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Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2023

Volume 830: debated on Monday 5 June 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2023

Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee

My Lords, under this draft order, which was laid before this House on 24 April, trials without a jury can take place in Northern Ireland where the statutory conditions are met for a further two years, until 31 July 2025. The current provisions will expire on 31 July this year. Following a public consultation, and after consideration of the wider security situation in Northern Ireland, my right honourable friend the Secretary of State considers it necessary to seek an extension to these provisions to ensure the continued safe administration of justice in specific cases.

I am keenly aware that this is the eighth extension of these powers since they came into operation in 2007. I hope that noble Lords will be assured of the continued necessity of these provisions for a further two years. This decision was made carefully and informed by a detailed public consultation process, as well as by the work of the non-jury trial working group. This group was established following recommendations by the former Independent Reviewer of the Justice and Security Act, Mr David Seymour CB, and is composed of representatives from the Public Prosecution Service for Northern Ireland, the Police Service of Northern Ireland, the Court Service, the Bar, the Law Society and other independent organisations.

The group has worked to produce detailed reports for the independent reviewer and to develop a set of indicators to assist the Secretary of State in determining whether these non-jury trial provisions remain necessary. The indicators include assessments of the current levels of paramilitary activity and intimidation in Northern Ireland. In conjunction with the consultation responses, the Secretary of State considered these and reached the determination that they further demonstrate that it would not be appropriate to remove the non-jury trial provisions at this time.

I am of course keenly aware of the disappointment that many noble Lords across the House will feel that the security situation today necessitates a further extension of these provisions. We should not, however, lose sight of the real progress that has been made since the dark days of the so-called Troubles. Today, there is a strong presumption of jury trial in Northern Ireland, and in 2021 only 0.6% of all Crown Court cases were conducted without a jury; that is, eight out of 1,358. By contrast, at the peak of the Diplock court system in the mid-1980s, there were more than 300 such cases per year.

Under the provisions of the 2007 Act, non-jury trials are reserved for use only in exceptional cases where the Director of Public Prosecutions for Northern Ireland deems it to be necessary. As correctly stated on 23 May in the other place by the spokesperson for the Official Opposition:

“The provision for non-jury trials is a little-used but vital tool in ensuring the administration of justice”.—[Official Report, Commons, Delegated Legislation Committee, 23/5/23; col. 6.]

I agree with that statement.

As I know noble Lords will appreciate, these proportionate measures remain necessary to safeguard against risks such as juror intimidation and juror bias in an extremely small number of cases. A non-jury trial may be permitted if the defendant is associated with a proscribed organisation or if the offence being tried is in connection with religious or political hostility. Such cases are high profile and continue to provoke strong public opinion on both sides of the community.

Like their predecessors, this Government remain committed to bringing an end to these provisions when it is safe and compatible with the interests of justice to do so. We firmly believe, however, that now is not the time to take this step.

As demonstrated by the recent increase in the threat level to “severe” and the abhorrent attack on DCI John Caldwell in February, a small number of people in Northern Ireland continue to try to destabilise the political situation through acts of terrorist violence. Their activity causes harm to individuals and communities across Northern Ireland.

Despite courageous work by the Police Service of Northern Ireland and others across the community in Northern Ireland, terrorist and paramilitary groups continue to exert influence and control in communities where they operate. In the year 2021-22 there were 163 recorded offences of intimidation or threats to harm witnesses, and 170 households were accepted as homeless due to intimidation in 2022. These are facts that we cannot ignore.

It would be counterintuitive to believe that the same issues faced by witnesses would not be replicated should they be asked to sit as a juror in these cases. Furthermore, the most recent results from the Northern Ireland Life and Times survey in 2022 found that 17% of respondents believed that paramilitary groups create fear and intimidation in their area.

I trust noble Lords will agree that the safety of the people in Northern Ireland and the administration of justice are paramount. The Government remain committed to working strategically with security partners to tackle the threat from Northern Ireland-related terrorism and to support the Northern Ireland Executive’s programme to tackle paramilitary activity. However, we are not prepared to put the safety of individuals or the administration of justice at risk and believe that there has not been sufficient change in the security situation over the last two years to demonstrate that the non-jury trial provisions are no longer required.

In conclusion, I am sure that I can count on the support of noble Lords across the Committee for the Government’s work to safeguard the administration of justice and to normalise all security arrangements as soon as it is safe to do so. On that basis, I beg to move.

