Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2021
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.
Lord Browne of Belmont (DUP) [V]
My Lords, I thank the Minister for his clarity on this issue. I am pleased to support the order before us.
Young people in Northern Ireland now live in a different climate to that of their parents and grandparents. We still have some distance to travel, but it is important to acknowledge that good progress has been made to date. We have a responsibility to ensure that peace, stability and justice are protected and long lasting.
In relation to the matter before the Committee, David Seymour, the Independent Reviewer of the Justice and Security (Northern Ireland) Act, suggested in his annual report that
“the time has now come for a serious assessment of whether NJTs remain necessary.”
I contend that the security and integrity of our justice system is paramount and must continue to be protected.
Today, there are only a small number of cases where a non-jury trial is necessary. In those very exceptional circumstances, it remains my view and the view of my party that the current provisions, although far from perfect, should continue to serve Northern Ireland as a necessary function in supporting the effective delivery of the criminal justice process.
Naturally, there is a certain reluctance to renew such exceptional provisions. I, too, wish that such measures were a thing of the past. Nobody wishes to have trials without a jury but, given Northern Ireland’s exceptional security complexities and the spectre of threats of intimidation from dissident, paramilitary and other criminal elements, the renewal of non-jury trial provisions must be welcomed.
It is my hope that a day will come where measures such as those before us will be unnecessary. Regrettably, we are not quite at that stage yet. The onus is on all of us to continue to work together maturely to work out practical ways forward towards a more normalised society in Northern Ireland: that is, a society that no longer requires such measures. Hopefully, there will be even fewer non-jury trials in the next few years, making such legislation redundant.
I am pleased to support this legislation today.
Lord Hay of Ballyore (DUP) [V]
My Lords, I speak in support of extending the measures before us. They certainly remain an important tool in specific circumstances to protect Northern Ireland’s criminal justice system. I wish we were in a place in 2021 where specifically designed Northern Ireland-only provisions such as this were a thing of the past. But it is always worth saying that we have come a long way, even if we are not quite where we want to be yet in Northern Ireland. We have relative peace, our political institutions remain in place, and businesses and tourists from around the globe continue to see Northern Ireland as an attractive place both to do business and to visit as a tourist.
However, we still live in a divided society, with a lingering legacy and the huge, complex challenge before us all of the severe threat from terrorists and paramilitary activity in Northern Ireland. Non-jury trials need to continue in order to combat those who wish to use fear and intimidation to undermine Northern Ireland’s peace, and indeed the criminal justice process itself. It is vital in Northern Ireland that we protect the justice system. The Minister alluded to the number of non-jury trials. They have accounted for less than 5% of all Crown cases in Northern Ireland over the past five years. Of course, we know the important role that the PPS plays in identifying cases for non-jury trials in Northern Ireland. I welcome the commitment from the Government to see an end to non-jury trials in Northern Ireland when it is safe to do so.
I support these measures at this time and, as the noble Lord, Lord Browne, indicated, it is my hope too that the day will come when such measures, and other similar measures, will not be necessary.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I would like to take this opportunity to thank the Minister for his explanation of this order, the main purpose of which is to extend for a further two years the provision that certain offences in Northern Ireland can be tried without a jury. I note what the Minister said: that this is the seventh such extension. Like other noble Lords, I hope that, in the fullness of time, there will be no necessity for these non-jury trials, although they are small in number.
At the very outset of this debate, I will say that I have always been and will remain, along with my party, totally opposed to violence, terrorism, mayhem and murder in Northern Ireland. I totally repudiate those acts of violence and terrorism to pursue political ends. Nothing can replace political dialogue, discourse and democratic means of accountability. So it is important that the institutions—the Northern Ireland Assembly, the Executive, the North/South Ministerial Council and the British-Irish Council, along with other necessary means of discourse infrastructure such as the joint intergovernmental conference involving both the British and the Irish Governments—are sustained and underpinned, because political stability is the key here to our future stability as a region within the island of Ireland and within these islands. That is the key, and we all have a role in this, as politicians and members of the wider community, and as two Governments.
I have been opposed to the indiscriminate and unfair system of trials without a jury, going back to the days of the Diplock courts. I know that these are not Diplock courts, but they do breed a lack of confidence and trust in the judicial system. The Diplock courts system was associated with emergency legislation during a period of heightened paramilitary violence against the police, prison officers and the security forces. It also impacted on the wider community. However, I understand the reasons and the necessity for this legislation, particularly with the prevalence of dissidence, but I hope that this will be the last such extension and we can move to a totally normal society, because that is what the local population wants to see.
