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Session 2006 - 07 Publications on the internet General Committee Debates Justice and Security (Northern Ireland) |
Justice and Security (Northern Ireland) Bill |
The Committee consisted of the following Members:Chris
Shaw, Committee
Clerk
†
attended the Committee
Public Bill CommitteeTuesday 16 January 2007(Morning)[Sir Nicholas Winterton in the Chair]Justice and Security (Northern Ireland) Bill10.30
am
The
Chairman:
I welcome all hon. Members to the first sitting
of the Committee on the Justice and Security (Northern Ireland) Bill. I
am totally confident that it will be a workmanlike, constructive and
agreeable Committee throughout the whole of this stage of the Bill. I
am a traditionalist but I also believe in comfort, so if, because of
the temperature in the room or their own temperature, hon. Members wish
to remove their jackets discreetly and to put them on the rear of their
chair, I am happy for them to do so. Those are the domestic matters, as
it were.
I remind the
Committee that there is a money resolution in connection with the Bill.
Copies are available in the Committee Room. I would like also to remind
hon. Members that as a general rule adequate notice must be given of
amendments. My co-Chairman, Janet Anderson, and I do not intend to call
starred amendments.
Will hon. Members please ensure
that mobile phones and all other electronic devices, pagers and so on
are turned off or are put on silent mode? That is something that I
personally feel strongly about.
We come first to the programme
motion. Debate on the motion may continue for up to half an
hour.
That—
(1)
the Committee shall (in addition to its first meeting at 10.30
a.m. on Tuesday 16th January)
meet—
(a) at 4.30 p.m. on
Tuesday 16th January;
(b) at
9.00 a.m. and 1.00 p.m. on Thursday 18th
January;
(c) at 10.30 a.m. and
4.30 p.m. on Tuesday 23rd
January;
(d) at 9.00 a.m. and
1.00 p.m. on Thursday 25th
January;
(2) the proceedings
shall be taken in the following order: Clauses 1 to 8; Schedule 1;
Clause 9; Schedule 2; Clauses 10 to 23; Schedule 3; Clauses 24 to 37;
Schedule 4; Clauses 38 to 45; Schedule 5; Clauses 46 and 47; Schedule
6; Clauses 48 to 51; new Clauses; new Schedules; remaining proceedings
on the Bill;
(3) the proceedings
shall (so far as not previously concluded) be brought to a conclusion
at 4.00 p.m. on Thursday 25th
January.
I shall not
detain the Committee for long. We look forward to the prospect of hard
work and comfort under your guidance in the Chair, Sir Nicholas. We
certainly look forward to having you in the Chair for our
deliberations.
I
thank all the Opposition parties for our constructive discussions on
the motion and the support that they have shown for it. As members of
the Committee will see, we are scheduled to deliberate on
the Bill over a period of four days. That will be ample time for us to
deliberate in full on all that is before us. There are certainly no
knives planned, which I know you will strongly approve of, Sir
Nicholas.
The way
that I have always approached deliberations in Committee is to listen
carefully to all the arguments, to explain clearly the
Government’s position as best as I can and, if there is merit in
the arguments, to consider always whether there are things that we can
do to improve the Bill. That is the correct spirit of deliberation, I
think, and the way in which I shall proceed.
I want to make two further
points. First, there is a starting point of consensus in the Committee
about the fact that we are moving towards more normal times in Northern
Ireland. Indeed, the fact that we are bringing this Bill before the
Committee is an indication of the progress that is being made. It is
also an indication that some risks remain in Northern Ireland, not
least from dissident groups. That is why some of the proposals are
necessary.
Secondly,
we are having our deliberations in Committee at an extraordinarily
important time for the people of Northern Ireland. As we have our
discussions, other discussions will continue in Northern Ireland with a
view to the restoration of devolution. Within a few days of the end of
our deliberations, assuming that we accept the programme motion, the
Assembly will be dissolved, we will move into an election period and
there will be an election on 7 March. An Executive must be restored by
26 March. I believe that that timetable can work, but I reiterate what
my right hon. Friend the Secretary of State for Northern Ireland said
yesterday in a letter to all parties. The date of 26 March is not
negotiable, and nothing will come before the House, in this Bill or any
other legislation, to change that date.
It is an important time. The
context is very real for Northern Ireland. I am sure that we will give
proper consideration to such an important
Bill.
Mr.
Laurence Robertson (Tewkesbury) (Con): I welcome you to
the Chair, Sir Nicholas. Having served under your chairmanship before,
I know exactly what delights await us.
As the Minister said, four days
should be ample time to consider the Bill. I certainly hope so,
although one can never be certain with Northern Ireland legislation.
Although the Opposition officially oppose such guillotine motions, I
believe that on this occasion we should have enough time.
Like the Minister, I hope that
the Assembly will be up and running shortly, not because important
issues have to be dealt with in Bills such as the one before us, but
because, as all hon. Members know, much Northern Ireland legislation is
enacted through the many statutory instruments that come before
Committee. Indeed, one was debated last week, one is being debated
tomorrow, and I believe that there are two next week. It is a most
unsatisfactory way to govern a part of the United Kingdom. I hope that
the parties in Northern Ireland can find their way forward.
The Minister says
that the deadline of 26 March is not negotiable. I remind him that that
was said about 24 November, but given the Prime
Minister’s
shortening tenure of office, I think that 26 March will be a definite
date on this occasion.
I look forward to debating the
Bill. In general, we do not have a problem with it, although we shall
want to explore one or two issues and to seek the Minister’s
guidance on one or two matters. In general, however, I am sure that our
debates will be constructive. I am heartened by the fact that the
Minister said that he will take on board what is said in Committee. It
is typical of him to listen to the debate, as do all Northern Ireland
Ministers, and their officials are accommodating to the Opposition.
That usually leads to a high standard of
debate.
Lembit
Öpik (Montgomeryshire) (LD): May I be the next, Sir
Nicholas, to welcome you the Chair? I thank you for taking the time to
preside over our discussions. I know from past experience that you are
an ambassador for constructive deliberation, and I shall do my best to
live up to your expectations for positive engagement with the
Government and others.
I thank the Minister for saying
that he will listen to our suggestions. I have no doubt that on this
occasion at least the Government will accept some Opposition
amendments. Ultimately, that will be the best proof that the Minister
has broken the mould of the monolith that we have come to know as the
Northern Ireland ministerial team.
Finally, I have no problem with
the timetable. I may not always share the Minister’s optimism
about Government timetables being cast in stone. The good news is that
if we are not able to complete our activities in the time allocated,
the Minister merely has to say that all the conditions for an extension
have been met and we can continue for up to eight further years, as
happened with the peace process itself.
I hope that we can finish our
work within the eight sittings available. The Bill is not profoundly
controversial. I therefore hope that the relatively minor suggestions
that the Liberal Democrats wish to make will be regarded in a positive
light, as we intend.
Mark
Durkan (Foyle) (SDLP): I join other hon. Members, Sir
Nicholas, in welcoming you to the Chair. Unlike the hon. Member for
Tewkesbury, my party and I have deep misgivings about a number of the
Bill’s provisions, because they reverse clear and unambiguous
commitments made by the British and Irish Governments in the joint
declaration of 2003. Nevertheless, the depth of those misgivings is not
related in any way to the time that we will take to consider the Bill,
so there is no issue with the fact that we have eight sittings. I am
sure that our concerns will be no more persuasive to hon. Members if we
had more sittings. We all know the Government’s form on such
occasions.
The hon.
Member for Montgomeryshire said that he hopes that the Government will
be more accommodating to reasonable amendments from other parties. With
previous Bills, the Government, in Committee Rooms and with the support
of their Back Benchers, have resisted all sorts of reasonable
amendments to unreasonable legislation, most typically with the
Northern Ireland (Offences) Bill. Hon. Members witnessed the Government
withdrawing the legislation that they said was absolutely
essential and without which the sky would fall in. They did so not
because of what hon. Members said in this House and in the proceedings
of this House, but because Sinn Fein finally caught on about the
implications of the Bill and withdrew its support, and so the
Government’s case collapsed.
There is the possibility that
in days to come Sinn Fein will wake up to the implications of this
Bill, because it will remove things that they claim that they
have—such as the repeal of emergency provisions—and
reverses commitments given by the British Government in the joint
declaration of 2003. The question for many of us is whether Sinn Fein
was in on the provision of the new measures or whether it has slept in.
If it has just slept in, when it wakes up will we find the Government
coming to the House and telling us all a different story? That has been
their form before.
Question put and
agreed to.
That, subject to
the discretion of the Chairman, any written evidence received by the
Committee shall be reported to the House for publication.
This is the first time that I
have moved such a motion, but I am delighted to do so. Hon. Members
will be familiar with receiving copious briefings from organisations
and other outside bodies on the matters before us. The opportunity to
place those formally on the record and for that evidence to be
published is a sensible step forward. It helps to open democracy and I
warmly welcome it.
Question put and agreed
to.
The
Chairman:
Copies of any memorandums that the Committee
receives will of course be made available in the Committee Room. Papers
relating to a briefing from the Northern Ireland Human Rights
Commission will be available on the table of this Committee Room this
afternoon.
<++++>
Clause 1Issue
of
certificate
Lembit
Öpik:
I beg to move amendment No. 1, in
clause 1, page 1, line 5, leave
out from beginning to ‘any’ in line 6 and
insert
‘The
prosecution may apply to a judge of the Crown Court
for’.
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 10, in
clause 1, page 1, line 5, leave
out ‘Director of Public Prosecutions for’ and insert
‘Lord Chief Justice
of’.
Amendment
No. 2, in
clause 1, page 1, line 7, leave
out
‘is’.
Amendment
No. 27, in
clause 2, page 2, line 36, at
end insert—
‘(1A) Where
information becomes available to the Director of Public Prosecutions
after arraignment such that he would have issued a certification under
section 1(2), subsection 1 above does not
apply.’.
Amendment
No. 28, in
clause 2, page 2, line 38, leave
out from ‘time’ to end of line 40.
Clause 2 stand
part.
Amendment No.
12, in
clause 6, page 5, line 16, leave
out ‘authority making them’ and insert ‘Lord Chief
Justice of Northern
Ireland’.
Amendment
No. 13, in
clause 7, page 5, line 26, leave
out ‘Director of Public Prosecutions for’ and insert
‘Lord Chief Justice
of’.
Amendment
No. 14, in
clause 7, page 5, line 30, leave
out ‘Director’ and insert ‘Lord Chief Justice of
Northern
Ireland’.
New
clause 1—Procedure for application under section
1
‘(1) An application under
section 1 for any trial on indictment of a person charged with one or
more indictable offences (“the defendant”) must be
determined by the court before the arraignment
of—
(a) the defendant,
or
(b) any person committed for
trial on indictment with the
defendant.
(2) The parties to
any hearing at which an application to which this section applies is to
be determined must be given an opportunity to make representations with
respect to the
application.’.
10.45
am
Lembit
Öpik:
As long as we exercise self-restraint in how
we present our arguments, we can probably move through the Bill quite
fast. That is not to say that the debate is to be insignificant,
though.
Amendment No.
1 is intended to establish why it is the Director of Public
Prosecutions for Northern Ireland who will take the decision on whether
a trial is to be conducted with or without a jury. Amendment No. 2 is
simply a grammatical amendment consequential to that.
