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

Lord Marks of Henley-on-Thames Excerpts

Tuesday 8th June 2021 Grand Committee

[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.