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I would like to speak briefly about Amendments Nos. 3, 4 and 9. Could the noble and learned Lord tell us whether, and if so in what other recent statutes, the word “suspects” appears in a similar context? One asks oneself what it means. I suppose it must mean, and the courts would hold that it means “suspects on reasonable grounds” or “has reasonable grounds for suspecting”. The word is very loose and I wonder whether it has not been put in with a view to having something to give away in the course of the Bill’s proceedings—not an unknown stratagem, and a very sensible one.

Similarly, the word “risk” really is tempting providence. One can say that there is a risk if something can be foreseen as possible even though it is never near probable.

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What exactly do the Government have in mind? Has this been used previously in a similar context? That is very important.

Those are the points I wish to make at this stage. I am grateful that the amendments have been explained so lucidly and helpfully and look forward to hearing the response.

Lord Trimble: I have also put my name to Amendment No. 3. I do not have anything significant to add to the comments that have been made, but thought I should make it clear that I have not resiled from signing the amendment. I still think it is desirable to have the higher standard of being satisfied rather than merely suspecting. I note with interest the comment of the noble and learned Lord, Lord Mayhew, that this may have been designed as a throwaway; that may well be it. There is another point where a wide range of people have put their name to amendments; I recommend that to the Attorney-General as another good throwaway when he reaches that point.

Baroness Farrington of Ribbleton: In my experience, no one ever assumes that somebody has resiled from an amendment simply because they do not speak to it when they have signed it. The assumption is the reverse—that they would tell the Committee if they had changed their mind. Otherwise, it would be assumed that they were in total agreement with all that had been said.

Lord Goldsmith: This is a series of amendments to raise the threshold in the statutory test. I should like first to consider this in the round. I accept the need for a robust test and to ensure fairness, but fairness needs to be seen in the round as well. Fairness to the defendant is very important, but the wider public also need to be assured that the trial system is fair to them and, therefore, to the prosecution.

The Government believe they have the right balance in the Bill, and the question is what that balance should be. I therefore make a preliminary observation on the consequences if one gets the test wrong. If the test—that is, the hurdle that the DPP must consider and surmount—is set too low, the consequence could be that a case is tried without a jury although the risk to the administration of justice was not sufficient to require that. The defendant on trial would still receive a fair trial, but it would be a trial before a judge sitting without a jury. In all the time I have held this post—nearly six years—I have not heard anyone, including anyone in Northern Ireland, suggest that the trials before the judges in Northern Ireland are in any sense unfair; indeed, if anything, it is quite the contrary as a detailed set of reasons is given at the end of the trial. One never has that with a jury trial, and it can be tested on appeal.

So the worst that could happen—although I want non-jury trials to apply only in a very limited number of cases—is that, if one sets the test too low, the person would be tried before a judge sitting alone and would receive a fair trial. The risk the other way does not come out like that. If one sets the hurdle too high, the risk is that a case will fall to be tried before a jury where there is a risk of jury intimidation or something

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of that sort. The consequence is—and it has happened in Northern Ireland—that the trial cannot take place or that there is not a just verdict. I emphasise: I want a robust test; I want fairness. But, if anything, the risk of getting this wrong is a risk of setting the hurdle too high for the DPP, or whoever else we may end up with, to make that decision.

If one sets the hurdle too high, it is not just that the trial may be put at risk but individuals may be put at risk as well. Jury intimidation may result in real threats, real intimidation of individuals. We know from work that has been done that intimidation is a serious problem in Northern Ireland. It is exacerbated by the small close-knit communities in which people live. The work done indicates that 7 per cent of victims of crime in Northern Ireland have experienced harassment or intimidation but that only half of all intimidation offences are reported to the police. So there is a real issue to be considered. We would not be having the debate otherwise.

Intimidation can have a devastating effect on individuals subjected to it. It undermines public confidence in the justice system. So, when considering the test, it has been necessary to give careful thought to what the right test should be, to look at the sort of cases where these problems arise and to draft provisions with that in mind. That is not to say that it is not right to reconsider those precise formulations in the light of the important statements made by all those who have participated in this debate. But I want to be sure that all the cases that pose risks of jury tampering or perverse verdicts are capable of being caught within the system. Therefore, I confess to taking a cautious approach with perhaps a lower rather than a higher threshold in the test.

