Justice and Security (Northern Ireland) Bill

This is a series of amendments to raise the threshold in the statutory test. I should like first to consider this in the round. I accept the need for a robust test and to ensure fairness, but fairness needs to be seen in the round as well. Fairness to the defendant is very important, but the wider public also need to be assured that the trial system is fair to them and, therefore, to the prosecution. The Government believe they have the right balance in the Bill, and the question is what that balance should be. I therefore make a preliminary observation on the consequences if one gets the test wrong. If the test—that is, the hurdle that the DPP must consider and surmount—is set too low, the consequence could be that a case is tried without a jury although the risk to the administration of justice was not sufficient to require that. The defendant on trial would still receive a fair trial, but it would be a trial before a judge sitting without a jury. In all the time I have held this post—nearly six years—I have not heard anyone, including anyone in Northern Ireland, suggest that the trials before the judges in Northern Ireland are in any sense unfair; indeed, if anything, it is quite the contrary as a detailed set of reasons is given at the end of the trial. One never has that with a jury trial, and it can be tested on appeal. So the worst that could happen—although I want non-jury trials to apply only in a very limited number of cases—is that, if one sets the test too low, the person would be tried before a judge sitting alone and would receive a fair trial. The risk the other way does not come out like that. If one sets the hurdle too high, the risk is that a case will fall to be tried before a jury where there is a risk of jury intimidation or something of that sort. The consequence is—and it has happened in Northern Ireland—that the trial cannot take place or that there is not a just verdict. I emphasise: I want a robust test; I want fairness. But, if anything, the risk of getting this wrong is a risk of setting the hurdle too high for the DPP, or whoever else we may end up with, to make that decision. If one sets the hurdle too high, it is not just that the trial may be put at risk but individuals may be put at risk as well. Jury intimidation may result in real threats, real intimidation of individuals. We know from work that has been done that intimidation is a serious problem in Northern Ireland. It is exacerbated by the small close-knit communities in which people live. The work done indicates that 7 per cent of victims of crime in Northern Ireland have experienced harassment or intimidation but that only half of all intimidation offences are reported to the police. So there is a real issue to be considered. We would not be having the debate otherwise. Intimidation can have a devastating effect on individuals subjected to it. It undermines public confidence in the justice system. So, when considering the test, it has been necessary to give careful thought to what the right test should be, to look at the sort of cases where these problems arise and to draft provisions with that in mind. That is not to say that it is not right to reconsider those precise formulations in the light of the important statements made by all those who have participated in this debate. But I want to be sure that all the cases that pose risks of jury tampering or perverse verdicts are capable of being caught within the system. Therefore, I confess to taking a cautious approach with perhaps a lower rather than a higher threshold in the test. I want to make another important observation, and I hope the noble Baroness, Lady Harris, will forgive me for making the point. In summarising the test, she put together the first and the second limb. I invite noble Lords to bear in mind that there are two limbs which need to be considered before the DPP can give his certificate. Not only must he suspect that one of the conditions is met, he must also be satisfied that in view of this failure, there is a risk that the administration of justice might be impaired. I will return to those individual words in a moment, but I underline that both those requirements need to be met. In the second limb, what about the words ““a risk”” that the administration of justice might be impaired? I confess that I am concerned about trying to set that particular test for the reason that for the past 35 years in Northern Ireland there has been non-jury trial in the most serious cases. The consequence is that there is very little evidence of direct jury intimidation or perverse verdicts. If one were to impose on the DPP a requirement, for example, that he should be satisfied that there would be impairment of the trial, it would pose a very high test, and it is quite hard to see on the evidence how that could be satisfied. [The Sitting was suspended for a Division in the House from 4.41 to 4.51 pm.]