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Secondly, my party would like to feel that we will be able one day to carry out the due processes of law in Northern Ireland without having to resort to trials without jury. We accept the current need for trials without jury; we simply hope that the day they can be dispensed with is not too far off.

4 pm

Lord Goldsmith: I have listened with great care to the noble Lord, Lord Trimble, who speaks with considerable experience, the noble and learned Lord, Lord Mayhew, whose experience is particularly pertinent, the noble Baroness, and the noble Lord opposite. I want to reflect on all that has been said but perhaps I may indicate the issues as I see them at the moment. I am sorry that the noble Lord, Lord Trimble, found the grouping of the amendments unhelpful; I am not sure that it will ultimately be unhelpful in identifying the issues, three of which have been identified in the important contributions made today. First, if there is to be a decision maker from outside the judiciary, should it be the DPP or the Attorney-General? Secondly, should the decision maker be one of those persons or the judiciary in some way? Thirdly, what is the relationship between the provisions in the 2003 Act—which apply to England and Wales as well; I do not think it applies to Scotland but I may be wrong about that—and the provisions proposed in the Bill? Those are all important questions.

I am very appreciative of the way in which the noble Baroness spoke to the amendment and recognised the problems that arise particularly in Northern Ireland when a decision must be made on jury versus non-jury trial. I do not dissent at all from what the noble and learned Lord, Lord Mayhew, said about the desirability of jury trial or—as I think I made clear—what the noble Lord, Lord Glentoran, said about where we hope to get to eventually. At the moment the position in Northern Ireland is different from that in the rest of the United Kingdom. Northern Ireland has made huge progress but the fact remains that—as the quote I gave a few moments ago from the report of the noble Lord, Lord Carlile, demonstrates—potential problems of intimidation remain more enhanced in Northern Ireland than they do in the rest of the United Kingdom.



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One can see the difficulty, which the noble Baroness helpfully identified, when one looks at the conditions proposed in the Bill. Three of the four conditions relate to paramilitary groups. That means that the case for non-jury trial will often involve sensitive intelligence material, which will raise difficult issues; it will involve sensitive intelligence material about a person’s relationship or membership of a paramilitary group. So often that derives from human intelligence sources who are able to identify the person as having that relationship or such groups as being involved in the alleged crime. If the material in those circumstances is deployed in open court to explain why a non-jury trial is desired, it can create a risk that that sensitive intelligence information will come out into the public domain. It is not simply a question of wanting to keep things secret; there are very considerable risks in such exposure.

If the information comes from a human source, and I am advised by the Chief Constable that it often does, the identity of that human source may well be identified. There is often only a small group of people who could be the source of the information. No one who knows anything about even recent events in Northern Ireland would be in any doubt that such risks often include risk to the life of a particular person. That is the difficulty about revealing human sources. There may also be difficulties about revealing the techniques used for gathering intelligence as part of the process of explaining why a non-jury trial is appropriate in a particular case as it may prejudice the capacity of the law enforcement and intelligence agencies to tackle these serious threats.

That was why, after considerable consideration of the alternative models, the Government came to the view that some form of administrative process rather than a process of producing that evidence in open court was desirable. One can imagine what the consequences otherwise would be. As I said, the purpose behind these provisions—like the purpose behind the Diplock provisions—is to enable fair trials to take place removed from intimidation. If even three jury members are subject to intimidation or in fear of intimidation, they may not feel themselves able objectively to apply their judgment to the evidence in the case but to decide on different grounds. That is not in accordance with the public interest. Having a contested judicial process leads to the danger that that material will have to be exposed. It would have to be shared with the defence, as that is commonly the way in which we deal with contested matters in open court.

There may be other ways of dealing with it. The difficulty with the proposal in the amendment tabled by the noble Baroness, to give the trial judge a role in deciding whether he is prepared to accept the DPP’s certificate, is that it seems to amount to a sort of automatic judicial review of the DPP’s decision. I do not know on what basis the judge is to accept or reject other than by requiring the DPP to produce his reasons and intelligence and asking the defendant for his point of view on that. It would turn into exactly the sort of hearing in open court, with the material being disclosed to the defendant in open court, that we are concerned about. That is my problem with that proposal.



