Criminal Law (Northern Ireland)

Lady Hermon 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.

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[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.

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[Stephen Pound (Ealing North) (Lab)]

I am sure that I join the whole House, Madam Deputy Speaker, in welcoming you to your seat. I learned, when I was a very junior Whip under your leadership, that your eye misses nothing. I am quite sure that that will be our experience here. I would also say that, during my time in the Whips Office, one of my opposite numbers was the Under-Secretary of State for Northern Ireland, the hon. Member for Norwich North (Chloe Smith), whom I welcome to her position. I also welcome the hon. Member for Morecambe and Lunesdale (David Morris), who brings a great deal of knowledge and the affection of the House to this particular brief.

May I say at the outset that we do not intend to oppose this order for reasons that will be self-evident? I also think that the involvement of David Seymour, as the independent reviewer, is a very powerful step forward. There have been some issues in the past about the transparency of the process. I understand that Barra McGrory is leaving this year, and I certainly endorse the kind comments that were made by the Minister. The fact that there has been one judicial review of his decisions says a great deal about his skill and impartiality. I appreciate that there have been some Members who have felt a certain absence of confidence, but his service has proved that he is more than capable of being completely objective. We all remember Sir Alasdair Fraser, who held the post for more than 20 years. We welcomed Barra McGrory and certainly look forward to the new appointment.

The points that the Minister made about the current situation need to be considered very sombrely and soberly. It is just over a year ago that Adrian Ismay was killed on his way to work at HMP Hydebank. Obviously, we remember the death of David Black a bit earlier. Clearly, the situation is dangerous. She also mentioned explosive finds. One sad statistic is that, between August 2015 and July 2016, there were 246 incidents of explosive ordnance disposal activity in support of the police, including 35 improvised explosive devices. The situation is serious, and it demands a serious response. The two proposals that the Minister has made today—the renewal of the order and the involvement of the independent reviewer—go a long way forward.

[Lady Hermon]

I am very grateful to the shadow spokesperson for Northern Ireland for responding to this debate and for assuring the House that he supports the renewal of this measure. I would be very comforted to know that his party leader supports the need for non-jury trials in Northern Ireland. For as long as such trials are needed in Northern Ireland, I would like to know that his party leader supports them.

[Stephen Pound]

That is a little bit above my pay grade. I shall certainly speak to my party leader and make sure that he sends a note to the hon. Lady, of whom he is very fond.

This is my third trot around the paddock with this subject. In June 2013, when the right hon. and gallant Member for Hemel Hempstead (Mike Penning) was the Minister, we managed to deal with it in seven minutes. In July 2015, when the right hon. Member for Wyre and Preston North (Mr Wallace) was Minister, sadly it took us 22 minutes. I am in no way implying that we are on a particular scale, but I think that it is important, in view of some of the new evidence we are discussing today, that we take a little time to consider the matter.

The role of the independent reviewer of the Justice and Security (Northern Ireland) Act 2007 is crucial. I wish to recommend David Seymour’s report to the House and express my gratitude to the Northern Ireland Office for making it available, and indeed for all the work it has done. The report is salutary. It actually states why the situation in Northern Ireland is so serious. I must say that I now know more about stop and search on the causeway coast and in the glens than I ever really wanted to.

[Stephen Pound]

Absolutely. One of the things that strikes many of us when we visit Northern Ireland, apart from the staggering beauty of that part of the world, is the persistence of fear. I salute all public servants, elected and non-elected, who hold the line in Northern Ireland in the most horrendous circumstances. I pay tribute not only to the hon. Gentleman, but to Prison Officer Black, Adrian Ismay and so many others who have suffered.

The independent reviewer’s report, which is a solid body of work, should be studied. I am extremely glad that in future it will contain some oversight of the process. With regard to the only challenge to the DPP’s decision that has gone to judicial review and not been upheld, some people still feel that it is a closed process. When the PSNI goes to the DPP and applies for a certificate to be issued, the DPP quite rightly runs the template of the four tests over the application and makes a decision, but it does depend, to a certain degree, on the individual characteristics, intelligence and knowledge of the DPP. I think that DPP Barra McGrory has proven time and again that he is more than capable of that, but some people have suggested that there should still be some element of external examination and oversight.

I think that the Minister, in a very fine piece of parliamentary footwork and legislative improvement, has answered those objections. I have no way of knowing whether I will be at this Dispatch Box in two years’ time—if I am, it will probably be because I have not been promoted; if I am not, it will almost certainly be because I have been demoted—but if I am, I look forward to reading this. Indeed, even if I am not at the Dispatch Box, I will certainly read it anyway, just to see where we are with the situation.

I thoroughly endorse the Minister’s earlier points about the desire to see Northern Ireland’s devolved institutions up and running again. We know that the people of Northern Ireland deserve better than an impasse or a vacuum. We know that the quality of the elected representatives in Northern Ireland is such that they are more than capable of reaching such an agreement, and I look forward to them doing so very soon.

I reiterate the point made at the beginning about this being a reluctant piece of legislation. When we considered this in June 2013, the Minister at the time said on the record that the Government wished to see a return to full jury trials as soon as possible. That goes for all of us. We do not want to see criminal non-jury trials. They do not exist anywhere else in the United Kingdom—there may have been an increase in civil non-jury trials, but criminal non-jury trials do not exist anywhere else. They exist in Northern Ireland because of the difficult and exceptional circumstances there.

[Lady Hermon]

Will the hon. Gentleman give way?

[Stephen Pound]

I will always give way to a former professor of law at Queen’s University.

