“it is necessary to extend the Non-Jury Trial system at this time…”

In March 2010 the then-Criminal Justice Minister Paul Goggins announced a “comprehensive review [], including a full public consultation” of the Justice and Security (Northern Ireland) Act 2007 provisions for non-jury trials “before it next falls to be renewed in July 2011” – those provisions had previously been extended in 2009.

Today the NI Secretary of State, Owen Paterson, announced that he is “laying before Parliament an Order to extend the Non-Jury trial provisions for a further period of two years”.  From the NI Secretary of State’s statement.

The Justice and Security (Northern Ireland) Act 2007, which provides for trial on indictment without a Jury is temporary and renewal [renewable?] and will expire at the end of the period of two years unless extended.

Whilst the use of Non-Jury trials has reduced significantly in recent years, it is necessary to renew the powers in order to protect jurors from any potential risk posed by paramilitary groups.

It is always the hope and intention to return to Jury trial in all cases in Northern Ireland. However, having considered the views of stakeholders and conducted a detailed analysis of the current threat, I believe it is necessary to extend the Non-Jury Trial system at this time for use in a very small number of cases to ensure justice is administered fairly.

Therefore I am laying before Parliament an Order to extend the Non-Jury trial provisions for a further period of two years.

I will of course keep the situation under review. Government remains committed to a return to Jury trial in all cases as soon as it is deemed appropriate.

, , , , , , , , , , ,

  • The reduction of non-jury trials is not exactly an improvement than the former systematic removal of jury trial. Under the current reduction any defendant is in all likelihood at greater risk of being unfair tried than previously simply because the stigma of psoing an alleged threat to a becomes all the more acute.

    It is also unfair to draw an adverse inference against any defendant that they pose a risk to a jury –especially before any trial actually begins –as was recently witnessed in England a number of defendants and their lawyers were not permitted to know the nature of the alleged risk or to challenge the Porsecution from making the allegation against them. The benefit in not having a jury in that particular trial was also said to have saved as much as £50 million pounds –but that did not influence the removal of the jury the public was told.

    This provision is in all likelihood only to enhance a weak prosecution where there might be no real risk to any jury.

  • Alias

    “This provision is in all likelihood only to enhance a weak prosecution where there might be no real risk to any jury.”

    The political risk is that a jury might not convict a person of an offence, due to the lack of sufficient evidence, that the state wants convicted of it.

    There is an attempt to present the repressive regime as transient and necessitated by exceptional circumstance in order to make it less objectionable to those who might otherwise be motivated to oppose it, but there is nothing transient about the miscarriages of justice that are free to occur under it. The sentence doesn’t expire when the legal system that delivers it expires.

    The reality is that NI’s judicial system is more repressive now that at any time in its history. That’s progress in reverse…

  • Brian Walker

    You’d have thought this decision would have been devolved, wouldn’t you? Too divisive no doubt. The verdict on the Diplock court is mixed in legal circles The most throrough examination was done by Doran and Jackson of Queen’s and summarised in this article.

    http://www.independent.co.uk/money/spend-save/diplock-courts-a-model-for-british-justice-1600830.html

    They found against the earlier lower standards of proof and the reliance on confession evidence up to the supergrass era, both of which were later amended. Pluses were the written verdicts and automatic right of appeal.. Others criticised the authors for too mechanistic an approach,

    http://www.h-net.org/reviews/showrev.php?id=959

    drawing on earlier studies by Hadden, Hillyard and the late Kevin Boyle

    Sean Doran is senior lecturer in law and John Jackson is professor of public law at Queen’s University, Belfast. Their book ‘Judge Without Jury: Diplock Trials in the Adversary System’ is published by Oxford University Press

  • The conventional wisdom is that there is more likely to be a miscarriage of justice if there is no jury trial.

    I dont go along with that. There have been times when a jury’s prejudice has been the reason for the miscarriage of justice. More convictions are likely in a Diplock court but that is due, in large part, to the fact that they are better able to evaluate the evidence than a jury.

    Lawyers are divided as to whether the jury system should be retained at all.

