Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2017

Lord Bourne of Aberystwyth Excerpts

Tuesday 18th July 2017 Lords Chamber

Moved by

[Lord Bourne of Aberystwyth]

That the draft Order laid before the House on 22 June be approved.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Northern Ireland Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, under this order, trials without a jury can take place in Northern Ireland for a further two years from 1 August 2017. Without this order, the current provisions will lapse on 31 July 2017. Although this is the fifth such extension of these provisions, I hope to leave noble Lords in no doubt as to the continued necessity of such provisions for another two years.

Noble Lords 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 assure noble Lords that the Government wish to end the exceptional system of non-jury trials as soon as it is no longer necessary. But this should happen only when the circumstances allow, otherwise we risk allowing violence and intimidation to undermine the criminal justice process in Northern Ireland. Regrettably, although many attacks have been disrupted, the security situation today remains much the same as it was in 2015. The threat from terrorism in Northern Ireland is assessed to be severe. This year alone, four national security attacks have occurred in Northern Ireland, including the wounding of a police officer serving his community. It would be remiss of the Government to dispose of these provisions now given this threat and the impact it may have on the delivery of criminal justice in Northern Ireland, or simply because there are those who think we have had these provisions for long enough.

In the past two years, attacks by dissident republicans and loyalist paramilitaries have put countless innocent lives in danger. Noble Lords will recall the despicable incident on the Crumlin Road in Belfast in January this year, where 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 was not an isolated incident: there were four confirmed national security attacks in 2016, and there have been four so far this year, underlining the persistence of the threat we face.

The presence of dissident republicans and paramilitaries in Northern Ireland means that violence and intimidation remain a concern for the wider community. Figures released by the Police Service of Northern Ireland show that there has been 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 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. Many attacks have been thwarted and disrupted, which is evidence that the work of the PSNI and its partners is having an impact, though the security situation remains serious.

Non-jury trial provisions are available in exceptional circumstances in Northern Ireland where 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 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 which falls within one of the following four conditions: first, 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 when it was a proscribed organisation, whose activities are connected with the affairs of Northern Ireland; secondly, the offence was committed on behalf of a proscribed organisation, or that a proscribed organisation was involved with or assisted in the carrying out of the offence; thirdly, an attempt was made to prejudice the investigation or prosecution by, or on behalf of, a proscribed organisation, or that a proscribed organisation was otherwise involved with or assisted in that attempt; or fourthly, 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 there is a risk that the administration of justice might be impaired if a jury trial were to be held.

Let me be clear: this is not a Diplock court system. There is a clear distinction between this system and the pre-2007 Diplock court arrangements. The Diplock system saw a presumption that all scheduled offences were tried by a judge alone. Today in Northern Ireland there is a clear presumption that a jury trial will take place in all cases—the presumption is reversed.

In line with commitments previously made in Parliament in 2015, prior to the July 2017 expiry date the Secretary of State held a full public consultation on whether or not non-jury trial provisions should be extended. The consultation concluded in February this year, and received a total of 10 responses from a range of interested individuals and groups in Northern Ireland. The Secretary of State has also received relevant briefings from security officials in order to understand the underlying threat picture in Northern Ireland. 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. As an extra and new measure of assurance, the independent reviewer of the Justice and Security (Northern Ireland) Act 2007 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 must recognise that Northern Ireland is a unique situation, and 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.

So far in 2017, the DPP has issued just four certificates for non-jury trials. During 2016, 19 certificates were issued and one was refused. The DPP acts with independence, exercising his discretion in deciding whether to issue a certificate. Noble Lords will also be interested to know that in 2016, just 0.7% of all Crown Court cases in Northern Ireland were conducted without a jury. The figure so far in 2017 is 0.5%. These figures reflect the small but consistent need for non-jury trial provisions.

Noble Lords can rest assured that the Secretary of State has not taken the decision to seek to renew the non-jury trial system lightly. We strongly believe, however, that the system is, on balance, a proportionate and necessary measure in the light of the unique risks facing the criminal justice process in Northern Ireland. The Government’s move to keep the provisions under annual independent review establishes a further safeguard, which I am sure noble Lords will welcome, thus ensuring the system remains fair and effective so that we keep it in place for only as long as is necessary and appropriate. I commend the order to the House.

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for his clear exposition of what is involved in this order. I am sure the House knows exactly what is at stake. I reiterate at the outset that this is reluctant legislation. We do not want to have to renew it, and neither do the Government. We welcome their assurance that they wish to end this exceptional system in Northern Ireland as soon as it is no longer necessary.

Your Lordships’ House is familiar with the security situation in Northern Ireland. It has been a little over a year since the death of Prison Officer Adrian Ismay after he was injured in a dissident republican bomb attack in Belfast. As the Minister said, in January this year two serving police officers were attacked in a public place with automatic gunfire. Dissident republicans and violent members of paramilitary groups seek to maim, kill and intimidate communities and with it disrupt peace and the rule of law in Northern Ireland. We pay tribute to those police officers, prison officers and members of the Armed Forces who serve the communities and are the main focus of these attacks. These threats affect all communities and, recklessly and without care, put the wider public at risk.

We are assured that decisions on the use of these provisions are taken with appropriate vigilance, with only a very small number of cases having these precautions applied to them. I understand that so far this year they make up 0.5% of Crown Court cases in Northern Ireland; last year, there were 19 relevant cases. I warmly welcome the commitment that the independent reviewer of the 2007 Act will be asked to review the non-jury trial provisions as part of the annual review cycle. This is a positive move which increases oversight of these exceptional measures.

