A previous post looked at the on-going case of former soldier Dennis Hutchings - Northern Ireland - talking Points (30 October 2018)
Mr Dennis Hutchings (now aged 78) served with the Life Guards Regiment in Northern Ireland. He is facing trial
for attempted murder, in 1974, of John Paul Cunningham and also for attempted grievous bodily harm - BBC News 10 May 2018.
In April 2016, the DPP of Northern Ireland ordered a trial without a jury under the Justice and Security (Northern Ireland) Act 2007. Mr Hutchings unsuccessfully challenged this decision in the Northern Ireland courts - see [2017] NIQB 121. In July 2018 the Supreme Court granted permission for an appeal.
On 6 June 2019, the Supreme Court unanimously ruled against Mr Hutchings - Supreme Court's judgment and Press summary
The allegations:
In 1974, there was much terrorist activity in Northern Ireland, a large part of which was generated by the Provisional Irish Republican Army (“PIRA”). On 13 June 1974, members of the Life Guards regiment of the British Army, under the command of the appellant, found a group of men loading material into a vehicle. A firefight ensued and arms and explosives were discovered in the vehicle.
On 15 June 1974, a Life Guards patrol, also led by the appellant, was travelling on a road about 3.5 miles from the location of the firefight. They saw a man, Mr Cunningham, who appeared startled and confused. Mr Cunningham climbed a gate into a field and ran towards a fence. The appellant ordered the patrol to halt and three members, including the appellant, pursued Mr Cunningham. After shouting a number of commands to stop, the appellant and another soldier fired shots and Mr Cunningham was killed. It later transpired that Mr Cunningham had limited intellectual capacity, that he was unarmed, and that he had been running towards his home. In 2015, the appellant was charged with the attempted murder of Mr Cunningham and with attempting to cause him grievous bodily harm.
Relevant law:
The Justice and Security (Northern Ireland) Act 2007 section 1(2) provides that the DPP may issue a certificate for trial without a jury if he (a) suspects that any of the relevant conditions are met and (b) is satisfied that in view of this there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. Condition 4 is defined by section 1(6) of the Act:
“Condition 4 is that the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons.”
Section 7(1) of the Act reads: “No court may entertain proceedings for questioning (whether by way of judicial review or otherwise) any decision or purported decision of the Director of Public Prosecutions for Northern Ireland in relation to the issue of a certificate under section 1, except on the grounds of – (a) dishonesty, (b) bad faith, or (c) other exceptional circumstances (including in particular exceptional circumstances relating to lack of jurisdiction or error of law).”
Mr Hutchings was not made aware of the issue of the certificate until 5 May 2017 - that is, for over a year after the certificate was issued. He challenged the DPP’s decision to issue the certificate by way of judicial review. He was unsuccessful before the High Court in Northern Ireland but the court certified the question of whether a true construction of condition 4 included a member of the armed forces shooting a person he suspected of being a member of the IRA - (the certified question).
The appellant (Mr Hutchings) also sought to challenge the DPP’s decision on procedural grounds, arguing that he should have been provided with the reasons that the DPP was minded to issue a certificate and with the material on which the DPP's consideration of that question was based. Mr Hutchings also claimed that he should have been given the opportunity to make representations on whether a certificate should have been issued in advance of any decision on the matter.
Safeguards in the Act:
The 2007 Act provides for trial without a jury but it contains two particular requirements.
Section 5(6) requires the judge to give a reasoned judgment. A jury is not required to give reasons for its verdict.
Section 5(7) gives a statutory right of appeal against conviction, on any ground, without leave. There is also an appeal against sentence passed on conviction, without any requirement for leave, unless the sentence is fixed by law (as it is for murder).
Supreme Court judgment:
The judgment was delivered by Lord Kerr with whom Lord Reed, Lady Black, Lord Lloyd-Jones and Lord Sales agreed. In simple terms, the certified question was answered YES - a member of the armed forces was within the scope of Condition 4. Nevertheless, as Lord Kerr pointed out at para 66, the arguments ranged well beyond the scope of the certified question "and, perhaps inevitably, the judgment dealt with matters outside its scope."
Lord Kerr first set out the background to the case [paras 1 to 11]. It is worth noting that the DPP had originally decided not to prosecute the case [para 8]. The matter was subsequently investigated by the Historical Enquiries Team (HET) which recommended no further action. In 2015 the Legacy Investigation Branch conducted a further review and Mr Hutchings was then charged following a "no comment" interview under caution.
Lord Kerr's judgment also broadly describes the tense situation in Northern Ireland as it was in 1974. Plainly, an understanding of this context is likely to be crucial when considering the actions of members of the forces who, on a daily basis, were faced with the possibility of dangerous encounters with paramilitaries.
The statutory provisions are considered from para 12. Lord Kerr commented upon the wording that the DPP need only suspect that a relevant condition is met and he only has to be satisfied that there is a risk to the administration of justice. The DPP's decision could be "instinctual" or "impressionistic" or "intuitive belief rather than studied analysis of evidence" [14].
At [15] Lord Kerr turned to the Act section 7 - "(1) No court may entertain proceedings for questioning (whether by way of judicial review or otherwise) any decision or purported decision of the Director of Public Prosecutions for Northern Ireland in relation to the issue of a certificate under section 1, except on the grounds of - (a) dishonesty, (b) bad faith, or (c) other exceptional circumstances (including in particular exceptional circumstances relating to lack of jurisdiction or error of law).
