Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2015

Lord Dunlop Excerpts

Wednesday 22nd July 2015 Lords Chamber

Moved by

[Lord Dunlop]

That the draft order laid before the House on 4 June be approved.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Scotland Office (Lord Dunlop) (Con)]

My Lords, under this order, trials without a jury can take place in Northern Ireland for a further two years from 1 August 2015. Without this order, the current provisions will lapse on 31 July. This is the fourth such extension of these provisions. Noble Lords will understandably want to assure themselves that a further extension is justified.

As Northern Ireland continues its progress towards peace and stability, the proposal to extend the system of non-jury trials is not made lightly. We continue to face a severe threat from dissident republican terrorism in Northern Ireland; there remains a minority of committed terrorists who seek to undermine our progress using lethal violence and intimidation. The explosion of a device in Lurgan last Saturday is the eighth national security attack in Northern Ireland this year. It was an attempt to murder police officers who serve the community with bravery and dedication, and it demonstrates once again the severity and persistence of the threat we face.

We all want to see progress towards normalisation in Northern Ireland. We must recognise, however, that Northern Ireland is still in a unique situation. The non-jury trial provisions in the 2007 Act continue to provide an appropriate response to a very small number of cases. Without such provisions, trials in Northern Ireland would not be safe from disruption, and justice would be put at risk in the most serious of cases.

I can assure the House that the Government would move to end the exceptional system of non-jury trials in Northern Ireland as soon as it was no longer necessary. However, this should happen only when the security situation allows. Regrettably, we are not there yet. Police, prison officers and military personnel remain the principal targets of attacks for violent dissident republican groupings. Attacks such as the one in Lurgan at the weekend demonstrate a blatant disregard for human life and put the wider public in danger.

Noble Lords will be aware that such attacks are not isolated events. In June an explosive device was placed under a police officer’s car in Londonderry in another attempt to maim or kill. Earlier in the year a postal improvised explosive device was sent to the Police Service of Northern Ireland headquarters, which could clearly have caused harm to postal workers. A further device exploded at the Probation Board offices in Londonderry in April and the remains of another exploded device were also found on the Belfast to Newry railway line.

Over the last year there has been a rise in paramilitary-style attacks by both republican and loyalist groupings as a means of exerting fear and control within their own communities. In-fighting also persists within loyalist paramilitary organisations in Northern Ireland, remaining a cause for concern for the wider community. Threats and acts of violence towards police and public bodies demonstrate continued attempts at intimidation of individuals and communities, and under these circumstances we must not allow the criminal justice system to be put at risk.

I will now turn to the process for obtaining a non-jury trial. The Director of Public Prosecutions for Northern Ireland issues a certificate which allows for one. The DPP can issue a certificate for a non-jury trial only if, first, he suspects that one or more of four statutory conditions, which are laid out in Section 1 of the Justice and Security (Northern Ireland) Act 2007, are met.

Condition 1 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 when it was a proscribed organisation, whose activities are connected with the affairs of Northern Ireland. Condition 2 is that the offence was committed on behalf of such a proscribed organisation, or such a proscribed organisation was otherwise involved. Condition 3 is that an attempt has been made by or involving a proscribed organisation connected with Northern Ireland to prejudice the investigation or prosecution. Condition 4 is that the offence was committed as a result of, or in connection with, religious or political hostility. Furthermore, the DPP must be satisfied that, in view of one or more of these conditions being met, there is a risk that the administration of justice might be impaired if a jury trial were to be held.

There is a clear distinction here between this system and the pre-2007 Diplock court arrangements—a term which has previously been used erroneously to describe the current system. The Diplock system saw a presumption that all scheduled offences would be tried by a judge alone. Today, there is a clear presumption that jury trial will take place in all but the most exceptional cases.

Certificates are issued only in a very limited number of cases. So far in 2015, the DPP has issued just nine certificates for non-jury trials. During 2014, 18 certificates were issued. To put this into context, in 2014 only 1.7% of all Crown Court cases in Northern Ireland were conducted without a jury. The figure so far for 2015 is 0.7%.

In keeping with the approach followed in 2013, the Secretary of State conducted a targeted consultation to gather views from 35 interested groups and individuals, including representatives of the main political parties in Northern Ireland, independent reviewers, human rights and other NGOs, security forces, and practitioners in the criminal justice system. In total 19 responses were received: five were supportive of extension; three were opposed; and 11 expressed no clear preference but did not object.

