Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2021

Viscount Younger of Leckie Excerpts

Tuesday 8th June 2021 Grand Committee

Moved by

[Viscount Younger of Leckie]

That the Grand Committee do consider the Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2021.

Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee

[Viscount Younger of Leckie (Con)]

My Lords, I beg to move that the draft Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2021, which was laid before this House on 26 April 2021, be approved. Under this order, trials without a jury can take place in Northern Ireland for a further two years from 1 August 2021. The current provisions expire on 31 July. This is the seventh such extension of these provisions, but I hope to leave noble Lords in no doubt of the continued necessity of these provisions for another two years.

I will start by providing some background. The presence of violent terrorist and paramilitary groups, which continue to exert coercive control over the communities in which they operate, poses specific risks to Northern Ireland’s criminal justice system. Regrettably, this makes the non-jury trial provisions necessary for a small number of exceptional cases.

We must recognise that the security situation in Northern Ireland remains unique and volatile. There is a small number of people who continue to try to destabilise the political settlement through acts of terrorism. Their activity causes harm to individuals and communities across Northern Ireland. Violent dissident republican terrorist groups continue to plan and carry out attacks against the police, prison officers and members of the Armed Forces. The threat from Northern Ireland-related terrorism remains at “severe” in Northern Ireland, meaning that an attack is highly likely.

I must also mention paramilitarism. Members of paramilitary groups are still lining their own pockets and using brutal violence, intimidation and fear to exert influence and control in their communities. They hold their own communities back, deterring investment and jobs and preventing people from moving forward with their lives. Statistics from the Northern Ireland Housing Executive indicate that 2,773 people have been driven out of their homes since 2014 due to paramilitary and sectarian intimidation. In addition, a report published by the Department of Justice, Northern Ireland, in 2019, found that 15.4% of respondents agreed that paramilitaries create fear and intimidation in their area. This kind of activity can never be justified.

Real fear and intimidation are caused by terrorists and paramilitary groups across and within communities in Northern Ireland. Where the defendant or the crime is suspected of being associated with a proscribed organisation, this fear and intimidation has the real potential to impact the administration of justice in two ways: either via a direct threat to jurors from members or supporters of that organisation, or via the perceived threat that the jurors feel in participating in such a case. Either could lead to a perverse verdict.

It is important to note that non-jury trial provisions are available only in exceptional circumstances in Northern Ireland, where a risk to the administration of justice is suspected by the Director of Public Prosecutions. This could, for example, be through jury tampering, whereby intimidation, violence or the threat of violence against members of a jury could result in a perverse conviction or acquittal. It could also be due to jury bias; there is the potential for jury bias as a result of the defendant’s alleged association 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 in Northern Ireland.

Decisions for non-jury trials are made on a case-by-case basis, taking into account the circumstances of both the offence and the defendant. The Director of Public Prosecutions for Northern Ireland must suspect that one or more of four conditions is met. The conditions are specified in the Justice and Security (Northern Ireland) Act 2007 and relate to association with proscribed organisations or offences connected with religious or political hostility.

A case that falls within one of the four conditions will not automatically be tried without a jury. The DPP must also be satisfied that there is a risk that the administration of justice might be impaired if a jury trial were to be held. In Northern Ireland today, there is a presumption of jury trial in all cases. In 2020, only 1% of all Crown Court cases in Northern Ireland were conducted without a jury. To reiterate, this is not like the old Diplock system. Non-jury trials are now the exception, and there is a presumption of jury trial in all cases before the Crown Court. This is in stark contrast to the old Diplock system where the default was a non-jury trial for certain offences. Non-jury trials are not Diplock courts.

I now touch on the public consultation. The Secretary of State held a full public consultation on whether or not the non-jury trial provisions should be extended. The consultation ran for 12 weeks and concluded in February this year. It received a total of 13 responses from interested stakeholders and organisations, many of whom have in-depth specialist knowledge of this issue. The contents of all consultation responses, whether in the majority or not, were considered in detail by the Secretary of State when reaching a decision. In addition to the consultation responses, the Secretary of State receives regular briefings on the security situation in Northern Ireland, and it was his knowledge in the round that informed the conclusion reached by him.

