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 Irelands 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.
Although
it is difficult to draw direct comparisons between the current system
and the old Diplock system, there has been a continued reduction in the
number of
non-jury trials. During the last two years of the Diplock system, 125
non-jury trial cases were dealt with. Since August 2007, when the new
system begana month short of two years agothe DPP has
issued 41 certificates for non-jury trial. We all hope that the number
of cases will reduce still further. However, that small number of
exceptional cases remains significant and leads me to conclude that the
arrangements for which the 2007 Act provides need to be
renewed.
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. Friends intervention.
There are thoseperhaps some are among us this
afternoonwho 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 considerationor indeed before there was any
considerationby 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
therewithout 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 Heathrowif trials collapse and it
is impossible to sustain the prosecution with a trial by
jurythat 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 extensionI hope it is not out of
order to go back to thatI 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 Ministers 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
notwe cannothave 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 peoples lives are at risk.
If we do and say the wrong things, we can make matters much
worseit 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
givewithout breaching any security codes, obviouslyof
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 juryan 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
Committeeit 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 legislationwell, 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 sayas if it were a huge
improvementthat 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
mainlandI am not allowed to call it thatthan 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 dÃ(c)jà 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
termssuspects, associates,
his satisfactionare 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 agothere 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 weeks decommissioning was
another historic milestone. We are virtually a normal society
nownot 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
point defeats my arguments, but if there were a case of such an extreme
nature that no 12 good men and women and true in the world could sit on
the jury
because of the potential threat, an exception could be made. Even with
that exception, there is no reason why the case should be heard by a
sole judge. In certain circumstances, there are non-jury trials in the
Republic of Ireland, just next door to us, but three judges are
appointed to hear such cases. However erudite, learned and experienced
a judge may be, one person is human and can make flawed judgments. That
risk is much diminished if three justices hear a non-jury
trial.
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