In other pieces of legislation
that make provision for non-jury trial it is the court that ultimately
decides whether the trial is to be conducted with or without a jury, as
is the case in section 44 of the Criminal Justice Act 2003. It allows
the prosecution to apply to the court for a trial to be conducted
without a jury if there is a danger of jury tampering. As that
provision extends to Northern Ireland, would it not make sense for the
same type of procedure to apply in all circumstances where it might be
necessary to conduct a trial without a jury? Why have the Government
made the distinction between cases where there is a danger of jury
tampering and cases that relate to offences carried out by proscribed
organisations? Surely, there is likely to be an overlap. It seems
highly probable, in fact, that jurors considering terrorist cases could
be intimidated. In which case, which procedure should be
used—the certification measure outlined in the Bill or the
measure in the 2003 Act? In essence, two pieces of legislation are
attempting to do the same thing but in a different
way.
As we said on
Second Reading, we are pleased that the presumption will now be in
favour of jury trial in terrorist cases in Northern Ireland. That is
long overdue and we are pleased that the Government have attempted to
go some way to righting that wrong. However, for there to be confidence
that there will be a real change, the processes need to be open and
transparent. Amendment No. 1 is particularly important because in clause
7 there is no right of appeal against a decision of the DPP. When we
reach that clause, I will make it clear to the Minister that it is the
one part of the Bill that is a deal-breaker, and we will vote against
the Bill on Third Reading if the Government do not alter the
situation.
For us,
and I presume for the Social and Democratic Labour party, although I
will obviously leave it the hon. Member for Foyle to make his own
representations, there is a consequential element to clause 2. Under
amendment No. 1, the prosecution would apply to a court for a non-jury
trial and no certificate would lodged with the DPP, so clause 2 would
not be needed. As the SDLP has objected entirely to clause 1, I imagine
that it would agree that there is no need for clause
2.
New clause 1 is
consequential on us leaving out clause 2. It puts in place a procedure
for the prosecution to make an application to the court for a trial to
be held without a jury. That is completely logical on the basis of the
2003 Act and is completely consistent with attempting to normalise the
justice procedures in Northern Ireland. It also allows parties to the
hearing at which an application is determined the opportunity to make
representations in respect of that application. That ties in with
clause 7, and we will discuss our objections to that clause in detail
later. However, if clause 7 is allowed to remain in the Bill, the new
clause would at least allow representations to be heard. If there is to
be no ability to appeal, at the very least the parties to an
application should be able to make
representations.
I
hope I have made my points reasonably succinctly. However, they do need
an explicit response from the Minister. I do not see that there can be
any objections to new clause 1 even if the Government are intent on
ignoring our concerns about clause 7. I look forward to hearing the
Minister’s
views.
Mr.
Robertson:
I shall speak to amendment No. 10 and
consequential amendments Nos. 12, 13 and 14, which although worded
slightly differently are not entirely inconsistent with amendment No.
1, which is why they are grouped together.
The history of trial by jury
has formed a central part of law in this country; we are entitled to be
judged by our peers. We should not discard that without very careful
thought. It is said that there have been special circumstances in
Northern Ireland and that it has been difficult to find 12 people to
pass judgment. Indeed, it is felt that many people have escaped justice
because of the intimidation not only of jurors but of potential
witnesses. If we accept that, then another way of looking at it is to
say that to have non-jury trials in such circumstances will add to the
resentment that is felt by many in Northern Ireland. That would be very
unfortunate.
Therefore, I welcome this small
step forward, because there is now a presumption that there will be a
jury trial whereas previously the presumption was that there would not
be one in certain circumstances. My concern is that the certificate is
to be issued by the Director of Public Prosecutions. This is not a
personal matter, but it strikes me as a little incestuous if the
person responsible for carrying out the prosecution is also to determine
the type of court that will try the case. It seems far better to take
the matter to a neutral person—the Lord Chief Justice of
Northern Ireland, as we
suggest.
I have not
heard the Government’s explanation for the measure, but it is
not very judicial that the person charged with bringing the prosecution
can, in effect, make up his own rules. That is why I propose that the
Lord Chief Justice should issue the certificate, and I look forward to
hearing the Minister’s explanation as to why he has not gone
down that road.
Lady
Hermon (North Down) (UUP): I, too, am delighted that we
are sitting under your chairmanship, Sir Nicholas. Having had the
experience in the past, I look forward to repeating it
today.
I am confused
why amendments Nos. 27 and 28 appear in the group of amendments
attached to clause 1, as they relate to clause
2.
The
Chairman: Order. The hon. Lady will note that I have selected
clause 2 stand part as part of this debate. I am sure that if she takes
that into account she will understand why her amendments—which
do indeed relate to clause 2, but are integral to the debate on clause
1 as well—have been
selected.
Lady
Hermon:
I begin with a word of caution about the welcome
that has been given to the Bill, particularly by the hon. Member for
Tewkesbury, who suggests involving the Lord Chief Justice. We have only
one Lord Chief Justice in Northern Ireland. Last year, although the
number of Diplock non-jury trials decreased, the average reached 60 per
year, according to a consultation paper published in August 2006. That
is more than one per week. That figure comes from notes kindly provided
by the Northern Ireland Office on the replacement arrangements for the
Diplock court system. Those are lengthy, complex trials, and to suggest
that the Lord Chief Justice has the spare time and capacity to
adjudicate on whether we should have non-jury trials is illogical. It
is a proposal to which I could not possibly agree.
My amendments are key to the
extension of the scheme of non-jury trials. I was sorry to hear the
opening remarks of the Minister, for whom I have enormous regard. His
track record in the Home Office is second to none, his appointment to
the Northern Ireland Office was welcomed on all sides and he has lived
up to his reputation. However, it would have been helpful to the entire
Committee if, since the Minister has responsibility for security, he
could have enlightened the Committee about dissident republicans whom
we know still to be out there and who have potential to do enormous
damage. That has been mentioned time and again by the Independent
Monitoring Commission. The IMC has also highlighted the fact that none
of the loyalist paramilitary organisations that are proscribed and in
some cases specified have begun any formal decommissioning at all. I
hope that they will, over the coming weeks, but the problem is still
there, and information on them would have been welcome
too.
Will the Minister
also reflect on the fact—because that is what it is—that
at least two al-Qaeda suspects
have already been arrested and charged in Northern Ireland in Belfast?
It would help the Committee if he would take the opportunity to explain
why Northern Ireland could easily be the soft underbelly for the rest
of the United Kingdom, in that terrorists can arrive at airports and
ports in the island of Ireland, in the Republic, and make their way
into Northern Ireland through an unmanned border and hence to the rest
of the United Kingdom. When we discuss non-jury trials we should focus
not just on dissident republicans and loyalist terrorists, though there
is a serious danger from them, because al-Qaeda and other foreign
terrorists can certainly also use Northern Ireland as a soft way into
the rest of the United Kingdom.
As I understand the Bill, that
matter has been recognised in clause 1. If the Director of Public
Prosecutions suspects that any of four conditions are met, and is
satisfied that the administration of justice may therefore be impaired
should a trial be conducted, he can order a certificate for a non-jury
trial. Committee members will know that one such condition is that in
clause 1(6), which is a condition
saying:
“the offence or
any of the offences was committed to any extent (whether or indirectly)
as a result of, in connection with or in response to religious or
political hostility of one person or group of persons towards another
person or group or
persons.”
There is no
mention there of a proscribed organisation whose activities relate to
Northern Ireland. So I had understood that non-jury trials could be
called for by the DPP if he suspected that in the case of an arrested
and charged international terrorist there were a likelihood of jury
intimidation.
However, the amendments that I
have tabled are intended particularly to attack a deadline in clause 2
that is both stupid and artificial. If one reads through it carefully,
one finds that clause 2(1) requires that the DPP’s
certificate—based on the conditions that I have
mentioned—
“must
be lodged with the court before the arraignment of...the
defendant.”
Let
us take an example for those not familiar with criminal procedure in
Northern Ireland. Someone is arrested by the Police Service of Northern
Ireland and is charged with an offence. On seeing the papers, and
perhaps—as the Secretary of State said on Second
Reading—through access to intelligence information, the DPP is
satisfied that at least one of the four conditions is met. To recap,
the conditions are that the defendant is a member of a proscribed
organisation; that the offence has been committed by such an
organisation; that there is an attempt to prejudice an investigation;
and the fourth, to which I have already
alluded.
11
am
Arraignment is
the procedure whereby the defendant pleads one way or the other. If he
pleads guilty, that is fine—there will not be a trial. If he
pleads not guilty and there is a decision to go to court, it is
essential that the DPP should have options between arraignment and the
court case coming to trial if additional intelligence information comes
to his attention, or if after the defendant has pleaded, some of his
associates go to the nearest witness, put a gun to his head and say,
“If you appear in that court, we will blast your head
off,” “We will take your wife’s head off”,
or “We will intimidate
your children.” It is after arraignment and before the trial that
there is a likelihood of jury intimidation and tampering, and
intimidation of
witnesses.
I cannot
for the life of me understand why the Government, or those who drafted
the legislation, accepted in clause 2 a ridiculous and artificial
deadline to cut off at the time of arraignment the ability of a DPP to
issue a certificate. That is not sensible at all. Amendments Nos. 27
and 28 would tackle the problem. Amendment No. 28 covers exactly the
same point; that is, that we should not have an artificial deadline.
That is the import of the two amendments, and I look forward to the
Minister’s explanation of and justification for the artificial
and ridiculous deadline for the DPP to submit his
certificate.
Mark
Durkan:
I tabled an amendment that would have the effect
simply of removing clause 1 and, as hon. Members will see from the
list, and as has been anticipated by the hon. Member for
Montgomeryshire, clause 2 as well. The clauses provide for continuity
of Diplock courts and non-jury trials in the future. It is wrong to
deny people their basic right to a jury trial, which the Secretary of
State and Ministers proclaimed in legislation that they introduced last
year would be guaranteed from 2008 at the latest and hopefully from
later this year, except for a one-year extension. Those assurances and
arguments from Ministers less than a year ago are being turned on their
head in the Bill.
The
provisions for non-jury trials in circumstances of the DPP’s
choosing also violate commitments that were given in the joint
declaration from the two Governments in April 2003 following a series
of negotiations at Hillsborough and at various other talks before that.
Those commitments were to repeal the Northern Ireland-specific
provisions in part VII of the Terrorism Act 2000. Legislation was
introduced to do just that, but now those provisions are, in essence,
being re-enacted in a new
form.
The Government
tell us in these days of environmental awareness that we have to
reduce, re-use and recycle, but it is not good enough to say that we
are going to reduce the number of instances where we have non-jury
trials but re-use provisions that we previously repealed to recycle
Diplock courts into the future. That simply is not what is needed in
Northern Ireland.
Of
course, the provisions in part VII of the Terrorism Act are subject to
annual renewal because they were emergency provisions. We are told that
the Bill will further the normalisation agenda, but in reality we are
seeing a normalisation of the abnormal. The provisions will not be
subject to annual renewal; on the contrary, the legislation will be
permanent. Clause 40 will allow the Secretary of State to repeal by
order any of the emergency powers in later clauses but not the
provisions for non-jury trials.
Hon. Members must be aware of
the Bill’s implications and extent. It is not the usual
nod-through—as at the Derry-Bridgend border—of emergency
provisions subject to renewal. It will make measures permanent that the
Government assured us during debate on last year’s legislation
that they would repeal. The Bill will institutionalise the temporary
and exceptional and undermine Government commitments. As a leader of my
party and a legislator, that is not something that I can take
lightly.