    My own view is that the advantage in keeping the system is not simply about whether the court is more or less likely to arrive at the correct system. It is very important that people feel that they have ownership of the criminal system. The jury trial nurtures that feeling of ownership. It also reinforces our confidence that justice is seen to be done. It is not perfect but it has stood the test of time (since Magna Carta).

    I’m sorry if I have stepped onto a wider subject. This is about the Diplock Courts. The peace process has enabled republicans to support the criminal justice system. There was a strong case for retaining those courts in the past.

    it is necessary to renew the powers in order to protect jurors from any potential risk posed by paramilitary groups

    Is this really about protecting jurors or is the real reason for reatining the Diplock Courts that Northern Irish jurors cant be trusted?

  • Seymour

    “There have been times when a jury’s prejudice has been the reason for the miscarriage of justice.”

    There are no cases of miscarriage of justice as result of any jury. Not in the history of common law. There are however cases that have been overturned because a Judge misdirected the jury or some other proceedural irregularity or new evidence came to light. So

    Either everyone is equal before the law or they are not. Either have system of jury trials or do away with juries. But singling out ‘unsavory’ defendants in a system of jury trial -that they are too sinister to be tried by jury creates a bias and unfair stigma for which no fair trial might be possible.

  • Seymour

    Forgot to say re: “Is this really about protecting jurors or is the real reason for reatining the Diplock Courts that Northern Irish jurors cant be trusted?”

    As Brian Walker above directs to studies on Diplock Trials and Jury Trial –They found that Juries in the early 70’s still returned resonable verdicts and no evidence existed of obvious bias –even though the Conflict was well under way.

  • The Word

    It would be better that the judges put their heads in their hands and said, “I just don’t know what to do anymore.” That would be closer to reality, a reality that actually expresses an understanding of the meaninglessness of their system of justice.

    Instead the ego convinces the judge that he is ordering society when he clearly can’t do that. Society will come down heavily on them one day, a day of reckoning that to many is long overdue.

  • Brian Walker

    ..and why is the Secretary of State still in charge of this important piece of NI justice rather than the newly devolved set-up? Because it’s classified as ” national security” and therefore a reserved matter. Just as well, as it might have exposed the limits of powersharing. Whatever they privately might think,I suppose the DUP would have supported the extension, while SF would have opposed it.Both are probably relieved not to decide.

    Myself I wonder if it’s the right decision. Are perverse verdicts still likely? I wonder what the judiciary think? Must see if they’re are mentioned in the consultation. Unlikely

  • Pete Baker

    Brian

    Not that non-jury trials stops it, but in some cases witnesses are still being intimidated persuaded to withdraw their evidence.

  • Pete Baker

    To add.

    And I don’t recall those provisions being specific to, or even limited to, trials where issues of “national security” were involved.

  • Alf

    “Brian

    Not that non-jury trials stops it, but in some cases witnesses are still being intimidated persuaded to withdraw their evidence.”

    A relatively benign example of why Diplock courts are essential.

  • Pete Baker

    To clarify my earlier response to Brian.

    It’s not at all clear that this remained a reserved matter when devolution of policing and justice took place.

  • Pete Baker

    On further investigation, trials on indictment without a jury [sections 1-8 of the 2007 Act] were specificly left reserved by the NI Assembly in the devolution of policing and justice.

    E. The operation of sections 1 to 8 of, and Schedule 1 to, the Justice and Security (Northern Ireland) Act 2007 and the operation of Part 1 of the Criminal Procedure and Investigations Act 1996 where a certificate under section 1 of the 2007 Act has been issued.

  • Alf

    “A relatively benign example of why Diplock courts are essential.”

    Diplock Trials dispensed with need for a jury –fortunately it did not go so far as dispense with need for witnesses (albeit it has used ‘mystery’ witnesses in the past) Also, removing Juries has absolutely no relation to any intimidation or persuasion of witnesses that might occure.

  • Alf

    Christy,

    It does have relation to the ability of terrorists to intimidate jurors. Something which they did with gusto pre Diplock.

  • Alf

    Your full post above was a response to witness intimidation ““Brian

    Not that non-jury trials stops it, but in some cases witnesses are still being intimidated persuaded to withdraw their evidence.”

    A relatively benign example of why Diplock courts are essential.”

    Diplock Courts had no influence over that.