The order unfortunately remains necessary due to the particular realities of the security situation and criminal justice in Northern Ireland. A huge amount of progress has been made, but we have further to travel. It is incredibly important, and remains our hope, that a full, devolved and inclusive Government will be returned in Northern Ireland as soon as possible. Today, for the reasons given, we have no hesitation in supporting the time-limited extension of this order.

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[Lord Morrow (DUP)]

My Lords, I, too, commend the Minister for his clarity on this issue. I would like to state clearly that, as far as my party, the DUP, is concerned, we have consistently argued that in any case where there is a significant risk of jury intimidation or a risk of perverse verdicts, it should be heard by a non-jury trial. Equally, offences motivated or aggravated by sectarianism, and crimes involving paramilitary and serious organised crime, including quasi-paramilitary organisations, should also be heard by a judge alone.

There is no doubt that, over the past 30 years and in extremely difficult circumstances, the Diplock court system served Northern Ireland quite well. It helped prevent jury intimidation and avoided perverse verdicts. I hasten to add that it may also have saved lives. Much of the credit must go to the judges who operated the system. They are to be commended and I do so wholeheartedly this evening.

This may be an imperfect way of administering justice, but it is the most satisfactory in the circumstances that prevail in Northern Ireland. My colleagues and I support the Government’s order. We also look forward to the hasty return of the Northern Ireland Assembly. I wish also to clarify to the House that my party, with the biggest mandate in Northern Ireland, is ready to return to the Assembly tomorrow—without any preconditions, without any ifs, ands or buts. We cannot see any reason why the Northern Ireland Assembly is not up and functioning and delivering for the people of Northern Ireland.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on this statutory instrument and thank them for their universal but reluctant support for it—I think that the noble Lord, Lord McAvoy, summed it up both responsibly and correctly when he talked of the reluctance with which the decision was taken, but said that it was a very necessary decision. I also thank him for the bipartisan approach that has characterised the approach of government and opposition parties on the important issues that confront Northern Ireland. As I have indicated, it is a small number of cases that confront us where a non-jury trial is necessary—it is currently 0.5% of cases—but in my view it is nevertheless the correct approach.

I also thank other noble Lords—the noble Lords, Lord Alderdice, Lord Browne of Belmont, Lord Bew and Lord Morrow, and my noble friend Lord Bridgeman —for their support. Perhaps I may deal first with points that have been made across the piece on the return of the power-sharing Executive and then return to some specific issues quite correctly raised by the noble Lord, Lord Alderdice, and echoed by others.

The return of the power-sharing Executive is absolutely necessary. I find that everybody seems to want it to happen, everyone is willing it to happen, but the two principal parties have not yet gone the final mile necessary. This may be due to a lack of personal chemistry among the leaders. We have seen in the past how the chemistry that has existed between the leaders of the two largest parties has helped them go that extra mile—we saw it with the “Chuckle Brothers” in the early days and then with Peter Robinson—but we have not yet seen it with the “Chuckle Sisters”. I hope that there will be some reflection over the summer and that we will be able to go that extra mile to get to where we need to be. I thank noble Lords for their support in that connection.

I also thank noble Lords for acknowledging that we are doing this reluctantly and keeping it under review. David Seymour, who is doing the independent review of the legislation, will incorporate this into the report so that we are able as soon as possible to end this practice, which I think we all accept is necessary but undesirable.

I thank the noble Lord, Lord Alderdice, once again for his support. He raised a couple of specific issues. The first was the deficiencies of the criminal justice system and the need to increase public confidence. We will respond to that report in due course, but I recognise the need that he reflected there. The second issue that the noble Lord raised, quite correctly, was the importance of confronting paramilitary activity. The noble Lord is aware more than most of the need to tackle that. I thank him for the role that he has played in producing the invaluable report on the way forward.

Noble Lords will be aware—as the noble Lord indicated—that the Executive agreed an action plan for tackling paramilitary activity, criminality and organised crime in July last year. Since the publication of the action plan, work has been progressing to implement those commitments. To date, £9.1 million has been allocated across more than 15 projects, including the establishment of a paramilitaries task force led by the PSNI, which will have support from the NCA and HMRC, to tackle the criminality linked to paramilitaries. I can assure the House that the current situation, with the absence of an Executive at Stormont, has therefore not completely halted this important work; progress continues to be made to push it forward. As the noble Lord will be aware, the fresh start agreement has led to the creation of the Independent Reporting Commission, which will report on progress towards ending paramilitary activity.

That said, there are of course limitations to what can be progressed in the absence of Ministers, in this area as in so many others, and certain issues, including any legislative changes, will not be able to be moved forward until Ministers are in place to take such decisions. That is one more important reason why we need that power-sharing Executive to move things forward in Northern Ireland.

Of course, we will keep matters under review—let us see how they progress over the summer—but it is clear that some important measures will need to be taken if we do not reach a situation where we have a return to a power-sharing Executive. This is just one more of those. So I undertake to keep the House informed as to how we are progressing things should we be in the unhappy position of not having a power-sharing Executive when we come back after the conference season. In the meantime, I again thank noble Lords for their support of this statutory instrument and commend it to the House.

Motion agreed.