Justice and Security (Northern Ireland) Bill

I have listened with great care to the noble Lord, Lord Trimble, who speaks with considerable experience, the noble and learned Lord, Lord Mayhew, whose experience is particularly pertinent, the noble Baroness, and the noble Lord opposite. I want to reflect on all that has been said but perhapsI may indicate the issues as I see them at the moment. I am sorry that the noble Lord, Lord Trimble, found the grouping of the amendments unhelpful; I am not sure that it will ultimately be unhelpful in identifying the issues, three of which have been identified in the important contributions made today. First, if there is to be a decision maker from outside the judiciary, should it be the DPP or the Attorney-General? Secondly, should the decision maker be one of those persons or the judiciary in some way? Thirdly, what is the relationship between the provisions in the 2003 Act—which apply to England and Wales as well; I do not think it applies to Scotland but I may be wrong about that—and the provisions proposed in the Bill? Those are all important questions. I am very appreciative of the way in which the noble Baroness spoke to the amendment and recognised the problems that arise particularly in Northern Ireland when a decision must be made on jury versus non-jury trial. I do not dissent at all from what the noble and learned Lord, Lord Mayhew, said about the desirability of jury trial or—as I think I made clear—what the noble Lord, Lord Glentoran, said about where we hope to get to eventually. At the moment the position in Northern Ireland is different from that in the rest of the United Kingdom. Northern Ireland has made huge progress but the fact remains that—as the quote I gave a few moments ago from the report of the noble Lord, Lord Carlile, demonstrates—potential problems of intimidation remain more enhanced in Northern Ireland than they do in the rest of the United Kingdom. One can see the difficulty, which the noble Baroness helpfully identified, when one looks at the conditions proposed in the Bill. Three of the four conditions relate to paramilitary groups. That means that the case for non-jury trial will often involve sensitive intelligence material, which will raise difficult issues; it will involve sensitive intelligence material about a person’s relationship or membership of a paramilitary group. So often that derives from human intelligence sources who are able to identify the person as having that relationship or such groups as being involved in the alleged crime. If the material in those circumstances is deployed in open court to explain why a non-jury trial is desired, it can create a risk that that sensitive intelligence information will come out into the public domain. It is not simply a question of wanting to keep things secret; there are very considerable risks in such exposure. If the information comes from a human source, and I am advised by the Chief Constable that it often does, the identity of that human source may well be identified. There is often only a small group of people who could be the source of the information. No one who knows anything about even recent events in Northern Ireland would be in any doubt that such risks often include risk to the life of a particular person. That is the difficulty about revealing human sources. There may also be difficulties about revealing the techniques used for gathering intelligence as part of the process of explaining why a non-jury trial is appropriate in a particular case as it may prejudice the capacity of the law enforcement and intelligence agencies to tackle these serious threats. That was why, after considerable consideration of the alternative models, the Government came to the view that some form of administrative process rather than a process of producing that evidence in open court was desirable. One can imagine what the consequences otherwise would be. As I said, the purpose behind these provisions—like the purpose behind the Diplock provisions—is to enable fair trials to take place removed from intimidation. If even three jury members are subject to intimidation or in fear of intimidation, they may not feel themselves able objectively to apply their judgment to the evidence in the case but to decide on different grounds. That is not in accordance with the public interest. Having a contested judicial process leads to the danger that that material will have to be exposed. It would have to be shared with the defence, as that is commonly the way in which we deal with contested matters in open court. There may be other ways of dealing with it. The difficulty with the proposal in the amendment tabled by the noble Baroness, to give the trial judge a role in deciding whether he is prepared to accept the DPP’s certificate, is that it seems to amount to a sort of automatic judicial review of the DPP’s decision. I do not know on what basis the judge is to accept or reject other than by requiring the DPP to produce his reasons and intelligence and asking the defendant for his point of view on that. It would turn into exactly the sort of hearing in open court, with the material being disclosed to the defendant in open court, that we are concerned about. That is my problem with that proposal. I turn to the second question: if it is an executive or administrative decision rather than a judicial one, should it be the Attorney-General or the DPP? I hope that the noble Lord, Lord Trimble, when responding to what I have said, will feel able to say which he has in mind. Which Attorney-General does he have in mind? At the moment—I entirely agree with the noble and learned Lord, Lord Mayhew—I regard myself as the Attorney-General for Northern Ireland; for the purposes of all statutes that impose duties or responsibilities on that person, I am he. That will change when there is full devolution, when there will be a locally appointed Attorney-General. I say to the noble Lord, Lord Glentoran, that the Attorney-General is not a member of the Assembly. The relationship of supervision with the DPP will be different from the relationship which the Attorney-General presently has with the DPP. It will be a locally appointed person. I think that one is then faced with the possibility of two choices, and I invite the noble Lord, Lord Trimble, to indicate which he has in mind: the Attorney-General for Northern Ireland, who would become the locally appointed Attorney-General at the moment of full devolution; or it could be—and there will be another law officer—the Advocate General for Northern Ireland. The Advocate General for Northern Ireland, created by the Act as well, will be the same person as the Attorney-General for England and Wales. That is the person who presently has the experience of dealing with these matters, but I think—and this was very much part of the Government’s thinking—that that would lead to the concern that a Westminster politician, one who did not even any longer hold the title of Attorney-General, would be responsible for making these decisions. That perhaps leaves the alternative that the Attorney-General for Northern Ireland will be in a different position from the one that I am in and the one that the noble and learned Lord, Lord Mayhew, was in. Because we do not know who such a person will be, I do not know whether the police will have any difficulties in sharing the sensitive intelligence information that they have as freely as they do with me and the present DPP. I invite the noble Lord to consider that. I entirely understand the points made by the noble and learned Lord, Lord Mayhew, about the desirability of accountability. I believe in that very strongly and therefore understand why he places such emphasis on it. However, we have had to consider the advantages and disadvantages of different approaches. As regards the relationship between the 2003 Act and these provisions, they are intended to deal with somewhat different things. The 2003 Act deals with a specific category of jury tampering. Were it not for the fact that Northern Ireland is different from England and Wales in the way I have indicated, one might have thought that it was appropriate simply to have the 2003 Act apply across the board. However, I do not believe—nor, I think, do law enforcement agencies in Northern Ireland—that the 2003 Act would do the trick on its own. There need to be greater protections. The hurdles in the 2003 Act are too high for Northern Ireland. The 2003 Act is appropriate for a judicial determination because the issues which fall to be considered are not generally intelligence information. They generally concern whether there is evidence that a case has collapsed as a result of jury intimidation or whether there has been jury tampering. That would normally arise as a result of direct evidence being given. That explains the differences between the two measures. Even though I see the logic of the position taken by the noble Lord, Lord Trimble, I have great concerns about trying to bring the two tests together. Northern Ireland is different from England and Wales and will need a different test. I should be very cautious and hesitant about seeking to amend through this Bill a provision in relation to England and Wales which was enacted after great debate during the passage of the Criminal Justice Act 2003. I hope that I have responded to the questions asked. I have tried to explain why we have lit upon the present system. I shall continue to reflect on the points made but I look forward to hearing what the noble Lord, Lord Trimble, will say about the point I raised, if he feels able to discuss it today.