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The noble Baroness said: I rise to move Amendment No. 12, again in the names of my noble friend Lord Smith and myself. We return to the issue raised in another place and about which we spoke at Second Reading. We believe the term “associate” is generally too broad and that it should be tightened. How do we determine whether “a person” is “a friend”, “a relative” or “another person”? These terms are always highly subjective. For instance, two people could be cousins but may not have seen each other since childhood. Should a trial be conducted without a jury in such circumstances? Have the terms “friend” or “relative” been used in any other legislation in relation to something as serious as permitting a non-jury trial?

The issue was raised by the Joint Committee on Human Rights. It said:

The Government response largely relies on its security assessment. It says that the security assessment that the Government have received is that members of paramilitary groups attempt to intimidate witnesses and jurors in cases where close friends or family members are the defendant in order to secure acquittals, and that former members of paramilitary groups also continue to intimidate their communities and attempt to use this to secure acquittals.

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The Government also point out that a connection with a member, or former member, of a paramilitary group would not, on its own, be enough to justify a decision for non-jury trial in a case. The DPP would also need to be satisfied of the risk thereby posed to the administration of justice.



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In the Northern Ireland Human Rights Commission’s view, the first condition is extremely problematic. The inclusion of “friend“, which is very subjective, and “relative”, which is very open-ended within the meaning of “associate”, makes the condition extremely broad in scope and so gives the DPP an extremely broad power to prevent a jury trial. The commission also considers that there is a risk of a breach in Article 14 in conjunction with Article 6.1 ECHR, in so far as the Bill makes it possible for a person to be denied a trial by jury on the basis of having been born into a family, one of whose members had at some time broken a particular law.

Colleagues in another place sought to remove paragraphs (d) and (e) in their entirety; however, the Minister argued that without these provisions there would be a large gap in the clause. Therefore, we have sought to tighten up the definition of “friend” and “relative” by ensuring that the DPP must have evidence of a significant relationship between A and B. We are trying to address circumstances whereby second cousins, say, have an extremely close, long-standing friendship which would cause the DPP to suspect that the jury could indeed be at risk from intimidation, and those of first cousins who have never even met each other because of a family rift, therefore making the possibility of jury intimidation minimal. I beg to move.

The Deputy Chairman of Committees (Lord Elton): The amendment proposed is to page 2 and subject to the same small typing error. It should read “Page 2, line 22, at end insert”.

Lord Avebury: My noble friend’s remarks reminded me of an occasion a very long time ago when I was a young man living in Derbyshire. I went to dinner with a neighbour and we got on to discussing consanguinity and the relative risks to the offspring of close relatives who were married. My hostess, whom I was sitting next to, said that she had always understood that there was not really much risk with first cousins but that there was a very strong possibility of genetically damaged offspring arising from the union of second cousins. I said, “I don’t know about that, because my father and mother are second cousins”. She said, recovering quickly, “Well, perhaps there’s something wrong with your sister, then”. So my noble friend’s comments on first and second cousins made me wonder where we are going to draw the line. I discovered a couple of years ago that my wife and I were 16th cousins although I am sure that that would not be of any interest to the DPP. Where is the line to be drawn? We need some clarity on the matter.

The issue of friends is indeed subjective. I do not know whether Members of the Committee are familiar with MySpace on the world wide web. You can sign up and then invite somebody to be a friend. Simply by the act of saying that the person is a friend, he or she becomes a friend. It is a very convenient way of extending your contacts on the world wide web, but it would be stretching a point to say that someone who is signed up in that manner would be caught by the provisions of the Bill. That illustrates how difficult and subjective the use of the word “friend” can be in

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different contexts. My noble friend is quite right; unless we have greater clarity on the use of the terms “relative” and “friend”, and the definition of “associate”, we are giving the DPP an enormously wide power that he should not possess.

Lord Goldsmith: I am very grateful in particular for the intervention of the noble Lord, Lord Avebury, because he made my point for me. The fact that someone is a first or second cousin does not tell you the answer to the question. The noble Lord asks: never mind about Derbyshire or Northern Ireland, where do you draw the line? That line is drawn when the second condition is met—when the DPP is satisfied that, in view of the particular condition that has been found, there is a risk that the administration of justice might be impaired.

The noble Baroness, Lady Harris, gave two examples. If there were second cousins who were very close, the DPP might be satisfied that there was a risk that if one of them was on trial, the other would go about the business of intimidating jurors, and that in view of that relationship—albeit the relative was only a second cousin—there would be a relevant risk. In her other example—first cousins who had never spoken because there had been a family rift—the DPP would not take the view that there was a risk due to that relationship. It is important to take fully into account the second condition.

What worries me about putting in a word like “significant” is that one could end up with an artificial definition of what “significant” meant—for example, a “significant” relative is anyone up to a first cousin or second cousin, but not a nephew by marriage—and one could end up with a set of conditions in identifying someone. The real issue that one should consider is whether, in view of the fact that there is a relationship, there is a risk that the administration of justice might be impaired.