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I turn to the second question: if it is an executive or administrative decision rather than a judicial one, should it be the Attorney-General or the DPP? I hope that the noble Lord, Lord Trimble, when responding to what I have said, will feel able to say which he has in mind. Which Attorney-General does he have in mind? At the moment—I entirely agree with the noble and learned Lord, Lord Mayhew—I regard myself as the Attorney-General for Northern Ireland; for the purposes of all statutes that impose duties or responsibilities on that person, I am he. That will change when there is full devolution, when there will be a locally appointed Attorney-General. I say to the noble Lord, Lord Glentoran, that the Attorney-General is not a member of the Assembly.

The relationship of supervision with the DPP will be different from the relationship which the Attorney-General presently has with the DPP. It will be a locally appointed person. I think that one is then faced with the possibility of two choices, and I invite the noble Lord, Lord Trimble, to indicate which he has in mind: the Attorney-General for Northern Ireland, who would become the locally appointed Attorney-General at the moment of full devolution; or it could be—and there will be another law officer—the Advocate General for Northern Ireland. The Advocate General for Northern Ireland, created by the Act as well, will be the same person as the Attorney-General for England and Wales. That is the person who presently has the experience of dealing with these matters, but I think—and this was very much part of the Government’s thinking—that that would lead to the concern that a Westminster politician, one who did not even any longer hold the title of Attorney-General, would be responsible for making these decisions. That perhaps leaves the alternative that the Attorney-General for Northern Ireland will be in a different position from the one that I am in and the one that the noble and learned Lord, Lord Mayhew, was in. Because we do not know who such a person will be, I do not know whether the police will have any difficulties in sharing the sensitive intelligence information that they have as freely as they do with me and the present DPP. I invite the noble Lord to consider that.

I entirely understand the points made by the noble and learned Lord, Lord Mayhew, about the desirability of accountability. I believe in that very strongly and therefore understand why he places such emphasis on it. However, we have had to consider the advantages and disadvantages of different approaches.

As regards the relationship between the 2003 Act and these provisions, they are intended to deal with somewhat different things. The 2003 Act deals with a specific category of jury tampering. Were it not for the fact that Northern Ireland is different from England and Wales in the way I have indicated, one might have thought that it was appropriate simply to have the 2003 Act apply across the board. However, I do not believe—nor, I think, do law enforcement agencies in Northern Ireland—that the 2003 Act would do the trick on its own. There need to be greater protections. The hurdles in the 2003 Act are too high for Northern Ireland. The 2003 Act is appropriate for a judicial determination because the issues which fall to be

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considered are not generally intelligence information. They generally concern whether there is evidence that a case has collapsed as a result of jury intimidation or whether there has been jury tampering. That would normally arise as a result of direct evidence being given. That explains the differences between the two measures.

Even though I see the logic of the position taken by the noble Lord, Lord Trimble, I have great concerns about trying to bring the two tests together. Northern Ireland is different from England and Wales and will need a different test. I should be very cautious and hesitant about seeking to amend through this Bill a provision in relation to England and Wales which was enacted after great debate during the passage of the Criminal Justice Act 2003.

I hope that I have responded to the questions asked. I have tried to explain why we have lit upon the present system. I shall continue to reflect on the points made but I look forward to hearing what the noble Lord, Lord Trimble, will say about the point I raised, if he feels able to discuss it today.

Lord Trimble: I thank the noble and learned Lord the Attorney-General for his comments. He invited me to make a choice but I may need to take a little more time in order to do so. However, I shall make some observations on the matter. A noble Lord mentioned a sentence of the noble Lord, Lord Rooker, when he replied to the debate on Second Reading, which had slipped my memory. However, it raises a general issue, which, to a certain extent, came up in the Attorney-General’s reply. The noble Lord, Lord Rooker, said on Second Reading:

that is, in Northern Ireland. But, as the Committee knows, that is precisely what has happened for the past 34 years. Since 1973, a Minister here has decided that. Furthermore, that Minister is accountable. That latter point is in itself very important.

As I said, the Attorney-General for Northern Ireland and I drafted this provision with the present situation in mind. Even if devolution occurs on 26 March, as the Government hope, the Attorney-General here will continue to make the relevant decision. What should happen with policing and justice matters after devolution, if they are devolved—that “if” still has to be underlined—is a matter on which I should like to think further as serious problems arise on that issue.

4.15 pm

But you know, there was one thing that the Attorney-General said towards the end with reference to my Amendment No. 49, when he came out with that famous phrase, “Northern Ireland is different”. Different where? It is not. There is organised crime in England and Wales, perhaps even on a larger scale than in Northern Ireland. There are paramilitary organisations in England and Wales.