[Lady Hermon]

The hon. Gentleman has inadvertently promoted me; it is awfully flattering and very kind of him, but I was never a professor of law at Queen’s University. The point I wish to draw to his attention—this is why I was so disconcerted, displeased and angry with his response to my earlier intervention about the attitude of his party’s leader towards non-jury trials in Northern Ireland—is that the Criminal Justice Act 2003 provides for non-jury trials throughout the whole United Kingdom, so they are available in England and Wales.

[Stephen Pound]

I apologise to the hon. Lady for elevating her—I am sure that it would only have been a matter of time before she had been made a full professor of law. I am one of the very few Members of Parliament who have not been a lawyer, my previous occupations having been those of sailor and bus driver. However, I was under the impression that we did not have non-jury criminal trials in Great Britain, although we do have non-jury civil trials, for example in fraud cases. But I am more than happy to be corrected on that.

I would like to hear from the Minister what the actual mechanics of the process will be with the independent reviewer’s reporting. Will it be an annual report, a biannual report or a sixth-monthly report? Will it be laid in the Library or will there be a statement to the House? Bearing it in mind that we are entering some pretty choppy waters in Northern Ireland, will she consider a wider involvement by the shadow Secretary of State, because we on the Opposition side are proud of the bipartisan approach that we continue to take in relation to Northern Ireland matters? There are very few points that divide us on this, because we all want the same thing in Northern Ireland: peace, decency, honesty, economic success and the rule of law. We on the Opposition Benches pledge ourselves to working in a bipartisan way. I would therefore like to see wider involvement with the shadow Secretary of State, because over the next few months there will inevitably be—I hesitate to use the term “direct rule”—direct involvement from London.

We are approaching 12 July, which is a tricky time in the Northern Irish year. I think that what we are doing here today will show confidence on both sides of the House in the rule of law in Northern Ireland. It will show that people have not taken their eye off the ball and that the Minister’s move to include David Seymour in the process is a positive one. The Opposition therefore endorse and support the extension of the non-jury trial legislation for a further two years.

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[Lady Hermon (North Down) (Ind)]

I want to make a few points, although the Minister was very kind in allowing me to intervene on her so I have already been able to mention some of the issues that I wanted to raise. When I intervened on her about types of trial and the defendants involved in non-jury trials, I expected her to have the full information at hand. The hon. Members for Tewkesbury (Mr Robertson) and for South West Wiltshire (Dr Murrison) said it would be helpful to have an indication about the nature of the defendants, whether or not acquitted, who have gone through the process.

By happy coincidence, before I came into the Chamber I had a look at a research paper. I stand to be corrected by the Minister when she winds up if I have inadvertently mentioned these individuals, but I do not think that will be the case. Let me give the House some examples. There was Michael Stone, a very infamous murderer—not famous, but infamous for the Milltown murders—and a loyalist paramilitary. There was a gentleman called Chris Ward, who was apparently involved in the Northern Bank robbery, which was a huge bank robbery. I would not like to say where the money went, but I think a lot of us suspect that it went to the IRA. There was the murder of Robert McCartney, which was a ghastly, horrible murder. I know that these are past cases, but I am simply giving examples of cases in which there were non-jury trials, and they were all very serious cases indeed.

It is wholly appropriate to remind the House that this is an exceptional procedure: non-jury trials under the Justice and Security (Northern Ireland) Act 2007 are very exceptional. I also remind the House that this is written into the 2007 legislation:

“No inference may be drawn by the court from the fact that the certificate has been issued in relation to the trial.”

That is really important because, as was mentioned by the hon. Member for Belfast South (Emma Little Pengelly)—I welcome her to the House—our judiciary in Northern Ireland, and indeed the legal profession in Northern Ireland, has had to endure a sustained terrorist threat over many long years. The judiciary in Northern Ireland is rigorously impartial and independent. The fact that the statistics show acquittals in non-jury trials to be very much in line with those in jury trials indicates that this is a very fair process. Even if it is a non-jury trial, such a trial is a fair process. We have remarkable judges who show impeccable judgment and impartiality.

May I add a comment in fairness to the outgoing or retiring Director of Public Prosecutions for Northern Ireland, Barra McGrory? I know there has been criticism of him, including by me, in relation to the fact that he had been involved—in his past life, but in his professional capacity—in advising IRA members who received comfort letters from both Labour and Conservative Governments. However, as the hon. Member for Tewkesbury will confirm, his evidence to the Northern Ireland Affairs Committee as the DPP made it quite clear that no one who received a comfort letter could rest easy in their bed while he was the Director of Public Prosecutions. I think he has been totally impartial in carrying out his functions as the DPP. It is a very difficult job in Northern Ireland, and the non-jury trial system in Northern Ireland is a challenge for everyone.

As the Minister knows—other Members have given the statistics—the continued loyalist and republican paramilitary activity is a serious concern, and it should be, because the threat level in Northern Ireland is severe. However, there is one point that I would like the Minister to address. Part 7 of the Criminal Justice Act 2003 made provision for non-jury trials where there is a real and present danger of jury tampering, and section 44 applies equally to Northern Ireland as to Great Britain. Will the Minister say whether there have been any applications by the prosecution under section 44 of the 2003 Act because they feared that there was a real and present danger of jury tampering, and whether those have been dismissed, or whether the only non-jury system that has been in operation is that under the 2007 legislation that we are renewing this afternoon? We need clarity on whether both systems are running in parallel or one has been less used than the other. That would be helpful to the House.

Without hesitation, I give my support to the renewal of the order this afternoon. I am content that the non-jury system in Northern Ireland under the 2007 Act is impartial. Everyone should have confidence in it, given the statistics, and I am happy to see it renewed for another two years.

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[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.