Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2019

Lord Duncan of Springbank Excerpts

Tuesday 4th June 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 30 April be approved.

Relevant document: 48th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, under this order, trials without a jury can take place in Northern Ireland for a further two years from 1 August 2019. The current provisions expire on 31 July. While this is the sixth such extension of these provisions, I hope to leave noble Lords in no doubt of the continued necessity of these provisions for another two years.

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 be, for example, through jury tampering or due to jury bias. Non-jury trial provisions also protect against the risk of impairment to the administration of justice arising from a hostile or suspicious jury—a circumstance that is more likely to occur in Northern Ireland than the rest of the UK, with Northern Ireland’s unique security situation and troubled past.

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.

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 would be tried by a single judge. Today in Northern Ireland there is a clear presumption that a jury trial will take place in all cases. At the peak of Diplock courts in the mid-1980s, there were more than 300 such cases per year. The peace process and ceasefires saw this figure fall to an average of 64 cases in the last five years of the Diplock system, leading to their end in 2007. By contrast, the average number of non-jury trials per year is less than a third of this. Non-jury trials are used only in exceptional circumstances; they are not Diplock courts. 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 circumstances allow: otherwise, we risk allowing violence, fear and intimidation to undermine the criminal justice process in Northern Ireland.

Noble Lords will be aware of the lethal threat still posed by terrorists in Northern Ireland. Violent 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. Terrorists’ continued use of firearms, explosive devices and other weaponry continues to cause death and injury. Individuals linked to paramilitary organisations also continue to undermine the rule of law and the hard-won peace in Northern Ireland through the use of violence, fear and intimidation in both republican and loyalist communities.

While many attacks have been disrupted, the security situation today regrettably remains much the same as it was in 2017, when the provisions were last extended. The current threat level for Northern Ireland-related terrorism remains “severe”, meaning that an attack is highly likely. In fact, it has been set at “severe” for nearly 10 years. This year, in 2019, three national security attacks have occurred as a result of Northern Ireland’s terrorist activities. Although there has been a reduction in the overall number of national security attacks in recent years, vigilance in the face of the continuing threat remains essential.

Noble Lords will remember the car bomb in January that exploded outside the Londonderry courthouse. It was described by the PSNI as a relatively unsophisticated, crude device. Clearly, however, as noble Lords may have seen from CCTV imagery released at the time, it could easily have caused injuries or fatalities and was wholly indiscriminate. Noble Lords will also recall the postal packages that were sent to addresses in London and Glasgow. One detonated. Thankfully, no one was injured during these first two national security incidents.

No one will forget the tragedy in Creggan on 18 April, just seven weeks ago. Lyra McKee, a young journalist, lost her life standing behind a police line when a dissident republican gunman fired shots at police. The police had been in the area searching for firearms and explosives, doing their job trying to keep people safe. The sickening events that unfolded in Creggan remind us how volatile the security situation in Northern Ireland can be.

Noble Lords may have heard subsequently that the PSNI and the Public Prosecution Service announced that every possible support, including witness anonymity, would be provided to those giving evidence as part of this murder case. This move highlights the fear and intimidation that exists in some communities in Northern Ireland. These are small, close-knit communities in which it is very easy for people to be identified. Violence, fear and intimidation are real concerns for the wider community because of the presence of violent dissident republican terrorists and paramilitary groups. A report commissioned by the Department of Justice (Northern Ireland) in March this year found that 29% of those living in mainly loyalist areas and 25% of those living in mainly republican areas think that paramilitaries create fear and intimidation, compared with 15% in Northern Ireland generally. This evidences a general fear of paramilitaries among people across Northern Ireland—but one that is exacerbated within certain communities.

We accept that having specifically designed non-jury trial provisions in Northern Ireland is not an ideal situation—but neither is the “severe” terrorist threat in Northern Ireland. We also accept that this is the sixth extension of what were designed to be temporary provisions. But the “severe” terrorist threat in Northern Ireland is a complex and enduring issue, and we must make sure that, for as long as it endures, it does not interfere with our ability to provide safe and effective justice.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, I am sure that noble Lords will join me in wishing the noble Lord, Lord Thomas of Gresford, all the very best.

Recalling my first visit to Northern Ireland as a youngish shadow Minister 24 years ago, the situation was hugely different from what it is today. There were Diplock courts, of course, and juries before that had been severely intimidated by paramilitaries from both sides. Extreme sectarianism meant that that you were not guaranteed, in the proper sense of the word, a fair trial if that trial was to be held with a jury. As the Minister said, Northern Ireland is a very small place and it was even smaller, in population, in those days. We had to have these necessary evils: there had to be some system which meant that justice was fair and outside the realms of intimidation. It is also fair to say that between that time and 2007, when the Diplock courts went and the new system came in, we saw an enormous difference in Northern Ireland. The landscape changed considerably. Not least of this, of course, was that the nationalist and indeed the republican communities began to accept the criminal justice system and the police system, so that people from those communities sat on the Policing Board and involved themselves with the PSNI as well.

