Criminal Law (Northern Ireland)

Chloe Smith Excerpts

Wednesday 5th July 2017 Commons Chamber

[The Parliamentary Under-Secretary of State for Northern Ireland (Chloe Smith)]

I beg to move,

That the draft Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2017, which was laid before this House on 22 June, be approved.

Under this order, trials without a jury can take place in Northern Ireland for a further two years from 1 August 2017; the current provisions expire on 31 July. Although this is the fifth such extension of these provisions, I hope to leave Members in no doubt as to the continued necessity for the provisions for a further two years.

May I take this opportunity to welcome Madam Deputy Speaker—Dame Rosie Winterton—to her place? This is the first time I have had the chance to do so from this Dispatch Box. I am sure we will all enjoy serving under her chairmanship this afternoon.

Hon. Members will be aware of the lethal threat posed by terrorists in Northern Ireland. 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, but the terrorists’ continued use of explosive devices and other weaponry continues to cause death and injury. Individuals linked to paramilitary organisations also continue to undermine peace and the rule of law in Northern Ireland through the use of violence and intimidation, in both republican and loyalist communities. I want to assure hon. Members that the Government wish to end the exceptional system of non-jury trials as soon as it is no longer necessary. But that should happen only when the circumstances allow, otherwise we risk allowing violence and intimidation to undermine the criminal justice process in Northern Ireland.

[Lady Hermon (North Down) (Ind)]

I am delighted to see you in the Chair for the first time, Madam Deputy Speaker, and to welcome the new Minister to the Dispatch Box to debate this important legislation. It would be helpful to the House if she were to indicate the types of trials that have involved the individuals who have gone through this non-jury procedure in the recent past. Have they involved loyalist paramilitaries, republican paramilitaries or predominantly one or the other? It would be helpful if she told us that.

[Chloe Smith]

I thank the hon. Lady for her comments. Initially, I want to set out the conditions under which such a trial can be granted, as that will begin to help to answer her question. I shall also come on to discuss the numbers of such trials. As she will appreciate, I will not be able to comment on any live cases or give her every single detail she asks for, but I will endeavour to give the House a strong sense of what these trials are used for.

[Lady Hermon]

Obviously, I am not asking the Minister to comment on ongoing cases, but this procedure of non-jury trials has been exceptional to Northern Ireland. I fully understand and support them in the context of continued paramilitary activity in Northern Ireland. However, what she needs to explain to the community and to the House is that this is not a one-sided process and that those who have been through it, whether convicted or acquitted, come from both loyalist and republican paramilitary groups. It would be helpful if she would do that.

[Chloe Smith]

The simplest short answer is yes, it is absolutely the case that the provisions we are discussing have and will apply across communities. There is no doubt about that.

If the House will allow me to continue with my opening remarks, I will try to answer everything else during the course of the debate. The Government wish to end the non-jury trial system because it is exceptional, and we wish to do so as soon as the circumstances allow. Although many attempts to visit violence and intimidation and undermine the criminal justice process have been disrupted, the security situation today remains much the same as it was in 2015, when the House last considered these measures. The threat from terrorism in Northern Ireland is assessed as severe. This year alone, there have been four national security attacks in Northern Ireland, including the wounding of a police officer who was serving the community. It would be remiss of the Government to dispose of the provisions now, given that threat and its potential impact on the delivery of criminal justice for all communities in Northern Ireland. It would be a weak argument to suggest that we should move on from the provisions because we have had them for a long time.

In the past two years, attacks by dissident republicans and loyalist paramilitaries have put countless innocent lives in danger. Members may be aware of the incident on the Crumlin Road in Belfast in January, when two police officers who were serving their community came under attack from dissident republicans, leaving one officer badly injured. The forecourt of a busy filling station was sprayed with automatic gunfire, demonstrating the utter disregard these groups show for human life and the harm that they pose to ordinary members of the public. Sadly, this despicable attack was not an isolated incident: there were four confirmed national security attacks in 2016 and there have been four so far this year. That underlines the persistence of the threat that we face.

