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The Committee consisted of the following Members:

Chairman: Mr. Mike Hancock
Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
Chapman, Ben (Wirral, South) (Lab)
Crabb, Mr. Stephen (Preseli Pembrokeshire) (Con)
Donaldson, Mr. Jeffrey M. (Lagan Valley) (DUP)
Goggins, Paul (Minister of State, Northern Ireland Office)
Harris, Mr. Tom (Glasgow, South) (Lab)
Heyes, David (Ashton-under-Lyne) (Lab)
James, Mrs. Siân C. (Swansea, East) (Lab)
Ladyman, Dr. Stephen (South Thanet) (Lab)
Laxton, Mr. Bob (Derby, North) (Lab)
Liddell-Grainger, Mr. Ian (Bridgwater) (Con)
McCarthy, Kerry (Bristol, East) (Lab)
McGrady, Mr. Eddie (South Down) (SDLP)
Marris, Rob (Wolverhampton, South-West) (Lab)
Moss, Mr. Malcolm (North-East Cambridgeshire) (Con)
Robertson, Mr. Laurence (Tewkesbury) (Con)
Mr. Mike Clark, Committee Clerk
† attended the Committee

Eleventh Delegated Legislation Committee

Wednesday 1 July 2009

[Mr. Mike Hancock in the Chair]

Draft Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009
2.30 pm
The Chairman: Before we begin, I invite Members, if they wish and have not already done so, to remove coats and anything else that will make them feel more comfortable in the Room this afternoon.
The Minister of State, Northern Ireland Office (Paul Goggins): I beg to move,
That the Committee has considered the draft Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009.
I welcome you to the Chair this afternoon, Mr. Hancock.
The order extends the effective period during which persons charged with indictable offences can be tried without a jury in certain circumstances, as set out in the Justice and Security (Northern Ireland) Act 2007. Without this order, the system for judge-alone trials contained in that Act would fall on 31 July this year. I propose that it be extended until July 2011.
Trial without a jury under the 2007 Act is possible only when the Director of Public Prosecutions for Northern Ireland has issued a certificate under section 1 of that Act. The DPP may issue a certificate when he suspects that one or more of four conditions are met and thinks that, in his view, there is a serious risk that the administration of justice might be impaired if the trial were to be conducted with a jury. The four conditions are: first, that the defendant is, or is an associate of, a current or former member of a currently or formerly proscribed organisation; secondly, that the offence was committed on behalf of a proscribed organisation or that a proscribed organisation was involved with the carrying out of the offence; thirdly, that an attempt was made to prejudice the investigation or prosecution by or on behalf of a proscribed organisation; and, fourthly, that the offence was committed as a result of, in connection with or in response to, religious or political hostility.
Prior to the introduction of this approach, trial by judge alone under the Diplock system was automatic for certain offences unless the Attorney-General certified the case for jury trial, and that would have happened only if it was clear that the offence was not connected with the emergency in Northern Ireland. The risk-based approach contained in the 2007 Act ensures that defendants are tried without a jury only when that is absolutely necessary. In all cases, there is now a presumption in favour of jury trial. In entrusting to the DPP the decision of whether a case should be tried without a jury, Parliament has shown its respect for the integrity and professionalism of the holder of that office. I know that he takes great personal care in deciding whether to issue a certificate.
Every member of the Committee wants Northern Ireland to reach the point at which trials for all indictable offences can be heard before a jury. Indeed, the Government have for many years expressed their desire to return to jury trials for all cases as speedily as possible. Tremendous progress has been made over recent years. In the past two years, the majority of key decisions affecting Northern Ireland have been made by local politicians in the Northern Ireland Assembly. I believe that Northern Ireland’s politicians can approach the next stage of the devolution process with confidence as they prepare for the handover of policing and justice powers.
At an operational level, the criminal justice agencies are working tirelessly and effectively to deal with crime at every level. I launched just last week the Organised Crime Task Force annual report and threat assessment, which reported that more than £7 million-worth of criminal assets had been taken away from organised criminals in the last financial year. The Police Service of Northern Ireland continues to deal with the heightened dissident threat, while at the same time rolling out neighbourhood policing to every community in Northern Ireland. Over recent days, we have heard welcome confirmation from the Independent International Commission on Decommissioning that it has witnessed what it describes as a major decommissioning event by the Ulster Volunteer Force and Red Hand Commando, which it has been told includes all the arms under the control of those organisations. It has also said that the Ulster Defence Association is making significant progress.
