The Hon.

MrJustice Butgess

It is a great honour to have been

whatever help

asked

to visit your great country, and to be able to offer

can in relation to various aspects

of the criminal justice system. I should

say that

not only is it as great honour to be hete, but there is considerable jealousy among my superiors
and peers in the United Kingdom that

intend to add when

boast when

I have been asked to visit Pakistan, a jealousy to which I

back about this opportunity of a lifetime to see and explore

this wonderful country.

It is a truth universally acknowledged that a nation with good justice but bad security is unlikely
to last long, and the same is true, but for a different reason, that a nation with good security but
bad justice is unlikely to last

long. But while

enemies

ruthless, the common law recognises that while

it

of the state are both covert and totally

may requke reinforcement, justice requires

adherence to fundamental legal principles and human rights.

For a century UK anti terrorism law was remarkably consistent. Tenorists were prosecuted

as

corunon criminals when they committed criminal acts, and thtou$h proscription were otherwise
prevented from organising, publicising

since 2000 represented

because

ot funding their activities. Counter terrorism legislation

a sea-change. The UI( sought to introduce pre-emptive

it perceived terrodsm

as a threat that renders a number

measures,

of eadier security strategies to

large extent obsolete. And so a distance was drawn between special anti terrorism measures and
the ordinary system designed for what we call 'ordinary decent criminals', since counter

may be concerned both

reducing the chance

terorism

with the criminal justice aim of bringing individuals to trial, but also

of terrorism by

measures such as stop and search and arrest, extension

of

pre-charge detention, deportation and the seizing and freezing of assets.

Terrorism is something which we in Northern Ireland have experienced for many years. I hope
there are matters that

I can pass to you over the future for your

consideration arising from those

experiences, and whete our ptactices can add to your deliberations.

To understand something of our system and experiences requires some background to Northern

Ireland. It is geogaphically

part of the island of Ireland lying on the far North rWest boundary

of Europe. Ireland itself has a land mass of about 85,000 sq. k., and N. Ireland represents about

t/+

of

that

say 25,000

sq/km. - just short of your land mass of 770,000 sq. k. The population

of Northem Ireland is 1.8 million, again falling just short of your population of 187 million.
This small scale has,
inwolwed

believe, some consequences, not least that most

in the judiciary

knov.z each other, often'*x'ell.

if

not all of those

With sorne exceptions this is generally

beneficial.

In addition to knowing our judicial colleagues it is also a fact that the general legal fratemity

has

to a very high degree attended school and university together, and have had a high degree of
contact throughout their years of legal private practice. This also has the benefit of being able,
easily, to speak to and consult with the ptofession on a friendly basis when problems have arisen
andf

or change is being considered. That easy access to consultation and dialogue allows for

views to be considered before final decisions are made - the final decision of course being made

by the judiciary.

It

also often allows each to understand the problems and difficulties

of

the

others. At a very basic level the ability of counsel to contact a judge to explain a diary clash
between two courts (and dare

timetabling

if

suggest

on occasion more than two courts) can allow for re-

the court agrees, which can allow others involved to be advised and not

inconvenienced.

In this way

find that structures are more easily constructed and managed. However those

structures must always reflect what we, the judiciary, consider necessary for the proper operation

of our legal system and the delivery of an efficient, timeous and fair process particulady around
criminal law. However perhaps small is beautiful.

Until 1921 Ireland was part of the UK. In 1920 there was passed the Govemment of Ireland
Act, under which the island was partitioned, and in

l92l Northern

Ireland came into being. It is

formed by 6 counties of what were formedy 9 counties of the province of Ulster. That panition
was not universally accepted and since 1927 therc has been violence at different lernels, arising

from the determination on the patt of some to unite the island, and those determined to remain
part of the United
shaped many

Kingdom. This violence to which I will refer to further in a moment

of the aspects of the Present legal system.

It is not my proper role to comment on matters political, so I record that in the late 1960s
were a series

has

there

of events that sparked the outbreak of widespread violence, bombings, shootings,

punishment beatings

in

communities, which continued

until 1998, when the Good Friday

Agreement was signed. Unfortunately while the vast majority of those who were until then the
main protagonists signed up to this new dispensation, there remain those who remain wedded to
violence

1970's

in the pursuit of their aims. And so many of our structures designed from the

to meet the

existence today

consequences

- although

1970 saw the emergence

Such was the level

of that

early

eatlier violence, and security concerrrs, remain in

much has changed for the better.

of the Provisional Irish Republican Army and so called loyalist groups.

of violence that the community was on the bdnk of civil war. In 1972 the

Northern Ireland Padiament was prorogued and direct rule from Westminster took over. The
British Army was deployed, with the then RUC continuing to provide police senrices, which
included engagement with terrorists. The violence of loyalists tended to be scattergun mainly

