LORD KERR: (with whom Lord
Reed, Lady Black, Lord Lloyd-Jones and Lord Sales agree)
Introduction
1.
On Saturday 15 June 1974, in the late morning, an army patrol consisting
of two military vehicles was travelling towards Benburb, County Tyrone. The
vehicles contained members of the Life Guards regiment. The lead vehicle had
six men on board. The commander of the patrol, who was travelling in that
vehicle, was Dennis Hutchings, the appellant in this case.
2.
As the patrol rounded a left-hand bend near a village called Eglish on
what was a winding road, a young man came into view, standing on the left-hand
side of the road. He appeared to be looking into the hedge at the side of the
road. His name was John Paul Cunningham. Mr Cunningham appeared startled and
confused. He ran across the road in front of the lead vehicle and climbed a
gate into a neighbouring field. He then ran towards a metal fence which
bordered the field.
3.
The patrol came to a halt on the appellant’s command. Most of the
soldiers dismounted from the vehicles and took up defensive positions. Three
members of the patrol, the appellant and two others, who have been referred to
as B and E, pursued Mr Cunningham. Mr Hutchings and soldier E went towards the
same gate that Mr Cunningham had climbed over. Soldier B went to a gateway
further down the road. A number of shouted commands to Mr Cunningham to stop
went unheeded. It later transpired that he had limited intellectual capacity.
His mental age was judged to be between six and ten years. In a report by the
Historical Enquiries Team (HET) (of which more below at para 9) it was said
that he “was easily confused and may have had an inherent fear of men in
uniform and armoured vehicles”.
4.
The case made by the prosecution is that when Mr Cunningham failed to
stop, shots were discharged by the appellant and the soldier referred to as B.
Mr Cunningham was hit and died at the scene. At the time that he fell, he was
close to the metal fence. It has been established that he was running towards
his home. HET concluded, after investigation, that he was unarmed; that he was
shot while running away from the soldiers; and that there was no evidence that
he presented a threat to them or to anyone else.
Background
5.
In 1974 there was much terrorist activity in Northern Ireland. A large
part of that activity was generated by the Provisional Irish Republican Army
(PIRA). There were regular attacks on the security forces, including the
British Army. The attacks frequently involved the use of firearms and
explosives.
6.
The Life Guards regiment was responsible in 1974 for security force
operations in Cookstown, Dungannon and Armagh and surrounding districts.
Cookstown and Dungannon are in County Tyrone, as are Benburb and Eglish.
Benburb is some 18 miles from Cookstown and about eight miles from Dungannon. Eglish
is a small village that lies between Dungannon and Benburb. It is about five
miles from Dungannon to Eglish and approximately the same distance from Eglish
to Benburb. An army report about the time that Mr Cunningham was killed stated
that the threat level in these areas was particularly high. There were frequent
army patrols of the roads between these various locations. Indeed, in the first
two weeks of June 1974 some 38% of shooting incidents in the Life Guards’
operational zone occurred in the area of Eglish. One of those attacks resulted
in the death of a soldier in the Life Guards regiment.
7.
Two days before Mr Cunningham was killed, members of the Life Guards,
under the command of Mr Hutchings, came upon a group of men loading material
into a vehicle. A “firefight”, as it was described in the reports of the
incident, ensued. Arms and explosives were discovered in the vehicle. This had
occurred about three and a half miles from where Mr Cunningham was killed.
8.
Following the killing of Mr Cunningham, a joint inquiry by the Royal
Ulster Constabulary (RUC) and the Royal Military Police took place. The then
Director of Public Prosecutions reviewed the statements that this inquiry
generated and decided that there should be no prosecution of any of the
military personnel involved.
9.
HET was a body created in 2005 to examine historical offences that were
committed during the period of terrorist violence in Northern Ireland and the
state’s reaction to it. It conducted an inquiry into Mr Cunningham’s death. It
concluded that this was “an absolute tragedy that should not have happened”. It
recommended, however, that no further action be taken in relation to the
incident.
10.
In 2015 a new body, the Legacy Investigation Branch, conducted a new
investigation into Mr Cunningham’s death. As a result of this, the appellant
was arrested and taken to a police station in Northern Ireland where he was
interviewed. He answered “no comment” to all questions put to him. He was
subsequently charged with two offences: the attempted murder of Mr Cunningham
and attempting to cause him grievous bodily harm.
11.
On 20 April 2016, the Director of Public Prosecutions issued a
certificate pursuant to section 1 of the Justice and Security (Northern
Ireland) Act 2007 directing that the appellant stand trial on these charges by
a judge sitting without a jury. It is accepted that the certificate was issued
without prior notice to the appellant. He was not given an opportunity to make
representations as to whether it should be issued. The material and information
which led to the issue of the certificate have not been disclosed to him. He
was not informed of its having been issued until 5 May 2017.
The statutory provisions relating to the issue of
certificates and challenges to their issue
12.
The relevant parts of section 1 of the 2007 Act are these:
“Issue of certificate
(1) This section applies in relation to
a person charged with one or more indictable offences (‘the defendant’).
(2) The Director of Public
Prosecutions for Northern Ireland may issue a certificate that any trial on
indictment of the defendant (and of any person committed for trial with the
defendant) is to be conducted without a jury if -
(a) he suspects that any of
the following conditions is met, and
(b) he is satisfied that in
view of this there is a risk that the administration of justice might be
impaired if the trial were to be conducted with a jury.