In light of all the evidence and views before him, the Secretary of State has decided to renew the non-jury trial provisions for a further two years and to keep them under regular independent review. This decision reflects the fact that the number of consultation responses that supported an extension of the provisions far outweighed those that opposed the extension. The ongoing review of non-jury trials has been included in the remit of the Independent Reviewer of the Justice and Security (Northern Ireland) Act 2007 since 2017.

As I said earlier, I am aware that this will be the seventh extension of the non-jury trial provisions under the 2007 Act and that these were designed to be temporary. However, I trust that noble Lords will agree that the safety of the people of Northern Ireland is paramount and that the administration of justice cannot risk impairment. The Government are, of course, 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 paramilitarism. However, we are not prepared to put individuals’ safety or the administration of justice at risk and believe that further progress on the Northern Ireland security situation is required before we can be confident that these non-jury trial provisions are no longer required.

In order to work towards this, the Northern Ireland Office will establish a working group, as recommended by the Independent Reviewer of the Justice and Security (Northern Ireland) Act. The intention is that this group will identify practical measures that can reduce the number of non-jury trials and examine the indicators that would assist in determining when the provisions could be brought to an end. The working group will comprise a mixture of security, legal, academic and other independent bodies. The consultation responses were highly supportive of the formation of this group, with respondents expressing a clear wish to participate.

Over the past 10 years, non-jury trials have consistently accounted for less than 2% of all Crown Court cases. This figure reflects the small but consistent need for non-jury trials in Northern Ireland. In the light of all the evidence before him, the Secretary of State has decided to seek to renew non-jury trial provisions for a further two years and to continue to keep them under regular independent review. Noble Lords can rest assured that the Secretary of State has not taken this decision lightly.

I beg to move.

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

I start by thanking all noble Lords who have contributed to this short debate. I appreciate the support that has come from all quarters, starting with the noble Lords, Lord Browne of Belmont and Lord Hay, and the noble Baronesses, Lady Ritchie and Lady Hoey. I also thank the noble Lord, Lord Marks, for his support—although I noted that he made the point that it was with some reluctance that he supported the case in this order for a two-year extension.

As I said at the outset, this is an exceptional system—as the noble Lord, Lord Browne, mentioned too—used in only very limited circumstances. There is rightly a presumption for jury trial in all cases. As I have already said, non-jury trials account for less than 2% of all Crown Court cases in Northern Ireland.

The threat from terrorism in Northern Ireland remains severe—the noble Lord, Lord Hay, spoke eloquently about this, as did the noble Baroness, Lady Ritchie—and it has been at the same level for more than 10 years. However, the Government remain committed to tackling the threat from Northern Ireland-related terrorism and to supporting the Northern Ireland Executive’s programme to tackle paramilitarism. But we believe that further progress on the security situation is required before we can be confident that these non-jury trial provisions are no longer required. As I said earlier, I think that here I am echoing the views from this debate.

I thank the noble Baroness, Lady Ritchie, for her eloquent views on this matter. She is right that the way forward in Northern Ireland is strong political dialogue and discourse to provide political stability. That is so necessary, and I know that she is working very hard on that, as are many others involved in politics in Northern Ireland.

Having listened to this debate, I shall focus my remarks on the working group. I hope that I will be able to answer questions on it, as I think it is an open door for the way forward. Before I start, I want to pick up on something that the noble Lord, Lord Marks, said. He was right that there were 13 responses to the consultation, down by two on the previous occasion in 2019, and the vast majority were in favour of what the Government have decided to do. It is right to point out that the Bar of Northern Ireland was not wholly in favour and produced some points—which I shall not go through today—but David Mulholland, who produced the response, said he was supportive of the working group, would welcome dialogue with stakeholders and would like clarification from the Northern Ireland Office on the timeframe. I shall give a short response on that in a moment.

As I have said, the UK Government continue to be committed to bringing an end to these provisions. As indicated by the majority of consultation responses, the time is not right for this now. However, the working group will assist in pursuing this aim. Following this consultation, the Secretary of State decided, as we know, that a working group should be convened to identify practical measures that could be taken to reduce the number of non-jury trials. During the renewal debate in 2019, noble Lords asked what criteria the Government would use to determine when the non-jury trial provisions were no longer needed, so the working group will also examine what indicators would assist in determining when it would be safe and compatible with the interests of justice to allow the provisions to expire.

