“It creates a new system of non-jury trial in Northern Ireland”

The second of the two NIO led Bills announced in the Queen’s speech was unveiled yesterday by the Secretary of State for Wales etc, Peter Hain – the Justice and Security (Northern Ireland) Bill[pdf file] and online version – and presented in the Commons. Worth noting that while the Diplock [non-jury] court system is to be replaced in July 2007, non-jury trials are not being abolished – “some special arrangements remain necessary for a small number of cases in which paramilitary and community-based pressures continue to be a factor.”From the NIO statement –

Peter Hain said: “This Bill paves the way for a society in Northern Ireland in which both jury trial and community policing without routine military support are the norm: this is the Northern Ireland of the future.

“Northern Ireland is changing for the better every day. The IRA has ended its armed campaign and is committed to following a political path. This summer’s peaceful parading season was momentous – it was the first time in nearly 40 years that the military were not deployed on the streets of Belfast.

“Security installations have been dismantled, troop numbers are falling and police patrolling in Northern Ireland has changed dramatically.

“These are all huge steps in Northern Ireland’s ongoing peace process and I believe the time is now right for the Government to see through its commitment to security normalisation.

“However, the safety and security of the citizens of Northern Ireland remains my top priority and although we are well on the way to reaching security normalisation, some measures are still required to safeguard the public.

“This Bill provides those measures. It creates a new system of non-jury trial in Northern Ireland, replacing the Diplock court system. Government has always been clear that we want to return to a jury trial for all cases as soon as possible. However, some special arrangements remain necessary for a small number of cases in which paramilitary and community-based pressures continue to be a factor.[added emphasis]

“The Bill also provides the police and army with the minimum powers necessary to operate effectively in the Northern Ireland of the 21st century.

“Although the army presence in Northern Ireland continues to decline, it remains necessary for the military to have some statutory powers in order to support the police, should this prove necessary, in various public order incidents, or dealing with explosives.

“Equally important in normalising the security situation in Northern Ireland is the need for the private security industry to be appropriately regulated. This Bill provides for the Security Industry Authority, the regulatory body in England and Wales, to also regulate the industry in Northern Ireland. This will be a positive step for Northern Ireland’s private sector, enabling private security companies to compete on a national basis, while at the same time preventing criminals from entering and exploiting the industry.

“I am also using this Bill to change the remit of the Northern Ireland Human Rights Commission, in line with the commitment made at St Andrews.”

And from the Bill’s explanatory notes

4. Under the Belfast (‘Good Friday’) Agreement, the Government made a commitment to make as early a return as possible to normal security arrangements in Northern Ireland consistent with the level of threat. In April 2003 the Government set out proposals to normalise the security profile across Northern Ireland. In response to the IRA statement of 28th July 2005, on 1st August 2005, the Secretary of State Peter Hain announced a programme of security normalisation, subject to an enabling environment. A key part of the normalisation timetable is the repeal of counter-terrorist legislation particular to Northern Ireland (that is, Part VII of the Terrorism Act 2000) by July 2007.

5. Part VII of the Terrorism Act 2000 (‘the 2000 Act’) underpins the long-standing Diplock system. This is a system whereby certain offences (known as ‘scheduled offences’) are tried without a jury unless the Attorney General exercises his discretion and directs that a case is to be tried before a jury (known as ‘descheduling’). In exercising his discretion, the Attorney General applies a non-statutory test: that he will not deschedule a case unless he is satisfied that it is not connected with the emergency. Under security normalisation the Diplock system will be repealed in July 2007.

6. However, although Northern Ireland is in a process of security normalisation, some arrangements are necessary to ensure that jurors in Northern Ireland are protected from intimidation. This Bill therefore makes provision to reform the jury system in Northern Ireland. Clauses 9 to 12 and Schedule 2 amend the Juries (Northern Ireland) Order 1996 to give effect to a number of reforms which it is considered will reduce the risk of juror intimidation and partisan juries by achieving greater anonymity for jurors and by promoting greater randomness in jury selection.

7. Despite the proposed jury reforms, it is not yet possible for Northern Ireland to operate entirely without the fall-back of some special arrangements for a small number of exceptional cases. This Bill therefore provides for a new system of non-jury trial. The new system provides the Director of Public Prosecutions for Northern Ireland with a discretion to issue a certificate stating that a trial is to take place without a jury if certain conditions which are set out in the Bill are met. This means that the presumption will be for jury trial in all cases, while the small number of exceptional cases requiring non-jury trial will still be able to be treated appropriately. Such a system is necessary to ensure that trials continue to be fair in Northern Ireland and that the quality of justice remains high.[added emphasis]

The conditions under which a non-jury trial may take place are described in the Bill

1 Issue of certificate

(1) This section applies in relation to a person charged with one or more indictable offences (“the defendant”).