…
(6) Condition 4 is that the
offence or any of the offences was committed to any extent (whether directly or
indirectly) as a result of, in connection with or in response to religious or
political hostility of one person or group of persons towards another person or
group of persons.
(7) In subsection (6) ‘religious
or political hostility’ means hostility based to any extent on -
(a) religious belief or
political opinion,
(b) supposed religious
belief or political opinion, or
(c) the absence or supposed
absence of any, or any particular, religious belief or political opinion.
(8) In subsection (6) the
references to persons and groups of persons need not include a reference to the
defendant or to any victim of the offence or offences.”
13.
The breadth of the power to direct that a trial be before a judge
without a jury is immediately apparent from these provisions. The Director need
only suspect that one of the stipulated conditions (in this case
condition 4) is met and that there is a risk that the administration of
justice might be impaired if there was a jury trial. The circumstances in which
such a risk might materialise and the specific nature of the risk or the
impairment to the administration of justice which might be occasioned are not
specified. It can only be supposed that these matters were deliberately left
open-ended. The type of decision which the Director must take can be of the
instinctual, impressionistic kind. Whilst the Director must of course be able
to point to reasons for his decision, one can readily envisage that it may
frequently not be based on hard evidence but on unverified intelligence
or suspicions, or on general experience. It may partake of supposition and
prediction of a possible outcome, rather than a firm conclusion drawn from
established facts.
14.
The need, on occasions, for the Director’s decision to depend on
intuitive belief rather than studied analysis of evidence is also reflected in
the fact that the circumstances covered by condition 4 are extremely wide. Offences
committed to any extent (even if indirectly) in connection with or in
response to religious or political hostility of one person or group of persons
are covered. The PIRA campaign in Northern Ireland in the 1970s was based on
that organisation’s political hostility to continuing British rule in that
country. The incident that occurred a few days before Mr Cunningham was killed
bore all the hallmarks of a PIRA operation. When this is considered with the
incidence of terrorist activity in the area at the time, it is entirely
unsurprising that the Director should have concluded that the offences with
which the appellant is charged were connected (directly or indirectly) with or
in response to the political hostility of members of PIRA against, as the Director
put it in an affidavit, “those who believed that Northern Ireland should remain
a part of the United Kingdom”. That the soldiers who fired on Mr Cunningham
suspected that he was a member of PIRA seems inescapable. (I shall have more to
say presently about the Director’s reasons for issuing the certificate.)
15.
Section 7 of the Act provides:
“Limitation on challenge of issue
of certificate
(1) No court may entertain
proceedings for questioning (whether by way of judicial review or otherwise)
any decision or purported decision of the Director of Public Prosecutions for
Northern Ireland in relation to the issue of a certificate under section 1,
except on the grounds of -
(a) dishonesty,
(b) bad faith, or
(c) other exceptional
circumstances (including in particular exceptional circumstances relating to lack of jurisdiction or error of law).
(2) Subsection (1) is
subject to section 7(1) of the Human Rights Act 1998 (claim that a public
authority has infringed [a] Convention right).”
16.
The “other exceptional circumstances” referred to in sub-paragraph (c)
of subsection (1) are not specified but they must take their flavour from the
preceding provisions to the effect that challenges will be entertained on the
grounds of bad faith and dishonesty and from the succeeding words of the
sub-paragraph, which particularise “lack of jurisdiction or error of law”.
These are clear indications that, what has been described as the “full panoply
of judicial review superintendence” (see In re Shuker’s and others’
applications for judicial review [2004] NIQB 20; [2004] NI 367 at para 25), is generally
not available to challenge decisions by the Attorney General or the Director of
Public Prosecutions as to the mode of trial for particular cases.
17.
By virtue of section 8(3) of the Act the provisions in sections 1-7 are
applied to offences committed before the Act came into force. The offences with
which the appellant has been charged are therefore covered by those provisions.
18.
Counsel for the appellant, Mr Lewis QC, drew our attention to the Explanatory
Notes which accompany the 2007 Act. He pointed out that paragraph 7 of the
Notes made it clear that it was anticipated that non-jury trial would be
ordered in “a small number of exceptional cases” and claimed that paragraphs 22
and 23, which dealt with condition 4 in section 1(6), indicated that that
provision should be construed narrowly. These paragraphs read:
“22. Condition 4 is set out in
subsection (6). This covers circumstances where the offence occurred as
a result of, or in connection with, sectarianism (ie in connection with
religious belief or political opinion). Subsection (7) clarifies that
‘religious belief and political opinion’ includes their absence and any
assumptions made about religious beliefs or political opinions. Subsection
(8) provides that the persons and groups of persons referred to in
subsection (6) need not include the defendant or victim.
23. A case that falls within
one of the conditions will not automatically be tried without a jury - non-jury
trial will only happen if the DPP(NI) issues a certificate because he is
satisfied that there is a risk that the administration of justice might be
impaired.”
19.