The noble Baroness, Lady Ritchie, asked about future intentions in working with the Justice Minister. I hope I can reassure her that the Northern Ireland Department of Justice will be invited to participate in the working group. She also expressed concerns about fair trial. I will allude that in a moment. As the noble Baroness said, the seventh extension is here. However, we hope that it will be the last, and I want to say a little more about that.

The provisions were designed to be temporary and the Government remain fully committed to bringing them to an end when it is safe to do so and when it is compatible with the interests of justice. In order to work towards this, the Northern Ireland Office will establish a working group. The intention is that this group will identify practical measures that can reduce the number of non-jury trials. The responses to the consultation were highly supportive of the formation of this group.

The noble Baronesses, Lady Ritchie and Lady Hoey, and the noble Lord, Lord Marks, asked about a date. None of us wants to see the system in place for longer than is needed, but much depends on the security situation. The Government will keep the provisions under constant review. We introduced a further safeguard in 2017 requesting that the then independent reviewer of the JSA, David Seymour, review non-jury trials in his annual work. As was mentioned by other speakers in this debate, the new independent reviewer of the JSA, Marie Breen-Smyth, will keep the annual review of non-jury trial provisions in her remit.

Whether non-jury trials are fair was raised by the noble Baroness, Lady Ritchie. We believe they are. The European Court of Human Rights guarantees fair trial; it does not guarantee jury trial. Every defendant facing a criminal charge is entitled to a fair trial. This principle remains where the trial is by judge alone. All defendants who are convicted of a crime have the right to seek an appeal. Under this system, only the mode of trial is changed. Non-jury trials deliver an equivalent quality of justice to jury trials. Where there is a risk of paramilitary or community-based pressures on a jury, they could actually be fairer.

The noble Baroness, Lady Hoey, and the noble Lord, Lord Murphy, asked further questions about the working group. On the timescale, again, if the Motion passes through both Houses, the NIO will write to the proposed membership to convene the first meeting of the working group as soon as possible—hopefully this summer.

I want to clarify the term “associate”. The DPP is independent and makes a decision on meeting one of the conditions and on the suspicion of a risk to the administration of justice.

The noble Baroness, Lady Hoey, asked whether a judge can help with decisions and why a judge cannot decide whether a non-jury trial is needed. If a judicial process were adopted, it would take longer for decisions on the non-jury trial to be reached, delaying the administration of justice. We believe that the DPP is in the best position to make the assessment of risk that the decision will require. The decision is similar to that on whether to prosecute. The DPP already makes decisions about mode of trial in Northern Ireland—that is, whether certain offences should be tried before a jury in the Crown Court or without a jury in the magistrates’ court.

The noble Baroness also asked about the decision to issue a non-jury trial certificate. Perhaps I can reassure her by saying that a non-jury trial is possible only when the DPP issues a certificate for a specific case in relation to a trial on indictment, as tried in the Crown Court. As I said earlier, decisions for non-jury trials are made on a case-by-case basis, taking into account the circumstances of both the offence and the defendant. Further, the decision for issuing a certificate is based on a two-stage test set out in Section 1(2) of the JSA. The DPP must, first, suspect that one or more of the four conditions is met and, secondly, be

“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 noble Baroness, Lady Hoey, asked about a particular case. She will know that I cannot comment on any particular case, I am afraid. She also made points about transparency. Again, let me provide some reassurance. Since the provisions have been in place, the DPP has shown that he applies the statutory test stringently. Statistics provided by the PPS show that the DPP regularly rejects applications for non-jury trial certificates, evidencing the thorough consideration given before a certificate is granted. We can be confident that only exceptional cases are certified for non-jury trials.

I realise that time is running out. I conclude by thanking all noble Lords again for contributing to this short debate. I will of course study Hansard with my usual scrutiny, and will be pleased to write to noble Lords where I have not managed to answer any questions.

Motion agreed.