The presence of dissident republicans and paramilitaries in Northern Ireland means that violence and intimidation remain concerns for the wider community. Figures released by the Police Service of Northern Ireland show an increased number of security-related deaths over the past three years, as well as an increasing trend in the number of paramilitary-style assaults since 2012-13. Threats towards the police and public bodies also demonstrate the continued attempts at the intimidation of individuals and communities in Northern Ireland. In 2016-17, there were 137 arrests and 19 charges related to terrorism. I pay tribute to the work of the PSNI and its partners, because it is having an impact on the threat, but the security situation remains serious.

[Bob Stewart (Beckenham) (Con)]

May I speak from personal experience? In some court cases there is huge intimidation of witnesses from the public gallery, which it is very difficult to control. I have to say, I was frightened.

--- Later in debate ---

[Chloe Smith]

I welcome my hon. and gallant Friend’s experience being brought to bear on this debate. He is right. I was just about to talk about the circumstances in which non-jury trials are appropriate, and will come on to that very point about the intimidation of those involved in the justice process. He will also be aware of some other jury reforms that have been implemented administratively; I hope to see them succeed.

[David Simpson (Upper Bann) (DUP)]

With the information she has outlined, the Minister is making the case for the system’s renewal very well. Does she agree that it is essential for all sections of the community in Northern Ireland to support the security forces and the work that they do?

[Chloe Smith]

Yes, I do. We are talking about a threat that goes across all communities and the wider public, and I hope I have begun to make that clear.

I shall explain the precise ways in which justice is threatened and what the measures before us are for. Non-jury trial provisions are available in exceptional circumstances in Northern Ireland, when a risk to the administration of justice is suspected—for example, jury tampering, whereby intimidation, violence or the threat of violence against members of a jury could result in a perverse conviction or acquittal.

The Director of Public Prosecutions for Northern Ireland may issue a certificate that allows a non-jury trial to be held in relation to any trial on indictment of a defendant, and anyone tried with that defendant, if it meets a defined test that falls within one of four conditions: first, if the defendant is, or is an associate of, a member of a proscribed organisation whose activities are connected with the affairs of Northern Ireland, or has at any time been a member of an organisation when it was a proscribed organisation; secondly, if the offence was committed on behalf of a proscribed organisation, or a proscribed organisation was involved with or assisted in the carrying out of the offence; thirdly, if an attempt was made to prejudice the investigation or prosecution, by or on behalf of a proscribed organisation, or a proscribed organisation was otherwise involved with or assisted in that attempt; or, fourthly, if the offence was committed to any extent, directly or indirectly, as a result of, in connection with or in response to, religious or political hostility.

A case that falls within one of the four conditions will not automatically be tried without a jury, because the DPP must also be satisfied that there is a risk that the administration of justice might be impaired were a jury trial to be held. For those with a historical view, I should be clear that this is not a Diplock system—this is not the system that pertained before 2007. There is a clear distinction between the current system and the pre-2007 Diplock court arrangements, under which there was a presumption that all scheduled offences were tried by a judge alone. In Northern Ireland today, there is a clear presumption that a jury trial will take place in all cases.

In line with the commitments made in Parliament in 2015—before the July 2017 expiry date that necessitates our being here today—the Secretary of State held a full public consultation on whether non-jury trial provisions should be extended. The consultation concluded in February this year. It received a total of 10 responses from a range of interested individuals and groups in Northern Ireland.

[Lady Hermon]

I am extremely grateful for the Minister’s generosity in taking interventions. It would be helpful if, before she sets out the consultation’s conclusions and draws her remarks to a close, she could indicate how often the DPP has issued these certificates—he has not been at all hesitant in doing so. It would also be helpful if she could tell us about when he has refused to issue certificates, which is in the minority of cases. That sort of information would be helpful to everyone.