I want to make another important observation, and I hope the noble Baroness, Lady Harris, will forgive me for making the point. In summarising the test, she put together the first and the second limb. I invite noble Lords to bear in mind that there are two limbs which need to be considered before the DPP can give his certificate. Not only must he suspect that one of the conditions is met, he must also be satisfied that in view of this failure, there is a risk that the administration of justice might be impaired. I will return to those individual words in a moment, but I underline that both those requirements need to be met.

In the second limb, what about the words “a risk” that the administration of justice might be impaired? I confess that I am concerned about trying to set that particular test for the reason that for the past 35 years in Northern Ireland there has been non-jury trial in the most serious cases. The consequence is that there is very little evidence of direct jury intimidation or perverse verdicts. If one were to impose on the DPP a requirement, for example, that he should be satisfied that there would be impairment of the trial, it would pose a very high test, and it is quite hard to see on the evidence how that could be satisfied.

[The Sitting was suspended for a Division in the House from 4.41 to 4.51 pm.]



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Lord Goldsmith: I was explaining why it would be asking too much to expect the Director of Public Prosecutions to be satisfied that there was an impairment to justice given the need to have evidence—of which there is very little—to support such a judgment. He would have to make a judgment in the round, considering a number of different factors that together indicated a risk that the administration of justice might be impaired. It would inevitably be difficult to find information that would meet the higher test proposed by some of these amendments.

I shall refer to the specific points put before I address the final amendment in the group. I was asked by the noble and learned Lord, Lord Mayhew of Twysden, whether I could give other examples of the word “suspects” and, if I recollect rightly, the concept of risk, being used in statute. I cannot do that now, even having had the interval of the Division—what I think is called in another place a short adjournment. However, I shall ensure that we look into that and try to write to the noble and learned Lord about it before Report.

Lord Avebury: Will the noble and learned Lord take my word for it that if he puts “substantial risk” in a search engine, he will find dozens of statutes where this term is used?

Lord Mayhew of Twysden: A substantial risk?

Lord Avebury: Yes, substantial risk.

Lord Goldsmith: The noble Lord says that with such authority that I am sure he has done it. Therefore, I would not dream of disagreeing with him. I have made it clear that I want to consider everything that has been said on the detailed wording. I am responding to the specific points raised. I shall look at the points that the noble and learned Lord raised and write to him before Report.

Lord Mayhew of Twysden: Will the noble and learned Lord also consider the phrase “reasonable foreseeability”—if it is reasonably foreseeable? As he will know, that is the test for civil liability. It is a little more sensible than pure risk and not quite so tough as the next one up.

Lord Goldsmith: Of course, I will consider that because the noble and learned Lord asks me to do so. However, I come back to the main point. At the end of the day, we need a robust test that will meet the necessity of the case in the particular circumstances of Northern Ireland—that is, not to find that cases where the administration of justice is at risk will be put at risk because the DPP or anyone else is asked to submit the issue to too high a test. There is evidence of cases where intimidation is a risk and where perverse verdicts and intimidation of juries will be a risk. I believe that no one in the Committee or in the House as a whole wants to see cases where justice cannot be done for those reasons, so we need to get the test right.



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The noble Baroness, Lady Harris, asked me whether I saw a conflict between the interests of justice and the administration of justice. I do not. I do not think that administration of justice amounts to expediency. I believe it to be an expression that is frequently used in the concept of justice. Only recently I described my own role as one where I have to act to support the administration of justice. I will reflect on quite where the difference between the expressions arises but I am quite confident that a test based on the administration of justice is not a test about expediency.

The final amendment would enable non-jury trial only if the director was satisfied that no other measures would address the risk to the administration of justice. We are focused on reducing the risk to jurors, which is why we are taking forward a number of measures. These include: balloting of jurors by number rather than name; increased use of screening of jurors from the public; separate juror accommodation where possible; and increased protections for juror information, including making it an offence to disclose juror information without lawful authority. The measures will not entirely eliminate the risk of jury tampering; we believe that some form of non-jury trial remains necessary. For example, screening and balloting by number will not prevent jurors being recognised by the defendant or his associates. In a small jurisdiction such as Northern Ireland, the only other measures that could be taken would have such a large impact on the life of the juror and his family, such as relocation, that they go beyond what is a reasonable price to pay for having a sound and safe administration of justice. I cannot accept that amendment, although I would expect whoever the decision maker is—the DPP—to take into account the fact that other measures are available when considering whether there is a risk.

