The below piece by Jamie Bryson first appeared in the Irish News on 25 November 2016:
On 16 November the Secretary of State announced a consultation on the potential to further extend the use of non-jury trials in Northern Ireland. This legislative mechanism came to fruition in 2007.
The April 2003 joint-declaration clearly gave commitments to repeal the Northern Ireland- specific parts contained within Section VII of the Terrorism Act 2000.
And, in 2006, the Government announced they were to phase out the use of Diplock courts. There are two issues that arise from the provisions the Secretary of State is now reviewing. The first is whether- in the context of a ‘Fresh Start’- that such emergency provisions are still required to deal with terrorist-related offences, or whether this draconian practice actually strengthens dissident republican terrorism by bestowing upon them a ‘political’ status, rather than simply dealing with them as criminals.
The second issue is how this provision has been used in cases in which no terrorist related charges have been brought, and a certificate has been issued simply on the basis of ‘soft intelligence’, which given Section 7 of the Act cannot be challenged by or within a court.
There is also an argument around at which stage Article 6 of the Human Rights Act becomes engaged and whether the mode of trial falls under the protections of Article 6, namely “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Given that the prosecution alone make the decision to issue a certificate, removing one of the basic tenets of British justice- to be tried by a jury of your peers- how can this be described as an ‘independent and impartial tribunal’?
I believe the answer to both the aforementioned issues, which are generally related but distinct points of debate, is that there is a clear and compelling case for an end to non-jury trials per se.
If there was any jury tampering then the Criminal Justice Act 2003 has provisions to allow for the suspension of a jury trial. This should be sufficient.
In the case of terrorism related charges I believe that that bestowing conflict-related provisions upon dissident republican terrorism is actually bolstering their propaganda efforts to present their actions as being politically motivated, rather than simply criminal.
Most seriously, however, is what I believe is prosecutorial overreach in terms of issuing non-jury certificates, on the basis of uncorroborated ‘soft intelligence’ that wouldn’t reach either a civil or criminal evidential threshold, for charges totally unrelated to terrorism.
A political fresh start cannot go hand in glove with a regressive policing and justice strategy.