[Chloe Smith]

I am happy to do that, so I shall pause my speech and provide exactly those figures. In the 2017 calendar year, which is obviously still running, four certificates have been issued so far, and 19 were issued in the 2016 calendar year. In 2016, one request to issue a certificate was refused. I shall give the proportion as well, because it is illustrative for the House: in 2017, just 0.5% of Crown court cases have been dealt with by means of a non-jury trial under the Justice and Security (Northern Ireland) Act 2007 —that is a percentage of all disposals. That makes it clear to the House how infrequently the provisions are used. The figure for refusals gives a sense of how carefully the DPP makes the decisions: it is not about rushed decision making; due care and attention are applied.

Before that intervention, Madam Deputy Speaker, I was speaking about the responses to the consultation; I hope you do not mind my taking the time to put this on record for those who have an interest. The Secretary of State has received relevant briefing from security officials so that he can understand the underlying threat picture. In the light of all the evidence and views before him, the Secretary of State has decided to renew non-jury trial provisions for a further two years and to keep them under regular independent review—those are the proposals I have brought before the House. As an extra and new measure of assurance, the independent reviewer of the 2007 Act will review the non-jury trial system as part of his annual review cycle, the results of which will be made available to the public in his published report. We hope that that gives some extra reassurance to those interested in these issues.

We must recognise that Northern Ireland is in a unique situation and that the non-jury trial provisions in the 2007 Act continue to be an important factor in supporting the effective delivery of the criminal justice process in a very small number of criminal cases. Certain jury trials in Northern Ireland would not be safe from disruption by those involved in paramilitary activity, many of whom make their presence known in Northern Ireland’s close-knit communities or indeed in the public galleries of the courtrooms.

[Maria Caulfield (Lewes) (Con)]

Given that some paramilitary organisations are also involved in organised crime, is the Minister confident that jurors in other trials are not being intimidated by those organisations?

[Chloe Smith]

That reminds us of the importance of the four conditions that apply here. If there were some link with those four conditions, any trial may be considered under these processes. The DPP must be satisfied that one of the four conditions is met, and that justice may be put at risk by the holding of a jury trial. My hon. Friend can rest assured that the provisions are available for all types of criminal cases as long as they meet the conditions.

In 2016 and 2017, a very small number of certificates were issued. I would just like to add that the DPP acts with a great measure of independence. His role is to exercise his discretion in deciding whether to issue a certificate. I note that the current DPP is due to retire this year, and he will have exercised these duties and many others in great service to this country over the years.

As I have said, the numbers of certificates are very small compared with the total burden of Crown court cases. I hope that hon. Members are reassured by the fact that the Secretary of State has not taken lightly this decision to seek to renew the non-jury trial system. We strongly believe, however, that the system is, on balance, proportionate and necessary in light of the unique risks facing the criminal justice process in Northern Ireland.

[Dr Julian Lewis (New Forest East) (Con)]

Just before the Minister concludes, can she tell us whether, in the very small number of cases that have gone before the non-jury courts, there is any evidence of appeals being put forward and indeed being successful in part as a result of the way in which they were tried in the first place?

[Chloe Smith]

There are indeed ways to challenge these certificates; legal challenges have been made. I will not go into them in great deal here because they are on record and available for Members to look at. However, I will draw out one interesting point from one of the pieces of case law: it is noted that not to have a jury trial is not the same as not to have fair trial. That is a crucial piece of reassurance for Members here today who may be thinking deeply about the measure for which I am asking their support.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

Will the Minister comment on the concern of the Bar of Northern Ireland that the criteria under which a challenge can be brought under section 7 of the 2007 Act is really very narrow and confined to exceptional circumstances? That concern comes out clearly in the consultation and is expected to be addressed in some way.

