“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]

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  • Ian

    There’s no mention of the promised removal of the legal bar on Irish nationals applying for senior civil service posts.

    Could it be that there is there resistance to that measure from those who draft such legislation and on whom the measure might impact most?

    i.e. senior civil servants in the NIO, who might worry about outsiders coming in with fresh ideas who might start changing the way things are done or worse, sussing out the ‘Yes Minister’ style shenanigans that they’ve been getting up to over the years.

  • Pete Baker

    Ian

    Did you read the title of the Bill?

    “the Justice and Security (Northern Ireland) Bill”?

  • Ian

    Pete,

    (1) Why is the remit of the bill drawn so narrowly as to exclude the promised lifting of the ban on Irish nationals applying for senior civil service posts? Why have a separate bill for that measure, if it emerges?

    (2) The term ‘Justice’ covers the issue in part, as a subset of the posts covered by the ban on non-British nationals are in the criminal justice/courts services e.g. Director of Public Prosecutions (wouldn’t want anyone from outside to get their hands on that particular post – far too much to hide!)

    (3) The commitment was made as part of the Comprehensive Agreement and has been shelved ever since – can’t blame the collapse of the CA for the failure to live up to the commitment as that didn’t stop them trying to legislate for OTRs (which also came out of the CA).

  • Ian

    (4) In light of recent revelations arising out of the IVC judicial review and Justice Girvan’s ruling, it is not unreasonable to comment on the motives and machinations of the NI civil service. Do you not concede the argument that the proposed measure to open up the pool of candidates for the senior civil service – a measure that has to be implemented by the current incumbents – has an element of “turkeys reluctantly voting for Christmas” about it, and that there might therefore be some resistance to the measure from therein?

  • willowfield

    “Irish nationals” (i.e. ROI citizens) are not barred from senior civil service provisions. They may be appointed providing they are also UK citizens.

    Why should the UK civil service bend its rules when other civil services do not? It is an established European principle that civil services are staffed at that level only by nationals of the state which they are serving.

  • Pete Baker

    Ian

    It’s a specific Bill.. and it is the second NIO led Bill from the Queen’s speech.

    Not only that, but it contains sufficient material for a discussion in its own right without introducing topics that it doesn’t even cover.

  • miss fitz

    Willowfield

    Sorry, I dont find your post logical. ROI citizens are barred from senior Civil Service posts. End of.

    If you are a dual citizen of the UK and anywhere else in the world, you are eligible but the restriction stands regardless. There is no eligibility or duality of citizenship between the ROI and the UK

  • Ian

    Pete,

    Okay, but if a separate bill to cover the issue I mentioned hasn’t also been published come the new year, then I hope you’ll have started a new thread to question such a breach of the StAA timetable by the British government.

    Now I’ll make one more point about the scope of the bill – the phrase “Justice and Security” arguably doesn’t cover extension of the NIHRC’s powers, yet the bill does cover that particular commitment – and then I’ll move onto the topic as you’ve defined it:

    The SDLP have issued a press release arguing that (and will probably moved amendments to the effect that) in the few cases are still to be held without a jury, then three judges should sit rather than a single judge – as is the case with the Supreme Court down south. Surely a sensible measure if relatively few non-jury cases are going to come forward from now on?

  • joeCanuck

    The bill seems fair enough to me.
    You’re really on the ball Pete.

  • Reader

    miss fitz: Sorry, I dont find your post logical. ROI citizens are barred from senior Civil Service posts. End of.
    As are French and German citizens too, no doubt.
    Are UK citizens barred from senior Civil Service posts in the RoI? Just think of the pool of talent available from a population of 60 million, just like in NI.

  • miss fitz

    I dont live in the ROI reader, so I really dont know. I suspect though that senior positiions are restricted to those who have Irish citizenship. I was precisely making the point that French, German, Portugese and Icelandic citizens are all in the same boat vis a vis the UK CS. If you arent a citizen you dont qualify.

  • Pete Baker

    As I suggested earlier, there’s enough in the actual Bill to form the basis of a discussion – not least the retention of non-jury trials – without wandering into territory it doesn’t cover.

    Ta joe ;o)

  • George

    Sounds pretty similar to the Special Criminal Court in Ireland, which was set up in 1972 and also hears “scheduled offences” without a jury.

    Interestingly, rather than winding it up after the peace process, legislators want to move more and more trials involving criminal gangs etc to the SCC.

    Once you get a taste for non-jury trials, it’s very hard to go back.

  • Pete Baker

    George

    While you did stick to the topic, you didn’t add your opinion on whether you think the conditions [and the shift in policy for seeking a non-jury trial] are justified.

  • just visiting

    Why would three judges be any better than one?

    Successful appeals against Diplock Court convictions are rather fewer than against ‘normal’ trials, suggesting that one judge is capable of taking a balanced view. Tieing up three judges for lengthy cases – such as Sean Hoey re Omagh bomb – for no obvious benefit is not smart, unless you are a barrister wanting to become a judge.

    Or unless you are going to insist that at least one of the judges shares the same community background as the accused. But the SDLP wouldn’t be sectarian like that, would they?

  • George

    Pete,

    I’ll quote the Irish Constitution on this issue:

    “38.3.1°Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

    2° The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.”

    Lots of elbow room there as you can see. There is always a case for having non-jury trials and Northern Ireland is no different.

    If I was looking to overthrow the state, I would hate non-jury trials, if I was looking to defend the state from people looking to overthrow it, I would consider the option of a non-jury trial an essential part of my armoury.

