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Grand Committee

Monday, 19 March 2007.

The Committee met at half-past three.

[The Deputy Chairman of Committees (The Countess of Mar) in the Chair.]

Justice and Security (Northern Ireland) Bill

(First Day)

The Deputy Chairman of Committees (The Countess of Mar): If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Lord Avebury moved Amendment No. 1:

The noble Lord said: This amendment is based on observations by the Joint Committee on Human Rights on the first of the three significant human rights issues which it has raised in connection with this Bill—that is, the boundary between jury and non-jury trials in Northern Ireland. The Joint Committee acknowledges the need to protect juries against intimidation and thus to provide trial without a jury in cases where there is a risk of jury tampering or perverse verdicts. The question it addresses, which is now for your Lordships to decide, is where precisely the dividing line falls in the context of our commitment to security normalisation in Northern Ireland.

Under the new system, which the Bill provides, of non-jury trials replacing the Diplock courts in Northern Ireland, the presumption will be for jury trial, subject to the power of the Director of Public Prosecutions for Northern Ireland to issue a certificate that trial is to be conducted without a jury. It is that presumption that we would like to see ahead of the exceptions which confront the reader in Clause 1. The Bill plunges straight into the powers exercisable by the DPP if he suspects that any one of a number of conditions is met and is satisfied that, because of this, there is a risk that there might not be a fair trial if it were to be conducted without a jury.

Just how exceptional a non-jury trial will be after these provisions come into force, which I understand will be in July, remains to be seen. The police have intelligence of only 11 cases since 1999 in which jury tampering has been reported. Ministers say that there is anecdotal evidence of other cases; they know of one where a trial collapsed as a result of jury tampering. They conclude that intimidation is therefore still a significant problem in Northern Ireland, despite the recent improvements in the security situation, and poses a significant risk to the ability of the criminal justice system to deliver fair trials in certain cases.



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What is not to be found in the JCHR report is any assessment of the extent to which the Government believe that with the other measures for jury protection and, one hopes, the diminishing influence of the paramilitaries and their criminal associates, the proportion of non-jury trials can be expected also to decline. It would be useful to hear from the Minister about the Government’s prognosis in that regard. To what extent do they believe that the DPP will still need to exercise the powers in Clause 1 following the normalisation of the situation in Northern Ireland, which we hope is about to occur?

In any case, from the point of view of this amendment, we need to look to the future, establishing the benchmark we shall attain as a result of the return to normality. Whatever exceptions there may be, which will be agreed in later discussions, the presumption in favour of jury trial is a fundamental component of that normality and needs to be declared on the face of the Bill. I beg to move.

The Attorney-General (Lord Goldsmith): As I rise to speak on this Bill for the first time, let me say that I will be dealing with Clauses 1 to 12. Although I know that my noble friend Lord Rooker will have made himself available to talk to any Peers who wish to do so, should there be any issue on this part of the Bill that any Member of the Committee thinks it would be helpful to have a word with me about outside the Committee, I shall be happy to do so.

Amendment No. 1 seeks to put on the face of the Bill a statement creating a right for all defendants to be tried in Northern Ireland, except where the provisions of the Bill apply. I hope that he and the noble Lord, Lord Lester, will forgive me for saying that the effect of that statement would be to enable jury trials in all cases except where a certificate had been given under Clause 1. That would mean that even defendants in the magistrates’ court in Northern Ireland, which deals with nearly all criminal cases without a jury, would be able to opt for jury trial and it would not be possible to apply for non-jury trial under either the Criminal Justice Act 2003 or the Domestic Violence, Crime and Victims Act 2004—which applies to another exceptional category of case.

In fact there is a more fundamental objection, which is that the amendment is unnecessary. As the noble Lord, Lord Avebury, confirmed in moving the amendment, regardless of whether the amendment is made, the presumption will be for jury trial in all indictable offences in Northern Ireland—for the first time in 35 years—when the Diplock courts system comes to an end on 31 July of this year. Non-jury trial will be the exception and will arise only within the strict requirements of the Bill or the other provisions to which I have drawn attention.