[Chloe Smith]

I am grateful to my hon. and gallant Friend for his contribution. He speaks with great experience, as he has spoken on these issues from this very Dispatch Box. He is right that the consultation responses, while being broadly in favour of continuing the system—indeed many of them noted that they had faith in the Secretary of State’s decision—contained some points of detail that could be considered in the future. However, I must point out that the provisions expire this month. I am asking the House to extend them now for immediate purposes, which is somewhat separate to the broader question of reform that we might look at in due course. I have mentioned an independent review, which will be a very good opportunity to draw out all these issues. I will also take the opportunity to put it on the record that the very complexity of these issues reminds us why we want to see an Executive in place in Northern Ireland—so that a Ministry of Justice there can properly play its part in these issues as well.

In conclusion, we would love to be able to do away with these measures as early as we possibly can, but that can only ever be done when circumstances allow. We want a system that remains fair, effective, necessary, appropriate and proportionate. We look forward to discussing it further under the annual independent review, but, for now, I commend this order to the House.

--- Later in debate ---

[Chloe Smith]

I begin my brief closing remarks by thanking my hon. Friend the Member for Beckenham (Bob Stewart) for that moving, sombre and timely illustration of exactly the issues we are dealing with today. On behalf of the whole House, I thank him for sharing that piece of his family’s unfortunate experience.

[Dr Julian Lewis]

This is an appropriate point, is it not, to show our appreciation for the work of our armed forces, without whose courage we would never have had a political settlement, and to express our concern that former service personnel still face the possibility of trial for matters arising out of the troubles when terrorist murderers are able to walk free?

[Chloe Smith]

My right hon. Friend will be well aware that, at this point, I am not able to deal fully with the issues he raises, except to say in brief that we would all wish to have a way of dealing with legacy issues in Northern Ireland that is fair, balanced and proportionate. We will have to return to those more fully at a later time.

I will do my best to work my way swiftly through the requests that have been made of me this afternoon. I thank the Opposition spokesman, the hon. Member for Ealing North (Stephen Pound), for his support for the measures, and for the additional reasons he gave for the argument that many of us share. He asked how the review mechanism will work. I confirm that it is for David Seymour to decide on the exact mechanisms of the independent review. We can all have confidence that his previous work has been very thorough, and that he will bring to the subject the oversight and transparency that we would wish for. In some ways, that answers other points that have been made—there are bigger issues than are in the order.

The independent review report will be laid before both Houses.

[Stephen Pound]

Will the Minister tell the House whether that will be on an annual, biannual or six-monthly basis?

[Chloe Smith]

It will be part of David Seymour’s annual review cycle. I think I said that in my earlier remarks, but I am happy to make it clear for the record.

My hon. Friend the Member for Tewkesbury (Mr Robertson), the erstwhile Chair of the Northern Ireland Affairs Committee—

[Stephen Pound]

He still is.

[Chloe Smith]

Indeed. No doubt we will see my right hon. Friend serve as the Chairman again. He and a number of hon. Members asked about the mechanisms of the Criminal Justice Act 2003. I can confirm to the House that that Act remains in force. The threshold is different for these provisions—the hon. Member for North Down (Lady Hermon) made those very same points. Obviously, the Justice and Security (Northern Ireland) Act 2007 came after the 2003 Act. Today’s provisions were designed to complement the 2003 Act—the provisions that were already in force in the UK. They are specific to Northern Ireland and were designed to be a way to address its legacy of paramilitary activity and the risks to the population at large that stem from that.

[Lady Hermon]

Will the Minister give way?

[Chloe Smith]

I am afraid I must press on, as I have only few minutes left in which to answer points raised by quite a few Members.

My hon. Friend the Member for Tewkesbury asked how many judges sat on the trials. I can confirm that in a non-jury trial there is a single judge. He and others asked about the trend for the types of trials that use the provisions. As I confirmed earlier to the House, trials have come from both republican and loyalist sides of the community, but, as we have seen in this debate, they are for criminal trials of all types. As long as the request falls under one of the four conditions, and the DPP is satisfied on the fifth, a certificate may be issued. I note that others, including the hon. Member for North Down, have gone further into what type of defendant has been tried under the provisions. I will not comment on individual cases in the Chamber, but I will confirm that they are designed to be used across communities and to protect the general public from the scourge of intimidation.