Sadly, however, a small minority in Northern Ireland remain wedded to the past and continue to pursue the path of conflict rather than peace. The threat from dissident republicans is now greater than it was two years ago, and members of the Committee will all be aware of the murders of Sappers Quinsey and Azimkar, and of Constable Steven Carroll, at the beginning of March. They will also be aware of the recent horrific murder of father-of-four Kevin McDaid. Those who carried out those murders have no popular support, and the political leaders from all parties and communities have condemned them without reservation. However, the continuing threat posed by that minority, and the accompanying risk of community-based and paramilitary-based pressure on jurors, has led me to conclude that the possibility of trial by a judge sitting alone remains necessary in Northern Ireland, at least for the immediate future. We have an obligation to ensure that the criminal justice system is equipped to deal with each and every prosecution.
In reaching my decision, I have consulted a number of individuals, including Lord Carlile of Berriew, the independent reviewer of terrorist legislation, who has many years’ experience in Northern Ireland and who provided the Government with invaluable assistance during the development of the current non-jury trial system. He consulted a range of key bodies and individuals and concluded that the extension should be allowed. I also consulted the Chief Constable, ministerial colleagues at the Ministry of Justice, and the Attorney-General, who all agreed that extension was the right thing to do.
Ben Chapman (Wirral, South) (Lab): I hope that the Minister and my colleagues will forgive me for interrupting. Does my right hon. Friend have an estimate of when jury trials will be introduced for all cases? What account was taken of the views of people who objected to the continuance of trial without jury during the consultation?
Paul Goggins: I welcome my hon. Friend’s intervention. There are those—perhaps some are among us this afternoon—who object to the continuation of the provisions for judge-only trials in the 2007 Act. There was a vigorous debate in Parliament about the matter following a widespread public consultation. The consultation that I have undertaken has been limited to some key individuals who play an influential role.
My hon. Friend has pre-empted my final remarks, but it is a good time to say this: having consulted those key experts, my intention is that if there were to be consideration—or indeed before there was any consideration—by Parliament of a further extension from 2011, there should be full widespread public consultation. Although we have not had even two years’ experience of the new system, by then we would have three to four years’ experience, which would give enough information for a thorough, wide-ranging consultation in which all parties and organisations would be invited to participate. I therefore cannot predict at which point the provisions might no longer be necessary. I am confident that two years from now we will see a further reduction in such cases, but I cannot predict that with absolute certainty. Therefore, I cannot predict whether a Minister in two years’ time will be urging the House to renew the powers for a further two-year period, but no Minister should recommend that renewal in 2011 without thorough public consultation.
Dr. Stephen Ladyman (South Thanet) (Lab): I do not dissent from what the Minister says. I am no lawyer, so I do not understand all these things, but we have read recently that even in England there are certain circumstances in which a judge-only trial can take place. However, the process through which the authorities need to go to get justification for that seems to be more complex than the simple certification system that my right hon. Friend talks about. Is there a halfway house that could be considered between that position and going back to full jury trials with that more complicated process in place in Northern Ireland in the future?
Paul Goggins: I suspect that my hon. Friend is rather more expert than he lets on. He is right to indicate that a recent case in connection with a serious incident near Heathrow has proceeded under provisions in the Criminal Justice Act 2003. After the trial had collapsed three times, a decision was made, for the first time ever under those provisions, to hold the trial with only the judge there—without a jury. That was a very serious step. Those provisions also apply in Northern Ireland, so if there was such an incident as happened close to Heathrow—if trials collapse and it is impossible to sustain the prosecution with a trial by jury—that power would be available in Northern Ireland, even if the prosecution was nothing to do with terrorism or paramilitary activity. Although those provisions apply there, they would obviously be used sparingly.
Even though 41 certificates have been issued over the past two years, such decisions are not taken lightly and there is a rigorous procedure to follow. The DPP has to consider carefully all the information that he has to hand. Indeed, one or more of the four criteria that I set out would have to apply. The test is serious so that very serious and exceptional cases can be tried without a jury with the judge alone presiding.