Lady
Hermon:
May I bring to the hon. Gentleman’s
attention the Northern Ireland Affairs Committee report on organised
crime in Northern Ireland, which was published last July? The hon.
Member for Foyle will know that his colleague the hon. Member for
Belfast, South (Dr. McDonnell) is a member of that Committee. The
report was unanimous. The hon. Member for Belfast, South agreed with
his colleagues, of which I am
one:
“We
believe that it is essential that adequate provision for non-jury
trials for appropriate offences in Northern Ireland is maintained. It
is only by maintaining them that many witnesses will feel able to give
evidence against organised crime
gangs.”
Is there a split
within the
SDLP?
Mark
Durkan:
I can assure the hon. Lady that there is not. She
knows that provisions for non-jury trials already exist in the Criminal
Justice Act 2003. She touched on the matter during debate on Second
Reading, and I will mention it during my remarks on this clause. To the
SDLP’s mind, those provisions, if used in Northern Ireland,
would meet the test of adequacy reflected in the Select Committee
report.
Lembit
Öpik:
The hon. Gentleman will understand that that
is exactly the Liberal Democrats’ position. It is beyond us why
the Government, having generated legislation for the UK as a whole, are
now choosing to muck about with legislation for Northern Ireland
specifically.
Mark
Durkan:
I accept those observations entirely. The
legislation will undermine the purpose of the Terrorism (Northern
Ireland) Act 2006, which was passed just last year. The Act extended
the provisions of part 7 of the Terrorism Act 2000 to 31 July 2007, but
allowed that they could be renewed, for one further year only, until 31
July 2008. Yet the Bill will reverse all that, and the Government have
not given any convincing explanation
why.
To return to the
point that I made in replying to the hon. Member for North Down, the
provisions are also unnecessary. Section 44 of the Criminal Justice Act
2003 already provides for non-jury trials on application of the
prosecution if the trial judge is satisfied
that
“there is evidence
of a real and present danger that jury tampering would take
place”
and
that
“notwithstanding any
steps...which might reasonably be taken to prevent jury tampering,
the likelihood that it would take place would be so substantial as to
make it necessary in the interests of justice for the trial to be
conducted without a
jury.”
That has not yet
entered into force, but when it does it will apply to Northern Ireland.
We do not need the other provisions in the hands of the Director of
Public
Prosecutions.
The Bill
proposes an entirely different and more draconian system. First, it
will give the power not to a judge but to the Director of Public
Prosecutions. We were told on Second Reading that the Secretary of
State may decide on the basis of national security information,
presumably from MI5. The quality of that information will be well
beyond the reach of the police ombudsman to investigate following Sinn
Fein’s acceptance of a dodgy document from the Prime Minister
last week.
Secondly, the defence has no
right to make representations. Unlike under the Criminal Justice Act
2003, under this Bill the defence does not have to be heard at all.
Thirdly, no reasons have to be given by the Director of Public
Prosecutions whereas a judge would have to give reasons. By contrast,
even Lord Carlile, who is no poster boy for independent challenge and
scrutiny in the SDLP’s book, recommended that the DPP should
give reasons, to the extent that they could be given without damaging
national security. Again, there is the worrying mention of national
security in connection with these
provisions.
Fourthly,
as we will see on the debate on clause 7, there can be an appeal
against a judge’s decision, but obviously no challenge and no
test against the DPP’s decisions. Fifthly, the threshold is
lowered. The DPP merely has to suspect that any of the conditions in
the Bill are met. There is not even a requirement that the suspicion be
reasonable and there need only be a risk that the administration of
justice might be impaired. That is not a significant, a substantial or
a likely risk, nor even a real and present danger, but simply a
risk.
There is no
requirement that the DPP must consider jury protection measures before
acting and taking the step of opting for a non-jury trial. Under the
Bill the DPP also as the power to deny a jury trial, even where there
is no link at all to what is euphemistically called the troubles. It is
enough for the offence to be in connection with religious or political
hostility. For example, an attack on a Muslim or a Jew could be tried
in a non-jury trial, even though there is no more reason to do so in
Northern Ireland than anywhere
else.
In that respect,
the Bill will provide for non-jury trials, possibly more often than at
present. At present the Attorney-General de-schedules automatically
unless he is satisfied that it is not connected with the emergency in
Northern Ireland. So cases that would not be subject to non-jury trial
now could be subject to non-jury trial in future. All of that is based
on what? Furthermore, unlike in the south of Ireland where there is
still a special criminal court, there is only to be one judge, not
three. Again that is despite Lord Carlile’s conclusions and
observations. I oppose clause 1 and all the related clauses. Because
the various amendments which might mitigate the effects of the
proposals all accept non-jury trials beyond the provisions of the
Criminal Justice Act 2003, I would not support any of them
either.
Paul
Goggins:
The hon. Member for North Down made an important
point when she explained to the Committee the continuing risk that
remains in Northern Ireland. Since last summer some £25 million
of damage has been done by dissident republican groups through their
unlawful activities. She is quite right to remind the Committee that
that risk still exists in Northern Ireland. She also quoted the average
figures in recent years for the number of so-called Diplock trials. It
might help the Committee if I gave a little more information about
that.
Back in 1987
some 354 cases were tried under the Diplock system. In 2005 that number
had reduced to 49. I am sure the whole Committee would welcome that.
However, it makes the point that there is still a risk of intimidation,
albeit in a smaller number of cases.
I say to the hon. Member for
Foyle that, of course, we have an aspiration for complete normality in
Northern Ireland. However, it flies in the face of the real threat that
still exists—as evidenced by the fact that there were 49
Diplock-type cases in 2005—to suggest that there is not still
such a threat of intimidation in Northern Ireland that we do not need a
special measure to deal with it and ensure that justice is
done.
The hon.
Gentleman mentioned that the Bill contains provisions elsewhere for my
right hon. Friend the Secretary of State to repeal certain sections of
this legislation, when enacted, if in due course they are found not to
be necessary. That provision is not necessary here, because as the risk
continues to reduce so will the number of non-jury trials continue to
reduce. As intimidation ceases to be a factor in Northern Ireland, as
has been so for the past 30 years or more, so will the need to have
non-jury trials because of the threat of intimidation. In other words,
this will wither on the vine as intimidation is removed from the
culture and society of Northern
Ireland.
We are moving
towards more normal times, as evidenced by the numbers of Diplock-type
cases that are tried, but we are not there yet in terms of complete
normality, so we need the relevant provisions. I welcome the fact that,
in his opening remarks, the hon. Member for Montgomeryshire
acknowledged that the Bill was a normalising measure and that we were
now introducing into legislation a presumption in favour of trial by
jury in specified cases, rather than the reverse. I thank the hon.
Gentleman for making that point so early in his
remarks.
11.15
am
The amendments,
particularly those tabled by the hon. Members for Montgomeryshire and
for Tewkesbury, caused the Committee to consider how and by whom
decisions are made in respect of the mode of trial. Both hon. Gentlemen
invite the Committee to agree with amendments that would have that
decision taken as part of the judicial process. They have come up with
a different proposition. I shall deal with both
amendments.
The hon.
Member for Montgomeryshire would vest the decision-making power for
non-jury trial in the Crown court. The prosecution would be able to
apply to the court for a non-jury trial and the court would have to
determine the issue before arraignment. It is important to note that
all parties to such a hearing would be able to make representation. I
shall deal with the difficulties relating to that in a moment. The hon.
Member for Tewkesbury would vest the decision-making power in the Lord
Chief Justice.
In
considering this legislation, Ministers—including my hon. Friend
the Under-Secretary of State for Constitutional Affairs, the Member for
Lewisham, East (Bridget Prentice), who I am delighted to see on the
Front Bench and who will be participating in our
deliberations—thought about alternative ways to deliver juryless
trials. We considered whether a judicial model would work, but we
concluded that it would not because there would be too many risks. The
particular circumstances in Northern Ireland require us to have an
administrative form of decision making in respect of such a
decision.
Mark
Durkan:
I thank the Minister for indicating that there has
been some consideration by the Government of how they could continue
jury trials. Will he say whether those considerations were being
pursued at the same time as the House was legislating to repeal the
Northern Ireland-specific provisions in part 7 of the Terrorism Act?
Was that going on at the same time as the Government were telling us
that they were meeting the terms of the joint declaration of 2003 and
repealing these emergency provisions? Was the Government appearing to
remove juryless trials on one hand while planning to bring them back by
some other
means?
Paul
Goggins:
As a Government, we took a clear step in saying
that we were repealing part 7 of the Terrorism Act because we thought
that the conditions were such that we could do so. That will be
evidenced by the fact that, from the end of July next year, the only
Army personnel in Northern Ireland will be those who are stationed in
garrisons, similar to troops in north Yorkshire or in garrisons
elsewhere in the United
Kingdom.
Paul
Goggins:
We shall come to the powers that they will have
as a result of the Bill soon. I am sure that we shall keep returning to
the matter with my hon. Friend the Member for Foyle, but as much as he
yearns for complete normalisation in Northern Ireland—as do I
and all members of the Committee—those conditions do not yet
exist. Therefore, in taking the bold step to repeal part 7, it would be
irresponsible of a Government not to put in place those provisions that
are required to make sure that security and public order can be
maintained and that justice can be done, and can be seen to be done.
Our conclusions have been subject to extensive public consultation
after careful consideration, and my hon. Friend the Member for Foyle
will have contributed to that
process.
Mr.
Peter Bone (Wellingborough) (Con): I understand clearly
the Minister’s argument. He is trying to move towards
normalisation. However, we have heard today that the Bill extends to
areas that are not currently subject to trials without jury. Is that
correct?
Paul
Goggins:
We are taking a different approach. As the hon.
Gentleman will know, at the moment, for certain types of offence in
Northern Ireland under the Diplock court system it is presumed that
there will be a juryless trial unless a decision is made that that is
not necessary in a particular case. In the Bill, we reverse the
presumption and say that it is for a trial by jury, unless certain
conditions are met.
I am grateful to the hon.
Gentleman for bringing us to the conditions because they have two
limbs. First, one part is in relation to the circumstances of the
offence and the connections of those whom it is alleged have carried
them out. As the hon. Member for North Down made clear, three of the
conditions under the first limb relate to the relationship to
membership of prescribed organisations. The fourth part of the first
limb is about political or religious
hostility.
The second
part of the test is about the possibility of the impairment of justice.
Both limbs must be fulfilled. In the words of my hon. Friend the Member
for Foyle, it would not be sufficient simply to cite political or
religious hostility on its own. It would always have to be accompanied
by the fulfilment of the second part of the test in respect of the fact
that justice may be impaired. It is important for the Committee to
understand that both elements have to be proved. Indeed, more than one
of the four tests under the first limb might be passed, but both limbs
must be passed in order for the DPP to make a decision in favour of a
juryless
trial.
Dr.
William McCrea (South Antrim) (DUP): I apologise for being
late, Sir Nicholas. The Minister made much play about normalisation.
When the Government announced the security normalisation programme on 1
August 2005, they made a commitment to repeal all counter-terrorist
legislation in respect of Northern Ireland. Does the hon. Gentleman
understand that it is wrong to change the criminal justice system as a
bargaining chip in a political process? Does he not see the danger that
lies
therein?
Paul
Goggins:
I am grateful to the hon. Gentleman for reminding
the Committee that, in August 2005, we made it clear, as much as we
were repealing part 7, that we would need to consider the issue of
juryless trials because it would be a continuing issue. I refute his
suggestion that the matter is part of a deal. It is the action of a
sensible Government making strides towards normal conditions in
Northern Ireland, but at the same time making sure that provisions are
in place to ensure that justice is done in all cases, especially when
serious crimes have taken place and there is a risk of the intimidation
of juries. The provision has not been arranged as part of a shabby
deal, but a thoughtful move towards more normal
conditions.
