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
Mark
Durkan:
Does the Minister agree—well, I do not
expect him to agree with the premise of the point,
so I will rephrase it. Does the Minister accept that
the problems with the credibility of a situation where certificates are
issued without the information being revealed or indicated, and people
do not know why the certificates were issued, would be compounded if
the court that was held on the basis of a certificate could convict
someone and, as a result of the measure, not be under an obligation to
produce a statement of judgment in a timely fashion that said why they
were convicted? Then, people would say, “We weren’t told
why we were going to a non-jury court, and now we’ve been
convicted and we’re not even told why we have been
convicted.”
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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