Lord Duncan of Springbank:
Moved by Lord Duncan of Springbank
That the draft Order laid before the House on
Relevant document: 48th Report from the Secondary Legislation Scrutiny Committee
My Lords, under this order, trials without a jury can take place in Northern Ireland for a further two years from
It is important to note that non-jury trial provisions are available only in exceptional circumstances in Northern Ireland where a risk to the administration of justice is suspected by the Director of Public Prosecutions. This could be, for example, through jury tampering or due to jury bias. Non-jury trial provisions also protect against the risk of impairment to the administration of justice arising from a hostile or suspicious jury—a circumstance that is more likely to occur in Northern Ireland than the rest of the UK, with Northern Ireland’s unique security situation and troubled past.
Decisions for non-jury trials are made on a case-by-case basis, taking into account the circumstances of both the offence and the defendant. The Director of Public Prosecutions for Northern Ireland must suspect that one or more of four conditions is met. The conditions are specified in the Justice and Security (Northern Ireland) Act 2007 and relate to association with proscribed organisations or offences connected with religious or political hostility. A case that falls within one of the four conditions will not automatically be tried without a jury. The DPP must also be satisfied that there is a risk that the administration of justice might be impaired if a jury trial were to be held.
Let me be clear: this is not a Diplock court system. There is a clear distinction between this system and the pre-2007 Diplock court arrangements. The Diplock system saw a presumption that all scheduled offences would be tried by a single judge. Today in Northern Ireland there is a clear presumption that a jury trial will take place in all cases. At the peak of Diplock courts in the mid-1980s, there were more than 300 such cases per year. The peace process and ceasefires saw this figure fall to an average of 64 cases in the last five years of the Diplock system, leading to their end in 2007. By contrast, the average number of non-jury trials per year is less than a third of this. Non-jury trials are used only in exceptional circumstances; they are not Diplock courts. I assure noble Lords that the Government wish to end the exceptional system of non-jury trials as soon as it is no longer necessary, but this should happen only when circumstances allow: otherwise, we risk allowing violence, fear and intimidation to undermine the criminal justice process in Northern Ireland.
Noble Lords will be aware of the lethal threat still posed by terrorists in Northern Ireland. Violent dissident republican terrorist groups continue to plan and mount attacks with the principal aim of killing or maiming those who serve the public in all communities so bravely. Police officers, prison officers and members of the Armed Forces are the main focus of these attacks. Terrorists’ continued use of firearms, explosive devices and other weaponry continues to cause death and injury. Individuals linked to paramilitary organisations also continue to undermine the rule of law and the hard-won peace in Northern Ireland through the use of violence, fear and intimidation in both republican and loyalist communities.
While many attacks have been disrupted, the security situation today regrettably remains much the same as it was in 2017, when the provisions were last extended. The current threat level for Northern Ireland-related terrorism remains “severe”, meaning that an attack is highly likely. In fact, it has been set at “severe” for nearly 10 years. This year, in 2019, three national security attacks have occurred as a result of Northern Ireland’s terrorist activities. Although there has been a reduction in the overall number of national security attacks in recent years, vigilance in the face of the continuing threat remains essential.
Noble Lords will remember the car bomb in January that exploded outside the Londonderry courthouse. It was described by the PSNI as a relatively unsophisticated, crude device. Clearly, however, as noble Lords may have seen from CCTV imagery released at the time, it could easily have caused injuries or fatalities and was wholly indiscriminate. Noble Lords will also recall the postal packages that were sent to addresses in London and Glasgow. One detonated. Thankfully, no one was injured during these first two national security incidents.
No one will forget the tragedy in Creggan on
Noble Lords may have heard subsequently that the PSNI and the Public Prosecution Service announced that every possible support, including witness anonymity, would be provided to those giving evidence as part of this murder case. This move highlights the fear and intimidation that exists in some communities in Northern Ireland. These are small, close-knit communities in which it is very easy for people to be identified. Violence, fear and intimidation are real concerns for the wider community because of the presence of violent dissident republican terrorists and paramilitary groups. A report commissioned by the Department of Justice (Northern Ireland) in March this year found that 29% of those living in mainly loyalist areas and 25% of those living in mainly republican areas think that paramilitaries create fear and intimidation, compared with 15% in Northern Ireland generally. This evidences a general fear of paramilitaries among people across Northern Ireland—but one that is exacerbated within certain communities.
