Clause 7 [Limitation on challenge of issue of certificate]:
Lord Avebury moved Amendment No. 3:
Clause 7, page 5, line 27, leave out “exceptional circumstances” and insert “lack of jurisdiction”
The noble Lord said: My Lords, this amendment is in the name of my noble friend Lord Lester of Herne Hill, with whose permission I move it. We have already dealt with the issues arising on Clause 7 in Grand Committee, so I need summarise them only very briefly.
The clause prevents the ordinary courts entertaining challenges to the DPP’s decision under Clause 1 to certify that a trial is to be conducted without a jury. As the Bill stands, the certificate can be questioned only on grounds of dishonesty, bad faith or other exceptional circumstances, and we relied on the report of the Joint Committee on Human Rights on the Bill to argue that the Government had misread the Shuker judgment on which the clause was said to be based and that Parliament had consistently set its face against statutory ouster clauses. We had the powerful support of the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Trimble, who cited the observation by the Lord Chief Justice, Sir Brian Kerr, in the Shuker case that,
“further grounds of judicial review challenge may be deemed appropriate”.
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However, he added that it would not be,
“helpful, or even possible, to predict what those grounds might be”.—[Official Report, 19/3/07; col. GC 128.]
The noble and learned Lord the Attorney-General explained that the main reason for the clause was that, in issuing the certificate, the DPP would almost always have relied on sensitive human intelligence which he could not reveal but which would certainly be demanded by the defence if a challenge to the DPP’s decision was allowed.
The noble and learned Lord also disputed the JCHR’s reading of the Shuker judgment and drew attention to the quotation, in paragraph 17, by the Lord Chief Justice of a sentence from the judgment of the noble and learned Lord, Lord Steyn, in the case of Kebilene, where the words “exceptional circumstance” were used. That, he told the Grand Committee, was the language that had been picked up for the purpose of this clause.
The first of these arguments was already known to the JCHR; it dealt with it explicitly in paragraph 1.34 of the report. The gist of it was recited in Grand Committee, so I do not need to go over it again. The JCHR welcomed the amendments tabled by the Government following the debates in another place, but it pointed out that the High Court of Northern Ireland had taken on board the sensitivity of the information on which the DPP's decision was based and had still rejected it as an argument for ousting the jurisdiction of the court.
The Kebilene case was not germane to this debate, because the decision of the DPP there was, not to deny a jury trial, but to consent to criminal proceedings before a jury. Incidentally, the words attributed by the Lord Chief Justice to the noble and learned Lord, Lord Steyn, were in fact those ofMr Pannick of counsel. The Lord Chief Justice, followed by the JCHR and the noble and learned Lord the Attorney-General, left out seven crucial words at the beginning of the quotation. The noble and learned Lord, Lord Steyn, said that Mr Pannick had contended that,
“there is a common law principle that”—
I emphasise those words—
“absent dishonesty or mala fides or some other wholly exceptional circumstance, the High Court will as a matter of discretion not entertain judicial review proceedings of a decision to prosecute”.
I therefore suggest to the noble and learned Lord that it is inappropriate to use those words as a model in this context, reading across from a common law principle applying to a decision to prosecute to a statutory rule applying to a decision to deny jury trial. In any case, the noble and learned Lord, Lord Steyn, specifically disclaimed the application of this principle to the Kebilene case. The paragraph in that judgment, following the one just quoted, begins:
“For my part, I would not wish to base my decision on these observations”.
Whether the analogical force of Section 29(3) of the Supreme Court Act 1981, which prohibits an application for judicial review of the decision of the Crown Court judge to refuse to hold a prosecution to be an abuse of process by reason of an alleged breach
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of the convention, extends to the matter under review, as it did in Kebilene, I would not have the temerity to say, but I would like to hear it argued.
