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

Baroness Barker Excerpts

Tuesday 8th June 2021 Grand Committee

[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.

--- Later in debate ---

[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.