This has been a valuable debate on important issues, and I hope that what I have said has been helpful in explaining the Government’s position.

Lord Avebury: I expected the noble and learned Lord to reply as he did on Amendment No. 9. The person, whoever it is, will consider what other measures are already in place, such as the ones that the noble and learned Lord described, but there are no additional measures that are not in the Bill that would safely be considered in the context of Northern Ireland. I shall have to accept that he does not even to wish to write in the Bill his assurance that the DPP or the Attorney-General—whoever it may be—will naturally consider whether the safeguards already provided for juries will prove to be adequate.

I am most grateful to the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Trimble, for their support on Amendment No. 3, which proposes strengthening the Bill in regard to the use of the word “suspects”. There is some hope, from the remarks that the noble and learned Lord made, that we could return to this with greater expectation that it would be favourably considered at Report. Certainly there could be cases where the trial is wrongly decided by the jury and a perverse verdict is reached or jury intimidation occurs without the safeguards in the Bill. But if you take that line, of course, we would still have the

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Diplock courts and we would not be contemplating these changes. As the noble and learned Lord explained, we would not be having this discussion if 7 per cent of witnesses did not experience harassment or intimidation. Well, we would not be having this discussion if we were not heading towards a peace process—a peace settlement—in which we hope these things will be relegated to the distant past.

So there is scope in the Bill for a proper balance to be drawn between the obvious needs of safeguarding the process of justice and giving the DPP excessive powers, which we believe the clause at present contains. In the mean time, in the hope that we can return to this matter on Report and that we shall have a more favourable discussion than we have had now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 to 9 not moved.]

5 pm

Lord Trimble moved Amendment No. 10:

(c) is involved in serious organised crime.”

The noble Lord said: In speaking to Amendment No. 10, I shall speak also to my Amendment No. 11 in the group. These are amendments to conditions 1 and 2 in Clause 1; and I immediately concede that Amendment No. 11 is defectively drafted. I further concede that had I thought to turn the page to contemplate condition 3, I might have tabled an amendment to that, too; but as I am, strictly speaking, moving only Amendment No. 10, I shall concentrate on that and not worry about such minor matters.

It is generally accepted or believed that prior to the outbreak of what we call the Troubles there was no serious organised crime in Northern Ireland. After the formation of paramilitary organisations, or as part of that, all of those organisations became involved in what we loosely call racketeering. They had to raise funds to maintain their activities and they then became involved in what we would now call serious organised crime.

The ending of the paramilitary campaigns and the dying away of the direct bombing campaigns and assassinations left the racketeering that those organisations were involved in more apparent and there is every reason to believe that the racketeering has increased over the past decade—apparently because the Chancellor of the Exchequer continues to make engaging in it highly profitable in certain circumstances and because the people who were involved in paramilitary activities and terrorism now have more time on their hands. There have been comments that some people are racketeers for five days a week and paramilitaries at the weekends; I often prefer to say that a lot of people involved in paramilitarism are “privatising” themselves—in other words, focusing on what might otherwise be regarded as private activity.

Therefore, there is a close relationship between paramilitary organisations and organised crime. At Second Reading, I quoted from a report indicating that, depending on how you counted it, about half or three-quarters of those involved in organised crime

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had paramilitary connections. Clause 1 provides for non-jury trials in most cases involving a connection with or membership of a proscribed organisation. A significant number of serious organised crime activities will fall within the Act, because those involved in organised crime have a background in or a connection with paramilitary organisations.

Other groups involved in organised crime do not have such a connection, apparently, and will not fall within the Act. The only measure that they will fall within is the provision in the Criminal Justice Act 2003 that we discussed earlier. But organised crime in Northern Ireland has grown largely out of the culture of paramilitary organisations; and organised crime, whether it has a connection with those organisations or not, very much bears the stamp of their operating methods—indeed, broadly in terms of the way in which they operate, there really is not a huge difference between serious organised crime and a paramilitary organisation. They rely on the same techniques such as trying to intimidate jurors and witnesses in much the same way. One wonders whether it is right even to draw a distinction between paramilitary groups and those involved in serious organised crime. The same problems arise and the same methodologies are evident. That is why I have tabled this amendment.