I do not believe that the DPP is hell-bent on asking for a non-jury trial in every case in which one of the conditions is met. I am sure that that will not be the position at all and that the DPP will apply the conditions with a great deal of care and attention. I appreciate the fact that the amendment is much more helpful than the one brought forward in another place and recognises that one needs to have some provision in relation to relatives. One does not want to put an unnecessary and possibly artificial burden of definition on this test when the key question will be whether, in view of that, the DPP is satisfied that there is a risk to the administration of justice. I invite the noble Baroness to reflect on that.

Baroness Harris of Richmond: I thank the noble and learned Lord for giving me his explanation of how he feels the DPP will know exactly what the strength of the friendship is. I still find it difficult to imagine how he will come to that conclusion and from where he will draw his knowledge. Who is to know who is a close friend, relative or whatever? However, I will reflect on what he has said. We may well come back to this matter with even better suggestions on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.



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[Amendment No. 13 not moved.]

Clause 1 agreed to.

Clauses 2 to 6 agreed to.

Lord Glentoran moved Amendment No. 14:

The noble Lord said: The amendments concern the challenge of the issue of certificate. Overall, we understand the need for the protection of sensitive information. Just as the Shuker judgment said, decisions must be firmly based on the practical implications of permitting judicial review. However, we do not want to restrict judicial review unnecessarily. The right to trial by jury, as has already been said, is a basic principle of UK law and should not be set aside lightly. We continue to have some doubts about the wisdom of a necessarily partisan player such as the DPP making such a decision. The procedure must not be allowed to become more opaque than it is already, if that is indeed where we must end up.

We have tabled two sets of amendments. Amendment No. 16 is a probing amendment extending the possible grounds on which judicial review is based in Clause 7. It would insert two extra grounds: “lack of jurisdiction” and “error of law, or”. The Government have taken the three reasons currently in the Bill from a case mentioned in the Shuker judgment at paragraph 17, R v Director of Public Prosecutions ex parte Kebilene and others (2002), where Lord Steyn said,

Do the Government not feel that there are other standard reasons where a judicial review might be wise?

My second set of amendments is rather more substantial. They establish the right to an appeal against the decision by means of a special commission. The structure and powers of that commission have been based on the Terrorism Act 2000, which established a similar process to deal with the decision to remove a name from the list of proscribed organisations. The commission will be able to hear sensitive evidence in private, so the decision will be able to be reviewed without risk.

We feel that that procedure would be a valuable safeguard against the use of the certificate. The DPP's decision will often be controversial and this measure will improve public confidence in it while maintaining due regard to the sensitivity of the information. I beg to move.



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Lord Smith of Clifton: I have some sympathy with Amendments Nos. 14, 15 and 18, because they are an ingenious way to try to resolve the issue of judicial involvement in the process of deciding on the mode of trial. However, it seems that the noble Lord is taking a sledgehammer to crack a nut. A much simpler approach would be either to ensure that there is judicial involvement in the first place, as we suggested in our Amendment No. 13, or to fully preserve the right to judicial review by getting rid of Clause 7 altogether. Although Amendment No. 16 is obviously welcome in that it extends the grounds for appeal, we would still prefer Clause 7 to be removed altogether.

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Lord Trimble: I regret to say to the noble Lord, Lord Glentoran, that I find myself very much in agreement with the noble Lord, Lord Smith of Clifton, that the simple way of resolving this problem is to remove Clause 7. That is the sum total of the matter. The noble Lord, Lord Glentoran, has been very ingenious in the way he has proceeded, but I suggest that there is a simpler, more straightforward way, and I invite him to join other noble Lords in calling for the deletion of Clause 7 as the most elegant and simplest way to proceed.

Lord Goldsmith: The noble Lord’s amendments deal with two connected but separate matters. One, as has just been apparent from the intervention by the noble Lord, Lord Trimble, relates to Clause 7. I shall deal with that first before coming back to Amendment No. 14 and the following amendments, which provide a new potential procedure to deal with DPP certificates.

I anticipate that we will shortly be coming to deal with Clause 7 in more detail, so I will simply say this at this stage: Amendment No. 16, tabled by the noble Lord, Lord Glentoran, would add two further grounds for challenge to Clause 7—lack of jurisdiction and error of law. While I recognise that those are common grounds for judicial review, I am at something of a loss to see how quite they would arise in relation to our provisions in a way that would make them fall outside the guidelines of bad faith, dishonesty and other exceptional circumstances, which are laid down in the clause. Certainly I have difficulty seeing how lack of jurisdiction arises. I am not sure that it would be necessary to put those in, because if a court were of the view that there was an error of law—at least, such an error of law as to vitiate the certificate, as it were—it would regard that as falling within the category of “exceptional circumstances”, which is undefined. The noble Lord may have some particular examples in mind, and at some stage he may want to give me those. I see the noble Lord rising.

Lord Glentoran: I thank the Minister. I tabled that amendment to make the point that those three items, (a), (b) and (c), should not be seen as a comprehensive list. There must be many other reasons and ways to come to the same decision.

