Non-Jury Trial Arrangements for Northern Ireland

Right Honourable Theresa Villiers MP
Secretary of State for Northern Ireland
Northern Ireland Office
11 Millbank
London
SW1P 4PN

14 March 2013

RE: Non-Jury Trial Arrangements for Northern Ireland

Dear Mrs Villiers

We welcome your invitation of 14 February to make submissions relevant to your review of non-jury trial arrangements in Northern Ireland, though we regret the short time period allowed for submissions. Mindful of the July 2013 deadline, and the fact that it has been known for two years, provision could have been made for adequate public consultation within the accepted and recommended government timescales of 12 weeks.[1] At the same time we note that submissions were not sought from the general public, a decision which will limit the range of responses that could inform your decision, particularly for those directly affected by the provisions in Northern Ireland.

Rights Watch (UK) (previously British Irish Rights Watch) has the following mission, expertise and achievements:

Our Mission

Promoting human rights and holding governments to account, drawing upon the lessons learned from the conflict in Northern Ireland.

Our Expertise and Achievements

Since 1990 we have provided support and services to anyone whose human rights were violated as a result of conflict. Our interventions have reflected our range of expertise, from the right to a fair trial to the government’s positive obligation to protect life. We have a long record of working closely with NGOs and government authorities to share that expertise. And we have received wide recognition, as the first winner of the Parliamentary Assembly of the Council of Europe’s Human Rights Prize in 2009 alongside other honours.

The Constitutional Importance of Trial by Jury

We emphasise the constitutional importance of trial by jury in Great Britain and Northern Ireland as a well-founded aspect of the defendant’s right to a fair trial hearing. Trial by jury is also an important form of democratic participation in the criminal justice system of Great Britain and Northern Ireland, especially so when it can involve issues of national security. Trial by jury is a “symbol of normality” which generates public confidence in the criminal justice system because of its participatory nature. It should also be an essential element in the implementation of the peace agreement in Northern Ireland. The current system of certification of criminal matters was part of emergency powers which were introduced during the conflict in Northern Ireland to provide security by countering attacks on the state. Such emergency powers cannot be justified 15 years into the peace process, as Northern Ireland largely faces the same risks to internal security and attacks upon the state as the rest of the country.

Northern Ireland as a State of Exception

We emphasise that the government’s consideration of Northern Ireland as a continuing emergency situation[2] ‘perpetuates a lack of confidence in the Rule of Law’[3] and has the potential to hinder progress towards peace because Northern Ireland is perceived as being in a state of exception. It should be noted that the government has successfully devolved aspects of criminal justice and security to the Legislative Assembly in Northern Ireland in accordance with the peace accords established since 1998 including at Hillsborough Castle 2010.

In its review the Independent Monitoring Commission remarked in 2007 that they were ‘struck by the way in which, because of the nature of the conditions the DPP can apply, they are linked so closely to the past and so to a situation which we hope will continue to become less and less applicable’.[4] Despite the present circumstances of dissident violence (due in part to cross border policing complications) and urban civil disturbances we concur with the Independent Monitoring Commission that emergency power regimes specific to a local devolved authority in the UK are not necessary. In the case of Northern Ireland we reiterate that they only serve to emphasise regression from the peace process and an obstacle to delivering normalisation.

We note that this consultation requests evidence regarding ‘the nature of the threat generally in Northern Ireland and any evidence of attempts to intimidate or influence jurors’ in order to justify a two year renewal of non-jury trial arrangements. While this is may be a necessary question in itself, it does not encourage wider analysis of the criteria and conditions upon which a decision to certify a non-jury trial is premised currently under sections 1 to 9 of the Justice and Security (Northern Ireland) Act 2007.

The Position of the DPP for Northern Ireland

We are in agreement with the 2008 Concluding Observations of the UN Human Rights Committee that the decision of the DPP (NI) to certify particular cases for non-jury trial should be based on ‘objective and reasonable grounds…and that there is a right to challenge these grounds’.[5]

We make the following observations on the current criteria under the 2007 Act. Section 1 of the 2007 Act contains a subjective and hypothetical test. The DPP (NI) may certify a case for non-jury trial if he ‘suspects’ that any of the stated conditions are met and is ‘satisfied’ that in view of this there is a ‘risk’ that the administration of justice ‘might’ be impaired if the trial were to be conducted with a jury’ (emphasis added).[6] This subjectivity is especially problematic given the fact that the DPP (NI) is not required to give any reasons for such decisions.

