On 20th March the Order in Council extending the operations of the UK National Crime Agency to Northern Ireland came into power – despite the challenge that presents to the Speaker of the NI Assembly – bringing us into line with the rest of the UK in the process.
On the same date the NI Secretary of State of State, Theresa Villiers, made a written statement to the House of Commons on the report by Lord Carlile, the independent reviewer of national security arrangements in Northern Ireland, covering the period from 1 December 2013 to 31 December 2014. Those arrangements are still a reserved matter, btw.
From the summary of the report [added emphasis throughout]
Throughout the year I have been briefed extensively on the state of threat in Northern Ireland. The context in which national security activities are performed in Northern Ireland remains challenging. There have been successes in 2014 and a number of trials of significant alleged terrorists are pending. This is a very dangerous, unpredictable terrorist threat, though one which is much smaller than in the days of PIRA terrorist activity. The authorities are achieving a good level of attrition. Most of the public lead lives unaffected by terrorism.
I regard 2014 as a year of continuing success in thwarting and detecting terrorism. Pending trials are likely to demonstrate this, as have trials during the year. However, there is no sign of reduced ambition in the minds of terrorists, and limited evidence of a lack of capacity on their part. Attrition and continued effort against the dissident republican groups remain a paramount requirement. The number of ongoing investigations remains high. The work is painstaking and, for some involved, potentially dangerous. Peace is in no small way the result of these efforts by PSNI and MI5 personnel.
In preparing this report I have considered the current threat level, and what I have learned of events of a terrorist nature during the year. There have been several serious incidents during 2014, as well as a spate of crude letter bombs. Once again the parading season proved a challenge. Although there were some injuries as a result of sectarian clashes, it was more peaceful than in 2013, with fewer injuries to police and public.
During 2014, I have met a range of stakeholders. I have engaged with PSNI and MI5 and examined the relationship between them and others. I have held meetings with HM Inspectorate of Constabulary concerning activities relevant to this Report, and with the Police Ombudsman for Northern Ireland and the Northern Ireland Executive’s Minister of Justice, David Ford MLA. The liaison between Mr Ford and those responsible for national security issues is satisfactory. I have also engaged with the Independent Human Rights Advisor to the Northern Ireland Policing Board (NIPB) and the Board itself. The Policing Board can feel reassured that the Human Rights Advisor is well able to discharge her duties in respect of national security. The Board has been shown the material reports in relation to Northern Ireland of the Office of the Surveillance Commissioners, subject to minor redactions. Compliance is at ‘best in class’ level. I am grateful to NIO Ministers for their close interest in national security matters discussed; meetings with Ministers have occurred. Ministers are always very well informed on all material security issues.
I am satisfied that the periodic briefings provided to me have been full and not selective, and that I have a good understanding of relevant matters. I note that when matters of moment occur, active steps are taken to ensure that I am briefed. When I request access, it is given.
I have asked questions again this year about the relationship between MI5 and PSNI staff working alongside each other in security operations in Northern Ireland. Comments made to me in 2014 about the relationship between the two services were strongly mutually supportive. That they work together well and in the national interest is beyond question. The effectiveness of what they do is demonstrated by the successful disruptions that have taken place over the year.
This year once again I have reviewed in some detail the arrangements for Covert Human Intelligence Sources (CHIS). Overall, the use of CHIS has been effective. All activity and decision making concerning CHIS are documented carefully and European Convention on Human Rights issues are fully considered. There is a rigorous legal and policy framework for dealing with CHIS. The Regulation of Investigatory Powers Act (RIPA) 2000, and associated orders and codes, provide the legal framework for authorising and managing CHIS within the UK in a way that is compatible with the European Convention on Human Rights, and particularly the right to privacy. It requires that use of a CHIS is subject to prior senior officer authorisation, limits the purposes for which the CHIS may be used, ensures detailed records are maintained, establishes independent oversight and inspection, and provides an independent appeals mechanism to investigate complaints.
I have also considered a number of issues relating to terrorism prosecutions including arrangements for the continuation of the temporary and renewable non-jury trial arrangements provided under the Justice and Security (Northern Ireland) Act 2007. The situation continues to improve. The number of cases requiring non-jury trial diminishes. The Director of Public Prosecutions for Northern Ireland uses considerable and proper care in the identification and selection of such cases. It is fully recognised that the norm is jury trial but the residual serious and lethal threat of terrorism justifies the continuation of the non-jury system.
There is no evidence of any disadvantage in terms of outcome to Defendants in the current system of non-jury trials. They are as likely to be acquitted as in jury trials, and have the advantage of reasoned judgments, and less inhibited access to appeals.
Part of the criminal justice setting in need of appraisal is sentencing in terrorism related cases. Generally such sentences are considerably shorter than comparable sentences in England and Wales, with notably different tariffs in murder cases.
I remain as concerned as before about the disclosure regime operated in scheduled cases in Northern Ireland. In England and Wales issues of Public Interest Immunity and other disclosure issues are dealt with by the trial judge, who of course is not the tribunal of fact save in the rarest of trial exceptions, or in ‘Newton’ hearings where there has been a plea of guilty on a disputed factual basis. In Northern Ireland in non-jury trials there is a separate disclosure judge. This still leads not only to delays in trials, but to a disconnect between the day by day reality of the trial and the insulated disclosure process.
I remain concerned that the disclosure issue outlined above is a real difficulty in dealing with non-jury cases. Given the high regard held generally for the quality of the reasoned judgments given in such cases, and also for the fairness of the trials, I find it difficult to accept that there would be any diminution in actual fairness if the trial judge dealt with disclosure too.
I have enquired about the use of intercept evidence. I remain satisfied that there is solid scrutiny and review of interception, in an environment in which communications technology is developing quickly.
As before, I have asked about loyalist paramilitaries. These are people and groups whose real interest is in making money from crime. The authorities are well sighted against these organisations. I have enquired about violent Islamism in Northern Ireland. For the present this is not a significant threat.
Continued vigilance and the maintenance of counter-terrorism resourcing are essential. However, once again I have drawn comfort from the successful joint operations between MI5 and the PSNI. Normality is a genuine and mostly realisable ambition, rather than merely an aspiration.