High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Background to the 2007 Act

"As the Diplock arrangements are not used elsewhere in the United Kingdom, their continued use in Northern Ireland requires that differences unique to Northern Ireland be demonstrated. The existence of organised paramilitary groups is clearly the major factor. While organised gangs in Great Britain may pose a serious threat, the problem in Northern Ireland is exacerbated by the relatively small community and the control the paramilitaries seek to exert over it through intimidation and so called punishment beatings and shootings. In a small community people are aware of who is on jury service. Paramilitary groups can still exert great influence over the communities and until that wanes, people in those communities will be potentially open to intimidation.

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Since the perception of intimidation is in many ways as serious as actual intimidation, consideration would also need to be given to public confidence building. As Lord Diplock observed, 'a frightened juror is a bad juror even though his own safety and that of his family may not actually be at risk'."

"In order to ensure that disqualified persons do not sit on juries, I suggest that the Court Service be given the authority and responsibility to obtain checks on the criminal records of all selected for jury service. If anything of concern were to appear, it should be given to the judge and presented to the parties as anonymised information for discussion in court. In addition, judges and advocates in each case, as is common already, would be able to prepare short case specific questionnaires for jurors where appropriate. Peremptory challenges, prosecution stand-by and access by the parties to the details of persons on the jury panel would no longer be necessary and should be removed. The ending of defence peremptory challenges in the courts of England and Wales has not diminished the integrity of the jury system."

"Challenge for cause would be exactly as in England and Wales now. They can arise where a juror is seen to behave badly, or to be wearing an inappropriate badge or other sigil, or where a juror expresses to the judge some concern about the trial or their own position. Anonymity would deprive the defence of nothing that names provide in England and Wales. The challenge position would be the same as here at present. Names add nothing significant."

•    Information about the jury panel should not be provided to the defence;

•    Information about the jury panel should be given to a police unit unconnected to the case to enable additional checks to be carried out within defined guidelines;

•    Guidelines should be developed to set out the circumstances in which those checks might be carried out;

•    An additional jury check could only be requested by a police officer of sufficient rank and had to be authorised at a suitably senior level;

•    The prosecution should retain the right of stand-by where information has come to light that calls into question the suitability of a particular person to serve on a jury;

•    The exercise of the right of stand-by must be authorised at a suitably senior level;

•    The defence right to peremptory challenge should be abolished;

•    The right to challenge for cause should remain;

•    Jurors should remain anonymous and balloting of jurors should take place by number only.

"As far as the issue of equality of arms is concerned, it is considered that any imbalance is acceptable and does not breach Article 6 human rights principles. The right to trial by jury in itself is not a guaranteed right. The prosecution are under a duty to act with absolute propriety in every case and will only exercise their right of stand-by in future where in accordance with the Attorney-General's guidelines, information comes to light suggesting that a juror is not suitable for jury service. Both parties will retain the right to challenge for cause. It is considered that this arrangement best serves the requirements of the justice system.

Having considered carefully the equality of arms issue we concluded that to abolish this right should not, in principle, compromise in any way the defendant's right to a fair trial. Such rights as the defendant may enjoy in this respect will continue to have adequate protection in the perpetuation of [challenge with cause] and the diligent and impartial exercise by the trial judge of his supervisory duties. Moreover, in so far as any counterbalancing is required, this will surely be provided by the introduction of restrictions on [the exercise of stand-by]. Even in the absence of significant restrictions on the exercise of this Crown right, the fairness of the trial should not be jeopardised for the reasons provided by the Court of Appeal in Regina v McKinney viz, the obligation on the Crown to act with absolute propriety and the obligation of the court to intervene to ensure that appropriate standards of propriety are observed. This will obviously be reinforced still further if guidelines on the exercise of this right are promulgated."

"If this provision [abolition of the right of peremptory challenge] 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."

The Attorney General's guidelines

1. The principles which are generally to be observed are (a) that members of a jury should be selected at random from the panel, subject to any rule of law as to right of challenge by the defence, (b) the correct way for the Crown to seek to exclude a member of the panel from sitting as a juror is by the exercise in open court of the right to request a stand-by or, if necessary, to challenge for cause, and (c) no class of person may be treated as disqualified or ineligible other than those identified by the Juries (Northern Ireland) Order 1996

2. Parliament has provided safeguards against jurors who may be corrupt or biased. In addition to the provision for majority verdicts, there is the sanction of a criminal offence for a disqualified person to serve on a jury. The omission of a disqualified person from the panel is a matter for court officials following a search of criminal records.

3. There are, however, certain exceptional types of case of public importance for which the provisions as to majority verdicts and the disqualification of jurors may not be sufficient to ensure the proper administration of justice. In such cases it is in the interests of both justice and the public that there should be further safeguards against the possibility of bias and in such cases checks which go beyond the investigation of criminal records may be necessary.

4. These classes of case may be defined broadly as (a) cases in which national security is involved and part of the evidence is likely to be heard in camera, and (b) cases involving terrorism that are not the subject of a certificate by the Director of Public Prosecutions for Northern Ireland under section 1 of the Justice and Security (Northern Ireland) Act 2007.

