HC Deb 05 July 1973 vol 859 cc761-74

Notwithstanding any rule of law or practice to the contrary, the right of peremptory challenge of jurors upon trial on indictment in Northern Ireland shall correspond with and be no more extensive than such right as it is exercisable in the Crown Court in England and Wales.—[Mr. Peter Archer.]

Brought up, and read the First time.

Mr. Peter Archer (Rowley Regis and Tipton)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this we are to take new Clause 3—Jury service—

Her Majesty may by Order in Council make provision in relation to Northern Ireland for purposes corresponding to those provided for in Part II of and Schedule 2 to the Criminal Justice Act 1972 in respect of juries in criminal causes and for the payment by the Ministry of any expenses incurred by virtue of the Order.

Amendment No. 1, in page 2, line 21, leave out Clause 2.

Amendment No. 29, in the Title, line 5, after 'crime', insert: '; to amend the law about qualification for jury service and payments in respect thereof and about challenging jurors;'.

all standing also in the name of the hon. Member for Leeds, South (Mr. Merlyn Rees) and the names of his right hon. and hon. Friends.

Mr. Archer

I can describe the purpose of Amendment No. 1 in one sentence: it proposes to dispense with the erosion of trial by jury. The merits of that proposal have been rehearsed again and again during the passage of the Bill—indeed, to some extent they were rehearsed again in the last debate. I do not propose to repeat them, the House may be relieved to hear.

The Government are aware of our feelings about the proposal to whittle away the right to trial by jury, and we on our part are aware of why the Government propose to take what on the face of it is a startling step. Their reasons were elaborated by the Attorney-General on Second Reading and have been described in detail since. I say to my hon. Friend the Member for Erith and Crayford (Mr. Wellbeloved) that in this case the Government and the Opposition are not necessarily bosom friends—we just understand one another's positions because we have heard them described so frequently. The fact that I do not repeat all our arguments does not reflect any change of view on my part.

New Clause 2 suggests an alternative method of meeting the problems with which the Government are confronted. The same is true of new Clause 3, and Amendment No. 29 is simply consequential on new Clause 2. As I understand it, the Government's case is that they recognise that their proposals infringe the traditional safeguards which, in other circumstances, would be regarded as vital to our liberties and way of life, but that there is no alternative, that the problem of preserving law and order, of saving life and of combating terrorism entails that there is no other way. The form of that argument is in two steps. First, it is vital that those suspected of terrorism should be convicted so that they can be imprisoned; secondly, they are unlikely to be convicted before a jury in present conditions. We have discussed the first step more than once, and I do not propose to say anything about it now.

In Committee my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) and my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) probed at some length the whole structure of the Government's argument and did not receive answers. But again I do not propose to take that kind of analysis any further. These new clauses and amendments are simply concerned with the second step in the argument, and it is that which we wish to explore today.

5.30 p.m.

On Second Reading the Attorney-General suggested that it was impossible. or at least very difficult, to obtain convictions before juries in Northern Ireland because of two things—either they were prejudiced in favour of the accused or they were open to intimidation. Excluding for a moment the absence of evidence of intimidation—we probed into that in Committee—I remind the House that the Attorney-General said that he regarded intimidation as the major of the two problems. He explained the absence of evidence on the thesis that every single juror who has ever been approached with a view to possible intimidation was immediately so intimidated that he made no complaint. I leave that aside also.

But the right hon. and learned Gentleman went on to say that the right of challenge in Northern Ireland is much more widespread than it is in England. He pointed out that each defendant in Northern Ireland has the right to 12 peremptory challenges—that is to say, to challenges without assigning any reason, simply to object to the presence of a juror without further argument. Presumably, the relevance of the point made by the right hon. and learned Gentleman is that the accused can whittle away a jury until he has eliminated anyone who is likely to convict him.

As I understand it, the right hon. and learned Gentleman was saying that there is no similar opportunity open to the Crown to eliminate all those who are likely to want to acquit, because the Crown normally stands by only for the purpose of protecting a juryman. Again, I accept that.

If there were any doubt as to the relevance of that argument, the right hon. and learned Gentleman reiterated it in Committee, at the Committee's sitting of 8th May when he said that he was thinking primarily of situations where the accused was a Protestant. I understood him to be saying that the accused could use his right of challenge to secure an all-Protestant jury. That led to an element of indignation from the hon. Member for Antrim, North (Rev. Ian Paisley) but I do not propose to comment on that debate either. Indeed, this speech will be chiefly remarkable for the number of matters on which I am abstaining from comment.

