Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2023

Baroness Ritchie of Downpatrick Excerpts

Monday 5th June 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, under this draft order, which was laid before this House on 24 April, trials without a jury can take place in Northern Ireland where the statutory conditions are met for a further two years, until 31 July 2025. The current provisions will expire on 31 July this year. Following a public consultation, and after consideration of the wider security situation in Northern Ireland, my right honourable friend the Secretary of State considers it necessary to seek an extension to these provisions to ensure the continued safe administration of justice in specific cases.

I am keenly aware that this is the eighth extension of these powers since they came into operation in 2007. I hope that noble Lords will be assured of the continued necessity of these provisions for a further two years. This decision was made carefully and informed by a detailed public consultation process, as well as by the work of the non-jury trial working group. This group was established following recommendations by the former Independent Reviewer of the Justice and Security Act, Mr David Seymour CB, and is composed of representatives from the Public Prosecution Service for Northern Ireland, the Police Service of Northern Ireland, the Court Service, the Bar, the Law Society and other independent organisations.

The group has worked to produce detailed reports for the independent reviewer and to develop a set of indicators to assist the Secretary of State in determining whether these non-jury trial provisions remain necessary. The indicators include assessments of the current levels of paramilitary activity and intimidation in Northern Ireland. In conjunction with the consultation responses, the Secretary of State considered these and reached the determination that they further demonstrate that it would not be appropriate to remove the non-jury trial provisions at this time.

I am of course keenly aware of the disappointment that many noble Lords across the House will feel that the security situation today necessitates a further extension of these provisions. We should not, however, lose sight of the real progress that has been made since the dark days of the so-called Troubles. Today, there is a strong presumption of jury trial in Northern Ireland, and in 2021 only 0.6% of all Crown Court cases were conducted without a jury; that is, eight out of 1,358. By contrast, at the peak of the Diplock court system in the mid-1980s, there were more than 300 such cases per year.

Under the provisions of the 2007 Act, non-jury trials are reserved for use only in exceptional cases where the Director of Public Prosecutions for Northern Ireland deems it to be necessary. As correctly stated on 23 May in the other place by the spokesperson for the Official Opposition:

“The provision for non-jury trials is a little-used but vital tool in ensuring the administration of justice”.—[Official Report, Commons, Delegated Legislation Committee, 23/5/23; col. 6.]


I agree with that statement.

As I know noble Lords will appreciate, these proportionate measures remain necessary to safeguard against risks such as juror intimidation and juror bias in an extremely small number of cases. A non-jury trial may be permitted if the defendant is associated 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.

Like their predecessors, this Government remain committed to bringing an end to these provisions when it is safe and compatible with the interests of justice to do so. We firmly believe, however, that now is not the time to take this step.

As demonstrated by the recent increase in the threat level to “severe” and the abhorrent attack on DCI John Caldwell in February, a small number of people in Northern Ireland continue to try to destabilise the political situation through acts of terrorist violence. Their activity causes harm to individuals and communities across Northern Ireland.

Despite courageous work by the Police Service of Northern Ireland and others across the community in Northern Ireland, terrorist and paramilitary groups continue to exert influence and control in communities where they operate. In the year 2021-22 there were 163 recorded offences of intimidation or threats to harm witnesses, and 170 households were accepted as homeless due to intimidation in 2022. These are facts that we cannot ignore.

It would be counterintuitive to believe that the same issues faced by witnesses would not be replicated should they be asked to sit as a juror in these cases. Furthermore, the most recent results from the Northern Ireland Life and Times survey in 2022 found that 17% of respondents believed that paramilitary groups create fear and intimidation in their area.

I trust noble Lords will agree that the safety of the people in Northern Ireland and the administration of justice are paramount. The Government remain 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 paramilitary activity. However, we are not prepared to put the safety of individuals or the administration of justice at risk and believe that there has not been sufficient change in the security situation over the last two years to demonstrate that the non-jury trial provisions are no longer required.