The Secretary of State decided to seek an extension of the provisions, having considered all the responses received, in conjunction with her view of the security situation in Northern Ireland and the potential for disruption of criminal trials. It is important to note that there is no limit in the legislation on how many times the provisions can be extended. However, given the understandable concerns around the repeated extension of these provisions, and mindful of previous calls for wider consultation, the Secretary of State has asked officials to prepare a public consultation ahead of the next expiry in 2017. This will inform a wider review of non-jury trials in Northern Ireland and how certificates are issued and may be challenged. This should not be perceived as the Government questioning the necessity or validity of the provisions for Northern Ireland’s current situation; rather, it is a positive commitment towards openness and a desire to consider the views of the wider public on provisions that would, by 2017, have been in operation for 10 years.

Let me again emphasise that the Government remain fully committed to tackling the threat from violent paramilitaries and keeping the people of Northern Ireland safe and secure. This includes doing all that we can to ensure the effective administration of justice. The noble Lord, Lord Carlile, the independent reviewer of national security arrangements in Northern Ireland, noted in his response to the Secretary of State’s targeted consultation in 2015 that,

“there remains clear evidence of residual dissident activity with some technical ability, access to weapons and explosives, and the ambition to undermine the democratic process in NI”.

The noble Lord goes on to say:

“It is rational and logical to believe that dissidents would strive to undermine criminal trials of their friends and confederates. This would be likely to include the intimidation of jurors - a form of perverting of the course of justice that can be formidably difficult to detect”.

It is clear that the non-jury trial system is not being overused and that it remains necessary for the very small number of cases in which it is applied for the administration of justice in Northern Ireland. I commend the order to the House.

[Lord Bew (CB)]

My Lords, I rise briefly, with a heavy heart, to support this approval Motion. I am very grateful to the Minister for the way in which he has explained the context fully and fairly. I would add only one consideration, which is that another destabilising element in the recent situation was the large paramilitary display by the INLA at the weekend in Derry. It contributes to a picture where, unfortunately, it is necessary to maintain this particular provision. I am very grateful to the Minister for saying that there will be a wider consultation next time out.

I have been speaking on these Motions since my arrival in this House, and I would love to think that, 10 years in, next time out the Minister will have better news for us. I support the approval Motion today.

[Lord McAvoy (Lab)]

My Lords, I welcome the Minister to his brief. Let me place on the record that we appreciate the efforts that have been made by him in consultation. I echo what the noble Lord, Lord Bew, said—it is with a heavy heart but nevertheless a necessary attitude towards the legislation. The shadow Secretary of State for Northern Ireland, Ivan Lewis, was consulted on these measures. Again, that demonstrates the bipartisan approach to issues in Northern Ireland, which is absolutely necessary. That was before the election but we are still very grateful for that.

We all recognise that non-jury trials are not an ideal part of the justice system. They are currently necessary in a society emerging from conflict. The measures will be used in only a small number of cases—as stated, fewer than under the previous Diplock system, and under very specific circumstances, as outlined by the Minister. The Minister said that the measures were justified, and we agree. The situation is unique, and we agree wholeheartedly. We accept assurances about future monitoring of the figures.

The noble Lord mentioned examples of recent behaviour in Derry/Londonderry and clearly outlined the procedure. We support the Government on that. These measures are an improvement on Diplock. The figures need to be monitored. We also wholeheartedly welcome the public consultation, as mentioned also by the noble Lord, Lord Bew. That is a positive measure because the situation in Northern Ireland will have to be resolved within the political process.

We need to make political progress in Northern Ireland through implementing the Stormont House agreement in full to better deal with the underlying tensions that make such differences in the justice system necessary—they are necessary, unfortunately. Collectively, we need to make sure that there is no let-up in the process in Northern Ireland. The Secretary of State has to be seen to be active in a bipartisan way, backed up by the shadow Secretary of State for Northern Ireland. Northern Ireland is not a place where one can take one’s eye off the ball. We must constantly reiterate the Stormont agreement and the need for peace and progress. Having said all that, clearly the measures are justified and have our support.

[Lord Dunlop]

I thank the noble Lords, Lord Bew and Lord McAvoy, for their support. Non-jury trial is an exceptional system used only in very limited circumstances. There is rightly a presumption for jury trial in all cases. The security situation in Northern Ireland has not significantly improved since the 2013 extension. The situation is covered by the conditions in the 2007 Act, which remain relevant for the administration of justice in Northern Ireland. In view of the continuing potential for juror intimidation and disruption of criminal trials, I commend the order to the House.

Motion agreed.