But let us accept that these are the difficulties and problems with which the Government are confronted. The Opposition say that if the situation leads to difficulties by reason of the present extent of peremptory challenge, surely it is better to limit the right of peremptory challenge than to abrogate the right to trial by jury. To argue that the present right of challenge makes jury trial unworkable and that, therefore, we should abolish jury trial is like arguing that the remedy for tight shoes is not bigger shoes but cutting off one's feet.

Therefore, new Clause 2 proposes that if the problems of jury trial arise from the extent of the right of challenge the proper solution is to restrict the right of challenge. We propose that it should be restricted in accordance with the similar right in this country, set out in paragraph 428A of "Archbold". This provision is, broadly, that each defendant should have the right to seven peremptory challenges. But we would not stick to that figure. If the Government were to say that they could not solve the problem without reducing the right further than that, we, being open-minded on the matter, would not be oblivious to the problem and would attempt to meet them.

The second argument advanced by the Attorney-General is that the burden of litigation on the limited number of people who qualify for jury service in Northern Ireland presents a further problem. He told us that in Northern Ireland it was normal to try civil cases before juries. We would reply that if that is how the problem arises, is it not better to abrogate the right to trial in civil cases rather than to take away the right of defendants to trial in criminal cases? If it will assist to select juries from a wider panel we will listen again to the arguments and go out of cur way to meet the point. That is the purpose of new Clause 3.

What the Opposition are saying is that they are trying to recognise the difficulties. We are certainly not oblivious to the problem of terrorism, and we are as anxious to combat and control it as anyone else. But if those are the Government's problems we want to ensure that their proposals are relevant to the solution. If there is a more acceptable alternative, we propose that alternative. We do not assent to the erosion of these fund-mental rights when there is a more acceptable method of meeting the difficulties. These are steps which should be taken only as a last resort. If we concede every other step in the argument, we do not concede this unless we are convinced that there is no other method of meeting the problem.

The Attorney-General (Sir Peter Rawlinson)

The hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) has said that he recognises the problems. His hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) in an earlier speech, in a rather lofty way if he will forgive me, did not seem to recognise the problems which exist in the Province and in the administration of justice there. The proposals put forward which go to the right of challenge or the removal of the burden of civil litigation on a jury are not sufficient.

The hon. and learned Member for Dulwich said that he had not been given any examples. I gave this information in my Second Reading speech. The hon. and learned Member said that he had read that but was not impressed by it. I will give further examples and opinions and views of the area assistant directors. These are not people sitting in chambers in London or on the benches in the House of Commons. They are engaged in the conduct of prosecutions in Northern Ireland. One of them received a letter bomb, and in the subsequent explosion one of his partners sustained injury. These are the men to whose judgment we should pay attention.

There have been other cases since I spoke on 8th May. I will try not to identify organisations in the examples that I am giving. A man joined an extremist organisation and then changed his mind and wanted no more of it. He was removed from his house by car by three men whom he subsequently identified. He was beaten with a pick shaft. The same three men took him to his house and told him that he had got off lightly. On the clearest evidence that the three accused men had done this there was an acquittal on assault and false imprisonment and disagreement on intimidation.

In another case three men in a car were stopped by the police. Explosives were found in the car. The jury disagreed. Two guns and 30 rounds of ammunition were found in the house of an accused in a district dominated by an extremist group. His defence was that they were needed for protection against another group. He was acquitted. A man was recently fatally shot in a pub. The accused was identified by several witnesses as having fired the shot. The jury did not convict. These are the kind of cases which occur regularly throughout the Province.

Let me give some figures. In the city of Londonderry there is a small panel from which the jury can be drawn. Anyone who knows anything about Londonderry knows that the jurors are very vulnerable. There have been 17 cases involving violence or membership of the IRA. There were four convictions at the beginning of the assizes and then the IRA began challenging. There followed eight acquittals and five disagreements, and there was no conviction for IRA membership despite clear evidence.

There was a verdict of "not guilty" in an attempted murder case, and a disagreement in a case of possession of an unlawful substance. Both of these were, in the opinion of the area director, glaring examples of perverse verdicts. In Armagh there were six cases and no convictions. There were two acquittals by direction and two by verdict. One was a particularly serious UDA case, a double murder, and another was a firearms case. Again in the opinion of the area director the acquittal was "perverse".