I remind the Committee that Northern Ireland remains a relatively small part of the United Kingdom. Many of its 1.7 million people live in tightly knit communities. When we have such communities alongside the remnant dissident threat, the potential for juror intimidation remains real, which is why we are bringing the provisions forward.
We are in a better place now than we were under the old Diplock system. The presumption now is that there will be a trial by jury, which was not the case under the old system. Under that system, the presumption was that there would be a judge-only trial if a certain type of offence had been committed, so I think we are making progress.
Our criminal justice system relies on the willingness of members of the public to give up their time to act as jurors. If they are to discharge that duty properly, they must be able to consider the evidence and reach a verdict free from the fear of intimidation. Sadly, even with non-jury trials available for those cases considered to pose the greatest risks, juror intimidation continues in Northern Ireland. Four cases in particular have been brought to my attention, and in one the judge considered the circumstances to be serious enough to discharge a juror. The whole panel was discharged in another case. Even though we have special provisions for judge-only trials, there is therefore still evidence of juror intimidation, and that intimidation could become more widespread if we did not renew the powers. Threats to witnesses also continue in Northern Ireland, with 159 offences reported to the PSNI last year alone. I remain concerned that similar intimidatory tactics would be used against jurors if the ability to try certain cases by judge alone were taken away.
I have explained to my hon. Friend the Member for South Thanet and other members of the Committee that although a thorough review of progress over the past two years has been undertaken with a number of key individuals in the criminal justice system, there ought to be widespread public consultation before there can be further consideration of extension beyond 2011. I hope that that consultation will be held in due course. For now, I think the powers are necessary and proportionate.
2.44 pm
Mr. Laurence Robertson (Tewkesbury) (Con): I, too, welcome you to the Chair, Mr. Hancock. I start by taking the opportunity to congratulate the Minister on his elevation to the Privy Council, which is well deserved, I am sure that the Committee will join me in congratulating him on his promotion, if that is the correct word.
Yet again, I come to a Committee with my vote to say that I will, very reluctantly, not oppose the order. My reasons for saying “very reluctantly” are obvious. It is, of course, enshrined in law in this country that we all have a right to a trial by jury. Although the hon. Member for South Thanet is correct to say that certain changes have been made to that principle in England, I think that change is to be regretted. The opportunity to try certain people without a jury, available for a long time in Northern Ireland, is also a matter of regret. The Minister is right to say that change to the presumption from a non-jury trial to a jury trial, except in certain cases, was made two years ago. However, that was two years ago; we have to take into account what has happened since.
We know that there have been tremendous moves in Northern Ireland towards a more peaceful society, so it is regrettable that we cannot scrap this legislation. To be here not opposing the order is a great sadness to me, as was the occasion a month or two ago, when we discussed the extension of the arms amnesty to people who might want to hand in arms and who would not be prosecuted if they did so in the correct manner. It is a great sadness that we had to do that when we are told that things are so much better in Northern Ireland. When we have to pass such orders, it is contradictory to the mantra, if we can call it that, that we are moving towards normalisation. It is a great worry to me that we have to do that and that we have to come here today.
When we debated the arms amnesty extension—I hope it is not out of order to go back to that—I was persuaded by the Minister to go along with it, not only by the force of his argument, but by the fact that I trusted him, as I always do. I had to trust him when he said that things were happening in Northern Ireland that justified an extension of the arms amnesty. On that occasion I made some rather strong comments, saying that I had to accept the Minister’s word and be it on his own head if he was wrong. Well, actually, he was right. He was absolutely open and honest with the Opposition on that occasion, and I have no reason to believe that he is not being honest now when he tells the Committee that it is necessary also to extend the provision for non-jury trials.
We do not—we cannot—have the benefit of the intelligence available to the Government. However, I thank the Minister for his help and accessibility on this and many other matters and for always allowing me to speak to his officials on any occasion and on any matter. That is very helpful. However, even with all that help, we come to this point following the advice of the Minister, and I think we have to do that.
