Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2017

Lord McAvoy Excerpts

Tuesday 18th July 2017 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Northern Ireland Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, under this order, trials without a jury can take place in Northern Ireland for a further two years from 1 August 2017. Without this order, the current provisions will lapse on 31 July 2017. Although this is the fifth such extension of these provisions, I hope to leave noble Lords in no doubt as to the continued necessity of such provisions for another two years.

Noble Lords will be aware of the lethal threat posed by terrorists in Northern Ireland. Dissident republican terrorist groups continue to plan and mount attacks with the principal aim of killing or maiming those who serve the public in all communities so bravely. Police officers, prison officers and members of the Armed Forces are the main focus of these attacks, but the terrorists’ continued use of explosive devices and other weaponry continues to cause death and injury. Individuals linked to paramilitary organisations also continue to undermine peace and the rule of law in Northern Ireland through the use of violence and intimidation in both republican and loyalist communities.

I assure noble Lords that the Government wish to end the exceptional system of non-jury trials as soon as it is no longer necessary. But this should happen only when the circumstances allow, otherwise we risk allowing violence and intimidation to undermine the criminal justice process in Northern Ireland. Regrettably, although many attacks have been disrupted, the security situation today remains much the same as it was in 2015. The threat from terrorism in Northern Ireland is assessed to be severe. This year alone, four national security attacks have occurred in Northern Ireland, including the wounding of a police officer serving his community. It would be remiss of the Government to dispose of these provisions now given this threat and the impact it may have on the delivery of criminal justice in Northern Ireland, or simply because there are those who think we have had these provisions for long enough.

In the past two years, attacks by dissident republicans and loyalist paramilitaries have put countless innocent lives in danger. Noble Lords will recall the despicable incident on the Crumlin Road in Belfast in January this year, where two police officers who were serving their community came under attack from dissident republicans, leaving one officer badly injured. The forecourt of a busy filling station was sprayed with automatic gunfire, demonstrating the utter disregard these groups show for human life and the harm that they pose to ordinary members of the public. Sadly, this was not an isolated incident: there were four confirmed national security attacks in 2016, and there have been four so far this year, underlining the persistence of the threat we face.

The presence of dissident republicans and paramilitaries in Northern Ireland means that violence and intimidation remain a concern for the wider community. Figures released by the Police Service of Northern Ireland show that there has been an increased number of security-related deaths over the past three years, as well as an increasing trend in the number of paramilitary-style assaults since 2012-13. Threats towards police and public bodies also demonstrate the continued attempts at the intimidation of individuals and communities in Northern Ireland. In 2016-17, there were 137 arrests and 19 charges related to terrorism. Many attacks have been thwarted and disrupted, which is evidence that the work of the PSNI and its partners is having an impact, though the security situation remains serious.

Non-jury trial provisions are available in exceptional circumstances in Northern Ireland where a risk to the administration of justice is suspected; for example, jury tampering, whereby intimidation, violence or the threat of violence against members of a jury could result in a perverse conviction or acquittal. The Director of Public Prosecutions may issue a certificate that allows a non-jury trial to be held in relation to any trial on indictment of a defendant, and anyone tried with that defendant, if it meets a defined test which falls within one of the following four conditions: first, the defendant is, or is an associate of, a member of a proscribed organisation, or has at any time been a member of an organisation when it was a proscribed organisation, whose activities are connected with the affairs of Northern Ireland; secondly, the offence was committed on behalf of a proscribed organisation, or that a proscribed organisation was involved with or assisted in the carrying out of the offence; thirdly, an attempt was made to prejudice the investigation or prosecution by, or on behalf of, a proscribed organisation, or that a proscribed organisation was otherwise involved with or assisted in that attempt; or fourthly, the offence was committed, to any extent—directly or indirectly—as a result of, in connection with or in response to religious or political hostility. A case that falls within one of the four conditions will not automatically be tried without a jury, because the DPP must also be satisfied there is a risk that the administration of justice might be impaired if a jury trial were to be held.

Let me be clear: this is not a Diplock court system. There is a clear distinction between this system and the pre-2007 Diplock court arrangements. The Diplock system saw a presumption that all scheduled offences were tried by a judge alone. Today in Northern Ireland there is a clear presumption that a jury trial will take place in all cases—the presumption is reversed.