The judgment of the Divisional Court in the present case (Stephens LJ
and Sir John Gillen [2017] NIQB 121) quoted from the Explanatory Notes - see
para 14. But at para 34 the court observed that reliance on the Notes had to be
approached with some caution, quoting Lord Steyn in R (Westminster City
Council) v National Asylum Support Service [2002] 1 WLR 2956 at para 6
where he said that it was “impermissible … to treat the wishes and desires of
the government about the scope of the statutory language as reflecting the will
of Parliament.” Mr Lewis criticised this passage of the Divisional Court’s
judgment, suggesting that it unwarrantably abbreviated the relevant reasoning
to be found in the speech of Lord Steyn. In particular, he focused on
statements in para 5 of the speech where Lord Steyn said:
“In so far as the Explanatory
Notes cast light on the objective setting or contextual scene of the statute,
and the mischief at which it is aimed, such materials are therefore always
admissible aids to construction. They may be admitted for what logical value
they have. Used for this purpose Explanatory Notes will sometimes be more
informative and valuable than reports of the Law Commission or advisory
committees, Government green or white papers, and the like. After all, the
connection of Explanatory Notes with the shape of the proposed legislation is
closer than pre-parliamentary aids which in principle are already treated as
admissible: see Cross, Statutory Interpretation, 3rd ed (1995),
pp 160-161.”
20.
I find it unnecessary to embark on a discussion about the use to which
the Explanatory Notes might be put in this instance because I consider that the
language of the relevant statutory provisions is perfectly clear. Those
provisions invest the Director of Public Prosecutions with wide powers for the
reasons earlier discussed. If anything, the actual provisions are more precise
in their formulation than the Explanatory Notes. Recourse to the latter is
unnecessary for the proper interpretation and application of the pertinent
parts of the statute.
21.
As it happens, of course, nothing in the Explanatory Notes detracts from
the interpretation to be placed on the statutory provisions, if they are
analysed on a purely textual basis. Mr Lewis suggested that the reference to
sectarianism in paragraph 22 of the Notes indicated that condition 4 was
designed to cover situations of strife between the different communities in
Northern Ireland. I do not accept that argument. Sectarianism can, of course,
have the connotation of bigoted adherence to a particular sect but that is by
no means its only possible meaning. The qualifying words in paragraph 22 of the
Notes, “ie in connection with religious belief or political opinion”, make it
clear that “sectarianism”, as it is used in the Notes, is sufficiently wide to
embrace the circumstances in which Mr Cunningham was killed.
22.
If Mr Hutchings and soldier B fired on Mr Cunningham, believing him to
be a member of PIRA, that would be sufficient to satisfy the requirement that
the offences which are alleged to be constituted by that shooting were “in
connection with or in response to … political hostility of one person … towards
another … group of persons”, namely the British Army. And if the Director
suspected that this was so (as, realistically, he was bound to, and indeed
avers that he did), then the first requirement of section 1(2), in so far as it
related to condition 4, was met. Furthermore, if the Director was satisfied
that, by reason of this circumstance, there was a risk that the administration
of justice might be impaired if the trial were to be conducted with a jury, the
second requirement of the subsection would likewise be fulfilled.
23.
Mr Lewis invited this court to consider the legislative history of the
2007 Act, although he accepted that the conditions necessary for admission of
ministerial statements, prescribed by the House of Lords in Pepper v Hart
[1993] AC 593 were not fulfilled. It was permissible, indeed necessary, Mr
Lewis argued, to look at ministerial statements in order to ascertain “the
legislative intent” of the 2007 Act. He then took us to a number of statements
made by the Parliamentary Under-Secretary of State for Northern Ireland, Paul
Goggins MP, during the passage through the House of Commons of the Bill that
ultimately became the 2007 Act. The purpose of this exercise was to promote the
theory that the powers of the Director of Public Prosecutions under section 1
were confined to cases involving sectarianism in the connotation which Mr Lewis
sought to place on it.
24.
I find it unnecessary to set out the passages from Mr Goggins’
statements to which Mr Lewis referred us. It is quite clear that the minister
was responding to particular issues on which other members of the House had
expressed concern. He did not attempt to outline a comprehensive charter of all
the circumstances in which the Director’s powers might be invoked. True it may
be that the examples cited by Mr Goggins were of situations that might be
described as sectarian in the connotation which Mr Lewis suggested was the
correct one, but the minister did not at any point suggest that they were exhaustive
of the circumstances in which the Director might exercise his powers under
section 1. In any event, for the reasons given earlier, the legislative intent
of the provisions of that section is abundantly clear from its terms. It is not
open to the appellant to put a gloss on that intent by reference to
Parliamentary statements which might appear to be at odds with that clear
intent.
25.
As to the second requirement of section 1, the Director of Public
Prosecutions, Barra McGrory QC, deposed in his first affidavit that, in
reaching his decision on that issue, he had taken into account judicial
observations in In re Jordan’s Application and in In re McParland’s
Application. On the basis of his consideration of those cases, he
pronounced himself satisfied that there was a risk such as is provided for in
section 1(2)(b).
26.
The decision in the Court of Appeal in the Jordan case referred
to by Mr McGrory is reported at [2014] NICA 76; [2016] NI 116 as In re
Jordan’s Applications for Judicial Review. Mr McGrory also mentioned the
decision of the High Court in that case but it is sufficient, I believe, for
present purposes to focus on the judgment of the Court of Appeal delivered by
Sir Declan Morgan LCJ. The case concerned (among other things) the risk of jury
bias in an inquest into the shooting of Pearse Jordan by a member of the RUC in
1992. At para 90 of the judgment the following passage appears:
“… There are formidable
difficulties in being satisfied that the insidious nature of bias has been
removed in security and terrorist type cases.
