Justice and Security (Northern Ireland) Bill

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. 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.