairly detailed response to several of her questions. I know that she was not satisfied, and certainly her colleagues in another place were not satisfied, with the length of replies to this order. She asked about the rationale for extension. Paramilitary-based and community-based pressures on a jury mean that there is still a risk of perverse verdicts in certain cases. These arrangements are designed to ensure that a fair trial can be provided in all cases where there are ongoing risks to the administration of justice. Where there are ongoing risks, the administration of justice might be impaired, and we must act.

The non-jury trial system targets the particular risks posed by cases involving paramilitaries and serious sectarianism. Sadly, these types of cases continue to arise in Northern Ireland, as shown by the recent murders of Kevin McDaid, Constable Stephen Caroll and Sappers Quincy and Azimkar. We are all aware that the level of threat in Northern Ireland from dissident republicans is now higher than when the Parliament considered these arrangements in detail in 2007 and concluded that they were necessary and appropriate.

If we are looking at the rationale for extension, risks to jurors remain significant. Even with the changes that have been made to the jury system and the ability to hold non-jury trials in certain cases, I am aware of four reported cases of attempted jury intimidation. In one case a juror had to be discharged and in another a whole jury was discharged. Noble Lords referred to witness intimidation; 159 such cases were recorded by the PSNI in 2008. We know that intimidation is significantly underreported, so the real figure is likely to be much higher.

Intimidation is completely unacceptable. It remains a significant issue that the Government are concerned that removing the ability to try certain cases without a jury would expose jurors to a risk of intimidation that is completely unacceptable. If paramilitaries are prepared to use these tactics against witnesses in order to frustrate police investigations and prosecutions, it seems to me that they would be willing to intimidate jurors as well as witnesses. Sadly, Northern Ireland society remains vulnerable to intimidation. People live in small, close-knit communities, as noble Lords have said, where it is much easier to identify those on jury service.

The number of non-jury trials, as I have said, is diminishing. There were 125 Diplock cases in the last two years of that system, which represents 6 per cent of Crown Court cases. In the most recent two years, the DPP has issued 41 certificates for non-jury trial, and 1 per cent of Crown Court cases have been heard been heard without a jury. This is a welcome change and I hope that the numbers continue to fall, but the fact that there have been 41 cases in two years where the DPP has been satisfied that there was a risk of the administration of justice being impaired if they were to be tried before a jury indicates that there remains a significant problem that the Government must address.

The noble Baroness, Lady Harris, asked what right of appeal exists to the DPP’s decisions. She will know that decisions are judicially reviewed where there has been bad faith, or in other exceptional circumstances. However, a defendant will suffer no detriment from being tried without a jury—in some cases, it may even be fairer—and we see no need for other avenues of appeal. Perhaps I could write to the noble Baroness to expand on that.

The noble Baroness also asked whether we were considering amending the legislation. The 2007 Act does not permit amendment, only extension, but the Government have committed to examining the system in detail, with a public consultation, before the next extension in 2011. This issue can be considered then.

The noble Baroness asked about judicial review of juror protection measures. Juror protection measures, including juror anonymity and the abolition of peremptory challenge, were challenged in the McParland judicial review. The court rejected the challenge and ruled that the jury provisions in the 2007 Act did not violate Article 6 of the ECHR. The jury made clear in McParland that the new arrangements pursue a clear and proper public objective and represent a fair balance between the general interests of the community and the personal rights of the individual.

The noble Baroness asked whether the measures could be extended for one year. Our response is that it is not possible under the Act. We have subsequently spoken to the noble Lord, Lord Carlile, who confirmed to us that he supports the extension for two years.

The noble Baroness said that returning to jury trial would be a mark of a return to normality, with which we of course agree—I said in my opening remarks that we would want to return to it as soon as possible. We are on a journey towards a more normal Northern Ireland, although many aspects of the past continue. We all hope that these measures can be ended as soon as circumstances allow.

The noble Lord, Lord Bew, asked why we thought that circumstances would have changed in two years and whether two years would be enough. We do not know at this stage—it is a question of whether the glass is half empty or half full. We hope that the situation is more optimistic in two years’ time. We shall need to consider the situation carefully as part of a thorough review, which will include the views of the public. By 2011 there will be a greater body of evidence on which to make the decision. We talked about the light-touch review in January or February of this year, but the thorough review, in which we consult the public and stakeholders, will give us a clearer picture of the risks and the opportunities involved.

Motion agreed.