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To my hon. Friend and me there is a world of difference, but, to the Government, I suspect that there is not. The Government prefer to work on the basis of statute and to exclude, rather than to
include. They like things to be exclusive, rather than permissive. I support the development of common law that my hon. Friend describes, the good sense of the judiciary and the ability of the common man to use the courts effectively. However, that will be excluded under clause 7, which is why I find it objectionable. I thus hope that my hon. Friend the Member for Argyll and Bute will press amendment No. 15 to a Division.
Sammy Wilson: If that amendment is pressed to a Division, I make it clear that we will support the Government. The Minister might look a little surprised by that, but he should not. Let me explain some of the reasons behind our position.
Lying behind the debate is the implication that if a decision is taken to issue a certificate so that a case will be considered by a non-jury courtI think that this is the point that the hon. Member for North Down (Lady Hermon) was trying to get ata defendant will somehow or other have to face a lesser standard of justice than that available in a jury court. Nothing could be further from the truth. Although the hon. Lady challenged the hon. Member for Foyle (Mark Durkan) twice, I noticed that he studiously avoided answering her question because he knew that he could not stand by any claim that a non-jury court gives a defendant a lesser standard of justice than a jury court.
Mark Durkan: The logic of the hon. Gentlemans argument is that we should just do away with jury trials altogether. Why have jury trials if there is no difference in the standard of justice, if people are saying that non-jury trials are as good as jury trials, and if there is no desire for the principle and tradition of jury trials? If anything, the hon. Gentleman is further alarming those hon. Members who are worried that the provision represents the thin end of the wedge. The logic of his argument is that if there is no difference, all trials should be non-jury trials.
Sammy Wilson: The hon. Gentleman knows that we made it clear on Second Reading that we were relaxed about continuing non-jury courts in Northern Ireland and, indeed, that given the circumstances in Northern Ireland, we believed that the Government were probably moving too fast towards doing away with non-jury courts. Indeed, the hon. Gentlemans colleague, the hon. Member for Belfast, South (Dr. McDonnell), as a member of the Northern Ireland Affairs Select Committee, endorsed a report by that Committee indicating that we should not move quickly away from such trials because exceptional circumstances still remained.
Mark Durkan: The hon. Gentleman might remember that a point about dealing with organised crime was raised in Committee, and that the Northern Ireland Affairs Committee says that adequate provision is needed to combat such crime. In our view, there is adequate provision under the Criminal Justice Act 2003, and the matter depends on application to the court.
Sammy Wilson: I will come on to that point in a moment or two. However, I first want to establish that the fact that the DPP issues a certificate for a non-jury trial does not in any way reduce a defendants ability to have a fair trial. Indeed, if we examine well-publicised cases of miscarriages of justice, we find that they took place not in non-jury courts, but in jury courts. We must establish that fact at the outset because it relates to the underlying theme behind the arguments made by those who wish to change the Bill.
The reason for going for a non-jury trial is to ensure not that a defendant does not get a fair trial, but that the administration of justice is not impaired in any way by interference with a jury. The whole thrust behind keeping non-jury courts is to ensure that justice is done, rather than to deny justice to a defendant. The purpose of the process is to ensure that society is properly protected from those in Northern Ireland who have shown over the yearseven in recent yearsthat they are not above tampering with, intimidating, or trying to influence a jury.
Mark Durkan: May I remind the hon. Gentleman that, in Committee, he supported an amendment tabled by the hon. Member for North Down (Lady Hermon) that would have allowed courts to draw an inference from the fact that a certificate had been issued, even though there was no supporting evidence? He wanted a judge in a non-jury court to be able to draw such an inference, but surely a defendant in such a case would receive a lesser quality of justice than a defendant in a jury court.
Sammy Wilson: The hon. Gentleman talks about a judge drawing an inference, but if we were to go down the route proposed by the hon. Member for Foyle and the Liberal Democrats and a judge were able to make a decision, such a situation could arise.
A second implication underlying the arguments made by those who support amendments Nos. 5 and 15 is a suggestion that the DPP will rush towards non-jury trials. Nothing could be further from the truth. If anything, the DPP has been trying to de-schedule as many offences as possible over the years in Northern Ireland to the point that only 49 cases in 2005 went through the system as non-jury cases. The push in the DPPs office is to move away from such trials, so the idea that the DPP wants to hang on to the power and does not want it challenged in any way because it suits him, as the prosecution, to have non-jury courts is not even supported by the evidence. The evidence shows that the DPP wants to move away from such trials. On those two grounds, we have fewer concerns than other hon. Members, so we will not support the amendments.