Catholics. P I R A violence was directed not iust at

and city centres. Anything that was seen as connected to the

aimed at republican targets and Roman

military targets but businesses

apparatus

of the

State rvas also a target. Therefore the judiciary were seen as legitimate targets as

were courthouses. To reflect that small scale to which

engaged

have referred, the number of Judges

with the criminal justice system, and therefore with those arrested for terrorist related

offences on both sides

of the conflict,

was relatively

small. The three

tiers

of the Supreme

Court (to include the Crown Court), the County Court and the Magistrates would
amounted to no more than 100

- within which were about 30 judges

have

actually taking the trials. In

the 1970s t'wo Magistrates and t'wo County Court Judges were murdered and in 1987 a Lord

of Appeal and his wife were murdered. The daughter of another Magistrate
murdered when her father was attacked leaving his place of worship. The magistrate

Justice

wounded but

survived. Other

attacks were thwarted

in one

was

was

case when the Judge checked

under his car and discovered the bomb that had been placed there.

To meet these emerging challenges there was a review of the conduct of trials in the early 1970s
carried out by Lord

Diplock. His proposal of non-jury courts was accepted. The

reasons given

were that judes could be intimidated, and concems that verdicts could be patisan.

While essentially the procedures in a jury trial ate mirrored in a non-jury trial, there are some
important exceptions. The first is that

if

an issue arises before or during the trial relating to

material prejudicial to the defendant, great efforts are made to ensure the trial judge does not see
that matedal. This is achieved in a number of ways:

If

A.

the defendant were to make an application for bail, the trial judge will not be the judge

who deals with that application as he will invariably have to consider material telating to
previous convictions or allegations which may be in admissible during the trial;

Preliminary applications relating for example to bad character evidence, or disclosure,

B.

will be dealt with by a judge other than the trial judge, and that other judge will supervise
editing

of the trial

judge's papers before they go

to the trial judge - to ensure that no

prejudicial material is contained in them;

If

C.

issues arise about such matters dudng

the trial, the trial procedures have

developed informally by the judges, and are now embodied

been

in the rules of court, that

require the other judge (that is other than the tdal judge) to deal with them. These rules
apply to disclosure as well. This is to ensure the trial judge does not see material or hear
evidence that he should not see or hear, whether inadvetendy or deliberately; and

If, notwithstanding

D.

he

will

these procedures, the trial judge sees such material, almost invariably

discharge himself, and the trial

will restart from the beginning before another

judge.

When the evidence and legal submissions have been completed, the trial judge is required to give

the reasons for his decision. He will almost invadably reserve his decision, and then must
produce a detailed written judgement. In this he will rehearse the evidence and the submissions,

setting out the relevant legal principles and giving his reasons

for accepting or rejecting

the

evidence. This judgement invariably is lengthy.

In

a jury trial a defendant who wishes

judge

of the High Court. If

leave

to appeal has to get permission (leave) to do so from

is refused the defendant may appeal against that

refusal.

However in a non-jury case the defendant has an automatic right of appeal - leave is not

required. The substantive appeal will follow the same form irrespective of whether

the

conviction was in a jury trial or non-jury trial. A further appeal may be brought to the Supreme

Court

if a point of public importance

is certified and

difference in non-jury or jury cases at this stage.

if permission

is given. There is no

Finally the procedures in relation to sentencing and the sentencing powers of the court are the
same whether the trial was non- iury or

with

a jury.

Outwith the introduction of non-jury trials, security arrangements were put in place for judges
and courthouses. The judges' security differed between the tiers mainly on the grounds that the
Supreme Court and Crown Coutt judges heard the trials, with the Supreme CourtJudges hearing

the most serious. For Supreme Court Judges there was 24 hours security provided by (a) police

officers in attendance at all times, including in the courtroom, (b) static posts for the police in
the gounds

of the judges' home, (c) and considerable

cameras, safe tooms and sensors

same security affangements

of

security measures at the home such

in the grounds of the house. For Crown Court Judges

as

the

cameras etc. were provided at their homes and they had police

coutt. For Magistrates the level was

in ftst bail applications, the more focussed

protection at all times from when they left home and in

somewhat lower given their involvement was only
cover and protection being at the courts.

The level of security is constandy addressed. Therefore some 3 years ago Magisftates' cover was
increased, but security at judges' homes was removed and there was a relaxation

of time police cover was given - always for work related movefnents but
social events.

It must be said that there is a constant

of the amount

less often

in around

tension between the judges' views on what

should be provided and the views of the authorities. Thete ate a series of levels of risk and just
recendy that has been reduced to 'moderate'.

believe

decisions based on ingslligence are susceptible to attacks

it fair to say that

judges views are that

of which there is no intelligence

iudges remain a target for what are now known as 'dissident

that

terrorist'- that is those who did not

embrace the Good Friday agreement. This is an issue which

will run and run. However what

can be said is that since the death of Lord Justice Gibson and his wife there have been no other

injudes or death.