Lembit
Öpik:
I return to what the Minister said a couple
of minutes ago when he was describing the conditions under which there
might be a juryless trial in Northern Ireland in respect of a racially
motivated incident or attack. Why does the same argument not apply to
the rest of the United Kingdom? Why does the Minister single out
Northern Ireland for those conditions, which would pertain to juryless
trials, but not the rest of the UK? If he wants to be consistent, he
needs to explain to the Committee why there should be a disparity
between the conditions for Northern Ireland and those for the rest of
the United
Kingdom.
Paul
Goggins:
The hon. Gentleman might have noticed that
political and religious hostility has been a factor in the
life of Northern Ireland over the past 30 years. It has
played into criminality and must be treated seriously. I repeat that it
is not enough just for
the condition to be met. There must also be the risk of impairment of
justice. In balancing all that together, the Director of Public
Prosecutions would arrive at his decision, and it is important that we
should have that element. We have arrived at that conclusion after
careful
consideration.
Mr.
Robertson:
The Minister said earlier that he had
considered how best to deliver justice in that respect. He said that to
go down the route that the hon. Member for Montgomeryshire proposed or
the slightly different route that I proposed carried risks.
Unfortunately, the Minister was intervened on and did not explain what
those risks would be. Will he tell us what he perceives them as being,
either now or later in his
speech?
Paul
Goggins:
The great danger in telling the Committee that
one wants to make progress is that hon. Members think that one is
moving off the point and therefore intervene. In fact, I want to get on
to the point that the hon. Gentleman just
raised.
Mark
Durkan:
Perhaps the Secretary of State’s comments
on Second Reading might help on the subject of risk. He said
that
“there would be a
risk to national security with the possibility of intelligence getting
into the wrong hands.”—[Official Report,
13 December 2006; Vol. 454, c. 902.]
The Secretary of State offered that as a
consideration in why the DPP could issue such a certificate. He
envisaged the power being used in that way, although it is not clear
what the risk would be to the administration of justice, which is quite
a separate judgment. Later on Second Reading he
said:
“My point
was that if the DPP judges that there is a risk to the safe
administration of justice because of information that he has received,
the source of which is a matter for national security in terms of
intelligence and so on, he is entitled to go to the judge and say,
‘This is a certificate for a juryless
trial.’”—[Official Report, 13 December
2006; Vol. 454, c. 903.]
Paul
Goggins:
The DPP could very well have to consider some
sensitive information when arriving at his decision. We made much on
Second Reading of the fact that that information may pertain to
national security intelligence, and my hon. Friend quoted extensively
from the remarks of my right hon. Friend the Secretary of State. Given
that three of the conditions in the first limb of the test relate to
proscribed organisations, some of the information that comes to the
attention of the DPP might well relate to national security
intelligence. However, issues of national security are not the only
issues that will be considered. What, for example, if there is another
prosecution in the pipeline for an individual? What if the police have
information about the conduct of the individual that is pertinent to a
case?
To move on to
the issue of risk, having a judicial system of decision making would
mean that a range of information would have to be exposed to the other
party in a way that could cross-examined. That would put at risk
serious and highly important confidential information that would
otherwise quite properly not be released into the public domain and not
be brought to the attention of the
defendant.
Mark
Durkan:
The Minister must appreciate that for some of us
there is a bigger risk to the administration of justice, which comes
from the powers being used in a capricious way, but no one can test
what that risk is. The public in Northern Ireland have been astounded
at the withdrawal of prosecutions, with the DPP’s stated reason
being the public interest. People do not believe that that has
delivered due administration of justice. The Minister referred to the
extensive consultation on the legislation and to the views received
from my party. Will he say whether Sinn Fein has accepted the
provisions? Has it agreed, or will the Minister change his tune if Sinn
Fein wakes up and suddenly say that it is worried about
them?
11.30
am
Paul
Goggins:
I can assure my hon. Friend that the measures
that we propose in the Bill will not be amended as a result of
discussion, outside our consideration, with any other party. That would
be a preposterous way to proceed.
Paul
Goggins:
It certainly will not happen with the proposals
that we are considering today. There has been extensive public
consultation, which we have considered carefully. We have considered
the risks of going down the judicial route. I shall return to those in
a moment. That is why we opted for the administrative route. I know
that my hon. Friend has all kinds of concerns about the accountability
and transparency of national security and intelligence. He and I have
discussed the matter at length. However, as hon. Members familiar with
Northern Ireland will know, the Province has the most transparently
accountable system of policing anywhere in the world, although
accountability for national security and intelligence are perhaps not
as transparent as my hon. Friend would
like.
I hope that there will not be
any going back on the issue if and when Sinn Fein decides to make it a
matter of concern. The safeguards that the Minister mentioned are
important. Does he accept that the defence will often apply for
judicial review in order to trawl for intelligence that it believes may
compromise the prosecution’s case, thus leading to its
withdrawal? That is a bigger danger than that of being subject to
maladministration.
Paul
Goggins:
I agree very much with the hon. Gentleman about
the risk of delay; it is a matter for concern. Indeed, the hon. Member
for North Down raised the matter in debate, and she received a letter
from my right hon. Friend the Secretary of State outlining some of the
improvements that we hope to make. We certainly do not want people
trawling around and delaying the system in that way. We want justice to
be done properly and as speedily as possible. We do not want people
undermining justice through the process of delay suggested by the hon.
Gentleman. However, delay is a risk, and we considered the matter
carefully.
We need a system that allows information to be properly considered, but
we do not want the sort of unending delay that could provide an escape
route for people who ought to come to trial.
The principal risk of going
down the judicial route is not that information pertinent to the
conduct of an individual that should remain private would be introduced
into the process, but that the information would be kept private and
out of the system and that people who should have a juryless trial, and
to whom jury trial poses a real threat, would be tried by a jury, with
all the risks that go with it. That is a serious consideration.
Information that the police or national security may have that would be
brought to the attention of the DPP in a more open judicial process
would not be brought to bear. That would be a huge risk. Frankly, the
Government were not prepared to take that risk. That is why we have
brought forward the present proposals.
Mr.
Robertson:
I have listened carefully to the
Minister’s reasons for deciding as he did. However, on the other
side of the argument, does he not see that there may be a
risk—in a philosophical sense, by trying to satisfy people not
only that justice has been done but that it can be seen to have been
done—that the person who conducts the prosecution will decide
who is to make the decision on the outcome of that trial? Is that not a
risk as
well?
Paul
Goggins:
Let me deal with that. The hon. Gentleman raises
a legitimate question, and it requires an answer. The Lord Chief
Justice is the appropriate person. It might be of interest to the hon.
Gentleman and other members of the Committee if I draw attention to the
judgment in the Shuker case. The judgment was delivered by Lord Chief
Justice Kerr, sitting with Lord Justice Campbell. It relates to current
case law and to de-scheduling in the Diplock courts. In other words, it
relates to the way in which decisions are made not to have a trial by
judge alone, even though the offence may be scheduled.
The Lord Chief Justice and a
colleague arrived at the following conclusion. I shall quote from it
extensively, which I hope will help the Committee. The judges
concluded:
“The exercise involved
in deciding whether offences should be de-scheduled is in some respects
akin to the decision whether to prosecute. It involves the evaluation
of material that will frequently be of a sensitive nature and the
assessment of recommendations made by or on behalf of the Director of
Public Prosecutions based on his appraisal of matters that may not be
admissible in evidence or whose disclosure would be against the public
interest. This is par excellence a procedure on which the courts should
be reluctant to intrude.”
The Lord Chief Justice concluded that
such judgments and those about mode of trial are for the Director of
Public Prosecutions, who is in a much better position to deal with them
than the Lord Chief Justice himself.
The decision is about
prosecution, a subject more familiar to the DPP than to the courts. In
the view of the Lord Chief Justice, it is better to consider the matter
that way, and not to bring it into the judicial process. The Northern
Ireland courts have themselves
concluded that they should not become routinely involved in such issues.
The hon. Member for Tewkesbury poses a legitimate question, but the
Government’s conclusion is also the view of the Lord Chief
Justice.
Mark
Durkan:
The Minister prays in aid the Shuker case. In that
case, the decision to de-schedule was
“a procedure on which the courts
should be reluctant to
intrude.”
The legislative
provision before us goes much further and makes the procedure an
absolute no-go zone. Unlike Shuker, clause 7(1) is unclear about
whether bad faith can even be questioned.
“should be
reluctant to
intrude,”
and in making
that remark, the Lord Chief Justice makes it clear that the court
should not be routinely concerned with such matters. If we were to
accept the amendment that the hon. Member for Tewkesbury has moved, we
would enshrine it in legislation that matters should always be
conducted in that way, which is different from the Lord Chief
Justice’s position in the judgment to which I
referred.
The two
amendments that the hon. Member for North Down tabled would extend the
period during which the DPP could make a certificate for non-jury
trial. If new information became available after arraignment, it would
affect the decision for non-jury trial and the DPP would be able to
issue a certificate of non-jury trial. We have fixed the moment of
arraignment as the key decision-making point, but the hon. Lady invites
us to go further. We have concerns about that.
First, there is the issue of
delay, which is of concern to the hon. Lady. If, for example, under her
proposal arraignment passed, we moved to a trial and there were then
sufficient grounds for her amendment to come into play, we would have
to restart the trial. Witnesses might have to be brought in, and the
whole business would have to start again, inducing in the system the
delay that she and I want to reduce.
Even more importantly, the
provision is unnecessary for the very reasons to which the hon. Lady
alluded. The Criminal Justice Act 2003 provides for the mode of trial
to change if there is a real and present danger of jury intimidation
during the trial. That new measure came into operation on 8 January:
between Second Reading and this morning’s deliberations, the new
provision has come into play. Her proposal is unnecessary, because if
there were evidence of a real and present danger of jury intimidation
in a trial by jury, under the new powers of the 2003 Act it would be
possible to change the mode of trial.
We are concerned not about the
real and present danger, which is now provided for, but the risk of
intimidation that may still exist under the conditions in Northern
Ireland. Such provisions do not exist elsewhere in the United Kingdom.
I hope that the hon. Lady is persuaded—if I remember correctly,
she was on the Standing Committee that considered the Bill in
2003—that this provision is now in place, much as she has been
frustrated at the length of time that it has taken to implement. We
will have a complementary
system. Under the provisions, the DPP will be able to issue a
certificate up to the point of arraignment. The provisions of the 2003
Act will then come into play if there is a real and present danger of
jury intimidation after arraignment. The whole judicial process will be
covered against both potential threats and real and present
danger.
The hon. Lady
raised the issue of the threat from al-Qaeda and she is right to point
out the potential for that threat to show itself in Northern
Ireland.
Lady
Hermon:
I am taken aback by what the Minister has just
said. He has spent a long time usefully explaining to the Committee why
it is essential that the DPP is the key person who makes the decision,
because of the risk and the intelligence information that he is given.
In the Shuker case, the Lord Chief Justice said that the court should
not be making that decision. Having spent so much time explaining that,
the Minister has now told the Committee that the prosecutor—it
is only the prosecutor, not the DPP, who can apply to the court under
the 2003 Act if there is a real and present danger of jury
tampering—will not have the detailed information that, as the
Minister has just laboured in telling us, the DPP will have. There will
not be a smooth track. The whole point of moving the time is so that
the DPP is not shackled by the date of arraignment the whole way up to
the trial.