    Re: It does have relation to the ability of terrorists to intimidate jurors. Something which they did with gusto pre Diplock.

    Pre-Diplock there was never a single reported case of jury intimidation ever having happened. That fact was later confirmed in the Gardner Report.

  • Pigeon Toes

    We have Diplock Courts anyway known as tribunals.

  • Alias

    Intimidation of jurors is an argument for protection of jurors, not an argument for dispensing with them.

    Judges are also susceptible to intimidation, so why not apply the same flawed logic and dispense with them to?

  • joeCanuck

    Alias,

    Judges did receive protection. Perhaps some do. It is easier to protect the limited numbers of them than thousands of randomly selected jurors.
    I have an open mind on the need for diplock trials;i don’t have enough information but I do take note of Christ’s comment about no reported cases of juror intimidation. That leans me towards eliminating Diplock trials.

  • Kevin Barry

    Joe,

    As always, I think you err on the side of reason. There is trouble with intimidation of witnesses and miscarriages of justice where a jury is not present, not where it is.

    Essentially, I think Christy makes a lot of valid points regarding the prejudices the accused would face (perceived guilt being inferred for the danger they may provoke) if no jury were present.

  • Christy,

    There are no cases of miscarriage of justice as result of any jury. Not in the history of common law.

    I do not agree with that statement at all. There are a number of celebrated murder cases, involving jury trials, where the jury has wrongly convicted a defendant. You might say, it was not the jury’s fault because the Judge alone would have arrived at the same decision. In some of those cases, that may be true but if it is not, such cases are extremely difficult to detect. Trial judges are not available for a press interview after a trial and a judge which properly directs a jury will avoid giving away how he is thinking in his summing up speech.

  • Seymour

    By virtue of being a jury of ones peers –they cannot be wrong –however like I said before there is not a single case where the jury got it wrong –that is not to say that a jury could not be biased or even make mistakes –in all cases of miscarriage of justice where a jury sat –the fault of the wrongful conviction has in all cases been due to the judge misdirecting, new evidence came to light or some other serious proceedural error –never the fault of the jury. In event that any jury were showing signs of undue bias or hostility toward a defendant the judge can take the case from them.

    The point is if Judges can misdirect witha jury then they can misguide themselves when sitting alone.

    Nobles & Schiff include a quote from the transcript of evidence taken from the Birmingham Six appea; the trial judge’s remarks are in regard to the significance of Dr Skuse’s evidence that he detected positive results under the Griess Test which falsely indicated that the six accused had handled explosives and not the plastic coating on a deck of playing cards as was the case;
    Members of the jury, the resolution of scientific argument of this sort is difficult, particularly for a jury of lay people, and I say once again that I am not going to try and go into the technicalities in detail because I would be in grave danger of misleading you. The only way that you can resolve these differences is by your impression of the witnesses. (Understanding Miscarriages of Justice, Oxford University Press, 2002, pages 192 -193.)

    Clearly the Trial Judge was telling the judge to worry less on the expert evidence he gave but on the basis of the witnesses demeanour and experience, whom to believe.

    Also the judge repeatedly informed the jury that, “I would be in grave danger of misleading you”. The trial judge is clearly unsure of his own understanding of the evidence such that he would not articulate it to the jury and this demonstrates the danger should judges, sitting alone, replace the jury as the fact-finder.

  • Ops “Clearly the Trial Judge was telling the judge to worry less …”

    Should read jury

  • Alf

    “Pre-Diplock there was never a single reported case of jury intimidation ever having happened. That fact was later confirmed in the Gardner Report.”

    Christy,

    That doesn’t mean it didn’t happen. Nor does it take away from the fact that some members of the jury may either be overly sympathetic to a terrorist on trial, or may be full of hatred for an accused innocent who comes from another community than their own.

    Alias,

    Protecting the jury would involve steps which no jury member would be willing to take.

  • Christy,

    I still think you are wrong. I strongly suspect that the Jill Dando murder case was one where a Judge would probably not have convicted. In the event, the Jury convicted on a majority verdict. I believe a judge alone in that case would have been more likely to acquit.

    Now you can blame the evidence, if you like, but it is, after all, the jury’s job to evaluate what is in front of them. I remember following the case in detail on a daily basis and being rather shocked by the verdict.