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Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2013

Volume 745: debated on Tuesday 4 June 2013

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 2013.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments.

My Lords, this order extends for a further two years the period during which trials without a jury can take place in certain circumstances in Northern Ireland. Without this order, the system allowing for non-jury trials would lapse on 31 July this year.

It is with regret that I propose that this system be renewed for a further two years, but I do so with the knowledge that there remains in Northern Ireland a serious threat from a small but dangerous minority. They have no mandate but seek to drag Northern Ireland back into the past. Their targets are police officers, soldiers and prison officers, but their attacks are felt by the wider community, many of whom face disruption on a daily basis.

The reckless murder of prison officer David Black, in November 2012, by a group referred to as the “new IRA” was an unwelcome reminder of the continuing threat posed by dissident republican terrorists. This new grouping primarily consists of members of the Real IRA, Republican Action Against Drugs, which conducts brutal shootings against nationalist members of the community, and a number of unaffiliated individuals, who we believe have connections to the fatal attack against Massereene barracks in 2009.

The Police Service of Northern Ireland and its counterpart in the Republic of Ireland, the AGS, continue to thwart the efforts of such groups. Across the island of Ireland, 173 arrests and 64 charges were made during 2012. There were also 18 convictions of individuals involved in planning and participating in attacks. So far this year, there have been 63 arrests, 32 charges and 18 seizures. Many more attacks have been thwarted and disrupted.

It is therefore vital that there are means available within the criminal justice system to allow the perpetrators of these attacks to be brought before the law. We must recognise that Northern Ireland is still unfortunately in a unique situation, and the non-jury trial provisions provide a unique solution to a small number of cases. Noble Lords will know that jury trials in Northern Ireland are not safe from disruption by those involved in terrorist activity. Public galleries are at times crowded with members of the public. The close-knit nature of society in Northern Ireland means that jurors are vulnerable to intimidation. This can result in, at best, a partisan verdict.

I thought it would be helpful if I outlined the processes involved in order to obtain a non-jury trial. The Director of Public Prosecutions issues a certificate which allows for one. The DPP can issue a certificate for a non-jury trial only if he believes that one or more of four statutory conditions, which are laid out in Section 1 of the Justice and Security (Northern Ireland) Act 2007, are met. Condition 1 is that the defendant is, or is an associate of, a member of a proscribed organisation. Condition 2 is that the offence was committed on behalf of a proscribed organisation or that a proscribed organisation was involved. Condition 3 is that an attempt has been made by or on behalf of a proscribed organisation to prejudice the investigation or prosecution. Condition 4 is that the offence was committed as a result of, or in connection with, religious or political hostility.

Noble Lords will be aware that a proscribed organisation is one that is concerned with terrorism. It can also be seen that the four conditions relate specifically to the circumstances of the offence and the defendant. Furthermore, the DPP must be satisfied that there is a risk that the administration of justice might be impaired if a jury trial were to be held. There is a clear distinction here between this system and the previous Diplock court arrangements which were in place prior to the Justice and Security (Northern Ireland) Act 2007. The Diplock system saw all scheduled offences tried by a judge alone. Today, there is a clear presumption that jury trial will take place in all cases. Certificates are issued only when absolutely necessary in the interests of the administration of justice and where the particular statutory tests are met.

Noble Lords will also wish to be aware that not all cases proceed to a non-jury trial. The PSNI holds no right to stipulate that a non-jury trial takes place, and the Director of Public Prosecutions acts with discretion and independence in deciding whether to issue a certificate. Hence the number of non-jury trials in Northern Ireland remains relatively low. So far, in 2013, the DPP has issued just eight certificates for non-jury trials and one request has been refused. In 2012, 25 certificates were issued and three were refused. However, while they are low, these figures are still significant and show the ongoing need for non-jury trial.

I know that this is now the third such renewal of these provisions and there is some concern about that. I am also aware that during the last renewal in 2011, noble Lords expressed concern about the limited consultation that was held at the time. I can, however, inform noble Lords that prior to taking a decision on the renewal of the provisions this time around, the Northern Ireland Office canvassed opinion from the main stakeholders linked to the operation of non-jury trials in Northern Ireland. This included the PSNI, the Department of Justice, the Northern Ireland Courts and Tribunals Service, the PPS in Northern Ireland and the Office of the Lord Chief Justice. The consensus among all of those stakeholders was that the present threat environment is not dissimilar to that surrounding the previous renewal and, as such, all were in favour of renewing the provisions as they currently stand.