Paul
Goggins:
Clearly I am not explaining myself very well, so
I shall have another go at it. We are dealing with risk: the risk to
justice and the risk of intimidation because of the connections that a
particular defendant may have. We have proposed a system that will
allow the DPP, using a statutory test, to decide whether conditions are
met to warrant a trial without a jury, by judge alone. The certificate
can be issued, modified or withdrawn at any point up to arraignment
when the defendant enters a plea.
Let us assume that the DPP
considers a particular case and decides not to issue a certificate.
There would follow a trial by jury. If there is any evidence of real
and present threats to any members of the jury, the prosecution can
bring forward evidence and the mode of trial can be changed under the
provisions of the 2003 Act, so the element of risk before the
arraignment can be dealt with, as can the reality after arraignment. If
at any point there is the risk or the reality of intimidation and
threats, it is possible to move to a judge-alone trial. Given the hon.
Lady’s role in arguing forcefully for that provision in the 2003
Act and arguing since on many occasions that it needed to be introduced
quickly, I would have thought that she would take some credit as having
been part of the process of delivering a system whereby we can have a
trial without jury if threats and intimidation are such that justice
may not be done.
The
two sets of provisions are separate. The hon. Lady is seeking to make a
provision that is not necessary because the 2003 Act provides it. If
the Government had said that there was no intention to introduce the
new powers to change the mode of trial under the 2003 Act, I could well
understand the need for her amendments, but that is not the case: we
have implemented those provisions. Right through the judicial process
in Northern Ireland, we now have a
system for dealing with the potential threat and the reality of jury
intimidation. Time will tell whether I have made better fist of
explaining myself on this occasion, but I am sure that the hon. Lady
will tell me later proceedings whether I have done so or whether I have
failed.
11.45
am
The hon. Lady
mentioned the threat from al-Qaeda, and I was about to say that we must
take that threat seriously in all parts of the United Kingdom. However,
what we do not have in Northern Ireland is any evidence to suggest that
there is a general threat against juries emanating from the risk from
al-Qaeda. What we do have is considerable evidence, based on the
factionalism and sectarianism of the past, that there is a pattern of
threats and intimidation to juries arising from the particular
circumstances in Northern Ireland. In other words, we need the
provisions to reflect that sectarianism and that difficulty with
proscribed organisations. The same risk does not apply in relation to
al-Qaeda, or any presence in Northern Ireland. I hope that she will
understand that we are trying to make the provisions as minimal as
possible, as close to normality as possible, but dealing with the
actual risk that there is. We do not have that same risk in relation to
al-Qaeda as there is elsewhere. I was about to sit down, but I am happy
to give way to my hon.
Friend.
Mark
Durkan:
I note the degree to which the Minister is
reassuring the Committee that al-Qaeda is not a serious or large threat
in Northern Ireland, with respect to the legislation. However, that
seems at odds with the emphasis that Government Ministers put on the
issues of al-Qaeda and the potential threat with international
terrorism in Northern Ireland, to justify the expanded role for MI5,
and to justify it taking the primacy after October of this year in
terms of intelligence policing. The two messages do not
square.
Paul
Goggins:
I do not know whether that was a careless
explanation from me, or a mischievous interpretation of words by my
hon. Friend. Let me be clear that I was not making any statement at all
to the Committee about the level of threat posed by al-Qaeda in
Northern Ireland. Indeed, I said to the hon. Lady that we have to take
the threat seriously in all parts of the United Kingdom. We need
accurate systems of gathering national security intelligence about
al-Qaeda in Northern Ireland, as in any other part of the United
Kingdom. That is an important function of the security services there.
What I said was that we did not have any evidence that those engaged in
al-Qaeda, and those who sympathise with it, have built up any system of
intimidation of juries that would undermine trials in Northern Ireland.
We do have that evidence in relation to other aspects of the community
there. That is why we need these provisions, rather than extending the
provisions more widely to include other international terrorist
organisations. The Committee needs to be absolutely clear: I am not
saying that al-Qaeda is no threat in Northern Ireland: it is a threat
throughout the world that we need to counter and understand. Now, my
hon. Friend, for the last time, can intervene on me in this section of
the Bill.
Mark
Durkan:
The Minister said that al-Qaeda may not present a
threat in terms of jury intimidation, but will he return to the point
that was introduced not by anyone else, but by the Secretary of State
himself on Second Reading? He indicated that the DPP might be minded to
issue a certificate, simply on the basis of protecting intelligence
sources or a risk to national security. That had nothing to do with the
administration of justice per se, or the role of jury trials. Will he
address that point? Surely that would be relevant in the case of
al-Qaeda.
Paul
Goggins:
I am grateful to my hon. Friend for continuing to
intervene; it helps to clear up the matter. The DPP could not issue a
certificate simply on the basis that he had received some intelligence
about a particular defendant. It may be that that information is
pertinent when he is considering whether that particular case meets the
statutory test as outlined in the legislation—in other words,
whether a defendant belongs to a proscribed organisation or is engaged
in political or religious hostility, and there is the possibility that
justice would be impaired. That is the test. It could be that some
intelligence is pertinent to that, and needs to be made available to
the DPP privately, so that he can consider whether the test is met. The
police could have other information about potential prosecutions that
may be pending, or other investigations that are being carried out.
That information will help the DPP to make the judgment but it alone
will not justify a decision as he must apply the stringent statutory
test set out in this Bill. It could be that the information is
pertinent, but that alone will not be
sufficient.
Paul
Goggins:
I shall happily take interventions all day long,
although the Committee may weary of it after a
while.
Mark
Durkan:
Are those not instances where the decision is
whether or not to proceed with a prosecution as opposed to whether or
not to go for a non-jury
trial?
Paul
Goggins:
The consideration that the DPP will give is about
the mode of trial: whether to opt for a juryless trial or not. That is
the decision that the DPP will have to make. It is about working out
whether there is the potential for justice to be impaired and whether
all the conditions are met. It is in relation to applying that test
that this information may be relevant. The important point is that we
are talking about information that cannot be shared with the defendant,
and we must keep reminding ourselves of that. Once we go down the more
open, judicial route, the information must be shared and we ultimately
risk having people who may threaten juries being tried by a jury. We
cannot countenance such a risk and we need to put that security in
place.
After a fairly
extensive run round all of these issues, I must conclude by asking hon.
Members not to press their amendments to a
Division.
Lembit
Öpik:
I shall not withdraw my amendment because,
having listened to the Minister and perhaps naively believing that he
was minded to listen to sensible contributions from all parties, I have
found that he has reverted to the usual behaviour of Northern Ireland
Ministers in these Committees. He has attempted to defend the
indefensible and then asked his colleagues to force it through simply
because that is easier than listening to the force of argument from
other sides. To paraphrase something that the Prime Minister once said,
it seems that the Minister’s debating train has left the station
and has left our ideas on the platform. Once again, we seek to
influence the Minister but he gives us slightly vague answers and does
not direct himself specifically to the purpose of the
amendments.
Let us
consider specifically what the Minister has said. In the context of
what the hon. Member for Foyle has just said, it seems that the
Minister slightly misunderstands the issue. The Secretary of State
referred not to a question of intelligence relating to the defendant,
but to intelligence that the Secretary of State thought might be so
sensitive that it was better to proceed without a jury trial. I believe
that the hon. Member for Foyle was reciting the Secretary of
State’s own comments.
In other words, the Secretary
of State for Northern Ireland is suggesting that simply being concerned
about the sensitivity of information that would have to be shared with
a jury is sufficient justification for not having a jury trial. That
cannot be right; it cannot be in the interest of justice for the
Secretary of State’s comments to be taken into consideration by
the DPP and for it then to say, “In every other respect this
case is worthy of a jury, but as MI5 does not want to share this
information in public we had better carry on with the Diplock courts
and do things in private.”
I believe that the hon. Member
for Foyle was highlighting that point, and the Minister has not
responded to it. I will happily give way to the Minister if he will
clarify the point. If he will not do so, we can only surmise that he
agrees with the Secretary of State that it is acceptable, regardless of
the justice of the situation, for the DPP to call for a non-jury trial
in order to protect sensitive information in the possession of the
security services. In my book, that is not
right.
Sammy
Wilson:
Does the hon. Gentleman accept that in some cases
the wish might be to protect the intelligence source? Intelligence on a
case may have come from an intelligence source and if that source were
disclosed, both the source and future intelligence could be
compromised. That would be as good a reason as any for going down the
route that the Government have
suggested.
Lembit
Öpik:
The hon. Gentleman puts forward a
brave defence in support of the Minister. If the Minister does mean
what the hon. Member for East Antrim just said, it would be helpful for
the Committee to understand that. I disagree with that position, but I
am not even clear at the moment whether the Minister in this Committee
actually agrees with what the Secretary of State for Northern Ireland
said on Second Reading.
Paul
Goggins:
Of course I agree with my right hon.
Friend the Secretary of State; one would expect nothing less. I think
that the hon. Gentleman is sincere in seeking greater clarification
before he decides on whether to press his amendment.
It is important to distinguish
between the case against the defendant and the test as to whether the
trial should be by jury. The two issues should not be confused. I put
it to the hon. Gentleman that information about whom a particular
defendant may associate with, other investigations that are ongoing,
material that is coming forward through sources that one would want to
keep discreet and private, as he has pointed out, may be vital in
deciding whether to have a trial without a jury. To have a trial
without a jury is a very serious step to take. We all want as many
trials with juries as possible.
However, that is very different
from the actual trying of the case. Of course, if there is evidence, it
would need to be brought in court. If there is intelligence, forensic
evidence or any other evidence, it would need to be brought forward in
the trial, albeit by the judge alone. That could not remain hidden.
There could not be some sort of secret deal in which someone is found
guilty without the evidence being brought forward in court. Of course,
all such evidence would need to be brought to bear in the
trial.
What we are
talking about here is the decision about mode of trial. I put it to the
hon. Gentleman in all seriousness that that is a very important
decision, but if there is important, private and secret evidence, then
for its own sake and for the protection of sources, we need a system
that allows it to be brought into play. If we have a judicial system,
such matters would be opened up, and the defendant would have to be
dealt with in a certain way. The information would perhaps run the risk
of not being shared, with the ultimate risk of people who will threaten
juries having trial by jury when that is not justified and is not
something that we would want to
have.
I hope that I
have been able to clarify my remarks in a rather long intervention. We
need to focus on the decision about the mode of trial and not on the
trial itself, in which, of course, all this evidence would need to be
adduced.
The
Chairman:
Before the hon. Member for
Montgomeryshire continues his speech, I would like to say that I do not
like lengthy interventions, but I believe the Minister was being
extremely helpful and therefore I allowed him what I would describe as
an abnormally long
intervention.
Lembit
Öpik:
One of the good things about
Committees such as this is that we are genuinely using the process to
try to reach a solution. I agree with what you said, Sir Nicholas, with
regard to the Minister’s attempt to clarify the point, but I
have to say that I am still not persuaded. The Minister appeared to say
that he agreed with the Secretary of State for Northern Ireland that
sometimes one would not have a jury trial in order to protect sensitive
information. However, he did not make such remarks explicitly, so we
seem to be in a situation in which potentially the hon. Member
for East Antrim has formed a triumvirate with the
Minister and the Secretary of State for Northern Ireland, and in which
all three of them seem to think that merely wanting to protect
sensitive information is an acceptable justification for not holding a
jury trial.