Lord Goldsmith: The reason those words have been chosen, in an amendment made in another place, was to reflect the way it was dealt with in the Shuker case, but I think we will come back to that in the next group of amendments.



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I turn to the substantive proposals in Amendment No. 14 and the connected amendments, namely Amendments Nos. 15 and 18. I recognise why the noble Lord, Lord Glentoran puts them forward, and I recognise that he has appreciated the particular issue with which we have been seeking to wrestle in that the decision about jury or non-jury trial will often depend upon sensitive intelligence information. He appreciates that, for the reasons I explained before, it would be difficult for that material to be shared with the defence or deployed in open court.

I hope the noble Lord also appreciates the concern that without some quite elaborate procedure, or possibly some procedure involving special advocates, the only way of dealing with a case in which it became necessary to disclose sensitive information, so that the issue of jury or non-jury could be dealt with, would be by withdrawing the application to have a non-jury trial. That is what we do not want to find: a situation in which there is intelligence that there is a risk to the administration of justice but it is not possible to reveal that openly, and the end result is that one has to proceed with a trial that may then be imperilled because of intimidation.

I am concerned—as is the noble Lord, Lord Smith of Clifton, although, I recognise, with a different end result—that the proposal the noble Lord puts forward is a sledgehammer to crack a nut. This is quite a complex and cumbersome procedure that has the potential to add delay into the criminal justice system while these issues are being determined. I said I would not say anything about Shuker, but I am going to break that promise straightaway by making this point: the Court of Appeal in Shuker was saying that it is rarely appropriate for the courts to intrude on to this sort of decision. It is not that it is never appropriate, which is why it is right that there should be circumstances in which they can intrude, but the court itself said it was rarely appropriate to do so, and it is worth reflecting on why that is. It is partly because the DPP is making a decision, not about a substantive issue that is to be determined in a trial, but about the mode of that trial. I repeat that the alternatives are two forms of fair trial, not a form of unfair trial against a form of fair trial.

The consequence of the DPP’s decision will be that, in certain circumstances, a defendant will be diverted to a form of trial that remains every bit as fair, in the general sense, as a jury trial. It is also the case that the DPP—somewhat unusually; it is not the position in England and Wales, but it is so in Northern Ireland—already makes decisions about mode of trial. He decides whether cases can be tried with a jury in the Crown Court or without a jury in the magistrates’ court. In England and Wales that is a decision for the magistrates, but in Northern Ireland it is for the DPP to decide.

I am concerned that the noble Lord is putting forward a cumbersome proposal for dealing with the particular problem; that is the concern I have about accepting that part of his amendments.

Lord Glentoran: I thank the Minister for his response. I accept that the proposal is somewhat cumbersome, but it has highlighted our concerns about who should

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make this difficult decision. I sense that that debate will go on outside this House for some time. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

Clause 7 [Limitation on challenge of issue of certificate]:

On Question, Whether Clause 7 shall stand part of the Bill?

Lord Avebury: In the debate on Clause 7 we shall also be discussing Amendment No. 17, which is consequential. For us, Clause 7 is the most objectionable of all the provisions in the Bill. My honourable friends in another place voted against it at Report, and since then the Joint Committee on Human Rights has severely criticised it, for reasons that are set out in some detail in paragraphs 1.28 to 1.37 of its report.

The clause seeks to curtail the jurisdiction of the ordinary courts to entertain challenges to the DPP’s decision to issue a certificate, including challenges to the legality of that decision. As originally drafted, the clause also tried to subject Section 7 of the Human Rights Act—by which proceedings can be brought, claiming that a public authority has infringed a convention right—to a limitation that was set out in the clause. That part of it, at least, has been amended, and we welcomed that improvement.

However, the jurisdiction of the courts is not ousted altogether but is restricted by reference to the grounds on which the issue of a certificate by the DPP may be challenged. A challenge is still possible on grounds of dishonesty or bad faith. It is claimed that such a limitation is not incompatible with a right of access to a court in Article 6.1 of the ECHR because in issuing a certificate, the DPP is not in fact determining a civil right.

This issue is discussed in paragraph 1.30 of the JCHR report. In response to the committee’s request for elaboration of the reasons for the statutory ouster of the court’s jurisdiction to review the legality of a delegated decision, the Government pointed to the Shuker case in which they said that the High Court of Northern Ireland had ruled that,

The Government claimed to be putting the judgment in Shuker on to a statutory footing, but, as they know, on careful reading of the Shuker case, the Joint Committee on Human Rights found that the Government had misread the judgment. What they are doing here is identical with the argument presented by the Attorney-General to the court in that case, and that was expressly rejected by the court. It is acknowledged that the court allows that decisions which are generally subject to judicial review may be exempt from certain grounds of challenge and that the decision in question, which concerned the de-scheduling of offences under the Terrorism Act 2000, was not amenable to judicial review on grounds of procedural unfairness. But the court specifically declared that it would not be helpful,

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or even possible, to predict what other grounds there might be for precluding judicial review challenges to delegated decisions.


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