Justice and Security (Northern Ireland) Bill

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Clause 5

Mode of trial on indictment
Lady Hermon: I beg to move amendment No. 30, in clause 5, page 4, line 31, leave out subsection (4).
I am very concerned about clause 5, which was alluded to in passing by the hon. Member for Foyle and the hon. Member for Montgomeryshire (Lembit Öpik). Having named them, I will check that, but I think that they were concerned that inferences might be drawn from a certificate for a non-jury trial being issued by the DPP. The provision that may allay the fears of the hon. Gentlemen is in clause 5—which I am attacking this afternoon:
“No inference may be drawn by the court from the fact that the certificate has been issued in relation to the trial.”
The wording is interesting, with the emphasis on “the fact”, not on no inference being drawn from the certificate.
Given the Minister’s good track record in the Home Office—which I say in all sincerity—he will be familiar with the provisions of the Criminal Justice Act 2003. He has quoted heavily from the Act to justify having to issue the certificate before arraignment, which I have objected to—but we have moved on. The Minister will be well aware of the provisions on bad character in the 2003 Act. The House wisely decided to change the law so that a defendant’s bad character would be admissible as evidence if certain conditions were satisfied. I will not read out all those conditions, but interested members of the Committee can look at section 101 of the Act. The defendant’s bad character can now be included in evidence in criminal proceedings.
Not to labour the point too much, but the introduction to Northern Ireland of the provisions about non-jury trials, when there is evidence of real and present danger of jury tampering, has taken an inordinate length of time—since 2003 until 8 January 2007. Could the Minister assure the Committee that the provisions on bad character, which were also legislated for in the 2003 Act, now extend to Northern Ireland? If they do not, why in heaven’s name do they not? We are part of the United Kingdom and if the provisions are good enough in Great Britain they should also be extended to Northern Ireland. There is provision in section 334 of the Act for bad character provisions to be extended to Northern Ireland. My first question to the Minister, therefore, is whether those provisions have been extended and, if so, when was that done. I suspect, with a sinking heart, that they have not. As with the jury tampering provisions, until we highlight the issue the Northern Ireland Office will not see fit to extend the bad character provisions. However, I hope to be surprised, although I will eat my hat if I am.
Secondly, will the Minister explain the impact of subsection (4) on a bad character application? Can the facts that the DPP used to come to the conclusion that a non-jury trial is appropriate, and which lead to the issuing of a certificate for such a trial, go towards a bad character application being made against the defendant? I should like the Minister to address those two issues, and that is my reason for tabling the amendment.
6.30 pm
Mark Durkan: I oppose the amendment. As the hon. Member for North Down said, I have expressed concerns about the possibility that inferences might be drawn not only by the court, but more widely, and particularly where there is no indication of which conditions are supposed to have informed the DPP’s issuing of a certificate. If the amendment were successful, there would be no restriction on a court drawing an inference from the issuing of the certificate. We do not, of course, know what effect other evidence in the case might have.
I am particularly concerned because of some of the Secretary of State’s comments on Second Reading. At one point, he obviously misunderstood the Bill, because he said:
“the DPP must put the matter before a judge. If the judge took the view that the action was unreasonable, he would obviously have an argument with the DPP.”—[Official Report, 13 December 2006; Vol. 454, c. 902.]
Obviously, that is completely wrong, as we all know from our reading of the Bill. However, the Secretary of State later said:
“the Bill is clear that the DPP essentially takes the decision and issues the certificate, but he must have good grounds for that. The judge may want to ask him privately about the decision.”—[Official Report, 13 December 2006; Vol. 454, c. 903.]
I would be very concerned about a judge privately asking the DPP about some of the issues and conditions, perhaps being privately told what they were and then being allowed, in conducting the court, to draw an inference from the fact that a certificate had been issued. That breaches even the claims that were made about the Diplock courts, where judges had to warn themselves and meet all sorts of conditions so that nobody could say that what was done was of a lesser quality than what would have been done in a jury court.
Putting a judge in a non-jury court in circumstances in which he can draw a particular inference from the issuing of a certificate will take the Bill into even more dangerous territory than it is in already. I therefore oppose the amendment.