(2) The Director of Public Prosecutions for Northern Ireland may issue a certificate that any trial on indictment of the defendant (and of any person committed for trial with the defendant) is to be conducted without a jury if—
(a) he suspects that any of the following conditions is met, and
(b) he 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.

(3) Condition 1 is that the defendant—
(a) is, or has at any time been, a member of a proscribed organisation (see subsection (9)), or
(b) is an associate (see subsection (10)) of a person who is, or has at any time been, a member of a proscribed organisation.

(4) Condition 2 is that—
(a) the offence or any of the offences was committed on behalf of a proscribed organisation, or
(b) a proscribed organisation was otherwise involved with, or assisted in, the carrying out of the offence or any of the offences.

(5) Condition 3 is that an attempt has been made to prejudice the investigation or prosecution of the offence or any of the offences and—
(a) the attempt was made on behalf of a proscribed organisation, or
(b) a proscribed organisation was otherwise involved with, or assisted in, the attempt.

(6) Condition 4 is that the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons.

(7) In subsection (6) “religious or political hostility” means hostility based to any extent on—
(a) religious belief or political opinion,
(b) supposed religious belief or political opinion, or
(c) the absence or supposed absence of any, or any particular, religious belief or political opinion.

(8) In subsection (6) the references to persons and groups of persons need not include a reference to the defendant or to any victim of the offence or offences.

(9) In this section “proscribed organisation”, in relation to a person who is or has been a member of an organisation, means an organisation—
(a) which is proscribed or which was at any time during the person’s membership of the organisation proscribed, and
(b) whose activities are (or were at the time of his membership) connected with the affairs of Northern Ireland; and for the purpose of paragraph (a) “proscribed” has the meaning given by section 11(4) of the Terrorism Act 2000 (c. 11).

(10) For the purposes of this section a person (A) is the associate of another person (B) if—
(a) A is the spouse or a former spouse of B,
(b) A is the civil partner or a former civil partner of B,
(c) A and B (whether of different sexes or the same sex) live as partners, or have lived as partners, in an enduring family relationship,
(d) A is a friend of B, or
(e) A is a relative of B.

And the explanatory notes on those conditions

COMMENTARY ON CLAUSES

Clause 1: Issue of certificate

16. This clause enables the Director of Public Prosecutions for Northern Ireland (‘DPP(NI)’) to issue a certificate in relation to any trial on indictment of a defendant (and anyone tried with that defendant). The effect of the certificate is that the trial is conducted in the Crown Court without a jury. The test that the DPP(NI) must apply in deciding whether or not to issue a certificate is set out in subsection (2). He has the discretion to certify a case if it falls within one of the conditions set out in the clause and the DPP(NI) assesses that there is a risk that trial by jury might impair the administration of justice (for example, that there might not be a fair trial).

17. Condition 1 is set out in subsection (3). It covers circumstances where the defendant has a link to a proscribed organisation that is connected with the affairs of Northern Ireland. The defendant could be a present or former member of a proscribed organisation or be an associate of a member or former member. Subsection (9) defines ‘proscribed organisation’ and subsection (10) defines who would be considered to be an associate of a member or former member of such an organisation.

18. Condition 2 is set out in subsection (4). This will enable trial without a jury where an offence is committed on behalf of a proscribed organisation that is connected with the affairs of Northern Ireland, or such an organisation is otherwise involved with, or assists in, the carrying out of the offence.

19. Condition 3 is set out in subsection (5). This will enable trial without a jury where a proscribed organisation that is connected with the affairs of Northern Ireland interferes, or assists with interference, with the investigation or prosecution of an offence. This could include, for example, interference with a crime scene or the intimidation of witnesses not to give or to withdraw their evidence.

20. Condition 4 is set out in subsection (6). This will enable trial without a jury where the offence occurred as a result of, or in connection with, sectarianism (i.e. in connection with religious belief or political opinion). Subsection (7) clarifies that ‘religious belief and political opinion’ includes their absence and any assumptions made about religious beliefs or political opinions. Subsection (8) provides that references to persons and groups of persons need not include a reference to the defendant or victim.

21. A case that falls within one of the conditions will not automatically be tried without a jury – non-jury trial will only happen if the DPP(NI) issues a certificate because he is satisfied that there is a risk that the administration of justice might be impaired.[added emphasis]