For me, the judicial system needs to be jury based at all levels. I realise that those involved in policing and justice issues will state that the threat from terrorism remains severe. There are threats from dissident republicans and loyalists, which have been heightened in the past few months because of opposition by some to the Northern Ireland protocol. There have also been attacks on security forces, but this should not mean that there is a need for a continuation of such non-jury trials into perpetuity.
I should also say that the days have long gone of the hegemony and domination by paramilitaries in communities. They should no longer be allowed to imperil communities. One message that I would give to them is: “So long, goodbye”. We, as communities, have had to tolerate the existence of paramilitarism for far too long. It is 23 years since the Good Friday agreement, and it is time that they hung up their boots.
There is a need to ensure that we have a full judicial system that does not restrict the right of defendants to trial by jury of their peers, whether in the interests of administrative speed or for some other policing and political reasons. Maybe the Minister could advise us today on the future intentions of the Government and what discussions are taking place with the Minister for Justice in the Northern Ireland Executive to do just that.
I noted that the powers in the 2007 Act allowed the DPP to issue a certificate for a non-jury trial that is subject to renewal every two years, and that is what we are doing today. We are in a relatively peacetime situation. The Minister has indicated instances where this has been used, with a very small number in the past year. Given that, can he give us the assurance today that this will be the last extension? I noted that the Lords Secondary Legislation Scrutiny Committee stated:
“Whilst acknowledging the reasons for trial without jury, we have concerns about their potential impact on trust in the judicial system and expect this option to be used only sparingly.”
I have concern about the impact on the trust of the people in the judicial system. Issues to do with human rights compliance, fairness and the quality of justice come into play in this respect.
For my part, I do not rest easy with the contents of the legislation, as it does not lend itself to a fair and just judicial system. However, at the same time, I recognise their necessity. I hope that it is the last extension. The bottom line is that we want to see an end to paramilitarism, and to see the building up of a sound political system full of political and economic stability, giving hope to our population throughout Northern Ireland.
The Deputy Chairman of Committees (Baroness Barker) (LD)
Before calling the next speaker, I remind the Grand Committee that, if there is a Division in the Chamber, we will adjourn this Committee for five minutes for a vote. That may very well happen in the next few minutes.
Baroness Hoey (Non-Afl) [V]
My Lords, as the Minister and others have said, this is the seventh time that we are renewing these regulations—
The Deputy Chairman of Committees (Baroness Barker) (LD)
The vote has been called, so we will move to the vote and, after five minutes, come back to the noble Baroness, Lady Hoey, for her full speech.
The Deputy Chairman of Committees (Baroness Barker) (LD)
My Lords, the Divisions in the House have been deferred because of the technical problems and we will therefore resume our debate. I invite the noble Baroness, Lady Hoey, to begin her speech again.
Baroness Hoey (Non-Afl) [V]
My Lords, I repeat that this is the seventh time that we are renewing these regulations. I am very pleased that the Government say that they want to see an end to the use of non-jury trials when it is safe to do so and compatible with the interests of justice. Now is clearly not that time, so I support the renewal today, but I believe that this an opportunity to look at some of the conditions in the regulations. I welcome the Independent Reviewer David Seymour having said that
“the time has come for serious assessment”
of whether non-jury trials “remain necessary”. I also welcome the working party that the Secretary of State has set up and would be interested to know whether the Minister has any idea of its timescale.
David Seymour’s report also said that in marginal cases the DPP
“should consider not issuing a certificate”
but putting in more jury-protection measures. Is this also being considered?
As a non-lawyer I get the feeling that, sometimes, going for a non-jury trial could be seen as a softer option. We do need to look at some of these conditions. On one of the tests, the Director of Public Prosecutions can certify only if he suspects that any of the conditions prescribed in the subsection are met and if he also suspects that, because such conditions are met, there is a risk that the administration of justice might be impaired with a jury. However, the threshold for “suspicion” is low—suspicion is a lesser state of mind than belief. While suspicion might be entertained in good faith and is not therefore to be regarded as synonymous with a pretext, it surely follows that suspicion may be shown subsequently to be entirely unfounded; a suspicion must be capable of rational justification.
One of the conditions is that 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 that was at that time proscribed. But Section 1(9) gives a very broad definition of an associate, which includes a friend. As we know, there are persons who have publicly renounced their own former terrorist feelings and affiliations, and some have a wide circle of friends—some, for example, have friends even here in Parliament. This could be construed as meaning that, if an MP or Peer is charged with an ordinary common-law offence such as misconduct in public office, and is, or has been, a friend of Mr Y, who is a former and now repentant member of a terrorist group, the MP or Peer will satisfy the condition in the Act.