    In an ideal world, we should always have jury trials. This isn’t an ideal world.

    I suppose one question is do you trust British (or in my case) Irish justice enough to allow them to have non-jury trials?

    The other is under what circumstances non-jury trials should be allowed. It seems to me that this bill could see Northern Ireland ending up in the exact same position as the Irish Republic, which can now use the SCC in its fight against organised crime.

    It remains to be seen if they go after fuel smuggling as a paramilitary, proscribed organisation, racket rather than a criminal one.

    I have serious concerns about broadening the use of non-jury trials to criminal gangs. I think they should only be used when the very security of the state is under threat from a political foe. Otherwise, it erodes the important principle of being judged by your peers.

    Anyway, it isn’t always intimidation that gets the gangsters off, it’s sometimes the simple Irish attitude of saying nothing.

    This was clear in the Keane case in Limerick. In an earlier case, Keane testified under oath about a knife attack on him in Limerick and confirmed a garda statement that Kieran Ryan stabbed him. But when asked if he could identify the man in the dock, Ryan said: “No.”

    Later, Keane was freed at the Central Criminal Court after six witnesses denied making statements implicating him in the stabbing to death of Eric Leamy. Detectives admitted that none of the witnesses was intimidated.

  • Pete Baker

    Sheesh.. George..

    A simple yes or no would have sufficed.

  • George

    Pete,
    I don’t think the question of non-jury trials can be answered with a simple yes or no. Look how many words you used to explain the system in your post.

    Looking at just one of the conditions:

    “(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.”

    [let’s keep to the ball – edited moderator]

    It means non-jury trials can be used for many things, especially to fight gang crime as it seems many drug gang members were former or active paramilitaries.

    I don’t agree with using non-jury trials to fight crime. Fighting laarge insurrections is another argument.

    Do you think this power will be used to fight criminal gangs? Do you think it should?

    If so, in my view the fabric of Northern Irish justice will be seriously threatened. Justice south of the border is under a similar threat, by the way.

    I suppose that’s a no.

  • Pete Baker

    “Do you think this power will be used to fight criminal gangs? Do you think it should?”

    I think that the use of non-jury trials is perfectly justified in certain circumstances.

    The conditions outlined in the Bill seem reasonable.

    It’s also worth noting paragraph 9 of the Bill

    (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).

    “or which was at any time during the person’s membership”

    That allows for the use of non-jury trials for former members of any historically proscribed organisations – which SF don’t seem to have noticed

    The crucial change it seems to me, is in the move from having to assess whether a jury trial could go ahead, to instead assessing whether the conditions mean a non-jury trial should be used.

    Personally I think the assessment should be based on whether the risk of jury intimidation occludes the possibility of fair administration of justice – regardless of whether the organisation involved is proscribed or not.

    The appeals process will undoubtedly be full and extensive – not to mention extensively used.

  • George

    Pete,
    I don’t know if it was you who edited my post but this is the first post I have ever had one edited in all my time on slugger.

    I was commenting on the fact that “the Director of Public Prosecutions for Northern Ireland may issue a certificate that any trial on indictment of the defendant” if one of a list of certain conditions are met, one of which is:

    the person “is an associate (see subsection (10)) of a person who is, or has at any time been, a member of a proscribed organisation.”

    I was using said and since removed person as a simple example of how extensive this bill could go.

    What I wrote wasn’t playing the ball, I was giving an example of how far this bill can stretch.

    I was repeating the words the head of the PSNI said, and, under this bill this would most likely be sufficient for the afore mentioned but now deleted person to face the possibility of a non-jury trial should he ever be charged with anything.

    Who better to cite as an example of how far-reaching, insidious and a threat to the administration of justice this could be than pointing out that it stretches as far as xxxxx xxxxxx?

    The ball was played. I thought of using Gerry Adams or George Seawright, which I assume would never have been edited, but now I know I used the right example.

    Maybe you now see how much a threat this bill could pose to the Northern Irish justice system even if the what I consider rash and unjustified editing means no one else will.

  • Pete Baker

    The point of the edit, george, was to keep the discussion on the general topic of the post rather than delve into specifics of individuals.

    No naming of individuals in connection with this Bill could be considered as playing the ball.

    That’s a ruling a court will have to make, and it’s why the conditions, the requirement for those conditions to be met, and the opportunity for challenges to the decision to any decision to hold a non-jury trial, are important issues in this discussion.

  • George

    Pete,
    I wasn’t delving into an individual, I was pointing out how far it could all go by giving a real life example of someone who has already been described as an associate of terrorists in the courts.

    If you can give me a better real life example of showing how easily these conditions can be met in the eyes of the law, I’m all ears.

    You see my naming of xxxxxx as focusing on the individual, perhaps it could be construed as such. But you could have asked for a clarification. I see it as putting a face on the bill, to make people more aware of its wide scope.

    It’s your thread so edit it as you see fit.

    But perhaps it would be better for me, and more constructive, to spend my time in future putting up another thread if I feel a specific issue like this needs to be teased out rather than going through this process.

  • andy

    sorry to drag this thread back to the issue of ROI citizens not being able to get in Senior Civil Service roles – but has anyone any proof of this.

    I have been involved in a number of such appointments and I can’t recall anyone saying anything along these lines generally. There are a small number of “reserved” posts where you have to be an UK citizen, but they’re very much in the minority.