My Lords, I thank the Minister for his presentation of the SI. I declare an interest as a member of your Lordships’ Secondary Legislation Scrutiny Committee.

Some 29 years after the ceasefires and 25 years since the Good Friday agreement, it is worrying that there is still a need for an extension of such a power. Although I am not personally opposed to this legislation, I feel that non-jury trials should be an exception rather than the rule. I think the Minister characterised it in that light in his presentation, but I want to know how many such trials took place last year. We have the figure for 2021 in the Explanatory Memorandum but not for 2022.

The Minister gave us the indicators. We probably could have guesstimated those anyway.

We know that the threat level was increased on 28 March this year to “severe”, due to the increased level of dissident republican activity. As the Minister referred to, we had the threatened murder of DCI Caldwell. I am glad to see that he is making a recovery, having been released from hospital and having had some time at home. In fact, he was able to attend the garden party last week at Hillsborough, which showed an improvement in his physical health. I hope he makes enormous strides in that respect.

Only a few days ago, we witnessed on our TV screens and social media an alleged taxi driver taking a gun to a client. He was sacked from his job, although I understand he was not necessarily acting for that firm at the time. Notwithstanding that, he was apparently acting as a drug enforcer for one of the paramilitary organisations in Northern Ireland.

Some 29 years since the ceasefires, the public in Northern Ireland want an end to such paramilitary and criminal activity; they have had enough of it. They do not want to be brought to heel by such paramilitary organisations and criminal gangs; they want to see an end to it. If this debate does anything, it will tell those people, “Get off the backs of the people of Northern Ireland”. We are sick, sore and tired of it, and we want to live in peace and harmony. We want to see the restoration of our political institutions, which, I hope, will be able to help foster economic opportunity for us all.

Related to this is the legacy Bill, which the Minister is also involved in. I know that on the Bill’s last day in Committee he referred to game-changing government amendments. When will they be published? I hope that he is not as surprised as the expression on his face suggests. I want to know when they will be available and what they will cover. Will they enable access to inquests and inquiries? Will they be compatible with the ECHR?

In conclusion, although I do not have a strong aversion to this SI and I generally support it, I hope that it will be the exception to the rule. There could very well be a further extension, depending on terrorist and paramilitary activity in 2025, but I hope that we are looking to bright, fresher new days where terrorism will definitely be a thing of the past and we will not need this type of legislation.

My Lords, I support these non-jury provisions. I am sure that we all want a jury-based justice system. The diversity of a jury is one of its strengths and it has been proved that juries are fair, effective and efficient. However, as we have heard, unfortunately there exists a severe threat from terrorism in Northern Ireland. It is to be regretted that there is still present in Northern Ireland society a small number of people who are actively involved in terrorism. They do not hesitate to intimidate jury members, witnesses and families involved in their cases. Therefore, the extension of the duration of non-jury trial provision is needed.

Of course, as we have heard, it is hoped that the suspension of jury trials will be a temporary measure and that the time will come when non-jury trials will not be necessary, but this can be achieved only when it is safe to do so. As we have heard, it is important to note that the vast majority of Crown Court cases in Northern Ireland are held with a jury. During 2021, only eight non-jury trials took place, which means that 0.6% of all Crown Court cases in Northern Ireland were conducted without a jury.

There are many safeguards in this before we can have a non-jury system. For example, the Director of Public Prosecutions for Northern Ireland can only consider issuing a certificate for a non-jury trial. The judge also must give reasonable reasons for convictions. Indeed, from the defendant’s point of view, any person convicted before a non-jury court has a right of appeal against sentence or conviction without leave. There are built-in safeguards before these trials can take place.

Finally, I am sure that the Minister is aware of the recent criminal justice report which expresses concern regarding the length of time required to bring a prosecution in Northern Ireland Crown Courts. The report is very critical of the Public Prosecution Service and the Police Service of Northern Ireland. It revealed that 50% of evidence presented is not complete, leading to delay. It also revealed that the quality of criminal case files was extremely poor: 54% of Crown Court files did not meet, or only partially met, file standards, and police files took far too long to prepare. Does the Minister agree that it is important that both the police service and the Public Prosecution Service need to be vastly improved? Is it not time that the Police Service of Northern Ireland is adequately funded so that it can speed up these cases?

