Tag: trial

Trial with no Jury Upheld (UKSC)

On 6 June 2019, the UK Supreme Court ruled, unanimously, in the case of In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26, that trials with no juries could continue for terrorism-related offences committed in Northern Ireland during the Troubles. The Court held that juries were neither indispensable for securing a fair trial, nor required under the European Convention on Human Rights.

Trials with no juries were introduced in Northern Ireland by the Northern Ireland (Emergency Provisions) Act 1973 in response to a report prepared in 1972 by Lord Diplock. They came to be known as Diplock trials and continued until 2007. Diplock trials were meant to ensure that defendants guilty of terrorism-related offences could not escape punishment because of biased juries. In 2007, the Justice and Security (Northern Ireland) Act 2007 effectively abolished Diplock trials but allowed the Director of Public Prosecutions for Northern Ireland to bring back this mode of trial on an exception basis.

Under section 1 of the the Justice and Security (Northern Ireland) Act 2007, a trial without a jury can take place where “there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury” (s1(2)(b)), “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” (s1(6)) and there is no evidence of bad faith or dishonesty (s7(1)(a)&(b)). Such a trial also cannot violate the defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights (s7(2)).

The Applicant in In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26, Mr Hutchings, commanded a patrol of Life Guards regiment of the British Army in 1974 which routinely engaged in combat against the Provisional Irish Republican Army. On 15 June 1974, a Life Guards patrol encountered a man, Mr Cunningham, who seemed startled and, seeing the patrol, climbed a gate into a field and started running away. Mr Hutchings, together with two other members of the patrol, pursued the man and after shouting a number of commands to stop, Mr Hutchings and another soldier fired shots at Mr Cunningham who, as a result, was killed. Subsequently, it turned out that Mr Cunningham had limited intellectual capacity, was unarmed and was running towards his home.

In 2015, following a review, Mr Hutchings was charged with the attempted murder and the Director of Public Prosecutions for Northern Ireland certified his case under section 1 of the the Justice and Security (Northern Ireland) Act 2007 as appropriate for a trial without a jury. Mr Hutchings filed a Judicial Review challenging this decision and the case eventually reached the Supreme Court.

On the relationship between a fair trial and juries, the Supreme Court ruled:

“34. It is important to focus on the need for a fair trial. Trial by jury is, of course, the traditional mode of trial for serious criminal offences in the United Kingdom. It should not be assumed, however, that this is the unique means of achieving fairness in the criminal process. Indeed, as the Court of Appeal’s statements in Jordan show, trial by jury can 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.

“35. So-called Diplock trials took place in Northern Ireland between 1973 and 2007. No one suggests that this mode of trial failed to deliver fairness of process, by reason of the fact that the trial took place before a judge sitting without a jury. Although Article 6 of ECHR (which guarantees a right to a fair trial) is not prayed in aid by the appellant in this case, it is interesting to reflect that it has been held that this article does not require trial by jury. As the European Commission of Human Rights observed in X and Y v Ireland (Application No 8299/78) (1980) 22 DR 51, para 19, “… Article 6 does not specify trial by jury as one of the elements of a fair hearing in the determination of a criminal charge”.

“36. It is, of course, to be remembered that the system of trial introduced as a result of Lord Diplock’s report (Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland (1972) (Cmnd 5185)), required the trial judge to give a reasoned judgment if the defendant was convicted. And that a defendant, upon conviction, was entitled to an automatic right of appeal, not only on points of law but on the factual conclusions reached and inferences drawn by the trial judge. These remain features of trials without a jury since the 2007 Act – section 5(6) and (7).

“37. The statement made by Lord Judge CJ in R v Twomey [2010] 1 WLR 630 at para 10 (relied on by the appellant) that, “[i]n this country trial by jury is a hallowed principle of the administration of criminal justice … properly identified as a right, available to be exercised by a defendant unless and until the right is amended or circumscribed by express legislation” must be viewed against this background. In the first place, although the Lord Chief Justice described entitlement to trial by jury as a right, he did not suggest that this was an absolute right; indeed, he accepted that it could be constrained in certain circumstances…”

Diplock trials were introduced at the time when the UK was struggling with biased juries refusing to convict defendants guilty of violent offences committed as part of a religious unrest in Northern Ireland. Interestingly, a similar struggle took place in the 50s and 60s in Southern States in the US where all white juries often refused to convict defendants guilty of violence against African-Americans. However, the US Federal Government, unlike the UK Government, was not in the position to interfere with jury trials as this would have been contrary to the principle of federalism and would have also violated a constitutional right to being tried before a jury guaranteed by Article Three of the Constitution as well as the 6th Amendment (applicable to States by virtue of the 14th Amendment). Instead, the Federal Government often tried defendants acquitted in State Courts in Federal Courts on other charges, such as ‘violation of civil rights’. The UK Government, on the other hand, was never constrained by a written constitution and was able to introduce trials without juries to address the problem of biased jurors. In fact, biased juries is not the only reason a trial without a jury can take place in the UK. Apart from trials involving terrorism-related offences committed in Northern Ireland, trials without juries are also allowed in the UK in complex fraud cases and where there is a risk of jury tampering (sections 43-44 of the Criminal Justice Act 2003).