If we do not have an amendment of this kind, we will be left with the unsatisfactory situation we touched on previously: we will have quite different legal regimes dealing with racketeers depending on whether or not those racketeers happen to have a history of or other connection with a paramilitary organisation. That is not a good thing. As well as being undesirable, there is a matter of principle here. This amendment would extend the operation of the Bill and broaden the range of circumstances in which a non-jury trial could take place, because when considering the circumstances in Northern Ireland, one is dealing with the same activity whether it falls within the Bill as presently drafted or as it would if it were to be extended to Amendment No. 10 and related amendments drafted correctly and tabled to address conditions 2 and 3. I beg to move.

Lord Smith of Clifton: These amendments would extend even further the circumstances under which the DPP could issue a certificate for a non-jury trial and it is tempting to support them for that reason. While we recognise that there is a strong connection between paramilitary organisations and organised crime in Northern Ireland, we believe that the provisions of Section 44 of the Criminal Justice Act 2003, which has come into force in Northern Ireland, are sufficient to deal with the risk of jury tampering in cases involving organised crime. Those provisions therefore make these amendments redundant and we would not support them if they were pressed at Report.

Lord Glentoran: I support the amendment. A number of sound points have been made. The Attorney-General recently remarked, “What a village we live in. Everybody knows everybody else”. That is absolutely true. The noble Lord, Lord Trimble, has made the point about

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the relationship between organised crime and paramilitaries and the fact that as paramilitaries fade, organised crime is likely to grow. That has one disadvantage in that it means that this type of trial will probably have to continue. However, the fact is that we have to pay attention to and take into account the changes in paramilitarism and organised crime. Again, I support the amendments.

Lord Goldsmith: The amendment illustrates the difficulties in getting this absolutely right. The noble Lord, Lord Trimble, has made a case for having an even wider set of conditions under which non-jury trial could be ordered. He recognises quite rightly that those cases of organised crime which are connected with paramilitary organisations would already be caught by the test. There is no need to extend the definition in the way provided for in his amendment in order to catch those cases. He also rightly identifies the cases that would in practice be caught by the amendment as those cases of organised crime which are unconnected with paramilitary organisations. The question to determine then is whether the same risks to the administration of justice arise in cases of that kind.

The Government’s view has been that such cases do not pose the same risks to the administration of justice. I do not deny that organised crime can give rise to risks to the administration of justice through jury tampering, but they would be met by the provisions of Section 44 of the Criminal Justice Act 2003. I hope that that illustrates that the Government have been looking carefully at where it is right to draw the line. On the amendment, the noble Lords, Lord Trimble and Lord Glentoran, take the view that it would be wise to extend the circumstances whereas the noble Lord, Lord Smith, takes a different view. Maybe that is an indication that we have been looking very carefully to get the position right.

The Northern Ireland Affairs Committee was also supportive of retaining non-jury trial for organised crime cases. That can be put in support of what the noble Lord, Lord Trimble, said. As I understand the report, it was more concerned with potential intimidation of witnesses. I do not believe that non-jury trial affects that issue at all. Sadly, witnesses can be intimidated in both non-jury trials and jury trials. I do not think that its particular focus really takes the matter any further.

For those reasons, although recognising the case that the noble Lord makes, the Government believe that we have put in the right position, having carefully considered which cases really give rise to the sort of risks that would be covered by this extended procedure. I am afraid that I therefore cannot accept the amendment.

Lord Trimble: The Attorney-General has advanced essentially the same point as the noble Lord, Lord Smith of Clifton; namely, that with regard to organised crime and non-paramilitary activities, the 2003 Act would be adequate. The problem, among other things, is that the 2003 Act sets very high standards for a non-jury trial. Although we are dealing with the same phenomenon, we have a higher standard if there is no

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paramilitary connection or background and a lower standard if there is a paramilitary connection or background. In addition there is the question of witnesses and/or the problem of perverse verdicts that apply to serious organised crime.

I have listened to what the Attorney-General said. I want to reflect on that and consider whether I want to improve my drafting at a later stage. Consequently, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Baroness Harris of Richmond moved Amendment No. 12:


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