My Lords, I thank the Minister for the manner in which he introduced the legislation. Not one of us from Northern Ireland would desire to have this legislation on the statute book at all; we would love to see its end. But then we have to ask ourselves: is it needed? The statistics have been produced in the Explanatory Memorandum, and the notes provided under the heading “policy background” at paragraph 7.5 remind us that on 28 March 2023, the level of threat in Northern Ireland related to terrorism increased from “substantial” to “severe”. We wish it were not true, but it is the reality of the situation on the ground.

We have a continual severe threat, especially against members of the security forces. We saw that with DCI Caldwell, but we thank God in His mercy that his life was spared. I join the noble Baroness, Lady Ritchie, in expressing absolute delight that he was able to be present with His Majesty the King at the garden party. That certainly shows an improvement. We hope that that continues and that he will be restored to a very good measure of health and strength. We know that that was not the intention of those who had planned his murder. Sad to say, the reality of the situation is that they in their hearts would have plans to continue. There is no reason to believe that the terrorist organisations—the dissident republicans—wish to step aside from their acts of terror. We have to face that reality, and the order before us does that.

There is genuine concern about jury threat, intimidation, tampering, or even bias, but we want to ensure that the administration of justice in Northern Ireland, which is the heartbeat of any democratic society, continues. I know that we would long to see the Minister say that this is the last occasion on which that he would ever bring these provisions before your Lordships. However, we have seen just how long they have continued until now. It is not in the hands of noble Lords in this Committee to bring that about, but we hope and pray that we will soon ensure that it is unnecessary and get back to jury trials, which would be more acceptable within society.

I have a simple question for the Minister. I notice from the notes we were given that only a small number of responses were made to the extension of the order; only a very small number of representations were made. Does he have any reason why the number was so small? Does he believe that the community in general is willing to accept that this is a reality that has to be carried on in Northern Ireland at this specific time?

My Lords, I too thank the Minister for his detailed explanation of this order. Without repeating the various points made by other noble Lords in this short debate, I add my voice to those saying that this eighth extension of these provisions is deeply to be regretted, but clearly, while the threat from terrorism remains severe and given the current levels of paramilitary activity and intimidation, the Government, supported by the continued work of the multidisciplinary working group, are right to continue with the provisions. I note that, following the consultations, nine respondents agreed with the need to extend the provisions and two were against.

There can never be any excuse for terrorism or murder in Northern Ireland. Any such acts have to be utterly and roundly condemned. The shooting of John Caldwell was horrendous and devastating for him and his family. As the noble Baroness, Lady Ritchie, said, there has been an escalation in other incidents—perhaps lower in profile but none the less deeply worrying. I add my voice to the relief—congratulations is perhaps too strong a word—that John Caldwell is now making a full recovery. I wish him and his family well in that continued recovery.

As others have said, on these Benches we profoundly believe in the right to trial by jury. We must work to find practical solutions to manage the risk of juror intimidation and robust juror protection measures.

In conclusion, like others, I very much hope that this is the last time we need to see an extension of these provisions. Let us hope that by the time of the next revision, the Executive and the Assembly are once again fully functioning and that the security situation in Northern Ireland is very much improved.

My Lords, I agree with everything that has been said, but it is still a grave and terrible thing to take away the right of a citizen of the United Kingdom to have a trial by jury, which goes back many centuries. Of course, I understand why this occurred. Anyone who, like me, has been watching that wonderful series about the recent Troubles, “Once Upon a Time in Northern Ireland” on BBC Northern Ireland, will understand why you could not avoid jurors being intimated by paramilitaries from both sides if they took part in their legal duty.

But times have changed. Over the last 25 years, roughly 160 people have been killed because of terrorist activity, compared with 3,500 before 1998. That is an enormous change. Many people forget that the Good Friday agreement also dealt with the criminal justice system in Northern Ireland and changed it to such an extent that it became acceptable to all communities in Northern Ireland. That is why, in 2007 there was a major change to ensure that only the smallest number of cases are to be dealt with simply by judges and not by juries. No one wants that to continue in our democratic society—of course we do not.

The only thing that needs to be reflected on—it comes out in the consultation document that the Government produced—is that there are still difficulties. When I looked at the figures it struck me that hundreds of families are still made homeless because of sectarianism in Northern Ireland. Hundreds of people are still attacked and injured because of paramilitary activity in Northern Ireland. Tragically, there are still people killed because of that. While those circumstances continue, it is necessary for this legislation to be continued for a further two years.