These are very difficult issues. I am not decrying what other hon. Members do in relation to other Departments, but when we talk about Northern Ireland issues, we are very conscious that people’s lives are at risk. If we do and say the wrong things, we can make matters much worse—it can be a matter of life and death. That is the position in which we find ourselves, so I am prepared to go along with the order today, but I want to ask a number of questions.
We talk about continuing threats from dissident republicans and from, perhaps, the UDA, which, I am sorry to say, has not decommissioned all its weapons yet, even though the UVF claims to have done so. I have called many times from the Dispatch Box for the Loyalist paramilitaries to decommission and I am very pleased that we are moving in the right direction, but we are not there yet. Threats to the security of Northern Ireland exist. I want to press that a little bit further and ask what sort of evidence there is, not of the existence of a security threat, but of a threat to jurors. The two are, perhaps, different things, although, as the Minister says, the communities in Northern Ireland are very close-knit, so it is possible that intimidation is, sadly, an everyday thing. However, I want to press the issue.
The Minister said that the certificate can be granted only if one or more of four reasons were present. One was an attempt being made to prejudice the administration of justice. What examples can the Minister give—without breaching any security codes, obviously—of what is happening? How many jurors are being intimidated and on how many occasions? What is going on and what evidence is there to suggest that we need to extend the provisions? Are threats coming from only one side of the divide, or from both sides? It worries me that we can hide behind the fact that there are security risks and confuse that with the fact that we cannot get a jury, when the two can be a little different.
The figures that the Minister has given also worry me. He quoted those for the past two years of the old Diplock system, when 125 cases were tried without a jury. In the almost two years since, that has decreased to 41. That is a welcome trend, but it strikes me that that is quite a lot of cases to try without a jury—an average of about 20 a year. That is frighteningly high when we are supposed to be moving towards normalisation in the Province.
When the most recent legislation was introduced, I expressed our concern about the DPP. The power was given to him in legislation a few years ago to grant the certificates required for a trial to take place without a jury. We expressed concern that it would be his decision alone and his alone; it is almost as if he represents the footballers and chooses the referee. That is not changed by the order, although it could have been, and I cannot amend it. I am concerned about those powers, especially when we are moving on to the new system in Northern Ireland in which the DPP is, in effect, not supervised. We made an issue of that in the Commons debate on the most recent legislation. I said that:
“we consider it unacceptable for someone in such a serious office not to be required to report to anyone or to obtain the protection of another Law Officer.”—[Official Report, 4 March 2009; Vol. 488, c. 916.]
Is that point not of concern to the Minister, too?
The Minister referred to devolution of policing and justice, which needs to be explored. What impact would the devolution of policing and justice have on this legislation? To turn it the other way, would the Northern Ireland Assembly be able to change the legislation? It is sad that we only have one hon. Member from Northern Ireland in the Committee—it would help if more Northern Ireland Members served on Committees such as this one. I am concerned because there are one or two parties in Northern Ireland that are against the extension of the non-jury trial legislation. Could those parties cause a lot of problems on justice matters in the Assembly if we pass the legislation today? Will the one compromise the other? I would like the Minister to spend a little time assessing how that will work and explaining how he sees things happening.
The Minister said that if, in two years, it is still felt to be desirable to continue with non-jury trials for a further two years, there would be a review. Can he confirm that the legislation could be extended again by statutory instrument, without reference to the whole House or the need for primary legislation? It would be worrying if that were the case. The legislation passed a couple of months ago was the last time that we could extend the arms amnesty without primary legislation. I understand that we could keep extending the provision on non-jury trials without the need for primary legislation, which is worrying.
It is sad and unfortunate that we are discussing this again. I will not oppose the measure today for the reasons that I have given, but I would like the Minister to answer the points that I have raised.
2.55 pm
Mr. Eddie McGrady (South Down) (SDLP): Thank you, Mr. Hancock. I hope to enjoy tutelage under your chairmanship this afternoon for what I think is the first time.
The Minister and the hon. Member for Tewkesbury have referred to those in our midst who might be opposed to this legislation—well, I am one of them. Looking around, maybe there are other people, but that is not for me to say. I am the spy in the room, if you like. My party and I oppose this legislation being extended for very good community and security reasons. We have a long history of the Diplock cases to which the Minister referred in his opening remarks. He quoted a figure of 141 cases and then went on to say—as if it were a huge improvement—that under the last two years of this legislation we had 41 cases. So things are moving dramatically in the right direction.
