Tuesday, August 14, 2007

Diplock Courts end in Northern Ireland

Diplock Courts - the Courts established after recommendations in 1973 from Lord Diplock to avoid the possibility of jury acquittals in Northern Ireland, have disappeared into history .. although a few no doubt will miss them.

It's a good thing we don't have these in Scotland, despite some members of the Law Society who seem to feel they should be able to hold their own court on the passage of legislation, dispensing with Parliamentary votes ....

The Scotsman reports :

No more sitting as both judge and jury in NI


THE Diplock Courts in Northern Ireland slipped largely unremarked into history at midnight on 31 July. Established on the recommendation of Lord Kenneth Diplock in 1973, at the height of the Northern Ireland Troubles, the courts allowed a judge sitting alone to preside over the conduct of serious criminal cases in which a terrorist connection was suspected.

The many critics of the Diplock Courts regarded their creation as an affront to the administration of justice by dispensing with the participation of a jury. They queried how a judge could fulfil the traditional role of referee as prosecution and defence, present their evidence and authority on matters of law but simultaneously become arbiter of the facts of a case. Nationalists in particular claimed the Diplock Courts were a partisan arm of the British state.

Supporters of the Diplock Courts regarded them as an important demonstration that the prosecution of crime could continue despite intimidation of jurors and witnesses and the reluctance of some jurors to convict members of their own community regardless of the evidence presented before them.

At the peak of their workload in the 1980s more than 350 cases a year were being prosecuted in Diplock Courts. The crimes ranged from the most notorious of the atrocities committed by republican or loyalist terrorists to more mundane matters in which a known paramilitary was accused of involvement. The list of "scheduled offences" was set out in successive Northern Ireland (Emergency Provisions) Acts.

Despite the persistent allegation that the Diplock Courts represented a form of judicial oppression Professor John Jackson of Queens University, Belfast, points out that even at the feverish height of the Troubles Diplock Courts were acquitting 40-45 per cent of defendants before them.

"That was quite a high proportion of cases but is actually a lower percentage than is generally found in jury trials here. Northern Irish juries do tend to acquit!"

Jackson says the Diplock Courts appeared to become part of the scenery relatively quickly. "The real hostility was focused on many of the unsatisfactory sources of evidence that were presented in trials of the time. In the 1970s they were seen as rubber-stamping confessions that were highly dubious. Then there was the 'supergrass' era which equally discredited a succession of trials though it wasn't necessarily the Diplock Courts themselves that were the problem."

The number of Diplock Courts began to fall in the mid 1990s and the downward drift of their caseload kept pace with the slow march of the peace process over the last ten years. The average annual roll of Diplock courts has dropped to 64 since 2001.

Despite the fact Diplock Courts are still the best known feature of the Northern Ireland judicial landscape in recent years, they have been processing fewer than 5 per cent of Northern Irish criminal prosecutions.

Jackson says there has been little excitement about the passing of the Diplock Courts even in Northern Ireland. "In many ways that's a good sign - an indication that the courts are no longer worth rhetoric. Of course, the peace process has been part of it but I think it's also worth noting the improvement in the quality of evidence. The recent Omagh Bomb trial, for example, was about forensics in the same way as any murder trial these days anywhere in the UK."

The Northern Ireland Office says it will not be launching any public awareness campaign about the role and practices of juries because juries have been handling the vast majority of cases for many years.

The Northern Ireland Minister, Paul Goggins, made it clear in bidding farewell to the Diplock Courts that the presumption in future will be in favour of normal jury trials. "A number of commentators, including Lord Carlisle, the independent reviewer of terrorism legislation, have indicated that the system of judge-alone trials has in fact been a fair system, a system in which high standards of justice has been maintained. and where frankly there has been no disadvantage to defendants ... I think we have struck the right balance here and there is a democratic check because parliament will have to renew these powers every two years ."

So in the end was Lord Diplock's legacy good for justice and good for Northern Ireland? It may be that the answer changed by the decade. Jackson says: "At a general level the Diplock Courts probably worked. At least they did no harm. In the 1970s there was evidence of intimidation of witnesses, though probably less intimidation of jurors than was suspected. But there was no getting away from the fact that Northern Ireland is a small community and it was easy to find out who was on a jury. I think it is probably relevant that there have been few cases reviewed by the Criminal Cases Review Commission that were referred for retrial."

The new Justice and Security (Northern Ireland) Act 2007 came into force on 1 August and retains a provision for the Northern Ireland director of public prosecutions (DPP) to issue a certificate in a case where it is felt a non-jury trial is appropriate. Civil liberties groups in Northern Ireland have expressed traditional concerns about retaining the option of non-jury trials at all.

Jackson says: "If the option exists there is still the potential that it will be overused. The discretion is with the DPP and there is no judicial review of his decisions. On the other hand, Dublin decided to retain the Special Criminal Courts in the south. That's another forum with the judge sitting alone, though concern there has been on organised crime cases. And there's a tide in the current UK debate about terrorism and financial crime where the role of juries is being questioned."

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