Justice and Security (Northern Ireland) Bill

I shall explain the position. I need to set this in context. Clause 12 amends the Juries (Northern Ireland) Order 1996 to abolish the defendant’s right of peremptory challenge. In England and Wales, peremptory challenge was abolished by the Criminal Justice Act 1988. From what has been said so far in the debate, I do not understand that the basic principle that it is right to abolish the right of peremptory challenge is in issue. The noble Lord’s amendment would remove the Crown’s right to request that a juror be stood-by. As he said, it is based very closely on concerns expressed by the Joint Committee on Human Rights. If this provision is passed as it stands, I intend to introduce guidelines, broadly comparable to those which have operated in England and Wales since 1988, making clear that the Crown should assert its right to stand-by only on the basis of clearly defined and restrictive criteria; namely, where, in cases involving national security or terrorism which are being tried with a jury—many will not be if the rest of the Bill is passed—an additional jury check reveals information justifying the exercise of stand-by and the Attorney-General personally authorises the exercise of the right of stand-by; or where a person is about to be sworn as a juror who is manifestly unsuitable, and the defence agrees that stand-by would be appropriate. I hope that gives an indication of how the measure will operate. It is broadly comparable to the guidance which operates in England and Wales. I do not accept that the principle of equality of arms prevents that proposal. As the report of the Joint Committee on Human Rights makes clear, the principle of equality of arms requires that the defendant should not be placed at a substantial disadvantage. I do not consider that the proposal to abolish peremptory challenge will place a defendant at a substantial disadvantage or interfere with the overall right to a fair trial. He will continue to enjoy adequate protection through retention of the right to challenge for cause. I do not agree that the proposal to abolish peremptory challenge while retaining stand-by in a very restricted form—that is what the guidelines that I shall issue will do—infringes the equality of arms principle. ECHR jurisprudence establishes that, although the overall fairness of a criminal trial cannot be compromised, limited qualification of the constituent rights within Article 6 can be acceptable if they are proportionate and directed towards a legitimate aim. I believe that making provision for the limited use of stand-by in the way I have indicated is proportionate to the overall objective of ensuring that the trial process is fair and delivers justice for defendants, victims and society at large. If the noble Lord does not have a copy of the existing guidelines, I shall make sure that he and any other noble Lords are provided with one. I hope that he will accept the explanation I have given; that the exercise of the right to stand-by will be very limited under the guidelines and will be a justifiable measure to retain given the risks in those very few cases where a problem may arise. It may help if I tell the noble Lord that during the past six years that I have been Attorney-General I can recall only two occasions where I have authorised the prosecution to exercise this right. Those cases involved national security or terrorism. That indicates that this is a very restricted right, but one which I believe needs to be retained for those exceptional cases.