The Criminal Justice Act 2003 took four years to come into force, and since 2003 one case has been taken. That is against the background of more highly organised criminal gangs in what people call the mainland—I am not allowed to call it that—than would be the case in Northern Ireland. We have very fragmented and localised gauleiters peddling drugs and various other vices, so the situations are not comparable. But if one makes the comparison, it is even more startling that the Minister and the Government wish to extend this piece of legislation.
The hon. Member for Tewkesbury had a sense of d(c)j vu when he referred to the arms amnesty, which we dealt with in a Committee such as this not long ago. There was procrastination on accommodating, in that case, people who refused to disarm, even though they had 10 years in which to do it. We still have the situation. I know that I am digressing slightly, following the hon. Member for Tewkesbury, but the Minister guaranteed us that by the end of this month he would stop that legislation, if total disarmament did not take place. Total disarmament has not taken place and again there is procrastination, not by the UVF or the Red Hand but by the UDA, who have indicated a partial, probable decommissioning, which is not at all satisfactory. That is a digression.
It may be worth recalling for a moment that we are discussing a very fundamental human right that has been with us for millennia. We should not tamper with it lightly, just because it will continue more of the same. That is not good enough. The United Nations Human Rights Commission, which monitors the implementation of the international covenant on civil and political rights, recently raised concerns regarding the use of non-jury trials and the lack of sufficient appeal mechanisms for challenging the decision by the Public Prosecution Service to hold the trial in the absence of a jury. The HRC went on to say that the lack of an obligation on the director to
“provide objective and reasonable grounds when applying different rules of criminal procedure which is contrary to ICCPR”
is not satisfactory.
In his opening presentation, the Minister talked about, and quoted very accurately, the conditionality of the DPP making such a decision, which relates to any case that he thinks might be jeopardised because the defendant is, was or may be a member of an illegal organisation, or his friends, his family, all his relatives or anybody else remotely associated with him. So it is not a narrow field that we are dealing with here. It could be a widespread power for the Public Prosecution Service to make that decision. The terms—“suspects”, “associates”, “his satisfaction”—are all very subjective. There is no real right of appeal. In fact, there is no real knowledge of why the decision was made. It is surely a fundamental right for a human being who has been put on trial not before his peers, but before a judge, that they or their legal agents should know something about why the crucial decision was made. That could have been provided for in this legislation.
I might be misquoting the Minister, but he discussed the quest for normalisation in Northern Ireland. We have certainly had decommissioning of loyalist paramilitaries. There was a ceasefire perhaps 10 years ago—there have been so many that I cannot recall. The same thing has happened with the republicans. We are left with only rumps of dissident republicans and several bodies that are still armed. Have those bodies been engaged in juror or witness intimidation? Is there any evidence of that, or is it simply criminality, or normal criminals as we say in Northern Ireland? If only normal criminals are engaged in such activity, the presumption that this order can cease when the dissidents disappear and loyalists completely decommission begs the question. That is why I query why the Government are again procrastinating.
On Monday, the Secretary of State stated clearly that it was a wonderful historic day. We have historic days in Northern Ireland at least once a week, but that is another story. Last week’s decommissioning was another historic milestone. We are virtually a normal society now—not quite, but virtually. I do not think that we will ever be normal, but that is for the opinion of outsiders. If we want to send the message of the return to normality, this is not the message to send. However the proposal is refined by using the phrase “non-jury trials”; in Northern Ireland, they are seen as the continuation of the Diplock courts and the continuation of the oppressive system of justice.
This whole concept is fundamentally wrong and flawed. We are returning to normality, and the message should be given today that the practice will not continue beyond the end of this month. It will only be resurrected again if there is an incident before 2011. If there is a murder by somebody in the month before the provision ends in 2011, it will be renewed again. That is the wrong principle on which to work. I am not a jurist, but I think that we are sending the wrong message. We have always opposed the injustice, the secrecy, the lack of an appeal procedure and the one judge. For those reasons, I oppose the order. However, looking around me, it obviously would be pointless to force it to a vote.
3.4 pm
 
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