The regulation also explains that religious or political hostility can be based, to any extent, on a supposed religious belief or political opinion. Suppose, for example, two members of the same party in Northern Ireland disagree, perhaps on abortion, and get very angry and one punches the other and causes a severe injury to his jaw. He will be charged with inflicting grievous bodily harm with intent. Now Mr A, the person who has caused the grievous bodily harm, will satisfy the condition in Section 1(6). It is surely absurd that the funnel for non-jury trials should be so wide as to permit so many persons to potentially satisfy the enabling set of conditions in Section 1(2). So I believe that these conditions must become more tightly drawn; that is something that the working party and others must look at over the next two years.
The test in Section 1(2)(b) is also too low. The DPP has only to be satisfied of a possible risk to the administration of justice. Surely, at the very least, this test should require a likelihood that the administration of justice would be impaired. Does the Minister not think that it would be a good idea to require the director to satisfy a High Court judge unconnected with the trial that the test was properly met? This would arguably enable the protection provided by Section 7 of the 2007 Act to be revoked, as the decision of the director would have been validated by a High Court judge.
Although this is about security and threats to jurors, it must also be about the public interest, which must always be about the transparency of the law and our justice system. Non-jury trials must never be used, particularly in cases of corruption. I worry slightly about the word “exceptional” because it does not always seem that the trials are being used in what I would class as exceptional cases.
A worrying example is the National Asset Management Agency, a body created by the Government of Ireland in 2009 in response to the Irish financial crisis and the property bubble bursting. Corruption has been alleged in the scheme, and some people have been charged with fraud. One of the young activists in Northern Ireland, whom the High Court in Northern Ireland has described as a journalist, gave evidence to a statutory scrutiny committee investigating political corruption. He has now been charged with conspiracy to commit misconduct in public office. Out of the blue, a non-jury certificate has been issued in this case.
To me, non-jury trials should be for where terrorism is involved and there is clearly a threat to individuals. I believe that this has been an overreaction by the DPP and a gross overinterpretation of the regulations. So all I am really saying is: let us use the next two years to look at this much more carefully and make sure that we are not back in another two years, simply renewing the same regulations, without realising that maybe, just sometimes, they are being abused.
Lord Marks of Henley-on-Thames (LD)
My Lords, our commitment to trial by jury has never been in doubt. In the United Kingdom, jury trial has always been rightly seen as a cornerstone of citizens’ involvement in democracy. The derogation for jury trial in Northern Ireland therefore has to be justified as a necessary and temporary emergency measure.
The question that this House is considering today is whether the case has been made for a two-year extension—for the seventh time, as we have heard—of the exceptional system that permits non-jury trials on indictment in Northern Ireland under the Justice and Security (Northern Ireland) Act 2007 if the statutory conditions, which are stringent, are met.
We reluctantly accept that the case has been made for this extension, but we have heard it stressed that non-jury trials take place in only a very limited number of cases and in exceptional circumstances. In 2019, there were only 14 non-jury trials in the Crown Court, out of a total of nearly 1,300.
However, sadly, as has been recognised by all who have spoken, violence in Northern Ireland continues. In 2020, there were 13 casualties as a result of paramilitary-style shootings and 42 casualties of such assaults. In April of this year, there were a number of violent incidents aimed at members of the Northern Ireland police service, including that near Dungiven, where an explosive device was left at an officer’s home.
We are therefore forced to the conclusion that, although we would prefer criminal offences to be tried and proved before juries without exception, there is a continuing danger of violence associated with paramilitary groups, which carries with it the risk of jury intimidation. The intimidation with which we are concerned is not just the intimidation of individual jurors but sometimes involves whole sections of communities being put in fear, so that jury selection, the trial process, the taking of evidence, jury deliberations and jury decision-making are all put at risk in extreme cases.
However, there are two important sets of safeguards—one specific and one more general. Specifically, the 2007 Act gives the DPP a discretionary power to certify for a non-jury trial only if he suspects that one of four conditions is met, relating to the offender or the offence, which establishes a link to a proscribed organisation or religious or political hostility as a motivating factor.
Secondly, the DPP must consider that there is a risk that the administration of justice might be impaired if there were a jury trial. I interpose that the noble Baroness, Lady Hoey, is right to say that suspicion is not itself a high threshold, even though such suspicion has to be rationally held.
The more general safeguard arises from the involvement of the independent reviewer of the 2007 Act, a post held by David Seymour. In his annual reports, the independent reviewer keeps under review the issue of non-jury trials. In his 10th report, published in 2018, Mr Seymour reported that the existing arrangements were working reasonably well; he did not suggest any changes to the legislation. Prior to the publication of his 13th report in April of this year, the Northern Ireland Office, as we have heard, held a public consultation on a further extension of the provision for exceptional non-jury trials. The majority of respondents were in favour of such an extension, expressing concerns for continued paramilitary activity, including forcing people from their homes—a horrible kind of violence, mentioned by the noble Viscount in opening—a continued risk of jury tampering and possible jury bias. Nevertheless, most respondents wanted to see a return to universal jury trials as soon as the removal of non-jury trials could be safely achieved without risk to the interests of justice.