We accept that having specifically designed non-jury trial provisions in Northern Ireland is not an ideal situation—but neither is the “severe” terrorist threat in Northern Ireland. We also accept that this is the sixth extension of what were designed to be temporary provisions. But the “severe” terrorist threat in Northern Ireland is a complex and enduring issue, and we must make sure that, for as long as it endures, it does not interfere with our ability to provide safe and effective justice.
There is also the wider issue of paramilitarism, which has affected Northern Ireland for far too long. The Northern Ireland Executive have already made inroads through their Tackling Paramilitarism programme. We should work together across government—this Government and a devolved Northern Ireland Executive —to think creatively to overcome this complex and enduring problem. Collaboratively, we can address the societal factors allowing paramilitaries to exert control and influence. It is our collective responsibility to ensure that communities are supported to reject paramilitarism and that those being groomed and led down a dangerous path of terrorism can transition away from violence so that the people of Northern Ireland can live in a peaceful, prosperous society without fear.
There is already ongoing collaborative work to address the deep-rooted societal challenges that face many communities in Northern Ireland. Government is addressing this and is working with devolved partners and security partners. This important work must continue for the people of Northern Ireland, who deserve so much better. But there are no quick fixes. In line with commitments made in Parliament to consult publicly on non-jury trials, the Northern Ireland Office launched a public consultation in December last year. The consultation concluded in February and received a total of 15 responses from a range of interested organisations and individuals across the United Kingdom. The majority of respondents supported, or at least accepted, the need for another two-year extension of non-jury trial provisions.
Questions have been raised about whether non-jury trials are fair. It is simply wrong to equate a non-jury trial with an unfair trial. Noble Lords will be interested to learn that there was a case in which it was argued that the non-jury trial provisions in the Justice and Security Act were in breach of Article 6 of the European Convention on Human Rights. In fact, the Court of Appeal held that,
“a fair trial … can happen before a judge alone without infringing … fair trial rights”.
It is also worth noting that some respondents supporting an extension of non-jury trial provisions were keen to point out the comparable and, in some years, favourable rates of acquittal in non-jury trials when compared with jury trials.
There have also been calls for Northern Ireland to mirror England and Wales and use only provisions in the Criminal Justice Act 2003. While appropriate for other UK jurisdictions, the provisions under the Criminal Justice Act are not adequate to deal with Northern Ireland’s unique security situation. The current non-jury trial system under the Justice and Security Act was designed specifically to address the unique and ongoing challenges in Northern Ireland. It would therefore be inappropriate at this time to rely solely on the Criminal Justice Act.
We also must acknowledge some general concerns about a lack of transparency in the non-jury trial process. There is a balance to be struck between issues of national security and being as open about this process as possible. This is something that the Government will continue to explore with PSNI and the Public Prosecution Service.
The Government are listening. We have noted the consultation responses and will engage the relevant bodies to examine them more closely, particularly the concerns. We will work to address these where we can. During parliamentary passage of the last extension of non-jury trial provisions, we accepted the need for greater independent oversight of how the provisions functioned. Ongoing review of non-jury trials was included in the remit of the Independent Reviewer of the Justice and Security (Northern Ireland) Act, Mr David Seymour. This has established a further safeguard, which I know noble Lords have welcomed, and has been vital in providing assurances that the system remains fair and effective, so that we keep it in place for only as long as is necessary and appropriate. David Seymour made a number of minor recommendations to improve Northern Ireland’s non-jury trial process in his last two reports. Many of these recommendations have already been addressed, and some continue to be explored with security partners.
We must recognise that Northern Ireland remains in a unique and volatile security situation. The events in Creggan in April are a reminder of this. Non-jury trial provisions in the Justice and Security Act continue to be an important factor in supporting the effective delivery of the criminal justice process in a very small number of criminal cases. Over the last 10 years, non-jury trials have consistently accounted for less than 2% of all Crown Court cases. This figure reflects the small but consistent need for non-jury trials in Northern Ireland. It is, sadly, a reality that certain jury trials in Northern Ireland would quite simply not be safe from disruption by those involved in terrorist or paramilitary activity, from paramilitaries who make their presence known in Northern Ireland’s close-knit communities, or indeed in the public galleries of the courtrooms.