In line with commitments previously made in Parliament in 2015, prior to the July 2017 expiry date the Secretary of State held a full public consultation on whether or not non-jury trial provisions should be extended. The consultation concluded in February this year, and received a total of 10 responses from a range of interested individuals and groups in Northern Ireland. The Secretary of State has also received relevant briefings from security officials in order to understand the underlying threat picture in Northern Ireland. In the light of all the evidence and views before him, the Secretary of State has decided to renew non-jury trial provisions for a further two years and to keep them under regular independent review. As an extra and new measure of assurance, the independent reviewer of the Justice and Security (Northern Ireland) Act 2007 will review the non-jury trial system as part of his annual review cycle, the results of which will be made available to the public in his published report.

We must recognise that Northern Ireland is a unique situation, and the non-jury trial provisions in the 2007 Act continue to be an important factor in supporting the effective delivery of the criminal justice process in a very small number of criminal cases. Certain jury trials in Northern Ireland would not be safe from disruption by those involved in paramilitary activity, many of whom make their presence known in Northern Ireland’s close-knit communities, or indeed in the public galleries of the courtrooms.

So far in 2017, the DPP has issued just four certificates for non-jury trials. During 2016, 19 certificates were issued and one was refused. The DPP acts with independence, exercising his discretion in deciding whether to issue a certificate. Noble Lords will also be interested to know that in 2016, just 0.7% of all Crown Court cases in Northern Ireland were conducted without a jury. The figure so far in 2017 is 0.5%. These figures reflect the small but consistent need for non-jury trial provisions.

Noble Lords can rest assured that the Secretary of State has not taken the decision to seek to renew the non-jury trial system lightly. We strongly believe, however, that the system is, on balance, a proportionate and necessary measure in the light of the unique risks facing the criminal justice process in Northern Ireland. The Government’s move to keep the provisions under annual independent review establishes a further safeguard, which I am sure noble Lords will welcome, thus ensuring the system remains fair and effective so that we keep it in place for only as long as is necessary and appropriate. I commend the order to the House.

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for his clear exposition of what is involved in this order. I am sure the House knows exactly what is at stake. I reiterate at the outset that this is reluctant legislation. We do not want to have to renew it, and neither do the Government. We welcome their assurance that they wish to end this exceptional system in Northern Ireland as soon as it is no longer necessary.

Your Lordships’ House is familiar with the security situation in Northern Ireland. It has been a little over a year since the death of Prison Officer Adrian Ismay after he was injured in a dissident republican bomb attack in Belfast. As the Minister said, in January this year two serving police officers were attacked in a public place with automatic gunfire. Dissident republicans and violent members of paramilitary groups seek to maim, kill and intimidate communities and with it disrupt peace and the rule of law in Northern Ireland. We pay tribute to those police officers, prison officers and members of the Armed Forces who serve the communities and are the main focus of these attacks. These threats affect all communities and, recklessly and without care, put the wider public at risk.

We are assured that decisions on the use of these provisions are taken with appropriate vigilance, with only a very small number of cases having these precautions applied to them. I understand that so far this year they make up 0.5% of Crown Court cases in Northern Ireland; last year, there were 19 relevant cases. I warmly welcome the commitment that the independent reviewer of the 2007 Act will be asked to review the non-jury trial provisions as part of the annual review cycle. This is a positive move which increases oversight of these exceptional measures.

The order unfortunately remains necessary due to the particular realities of the security situation and criminal justice in Northern Ireland. A huge amount of progress has been made, but we have further to travel. It is incredibly important, and remains our hope, that a full, devolved and inclusive Government will be returned in Northern Ireland as soon as possible. Today, for the reasons given, we have no hesitation in supporting the time-limited extension of this order.

[Lord Alderdice (LD)]

My Lords, I, too, thank the Minister for presenting in a clear and concise way the implications of the order.

I accept that, unfortunately, it is necessary to bring this order back for another two years. Indeed, only yesterday, his right honourable friend in the other place, the Secretary of State for Northern Ireland, said in a Written Statement that the report of his honour, Brian Barker QC, the independent reviewer of national security arrangements, confirmed that,

“Dissident republican groupings remain interested and involved in criminality … Loyalist paramilitaries claim political allegiance, although the motivation of many is crime and control through intimidation and violence”.—[Official Report, Commons, 17/7/17; col. 23WS.]


So this is not the same situation as people being involved in criminality and gangsterism on this side of the water, and we acknowledge that.

However, what is the intention of the Government, not only with this order but with the issues indicated in the report of the independent reviewer, who states:

“The deficiencies in the administration of criminal justice and the limited progress in case management are all too obvious … Tightening the criminal justice system by streamlining criminal justice processes and faster committal proceedings would increase public confidence”?—[Official Report, Commons, 17/7/17; col. 23WS.]