I will outline what I believe would happen if we accepted either amendment. If a judge were to review the DPPs decision, why would it be necessary for the DPP to make a decision in the first placejust let the judge make it? The hon. Member for Tewkesbury (Mr. Robertson) said that it would not be fair for the DPP to decide the mode of trial when he was carrying out the prosecution. However, if a judge had the ability
to review the DPPs decision, the person who might eventually make the judgment could be taking a decision on the mode of trial. Some people would argue that that is equally unfair, or maybe even less fair.
Mr. Laurence Robertson: In the amendments that I tabled, which were not selected, I called for the Lord Chief Justice of Northern Ireland to make that decision. I entirely agree with the point that the hon. Gentleman is making.
I return to the point that I made earlierI do not believe that the DPP will rush for non-jury trials. Even under the Bill, the DPP will be able to recommend non-jury trials only if there is evidence, first, that people are associated with paramilitary or criminal organisations and, secondly, that that association is likely to lead to the impairment of the administration of justice. So a high threshold to allow for such trials already exists, against the background of an unwillingness on the part of the DPP to go down the route of non-jury trials in the first place.
Mark Durkan: I thank the hon. Gentleman for giving way again. I remind him yet again what we were told from the Dispatch Box by the Secretary of State on 13 December. He envisaged the DPP using the powers on the basis of information that he had received from the intelligence services. The Secretary of State said that the DPP must be able to go to a judge and say, Heres a certificate for a non-jury trial because the case might compromise issues of national intelligence. What has that to do with protecting against the impairment of justice? It is an entirely different consideration, but it is the first issue to which the Government resorted when tested.
Sammy Wilson: The hon. Gentleman totally misunderstands or deliberately seeks to misrepresent the point that is being made. The certificate will be issued on the basis of intelligence. How, for example, is it known that the defendant may well be a member of a paramilitary organisation and that his associates intend to intimidate the jury? Very often that will become known as a result of intelligence, hence the input from the intelligence services into the decision whether to issue a certificate.
If the decision to issue a certificate was open to judicial review, we can be sure, given that the decision was probably based on intelligence, that anybody facing such a certificate would immediately instruct his lawyers to apply to the court for judicial review. For what purpose? To try and find out what intelligence there was about him, where it came from and who provided the information.
That is exactly the reason that the Government have givenand the soundest reason, because there are already examples of itfor not providing such an opportunity in the system for those who would seek to use the issuing of a certificate as a means of trawling to find out what the intelligence services know about them or the organisations with which they are associated. To me, that is a far greater threat than the possibility that
someone may have to face a non-jury triala trial in which they will get a fair hearing anyway.
Mr. Bone: Is not the crux of the matter, as the hon. Gentleman says, the balance? There is no risk to somebody standing trial without a jury, but there is a greater risk of jury tampering the other way. In Committee the Minister made it clear that we are talking about only a handful of cases, which he expects to decline in number over the years.
Mr. Heath: I understand why the hon. Gentleman might argue against the process of judicial review, but I cannot understand why he might argue against the parallel provisions in the Criminal Justice Act 2003 for the application to the judge by the DPP for a case to be tried without a jury, which at least provides a level of judicial control. Where is the mischief in that, in terms of all the arguments that he is putting before the House?
Sammy Wilson: There is no mischief in so far as that adds another step to the process, but given that the decision will be based on intelligence and will still allow the possibility of a trial by a non-jury court, which is equally valid and has the same safeguards as a jury court would have, I believe that it is a non-essential step. It is also a step in which the judiciary do not want to interfere, as we know from the Shuker case.
Lady Hermon: Perhaps I could assist the hon. Gentleman. It is a rare event for me to come to the assistance of the hon. Member for East Antrim (Sammy Wilson), but I will put it on the record. He will recall from Committee debate that the Criminal Justice Act 2003 operates in a completely different sphere. It operates only when there is a real and present danger of jury tampering. The Bill deals with four conditions set out in clause 1, including membership of a proscribed organisation, plus the key risk to the administration of justice. There is an essential and fundamental difference between the 2003 Act and the Bill. That might help the hon. Gentleman.
If, every time a certificate is issued, it is challenged, and given that it will probably have been issued on the basis of intelligence that may become apparent during a judicial review, the easy way out, which we know will be taken by the DPP, is to go for a jury trial, with all the attendant difficulties and all the attendant dangers that the jury could be tampered with and that justice could be impaired. For that reason we will support the Government. We believe that paramilitary groups still present a danger through their influence on juries, so the safeguards are necessary.