We also note the divergence between the domestic system in Great Britain and in Northern Ireland with respect to jury trials. This was commented upon by the United Nations Human Rights Committee, stating in its Concluding Observations in 2008[7] (emphasis added): “The Committee remains concerned that, despite improvements in the security situation in Northern Ireland, some elements of criminal procedure continue to differ between Northern Ireland and the remainder of the State party’s territory. In particular, the Committee is concerned that, under the Justice and Security (Northern Ireland) Act 2007, persons whose cases are certified by the Director of Public Prosecutions for Northern Ireland are tried in the absence of a jury. It is also concerned that there is no right of appeal against the decision made by the Director of Public Prosecutions for Northern Ireland.”

The Committee then recommended: “The State party should carefully monitor, on an on-going basis, whether the exigencies of the situation in Northern Ireland continue to justify any such distinctions with a view to abolishing them. In particular, it should ensure that, for each case that is certified by the Director of Public Prosecutions for Northern Ireland as requiring a non-jury trial, objective and reasonable grounds are provided and that there is a right to challenge these grounds.”

Criminal Justice Act 2003 Section 44

Section 44 of the Criminal Justice Act 2003 came into force on 24 July 2007. The Act applies to both Great Britain and Northern Ireland. However, section 44 does not apply in relation to a trial to which the provisions of section 50 of the 2007 Act applies, which covers special provisions for Northern Ireland.[8] Under section 44 of the 2003 Act, the prosecution can apply for trial without jury through judicial order from the Crown Court. The judge must be satisfied that there is evidence of a real and present danger that jury tampering will occur and that, despite precautionary steps such as police protection, there remains a substantial likelihood of jury tampering making it necessary in the interests of justice for the trial to be conducted without a jury. This provision has the safeguards of judicial oversight, high objective thresholds and consideration of alternative precautionary steps. It is noteworthy that none of these safeguards are present in the regime under the 2007 Act in Northern Ireland. Northern Ireland can and should be brought into line with the rest of England and Wales with the introduction of these safeguards.

The Necessity for Two Regimes?

There are presently two regimes for trial without jury in the UK. One, under the 2007 Act applicable to Northern Ireland and the other under the 2003 Act applicable to England and Wales. The Northern Ireland regime was introduced to address serious and on-going threats to public safety, and to counter jury prejudice in that context. The England and Wales regime came into being as a response to jury intimidation and tampering by organised and serious criminals. The circumstances in Northern Ireland have now changed and the threats to the jury have become similar to those in England and Wales (and Scotland, where its own criminal justice provisions apply). The security situation has improved and there is no longer a reason to treat Northern Ireland differently in relation to its jury provisions. The relevant analysis should therefore be whether the Secretary of State considers there is a continued justification for a separate regime for trial by jury in Northern Ireland and the particular powers of the DPP for Northern Ireland or whether there should be regularisation between the systems and the repeal of the relevant provisions of the 2007 statutory provisions and their replacement with the relevant provisions of the 2003 statute with the repeal of section 50, therefore normalising the situation.

Witness and Jury Intimidation

There was little evidence to illustrate that the rationale for the non-jury trial certification provision in the 2007 Act justified the need for two legislative regimes with different requirements. In 2006 the Justice Oversight Commissioner reported that ‘special arrangements [to counter juror intimidation] can be made for witnesses or victims who have particular concerns, but it has rarely been necessary in practice to take special steps’.[9] Courts in both Great Britain and Northern Ireland have developed several methods to counter jury intimidation including criminalising intimidation and threats to jurors[10] and providing anonymity and province-wide juror selection methods.

The Independent Reviewer of Terrorism Legislation stated in 2006 that ‘[l]ife in Northern Ireland is now free for most citizens of the actuality of everyday terrorism violence, and entirely normal, despite paramilitary activity remaining a cause for real concern’.[11] Given that the provisions under the 2003 Act are sufficient in England and Wales, there is no justification for the additional regime under the 2007 Act in Northern Ireland. The extension of the 2003 Act provision to Northern Ireland would ensure that decisions to certify non-jury trial are objective and reasonable.

Conclusion

We therefore urge you to end the dual regimes, bringing Northern Ireland into line with England and Wales. This can be effectuated by replacing the provisions in the 2007 Act with the relevant provisions in the 2003 Act and repealing section 50 of the 2003 Act.