Will the Minister let us know what the Government intend to do to follow this up?

This leads me to a wider question. In April of this incoming year, we are coming up to the 20th anniversary of the Good Friday agreement, and we are still talking not about criminality and gangsters—they will always be with us—but about paramilitary organisations. That is why there is a need for this order and that is why there is a threat. But let us analyse this for just a minute. We must recognise that, as the last sitting of the Northern Ireland Assembly—which was the first sitting after the Assembly elections—was in early March of this year, there is clearly going to be no Northern Ireland Assembly now into the summer. It will be at the earliest in September and, realistically, much later, before there is a Northern Ireland Assembly. Therefore, the only opportunity to scrutinise what is going on is on this side of the water. Indeed, there will be no possibility to ask any of these questions until September time, so another six months will have passed.

We had all hoped that, after the Good Friday agreement, things would move reasonably quickly; they did not. From 2004 to 2011, I served on the Independent Monitoring Commission, whose job was to address the activities of the paramilitaries, the very people that we are trying to address in this order. At the end of that time, there had been a real improvement in the situation. However, by December 2015 it was necessary for me and two colleagues—John McBurney and Monica McWilliams—to return to the question, having been appointed by the First Minister, the Deputy First Minister and the Minister of Justice, to produce a strategy for the disbanding of the paramilitaries that are the cause of us having to bring this order forward.

We were asked to produce a strategy and we produced the report by the end of May 2016. It was approved and the First Minister, the Deputy First Minister and the Minister of Justice committed themselves to action on 19 July 2016—almost exactly 12 months ago—and the British Government and the Northern Ireland Executive each committed themselves to £25 million over the following five years to address it. There was to be an Independent Reporting Commission. When the legislation went through this House—the Minister will not remember because he did not have this portfolio—I said that I did not believe that reporting once a year was enough; the Independent Monitoring Commission should produce reports twice a year. The Government said no, once a year, but it could be more often.

The Independent Reporting Commission was not appointed until December 2016, six months after the report went through and the Northern Ireland Executive had accepted it. So, as it reports only once a year, it will be at least December 2017 before we have any report. That is 18 months on from things being put into place and yet the Minister finds himself having to bring forward legislation to address not ordinary organised crime but the paramilitary organisations. Are the Government satisfied that the report that was produced on disbanding the paramilitaries is being acted upon?

There was to be a cross-departmental implementation board. Is that board meeting? We do not know. The Northern Ireland Assembly is not in a position to ask the question, so we have little alternative but to ask the question here. As the UK Government directly are putting in £25 million over the next five years—and, indirectly of course, the whole of the £50 million—there is a real interest in this House and in this debate in getting a response from the Minister as to whether the activities that ensure the requirement for this order are being addressed as we set out to do. Although the First Minister, the Deputy First Minister and the Minister of Justice at the time said, “Oh yes, there will be this implementation board and, in addition to that, the Independent Reporting Commission”, we have seen nothing from any of that.

We are being asked, quite rightly, to renew this order because of paramilitary activity and yet complete radio silence seems to have descended since the report on the strategy for disbanding was presented last June and agreed by the Northern Ireland Executive last July. Can the Minister help us to address this question?

Finally, when the IMC was disbanded—I know some noble Lords do not agree with me but, in my view, as a member of the commission, it was the right thing to do at the time—the Secretary of State for Northern Ireland undertook that every six months he or she would give a report on the activities of paramilitaries and the other issues which the IMC had reported on. Given the absence of reports for some time, the absence of anything from the Independent Reporting Commission and the absence of a Northern Ireland Assembly that can address that, can the Minister indicate whether it will be possible for us not simply to piggyback on the occasional order that comes through here but that we can properly address these questions when we return in the autumn? If the Assembly is not addressing the questions, some of us from Northern Ireland have to try to do so and make sure that something is happening, because departmental civil servants are supposed to be meeting and processing this, spending the money and, it is hoped, making some kind of impact.

I hope that the Minister realises that I am taking the opportunity of this order to speak because, frankly, there will be no other chance for us to address these questions. I think that they are serious enough. We saw last week that many of the bonfires were perfectly satisfactory cultural celebrations but there were some—such as the one close to Sandy Row—where it was clear that paramilitary organisations were out directing operations and there was a real danger not just to property but to lives, including those of children. What he has said is absolutely right: there are real issues here, and if there is a real need, there must be some real accountability and scrutiny. I would therefore ask the Minister if he is prepared to address this again after the summer break, if it is the case that there is no Northern Ireland Assembly to do it.