The hon. Member for Edinburgh North and Leith (Deidre Brock) asked about human rights implications. I am glad to have the opportunity to say a little more on that. In the explanatory memorandum, the Secretary of State is clear that in his view the provisions do not infringe on equality and human rights measures. That is the simple part. The more complex part is that one reason why we feel the provisions are necessary is because they protect the human rights of jurors. As my hon. Friend the Member for Beckenham made absolutely clear, jurors have a right to enjoy a family life and a right to privacy. When we talk about the potential intimidation of juries, we must remember how those rights apply. It is also possible to argue that if a person does not receive an unbiased jury trial, their rights as a defendant have been compromised. I raise these points in brief just to say to the hon. Lady and others that these are complex issues, but we feel confident that the 2007 Act does not compromise human rights and indeed that it upholds, to the extent possible in the circumstances, the right to a fair trial.

My hon. Friend the Member for South West Wiltshire (Dr Murrison) wanted granularity in the list of where the measures have been used. As I said, I will not comment on individual cases but I am happy to write to him, and to other hon. Members who raised this point, with a little more detail to further illustrate the kind of trials to which they may apply. He highlighted the comments by the Bar. I reiterate that we all want to look towards a world where these provisions are not necessary. We have an opportunity to do that with the forthcoming independent review.

I welcome the comments made by the hon. Member for Strangford (Jim Shannon). He emphasised the range of paramilitary criminality we face and I am grateful to him for placing it on the record. I am equally grateful to my hon. Friend the Member for Havant (Alan Mak) and the hon. Member for Belfast South (Emma Little Pengelly) for illustrating further the reasons we should all be able to support the measures. I particularly welcome the hon. Lady to her role not only in the House generally, but as the justice spokesperson for her party.

Let me now deal with the remaining points made by the hon. Member for North Down, and dwell a little further on issues relating to the Criminal Justice Act 2003. The relevant provisions have been used in England in two cases, one in 2004 and one that is before Leeds Crown Court this year. It has not yet been used in Northern Ireland, but, as I have said, the two systems are designed to be complementary.

The measures in the 2003 Act do not address one very important issue, namely the potential for bias in juries. We have discussed the potential perversion of a justice system. There has not been time for us to go into this type of provision in too much detail, but it involves the important concept of wishing to avoid trials that could be undermined by biased juries, a problem that could arise in the context of the presence of paramilitaries in close communities. I am confident that the hon. Lady and some of her near neighbours are familiar with such issues, and—like, I think, all Members who are here today—want to see an end to paramilitarism, and an end to a world in which these unfortunate measures are necessary. I think we have all agreed that we want to see a move to renew and refresh the Executive in Northern Ireland, so that they too can play a part in ensuring that a robust criminal justice system serves all the communities in Northern Ireland.

I commend the order to the House.

Question put and agreed to.

Resolved,

That the draft Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2017, which was laid before this House on 22 June, be approved.

[Conor McGinn (St Helens North) (Lab)]

On a point of order, Madam Deputy Speaker. In the last half hour, the Department for Work and Pensions has made available a written statement outlining the closure of jobcentres across the country, which will lead to the loss of 750 jobs, including jobs at Newton-le-Willows jobcentre in my constituency. The story was briefed to the media earlier today, but no Minister has come to the House to be scrutinised or asked questions about this catastrophic decision, which will lead to the loss of so many jobs. I think that that shows contempt for the House, for scrutiny, and, most important, for the people who are losing their jobs. Can you advise me, Madam Deputy Speaker, on how we can ensure that when Ministers make and announce decisions such as this, they do it properly, in the House?