In Armagh County Court there were six cases. One was withdrawn from the jury. There were two convictions when persons of one sect were tried by a jury consisting wholly of members of another sect. There were three disagreements with mixed juries. The inevitable conclusion is that mixed juries have a sectarian bias and that neither side is willing to give way.

In the Spring Assizes outside Belfast, in the whole of the Province, of the 91 persons tried only 32 were convicted, about 15 from Antrim. In Armagh and Fermanagh there were 12 persons tried and no convictions. In the city of Belfast from January to 21st June there were 92 cases, 62 convictions, 28 acquittals and two disagreements. That is a conviction rate of 67 per cent. or, taking the number of persons, a conviction rate of 65 per cent. In Belfast city a conviction rate of 79 per cent. is not unknown.

An element in these statistics on conviction is that 47 persons refused to recognise the court. They were IRA violence cases. All such cases which went to a jury resulted in convictions. An artificial element is introduced into these Belfast figures. In considering and assessing the conduct of juries it has to be remembered that non-recognition is likely to carry implications of guilt even to a person doing his very best as a juror.

The conviction rate in the city of Belfast has been achieved only by the Crown "standing by" jurors extensively and trying to obtain jurors from trouble-free and, therefore, usually middle-class areas. In 1972 it was possible to empanel jurors from four-fifths of the Belfast geographic area. By 1973 only half of that area was available because the violence had spread from Andersonstown and Ardoyne into what were called the loyalist areas of north Belfast. This has imposed a tremendous burden on the jurors.

The Crown seeks to get a jury as far removed as possible from pressures which might be brought by the ethnic group to which the accused belongs. That is only fair to the courts and the jurors. Up to 50 per cent. of those on the jury panel apply to be excused from jury service and are so excused. They employ every possible excuse, and that is wholly understandable.

5.45 p.m.

The spread of the violence to previously quiet areas has limited the area from which there can be selected jurors who will be free from fear in carrying out their work. It is, therefore, harder to select a jury. The practice is to omit jurors who come from trouble-beset areas. If that is done there are fewer jurors from whom to draw and there is left only South Belfast. If, contrary to what I shall invite the House to do, the amendment is accepted and the Bill provides for the retention of juries and all terrorist cases are brought to Belfast, it will be necessary for those courts to sit all the time, and it will be impossible to obtain and administer the juries. It is only because of the standby that we have been able to get the conviction rate I mentioned in Belfast.

Each accused has 12 challenges and the prosecution can stand by. If the Crown does not exercise its powers the accused can, through challenges, pack a jury on sectarian lines. Sometimes the Crown has to use this standby process. In one case the Crown used 49 standbys before getting a jury consisting of people who did not come from areas near where the accused lived or the immediate area in which the crime had been committed—and various other considerations. That was a case in which eventually a jury convicted a Protestant of the murder of a Catholic.

Mr. Peter Archer

What the right hon. and learned Gentleman said on Second Reading in April was that the Crown stands by only to protect a juror. Is he saying that that practice has changed since April?

The Attorney-General

No. I am saying that violence has spread. We have to take into account now that more people are likely to be intimidated or likely to sustain injury because of their conduct at the trial. The general practice is for the Crown to stand by those who are acquainted with the accused, those living near him or those who live in the immediate area where the crime was committed. The Crown stands by people whose businesses are vulnerable—publicans, café owners, bookmakers—and people who live in or near the fringe of areas where terrorist activities are based. I will a little later quote what has been said by some area assistant directors about getting a jury. To get a jury consisting of people who will be clear, as far as one can see, from the influences of fear and intimidation, that is what has to be done. The standby of 49 which I mentioned was a unique case but on more than one or two occasions it has been necessary to stand by about 25 persons before a jury has been selected.

Since the office of Director of Public Prosecutions has been established, determined efforts have been made to avoid sectarian standbys by the Crown, but with the accused using their challenges there is no chance of conviction and no chance of a fair trial unless the Crown stands by. New Clause 2 may limit the right of peremptory challenges to the right that exists in England and Wales, but excessive challenges in cases which involve more than one accused may aggravate the present problem although they are not the prime cause of it. The Crown has to retain the right to challenge. To reduce that right would lead to more challenges by the accused and more delays. If there were a limit, the Crown would have to be limited proportionately.