It is necessary to confront
directly the need to ensure that jury verdicts emerge unconstrained by tribal
loyalties. A coroner must be satisfied that there will be a sensitively
constructed distance between prejudice and justice.
The existence of a real risk of a
biased juror or jury will outweigh any other factor.
Mere reduction of the risk is
insufficient. The coroner must be satisfied that the steps taken have reduced
that risk to a remote or fanciful possibility. …”
27.
Other factors which, the court considered, should be taken into account
by a coroner in seeking to eliminate the risk of bias on the part of the
inquest jury were mentioned in the Court of Appeal judgment but they are not
directly relevant to the present case. The important point to be drawn from
that decision, in relation to the present case, is that three Court of Appeal
judges, all highly experienced in the administration of justice in Northern
Ireland, stated unequivocally and unanimously that formidable difficulties
attended the need to be satisfied that the risk of bias has been removed in
security and terrorist type cases; that the reality that tribal loyalties could
imperil the chances of a proper verdict had to be confronted; that the risk of
a biased juror was the most important factor to be considered by the coroner;
and that the real (as opposed to the remote or fanciful) possibility of jury
bias should govern the coroner’s decision on the question.
28.
Mr Lewis suggested that an inquest and a criminal trial were not
analogous in relation to the need to avoid jury bias. In the former, he
suggested, a unanimous verdict was required, whereas a majority verdict could
be returned in a criminal trial. Moreover, the system of empanelling juries
introduced by the 2007 Act which abolished the right to peremptory challenge to
possible jurors and disclosure of their names and addresses reduced the risk of
jury tampering and partisanship.
29.
I do not accept these arguments. The fact that a majority verdict can be
delivered in a criminal trial might reduce the risk of partisan verdicts; there
is no reason to suppose that it will eliminate it. Likewise, the abolition of
peremptory challenges and disclosure of jury panel members’ names and
addresses. On the question of jury tampering (to which, more obviously, these
measures were primarily directed) it is right to record that Mr Gerald Simpson
QC, who appeared for the Director, confirmed that the possibility of jury
tampering was not a concern in this case. It was the prospect of a partisan
outcome to the case which underlay the Director’s decision.
30.
The McParland case to which the Director referred is In re an
application by Patrick McParland and John McParland for Judicial Review [2008] NIQB 1. It concerned a challenge to section 10 of the 2007 Act which had
inserted a new provision (article 26A) into the Juries (Northern Ireland) Order
1996 (SI 1996/1141) restricting the disclosure of information about jurors. It
was argued that the new arrangements in effect brought about trial of defendants
by a secret tribunal and that this constituted a breach of article 6 of the
European Convention on Human Rights and Fundamental Freedoms (ECHR) since it
infringed the guarantees of a public hearing and of trial within a system
containing sufficient guarantees of impartiality.
31.
The Divisional Court rejected that argument. At para 37, it observed,
“[t]he existence of the risks identified by the juries’ sub-group of juror
intimidation, of partisan juries and of perverse jury verdicts has not been
seriously disputed by most commentators …”.
Discussion of the statutory provisions relating to the
issue of certificates
32.
The powers available to the Director of Public Prosecutions are
unquestionably far-reaching. It is unsurprising that this should be so. When
one has regard to the difficulties described by the Court of Appeal in Jordan
in eliminating the risk of bias and of being confident of having done
so, the need for wide-ranging powers is obvious. What were described by that
court as “tribal loyalties” present a particular problem. These are often
difficult to detect and may routinely be disavowed by most of the population.
But experience has shown that they can operate to bring about unexpected,
partisan outcomes. The dangers that they present to the achievement of a
scrupulously fair trial are undeniable.
33.
Taking effective precautions against jury bias presents, as the Court of
Appeal in Jordan said, formidable difficulties. These difficulties are
particularly acute in cases which involve attacks on the security forces or
where members of the security forces have fired on individuals. Such cases are
almost invariably highly charged, and they give rise to strong feelings in both
sides of the community. Apprehension that jury trial in such cases might put
the goal of a fair trial in peril is unavoidable.
34.
It is important to focus on the need for a fair trial. Trial by jury is,
of course, the traditional mode of trial for serious criminal offences in the
United Kingdom. It should not be assumed, however, that this is the unique
means of achieving fairness in the criminal process. Indeed, as the Court of
Appeal’s statements in Jordan show, trial by jury can in certain
circumstances be antithetical to a fair trial and the only assured means where
those circumstances obtain of ensuring that the trial is fair is that it be
conducted by a judge sitting without a jury.
35.
So-called “Diplock trials” took place in Northern Ireland between 1973
and 2007. No one suggests that this mode of trial failed to deliver fairness of
process, by reason of the fact that the trial took place before a judge sitting
without a jury. Although article 6 of ECHR (which guarantees a right to a fair
trial) is not prayed in aid by the appellant in this case, it is interesting to
reflect that it has been held that this article does not require trial by jury.
As the European Commission of Human Rights observed in X and Y v Ireland
(Application No 8299/78) (1980) 22 DR 51, para 19, “… article 6 does not
specify trial by jury as one of the elements of a fair hearing in the
determination of a criminal charge”.
36.
