Clause 1
Justice and Security (Northern Ireland) Bill
4:30 pm
Lady Hermon (North Down, UUP)
It came into force on 8 January, so that is the time that it has taken the Government, in conjunction with the other relevant justice agencies, to put the 2003 Act into operation even though there is the real and present threat of jury tampering.
Let us look for a moment at what the Minister is trying to persuade us of. Section 44 of the 2003 Act came into force just a few days ago and has very limited scope. The Minister, who sits there with an angelic look on his face, knows well that that is so. It will apply only when the prosecutor makes an application to the Crown court judge, who must be satisfied about two conditions that are set out in section 44. It states:
“The first condition is that there is evidence of a real and present danger that jury tampering would take place ... The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood”
is such that there would be a substantial threat to the interests of justice in the trial if it were conducted with a jury.
Section 44 applies only to jury tampering. The tests that have to be satisfied are set at a high level. The provision will be available only in limited circumstances. However, the Minister has identified the two parts of clause 1 that must be satisfied and the first is that the DPP must find at least one of the conditions outlined in the clause. It is a side issue, but the DPP might be a man or a woman as we would anticipate that in future all aspects of the judicial system would reflect gender and ethnicity in Northern Ireland. For the Committee’s information, there are 10 High Court judges in Northern Ireland, and not one is female. The positions of Lord Chief Justice and the Director of Public Prosecutions have never been held by a woman, but that is a side issue.
The key issue is that the DPP is satisfied that there is a risk that the administration of justice might be impaired. In those circumstances, it is completely illogical that the DPP, he or she, should turn a blind eye to that significant fact and not make a certificate that there should be a non-jury trial.
The Minister, by being terribly persuasive about the virtues of the Criminal Justice Act 2003, is wrong in giving the impression that there is a seamless system that will pick up, at the trial stage under the 2003 Act, those cases in which the DPP has concluded that there is a risk to the administration of justice. They will not be picked up under the 2003 Act because it sets a very high standard for the judge to come to that conclusion when the trial has begun.
The definition of risk to the administration of justice goes much wider than simply jury tapping, which is the only issue covered by section 44 of the 2003 Act. In those circumstances, it is consistent with the Minister’s own arguments that he cannot conceive of an instance when the DPP would not issue a certificate but the Minister is still not prepared to make it a duty rather than a discretion.
I would be intrigued if the Minister would intervene to give the Committee and the Chairman some examples. I know that Sir Nicholas follows our debates with great interest and passion as he chaired in his characteristically fair and kindly manner in difficult circumstances our ghastly sittings on the proposed measure in respect of on-the-run terrorists not coming before a court.
I hope that the Minister will intervene to give examples of cases in which the DPP would exercise discretion when he knows that there is a risk to the administration of justice. Why in heaven’s name not make that a duty? The Minister said that he did not want to be rigid and inflexible, but I cannot be convinced that he believes, in his heart of hearts, that it is right that the DPP should turn a blind eye to a risk to the administration of justice.