I begin with the context in which the Bill is passing through the House and we are considering these issues. In his remarks my hon. Friend the Member for Foyle (Mark Durkan) almost blamed the Government for the fact that things are improving. They are improving, as evidenced by the reduction in the number of Diplock trials. In 1987 there were 354 Diplock trials, and in 2005 the number had fallen, as the hon. Member for East Antrim (Sammy Wilson) pointed out, to 49. That is why, in the Bill, we are reversing the presumption in favour of trial by jury, rather than the current system in which, if someone is charged with a particular offence, the presumption would be a trial by judge alone. We are reflecting the changing circumstances and the more normal conditions by reversing that presumption. But the fact that we can do that, the fact that we can be more optimistic about the position in Northern Ireland, is not a time for naivety, because some cases still need to be tried by judge alone, and that is why we are bringing forward the Bill.
Mark Durkan: The Minister misrepresents the legislative position. Last year the House passed legislation that repealed Diplock courts. Those were to end in July 2007, possibly renewable for one year, but one year only, to July 2008. Diplock courtsno more; no-jury trialsno more. That is what the Government legislated for. This measure reverses that and provides for continuity Diplock courts to be available permanently on the say-so of the DPP.
Paul Goggins: My hon. Friend misrepresents the Government, because we made it clear at the time when the statement to which he refers was made that this was an issue that would require further thought, and we have given the matter further thought. Indeed, we have consulted on that, and it is as a result of those consultations and further deliberations that we come now with a proposal to reverse the presumption in favour of trial by jury but in those few cases that will still require a trial by judge alone to ensure that there is the facility within the criminal justice system in Northern Ireland to deliver that. We say yes to a very high test and yes to a certificate by the DPP, but in a way that will enshrine a proper system of justice in which we can ensure that for those jurors who might be subject to intimidation, the risk that justice would not be done, that the administration of justice would be undermined, will not be taken.
It is true that the DPP, when considering against that high test whether to issue a certificate, will have to consider information that may remain privateit may be intelligence; it may be information from the police about a pending prosecution or about further investigations. Yes, there may be some information that cannot be shared. That is why we have rehearsed these arguments in Committee and that is why we have chosen the route that we have where we do not have full disclosure within a full-blown judicial process of all the information. One of the reasons whya point made repeatedly in Committee by the hon. Member for East Antrimis that if we do not have this measure in place, there is a danger that intelligence will not be shared at that decision-making point, and that therefore trials will go ahead with a jury that should not go ahead because of all the attendant risks. We must ensure that justice is done in every case, including
in those cases where there is a real risk that the administration of justice would be undermined.
Mr. Alan Reid: I appreciate the Ministers concerns that intelligence could get out into the open, but would he not accept that under amendment No. 5, the intelligence sources would not be made public, because the judge would decide on the basis of written submissions whether the trial should be before a judge or by jury? Under amendment No. 5 that risk does not apply.
Paul Goggins: If the hon. Gentleman will allow me, I will come on to amendment No. 5 in a minute, but I want to deal with one other point before I do so, and that is the issue of the Lord Chief Justice and the view of the judiciary in Northern Ireland on this matter. I know that the hon. Member for Tewkesbury (Mr. Robertson) has pressed me on this before and he raised the matter again today, but the hon. Member for North Down (Lady Hermon), reinforced by the hon. Member for East Antrim, made the point that the Lord Chief Justice has made it clear that this kind of decision is not one in which the judiciary should be routinely involved. It is one that is quite appropriate for the DPP, who every day has to make decisions about mode of trialwhether a case should go to the Crown court or the magistrates courtand has specifically said that this kind of decision should not be subject to the full panoply of judicial review. The view of the judiciary, which the House should take seriously, is clear on the issue: the decision is an appropriate one for the DPP and is not one that the judiciary should be routinely involved in.
Mr. Laurence Robertson: Given that we are talking about trials going ahead without juries, which is unusual, that is a political decision. It is not one for the judiciary to decide; it is for politicians to decide. If we are saying that in certain circumstances trials should go ahead without juries, surely it is for us to say who should make that decision. It is not right that the person responsible for bringing the prosecution should decide whether there is a judge or whether there is a jury. It is not his role to do that.
Paul Goggins: I accept the hon. Gentlemans point, but in the end it is for us here to decide which is the appropriate method of making the decision. However, we need to take cognisance of the advice that comes from the Northern Ireland judiciary. The Lord Chief Justice made that clear in his judgment. The hon. Gentleman is right, but in the end it is a decision for us in the limited number of cases where such a decision may need to be made.
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