In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland)

This appeal concerned the lawfulness of a certificate issued under section 1 of the Justice and Security (Northern Ireland) Act 2007 directing that the appellant's trial proceed before a judge sitting without a jury. The Supreme Court held that condition 4 in section 1(6) (offences committed in connection with or in response to religious or political hostility) can include a member of the armed forces shooting a person he suspected of being a member of the IRA, and that the Director of Public Prosecutions acted within the wide powers conferred by the statute.

The court further held that the statutory restriction on challenges in section 7 (permitting review only for dishonesty, bad faith or other exceptional circumstances such as lack of jurisdiction or error of law) meaningfully circumscribes judicial review of the issue of a certificate; the appellant had not shown exceptional circumstances warranting further relief, and there was no failure of jurisdiction or error of law in the Director's decision. The court therefore dismissed the appeal.

The appellant, Dennis Hutchings, was charged with attempted murder and attempted grievous bodily harm in relation to a shooting in 1974. In 2016 the Director of Public Prosecutions for Northern Ireland issued a certificate under section 1 of the Justice and Security (Northern Ireland) Act 2007 directing that the trial be conducted without a jury. The appellant sought judicial review of that decision.

The issues before the court included:

• Whether condition 4 in section 1(6) of the 2007 Act (offences connected with religious or political hostility) can properly be engaged where a soldier shot a person he suspected to be a member of the PIRA;
• Whether the Director acted within the powers conferred by section 1 when he concluded that there was a risk the administration of justice would be impaired if the trial were to be conducted with a jury; and
• Whether the appellant was entitled to disclosure of the material and reasons on which the Director relied and to be consulted before the certificate was issued given the limits on review in section 7.

The court reviewed the statutory text of sections 1, 5, 7 and 8(3) of the 2007 Act and relevant authority on jury bias and the scope of judicial review of prosecutorial decisions. The court concluded that the statutory language of condition 4 is wide enough to cover the circumstances of this case: if the soldiers who fired genuinely suspected the victim of being a member of PIRA, that suspicion sufficed to bring the alleged offences within condition 4. The Director's decision that there was a risk to the administration of justice from a biased juror or jury, having regard to the relevant precedent (notably the Court of Appeal in Jordan), was plainly one he was entitled to reach on the material before him, and he acted within his statutory powers.

On the procedural point, the court held that section 7 restricted the available judicial review to limited grounds and that the appellant had not established the exceptional circumstances necessary to require disclosure of the Director's confidential material or to permit a full review. The court emphasised the special character of the Director's decision (often instinctive, based on sensitive material) and the public interest in avoiding protracted challenges that would defeat the statutory aim of securing fair and prompt trials. The Divisional Court's certified question was answered in the affirmative and the appeal was dismissed.

Appeal dismissed. The court held that condition 4 of section 1(6) of the Justice and Security (Northern Ireland) Act 2007 can include a soldier shooting a person he suspected of being a member of the PIRA; the Director of Public Prosecutions acted within the wide statutory powers when he issued the certificate after considering police material and counsel's advice; and the constraints on judicial review in section 7 meant the appellant had not shown the exceptional circumstances required to challenge the decision or to require disclosure of the Director's material.

Appeal to the Supreme Court from the Divisional Court (Stephens LJ and Sir John Gillen) in Northern Ireland: [2017] NIQB 121. The Supreme Court answered the certified question and dismissed the appeal: [2019] UKSC 26.