I hope the Minister will go back and reflect on what the Committee has said about reviewing the situation with non-jury trials over the next two years. I know there is a working party. I hope it actually operates and that the next time, if we are spared, we come to renew this legislation, we might not have to do so, but at the moment, we do.

I conclude on one other factor. Political instability is the cousin of political violence—a distant cousin, but it is there. The more the Government concentrate their effort on trying to ensure that we get political stability in Northern Ireland by constantly talking to the political parties there and to others concerned, the better, so that when we return after the recess, perhaps—who knows?—the institutions will be restored.

My Lords, I am very grateful to noble Lords who participated in this short debate this afternoon, and I thank them for the support— reluctant, in some cases—that they have given to the order before the Committee. I share the frustration of noble Lords in having to bring this order back for an eighth time since 2007, when the Justice and Security (Northern Ireland) Act was passed by the Government of which the noble Lord, Lord Murphy of Torfaen, was a distinguished member. We all share the aspiration that this will be the last time that we have to do it, but the reality of the situation in Northern Ireland as we find it today is that there remains a significant risk of intimidation of jurors and witnesses, and therefore I am afraid there is no alternative at present.

The noble Baroness, Lady Ritchie of Downpatrick, referred to the grip of paramilitaries in communities across Northern Ireland, and I share her anger that, nearly 29 years after the first ceasefires in 1994, paramilitaries continue to operate within the community in this way. There was never any justification for them in the first place, and there is no justification for them today. As she knows, I was involved in the fresh start agreement in 2015, when we looked at this issue very closely and, out of that, there is the Tackling Paramilitarism task force within the Northern Ireland Executive, to which we as a Government are currently contributing £8 million a year in match funding, so we take these matters extremely seriously.

The noble Baroness asked me about the figures for 2022 for the number of cases that were tried in non-jury courts. The latest figures I have are those I read out in my opening speech, for 2021. Of course, as soon as the latest figures are available, I undertake to draw them to her attention.

Slightly at a tangent from the order, the noble Baroness asked me about the legacy Bill and when the amendments to that Bill on Report will be available. I can say only that I hope to be in a position to publish them very shortly, and in advance of the usual timeframe for tabling government amendments on Report. If she can contain her excitement for now, I am sure she will not have very long to wait. We go to Report on the Bill on 21 and 26 June.

A number of noble Lords referred to the security situation, and particularly the case of DCI John Caldwell. I join them in thanking God that he survived that vicious, murderous attack and was able to attend the garden party at Hillsborough a week last Wednesday, when he was presented to His Majesty the King. We all pray for his continued recovery and good health.

The noble Lord, Lord Browne of Belmont, made some interesting comments about the criminal justice system in Northern Ireland. I hardly need to remind him that the operation of the criminal justice system and any potential reform of it is a matter for the Department of Justice in Northern Ireland and the devolved Executive, if one were currently in existence. On the issue of funding, in the recent Budget, difficult as it has been, we allocated £1.2 billion to the Department of Justice, and it is for the department to allocate its resources accordingly.

The noble Lord, Lord McCrea of Magherafelt and Cookstown, asked about the low level of responses. He might be surprised to hear that the response rate of 15 was an improvement on 2021 by the huge number of two, so we may be going in the right direction. In addition to those responses, the Northern Ireland Office also wrote to 38 other relevant organisations. The relatively small number of responses is probably a reflection of the fact that for most people in Northern Ireland, sadly and regrettably, these non-jury trial provisions are non-contentious and the need for them is widely accepted across the community.

I am grateful to the noble Baroness, Lady Suttie, speaking for the Liberal Democrats, and to the noble Lord, Lord Murphy, from the Official Opposition, for their support on this. Of course I will reflect on the operation of the non-jury trial provisions. Like them, I hope that in two years’ time it will no longer be necessary to bring forward the provisions, but, alas, I think we are all far too well aware of the current security situation, much improved though it is—we are a long way from the old Diplock system. Noble Lords will remember that, under Diplock, the presumption was that all cases would be tried by a non-jury. Under the 2007 Act, welcome though it was, the presumption is in favour of jury trials. In my opening speech, I gave the figures for the reduction in the number of non-jury trials since the mid-1980s. It is a considerable change, but we still have a distance to go. We all hope that that distance can be travelled—and relatively quickly—but unfortunately, we are not there yet, which is why these provisions are very necessary in Northern Ireland, as noble Lords across the Committee have accepted today.

Motion agreed.