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

The Director of Public Prosecutions may direct a non-jury trial under section 1 of the Justice and Security (Northern Ireland) Act 2007 where the alleged offence is connected, even indirectly, with political hostility and the Director is satisfied that a jury trial risks impairing the administration of justice.

The fundamental entitlement is to a fair trial. The qualified right to jury trial may yield where a judge sitting alone is required to avert a real risk of partisan decision-making.

Section 7 sharply restricts judicial review of a certificate. Absent dishonesty or bad faith, an applicant must establish circumstances which are truly exceptional. The statutory scheme does not ordinarily require advance disclosure, reasons or consultation before the certificate is issued.

The appellant, a former soldier, was charged with attempted murder and attempting to cause grievous bodily harm arising from the fatal shooting of John Paul Cunningham in Northern Ireland in 1974. The Director of Public Prosecutions issued a certificate under section 1 of the Justice and Security (Northern Ireland) Act 2007, directing trial by a judge without a jury because of a perceived risk of jury bias.

The appellant sought judicial review. He disputed the statutory basis for the certificate and contended that procedural fairness required advance disclosure of the Director’s reasons and supporting material, together with an opportunity to make representations. The Divisional Court, Stephens LJ and Sir John Gillen, rejected the challenge in [2017] NIQB 121.

The certified question was whether condition 4 included an alleged shooting by a member of the armed forces who suspected the victim of being a member of the IRA. The appeal also raised the scope of judicial review under section 7 and the procedural obligations attending the certificate.

1. The appeal was dismissed unanimously. Lord Kerr delivered the judgment, with which Lord Reed, Lady Black, Lord Lloyd-Jones and Lord Sales agreed. The certified question was answered affirmatively.

2. Condition 4 in section 1 of the Justice and Security (Northern Ireland) Act 2007 has an intrinsically broad reach. An alleged shooting by soldiers who believed the victim to be a member of PIRA could be an offence committed in connection with or in response to political hostility towards the British Army. The Director needed only to suspect that condition 4 was met and to be satisfied that this created a risk that the administration of justice might be impaired by jury trial. Those requirements were satisfied on the stated reasons: paras 13–14, 20–24 and 47–52.

3. The relevant statutory language was clear. The Explanatory Notes did not confine condition 4 to a narrower conception of sectarian conflict. Parliamentary statements could not place a gloss inconsistent with the clear statutory intention, particularly where the conditions in Pepper v Hart had not been met: paras 18–24.

4. The fundamental entitlement is to a fair trial, rather than an absolute entitlement to trial by jury. Jury trial is the traditional mode for serious offences, but it may itself imperil fairness where partisan loyalties create a real risk of bias. Article 6 of the European Convention on Human Rights and Fundamental Freedoms does not require jury trial. A reasoned judgment and automatic appeal under sections 5(6) and 5(7) provide important safeguards for a non-jury trial: paras 32–40.

5. Section 7 deliberately confines judicial review to dishonesty, bad faith or other exceptional circumstances. The appellant identified no feature truly distinguishing his case from the general class governed by the statute. A certificate decision resembles a prosecutorial decision because it may depend upon sensitive, undisclosable material and an instinctual or impressionistic evaluation of risk: paras 53–64.

6. Procedural fairness did not require advance disclosure of the Director’s reasons or evidence, or consultation before the certificate was issued. Confidentiality and the predictive nature of the assessment may preclude fuller disclosure. Some cases might permit useful information to be supplied, but this was not such a case. The appellant remained free to submit representations, which the Director undertook to consider: paras 62–65.

1. United Kingdom Supreme Court: The court unanimously dismissed the appeal in [2019] UKSC 26 and answered the certified question affirmatively.
2. High Court of Justice in Northern Ireland, Divisional Court: Stephens LJ and Sir John Gillen rejected the judicial review challenge in [2017] NIQB 121. The Supreme Court upheld that decision.