It is, of course, to be remembered that the system of trial introduced
as a result of Lord Diplock’s report (Report of the Commission to consider
legal procedures to deal with terrorist activities in Northern Ireland
(1972) (Cmnd 5185)), required the trial judge to give a reasoned judgment if
the defendant was convicted. And that a defendant, upon conviction, was
entitled to an automatic right of appeal, not only on points of law but on the
factual conclusions reached and inferences drawn by the trial judge. These
remain features of trials without a jury since the 2007 Act - section 5(6) and
(7).
37.
The statement made by Lord Judge CJ in R v Twomey [2010] 1 WLR 630 at para 10 (relied on by the appellant) that, “[i]n this country trial by
jury is a hallowed principle of the administration of criminal justice ...
properly identified as a right, available to be exercised by a defendant
unless and until the right is amended or circumscribed by express legislation”
must be viewed against this background. In the first place, although the Lord
Chief Justice described entitlement to trial by jury as a right, he did not
suggest that this was an absolute right; indeed, he accepted that it could be
constrained in certain circumstances. Secondly, and self-evidently, the right
has in fact been restricted by the express provisions of the 2007 Act. Finally,
where trial by jury would place the fairness of the criminal justice process at
risk, the right must yield to the imperative of ensuring that the trial is
fair.
38.
In this context, the triangulation of interests identified by Lord Steyn
in Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91, at p 118
is pertinent. He said this about the various interests which are served by a
criminal trial:
“The purpose of the criminal law
is to permit everyone to go about their daily lives without fear of harm to
person or property. And it is in the interests of everyone that serious crime
should be effectively investigated and prosecuted. There must be fairness to
all sides. In a criminal case this requires the court to consider a
triangulation of interests. It involves taking into account the position of the
accused, the victim and his or her family, and the public.”
39.
The requirements of a fair trial are not determined by having regard to
a defendant’s interests exclusively. As Lord Steyn said, it is in the interests
of everyone that serious crime be properly investigated and effectively
prosecuted. Notably, of course, the appellant has not claimed that his trial
for the offences with which he is charged will not be fair, if conducted by a
judge sitting without a jury. Such a claim could not be sustained in light of
the experience of trials before “Diplock courts” and of the safeguards which are
in place by reason of section 5(6) and (7) of the 2007 Act.
40.
Consideration of the appellant’s claim that he should not be denied the
right to a jury trial must therefore proceed on the basis that he will receive
a fair trial or, at least, that if he does not, he will have an automatic right
of appeal to the Court of Appeal where any suggestion that there has been
unfairness can be fully ventilated and examined. This incontestable reality
influences the approach to be taken, not only to the proper interpretation of
section 1 of the 2007 Act, but also to the appellant’s argument that he was
entitled to be given reasons for the issue of the certificate and to be
consulted about the Director’s proposed course of action before it was decided
to issue the certificate. That is an argument to which I shall turn in paras 53
and following.
41.
The appellant argued that the Director of Public Prosecutions had been
wrong in the claim that he made in his first affidavit, that it was the
intention of Parliament that section 1(6) of the 2007 Act should be interpreted
broadly. Mr Lewis pointed out that this was at odds with the judgment of the
Divisional Court in an earlier Northern Ireland case, Arthurs’ (Brian and
Paula) Application [2010] NIQB 75 where at para 31, Girvan LJ had said,
“[t]he strong presumption that a right to jury trial is not intended to be
taken away will … lead to a strict construction of any statutory restriction or
limitation on the right to a jury trial.” That statement appears to have been
based on an argument addressed to the court by Raza Husain QC, appearing for
applicants who challenged the issue by the Director of Public Prosecutions of a
certificate that their trial on a series of fraud charges be conducted by a
judge without a jury. Mr Husain had relied on the statement by Lord Judge CJ in
a passage in the case of Twomey which appeared later in his judgment
from that quoted at para 37 above. At para 16 of Twomey, Lord Judge CJ had
said:
“The right to trial by jury is so
deeply entrenched in our constitution that, unless express statutory language
indicates otherwise, the highest possible forensic standard of proof is
required to be established before the right is removed. That is the criminal
standard.”
42.
Of course, in Twomey the court was dealing with a case where the
prosecution was seeking trial without a jury where it was claimed that there
was a real danger of jury tampering and that is not the position here. But, if
one proceeds on the premise that section 1(1) of the 2007 Act requires to be
strictly or narrowly construed, this does not affect the interpretation which I
consider the provision must be given.
43.
The Divisional Court in the present case dealt with this issue at para
41 of its judgment:
“In our view the assertion of the
Director that it was the intention of Parliament to provide that ‘the
subsection should be broadly interpreted’, whilst it could have been more
felicitously worded, does not necessarily contradict the proposition put
forward in Arthurs’ case that it is necessary to construe section 1
narrowly and strictly. The wording of condition 4 is such that Parliament
clearly intended to include a broad reach of circumstances whilst at the same
time recognising that any legislation removing jury trial needs to be tightly
construed.”
44.
There is certainly an argument that, contrary to the Divisional Court’s
view, the Director’s assertion was at odds with what Girvan LJ said in Arthurs.