So there were huge changes. The Minister touched on the fact that in recent times—the last couple of years in fact—non-jury trials in Northern Ireland have become a tiny proportion of the whole. In 2016 there were only 12 non-jury trials out of 1,640. In 2017 it was nine out of 1,409. Those figures clearly indicate that there has been a huge shift in what happens in Northern Ireland. He is right, of course, to say that the security situation in Northern Ireland is still such that, at the end of the day, you cannot totally rule out a trial that would be unfair because of intimidation or extreme sectarianism. The points made by my noble friend Lord Reid and the noble and right reverend Lord, Lord Eames, are very significant in terms of working out when we will actually see the complete end of non-jury trials in Northern Ireland.

Of course, in a general sense it is about security, and if the security situation improves to such an extent that they are unnecessary, then it will change by the next time we look at this legislation, in two years’ time. But we have to be a bit more scientific than that; as long as you have a system which is different from the rest of the United Kingdom—indeed, from the rest of Ireland—Parliament should be informed as to how and why it should continue, if it does. It would be helpful if the Minister could tell us how the oversight occurs and how this might eventually end.

The other issue is that, so long as there is political instability in Northern Ireland, the possibility of terrorist activity, which we have seen over the last couple of months and even in the last couple of weeks, fills the vacuum of political instability, albeit nothing like how it used to. But it is still there. In that context, I am sure the Minister can reassure the House that the talks in Northern Ireland are going well and that there is a possibility that the institutions might be brought back—bearing in mind that it is not long before the marching season and the holidays are upon us, which is always a reason why we cannot do things in Northern Ireland. The fact that there is political stability hopefully means at the end of the day that the dissident republican threat, if not evaporating, is certainly very much less and that, as a consequence, normalcy can come to Northern Ireland and all trials in Northern Ireland, where relevant, can be trials with a jury.

[Lord Duncan of Springbank]

My Lords, I begin by thanking all noble Lords for recognising the need for this extension and that it is not the choice or preference of the Government to pursue this route. Were we in different circumstances, we would not be countenancing non-jury trials in Northern Ireland. But circumstances are different and we need to be cognisant of what those differences mean for the fairness of the trials themselves.

I too wish the noble Lord, Lord Thomas, a speedy return to the Chamber. He made the important point that paramilitarism, with which we are so familiar, has evolved. It has now become a gangsterism. It has moved from just being men wearing uniforms to being a corrosive element in so many communities in Northern Ireland. Many of these communities are close knit, and intimidation can be exercised in the most insidious and secretive of ways. That is why we need to recognise that a trial must be fair. In those circumstances, we must recognise that intimidation, tampering or any of the other means by which juries or witnesses can be affected must be taken into account in the exercise of justice.

I do not doubt for a moment—here I return to the comments made by the noble and right reverend Lord, Lord Eames—that the judiciary in Northern Ireland has borne a significant burden. Those here who have practised law, especially those who have served on various judicial Benches, will recognise what a challenge that is. To do so in Northern Ireland is to embrace a different world, where traditional family life is disrupted on a daily basis. The fact that it exercises justice in an impartial way is to its credit, and the fact that it is willing to do so under what are sometimes the most perverse and difficult of situations is a tribute to it. I join the noble and right reverend Lord in paying tribute to it for the work it does and the duty it displays in the service of its country.

It is important to touch upon two key aspects that have come through in this debate. First, while accepting that there will be an extension for two more years, by what criteria will we ever be able to establish when we have moved beyond this moment in time? This is important; when I spoke to my officials this morning, that was the very issue about which I too was concerned. It is not enough to say, “When things get better” or wave your arms and say, “We will know when it is time”. There needs to be a suite of very clear criteria.

I can set out certain criteria to your Lordships today. Clearly, the warning about security in Northern Ireland is critical. That is based upon a whole series of assessments conducted by various organisations and bodies in Northern Ireland. That is quite a delicate thing to establish, because it is very easy to use the word “severe” but very difficult to then quantify how you got there. Clearly, we need to move to a situation in which the exercise of justice can be undertaken without threat. That can be done only when we reduce the various gradations down from “severe” until we reach the “normalcy”—the very word used by the noble Lord, Lord Murphy—of everyday life in Northern Ireland.