The noble Lord asked about the number of cases that could be affected. It is not easy to give a definitive answer or firm predictions. He rightly referred to a number of cases since 1999 where jury tampering has been reported. But it is important to bear in mind that those cases have been reported in the context of the current system in which Diplock trials exist. In all cases where a Diplock trial would have been ordered there would not have been any

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question of jury tampering because there would not have been a jury. So I do not think that one could draw from that figure a conclusion on the numbers. The number of cases dealt with by Diplock trial has been declining.

It is worth emphasising the key point, which I understood was common ground, that although the factors that led to the establishment of the Diplock system may have reduced, they still exist; and the risk of those factors, including intimidation of juries, remains enhanced in Northern Ireland compared with other parts of the United Kingdom, as the noble Lord, Lord Carlile, stated in his independent report.

I understand the view of the noble Lord, Lord Avebury. The presumption will be reversed by the Bill, or at least there will be a presumption for jury trial unless there are special circumstances, and the Government have made clear their intention to return to jury trial in serious criminal cases as soon as the security situation allows. However, what fundamentally lies behind the Bill is that we need to be sure that the justice system can provide fair trials in good time, in line with Article 6 of the European Convention on Human Rights, which means that there will be cases in which, in order to have a fair trial, it will be necessary to do it without a jury.

The important point that will run throughout my remarks on this part of the Bill is that the European convention, and therefore the Human Rights Act, guarantees a right to a fair trial, not a right to a jury trial. I know that the noble Lord cannot do anything other than withdraw the amendment today, but I hope that he will reflect and not bring it back.

Lord Avebury: We will reflect on what the Minister said, but I am disappointed that he begins with a drafting point, which is the last refuge of Ministers who cannot think of a substantive reply to an amendment. It is still a great pity that we cannot open the Bill with a declaration that in future jury trials will be the norm, and that the exceptions that are provided now in Clause 1 are indeed exceptions. It would have been beneficial to establish the intent of the Government—not just of the Government, but of all parties in Northern Ireland and in your Lordships’ House—that that should be the situation, and that it should be made plain in the Bill. As the noble and learned Lord says, we have no option but to accept his explanation for the time being. I will discuss this with my noble friend and we will see what further action we will take, if necessary, on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [Issue of certificate]:

Lord Trimble moved Amendment No. 2:

The noble Lord said: I must say by way of introduction that I am at a bit of a loss to understand the grouping of amendments at this stage. I am happy to speak to Amendment No. 2. Amendment No. 13 has been tabled by the noble Lord, Lord Smith of

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Clifton, and the noble Baroness, Lady Harris of Richmond, and it does not seem to lie terribly well with Amendment No. 2. My Amendment No. 49, which is a new clause, was drafted on the assumption that some of the amendments following this group would have been discussed—and, indeed, on the assumption that one of them would have been agreed to, which I am sure will happen when we reach that amendment; at least, I hope it does. However, I shall try to cope with the situation we have.

Amendment No. 2 is quite simple: it substitutes the Attorney-General for the Director of Public Prosecutions. I am very glad to see that the noble and learned Lord is here to reply to this, and I hope he will appreciate that I am anxious to continue his role in this respect. I seriously believe that it is inappropriate that the Director of Public Prosecutions should himself be able to determine the mode of trial. That is the basic problem here. The Bill as drafted gives the DPP the power to issue a certificate, which then determines the mode of trial. It is inappropriate that that should be in the hands of the prosecuting authority. It is much better that someone else who is not simply a prosecutor but is also charged with considering the public responsibilities generally and the public interest should be the person who issues the certificate.

It was suggested in the debate on Second Reading that that power should rest with the judges, but I could well imagine that the judges themselves would not want to have that. They too might feel a certain conflict of interest, as they would be the parties who were then going to determine the case, or at least decide it, if it went down the non-jury route. That leaves one with the Attorney-General.

I should add that when I drafted this amendment, I deliberately used the wording “Attorney General for Northern Ireland”, but I notice the Clerks dropped the phrase “for Northern Ireland”. At the moment, of course, the Attorney-General for England and Wales discharges the functions of the Attorney-General for Northern Ireland, but that might change, and I thought one should provide for that. But the substance of the amendment is intended at least to get a more independent element into the choice of whether there will be a non-jury trial.