The retiring head of the Security Service said a few months ago that there were 1,200 suspects, persons who might be likely to commit terrorist offences who

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were being observed of whom the service was aware. The noble and learned Lord, Lord Mayhew, may want to intervene on me on this, but 1,200 is several times the total number of persons on active service in the Provisional IRA at any one time. So to say that Northern Ireland is different is wrong. No, it is not. The problems exist here too. They may perhaps not yet have fully worked their way through into the mind of the Government, although they are aware of the terrorist threat here and aware that it is as great if not greater than any threat in Northern Ireland. It may yet have produced the same toll of incidents and fatalities, but there is a long way to go on that. It is not right as a matter of fact to proceed on the basis that we are dealing with two different situations in England and Wales and in Northern Ireland; and it is not right as a matter of principle to say that we shall treat the two on a completely different basis.

We will want to come back to that again. I will reflect on what has been said, especially the question posed to me by the Attorney-General, and hope that we can explore the matter a little more later. I apologise for not being able to give a clear answer at the moment, but I would not want to reply off-the-cuff without having considered the matter further.

I am still very much of the view that it is highly desirable to have the decision on the mode of trial out of the hands of the prosecutor and exercised by someone who is not only accountable but more independent than the prosecutor may be. We cannot press this at the moment; all we can do is debate it; so we will have to leave it there unless there is something that the Attorney-General wants to say.

Lord Goldsmith: I am grateful to the noble Lord. I just want to make this very clear. If he or any Member of the Committee who has spoken would find it helpful to discuss this with me before the next stage of the Bill, I would be very happy to do so. I recognise that these are tricky issues. I may then have a further debate with the noble Lord about why I think that we are justified in taking the view that Northern Ireland and England and Wales are not directly comparable. I shall not take up the Committee’s time by doing that now, but I offer to meet noble Lords to discuss the issue if that is helpful.

Lord Trimble: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 3:

The noble Lord said: With this, I shall discuss Amendments Nos. 6 and 9. The Bill gives the DPP for Northern Ireland the power to issue a certificate that a trial on indictment is to be conducted without a jury if he “suspects” that any one of four conditions enumerated in subsections (3) to (6) is satisfied. Amendment No. 3 requires him to be “satisfied” and not merely to suspect that one of the conditions exists. For example, the first condition is that the defendant is an associate of a person who is or has at any time been a member of a

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proscribed organisation. Later, the term associate is defined to include a friend or a relative, as well as a spouse or former spouse, civil partner, former civil partner, cohabiting partner or former cohabiting partner.

A proscribed organisation is defined to include an organisation that was proscribed at the time of the person’s membership of that organisation, although it may not be at the time when the matter comes to be considered. When the JCHR asked the Government for their justification for conferring these extremely wide powers on the DPP, it was told that there had been cases of intimidation to secure acquittals of close friends or family members of terrorists. I ask the noble and learned Lord to consider that the word “close” was used in the Government’s explanation, which is a different matter from any old friend or relative, as the Bill has it.

As the NIHRC observed, “friend” is a very subjective term and “relative” is totally open-ended, giving the DPP, in theory, a sweeping power to prevent jury trials and to create the risk of a potential breach of Article 14 of the ECHR, in conjunction with Article 6.1, by making it possible to deny a person the right to trial by jury because he was born into a family, one of whose members had at some time or other broken a particular law. For condition 1 to be triggered, the DPP does not have to do more than suspect that such a relationship exists. Amendment No. 3 would require him to be satisfied that the relationship exists.

Amendment No. 6 would raise the test of whether the administration of justice might be impaired if the trial were to be conducted without a jury from “risk” to “substantial risk”. As the JCHR points out, and we have already heard from the noble Lord, Lord Trimble, about this, in England and Wales the test in Section 44 of the Criminal Justice Act 2003 is that there has to be evidence of a real and present danger that jury-tampering would take place, and that the likelihood that such tampering is so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. That provision, we understand, has already come into force and applies in Northern Ireland, as the Minister in another place, Paul Goggins, explained in Standing Committee in another place on 16 January.

