Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009

I thank the noble Lords, Lord Glentoran and Lord Bew, and the noble Baroness, Lady Harris. I note the concerns of the noble Lord, Lord Glentoran, about which he has been very frank, and I will take them back. He quoted the recent dreadful attack on the Romanian people, and I agree with him that hate crimes and racism have no place in Northern Ireland; those who carried out the attack have no real place. Racist attacks are unacceptable and will not be tolerated. As the noble Lord knows, the police have arrested six people in relation to those attacks. Three have been charged, of whom two were released on court bail and a third was remanded in custody. The other three arrested have been released on police bail pending further inquiries. I again take note of the observation made by the noble Lords, Lord Glentoran and Lord Bew, that the Irish Government are expanding the Special Criminal Court in Dublin to deal with organised crime cases. As noble Lords will know, the situation here is that under the 2007 Act we are enabled to take such cases to be tried without a jury where they are connected to paramilitaries or sectarianism and there might be a risk to the administration of justice. It all seems to be going in the wrong direction as far as our hopes are concerned. I hope that noble Lords will bear with me because I believe that the noble Baroness, Lady Harris, deserves a fairly detailed response to several of her questions. I know that she was not satisfied, and certainly her colleagues in another place were not satisfied, with the length of replies to this order. She asked about the rationale for extension. Paramilitary-based and community-based pressures on a jury mean that there is still a risk of perverse verdicts in certain cases. These arrangements are designed to ensure that a fair trial can be provided in all cases where there are ongoing risks to the administration of justice. Where there are ongoing risks, the administration of justice might be impaired, and we must act. The non-jury trial system targets the particular risks posed by cases involving paramilitaries and serious sectarianism. Sadly, these types of cases continue to arise in Northern Ireland, as shown by the recent murders of Kevin McDaid, Constable Stephen Caroll and Sappers Quincy and Azimkar. We are all aware that the level of threat in Northern Ireland from dissident republicans is now higher than when the Parliament considered these arrangements in detail in 2007 and concluded that they were necessary and appropriate. If we are looking at the rationale for extension, risks to jurors remain significant. Even with the changes that have been made to the jury system and the ability to hold non-jury trials in certain cases, I am aware of four reported cases of attempted jury intimidation. In one case a juror had to be discharged and in another a whole jury was discharged. Noble Lords referred to witness intimidation; 159 such cases were recorded by the PSNI in 2008. We know that intimidation is significantly underreported, so the real figure is likely to be much higher. Intimidation is completely unacceptable. It remains a significant issue that the Government are concerned that removing the ability to try certain cases without a jury would expose jurors to a risk of intimidation that is completely unacceptable. If paramilitaries are prepared to use these tactics against witnesses in order to frustrate police investigations and prosecutions, it seems to me that they would be willing to intimidate jurors as well as witnesses. Sadly, Northern Ireland society remains vulnerable to intimidation. People live in small, close-knit communities, as noble Lords have said, where it is much easier to identify those on jury service. The number of non-jury trials, as I have said, is diminishing. There were 125 Diplock cases in the last two years of that system, which represents 6 per cent of Crown Court cases. In the most recent two years, the DPP has issued 41 certificates for non-jury trial, and 1 per cent of Crown Court cases have been heard been heard without a jury. This is a welcome change and I hope that the numbers continue to fall, but the fact that there have been 41 cases in two years where the DPP has been satisfied that there was a risk of the administration of justice being impaired if they were to be tried before a jury indicates that there remains a significant problem that the Government must address. The noble Baroness, Lady Harris, asked what right of appeal exists to the DPP’s decisions. She will know that decisions are judicially reviewed where there has been bad faith, or in other exceptional circumstances. However, a defendant will suffer no detriment from being tried without a jury—in some cases, it may even be fairer—and we see no need for other avenues of appeal. Perhaps I could write to the noble Baroness to expand on that. The noble Baroness also asked whether we were considering amending the legislation. The 2007 Act does not permit amendment, only extension, but the Government have committed to examining the system in detail, with a public consultation, before the next extension in 2011. This issue can be considered then. The noble Baroness asked about judicial review of juror protection measures. Juror protection measures, including juror anonymity and the abolition of peremptory challenge, were challenged in the McParland judicial review. The court rejected the challenge and ruled that the jury provisions in the 2007 Act did not violate Article 6 of the ECHR. The jury made clear in McParland that the new arrangements pursue a clear and proper public objective and represent a fair balance between the general interests of the community and the personal rights of the individual. The noble Baroness asked whether the measures could be extended for one year. Our response is that it is not possible under the Act. We have subsequently spoken to the noble Lord, Lord Carlile, who confirmed to us that he supports the extension for two years. The noble Baroness said that returning to jury trial would be a mark of a return to normality, with which we of course agree—I said in my opening remarks that we would want to return to it as soon as possible. We are on a journey towards a more normal Northern Ireland, although many aspects of the past continue. We all hope that these measures can be ended as soon as circumstances allow. The noble Lord, Lord Bew, asked why we thought that circumstances would have changed in two years and whether two years would be enough. We do not know at this stage—it is a question of whether the glass is half empty or half full. We hope that the situation is more optimistic in two years’ time. We shall need to consider the situation carefully as part of a thorough review, which will include the views of the public. By 2011 there will be a greater body of evidence on which to make the decision. We talked about the light-touch review in January or February of this year, but the thorough review, in which we consult the public and stakeholders, will give us a clearer picture of the risks and the opportunities involved. Motion agreed.