Lord Kerr said that the “other exceptional circumstances” referred to in section 7(1)(c) of the Act are not specified, but they must take their flavour from the preceding provisions and the succeeding words which particularise “lack of jurisdiction and error of law”. These are clear indications that the full panoply of judicial review superintendence is generally not available to challenge decisions under section 1 - [para 16]. Furthermore, there was no need to consider the Explanatory Notes to the Act or the ministerial statements referred to by the appellant because the language of the relevant statutory provisions is clear [20] & [24].
It should not be assumed that trial by jury is the unique means of achieving fairness in the criminal process. Lord Kerr said that trial by jury could in certain circumstances be antithetical to a fair trial and the only assured means, where those circumstances obtain, of ensuring that the trial is fair is that it be conducted by a judge sitting without a jury.[34]. Further, although trial by jury has been referred to as a right, it is not an absolute right. Moreover, the right has been restricted by the express provisions of the Act and must yield to the need to ensure that a trial is fair [37].
Although it was argued that the DPP erred in stating that section 1(1) should be broadly interpreted, this was irrelevant so long as (a) he acted within his powers and (b) any misapprehension was immaterial to the decision he took. On the facts of this case, it was clear that the DPP was bound to have made the decision even if he had considered that section 1 had to be construed narrowly [44]. As to whether he acted within his powers, the DPP took proper steps to allow him to consider whether he suspected that condition 4 was met [47]. He also addressed whether there was a risk that the administration of justice would be impaired and his conclusion was entirely unsurprising [48].
As to the procedural argument, section 7 expressly provides that a judicial review challenge is only admissible on grounds of bad faith, dishonesty, or other exceptional circumstances. This was not a case of bad faith or dishonesty [54]. The appellant claimed that the case was within the “exceptional circumstances” category because of the fundamental right to a jury trial but the fundamental right was to a fair trial. The case was not an exceptional one, particularly in the context of a statute whose purpose is to prescribe the circumstances in which someone can be denied the right to a jury trial [55]. There are no circumstances in this case which could be said to be exceptional within the terms of section 7(1)(c) of the Act [62].
Mr Hutchings lost his appeal and is therefore likely to be tried without a jury though it remains open to him to make further representations to the DPP - see para 62.
Should Mr Hutchings be tried at all?
This was NOT a question before the courts in this appeal. There is a strongly held view that the prosecution of this elderly man is unfair given the treatment received by many convicted individuals who were released from prison under the terms of the 1998 Good Friday Agreement in which it was stated that - "Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners, including transferred prisoners, convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences (referred to hereafter as qualifying prisoners). Any such arrangements will protect the rights of individual prisoners under national and international law."
There is certainly anger over the pursuit in this way of ex-service personnel - e.g. Express 12 May 2018 and see the Report by the Defence Select Committee 25 April 2017. The report stated that -
"the overall process of investigations into fatalities in Northern Ireland has been deeply unsatisfactory. The instability of the investigatory bodies, the limited resources and manpower provided to them, and continuing question marks over the independence of the investigations has delivered a vicious cycle of investigation and re-investigation that fails both former service personnel and the families of those who died."
The report put forward possible options to remedy the sitaution - (see para 25).
A contrasting opinion by Kieran McEvoy (Queen's University Law) is at The Guardian 11 May 2018. Although some have argued for an "amnesty" for troops it is also argued that it would be wrong for the State to adopt a process to shield from legal process those who acted on behalf of the State. An amnesty could validate a culture of impunity.
Prosecutions have been brought since 2011 in respect of conflict-era offences and, as at May 2018, Police Service of Northern Ireland figures show the police to be investigating 530 republican-linked killings, 271 loyalist-linked and 354 security force-linked deaths.
The case may also be viewed alongside the fact that "letters of assurance" were issued to so-called "on the runs" who will not face prosecution - Law and Lawyers 26 February 2014. However, as was confirmed by Lady Justice Hallett in her review of this scheme, these letters simply confirmed to recipients that there were no current charges or evidence against them. Unlike an amnesty, they did not rule out a future prosecution if evidence emerged.
Northern Irish background to trial without jury:
The non-jury trial system in Northern Ireland is still often referred to colloquially as "Diplock Courts." Non-jury trial for certain "scheduled offences" was introduced into Northern Ireland in 1973 following a report by Lord Diplock.
In 2007, a new form of non-jury trial was introduced under the Justice and Security (Northern Ireland) Act 2007. This form of trial is intended to be a temporary arrangement - see this consultation - but it was continued until the end of July 2019 by the Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non Jury Trial Provisions) Order 2017. Current plans are for a further extension until 31 July 2021 - see Draft legislation.
A note on R v Twomey:
Lord Judge CJ at para 10 said -
"In this country trial by jury is a hallowed principle of the administration of criminal justice. It is properly identified as a right, available to be exercised by a defendant unless and until the right is amended or circumscribed by express legislation. The constitutional responsibilities of the jury are, however, flouted if "the integrity of an individual juror, and thus of the jury as a whole, is compromised. Such a compromise occurs when any juror, whether because of intimidation, bribery or any other reasons, dishonours or becomes liable to dishonour his or her oath as a juror by allowing anything to undermine or qualify the juror's duty to give a true verdict according to the evidence". (per Lord Bingham CJ in R v Comerford [1998] 1 Cr App R 235 or [1997] EWCA Crim 2697 ).
Addendum 19 October 2021 - the death of Dennis Hutchings was reported - BBC News. The death was due to Covid. Mr Hutchings was standing trial (without jury) for attempted murder and causing grievous bodily harm. The alleged victim was John Pat Cunningham who was shot in 1974.
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