Dennis Hutchings challenged a certificate directing that he be tried without a jury on charges arising from the fatal shooting of John Paul Cunningham during an army patrol he commanded in 1974. The Supreme Court held that the Director of Public Prosecutions had acted within the wide powers in the Justice and Security (Northern Ireland) Act 2007 and that the limited grounds for challenging such a certificate were not made out. It therefore dismissed the appeal.
The appeal concerned a certificate issued on 20 April 2016 by the Director of Public Prosecutions for Northern Ireland under section 1 of the Justice and Security (Northern Ireland) Act 2007. It directed that Dennis Hutchings stand trial before a judge sitting without a jury on charges of the attempted murder of John Paul Cunningham and of attempting to cause him grievous bodily harm. The certificate was issued without prior notice, without an opportunity for representations, and without disclosure of the underlying material. Hutchings learned of it only on 5 May 2017.
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The shooting and the later investigations
The charges arose from a fatal shooting by a soldier during a patrol in Northern Ireland in 1974. The prosecution alleged that Mr Hutchings had fired at a man who was running away. The judicial review concerned how the charges could be tried; it did not determine what happened at the shooting.
The Director considered the evidence against the background of the security situation at the time and the continuing risk to the administration of justice in trying the case before a jury.
The statutory conditions
Section 1 allows the Director to certify a non-jury trial if he suspects that one of four conditions is met and is satisfied that there is consequently a risk that the administration of justice might be impaired if the trial were conducted with a jury. Condition 4 applies where 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. Those persons need not include the defendant or a victim. Section 7 permits a court to question the issue of a certificate only for dishonesty, bad faith or other exceptional circumstances, including lack of jurisdiction or error of law. Sections 1 to 7 apply to offences committed before the Act came into force.
Lord Kerr, with whom Lord Reed, Lady Black, Lord Lloyd-Jones and Lord Sales agreed, stressed the breadth of the power. The Director need only suspect that a condition is met. The decision may be instinctual or impressionistic and may rest on unverified intelligence, suspicion or experience rather than hard evidence. Given the Provisional IRA’s hostility to continued British rule, the recent nearby incident and the level of local activity, it was unsurprising that the Director suspected a connection with that hostility. That the soldiers who fired suspected Cunningham of belonging to the Provisional IRA seemed inescapable.
Why condition 4 was satisfied
Hutchings argued for a narrow construction, relying on explanatory notes and ministerial statements said to confine condition 4 to sectarian conflict between communities. The Court held that the statutory language was clear, so recourse to the notes was unnecessary. In any event, the notes linked “sectarianism” to religious belief or political opinion and were wide enough to cover this case. The ministerial statements answered particular concerns and did not exhaust the power or alter its plain meaning.
If the soldiers fired believing Cunningham to be a member of the Provisional IRA, the alleged offences were in connection with or in response to the political hostility of members or suspected members of that organisation towards those who believed Northern Ireland should remain part of the United Kingdom. The Director averred that this was his suspicion. He was also satisfied of the statutory risk, having considered In re Jordan’s Applications and In re McParland. Those cases emphasised the formidable difficulty of excluding bias, including the effect of what was described as tribal loyalty, in security and terrorist-type cases. A majority verdict and restrictions on information about jurors might reduce, but would not remove, the risk of a partisan result. The Director’s concern was bias, not tampering.
The Court treated that breadth as a necessary response to the difficulty of securing a fair trial in highly charged cases involving the security forces. Jury trial is traditional, but it is not the only fair mode and may itself endanger fairness. Article 6 of the European Convention on Human Rights does not require a jury. A non-jury trial under the Act still requires a reasoned judgment and carries an automatic appeal on fact as well as law. Fairness also involves the interests of a victim’s family and the public. Hutchings did not claim that trial by a judge alone would be unfair.
Whether the provision is read broadly or strictly, its wording gives the Director a wide reach. Any view he expressed about the intended breadth of interpretation was immaterial: his stated reasons show that the same decision would have followed on a narrow reading. A letter of 10 May 2017 and his affidavits explained that police information, analysis of the circumstances and senior counsel’s advice founded his suspicion, and that he considered screening, sequestration and a change of venue insufficient to remove the risk of a biased juror or jury. He accepted that a soldier was not himself part of a sectarian divide or proscribed organisation, consistently with the statute’s statement that the relevant persons need not include the defendant.
Reasons and prior representations
The main procedural argument was that Hutchings should have received the reasons and material beforehand and been allowed to make representations. Section 7 makes such a challenge exceptional. A right to jury trial, which may be circumscribed by express legislation, does not itself create exceptional circumstances under a statute enacted to permit non-jury trial. Nothing truly distinguished this case from the general run, and there was neither lack of jurisdiction nor an error of law.
The decision resembles a decision whether to prosecute. Both commonly depend on sensitive, non-disclosable material and on a personal judgment about risk and the public interest in the administration of justice. Section 7 reflects the established reluctance to review prosecutorial decisions except in highly exceptional circumstances. Differences in the formal mechanics do not change that character. Representations could still be made and would be considered, but disclosure was not required: security information often cannot be revealed, and an impressionistic assessment may not be readily articulated. The statute itself qualifies the availability of jury trial; issuing the certificate is directed to securing a fair and prompt trial. Although information might be supplied in some other case, the Court was satisfied that this was not such a case.
Verdict: The Court unanimously dismissed the appeal. Condition 4 could cover a soldier shooting someone he suspected of IRA membership. The procedural objections also failed, so the certificate for a non-jury trial stood.