No doubt these matters have been covered in the discussions since Grand Committee between my noble friend Lord Lester and the Attorney-General. As I understand it, they were moving towards a compromise under which the clause would be retained but the grounds on which judicial review could be sought would be widened. My noble friend has suggested “other lack of jurisdiction” instead of “other exceptional circumstances”, and we believe that this amendment would bring the clause more into line with accepted judicial principles. It takes full account of the Attorney-General's concerns, which are shared by my noble friends, about the unique circumstances of Northern Ireland, where non-jury trials may still be needed for some time to come and it is undesirable to open the reasons for certifying a case to examination because it would compromise the security of human intelligence.
I fully understand that the Attorney-General may not have had sufficient time to consider this proposal since it appeared on the Marshalled List, but I hope that he will indicate this afternoon that discussions with my noble friend are still in progress and that he is hopeful that a mutually acceptable form of words can be agreed. I beg to move.
Lord Trimble: My Lords, I thank the noble Lord, Lord Avebury, for his reference to me and our discussions in Grand Committee. However, I remain of the opinion that I expressed then: the clause is unnecessary and the Government would be well advised to leave it out. I am sorry to say that I do not see the amendment tabled by the noble Lord, Lord Lester, as particularly helpful. I suspect that it would narrow the scope for challenge rather than extend it as the noble Lord wishes. From a drafting point of view, it would be much better to insert “lack of jurisdiction” as an additional ground rather than take out “exceptional circumstances”. The one good thing that can be said about the clause is the reference to exceptional circumstances, which gives the judges a door through which they can walk if they think that it is appropriate to do so.
Lord Goldsmith: My Lords, I am grateful to both noble Lords and to the noble Lord, Lord Lester. I knew that the noble Lord would not be able to be here today, and I entirely understand.
I should like to get one technical point out of the way. I listened with interest to what the noble Lord, Lord Avebury, said about the Lord Chief Justice of Northern Ireland quoting from the noble and learned Lord, Lord Steyn. I beg to differ with him, however. I have the report with me; on page 371, between letters f and g, the noble and learned Lord, Lord Steyn, says:
“My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review”.
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That is the passage quoted by the Lord Chief Justice of Northern Ireland in the Shuker judgment, not an earlier passage that recites what counsel had submitted. Just to be technical about that, I think that what has been said about the Shuker judgment is correct.
Fundamentally, the issue has been how to produce a situation in which, as I explained in Grand Committee, there would not be an undesirable risk that sensitive intelligence information, on which these decisions are generally based, would have to be revealed. The conversations that I have had outside the House have been very helpful in getting a common view as to the significance of that point and how to deal with it. But the noble Lord, Lord Avebury, is right in saying that I am not in a position today, given the time at which the amendment was tabled, to express a concluded view on it. Therefore, if your Lordships are agreeable, I propose that we accept the invitation of the noble Lord, Lord Avebury, that I should continue to discuss the matter with the noble Lord, Lord Lester. Then the matter can be brought back at Third Reading to be decided one way or the other. It is a slightly unusual approach, but I hope that your Lordships will agree.
Lord Avebury: My Lords, I am most grateful to the noble Lord, Lord Trimble, for his intervention. Iwas advised, technically, that the words “lack of jurisdiction” included exceptional circumstances and were wider. I specifically questioned that point with those who assisted us in drafting the amendment and was assured that it was so.
I am most grateful to the noble and learned Lord the Attorney-General for his assurance that the matter is not closed and can still be the subject of further discussions between my noble friend and himself.
The words that I quoted from the Kebilene judgment were taken from the text available in the public domain on the British and Irish Legal Information Institute (BAILII) website. I am afraid that the paragraph number is not given, so I cannot argue with the noble and learned Lord about which paragraph I am referring to. However, the material point is in the words that I cited:
“there is a common law principle that”,
which precede the sentence quoted in the Shuker judgment. My argument was the substantive one that you could not read across from the common-law principle to a rule of statute as the drafters of this legislation have attempted to do. However, it may be best to leave that matter for the discussions between my noble friend and the noble and learned Lord. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.