In the light of all that I have told noble Lords today, it would be absolutely remiss of the Government to dispose of non-jury trial provisions at this time. The continuing “severe” threat, alongside the fear and intimidation across pockets of Northern Ireland, risks the proper delivery of criminal justice in Northern Ireland. In light of this evidence and the views before her, my right honourable friend the Secretary of State has decided to seek to renew non-jury trial provisions for a further two years and to continue to keep them under regular independent review. Noble Lords can rest assured that she has not taken this decision to seek to renew non-jury trial provisions lightly. We strongly believe, however, that the system is, on balance, a proportionate and necessary measure in light of the unique risks facing the criminal justice process in Northern Ireland. I beg to move.
My Lords, I have considerable experience of jury trials, and of non-jury trials in other jurisdictions, and I know which I prefer. The jury trial is superior in efficiency and fairness, and, in particular, in maintaining public confidence in the system; but it is with a heavy heart that we accept the need for these provisions and we will not object to the order that is sought.
There is still a clear danger from small groups of dissidents, as we saw on
“Those who carried out this despicable attack have nothing to offer Northern Ireland but a return to the pain and suffering of the past”.
As the Minister has pointed out, the threat level remains at “severe”, where it has been for the last 10 years. Such actions make jury trials very difficult in a very small number of cases in Northern Ireland.
Northern Ireland is a relatively small jurisdiction, but these actions reflect the fact that it is a divided society, despite the Good Friday agreement being signed 21 years ago, and paramilitary organisations are still active in many parts of Northern Ireland. Political motivations are no longer at the forefront. Paramilitary organisations have turned to crime, and they enforce discipline through violence and intimidation in those tight-knit communities. Any residents who informed on a member of a paramilitary organisation to the police would be at risk.
The independent reviewer, Mr David Seymour, cites figures from 2016 and 2017, which show that 197 offences—my Lords, I feel that I have to resume my place.
My Lords, the need for this order arises from continuing paramilitary activity in Northern Ireland. First, could my noble friend comment on the work being done by the Independent Reporting Commission—established by our Government in conjunction with the Republic’s Government in 2017—and its effectiveness? There was considerable debate in this House when the commission was under preparation. Its objective is,
“to monitor progress on tackling paramilitary activity”.
It would be useful to hear how this joint body set up by Dublin and London is getting on.
Secondly, could my noble friend comment on the panel set up by the Northern Ireland Executive? Its task is to provide a strategy for the disbandment of paramilitary groups. In view of the significance of paramilitary groups, a comment on the work of these two bodies would be useful.
My Lords, as the Minister emphasised in his remarks a short time ago, this order is an indication of the ongoing situation which too often is visible in Northern Ireland. We are frequently told that we have moved on some acres, compared with the situation that many of us lived through in the Troubles. We are told that there is a great improvement in the security situation, but the realistic position, as we have been reminded all too often, is that incidents can occur which remind us that so much has not changed.
It is a great pity that this order is necessary and is, in fact, a legacy of the Troubles. I am sure the Minister will agree that it gives us an opportunity to pay tribute to the judiciary in Northern Ireland: given the particular situation that we have had to contend with over the years, the pressure on individual members of the judiciary has been intense. It would be wrong if the opportunity were missed to pay tribute to that element of our society. I regret the absence from the Cross Benches, through no fault of his own, of my noble and learned friend Lord Carswell—my friend of many years and a former Lord Chief Justice of Northern Ireland. He and I were students together many years ago and for a period we lectured together in the faculty of law in Belfast. I know that were he present today, he would welcome the opportunity to pay tribute to his colleagues of those years for the professional manner in which, with integrity and loyalty to the elements of the rule of law, they carried out their duties in the circumstances of Northern Ireland.
However, for those of us who were tasked with particular jobs during that period, it is worth asking certain questions about the need for this order. First, what criteria, exercised by whom, will come into play when it is found unnecessary to implement it? The Minister has rightly told us that the situation at the moment demands a continuation of this unique way of administering criminal justice but I am a little troubled by the assumptions that public speakers are wont to use. They say, “The situation continues”, or, “The problem exists”. It is easy to make bland assumptions, so can the Minister first tell the House a little more of the methodology that the Government will exercise to reach the point of deciding that an order of this nature is no longer necessary?
