Northern Ireland has travelled one year down the uncertain path to peace. In the changing political climate, modifications to the legal process which were effected in response to the Troubles are being stripped of their original justification. As political violence loses its grip, much rethinking needs to be done on the entire legal strategy which was developed to counter its threat.
If features of the legal process are in line for dismantling in the event of lasting peace, then surely the system of non-jury trial in the form of the Diplock courts must be at the front of the queue?
Diplock courts, in which serious criminal cases connected with the Troubles are tried by a single judge sitting without a jury, have been in operation since 1973. In the ensuing years, well over 10,000 defendants have passed through the system, the annual average having dropped from about 1,000 at the peak of the Troubles in the Seventies to about 400 in the early Nineties. These figures represent about a third of all serious criminal cases in Northern Ireland, a statistic in itself revealing of the huge impact of the emergency regime on the legal process as a whole. In the past year, however, the steady flow of cases has become but a trickle, and the non-jury trial has shed that air of permanence which it had acquired through the years.
Is it time to prepare an epitaph for the Diplock regime? We would argue (in true lawyerly fashion) yes and no. First, although the Diplock system has served to process substantial numbers of cases through turbulent times, there is a consensus in both legal and lay circles that jury trial is the ideal format for trying serious criminal cases. In addition, all signs are that the jury system in Northern Ireland itself is running satisfactorily. In the new era it is apt to hark back to the words of William Whitelaw before the introduction of the emergency provisions legislation in 1973: "Given the cessation of violence for political ends in Northern Ireland, the Government will be only too glad to see these provisions brought to an end."
On the other hand, one thing the Diplock system has demonstrated is that trial without jury should not be dismissed as a completely unfeasible method of dealing with high-level criminal work. One word which has appeared increasingly frequently in the context of debates on future political solutions within Northern Ireland is "imagination". Could it be that an imaginative approach to the future of the criminal process might advocate the running of jury and non-jury trials in tandem, but with the latter freed from the shackles of its politicised past?
Of course, it would be wrong to ignore the controversy that has attended the Diplock system since its inception. The courts have been viewed by critics as the mainstay of an emergency regime which many have condemned as an affront to civil liberties. And there have been particular phases during which the courts have reached a zenith in popularity.
In the Seventies, for example, the courts were accused by some of turning a blind eye to dubious police interrogation practices that routinely produced a prosecutor's ticket to conviction in the shape of a confession. In the Eighties, the supergrass era marked the courts' darkest hour. More recently, the blight of the miscarriage of justice has beset the system, with the overturning of three of the convictions in the UDR Four case and the growing unease over the propriety of the convictions in the Casement trials, as highlighted by the BBC's Rough Justice programme a couple of years ago.
These are serious concerns indeed and they must not be taken lightly. In our study of Diplock courts, however, we thought it was important to look at the more routine cases which passed through the system on a daily basis. We were fascinated by the underlying assumption that you could simply take the jury out of the picture and yet the basic shape and character of the criminal trial would remain the same. Some changes were made to the procedure, such as the automatic right of appeal and the requirement on the judge to support a conviction with stated reasons. But beyond that, it was assumed that the judge could simply take on the jury's functions and discharge them along with the traditional judicial role as legal arbiter in the trial.
We were sceptical about this claim. In order to test its validity, we studied closely a series of both jury and Diplock trials in Northern Ireland and we spoke to judges and barristers about their experiences in both kinds of trial. Our work has led us to certain conclusions about what implications follow for the defendant when the jury is absent from the trial.
It has often been claimed that judges become "case-hardened" over time when they are acting as the lone decision-maker. In other words, it is argued, they grow accustomed to accepting prosecution evidence without scrutinising it with enough care, and they get tired of the same old lines of defence put forward day in, day out by defendants. Juries, on the other hand, come "cold" to the evidence and can always take a fresh view of the case on its merits.
In our study, we found that this version of case-hardening was too simplistic to capture the judicial approach. What we found was that judges tend to take a more focused and "legalistic" view of the evidence, which can, at times, work against the defence. Whereas a jury might tend to take a broader view of the merits of a case, some judges told us that they simply could not allow sentiment to get the better of them. As one barrister put it, when this judicial school of hard logic and reason came face-to- face with the defence version of events, the latter would often come off second best. In addition to this is the point that judges might simply be unable, through their own personal experience, to understand how certain defence explanations could possibly be valid.
But there are times when this judicial approach did not operate against the defence. Some barristers even told us that they might prefer to have certain sexual cases dealt with in a cold and unemotional way, which is difficult in a jury trial. There was also a view that judges could see more readily the dangers in eye-witness identification evidence than juries and that they were better able to deal with the complexities of forensic evidence.
Maybe, then, it could be argued that the defendant should have the right in serious cases to choose to be tried by a judge rather than a jury. After all, this is not unknown in other jurisdictions. Most obviously in the United States - which many people regard as the jury's strongest terrain - the accused can choose a "bench trial" (trial by judge alone) in all but the most serious cases. Some thought might also be given to retaining a modified Diplock system for cases with paramilitary connections where it can be shown that the defence has tried to "get at" the jury.
But the assumption that all cases which might have some paramilitary connection should be tried without a jury will need to be reversed if the peace holds. In the absence of an all-pervading threat of political violence, is there any moral ground for distinguishing between the defendant with paramilitary connections in Belfast and the accused with gangland connections in London?
There is a temptation on the part of government in times of social turmoil to resort to measures of an extreme nature. The removal of the jury from the arena of the serious criminal trial in cases arising from Northern Ireland's troubles was one such measure. Conversely, when the turmoil has subsided, the clarion call is raised for all vestiges of an emergency regime to be swept aside in the transition to normality.
In either event, imagination (that word again) is rarely the prime mover behind reform. If Northern Ireland's peace is secured, the opportunity for genuinely new directions in the field of criminal justice should not be squandered. While peace should herald the reaffirmation of jury trial as the norm in all classes of case, a more thoughtfully devised system of trial by judge alone at the election of the accused might be salvaged from the troubled lineage of the Diplock system. In this way, the Northern Ireland legal process might untypically take the lead in the progress of reform on this side of the Atlantic.
Sean Doran is senior lecturer in law and John Jackson is professor of public law at Queen's University, Belfast. Their book 'Judge Without Jury: Diplock Trials in the Adversary System' is published by Oxford University Press.
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