The canvassing exercise did, however, inform the Secretary of State’s decision to hold a limited consultation again for the 2013 review. In reaching her final decision on whether to seek the renewal of the provisions, the Secretary of State then formally consulted with those who have direct involvement in the operation of the system, including members of the judiciary, the security forces, human rights groups and political representatives.

The noble Lord, Lord Carlile of Berriew, the Independent Reviewer of National Security Arrangements in Northern Ireland, who has previously scrutinised the non-jury trial system, concluded that trials are not safe from disruption and recommended renewal of the provisions for a further two years. The Attorney-General, in his capacity as Advocate-General for Northern Ireland, also agreed that in view of the current circumstances a further two-year extension should be sought.

Although there was some limited opposition to renewal, the overwhelming response from the consultation acknowledged that the security situation in Northern Ireland rendered the provisions necessary, at least for a further two years. I can assure noble Lords that the Government do want to see a return to full jury trial in all cases in Northern Ireland, but this should happen only when the security situation permits and your Lordships will know that we are not there yet. Given the current severe threat from Northern Ireland-related terrorism and its bearing on criminal trials, now is not the time. The renewal of these provisions for a further two years is, regretfully, the only way forward at present.

The Government remain fully committed to tackling the threat from terrorism and keeping the people of Northern Ireland safe and secure. It is with this responsibility in mind that the Government seek to renew the non-jury trial provisions. I commend the order to the Grand Committee.

My Lords, I thank the noble Baroness, Lady Randerson, for introducing the order, which I reluctantly support. I have only one question. At one point the noble Baroness said that all stakeholders who were consulted accepted the need for the continuation of these arrangements. The document actually says that the majority of respondents to the consultation accepted the need for the continuation of these arrangements. Is it possible to be told a little more about the arguments of the minority and how strongly they were stated, even, if possible, where they came from and, indeed, if this represents any difference of view among the political parties? However, as I said in my opening remarks, I regretfully agree absolutely with the Government that the situation in Northern Ireland at the moment is such that it is necessary to continue with these arrangements. I hope very much that it will not be too long before the Minister can come to the Dispatch Box and give us better news, but she has had no alternative than to make the announcement that she has today.

My Lords, I reluctantly agree with the noble Lord, Lord Bew. We are considering a two-year renewal. Given the length of time that would have to elapse before what any of us would consider normality could resume, it seems to me inevitable that this measure will have to be renewed, at least for the proposed period. The fact is that while the number of trials is not large, it is significant, and it is the nature of the trials that is really the issue. I do not see any grounds for believing that we are at a point where a renewal of this provision could be refused in the foreseeable future. That is most unfortunate but I think the reality on the ground speaks for itself.

The noble Baroness referred to the murder of Mr Black towards the end of last year. Perhaps the Committee is not aware of the number of terrorist attempts that have been made since then, to say nothing of what was done in the year or two years before the death of Mr Black. We should put on record our thanks to the security services for the number of terrorist attempts that have been interdicted. We also should thank the Irish police for the co-operation that we are receiving from them and for the very effective actions that they have taken. Their contribution has saved the lives of many people, not only within their own jurisdiction but within ours.

It is a fact that a significant number of people are daily continuing to attempt to kill and bomb, and the Minister will be aware that even within the past few weeks there have been a number of very significant attempts. Within the past few days there was an attempt to kill police officers in Belfast. It is inconceivable that if those people were apprehended, you could conduct a trial as if we were in the Home Counties. I have to say with regret that, in view of some events that have taken place on this side of the water, one can see how quickly a situation could become corrupted and people could be intimidated.