In conclusion, I am sure that I can count on the support of noble Lords across the Committee for the Government’s work to safeguard the administration of justice and to normalise all security arrangements as soon as it is safe to do so. On that basis, I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister for his presentation of the SI. I declare an interest as a member of your Lordships’ Secondary Legislation Scrutiny Committee.

Some 29 years after the ceasefires and 25 years since the Good Friday agreement, it is worrying that there is still a need for an extension of such a power. Although I am not personally opposed to this legislation, I feel that non-jury trials should be an exception rather than the rule. I think the Minister characterised it in that light in his presentation, but I want to know how many such trials took place last year. We have the figure for 2021 in the Explanatory Memorandum but not for 2022.

The Minister gave us the indicators. We probably could have guesstimated those anyway.

We know that the threat level was increased on 28 March this year to “severe”, due to the increased level of dissident republican activity. As the Minister referred to, we had the threatened murder of DCI Caldwell. I am glad to see that he is making a recovery, having been released from hospital and having had some time at home. In fact, he was able to attend the garden party last week at Hillsborough, which showed an improvement in his physical health. I hope he makes enormous strides in that respect.

Only a few days ago, we witnessed on our TV screens and social media an alleged taxi driver taking a gun to a client. He was sacked from his job, although I understand he was not necessarily acting for that firm at the time. Notwithstanding that, he was apparently acting as a drug enforcer for one of the paramilitary organisations in Northern Ireland.

Some 29 years since the ceasefires, the public in Northern Ireland want an end to such paramilitary and criminal activity; they have had enough of it. They do not want to be brought to heel by such paramilitary organisations and criminal gangs; they want to see an end to it. If this debate does anything, it will tell those people, “Get off the backs of the people of Northern Ireland”. We are sick, sore and tired of it, and we want to live in peace and harmony. We want to see the restoration of our political institutions, which, I hope, will be able to help foster economic opportunity for us all.

Related to this is the legacy Bill, which the Minister is also involved in. I know that on the Bill’s last day in Committee he referred to game-changing government amendments. When will they be published? I hope that he is not as surprised as the expression on his face suggests. I want to know when they will be available and what they will cover. Will they enable access to inquests and inquiries? Will they be compatible with the ECHR?

In conclusion, although I do not have a strong aversion to this SI and I generally support it, I hope that it will be the exception to the rule. There could very well be a further extension, depending on terrorist and paramilitary activity in 2025, but I hope that we are looking to bright, fresher new days where terrorism will definitely be a thing of the past and we will not need this type of legislation.

[Lord Browne of Belmont (DUP)]

My Lords, I support these non-jury provisions. I am sure that we all want a jury-based justice system. The diversity of a jury is one of its strengths and it has been proved that juries are fair, effective and efficient. However, as we have heard, unfortunately there exists a severe threat from terrorism in Northern Ireland. It is to be regretted that there is still present in Northern Ireland society a small number of people who are actively involved in terrorism. They do not hesitate to intimidate jury members, witnesses and families involved in their cases. Therefore, the extension of the duration of non-jury trial provision is needed.

Of course, as we have heard, it is hoped that the suspension of jury trials will be a temporary measure and that the time will come when non-jury trials will not be necessary, but this can be achieved only when it is safe to do so. As we have heard, it is important to note that the vast majority of Crown Court cases in Northern Ireland are held with a jury. During 2021, only eight non-jury trials took place, which means that 0.6% of all Crown Court cases in Northern Ireland were conducted without a jury.

There are many safeguards in this before we can have a non-jury system. For example, the Director of Public Prosecutions for Northern Ireland can only consider issuing a certificate for a non-jury trial. The judge also must give reasonable reasons for convictions. Indeed, from the defendant’s point of view, any person convicted before a non-jury court has a right of appeal against sentence or conviction without leave. There are built-in safeguards before these trials can take place.