I do not think that that is a
good enough reason. I do not think that it is correct or justified.
Furthermore, if such an approach is justifiable in Northern Ireland,
why on earth is it not justifiable for the rest of the United Kingdom?
The arguments that the Minister and the Secretary of State are using
are not specific to the geography or particular circumstances of
Northern Ireland. I wonder, therefore, whether the Minister is setting
a precedent for the whole UK that begins in Northern Ireland and gets
rolled out from Northern Ireland as a precedent for the
future.
12
noon
Mark
Durkan: The Minister rightly said that we need to
distinguish between the mode of the trial and the decision and
prosecution. As for the comments of the hon. Member for East Antrim, I
am aware that he is among those public representatives who are often
agog and indignant when prosecutions are suddenly withdrawn or they
collapse and all we are told is “public interest”.
Rightly, he and others have made the point that the public cannot have
confidence in what the public cannot know. Surely that applies to the
decision on jury or non-jury trials. It is not only in relation to
whether a judge or the DPP makes the decision that the issue of
protection of intelligence sources is relevant. If the evidence is the
same in a jury trial as in a non-jury trial, then that argument is a
red herring. It is only in relation to who issues the certificate, not
whether it is a jury or non-jury
trial.
Lembit
Öpik:
The hon. Gentleman makes a very good point.
Once again, without extending the dialogue with the Minister, I would
ask him to consider that point, because the hon. Member for Foyle does
not make such observations for fun. He makes them because they would
have a practical impact on the extent to which we can normalise the
justice system in Northern Ireland and, as he implies, on the extent to
which Northern Ireland’s system appears to be transparent and in
keeping with the rest of the United
Kingdom.
Paul
Goggins:
This will be an important and short intervention.
The hon. Gentleman asked the rhetorical question about whether this was
a first step by the Government in introducing this kind of procedure
elsewhere. The whole weight of my argument, throughout the
deliberations this morning, is that this provision is specifically for
Northern Ireland. The test relates to “proscribed
organisations” and “political and religious
hostility”, which are specific to Northern Ireland. There is no
intention of producing such provisions elsewhere and it is spurious to
suggest
so.
Lembit
Öpik:
I am glad that the Minister regards this as
spurious and that he puts on it the record that there is no intention
of rolling out these provisions in the rest of the United Kingdom. That
is important because there is no logical reason to stop in Northern
Ireland. There is no logical reason to consider those particular
precedents as pertaining to the so-called troubles. There is logic in
what the Minister says, but let the record show that the Minister is
being absolutely clear that the Government do not intend to roll out
such provisions across the rest of the United Kingdom for
justifications relating to terrorism or any other
reason.
Moving on, the
Minister also said that £25 million of criminal damage has been
done by the paramilitary groups—I think that the timetable was
roughly in the last 12 months—which is one reason why we have to
have the non-jury provision in Northern Ireland. I do not have the
actual figure, but I have no doubt that the criminal damage done by
organised criminals and gangs across the United Kingdom as a whole
comes to a far larger amount. Once again, I do not see why the Minister
thinks that the figure of £25 million that relates to Northern
Ireland is any more persuasive than the hundreds, perhaps thousands, of
millions of pounds’ worth of criminal damage done by organised
gangs in other parts of the UK. Once again, if in the rest of the UK we
have sufficient provision through the Criminal Justice Act 2003, then
that should be sufficient provision in Northern Ireland as well,
bearing it in mind that there is a significant risk of intimidation on
any occasion when there is a jury trial relating to organised
criminals. Many cases have been documented in the papers and discussed
in the House.
The
Minister said that the provisions are an interim measure, which
pertains to the specific levels of intimidation in Northern Ireland. I
am sure that, however much I would like to think otherwise, there will
always be some level of intimidation in Northern Ireland, because there
is an ongoing level of intimidation with regard to jury trials in the
rest of the United Kingdom. The question that I would ask
rhetorically—I do not realistically expect the Minister to
reply, unless he wants to—is at what level of intimidation the
Minister would be satisfied that we can abolish this particular
provision and revert to the provisions of the 2003 Act. The figure
cannot be zero. In that sense, I am concerned that we set a precedent,
as we have many times done with Northern Ireland legislation. We say
that this is an interim measure, but we enshrine it as precedent for
decades to
come.
Paul
Goggins:
I cannot give the hon. Gentleman a precise
figure. The point that I made earlier, I make again: the statutory test
reflects the particular conditions in Northern Ireland. As we improve
those conditions and get to normality in Northern Ireland, so the need
to decide on a juryless trial will decline further and further. We will
not need to repeal the legislation; it will wither on the
vine.
Lembit
Öpik:
That makes it sound as though the Government
are planning to maintain the legislation indefinitely. I do not think
that that is how we should proceed. We have so many debates relating to
Northern Ireland in which we renew temporary provisions that they form
a significant part of my workload and that of my hon. Friend
the Member for Argyll and Bute. That is because the Government are good
at
introducing exceptional measures for Northern Ireland, but extremely
poor at repealing them. I fear that once again, because they are
concerned about a specific circumstance, Northern Ireland’s
problems mean that there has to be a special solution on juryless
trials, and in 10 or 20 years the legislation will still be on the
books. I should love to think that it will, to quote the Minister,
“wither on the vine”, but once provisions are in statute,
they stand to be used in ways that a number of us find
objectionable.
Finally, the Minister had a go
at talking about the risks of a judicial model and the benefits of an
administrative approach. Once again, however, he is not being entirely
consistent. At the risk of straying a little into another example, I
have no doubt that there are many who think that many risks attached to
allowing a political process to determine whether we went to war in
Iraq, whereas an administrative process, outside the political circuit,
might have produced a more informed decision. My point is that the
Minister treads on dangerous ground if he decides to talk up the
benefits of an administrative model over a judicial one, because
exactly the same points can be made about many of the decisions that we
make here in the Palace of Westminster.
The Minister may be
comfortable, but I am not. It is not good enough to say that an
administrative model has fewer risks. In essence, many of us who oppose
the Government’s formulation of clauses 1 and 2 and favour the
amendments are saying that there are more risks in not making the
changes that we propose in our amendments. It is worse for justice for
an insufficient return to make juryless trials as convenient
administratively as they would be if we were to accept the provisions
laid out here.
We
will talk about the matter again if we can have a clause stand part
debate on clause 7. Suffice it to say that I am not persuaded by the
Minister’s arguments. Rather than waste the Committee’s
time and have individual votes on each amendment and on clause stand
part, may I press amendment No. 1 to a vote, because I think that we
can express our concerns very effectively with just one vote? I hope
that other hon. Members who have concerns will use the opportunity to
express those as well.
Question put, That the
amendment be
made:—
The
Committee divided: Ayes 6, Noes
15.
Division
No.
1
]
AYESNOES
Question
accordingly negatived.
Lady
Hermon:
I beg to move amendment No. 24, in
clause 1, page 1, line 5, leave
out ‘may’ and insert
‘shall’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 3, in
clause 1, page 1, line 8, leave
out ‘he suspects’ and insert ‘believes, on the
balance of
probabilities,’.
No.
4, in
clause 1, page 1, line 9, leave
out ‘risk’ and insert ‘real and present
danger’.
No. 5,
in
clause 1, page 1, line 9, leave
out ‘administration’ and insert
‘interests’.
No.
6, in
clause 1, page 1, line 10, leave
out ‘might’ and insert
‘would’.
Lady
Hermon:
The debate has been interesting so far, and we are
moving slowly but surely through clause
1.
Amendment No. 24 is
straightforward. The Minister has spoken helpfully and at length on the
realities of the situation in Northern Ireland and the danger to jurors
and witnesses that continues there. Underclause 1, the
Director of Public Prosecutions for Northern Ireland has a discretion.
The Minister is responsible for security in Northern Ireland and has
intelligence briefings. His contributions are valuable, and the DPP
would know all about what he has outlined at various junctures in the
past hour.
The
procedure is outlined in clause 1. The DPP would be in receipt of all
the relevant information in respect of the two limbs or parts that have
to be satisfied before a non-jury trial could be conducted. At least
one, but perhaps two, three or four of the conditions in clause 1 would
have to be satisfied: the defendant was or had been a member of a
proscribed organisation, the offences had been committed by such an
organisation or there was prejudice to the investigation or
prosecution. That last condition is relevant to the grisly, horrible
murder of Robert McCartney in a Belfast bar, which was forensically
cleaned by those responsible—certainly people connected with
those responsible—for that murder. They went in with gloves and
disposed of all the evidence in a forensic and clinical manner, which
so far has frustrated the bringing to justice of those involved.
Another condition in
clause 1 is when the offence has been committed
“as a result of, in connection
with or in response to religious or political
hostility”.
The DPP could
be convinced that at least one of those conditions was satisfied
and—the second limb—that, in view of any of those
conditions, there was
“a
risk that the administration of justice might be
impaired”.
He would be in
receipt of all that valuable information, on which he would have to
make a decision. However, he would then have a discretion. That makes
no sense, given what the Minister has said about why the amendments
tabled by the hon. Member for Tewkesbury, who is not here at the
moment, and the hon. Member for Montgomeryshire could not be agreed to
and why the decision could not be given to a member of the judiciary.
The Minister rightly quoted from the Shuker case, which is valuable in
this context.
The
decision would lie with the DPP, who would be in receipt of all the
essential and sensitive information. However, it seems ludicrous that
even at that juncture,
when he was satisfied that there would be a risk to
the administration of justice, he could say, “Oh well,
I’ll exercise my discretion under the legislation and will not
go for a non-jury trial”. That does not stand up or make any
common sense
whatever.
I would like
the Minister to justify to the Committee why it is to be a discretion,
not a duty, as he also said that the Bill will “wither on the
vine” and that he is hopeful about the extent of intimidation in
Northern Ireland, which is severe. I say to the hon. Member for
Montgomeryshire that it is a matter of regret that there are no
representatives of his party on the Northern Ireland Affairs Committee.
We took evidence on organised crime last year, and witnesses gave us
true accounts—we have no reason to suspect that they were not
true—of intimidation of themselves and their families. It only
takes somebody to come up alongside a wife shopping in Tesco,
Sainsbury’s or wherever and whisper in her ear, “I know
where your children go to
school.”
12.15
pm
Northern
Ireland is a small jurisdiction and people live cheek by jowl with
those in paramilitary organisations. I therefore recognise, as has the
Minister, that there will be a need for non-jury trials for some time
to come. However, I cannot for the life of me understand why the clause
contains a discretion, not a duty, to issue a certificate. When all the
conditions are met and there is a risk to the administration of
justice, the DPP should obviously have to issue a certificate for a
non-jury trial rather than have discretion to do
so.
Mr.
Alan Reid (Argyll and Bute) (LD): It isa pleasure
to serve under your chairmanship,Sir Nicholas. It is the first
time that I have done so in Committee, although there have been several
occasions in Westminster Hall. I look forward to today’s
proceedings.
I wish to
speak in favour of amendments Nos. 3, 4, 5 and 6. They would further
the Government’s aim of a presumption in favour of a jury trial
by tightening up the criteria that the DPP can use for issuing a
certificate. At the moment, the Bill sets the bar very low: the DPP may
issue a certificate if he “suspects”
that
“there is a risk
that the administration of justice might be
impaired”.
Amendment No.
3 would remove the word “suspects” and insert the
words
“believes, on the
balance of
probabilities”.
Using the
word “suspects” would be a very low test for the DPP to
employ—much lower than a test on the balance of probabilities.