Secondly, in paying tribute to the judiciary, many of whom I have had the privilege of serving with in other capacities, I believe the demands made by such an order on the judiciary and the administration of justice—albeit in a limited number of cases—means that it questions so much of the jurisprudence of the administration of justice. Are we to be continually told that the situation continues to demand such exceptional measures? That is the reason for my question: what criteria will Her Majesty’s Government utilise when, please God, the time comes that this will be a thing of the past? Where exceptional methods are necessary in cases such as the administration of criminal justice, there is constant pressure on politicians to exercise the opportunities to create a level of peaceful coexistence in which to isolate those cases where this order, and others like it, are essential.
In his opening remarks, the Minister also referred to the situation of paramilitary organisations in Northern Ireland. I think he would be ready enough to agree with me that many efforts are being made to remove the subtle threat and reality of paramilitary influence in certain areas. Does he agree that credit has to be given to certain segments of the paramilitary strategy and activity in Northern Ireland for becoming a different element of society; recognising the role they have played in the past but saying they have moved on, into a new category? As someone said to me the other day, the aim is to become an “old boys’ association”, with memories of the past, which will utilise the ability and facility to play a constructive role in the Northern Ireland of the future.
For all those reasons, I welcome the way in which the Minister has introduced the order to the House today. There are underlying issues which have to be recognised. Much is happening of a positive nature, despite all our difficulties. I hope that, one day, this order will be unnecessary.
My Lords, I hesitate to intervene in a debate on Northern Ireland, but I am moved to do so by the most eloquent expressions of the noble and right reverend Lord, Lord Eames. I have personal knowledge of the extent to which the judiciary in Northern Ireland have had to accept quite severe disruption to what we would regard as ordinary family life. It is right that this House recognises that, as the noble and right reverend Lord has done. Those of us who have practised in other jurisdictions have never had the misfortune to face the stresses which necessarily arise, particularly in the prosecution of cases which raise issues of the use of explosives or things of that manner.
In his introduction of this measure, my interest was aroused by the Minister’s reference to the comparison between jury and non-jury cases in relation to convictions. Is he able to provide a similar comparison in relation to appeals? It would be interesting to know how far the question of appeal was more or less reflected in the non-jury part of the system, rather than the part covered in the usual way by jury trial.
My Lords, in considering these proposals, I cannot but recall that we are standing on the eve of an anniversary: 75 years ago so many young men—and some women—from the Province of Ulster gave their blood, their lives and, in many cases, members of their family, to preserve the rule of law and the freedoms which we cherish so greatly. It is therefore noteworthy that the Minister implied—indeed, made explicit—that the measures before us are unfortunate and distasteful but necessary. I am no longer privy to the analysis which would suggest that that is the case, but I accept the point of view of the Minister and the Government on this.
Since we recognise the extraordinary and unfortunate nature of these proposals, it is therefore essential that not only will there be a regular review of this but that there will be a deep and meaningful study between each review. In the context of the very eloquent and pertinent words of the noble and right reverend Lord, Lord Eames, will the Minister tell us, in summing up, a little more of the detail of the oversight and review process and the criteria that the noble and right reverend Lord asked for by which such a judgment will be made? Ultimately, it will be made by the Government, but presumably they will give great weight to the recommendations of the independent reviewer. I think it would be helpful for everyone to know just how seriously that is taken, by understanding a little more about the process.
My Lords, I am sure that noble Lords will join me in wishing the noble Lord, Lord Thomas of Gresford, all the very best.
Recalling my first visit to Northern Ireland as a youngish shadow Minister 24 years ago, the situation was hugely different from what it is today. There were Diplock courts, of course, and juries before that had been severely intimidated by paramilitaries from both sides. Extreme sectarianism meant that that you were not guaranteed, in the proper sense of the word, a fair trial if that trial was to be held with a jury. As the Minister said, Northern Ireland is a very small place and it was even smaller, in population, in those days. We had to have these necessary evils: there had to be some system which meant that justice was fair and outside the realms of intimidation. It is also fair to say that between that time and 2007, when the Diplock courts went and the new system came in, we saw an enormous difference in Northern Ireland. The landscape changed considerably. Not least of this, of course, was that the nationalist and indeed the republican communities began to accept the criminal justice system and the police system, so that people from those communities sat on the Policing Board and involved themselves with the PSNI as well.