In his 13th report, the independent reviewer said that the time for a serious assessment of whether non-jury trials should continue had arrived. He expressed the view that there appeared
“to have been no meaningful dialogue … in recent years”
on this issue and said that
“after 14 years, a robust examination of the need for these provisions is now required.”
Along with Jonathan Hall QC, the UK Independent Reviewer of Terrorist Legislation, we agree with that recommendation.
As the noble Viscount said, the Northern Ireland Office has now announced that it will establish a multidisciplinary working group to identify practical measures to reduce the number of non-jury trials, while leaving the provisions of the 2007 Act in place. That is very welcome. However, we profoundly hope that we will soon find a way of bringing an end to non-jury trials in Northern Ireland.
To that end, can the Minister provide more detail to Parliament about the remit of the working party? What questions will be asked and how wide-ranging will the permitted inquiry be? Will it be possible for it to recommend an end to the provisions? I join the noble Baroness, Lady Hoey, in asking: what will be the timescale for this working party’s work? When will the working party be selected and what will be the criteria for selecting members? What powers will it have in relation to evidence gathering and when will it report? Can the Minister also commit to publishing its recommendations as soon as they are ready, along with the government response? We urgently need to reach a safe but just solution to this issue.
Lord Murphy of Torfaen (Lab) [V]
My Lords, the noble Lord, Lord Hay, mentioned in his contribution that the world has changed a lot in Northern Ireland with regard to this matter over the past 20-odd years. Certainly, my memory of when I started as a junior opposition spokesman on Northern Ireland 26 years ago is that it was a different world with regard to how juries were intimidated—and, of course, how judges, both Catholic and Protestant, were assassinated. The criminal justice system was hugely compromised by the Troubles and all that went with them.
Of course, that was exacerbated by the fact that Northern Ireland is a small place. Although it could be argued that juries can be intimidated in London and other great cities in Great Britain, it is not quite the same because of the small size of Northern Ireland and the fact that people know each other in a very special way. So we understand the reason for it, but the world has changed. As the Labour Opposition, we reluctantly support the extension but agree with the Minister that only a tiny number of cases are now dealt with in this way—I think he said it was currently 2% of criminal cases. In 2017, for example, out of 1,640 criminal cases, only nine were non-jury ones. However, that is still nine too many in a liberal democracy.
I welcome the Government’s review of this, as other members of the Committee have, and the setting up of a working party. Yes, we would like to know its terms—who goes on it and when it will report, and so on—but the idea of a working party to look at when this will end is excellent. I would particularly like the Minister to take up the important issues referred to by the noble Baroness, Lady Hoey.
I will make another couple of points before I conclude. First, this measure comes against a background of a backlog of thousands of criminal cases in Northern Ireland which have not been heard yet, particularly because of Covid. That has an impact on the need to deal not just with those who perpetrated the crimes but with the victims. We do not want the victims to fall out of any criminal justice system because of that backlog. Perhaps the Minister could say a few words about how the Government propose to deal with that.
Finally, this is about security. We do not have the paramilitary threats that we used to have, but there is a paramilitary threat—linked most of the time to criminality—right across Northern Ireland. Although it is not huge, a number of Members of the Committee have indicated that political instability can lead to security problems, and there is no doubt that things are unsettled in Northern Ireland at the moment. The DUP is currently in crisis because of what happened to the First Minister. Clearly the unionist community is unsettled by the Northern Ireland protocol. Let us remember that the Good Friday agreement was there to satisfy both nationalists and unionists, so these things have to be addressed. We are almost in the marching season, and there could be difficulties unless we try to address that political instability.
I say for the umpteenth time that the noble Lord, Lord Frost, and the Government should now concentrate on engagement with the European Union—which itself should stop talking about legal writs and start talking. The Government should pay less attention to articles in newspapers and more to proper diplomacy and negotiation, and try to resolve at least the most difficult issues surrounding the protocol so that at least there is an attempt to engage Northern Ireland political leaders, the Irish Government and the European Union in ensuring that things settle down. If there is not a settlement politically, there will still be insecurity, and if there is still insecurity, because there are still nasty people about, there will still be a need for non-jury trials. Hopefully that will not happen, but let us hear what the Minister has to say in response.
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.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the Grand Committee stands adjourned until 4.27 pm, when we will move on to the next item of business. I remind Members to sanitise their desks and chairs.