The amendment would raise the level of the test to ensure that the DPP
must be at least 50 per cent. certain that the conditions set out in
the clause are
met.
Amendment No. 4
would also tighten the language of the clause. The DPP would have to
agree that there was a “real and present danger” of the
administration of justice being impaired if a trial were conducted with
a jury. For that language we have drawn on the Criminal Justice Act
2003. Section 44(4) of that Act imposes a condition of
“evidence of a real and present
danger that jury tampering would take place.”
The same wording should be in the Bill.
Amendment No. 6, too, would tighten the language by stating that the
DPP would have to believe before issuing a certificate that the
administration of justice would be
impaired.
Amendment
No. 5 is a probing amendment. The Bill uses the term “the
administration of justice”, which we propose to replace with
“the interests of justice”. That is a well known and
much-used term in legislation, whereas I do not know what the
Government mean by “the administration of justice”. That
conjures up notions of management and something being run efficiently
instead of the perhaps less tangible but none the less well understood
principle of something being done for the good of justice. The language
in the amendment ties in much better with the principle of a fair trial
that is seen to be conducted in the interests of justice rather than
expedited for the sake of time
management.
The term
“the interests of justice” is used in section 44 of the
2003 Act. Will the Minister confirm whether the word
“administration” was used intentionally instead of the
word “interests”, and can he explain what he intends that
to mean? I hope that he will take on board our worry about the
important difference between the interests of justice and the
administration of justice.
I hope that the Government will
accept the amendments, as they further the aim of the presumption in
favour of a jury trial.
Mark
Durkan:
Hon. Members will not be surprised to learn, given
my earlier comments, that I will not support the
amendments—although I have different reasons for different
amendments. In the case of amendment No. 24, tabled by the hon. Member
for North Down, to remove the proposed discretion of the DPP would
compound the difficulties that the Bill brings. The DPP would lose the
discretion to issue a certificate or not and would automatically have
to go for a non-jury trial. Let us remember that clause 1(2) states
that the provision applies if the
DPP
“suspects that any of
the...conditions is
met”
and
if
“he is satisfied that
in view of this there is a risk that the administration of justice
might be impaired”.
The
reference to any of the conditions includes if the person has been a
member of a proscribed organisation at any time, and if a person is an
associate of someone who was a member of a proscribed organisation at
any time. Contrary to the impression given by the Minister earlier that
what makes the measure absolutely guaranteed to be uniquely specific to
Northern Ireland is the emphasis on proscribed organisations, there is
no suggestion that the crime has to be absolutely connected to the
purposes, causes or interests of a proscribed organisation. Yes, that
is one of the other conditions that might have to be met, but they do
not all have to be met.
When we see the definition in
clause 1 of who is an associate of another person—a spouse or
former spouse, a civil partner or former civil partner, when
“A and B (whether of different
sexes or the same sex) live as partners, or have lived as partners, in
an enduring family
relationship”,
when
“A is a friend of
B”,
or when
“A is a relative of
B”—
and if there
is to be no discretion or if no judgment is to be made on whether there
are to be non-jury trials, we have to consider whether amendment No. 24
is helpful and whether it could create an odd situation.
If, as the Secretary of
State’s comments on Second Reading lead us to suggest, the DPP
has been influenced or counselled by information from MI5 or some other
source, and if some of the conditions are met, and any one of them
alone has to be met, not all of them combined, it seems
wrong—
Mr.
Bone:
I understand what the hon. Gentleman is saying about
clause 1(2)(a), but there is also the hurdle of clause 1(2)(b) to be
overcome. It seems to me that there is an absolute logic that if
paragraphs (a) and (b) are in place, it should be “shall”
and not “may”.
Mark
Durkan:
The hon. Gentleman will recognise that I am not as
convinced on the subject of clause (1)(2)(b) as others are, because I
am not confident about the way in which the Government have explained
how a risk to the administration of justice is to be determined and
about the Secretary of State’s ready reliance on the protection
of intelligence sources or national security considerations. I am not
assured that paragraph (b) means what it is intended to mean at all,
because nowhere in the Bill do we see a reference to national security
or intelligence sources, yet that is exactly what the Government have
resorted to as their first line of defence or explanation as to what
would be the considerations for using the power. That has to be very
worrying for us as
legislators.
If the
Government are saying that intelligence sources or national security is
the reason, that is what should be in the Bill. As legislators, we
should be saying clearly that that is the reason and it should be
covered in the Bill, but it is not, so I take no comfort from the fact
that both subsection (2)(a) and subsection (2)(b) have to be met. The
worry is that only any of subsections (3), (4) or (5) have to be met in
terms of the other conditions—any of
those.
Lady
Hermon:
The hon. Gentleman leads a party that was
enormously courageous in taking its seats on the Policing Board years
ago, when Sinn Fein did not and should have, and he, as party leader,
and his party have very much supported justice and law and order. Is he
actually trying to persuade the Committee that even if the DPP is aware
that there is a risk to the administration of justice because one or
other of the conditions is met, the DPP should turn a blind eye to
that? I cannot believe that the leader of the SDLP is saying that to
the Committee.
Mark
Durkan:
First, there are provisions for non-jury trials in
exceptional circumstances in the Criminal Justice Act 2003. We are not
challenging those. Secondly, the House legislated last year to
remove provisions for non-jury trials, and rightly so. The Government
stated very confidently and very clearly why the House should be able
to do that, guaranteeing an end to non-jury trials beyond 2008, with
the exception of whatever might emerge from the use of the 2003 Act.
That is a position that we support—a position that we think is
justified. We have not conjured up the scenario that I am discussing;
the Secretary of State raised it on Second Reading. The point was made
that people from MI5 might go to the DPP and the DPP then goes to the
judge and says, “Here’s your certificate for a non-jury
trial.” It was the Secretary of State who presented the scenario
in those very colloquial terms. That does not seem to me to be the way
in which justice should be administered—somebody gets private
information and somebody else produces a
certificate.
We still
do not yet know what is to be stated on the certificate. Is the
certificate to state which of the conditions applies? Is it any of
them? Is it all of them? Is it to be suspected of a defendant in a
non-jury trial that all three conditions apply, or is the defendant, or
his or her lawyers, meant to argue or say, “Well, we can
guarantee this doesn’t apply and that doesn’t
apply”? I ask that because there is automatically a suspicion
and a stigma on a defendant in that
instance.
The issue
partly touches on clause 2, because there is a reference in clause 2 to
a certificate being modified. When we discuss clause 2, we do not know
what modifying a certificate might mean if we do not know what will be
on the certificate. Will the certificate say which, if any, of the
conditions
apply?
Lembit
Öpik:
Does the hon. Gentleman agree that it is
quite conceivable that this problem could become salient to the pursuit
of the case in court, because all kinds of inferences can be made that
could to some extent determine the outcome of the
trial?
12.30
pm
People need to
think about what this legislation’s full consequences might be
in practice. Some things work the other way around. Usually that starts
happening after a couple of cases where lawyers and so on get some
traction on how to approach and to exploit these things on behalf of
their defendants.
On
amendments Nos. 2 and 3, I recognise what the Liberal Democrats are
trying to do in changing some of the language, but I am not sure that
they go far enough to meet my basic concerns. I opposed other
amendments that, in effect, accept the position of no-jury courts. For
the same reasons, I would not be able to support those amendments
either.
Sammy
Wilson:
I say at the outset, as we made clear during
debate in the House, that we believe it is premature to move away from
non-jury trials, for many of the reasons that have been given by the
hon. Member for North Down. We have taken evidence in the Northern
Ireland Affairs Committee on the degree of intimidation that, in some
cases, led to people even being reluctant to come to give evidence to a
Committee of this House, let alone to stand up in court to give
evidence in public.
A
degree of intimidation still exists, so we will support any provision
enabling non-jury trials to remain. Thus we will support amendment No.
24. Given the points made earlier by the Minister on the continued need
for non-jury trials, I cannot see how the Government could resist that
amendment if there is a need and if it has been proved that those
conditions can be met.
I noted the remark of the hon.
Member for Foyle that the provision applies when
“any of the ... conditions is
met.”
However, that is
not the case. A judgment must also be made that, if any or all of those
conditions are met, there is an associated risk. If there is an
associated risk and only half of those conditions are met, surely we
should not take the risk that a conviction might not result through
intimidating or tampering with the jury. I would have thought that,
given the grip that organised criminals associated with paramilitary
groups have in Northern Ireland, it would have been in
everyone’s interest to make sure that we had no situation
develop where people could escape justice because they were associated
with a paramilitary organisation—especially when the authorities
already knew that there was a risk of them using their positions to try
to tamper with the judicial system. It is eminently sensible to change
the word from ‘may’ to ‘shall’, simply
because, once the risk is there, the DPP should proceed with a non-jury
trial.
I am at a bit
of a loss, because the amendment has been grouped with others that are
designed to try to reduce the possibility of a non-jury trial. All the
amendments tabled by the Liberal Democrats seek to tighten the
conditions. I believe that some of them are unworkable. For example,
amendment No. 6 would allow for a non-jury trial if the administration
of justice “would”—not
“might”—be impaired by a jury trial. How would the
DPP prove that it would be impaired? After weighing up all the evidence
and the balance of possibilities given people’s associations,
the
DPP could of course conclude that those associations
might be used to nobble or intimidate a jury, but it could not be
guaranteed. If we put something that unworkable into the legislation,
there is a difficulty that non-jury trials will not be
possible.
Amendments
Nos. 3 and 4 would change “suspects” to
“believes” and “risk” to “real and
present danger”. That would tighten up the requirement, but it
would also open it up to further interpretation and make it more
difficult to go down the road of non-jury trials. For those reasons, we
will reject the Liberal Democrat amendments. I believe that where it is
clear that people present a risk through their associations, the DPP
should have no discretion but should be obliged to hold a non-jury
trial.
Mark
Durkan:
It might help if the hon. Gentleman addressed the
point that the Secretary of State has already introduced. National
security and intelligence could be an obvious prop to the DPP. Under
this administrative procedure, the DPP is an officer of a devolved
public service. Is the hon. Member content that if the DPP is left with
no discretion after the Bill passes—and it is permanent, not
renewable—a certificate will be issued as soon as the DPP gets a
call from MI5? He will have no discretion, and no other judgment will
be
made.
Sammy
Wilson:
Given that the decision would be based on a
perceived risk of interference with the jury, I would err on the side
of ensuring that someone who committed an offence and was going through
the system had a better chance that the system had not been interfered
with.
I return to the
hon. Gentleman’s earlier point. Very often, national
intelligence comes from intelligence sources, and I do not believe that
we can afford the risk of exposing them. He mentioned that people
jumped up and down about the Denis Donaldson case, but the case fell
because there was a risk that trawling through all the information
available on Denis Donaldson could have exposed well placed
intelligence sources that were still of use to the security services. I
do not think that anyone wants to risk
that.
Mark
Durkan:
Those considerations have nothing to do with the
administration of justice, or what anyone would understand to be the
administration of justice. People might understand them as legitimate
considerations and understand that Government and others might want to
offer protection, depending on how they see such matters, but they have
nothing to do with the administration of justice. That the hon.
Gentleman resorts to such arguments corroborates my concerns regarding
the Secretary of State’s remarks. Will the hon. Gentleman not
address the fact that he is saying that non-jury courts would somehow
protect intelligence services? Is he arguing that non-jury courts
require less evidence and would consider evidence less than jury
courts? That is the logical implication of what he
said.