So there were huge changes. The Minister touched on the fact that in recent times—the last couple of years in fact—non-jury trials in Northern Ireland have become a tiny proportion of the whole. In 2016 there were only 12 non-jury trials out of 1,640. In 2017 it was nine out of 1,409. Those figures clearly indicate that there has been a huge shift in what happens in Northern Ireland. He is right, of course, to say that the security situation in Northern Ireland is still such that, at the end of the day, you cannot totally rule out a trial that would be unfair because of intimidation or extreme sectarianism. The points made by my noble friend Lord Reid and the noble and right reverend Lord, Lord Eames, are very significant in terms of working out when we will actually see the complete end of non-jury trials in Northern Ireland.
Of course, in a general sense it is about security, and if the security situation improves to such an extent that they are unnecessary, then it will change by the next time we look at this legislation, in two years’ time. But we have to be a bit more scientific than that; as long as you have a system which is different from the rest of the United Kingdom—indeed, from the rest of Ireland—Parliament should be informed as to how and why it should continue, if it does. It would be helpful if the Minister could tell us how the oversight occurs and how this might eventually end.
The other issue is that, so long as there is political instability in Northern Ireland, the possibility of terrorist activity, which we have seen over the last couple of months and even in the last couple of weeks, fills the vacuum of political instability, albeit nothing like how it used to. But it is still there. In that context, I am sure the Minister can reassure the House that the talks in Northern Ireland are going well and that there is a possibility that the institutions might be brought back—bearing in mind that it is not long before the marching season and the holidays are upon us, which is always a reason why we cannot do things in Northern Ireland. The fact that there is political stability hopefully means at the end of the day that the dissident republican threat, if not evaporating, is certainly very much less and that, as a consequence, normalcy can come to Northern Ireland and all trials in Northern Ireland, where relevant, can be trials with a jury.
My Lords, I begin by thanking all noble Lords for recognising the need for this extension and that it is not the choice or preference of the Government to pursue this route. Were we in different circumstances, we would not be countenancing non-jury trials in Northern Ireland. But circumstances are different and we need to be cognisant of what those differences mean for the fairness of the trials themselves.
I too wish the noble Lord, Lord Thomas, a speedy return to the Chamber. He made the important point that paramilitarism, with which we are so familiar, has evolved. It has now become a gangsterism. It has moved from just being men wearing uniforms to being a corrosive element in so many communities in Northern Ireland. Many of these communities are close knit, and intimidation can be exercised in the most insidious and secretive of ways. That is why we need to recognise that a trial must be fair. In those circumstances, we must recognise that intimidation, tampering or any of the other means by which juries or witnesses can be affected must be taken into account in the exercise of justice.
I do not doubt for a moment—here I return to the comments made by the noble and right reverend Lord, Lord Eames—that the judiciary in Northern Ireland has borne a significant burden. Those here who have practised law, especially those who have served on various judicial Benches, will recognise what a challenge that is. To do so in Northern Ireland is to embrace a different world, where traditional family life is disrupted on a daily basis. The fact that it exercises justice in an impartial way is to its credit, and the fact that it is willing to do so under what are sometimes the most perverse and difficult of situations is a tribute to it. I join the noble and right reverend Lord in paying tribute to it for the work it does and the duty it displays in the service of its country.
It is important to touch upon two key aspects that have come through in this debate. First, while accepting that there will be an extension for two more years, by what criteria will we ever be able to establish when we have moved beyond this moment in time? This is important; when I spoke to my officials this morning, that was the very issue about which I too was concerned. It is not enough to say, “When things get better” or wave your arms and say, “We will know when it is time”. There needs to be a suite of very clear criteria.