Paul Goggins: On the question of whether evidence of bad character has been introduced in Northern Ireland, it is in force there, not under the Criminal Justice Act 2003, but under equivalent legislation—the Criminal Justice (Evidence) (Northern Ireland) Order 2004. That is a different route, but I am sure that the hon. Member for North Down will be pleased to know that that is the situation. I hope that that will add to the credibility and strength of the justice system.
The clause is the result of a switch in presumption in relation to the decision as to whether a trial should be by judge alone, rather than by jury. Under the present, Diplock court system, the Attorney-General will not de-schedule a case unless he is satisfied that it is not connected with the emergency in Northern Ireland. In other words, he has to have positive evidence and information that a case is not connected with the emergency in Northern Ireland. There may not be any evidence, but for him to de-schedule it there has to be positive evidence that it is not connected with the emergency.
Under the system that we are proposing, where the presumption is changed, if a certificate has been issued, everybody will know that some positive information must have come before the Director of Public Prosecutions relating to membership of a proscribed organisation, involvement in political or religious hostility or the risk that the administration of justice would be impaired. In other words, the issuing of a certificate will signal that positive information and evidence has been seen by the DPP, leading to a judgment that the case should be tried by judge alone.
One can foresee that there would be more grounds for inference based on the issuing of a certificate than there would be under the de-scheduling of cases in the current system. We seek to question neither the credibility of the justice system in Northern Ireland, nor the senior judges that preside over it: they are used to dealing with cases on the facts and reaching their conclusions in the right way. Given that we are switching the balance in respect of how the test is carried out, it is important that it is switched in favour of a presumption of trial by jury, rather than not. It is important to include this small addition to the clause to make it clear that no inference can be drawn from the fact that a certificate has been issued. It is included to strengthen the credibility of the justice system. Although that is what judges do, it is none the less important to include this provision in the Bill. I hope that that reassures the hon. Lady. We seek to make it explicit that no inference can be drawn from our changing the way in which the test is carried out.
Lady Hermon: First, I am delighted to know that the bad character applications are available in Northern Ireland ahead of the provisions on jury tampering— that has slipped under the radar—and that there will be a non-jury trial where there is evidence of jury tampering. The Minister has kindly addressed that issue.
Secondly, could the facts leading to the DPP’s conclusion about a certificate being served also go towards a bad character certificate being issued?
Paul Goggins: I apologise to the hon. Lady for not mentioning that in my response. Information could go into both processes, but the important thing to emphasise is that there are two distinct processes: one determines whether a certificate could be issued; the other is a finding of fact in relation to the allegation and the charge that has been made. Although the processes are different, the same information can go to both.
Lady Hermon: That was the most useful intervention from the Minister that I have had all afternoon. I am enormously grateful and he is enormously relieved. Those are helpful assurances. We Committee members are tasked with the job of producing good legislation that deals with all circumstances. My amendment was intended to give the Minister an opportunity to explain what the clause means. I am delighted with his assurances and with the clarification with which he has provided the Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Robertson: I beg to move amendment No. 11, in clause 5, page 4, line 33, leave out subsections (5) and (6).
I raised this matter previously. The amendment provides that, where the court is not satisfied that a defendant is guilty of an offence that is being tried, but is satisfied that he is guilty of another offence of which a jury could have found him guilty after trial, the court may convict him of the other offence. My concern is that somebody who is tried without jury for a specific offence can be found not guilty of that offence but convicted by that same court, without a jury, of a completely separate offence. Is that correct? If the second offence is a similar one, it could be argued that it would waste a lot of court time to start the trial all over again, but if it is very different, should it not be considered in a different way and separately? I do not wish to drag this out. I have raised the matter before, and the Government came up with all sorts of explanations, but I should like to hear what the Minister has to say about why they group two offences together.
Paul Goggins: I shall try to give a short but careful explanation, because I know that the hon. Gentleman has raised the issue before, and it is important to give the correct answer.