But whether the Director erred is neither here nor there, provided he acted
within the powers actually available to him and provided that, if he did indeed
misapprehend the proper approach to the interpretation of section 1, that
misapprehension was, in the event, immaterial to the decision that he took. On
the true ambit of the Director’s powers, what matters is the interpretation
placed on the section by the courts. And the Divisional Court is unquestionably
right that the wording of condition 4 invests the Director with a wide range of
powers. Whether the section requires to be construed narrowly or broadly, the
intrinsic breadth of the powers remains intact. Even if, therefore, the
Director was wrong in his assertion that Parliament intended that the section
should be interpreted broadly, there is no reason automatically to assume that
this led to him exercising his powers in a manner that was not available to him
on a proper construction of the provision. On the facts of this case, it is
clear from the reasons that the Director has given for issuing the certificate
that he was bound to have made the same decision if he had considered that
section 1 required to be construed narrowly. If, indeed, it was an error on the
part of the Director to consider that section 1 should be given a broad
interpretation (on which I do not feel it necessary to express an opinion) it
cannot be said that such an error would vitiate his decision for the reason
that he was certain to reach the same decision, whatever view he took of the
appropriate mode of interpretation of section 1.
45.
As to the reasons that he decided to issue the certificate, these were
first conveyed to the appellant’s solicitors in a letter dated 10 May 2017 from
the Director’s office. It contained the following passages:
“I can advise you that the
Director suspected that condition 4 in section 1 of the 2007 Act was satisfied
on the basis of information provided by the police coupled with a commentary
and assessment of that information, an analysis of the facts and circumstances
of this case and the advice of senior counsel. In this way the Director formed
the requisite suspicion.
In view of the suspicion which he
formed in relation to condition 4, the Director was satisfied that there was a
risk that the administration of justice might be impaired if the trial were to
be conducted with a jury. This risk arises from the possibility of a biased
juror or jury, having regard to the particular circumstances of this case.
The Director further considered
whether the risk to the administration of justice could be mitigated by
application to the court to screen the jury, sequester the jury or transfer the
trial to a different venue. The Director was satisfied that there remained a
risk that the administration of justice might be impaired on the basis that,
even if granted, these measures might not be sufficiently effective in
preventing or significantly reducing the potential risk posed to the
administration of justice in this case.”
One may observe that it is extremely unfortunate that more
than a year was allowed to pass before the issue of the certificate was brought
to the attention of the appellant and his advisers. Quite apart from the
obvious desirability of informing any defendant promptly of such a significant
decision as to the mode of his trial, the challenge to his decision would,
presumably, have materialised much sooner and the delay in the trial would have
been greatly reduced.
46.
Mr Lewis suggested that the reference in the final paragraph of this
letter to sequestration of the jury suggested that the possibility of jury
tampering was present to the Director’s mind but was not fully articulated. He
argued that this, among other reasons, illustrated the inadequacy of the
explanation given as to the basis on which the decision to issue the
certificate was taken. This argument is more germane to the claim that the
appellant should have been provided with reasons and been consulted before the
decision was made to issue the certificate, an argument which I shall consider
in the next section of the judgment. I should say, however, that I do not accept
the argument. The nature of the risk is plainly stated in the second paragraph
quoted above. It is that the possibility of a biased juror or jury existed. It
might seem unusual to consider the question whether such a risk could be
mitigated by sequestering the jury, but it is to be expected that the Director
felt it prudent to examine every possibility before deciding to issue the
certificate. It is certainly not untoward that he should advert to this before
deciding that the only way in which to avert the risk that the administration
of justice would be impaired was by issuing the certificate.
47.
On the question whether the Director acted within his powers, the letter
sets out a clear basis on which to conclude that he did. He formed the
necessary suspicion on the basis of information received from the police and
commentary on that information. He also took the advice of senior counsel.
These are all entirely conventional steps to allow him to consider the question
whether he suspected that condition 4 was met.
48.
Likewise, the risk that the administration of justice would be impaired
was directly addressed by the Director and a clear conclusion was arrived at.
For the reasons given earlier, that conclusion was entirely unsurprising, in
light of the circumstances described in the Jordan and McParland cases.
Indeed, it is difficult to envisage how any other view could have been formed.
49.
The reasons for reaching his decision were again set out in two
affidavits filed by the Director in the proceedings. In the first of these, he
said that, in arriving at his conclusion, he recognised that there could be no
suggestion that a soldier was any part of the “sectarian divide” in Northern
Ireland, nor that he was involved in any proscribed organisation. He pointed
out that the legislative framework makes it clear that references to persons
and groups of persons need not include the defendant.
50.
He stated that he suspected that the offence was committed as a result
of or in connection with or in response to the political hostility of one
person or group of persons towards another person or group of persons; namely
in connection with or in response to the political hostility of members (or
suspected members) of PIRA towards those who believed that Northern Ireland
should remain a part of the United Kingdom. In other words, the Director
followed faithfully the wording and essence of the legislative provisions. This
is completely in keeping with the terms of section 1 of the Act.
51.
On the second limb of section 1(2), the Director deposed that he had
taken into account what had been said in the cases of Jordan and McParland
and, having considered all the material with which he had been provided and
having carefully analysed the facts, and having obtained senior counsel’s
opinion, he was satisfied that there was a risk that the administration of
justice might be impaired if the trial were to be conducted with a jury.
52.
All of this is unexceptionable and in compliance with the legislation.
There is no reason to suppose that the Director’s approach to the question
whether the certificate should be issued was other than as prescribed by the
statute. (The second affidavit filed by the Director relates to evidence which,
he understood, was to be adduced by the prosecution on the trial of the appellant.
It is not germane to the issues which arise on the appeal.) I have concluded,
therefore that the Director acted within the powers conferred on him by the
2007 Act and that the appellant’s contention to the contrary must fail.
The procedural argument
53.