Right to Counsel during Police Questioning Limited (ECtHR)

On 23 May 2019, the European Court of Human Rights ruled 6-1, in the case of Doyle v Ireland (App. no.: 51979/17), that the European Convention on Human Rights did not guarantee the right to have a lawyer physically present during police questioning. In doing so, the Court followed a new approach to Article 6 of the European Convention on Human Rights and refused to be influenced by American jurisprudence such as the famous case of Miranda vArizona, 384 U.S. 436 (1966).

The case of Doyle v Ireland (App. no.: 51979/17) concerned a murder suspect who was apprehended by the Irish Police and subjected to multiple rounds of questioning. Before the first questioning and in between the later rounds, he was allowed consultation with his solicitor. Further consultation with the solicitor was also allowed during an interview via telephone which caused the interview to be paused. However, the solicitor was not allowed to be physically present during questioning itself. During the trial for murder, the Applicant sought to exclude the confession made during questioning on the grounds that he was denied the right to legal assistance. A judge, without a jury, allowed the confession to be admitted in evidence and the Applicant was eventually convicted. On appeal, the Irish Supreme Court held that the Applicant’s argument for an absolute rule of presence of a lawyer rested almost entirely on the reasoning of the US Supreme Court in Miranda vArizona, 384 U.S. 436 (1966) and had no support in Irish jurisprudence.

The argument before the European Court of Human Rights was twofold. Firstly, the Applicant argued that the lack of access to a lawyer during questioning rendered the whole trial unfair within the meaning of Article 6(1) and, secondly, that it breached also his specific rights under Article 6(3) of the Convention. However, relying on the 2018 case of Beuze v Belgium (App. no.: 71409/10), the Court deemed it appropriate to consider the claim under one heading of the fairness of the trial:

71.  Compliance with the requirements of a fair trial must thus be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1.

72.  According to the Court, those minimum rights guaranteed by Article 6 § 3 are, nevertheless, not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Beuze, cited above, § 122, and Ibrahim and Others, cited above, §§ 251 and 262 with further references).”

Employing what it described as a ‘very strict scrutiny’, the European Court of Human Rights found (at paras [79]-[99]) that the overall fairness of the proceedings was maintained despite a limited access to legal assistance because:

  • the Applicant, as an adult native English speaker, was not a vulnerable person;
  • questioning rounds were not excessively long;
  • extensive breaks were allowed during questioning;
  • access to lawyer by phone or, at times, in person, was allowed on request;
  • the Applicant was physically and mentally strong throughout questioning;
  • there was no ill-treatment of the Applicant;
  • the applicant was able to challenge the use of the statements made during his questioning before the trial court;
  • the Applicant had the opportunity to re-argue the admissibility of the statements on appeal before the Court of Appeal and the Supreme Court;
  • the Applicant’s conviction was not based solely on the statements made during questioning;
  • the Applicant was convicted by a jury which had seen videos of his questioning;
  • the Applicant was notified of his rights on arrest.

Consequently, the majority of the European Court of Human Rights held that there was no violation of Article 6 of the European Convention on Human Rights. However, Judge Yudkivska submitted a dissenting opinion, where she argued that Beuze v Belgium (App. no.: 71409/10) had been incorrectly decided and the Majority Opinion was building on its ‘unfortunate legacy’ (para [B]).

Judge Yudkivska further argued (at para [B]) that the Court should follow the 2008 case of Salduz v Turkey (App. no.: 36391/02) and its line of reasoning:

Salduz thus seemingly advanced a test whereby if an applicants access to a lawyer has been restricted and there is an absence of compelling reasons to justify that restriction, the proceedings will be irreparably prejudiced and therefore there will be a finding of a violation of Article 6. Accordingly, in accordance with (what I consider to be the “correct” interpretation of) Salduz, the Court ought to have determined that, due to the absence of any compelling reasons to justify the applicants restricted access to a lawyer (paragraph 84), there has been a violation of Article 6 §§ 1 and 3 (c) in this case.”

Judge Yudkivska also pointed (at para [B]) to the relationship between the jurisprudence of the European Court of Human Rights and other Courts:

“…The Salduz jurisprudence on the right to have access to a lawyer (including to have a lawyer present during interrogations), with its clear prohibition of blanket restrictions, was followed in subsequent cases and is supported by a number of international instruments and case-law (see for example, CPT/Inf (92)3-part1[6]; [CPT/Inf (2011) 28]CPT/Inf(2011)28-part1[7]; E/CN.4/1998/39/Add.4[8]; and Miranda v Arizona384 US 436 (1966)).”

Finally, Judge Yudkivska concluded (at para [C1]) that “…the above interpretation of Salduz would result in a more fair and just conclusion in the present case – namely an automatic finding of a violation due to the absence of compelling reasons to justify the restrictions on the applicants right of access to a lawyer…