Subsection (5) enables the non-jury court to convict a person of an alternative offence, where the defendant is found not guilty of the offence for which he is being tried. The principle behind that provision is taken from normal criminal procedure. A jury can find a defendant not guilty of an offence with which he has been charged, but guilty of an alternative lesser offence even if that offence has not been put on the indictment. Alternative verdicts are available only where the lesser offence consists only of legal elements contained in that originally charged. That means that where a defendant is charged only with murder, a jury can acquit of murder but instead convict for manslaughter, because murder is similar to manslaughter. It is the same with robbery and theft. There might be a trial for robbery that is not found, but if theft is found the conviction is made.
It is not possible to move from murder to theft or from murder to robbery. The offences have to be of like nature for a conviction on the lesser offence to be found. The lesser offence arises from the same facts, and therefore the circumstances that have led to the decision for non-jury trial in that case will apply. It clearly makes sense for the tribunal that has already heard all the witnesses and come to a conclusion on the facts to enter the appropriate verdict rather than to start from scratch. It is in the interests of justice that we do not start all over again. That is important—the criminal justice system does not allow us to start all over again on the same charges. Under the changes to the double jeopardy rule—this takes us back again to the Criminal Justice Act 2003—it is possible to retry for the same offence only where the matters are very serious and there is new and compelling evidence.
If we do not give the judge here the same powers that a jury would have to convict on a lesser offence, somebody who is not convicted of the most serious offence but who has none the less committed an offence, could walk scot free from the court. That would indeed be something that any member of the Committee would regret.
Mr. Robertson: I am grateful to the Minister for his explanation. Is he satisfied that, as the Bill is drafted, the two offences—murder and manslaughter in the example that he gave—would be linked?
Paul Goggins: I am satisfied that they would. The Bill is clear enough, and that is understood in criminal justice legislation and procedure generally. There has to be that close association between the two offences for there to be a finding of guilt on the lesser offence. That relationship has to exist; it is not possible for the court to switch dramatically from one offence to another.
Subsection (6) contains one of the main safeguards applicable to non-jury trial. Where the court convicts a defendant, it must give a judgment stating the reasons for the conviction at—or as soon as is reasonably practicable after—the time of the conviction. That helps to ensure the European convention on human rights compatibility of the system. It also provides transparency and helps to increase confidence that non-jury trials are fair. That is the point that the hon. Member for East Antrim made when we discussed clause 1. The fact that a trial is a non-jury trial does not mean that it is an unfair trial. The standard of justice has been very high indeed, and part of the underpinning of that is to ensure that the statement is made clearly at the end of the trial or as soon as possible afterwards. It is a safeguard to ensure that, in what are extraordinary, unusual circumstances, justice is done and—[Interruption.] My hon. Friend the Member for Foyle spots when I am getting to the end of my last sentence. Again, I will happily give way.
6.45 pm
Paul Goggins: The issue is important. My hon. Friend has questioned the transparency of the system that we propose, and I have defended it and explained the Government’s position. It is important that at last we have something on which we can agree, which is the importance of the fact that the court makes absolutely clear the reasons for the finding of guilt and provides an explanation of that. That ensures that we comply with human rights legislation and, as important, it offers credibility to the system that we are putting in place, so that justice is done and is seen to be done, even if some of the decisions are not particularly transparent to the public eye. I hope that that explanation helps the hon. Member for Tewkesbury. I hope that I have calmed some of his fears and that he will consider withdrawing the amendment.
Mr. Robertson: I thank the Minister for his patient explanation. As the Bill is written, it does not give a guarantee that it is impossible to move from one offence to a different offence. I assume that the Minister is saying that the legislation that prevents that from happening covers Northern Ireland. If it does, I suppose that the question is why the subsection was put in the Bill if what has been described can happen anyway. I am happy to take an intervention.
Paul Goggins: I sense that the hon. Gentleman—I hope that I am correct—does not necessarily wish to press the amendment to a Division but does want a bit more background information, which I am happy to provide to him and other members of the Committee. I can assure him that what I have said is true, but perhaps we need to reference that a little more clearly for the hon. Member for Tewkesbury. That might satisfy him on the point.
Mr. Robertson: I am grateful to the Minister. Given that assurance, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 ordered to stand part of the Bill.
Clause 6 ordered to stand part of the Bill.
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