Sammy
Wilson:
No, I am not saying that at all. I thought that
the hon. Member for Foyle was making the point that, at an early stage,
before we even decide whether a case will go through the jury system,
there
could be a trawl to discover how, for example, the conclusion was
reached that someone was associated with a paramilitary organisation.
To introduce the opportunity for the defence to use that kind of
trawling mechanism at that stage and to stop a case short in its tracks
would be unacceptable.
The reason why I support the
hon. Lady’s amendment is that once the DPP has been assured that
certain conditions are met and that they are likely to lead to a risk,
of course it makes sense for the case to go to a non-jury trial rather
than to run the risk of the trial having to be
aborted.
Mark
Durkan:
I simply ask the hon. Gentleman: how would anyone
but the DPP know? He said, “Once the DPP has been
assured,” but there is no indication of what serious test the
DPP would require. The Secretary of State introduced a suggestion of
things being done in a secretive and unsatisfactory way. Later in his
remarks, he also touched on the fact that the judge might want to ask
the DPP privately about certain things. That is not the way that some
of us would see justice being properly and duly administered. The hon.
Gentleman needs to address the question of how the public will have
confidence in what they cannot
know.
Sammy
Wilson:
I will deal with the hon. Gentleman’s first
point that there are no serious tests. There are two serious tests:
first, the DPP must believe that some of the conditions outlined in
subsections (3), (4), (5) and (6) are met; secondly, he must be
satisfied that there is a risk before he can move to recommend a
non-jury trial. That is a serious
test.
It is not always
right, especially if there is a risk of exposing where that information
came from, for the public to know how or where the DPP got that
information. There cannot be such a degree of transparency, especially
if it risks exposing the source from which the information
came.
Mark
Durkan:
The fact is that in respect of non-jury
trials, the tests that the Bill confers on the DPP have a much lower
threshold than the tests in the 2003 Act. Normally, where a judgment
must be made about a risk it is a judgment about the significance of
that risk, not just that there might be a risk. Anyone could conjure up
any possibility of a risk in these circumstances. The hon. Gentleman
also needs to accept that that can apply in a range of cases, not
merely in troubles-related offences. Schedule 1 gives other legislation
that is amended as a consequence of the proposal, including the
Domestic Violence, Crime and Victims Act 2004. We must be vigilant,
before hon. Members nod this Bill through the
House.
Sammy
Wilson:
We also have a duty to be vigilant to ensure that
those who wish to abuse the very open process that the hon. Member for
Foyle recommends should not be allowed to have their
way.
12.45
pm
There is enough
evidence in Northern Ireland at present to show that there are those
who still have the power to abuse the system, to interfere with juries
and
to escape the justice that they deserve. For that reason it is important
that the DPP does not run the risk of allowing someone to walk free if
some or all of the conditions have been met—if there is a risk
that they might interfere with the jury. Opinions differ: some people
want to expose the justice system, in a society in which strong
terrorist tendencies and organisations remain, to a degree of
transparency and to risks, to which it should not be exposed. Others
believe that the advantage should lie with the judicial system, not the
terrorists.
Dr.
Nick Palmer (Broxtowe) (Lab): I apologise for intervening
on our discussions on the clause—unfortunately, I missed the
first few minutes including the introduction by the hon. Member for
North Down, whom I respect for her long-term commitment to the matters
before us.
Most of us
here are treading a difficult path between two types of amendment. On
the one hand, the amendments tabled by Liberal Democrat Members attempt
to fix with considerable rigidity the conditions under which the DPP
can intervene, and on the other hand, other amendments would require
the DPP to intervene if certain conditions were met. I should like to
make a point that has not really come out yet: most of us want a
gradual evolution in Northern Ireland. I do not think that any of us
want a long-term future for the Province in which non-jury trials are
commonplace. Neither do we want to be blind to the fact that there are
terrorist threats and individuals, if not, organised groups, who would
still attempt to influence trials improperly.
How do we deal with such an
evolution? It seems to me that we need to give the DPP a degree of
discretion allowing the frequency of intervention to diminish in
proportion to the gradual normalisation of Northern Ireland. The
alternative would be to redraft the Bill in a sort of ratchet process
so that every time we feel that the risk has diminished a little, we
fine tune the regulations. For that reason, rather than party loyalty,
I feel that we should resist the amendments and allow the DPP a degree
of reasonable
discretion.
Paul
Goggins:
To pick up the theme of my hon. Friend the Member
for Broxtowe, we all share the desire to move towards more normal
conditions in Northern Ireland, in which risks are reduced, fewer
people belong to proscribed organisations and there is less
intimidation. As those conditions unfold, and as a result of the
provisions before us, there will be fewer trials without jury. However,
as was said earlier, those conditions still exist to some degree so the
provisions are
necessary.
On the
amendment tabled by the hon. Member for North Down, and supported by
the hon. Member for East Antrim, I understand her motives for inviting
the Committee to replace “may” with
“shall”. I hope that I can offer her an explanation of
why her fears are unfounded and the chosen word appropriate. I expect
that when both limbs of the test are met, a certificate will be issued
by the DPP. However, my argument must be consistent. My hon. Friend the
Member for Broxtowe alluded to this: I have made the point before, not
least in relation to the Shuker judgment, that the decision whether to
issue a certificate is akin to the
decision on whether to prosecute. We do not fetter the prosecutor in
making that judgment, and we shall not seek to fetter him regarding the
decision to issue a certificate. However, I expect that he will issue a
certificate if the conditions are met.
The Criminal Justice Act 2003
states that the prosecutor “may” rather than
“shall” decide whether to apply for a non-jury trial. We
must be consistent. We expect that if the conditions are met the
certificate will be issued, but we should not fetter the prosecutor
with the absolute terms suggested by the hon. Lady. Our approach is
that the legislation should be consistent with the Criminal Justice Act
and other arguments that I have adduced elsewhere. We do not expect
that the DPP will be haphazard in judging when to issue
certificates.
Mr.
Bone:
Can the Minister give an example in which the two
conditions would be met but no certificate would be
issued?
Paul
Goggins:
The simple answer is no, I cannot foresee any
situation in which the conditions are met and the DPP would not issue a
certificate. The problem with legislating, however, is that we might
all think today that there are no circumstances in which the tests are
satisfied and a certificate should not be issued, but there might be
circumstances in the future that none of us can foresee that require
allowing the DPP more discretion. That is the reason for the
discretion. It is not because we expect there to be such circumstances,
but because they might occur. As my hon. Friend the Member for Broxtowe
said, if we draft the legislation to fetter the DPP’s discretion
in that way, we constrain the situation and the wrong thing might
happen as a result. So, although I cannot foresee any such
circumstances, it is important to be consistent with other legislation
and leave the DPP that
discretion.
I turn to
the point raised by the hon. Member for Foyle. I look forward to him
supporting some of the measures in the Bill, but one lives in hope and
dies in expectation. There will not be any detail in the certificate
about the information that the DPP has considered or his reasoning.
There would be clear dangers in doing that for individuals who are
mentioned in the information, and a danger that inferences will be
drawn from it that could prejudice an individual’s right to a
fair trial. For example, if it is noted on a certificate that an
individual is a member of a proscribed organisation, that might lead to
inferences being drawn that have nothing to do with the matter at hand.
It is therefore in the interests of justice and necessary to protect
sources and individuals that details are not contained in the
certificate.
Mark
Durkan:
I thank the Minister for that clarification, but
if there is absolutely no information on certificates, I am not sure
how they might be modified under clause 2. Surely, there is a danger of
inferences being drawn about all three of the conditions when there is
no indication of which has been fulfilled. If a certificate is issued
simply because someone is possibly a friend of someone who has been a
member of a proscribed organisation, and the other conditions about the
offence being committed on behalf of a proscribed organisation do not
apply,
surely that presents a danger for someone who happened to be a friend of
such a person.
I do
not know what the test of being a friend of a former member of a
proscribed organisation would be. Perhaps sharing the office of the
First and Deputy First Ministers would qualify someone as being a
friend or associate of a former member of a proscribed organisation. If
that is the only ground on which a certificate is issued, will not that
person be put in a situation in which the court and the wider public
will draw all sorts of
conclusions?
Paul
Goggins:
We are returning to some arguments that we had
earlier. I made the point, although not all Committee members accepted
it, that going down the judicial route, with more of this information
on display for people to see, runs incredible risks. It is for that
reason that the information described by my hon. Friend will not be on
the certificate. It would be wrong if it was and would place people at
risk.
I shall move on
to the other amendments in the name of the hon. Member for
Montgomeryshire and moved ably by the hon. Member for Argyll and Bute.
In contrast with the other amendment that we have just been discussing,
the hon. Member for Argyll and Bute invites us to raise the bar of the
test so that there would be fewer trials by judge alone. All the way
through our deliberations on this matter, we have had to make a
judgment about where to draw the line. If the line is drawn too low, it
means that more cases would be heard by a judge alone than we would
wish to see. However, if it is drawn too high or the bar is raised too
high, there is a serious risk that although people will be tried by
jury, justice would not be done and people would be
intimidated.
Introducing the
words,
“on the balance of
probabilities”,
for
example, as in amendment No. 3, raises the bar too high, destabilising
the balance that we have tried to draw and increasing the
risk.
It is important
to get on the record that, if there is a risk and a judgment to be
made—we have to make a judgment—I would sooner err on the
side of caution, with a fair trial by a judge alone, than risk justice
not being done by allowing people to be tried by jury who should not be
tried in that way because they pose a real risk. I make no secret of
that. In making these judgments, we try to be as close to the balance
point as possible, but if we are going to tip either way we should
tip on the side of caution rather than risk. The people of Northern
Ireland would expect no
less.
Amendment No. 4
would insert the words “real and present danger”. That is
relevant in relation to the 2003 Act, where the trial is already
ongoing and there is information about actual jury intimidation.
However, we are judging something different from that; we are judging
the possible risk of jury intimidation and the risk that justice might
be undermined or impaired because of the background, record, and so on,
of particular individuals. We are judging risk, rather than dealing
with the real and present danger. If there is a real and present danger
and the trial is ongoing, the prosecution can apply for a judge-alone
trial. But these provisions are about making a judgment on risk. If we
raise the bar too high, a considerable amount of risk would not be
properly accommodated within the system. There are few cases of jury
intimidation in Northern Ireland—11 since 1999—but the
reason is that those cases where the risk is greatest are heard in the
Diplock system. That has been a good safeguard against jury
intimidation. Nevertheless, there have been 11 cases since
1999.
In relation to
the semantic argument about the interests of administrative justice, I
say to the Member for Argyll and Bute that I chose the term
“administration of justice” because we were considering
whether system is capable of delivering a fair trial. That is the
purpose behind the word “administration”. I am happy to
reflect a bit more on the semantics and see whether we have got the
right word.
In
relation to amendment No. 6, which would have the clause say that the
administration of justice “would” be impaired, rather
than there being a risk, how can we know for certain sure that things
will happen? We cannot know that. We are asking the DPP to make a
judgment about what might happen, bearing in mind the intelligence and
information that he may
have.
Lady
Hermon:
I commend the Minister for his persuasive
argument, but of course I am not going to be persuaded by it. I cannot
accept that the DPP, in whom we place so much responsibility and
confidence in respect of upholding justice in Northern Ireland, should
turn a blind eye to the
risk—
It
being One o’clock,
The Chairman
adjourned the Committee without Question put, pursuant to the Standing
Order.
Adjourned
till this day at half-past Four
o’clock.
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