The principal argument made on behalf of the appellant was that he ought
to have been provided with the reasons that the Director of Public Prosecutions
was minded to issue a certificate and with the material on which his
consideration of that question was based. Further, it was claimed that the
appellant should have been given the opportunity to make representations on
whether a certificate should be issued, in advance of any decision on the
matter.
54.
Section 7 of the 2007 Act sets the scene for any discussion of this
argument. The exceptionality of a permissible challenge to the decision of the
Director is prominent in the terms of the section. A curtailment of the full
spectrum of judicial review challenge was obviously intended. It was expressly
provided that a challenge was only admissible on grounds of bad faith,
dishonesty or other exceptional circumstances. Bad faith and dishonesty clearly
do not arise here. Where, then, does the appellant’s challenge find its place
in the “exceptional circumstances” category?
55.
Mr Lewis seeks to place it there by reference to what he claims is the
fundamental right to a jury trial. But, for the reasons earlier discussed, this
will not do. The fundamental right is to a fair trial. There is a right to
trial by jury, as Lord Judge CJ said in Twomey, but that alone is not
enough to shift the appellant’s case into a condition of exceptionality -
particularly in the context of a statute whose very purpose is to prescribe the
circumstances in which someone can be denied the right to a jury trial.
56.
This is pre-eminently a situation where something is required beyond a
claim that there is a right to a jury trial, if the circumstances of the
individual case are to be regarded as exceptional. This point is reinforced by
the examples of exceptional circumstances given in section 7(1)(c) of “lack of
jurisdiction or error of law”. There is no question of lack of jurisdiction
here, much less an error of law by the Director in having recourse to the
powers that were available to him under section 1. To come within the rubric
“exceptional circumstances”, it behoves the appellant to be able to point to
something which truly distinguishes his case from the general. I consider that
he has failed to do that.
57.
Quite apart from the statutory imperative requiring that there be
exceptional circumstances in the absence of bad faith or dishonesty, the
decision whether to issue a certificate is obviously one which should not be
subject to the full spectrum of conventional judicial review challenge. Unlike
most decisions taken in the public law arena, it is not founded exclusively on
the evaluation and weighing of hard evidence. It will usually be motivated by
sensitive information which cannot be disclosed. It is a decision which the
Director of Public Prosecutions must take according to his personal reaction to
the material with which he has been presented and his own estimation of the
matters at stake. In sum, a decision to issue a certificate does not readily
admit of scrutiny of the reasoning underlying it because it will usually be of
the impressionistic and instinctual variety, for the reasons earlier explained.
58.
Many of these factors were in play in the Arthurs and Shuker cases.
Arthurs was a case in which a challenge similar to that involved in the
present appeal had been made. Girvan LJ, delivering the judgment of the
Divisional Court, drew an analogy between this species of decisions and
decisions whether to prosecute. At para 25 he brought together various
authorities touching on this subject:
“In its reasoning [in Shuker]
the court was heavily influenced by well established limitations on the review
of the prosecutorial decisions by the DPP emerging from the authorities such as
In re Adams [2001] NI 1, R v Director of Public Prosecutions, Ex
p Treadaway The Times 31 October 1997 and R v Director of Public Prosecutions,
Ex p Manning [2001] QB 330. The approach to the judicial review of
prosecutorial decisions was subsequently succinctly stated by Lord Bingham and
Lord Walker in Sharma v Brown-Antoine [2007] 1 WLR 780, 788:
‘It is ... well established that
judicial review of a prosecutorial decision, although available in principle,
is a highly exceptional remedy. The language of the cases shows a uniform
approach: ‘rare in the extreme’ (R v Inland Revenue Comrs, Ex p Mead
[1993] 1 All ER 772, 782); ‘sparingly exercised’ (R v Director of Public
Prosecutions, Ex p C [1995] 1 Cr App R 136, 140); ‘very hesitant’ (Kostuch
v Attorney General of Alberta (1995) 128 DLR (4th) 440, 449);
‘very rare indeed’ (R (Pepushi) v Crown Prosecution Service [2004] Imm App R 549, para 49); ‘very rarely’: R (Bermingham v
Director of the Serious Fraud Office [2007] 2 WLR 635, para 63.) In R v
Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 371 Lord
Steyn said:
‘My Lords, I would rule that
absent dishonesty or mala fides or exceptional circumstances, the decision of
the Director to consent to the prosecution of the applicants is not amenable to
judicial review.’
It is apparent that the statutory
language in section 7 is inspired by the principle of exceptionality applicable
in the context of prosecutorial decisions. Section 7 gives statutory
recognition to the common law reticence in the scrutiny of decisions made in
the field of prosecutorial decision-making. The wording lends support to the
contention put forward by Mr Maguire and Mr Perry [counsel for the Director of
Public Prosecutions] that a decision made by the Director under section 1 of
the 2007 Act is intended to fall within the band of prosecutorial
decision-making.”
59.