Until recently jury qualifications and the numerical minority of Catholics ensured that juries were predominantly Protestant. That appears from the Diplock Report. In those circumstances it was unlikely that there would be many perverse acquittals against a Catholic accused. Now, the increase of Loyalist violence has brought terrorists on the other side to court, and conditions of possible perverse verdicts have emerged—as I warned the Committee. The same possibility would arise if a predominantly Catholic jury were to try a Catholic accused. There are in mind proposed widenings of jury qualifications to anyone on the electoral roll. That may change the balance of Catholic and Protestant on juries in some cases.

New Clause 3 proposes changes in the qualifications of jurors which would he effected by Order-in-Council. This should be done and will be done, but it is not the solution that is called for in this Emergency Provisions Bill. The same applies with the jury qualifications, which would mean bringing more Protestants than Catholics on to the jury list. That is something that should and will he done.

The House must get back to the question why there are these perverse decisions. If the hon. and learned Member for Dulwich believes that there are not perverse decisions and if he thinks that they are tolerable in the administration of criminal justice, I do not believe that he is speaking with the experience which I know he has in all other fields when he addresses the House.

Mr. S. C. Silkin

I am sorry that the Attorney-General should have made that remark, which is quite unjustified. If I really thought—as he suggested—that there were no perverse verdicts I would not have moved new Clause 1, which deals with that very point, but in a particular rather than a general way. I regret that the figures which the Attorney-General was asked for in Committee were never given.

The Attorney-General

The House listens to the hon. and learned Gentleman with great respect, as I do. when he addresses the House on many matters.

I do not in any way wish to impugn his integrity. I am speaking only of his judgment on this matter. I beg him to have regard to the experience of the assistant area directors who have the duty of trying to administer criminal justice. Perverse decisions come from the fear of reprisals—not necessarily physical assaults. In Londonderry there were four convictions, and then the accused started to challenge and the acquittals and disagreements followed. People are afraid not necessarily of physical assault but that they may be ostracised by the neighbourhood for having behaved in a certain way. That applies not only in the city of Londonderry but elsewhere.

If a Protestant has stood out for the conviction of another Protestant who is standing trial, that fact will become known and he will suffer in the same way as would a Catholic juryman. There is also the fear of being dubbed a traitor or—a term that some hon. Gentlemen will know better—a lundy. That fear is a real one. It arises when a person is not standing up for his own, is not looking after his own but is betraying the group to which he belongs. So long as there are sectarian barriers coupled with the present state of bitterness. violence and disorder, there will be perverse verdicts, and they will arise mostly in important and notorious cases. They are the cases in which one finds disagreements or perverse verdicts.

The effect of these matters on police morale, on the morale of the security forces and, indeed, on any person who is called to give evidence can be imagined. Every perverse verdict is an encouragement to violence.

I wish to quote directly from the reports which I have received from area assistant directors. These directors are members of the staff of the Director of Public Prosecutions; they are drawn from both sides of the sectarian barrier in the community. This is what one of them says: About 90 per cent. of all cases coming for trial to the Commission"— that is, the Belfast City Commission— involve offences relating to firearms, explosives or robberies with a so-called political motivation. Some accused involved in these offences refuse to recognise the Court while many others plead duress as a defence. Duress is a common defence and it is said by the many persons who raise it that in large areas of Belfast law and order is minimal and intimidation rife. This being so, I feel it right to stand by any juror who comes from an area in which terrorists operate or an area bordering it. Intimidation of persons in Protestant areas is now much more frequent and is reflected in the increasing numbers of jurors which I am forced to stand by. Since March 1973 there has been a marked increase in the number of Protestants appearing before the Commission. Indeed, I think there are now more Protestants than Roman Catholics appearing on the so-called political offences. These persons are not involved in any one particular type of offence. Their offences encompass the entire spectrum from murder through explosives, firearms to car hijacking. The area assistant director goes on to say: At the Commission jurors who serve tend to be middle-aged and middle-class but not all male. They are not all drawn from one section of the community although the Protestant accused is at a decided advantage in having his case heard before a jury of his co-religionists. There are so many more Protestants called for service and so many more who live in comparatively peaceful areas. The one feature about the Belfast jury which I suggest is of the greatest importance for the fair administration of justice is its anonymity. Another area assistant director of Armagh says: It is my expectation that in the future a great number of disagreements can be expected from County Armagh juries, even in nonpolitical cases and despite the strongest evidence either for or against the accused…. Despite this, however, it appears that a number of persons who in every way could be regarded as honest citizens were unable as jury members to make a fair decision. The third area assistant director says: The big question is why are Protestants jurors not prepared to convict Protestants who are accused of political-type offences and likewise why are Catholic jurors not prepared to convict Catholic accused persons charged with political offences? He then says: I am of the opinion that the reason is two-fold—first, fear of reprisal and, secondly, fear of being dubbed a traitor (or lundy) in their own communities…. If a Catholic is serving on a mostly Protestant jury and if he fails to disagree, it is quite likely that the other jurors will mention this fact when they are discussing what went on in the jury room. It is not hard to imagine how such information can percolate back to the Roman Catholic juror's own district…. On the other hand, it is even more likely that a Protestant on a mainly Protestant jury who favours a conviction in a political-type of case can confidently fear that his attitude will be bandied about in circles which will ultimately arrive in his district. The area assistant director goes on to say: The Courts are failing in their function…. I have had perverse verdicts before but they were in non-political cases, but recent verdicts have spelt out clearly to me that the jury system is just not working.