As we have already heard, there are two different mechanisms that apply in Northern Ireland through which non-jury trials will be possible. In so far as it is possible, I agree that we should try to align the two so that they do not come into conflict with one another. The use of the word “substantial” in Clause 1(2)(b) would therefore move the two procedures so that they were more closely aligned with one another—although not entirely, because the situations are still different, as we have just heard. Presumably the ultimate objective of the Government in the very long term, as the noble Lord, Lord Trimble, has already outlined, would be for the special arrangements in Northern Ireland to be dropped altogether, leaving the Criminal Justice Act to operate uniformly in both jurisdictions. The term “substantial risk” is of course widely used in many contexts in the statutes, and would not present any difficulty of interpretation in the courts.



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Amendment No. 9 follows the JCHR recommendation in paragraph 1.27 that the DPP should be satisfied that other, less restrictive measures will not present the risk of impairment of the administration of justice. It may be that in answer to this the noble and learned Lord will say that the DPP would obviously think about the possibility as a matter of course, as he would do about all the circumstances that affect the risk. We would argue that, for certainty, that needs to be spelt out in the Bill. I beg to move.

The Deputy Chairman of Committees (The Countess of Mar): If Amendment No. 3 is agreed to, I cannot call Amendment No. 4 because it will be pre-empted.

Lord Glentoran: I have added my name to this amendment. The amendments in this group place further safeguards on when the DPP can issue a certificate. We support the principle here. They make the judgment of whether there is a risk to justice more objective; they raise the bar from a risk to a substantial risk, and require the DPP to consider other means of addressing that risk before issuing a certificate. We still have grave doubts about the appropriateness of the DPP issuing a certificate. These amendments go some way to ensuring that the natural partiality of his post will not influence his decision. The relevant conditions that must be met for a certificate to be issued should be clear and the DPP should be able to show that they have been met objectively.

Baroness Harris of Richmond: I shall speak to Amendments Nos. 4, 5, 7 and 8 in the group which are intended to tighten up the criteria that the DPP could use for issuing a certificate to conduct a trial without a jury. At the moment the bar is set very low in the Bill, so that the DPP may issue a certificate if he,

Suspicion is a low test for the Director of Public Prosecutions to employ and is much lower than a test on the balance of probabilities. Amendment No. 4 therefore raises the test from one of “suspects” to,

This wording would ensure that the DPP must be at least 50 per cent certain that the conditions set out in the Bill are met. Again, Amendment No. 5 tightens the language used in the clause by providing that the DPP must agree that “it is likely” that the administration of justice would be impaired if a jury trial were to be held. Amendment No. 8 is simply a grammatical point. The purpose of these amendments is to ensure that the Government’s aim of a presumption in favour of jury trial is furthered.

If the Government continue to resist the argument that the decision to hold a non-jury trial should have some form of judicial input and persist with the suggestion in the Bill that the DPP should decide on the mode of trial, then in taking that decision the DPP should have to satisfy himself that a higher threshold has been reached before he issues a certificate. This is a very wide power and by instituting a higher but realistic threshold, we believe that it would ensure confidence in the decisions on mode of trial.



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Amendment No. 7 again returns to an issue raised in another place on which we would like to probe the Government a little further. The term, “the interests of justice”, is widely used in legislation, but the term, “the administration of justice”, is not quite so well known and thus may conjure up notions of management and something being run efficiently rather than the perhaps less tangible but none the less well understood principle of something being done for the good of justice. This form of language ties in much better with the principle of conducting a fair trial—a fair trial which is seen to be in the interests of justice rather than one being expedited quickly for the sake of time management.

The term, “the interests of justice”, is used in Section 44 of the Criminal Justice Act 2003 and the Minister in the other place agreed to consider the wording and write to my honourable friend the Member for Montgomeryshire on this issue. In that response the Minister stated:

Does the Attorney-General recognise that there could be a conflict between the interests of justice and the administration of justice? For example, it could be in the interests of justice for a jury to try a particular case, but because the defendant has a loose association with someone suspected of being at one time a member of a paramilitary organisation, the DPP may suspect that there is a small risk of jury intimidation.

That would mean dismissing the jury and calling a new one to try the case or dismissing the jury and proceeding with a judge-alone trial. He decides that this process could be cumbersome and waste time and that, in the interests of expediency, he should issue a certificate now for a non-jury trial. That may be a slightly tortuous argument; nevertheless, it could happen. Does the noble and learned Lord acknowledge that such a situation could arise? Will he agree to reflect further on the wording of this part of the Bill?

4.30 pm

Lord Mayhew of Twysden: I find these amendments attractive, and I look forward with great interest to hearing what the noble and learned Lord the Attorney-General has to say about them.


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