I can set out certain criteria to your Lordships today. Clearly, the warning about security in Northern Ireland is critical. That is based upon a whole series of assessments conducted by various organisations and bodies in Northern Ireland. That is quite a delicate thing to establish, because it is very easy to use the word “severe” but very difficult to then quantify how you got there. Clearly, we need to move to a situation in which the exercise of justice can be undertaken without threat. That can be done only when we reduce the various gradations down from “severe” until we reach the “normalcy”—the very word used by the noble Lord, Lord Murphy—of everyday life in Northern Ireland.
There are other elements to this issue. The various communities need to have faith in the process. That is also difficult to assess, which is why we are clear that the independence and the review that will take place need to be heard and actioned. That review needs to look at each aspect so that we can understand exactly how close we are getting to the point at which intimidation is not a factor.
The noble Lord, Lord Thomas, made the point that there were 197 cases of some form of witness or jury tampering last year. Of course, those were not in the cases we are discussing today but it is a reminder once again of the notion of gangsters—that is, strong elements of abuse of the judicial process by individuals who seek to change the verdict. That is going on now. It is therefore important that the criteria are handled sensitively because we cannot reach a situation in which we believe that we have secured the desired outcome but we are wrong. That would be worse because it would undermine the very notion of fairness in the application of the law.
The noble Lord, Lord Lexden, made two specific points, which I will address. The Independent Reporting Commission consulted a wide range of statutory and non-statutory bodies. The first substantive IRC report acknowledges the good work carried out to date but points to the challenges of these issues in the absence of a functioning Northern Ireland Executive. We remain resolute in trying to address that matter but it is ultimately one of the bigger challenges. The IRC will continue to consult stakeholders and will report annually on progress towards ending the continuity of paramilitary activity.
That brings me to the point made by the noble and right reverend Lord, Lord Eames. A number of bodies have changed and are changing from what they once were. That must be recognised. We need to find a way of ensuring that those people with a history and a past can evolve once they are able to discard those elements of paramilitarism. Perhaps they will never quite reach the notion of an old boys’ club but we need to recognise their journey and where they have finally arrived. We cannot move forward without accepting the legacy of the past and the commitments made by those bodies seeking to embrace a new way forward. I endorse the words used by the noble and right reverend Lord; in doing so, I offer him my thanks for the work that I know he has undertaken in this area, which is not an easy one.
The noble Lord, Lord Lexden, asked a separate question about the strategy for the disbandment of paramilitary bodies—that is, the Tackling Paramilitarism Programme. Thirty commitments from the Northern Ireland Executive make up that programme; for example, £50 million has been pledged over five years—2016 to 2021—to support the programme’s delivery. The Paramilitary Crime Task Force, which consists of HMRC, the NCA and the PSNI, has prevented revenue loss of £3.4 million. The 110 young people engaging in bespoke programmes delivered by youth workers is perhaps one of the most significant ways forward. Again, when we think about how we will change the culture, this is it. We need to recognise that it will not be done simply by fiat and instruction from us, but through putting roots into the soil and them growing through. I hope that we will see greater success there in the years to come.
The noble Lord, Lord Campbell, asked a very specific question. I have a very specific answer but it is quite long. I wonder whether he will permit me to put it in a letter, which I will, of course, happily share with other noble Lords with an interest in this matter.
The noble Lord, Lord Reid, made us think, once again, of tomorrow’s anniversary: of the men of Ulster who marched off to war and of the men and women who stayed behind to work in the industries that were so vital to the war effort. It is important that we remember their sacrifices; it is also important to recognise that we have an obligation to ensure that, in Northern Ireland, justice is always blind and can be served. I hope that the two-year extension will not be repeated. I would like that outcome, but we must be cautious and careful as we go forward.
The noble Lord, Lord Murphy, brings us back to perhaps the bigger issue of the moment: what is happening with the Northern Ireland talks. He will be aware that my right honourable friend in the other place is making some remarks later this evening about the progress to date in those talks. I will use the word “positive”. There have been positive steps in this direction, and that is to be welcomed. It is too early to string up the bunting, but the parties there have recognised that this is a moment they need to embrace. It will be a challenge—as they, I hope, find a way through this challenging time—to pull together an approach that will ultimately bring to them the issues of justice and those that we here are discussing.
This is a difficult issue. I appreciate the support I have had from all sides of the House today. I would rather not be seeking an extension for two years—I can assure you that it gives me no pleasure to do so—but I am afraid that on this occasion we must.