The issues raised by my Amendment No. 49 are much more general. Clause 1 of the Bill provides for a non-jury trial in a number of cases. Various conditions have to be satisfied, and those conditions relate mainly, although not solely, to proscribed organisations. On the other hand there is the Criminal Justice Act 2003, which also provides for juries to be dispensed with, but the circumstances in the Criminal Justice Act are very narrow; they relate simply to evidence of a real and present danger that jury tampering would take place. The relevant section, Section 44 of the Criminal Justice Act 2003, applies to Northern Ireland. So we have two different bases on which there can be non-jury trials: one where there is a proscribed organisation and other cases, which are limited to jury tampering; whereas in proscribed organisation cases, it is broader.



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3.45 pm

What also concerned me was that the criteria differ. Under the proscribed organisation provision in Clause 1, for a certificate to be issued, the director—or, if I were to have my way, the Attorney-General—must be,

In the Criminal Justice Act 2003, we are dealing with, if anything, a more stringent test. The judge must be satisfied of various conditions, including that there is a,

and that,

It is that final phrase in the 2003 Act on which I am focusing, whereas the equivalent provision in the clause is,

Both those provisions will be operating in Northern Ireland, but they operate two quite different standards. There is a very strong case to assimilate their criteria. I have drafted Amendment No. 49 to take what might be the novel way of assimilating the general provision to the Northern Ireland provision. It might be argued that we should assimilate them the other way, but I rather suspected that if I tried to assimilate Clause 1 to the same standard as applies in the 2003 Act, I would be told that it was wholly unrealistic to put the bar so high in Northern Ireland. So rather than raise the bar in Northern Ireland to the English standard, I suggest that we lower the English bar to the Northern Ireland standard.

This is one United Kingdom; the same criteria and principles should apply throughout it in broad terms. Even if the Attorney-General is not attracted to my particular solution, there is a general issue with both the provisions being on the statute book. There is a contradiction between the two and it must be resolved one way or the other. I shall listen to what is said on that point with great interest. I beg to move.

Baroness Harris of Richmond: I speak to Amendment No. 13 in the group. At Second Reading, we spoke about our concern at the Director of Public Prosecutions deciding the mode of trial. We very much believe that there should be some form of judicial involvement in the mode of trial decision. During Committee in another place, my honourable friend the Member for Montgomeryshire proposed that the prosecution should apply to the court for a certificate to be issued for a non-jury trial. Therefore, the decision on mode of trial would rest with the court.

In other legislation that provides for non-jury trial, it is the court that ultimately decides whether the trial is to be conducted with or without a jury. That is the case under the Criminal Justice Act 2003. Under Section 44 of that Act, the prosecution may 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

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Northern Ireland, it would make sense for the same type of procedure to apply in all circumstances where it may be necessary to conduct a trial without jury. Therefore, we have a great deal of sympathy for the amendment in the name of the noble Lord, Lord Trimble.

However, the Minister in another place argued that the DPP would be privy to information that the police or national security agencies had brought to bear and that by having a judicial system, it would mean that a range of information would have to be exposed to the other party in a way that could be cross-examined. We reflected on the Government’s arguments and sought to address them. We then came back on Report with the amendment now tabled in my name and that of my noble friend Lord Smith of Clifton. Our preference is still for there to be some form of judicial control over the mode of trial.

Amendment No. 13 proposes that the DPP would still issue the initial certificate for a trial without jury as, under the Bill, this needs to be lodged with the court before the arraignment. We therefore presume that at some stage before the arraignment, the defendant would become aware that a certificate had been issued. At that point, the defendant could make written representations to the judge. On the basis of those representations and any written evidence provided to the judge by the DPP, the judge would then either accept or reject the certificate. There would still be a judicial element in determining the mode of trial, but with no risk of the names of witnesses or informants becoming known.

