Justice and Security (Northern Ireland) Bill

moved Amendment No. 3: 3: Clause 1, page 1, line 8, leave out ““suspects”” and insert ““is satisfied”” The noble Lord said: With this, I shall discuss Amendments Nos. 6 and 9. The Bill gives the DPP for Northern Ireland the power to issue a certificate that a trial on indictment is to be conducted without a jury if he ““suspects”” that any one of four conditions enumerated in subsections (3) to (6) is satisfied. Amendment No. 3 requires him to be ““satisfied”” and not merely to suspect that one of the conditions exists. For example, the first condition is that the defendant is an associate of a person who is or has at any time been a member of a proscribed organisation. Later, the term associate is defined to include a friend or a relative, as well as a spouse or former spouse, civil partner, former civil partner, cohabiting partner or former cohabiting partner. A proscribed organisation is defined to include an organisation that was proscribed at the time of the person’s membership of that organisation, although it may not be at the time when the matter comes to be considered. When the JCHR asked the Government for their justification for conferring these extremely wide powers on the DPP, it was told that there had been cases of intimidation to secure acquittals of close friends or family members of terrorists. I ask the noble and learned Lord to consider that the word ““close”” was used in the Government’s explanation, which is a different matter from any old friend or relative, as the Bill has it. As the NIHRC observed, ““friend”” is a very subjective term and ““relative”” is totally open-ended, giving the DPP, in theory, a sweeping power to prevent jury trials and to create the risk of a potential breach of Article 14 of the ECHR, in conjunction with Article 6.1, by making it possible to deny a person the right to trial by jury because he was born into a family, one of whose members had at some time or other broken a particular law. For condition 1 to be triggered, the DPP does not have to do more than suspect that such a relationship exists. Amendment No. 3 would require him to be satisfied that the relationship exists. Amendment No. 6 would raise the test of whether the administration of justice might be impaired if the trial were to be conducted without a jury from ““risk”” to ““substantial risk””. As the JCHR points out, and we have already heard from the noble Lord, Lord Trimble, about this, in England and Wales the test in Section 44 of the Criminal Justice Act 2003 is that there has to be evidence of a real and present danger that jury-tampering would take place, and that the likelihood that such tampering is so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. That provision, we understand, has already come into force and applies in Northern Ireland, as the Minister in another place, Paul Goggins, explained in Standing Committee in another place on 16 January. As we have already heard, there are two different mechanisms that apply in Northern Ireland through which non-jury trials will be possible. In so far as it is possible, I agree that we should try to align the two so that they do not come into conflict with one another. The use of the word ““substantial”” in Clause 1(2)(b) would therefore move the two procedures so that they were more closely aligned with one another—although not entirely, because the situations are still different, as we have just heard. Presumably the ultimate objective of the Government in the very long term, as the noble Lord, Lord Trimble, has already outlined, would be for the special arrangements in Northern Ireland to be dropped altogether, leaving the Criminal Justice Act to operate uniformly in both jurisdictions. The term ““substantial risk”” is of course widely used in many contexts in the statutes, and would not present any difficulty of interpretation in the courts. Amendment No. 9 follows the JCHR recommendation in paragraph 1.27 that the DPP should be satisfied that other, less restrictive measures will not present the risk of impairment of the administration of justice. It may be that in answer to this the noble and learned Lord will say that the DPP would obviously think about the possibility as a matter of course, as he would do about all the circumstances that affect the risk. We would argue that, for certainty, that needs to be spelt out in the Bill. I beg to move.