5. The particular aspects of these cases which may make it desirable to seek extra precautions are (a) in security cases a danger that a juror, either voluntarily or under pressure, may make an improper use of evidence which, because of its sensitivity, has been given in camera, (b) in both security and terrorist cases the danger that a juror's political beliefs are so biased as to go beyond normally reflecting the broad spectrum of views and interests in the community to reflect the extreme views of sectarian interest or pressure group to a degree which might interfere with his fair assessment of the facts of the case or lead him to exert improper pressure on his fellow jurors.

6. In order to ascertain whether, in exceptional circumstances of the above nature, either of these factors might seriously influence a potential juror's impartial performance of his duties or his respecting the secrecy of evidence given in camera, it may be necessary to conduct a limited investigation of the panel. In general, such further investigation beyond one of criminal records made for disqualifications may only be made with the records of police Special Branches or security services and no general inquiries are to be made save to the limited extent that they may be needed to confirm the identity of a juror about whom the initial check has raised serious doubts.

7. No further investigation, as described in para. 6 above, should be made save with the personal authority of the Attorney General on the application of the Director of Public Prosecutions for Northern Ireland and such checks are hereafter referred to as 'authorised checks'. When the Chief Constable or Deputy Chief Constable PSNI has reason to believe that it is likely that an authorised check may be desirable and proper in accordance with these guidelines he should refer the matter to the Director of Public Prosecutions as soon as possible. The Director will make any appropriate application to the Attorney General.

8. The result of any authorised check will be sent to the Director of Public Prosecutions. The Director will then decide, having regard to the matters set out in para. 5 above, what information ought to be brought to the attention of prosecuting counsel.

9. No right of stand-by should be exercised by counsel for the Crown on the basis of information obtained as a result of an authorised check save with the personal authority of the Attorney General and unless the information is such as, having regard to the facts of the case and the offences charged, to afford strong reason for believing that a particular juror might be a security risk, be susceptible to improper approaches or be influenced in arriving at a verdict for the reasons given above.

10. Where a potential juror is asked to stand by for the Crown, there is no duty to disclose to the defence the information on which it was founded; but counsel may use his discretion to disclose it if its nature and source permit it.

11. When information revealed in the course of an authorised check is not such as to cause counsel for the Crown to ask for a juror to stand by but does give reason to believe that he may be biased against the accused, the defence should be given, at least, an indication of why that potential juror may be inimical to their interests; but because of its nature and source it may not be possible to give the defence more than a general indication.

12. A record is to be kept by the Director of Public Prosecutions of the use made by counsel of the information passed to him and of the jurors stood by or challenged by the parties to the proceedings. A copy of this record is to be forwarded to the Attorney General for the sole purpose of enabling him to monitor the operation of these guidelines.

13. No use of the information obtained as a result of an authorised check is to be made except as may be necessary in direct relation to or arising out of the trial for which the check was authorised.

1. Although the law has long recognised the right of the Crown to exclude a member of a jury panel from sitting as a juror by the exercise in open court of the right to request a stand-by or, if necessary, by challenge for cause, the abolition by section 13 of the Justice and Security (Northern Ireland) Act 2007 of the defence right to peremptory challenge makes it appropriate that the Crown should assert its right to stand by only on the basis of clearly defined and restrictive criteria. Derogation from the principle that members of a jury should be selected at random should be permitted only where it is essential.

2. It is fundamental to the principles of fairness in selecting a jury that (a) the members of a jury should be selected at random from the panel, subject to any rule of law as to right of challenge by the defence, and (b) no class of person may be treated as disqualified or ineligible other than those identified by the Juries (Northern Ireland) Order 1996.

3. Primary responsibility for ensuring that an individual does not serve on a jury if he or she is not competent to discharge properly the duties of a juror rests with the appropriate court officer and, ultimately, the trial judge. Current legislation provides, in Articles 10 and 11 of the of the Juries (Northern Ireland) Order 1996, fairly wide discretions to excuse or discharge jurors either at the person's own request, where the judge is satisfied there is good reason why he should be excused, or where the judge determines that on account of physical disability the person would not be capable of acting effectively as a juror.

4. The circumstances in which it would be proper for the Crown to exercise its right to stand by a member of a jury panel are: (a) where a jury check authorised in accordance with the Attorney General's guidelines on jury checks reveals information justifying exercise of the right to stand by in accordance with para. 9 of the guidelines and the Attorney General personally authorises the exercise of the right to stand by; or (b) where a person is about to be sworn as a juror who is manifestly unsuitable and the defence agree that, accordingly, the exercise by the prosecution of the right to stand by would be appropriate. An example of the sort of exceptional circumstances which might justify stand-by is where it becomes apparent that, despite the provisions mentioned in para. 3 above, a juror selected for service to try a complex case is in fact illiterate."

The relevant statutory provisions

Article 6 of ECHR

"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…

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(3) Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b. to have adequate time and facilities for the preparation of his defence;

c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

The parties' arguments

"The second question arising from a possible limitation of the right to challenge is whether the limited information which is presently available to the defence concerning those included on the jury panel would need to be supplemented. Otherwise, it may be said that the defence would have little upon which to base any possible challenge for cause. One possibility which we have considered would be a return to the position which existed until 12 years ago when the names, addresses and occupations of prospective jurors were listed."

"… Article 6 does not specify trial by jury as one of the elements of a fair hearing in the determination of a criminal charge"

"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."