The appellant contends that there is a fundamental difference between a
decision whether to prosecute and a decision whether to issue a certificate
under section 1 of the 2007 Act. It is submitted that “there is no right not to
be prosecuted unlike the right to be tried by a jury”; that a person facing a
decision as to whether he will be charged has not “had legal machinery or
process instigated against him” whereas the decision to remove the right to
trial by jury occurs when a person has already been charged and is under the
jurisdiction of the court; that an individual under charge has a fundamental
right to trial by jury, which the opposing party, the Director of Public
Prosecutions, unilaterally changes without recourse to the court; that before a
decision to prosecute is made the prosecutor will have given the putative
defendant the opportunity on arrest (by way of caution), or at interview (by
way of caution and questioning), of making representations as to why he should
not be charged; that the decision whether to issue a certificate is statutory
whereas a decision to prosecute is non-statutory; that the difficult area of
public interest is evaluated by the prosecutor when deciding to charge but
there is no public interest component to the issue of a certificate under the
2007 Act; and that a decision to prosecute is a procedural step which is not
adjudicatory of rights, while the decision to remove the right to a jury trial
is adjudicatory.
60.
While some, at least, of these matters point up the differences between
the mechanics of a decision whether to prosecute and a determination that the
trial should take place before a judge sitting without a jury, they do not
signify when one concentrates on the nature of the decision-making process. A
prosecutor faced with the task of deciding whether to initiate a prosecution
must evaluate material not disclosable to the person who might be charged;
similarly, the Director, in deciding whether to issue a certificate, will have
recourse to materials which are not revealed to the person who will be affected
by it. A decision whether to prosecute is dependent on an individual’s reaction
to and judgment on the material available as to the possible outcome of
proceeding; likewise, the Director’s decision on the possible consequences of
proceeding with a trial with a jury. Both decisions may involve consideration
of material which is not only non-disclosable but which may be of a highly
sensitive nature. As Girvan LJ said in para 24 of Arthurs, the parallels
between the two species of decision are obvious. Moreover, it can be no
coincidence that the 2007 Act, in imposing restrictions on the availability of
judicial review adopted the language of Lord Steyn in R v Director of Public
Prosecutions, Ex p Kebilene [2000] 2 AC 326, a decision relating to
the permissibility of challenge to a decision to prosecute.
61.
In any event, I should say that at least three of the appellant’s
vaunted points of distinction are not, in my view, valid. First, the question
of whether the decision is made on foot of a statutory provision or on a
non-statutory basis is irrelevant. Secondly, it is plainly wrong to suggest
that there is no public interest in the determination of whether the trial
should proceed before a judge without a jury. To the contrary, it is a critical
part of the decision about the issue of a certificate that the Director
consider whether the administration of justice would be impaired. This may have
a different focus from the public interest at stake in deciding whether to
prosecute but both decisions plainly call on the prosecutor’s judgment as to
where the public interest lies. Finally, the decision whether to issue a
certificate is no more adjudicatory in nature than is the decision to
prosecute. Neither involves a weighing of competing interests in the sense that
an individual’s wish not to be prosecuted or his wish to be tried by a judge
and jury are pitted against the public interest in ensuring that the
administration of justice is maintained.
62.
In this case, I can conceive of no circumstances which could be said to
be exceptional coming within the use of that term in section 7(1)(c) of the
2007 Act. This is especially so since it is open to the appellant even now to
make representations to the Director of Public Prosecutions. Mr Simpson, on
behalf of the Director, confirmed to this court that if representations were
received, these would be considered.
63.
Of course, the appellant complains that effective representations cannot
be made in the absence of information about the material on which the Director
made his decision and the reasons that he decided as he did. Quite apart from
the statutory prohibition on a challenge to the failure to disclose
explanations other than on the limited grounds contained in section 7(1)(c),
there are two sound reasons that the appellant should not succeed in this
argument. First, in many cases involving the issue of a certificate, information
will have been received by the Director from the police or other members of the
security services which must, for obvious reasons, remain confidential.
Secondly, the nature of the decision that the Director takes, as I have already
explained, will usually be of an instinctual or impressionistic character, not
susceptible of ready articulation.
64.
But the truly important point to make here is that section 1 qualifies,
if not indeed removes, the right to trial by a jury. Hence, the issue of a
certificate does not itself remove the right (it is the statute which has done
that). In reality the issue of a certificate under section 1 partakes of a case
management decision aimed at ensuring the relevant end result of a fair trial.
Viewed from this perspective, it is of obvious importance that elaborate,
protracted challenges to the issue of a certificate under section 1 are wholly
to be avoided, where possible. It is, no doubt, with this consideration in mind
that section 7 circumscribed the opportunity for judicial review challenge.
Such challenges have the potential to undermine the objective of the
legislation to ensure that trials take place in accordance with the
requirements of article 6 of ECHR (both as to fairness and to promptness).
65.
That is not to say that there will never be occasion where some
information can be provided which would assist in the making of representations
by a person affected by the issue of a certificate. I refrain from speculation
as to how or when such an occasion might arise. I am entirely satisfied,
however, that it does not arise in the present case.
Conclusion
66.
The Divisional Court certified the following question for the opinion of
this court:
“Does a true construction of
section 4 of the 2007 Act [this should be condition 4 in section 1(1) of the
Act], namely an offence or offences committed to any extent (whether directly
or indirectly) as a result of, in connection with or in response to religious
or political hostility of one person or group of persons towards another person
or group of persons, include a member of the armed forces shooting a person he
suspected of being a member of the IRA?”
67.
The arguments on the appeal before this court have ranged well beyond
the single issue raised in the certified question and, perhaps inevitably, this
judgment has also dealt with matters outside its scope. But, for the reasons
that I have given, I would answer the certified question, “yes” and dismiss the
appeal.