We therefore owe the judiciary in Northern Ireland a debt of gratitude for consistency over many decades because it has kept civilisation and the rule of law together. It is not perfect and is not the way that we would like it to be but, unfortunately, I do not see any short to medium-term alternative but to continue to renew this measure. However, I ask the noble Baroness to consider this: if the intention of the initial legislation in 2007 was that it should be short-term, and we continue to renew it in two-year bites, is someone going to judicially review this whole thing and say, “That was not the original intention of Parliament. It was short-term, what you are doing is continuing to renew and renew. You are actually carrying out a purpose for which the original legislation was never intended”? The department should bear that in mind.

My Lords, again I thank the Minister for her clear outline of the order. For the purpose of this discussion, I thank my two friends, the noble Lords, Lord Bew and Lord Empey, for bringing as usual to these discussions weight, knowledge and a firm understanding of what is at stake in Northern Ireland. They have long experience there, which we are lucky to have brought to this Room. I share with all noble Lords and noble Baronesses the reluctance, but nevertheless acceptance of the need, to proceed with the renewal of the order. It is entirely necessary but none of us likes it. There is merit in what the noble Lord, Lord Empey, said about a review at some point and we would all be delighted to have that review and for it to recommend the discontinuation of the legislation. However, we are not there yet.

In the interests of information and getting a clear picture of what is happening on the ground regarding these issues, the Minister outlined the number of cases. She mentioned only one terrorist-based organisation, which was republican. Does that mean that there were no instances of charges involving, for want of a better description, the loyalist/militant unionist community? Perhaps that is a bit of a misnomer. That is not to say that we are in some sort of competition to see who is causing more trouble than anyone else; it is for the sake of giving noble Lords here a grasp of the situation. That would inform us and enable us to get a better picture.

However, it is quite clear that we are all in agreement and the Labour Front Bench strongly supports this move and joins everyone in this Room in hoping that this is near enough the last continuation of these provisions.

My Lords, I thank all noble Lords for their contributions. I agree wholeheartedly with the last sentiment expressed by the noble Lord, Lord McAvoy. We would all agree that we very much hope that this will be the last time that this order has to be renewed.

I shall start with the contribution of the noble Lord, Lord Bew. I was perhaps not clear in what I said. There was a two-stage process in the consultation. The Secretary of State canvassed opinion among stakeholders and, having taken those initial soundings, she decided to hold a formal consultation. It was formal but limited in the number of organisations that were consulted and the response rate did not indicate that there was any burning concern in a number of organisations. Three of the responses from the organisations did not agree with the renewal, although one of them was a group of academics in Australia which was not a formal part of the consultation. The reasons given by the people who live in the community directly affected by this were largely to do with there being a lack of evidence of intimidation. Of course, one is struck by the fact that if this system is working well, it prevents intimidation, and therefore, it if has worked successfully, there will be little evidence of intimidation. For example, the director of the Committee on the Administration of Justice expressed frustration at the lack of available evidence of juror intimidation and questioned the degree of discretion afforded to the Director of Public Prosecutions in issuing the certificate. The tenor of the reply was concern that there was no evidence.

I share the concern expressed by the noble Lord, Lord Empey, about the current violence. It is worth pointing out that there is a large number of unsuccessful attempts at violence and terrorism. I shall give some examples. So far this year, in relation to national security attacks, there have been 68 arrests, 32 charges and 19 seizures. That is a sign of the success of the PSNI operation. The noble Lord raised the possibility of judicial review. It is always a possibility, and the Northern Ireland Office is aware of it. I will ensure that the point is made to the Secretary of State and that she is aware of the noble Lord’s comments.

The noble Lord, Lord McAvoy, asked about loyalist attacks. The concern about terrorism is primarily about dissident republicans but, of course, there is another issue about loyalist unrest, the nature of which we saw during the flag protests, which became violent on a number of occasions. There were death threats and violence against the police, and a considerable number of police were injured in the early days of those protests. We need to be aware of the issue, in that there is a different face to concern in both those communities.

Finally, we have to bear in mind that in Northern Ireland people are particularly vulnerable to paramilitary intimidation. It is greater than it is in the rest of the UK because, as noble Lords know very well from their own experience, people live in small, close-knit communities. It is particularly easy to identify those called for jury service, which is at the heart of the problem. We have to be concerned about the intimidation or potential intimidation of jurors by people representing both sides of the community. I commend the order to the Committee.

Motion agreed.

Committee adjourned at 5.56 pm.