In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26

In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26, the Supreme Court dismissed the appellant’s appeal against the decision of the Director of Public Prosecutions for Northern Ireland to certify that his trial should proceed without a jury.

Mr Hutchings was charged with the attempted murder and attempted grievous bodily harm of John Paul Cunningham, who had been shot and killed by members of an army patrol in June 1974 near Eglish, County Tyrone. Mr Hutchings was the patrol commander. The prosecution case was that Mr Cunningham, a young man with limited intellectual capacity, appeared startled when the patrol rounded a bend, ran across the road and climbed into a field, and was then pursued by soldiers who fired when he failed to stop. The Historical Enquiries Team concluded that Mr Cunningham was unarmed, was running towards his home, was shot while running away from the soldiers, and presented no threat. At the time, the area was subject to intense terrorist activity by the Provisional IRA. Two days before the shooting, members of Mr Hutchings’ regiment under his command had been involved in a firefight with men loading arms and explosives into a vehicle. A 1974 investigation had resulted in no prosecution, but in 2015 the Legacy Investigation Branch reopened the matter and Mr Hutchings was charged. In April 2016 the Director issued a certificate under section 1 of the Justice and Security (Northern Ireland) Act 2007 directing that the trial proceed before a judge sitting without a jury. The appellant was not notified of the certificate until May 2017, over a year later. He challenged the lawfulness of the certificate by way of judicial review.

Section 1 of the 2007 Act empowers the Director to issue a certificate for non-jury trial if he suspects that one of four specified conditions is met and is satisfied that in consequence there is a risk that the administration of justice might be impaired if a jury were empanelled. Condition 4, relied upon in this case, is that the offence was committed to any extent (directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group towards another. Section 7 provides that no court may entertain a challenge to the Director’s decision except on grounds of dishonesty, bad faith or other exceptional circumstances, including lack of jurisdiction or error of law. Section 8(3) applies these provisions to offences committed before the Act came into force. The Director gave reasons for his decision in a letter dated 10 May 2017 and in two affidavits. He stated that he had formed the requisite suspicion on the basis of information from the police, commentary on that information, an analysis of the facts and circumstances, and the advice of senior counsel. He suspected that the offence was committed in connection with or in response to the political hostility of members or suspected members of PIRA towards those who believed Northern Ireland should remain part of the United Kingdom. He was satisfied that there was a risk that the administration of justice might be impaired if the trial were conducted with a jury, having regard to the possibility of a biased juror or jury in the particular circumstances of the case. He took into account the decisions in Jordan’s Application and McParland’s Application, which had emphasised the formidable difficulties in eliminating the risk of bias in security and terrorist-type cases, the need to confront tribal loyalties, and the importance of reducing such risk to a remote or fanciful possibility. He considered whether the risk could be mitigated by screening, sequestering or transferring the venue, and concluded that these measures would not be sufficiently effective.

The appellant contended that the Director had exceeded his powers under section 1 by misinterpreting the statutory provisions too broadly. He relied on Explanatory Notes which referred to “sectarianism” and suggested that condition 4 was designed to cover strife between different communities in Northern Ireland, not the circumstances of this case. He also relied on ministerial statements during the passage of the Bill and on the statement in Arthurs’ Application that statutory restrictions on the right to jury trial must be strictly construed. Lord Kerr rejected these arguments. He held that the language of section 1 was clear and that recourse to the Explanatory Notes was unnecessary. The breadth of the Director’s power was immediately apparent: he need only suspect that a condition is met and that there is a risk of impairment, and the type of decision is often instinctual or impressionistic rather than based on hard evidence. The circumstances covered by condition 4 are extremely wide, extending to offences committed to any extent, even indirectly, in connection with or in response to political hostility. The PIRA campaign was based on political hostility to British rule. If the soldiers suspected Mr Cunningham to be a member of PIRA and fired on that basis, the offences would be in connection with or in response to that political hostility, and if the Director suspected that to be so, the first requirement of section 1(2) was met. The second requirement was likewise fulfilled if the Director was satisfied that there was a consequent risk of impairment. Even if condition 4 required strict construction, the intrinsic breadth of the powers remained intact and the Director acted within those powers. The reasons he gave made clear that he had followed faithfully the wording and essence of the statutory provisions. His reference to the possibility of jury tampering did not vitiate his decision; the risk he identified was plainly that of a biased juror or jury, and it was prudent for him to examine every possibility, including sequestration, before concluding that only non-jury trial would avert the risk.

The appellant’s principal argument was that he should have been given reasons and the material on which the Director’s consideration was based, and that he should have been afforded an opportunity to make representations before the certificate was issued. Lord Kerr rejected this procedural challenge. Section 7 sets a high threshold: only bad faith, dishonesty or other exceptional circumstances permit judicial review. The appellant’s reliance on the fundamental right to jury trial was insufficient to make his case exceptional, particularly in the context of a statute whose very purpose is to prescribe circumstances in which that right may be denied. The fundamental right is to a fair trial, and the appellant did not claim that trial by a judge without a jury would be unfair. Such trials had been conducted in Northern Ireland between 1973 and 2007 without any suggestion of unfairness, and section 5(6) and (7) of the 2007 Act provide for a reasoned judgment and an automatic right of appeal on both law and fact. The decision whether to issue a certificate is not founded exclusively on the evaluation of hard evidence; it will usually be motivated by sensitive information which cannot be disclosed and is of an impressionistic and instinctual variety. The court drew an analogy with decisions whether to prosecute, which are subject to highly restricted review because they likewise depend on an individual’s reaction to material, much of which may be non-disclosable and sensitive, and involve judgment as to the public interest. The Director’s decision plainly calls on his judgment as to where the public interest lies, namely whether the administration of justice would be impaired. The decision is not adjudicatory in nature; it partakes of a case management decision aimed at ensuring a fair trial. Section 1 qualifies or removes the right to trial by jury; hence the issue of a certificate does not itself remove the right but gives effect to the statute. Elaborate, protracted challenges have the potential to undermine the objective of ensuring that trials take place in accordance with article 6 of the European Convention on Human Rights, both as to fairness and promptness. In this case there were no exceptional circumstances within the meaning of section 7(1)(c). It remained open to the appellant to make representations to the Director, who confirmed that any representations received would be considered, although effective representations could not depend on disclosure of confidential material or reasons of an impressionistic character. The court refrained from speculation as to whether there might be occasions when some information could be provided to assist the making of representations, but was entirely satisfied that this was not such a case.

In short, the Director acted lawfully in issuing the certificate under section 1 of the 2007 Act on the basis that he suspected the offence was connected with or in response to political hostility within the meaning of condition 4 and was satisfied that there was a risk of jury bias, and the appellant was not entitled to reasons or an opportunity to make representations before the certificate was issued.

R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956
Pepper v Hart [1993] AC 593, [1992] 3 WLR 1032, [1993] 1 All ER 42, [1993] ICR 291
R v Twomey [2010] 1 WLR 630
re Adams [2001] NI 1
DPP Ex parte Manning & Melbourne [2000] 3 WLR 463, [2001] QB 330
Sharma v DPP [2006] UKPC 57, [2007] 1 WLR 780
R v Inland Revenue Comrs , Ex p Mead [1993] 1 All ER 772
R v Director of Public Prosecution s, Ex p C [1995] 1 Cr App R 136
R (Pepushi) v Crown Prosecution Service [2004] Im m App R 549
Director of Public Prosecution Ex Parte Kebeline [2000] 2 AC 326