6.0 p.m.

Mr. Maginnis

I am sure that the Attorney-General will agree that the big worry in the areas outside Belfast, especially in the county of Armagh, is that it is almost impossible to get anybody for jury service. My information is that people would rather do anything than serve on a jury. I am grateful to the Attorney-General for giving us the figures, and I hope that this will underline to the House the necessity for the measures which he is introducing.

The Attorney-General

My hon. Friend the Member for Armagh (Mr. Maginnis), who knows the situation so well, has correctly said that it is with the very greatest reluctance that people will come forward to serve on a jury. They are afraid of offending somebody and of finding themselves in a position of extreme danger—and not only in regard to themselves but their families or their homes by some form of reprisal. This is the considered opinion of those area assistant directors in Armagh whose comments I have quoted. It is the considered opinion of the Director of Public Prosecutions. He says that if juries are to he dispensed with, it should be done at the earliest possible moment before the Autumn Assizes or the opening of the new City Commission.

I have said ever since the Second Reading of this Bill that I am satisfied that for the proper administration of justice—if that is what this House wants—juries must be abolished for this temporary period. I invite the House to reject these amendments.

Mr. McMaster

My hon. Friend the Member for Armagh (Mr. Maginnis) referred to the situation in his area, and I shall speak of the situation in East Belfast.

In East Belfast we have an area on one side of the river, the dock area, which is predominantly Roman Catholic and more particularly consists of Republicans. It is a very dangerous area. On the other side of the river there is a normal kind of area which, until comparatively recently, has not been the object of violence. But if a person coming from the dock area is charged it is impossible to obtain a jury from his side of the town and, more important, a jury which will arrive at a fair verdict. This is happening because jurors are frightened. I have had complaints from such people.

There is no one in Northern Ireland who is not afraid of what might happen to him. Nobody feels safe. It need not be established that there is direct intimidation of every juror, but a Crown witness can be shot, as indeed one was shot in my own constituency. I refer to a bus driver called Agnew, who was shot within an hour of giving evidence and of speaking to a detective constable.

One realises that it is impossible to protect each individual, but the problem in Northern Ireland is first one of fear. If one seeks to empanel a jury from the same side of town as that from which the accused comes, people are very frightened because they are living in a riotous area of the city. If, on the other hand, one empanels a jury from the other side of the town, that jury is afraid of victimisation. Is it fair that a person should be tried only by a jury consisting almost entirely, if not entirely, of people with opposite religious beliefs?

I submit that it is impossible for the ordinary jury system to work. It is almost impossible to obtain a balanced jury, a jury that is not subject to fear. I am leaving out considerations of intimidation, because what is relevant is the question whether the juries are frightened. A frightened juror is not a good juror. Such a man is afraid of repercussions against himself, his house and his family. There has already been so much victimisation, violence and terror in the past three years that no one feels safe. Everyone recognises that the police and the Army cannot protect every individual 24 hours of the day round the clock.

Mr. Mather

The right hon. and learned Member for West Ham, South (Sir Elwyn Jones) is not unaware of the situation. When he and I were driving round last week during the Assembly election, our car passed the house of a magistrate which had been burned down as a result of this kind of intimidation.

Mr. McMaster

Yes. I can confirm that one magistrate has been killed and that two others have been seriously injured. If it is impossible to protect magistrates and Crown witnesses, how can jurors be protected?

It may be said by some to be an unreasonable fear. But anyone living in Northern Ireland will appreciate it. It is for these reasons, against the background of my own experience of this fear and intimidation, that I advise the House not to accept the amendment.

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