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Session 2006 - 07
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General Committee Debates
Justice and Security (Northern Ireland)

Justice and Security (Northern Ireland) Bill

The Committee consisted of the following Members:

Chairmen: Janet Anderson, † Sir Nicholas Winterton
Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
Bone, Mr. Peter (Wellingborough) (Con)
Cooper, Rosie (West Lancashire) (Lab)
Durkan, Mark (Foyle) (SDLP)
Engel, Natascha (North-East Derbyshire) (Lab)
Foster, Mr. Michael (Worcester) (Lab)
Goggins, Paul (Parliamentary Under-Secretary of State for Northern Ireland)
Hepburn, Mr. Stephen (Jarrow) (Lab)
Hermon, Lady (North Down) (UUP)
Hillier, Meg (Hackney, South and Shoreditch) (Lab/Co-op)
Jackson, Mr. Stewart (Peterborough) (Con)
Lancaster, Mr. Mark (North-East Milton Keynes) (Con)
McCrea, Dr. William (South Antrim) (DUP)
Norris, Dan (Wansdyke) (Lab)
Öpik, Lembit (Montgomeryshire) (LD)
Palmer, Dr. Nick (Broxtowe) (Lab)
Prentice, Bridget (Parliamentary Under-Secretary of State for Constitutional Affairs)
Reid, Mr. Alan (Argyll and Bute) (LD)
Robertson, Mr. Laurence (Tewkesbury) (Con)
Ruane, Chris (Vale of Clwyd) (Lab)
Waltho, Lynda (Stourbridge) (Lab)
Wilson, Sammy (East Antrim) (DUP)
Wright, David (Telford) (Lab)
Chris Shaw, Committee Clerk
† attended the Committee

Public Bill Committee

Tuesday 16 January 2007


[Sir Nicholas Winterton in the Chair]

Justice and Security (Northern Ireland) Bill

10.30 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.
The Parliamentary Under-Secretary of State for Northern Ireland (Paul Goggins): I beg to move,
(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.
Paul Goggins: I beg to move,
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 1

Issue 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.
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.
Mark Durkan: They will have powers that they would not have in north Yorkshire.
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?
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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.
Mark Durkan: It has happened before.
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.
Sammy Wilson (East Antrim) (DUP): I apologise,Sir Nicholas, for my late arrival.
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.
Paul Goggins: I read out to the Committee the phrase,
“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.
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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.
Mark Durkan rose—
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.
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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 ]
Bone, Mr. Peter
Jackson, Mr. Stewart
Lancaster, Mr. Mark
Öpik, Lembit
Reid, Mr. Alan
Robertson, Mr. Laurence
Bailey, Mr. Adrian
Cooper, Rosie
Durkan, Mark
Engel, Natascha
Foster, Mr. Michael (Worcester)
Goggins, Paul
Hermon, Lady
Hillier, Meg
McCrea, Dr. William
Norris, Dan
Palmer, Dr. Nick
Prentice, Bridget
Waltho, Lynda
Wilson, Sammy
Wright, David
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.
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”,
“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.
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
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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