We would like the Government to look at this again. By placing the decision on the mode of trial in the hands of the DPP, they are going much further than was provided for by the 2003 Act. The provisions of that Act are supposed to deal with the intimidation of jurors, so why are the extra provisions in the Bill necessary? Why is it appropriate to have the court deciding the mode of trial in some circumstances, but not in others? Taking such decisions should not place an undue burden on the judiciary as the number of non-jury trials in Northern Ireland has fallen from 354 in 1987 to 49 in 2005.

Lord Mayhew of Twysden: I rise to support the second amendment. This is an important matter because trial by jury has always been regarded as a particularly precious right, no less in Northern Ireland than in England and Wales, and for all I know in Scotland too. A few moments ago the noble and learned Lord the Attorney-General distinguished between the right to jury trial and the right to a fair trial, and I think most people would regard it as their understanding of their primary rights in our constitutional law that they are entitled to a jury trial save where Parliament has intervened to restrict that right in the light of special circumstances or criteria. It has to be said rather ruefully that since the present emergency revived in 1969, those special circumstances have impinged very painfully and urgently on everyone in Northern Ireland. It was because of those circumstances that, in his report published in 1973, Lord Diplock made the recommendations with which we are all now very familiar.



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The norm has been that quite a wide swathe of offences should not attract the right to trial by jury, the reason being that they are commonly associated with terrorism—to use an umbrella word. The arrangement has been that the Attorney-General of the day—I thought that it was the Attorney-General for Northern Ireland, which I regarded myself as being, as well as the Attorney-General for England and Wales—was able to certify them out. I repeatedly came under considerable pressure when I was Attorney-General, as well as when I was Secretary of State, to reverse that arrangement, so that the provisions of the present Bill should be substituted for what I have just described, save that it was not a case of a certificate issued by the DPP. I always resisted that because it is important for the status of the Attorney-General and the standing of his office that, where he is given a discretionary power to intervene, it should be on the side of upholding the liberties of the subject, not restricting them. It is not becoming—in fact, it is rather dangerous—that the Attorney-General should have been empowered to remove the right of trial by jury from a defendant.

The arrangement here is that the Director of Public Prosecutions shall certify with that consequence. There is a separate point here. I cannot think it right that an official, however distinguished and however impartial—and there can be none more deserving of each of those tributes than the present incumbent—should be vested with such power. He is not accountable to Parliament. We have had that debate quite recently in this House and a very large number of your Lordships thought that somebody with powers in this field should be accountable to Parliament. The Attorney-General, of course, is—as the present incumbent of that office has good reason to know. He has frequently recounted the number of occasions on which he has recently appeared before Parliament, answered letters and so forth. That is an important additional point.

In Northern Ireland, the director is subject to being directed by the Attorney-General. I will be corrected if I am wrong about that, but I always understood that to be the case, although I never sought to avail myself of that power. The noble Lord, Lord Rooker, in answering the debate on Second Reading, said that a good reason for making the change in the Bill was that the Attorney-General was a Westminster Minister and that it was not appropriate that a Westminster Minister should have the say-so in a matter of this importance in Northern Ireland. The fact that the Attorney-General can direct the Director of Public Prosecutions goes in some ways against that point. So I shall be very interested to hear what the noble and learned Lord the Attorney-General has to say in answer both to this amendment and to the other two that have been spoken to.

Lord Glentoran: I support my noble and learned friend Lord Mayhew. I am delighted that he, with his expertise, is here to support and advise us. It goes without saying that these Benches are of the same opinion as he. We have concerns about the Director of Public Prosecutions being the decision maker in this

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process. In the other place my honourable friend made a different proposal—that it should be the Lord Chief Justice. That was not accepted and ultimately withdrawn.

However, we are now in a sort of quandary. I seem to remember—I am not sure; perhaps the Attorney-General will be able to enlighten me—that, a year or so back, we passed legislation defining who would ultimately be Attorney-General for Northern Ireland and how he or she would be appointed. I know that the Attorney-General is carrying out that role but, once we have devolution, the legislation will quickly change that. A description from the Attorney-General about the sort of person and the sort of role he will be playing would be helpful in this debate. From memory, I believe that he will not be a Member of Parliament either in Stormont or here, and he may not be a member of a political party. So if the Attorney-General for Northern Ireland will be making these decisions, we will need a little more clarity on those points.


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