And just as security has been revisited so also has the structure of non-jury trials. Undet the
Diplock legislation non-jury trials were automatic for a range of offences set out in the schedule

to the legislation (therefore the references to 'scheduled offences), unless a particular

'de-scheduled' by the Attorney General, with the result

it was heard with a jury. By

case was

the Justice

and Security (Northem Ireland) Act 2007 all cases are now heard with juries, but the Director

Public Prosecutions
by Judge

of

our Prosecutor General - can certify that a particular tdal should be heard

alone. \,flhile it was argued during the course of the passage of this legislation that the

DPP should have to give reasons to a court as to why it should proceed in this manner, this
proposal was not accepted. There is therefore no judicial oversight as

to the

issue

of

the

certificate. Attempts have been made to judicially review some decisions, none has been
successful.

These changes

in the non-jury legislation and the approach to

violence as a weapon, culminating in the signing

agreement represented years

creation

of a system of

of negotiation

security reflected reductions in

of the Good Friday Agreement of 1998. This

and work directed towards reconciliation and the

govemance that would gain the confidence

of all sections of

our

community.

I referred earlier to the decrease in non-jury trials. In 1994,1,228 defendants were

such trials, 55.88 percent of whom pleaded

gullty. 28.5 percent

dealt with in

pleaded not guilty and were

found guilty, while 12.62 per cent were acquitted. The percentage of acquittals in contested
ca'ses

was therefore 30.69 percent. By 1982, 792 persons were dealt with in non-jury trails. 666

pleaded goilty, that is 84.10 per

5.56 per cent were found not

cent. 10.35 per cent pleaded not guilty and were convicted with

guilty. The acquittal rate in contested

cases was therefore 34.92

percent. In fact the percentage of acquittals of those who had pleaded guilty over the years has
been around 31 and 53

percent. I should perhaps in

passing comment that my view is that the

high rate of guilty pleas teflected the quality of investigations and the proper deployment of new
investigatory forensic tools. Faced u'ith that level of results of that investigation process, pleas
were more certain.

The number of cases has as I have said declined steeply. In 2008, 2009 and 2010 the number
non-jury trials were 29, 77 and 12 respectively

of

evidencing the reduction in violence and the

new approach to certifying offences as terrorist related, and therefore requiring a judge alone

trial. Such trials now represent a srnall fraction of the cases before the courts.

The Good Friday Agreement also provided for a Criminal Justice Review which reported in
2000. The driving force behind this was to engender public confidence in all aspects of the
system. Such confidence encouraged citizens to engage in all aspect of the system. The Review

had a wide brief

to

address the structures, management and resources

elements of the criminal justice system.

of publicly

Of intetest to us was the work aimed at:

funded

Setting up a single independent prosecuting authority'qdth sole responsibility to formalise

and determine what,

if

any, charges should be taken forward; with responsibility of the

oversight of the process from the date of the defendant being charged by the police up

to the trial; the appointrnent of a local Attorney General (and the powers the Attorney
should have); and the creation

of an inspectorate to monitor the performance of

that

Service.

That the legislation envisaged as the vehicle for those proposals that were accepted
should have a Declaration on the Independence

of

the Judiciary and the provision

resources to allow the Judiciary to discharge their obligations; the setting up of

Appointments Committee free from political influence, with

of

Judicial

judicial majority (including

the appointment of the Chief Justice as Chair) and appointments made on merit; the
provision of a Judicial Studies Board aimed at the training of the judiciary; and the
creation

of a Law Reform Commission

headed by a High Court Judge with a Counry

Court Judge as Vice Chairman. Hitherto there had been a Law Reform Advisory
Committee which addressed proposed changes

in civil law - not criminal law.

The

Commission would, inter alia, address criminal law.

That as soon as possible the oversight of the justice system should be devolved to the
newly created Assembly in Northem Ireland that was provided for in the Good Friday
Agreement.

promised earlier to retum briefly

to the

legislation enacted

to

address the new counter

terrorism strategy. Rather than set out the details within this paper, I have prepared an appendix
(attached to the paper) setting out some

of the relevant provisions and aims of the legislation.

This will allow you to look at them in your own time. I hope you find them helpful. As you will
see they are

not with criticism both from outside the judicial system, but all by judges.

CONCLUSION

Our present system has of course as its foundation the common

law.

The substantive law in

respect of offences and of evidence remain grounded in the legal framework of England, Wales
and Northem Ireland. Scotland has sornewhat different legal system based as

it is on the civil

law ftaditions. However many of our laws and theit application have been tested in the heat

of

that terrorist campaign, and many issues arising from them have found their way before the
former House of Lords and the European Court. The tenorist campaign has therefore informed
and shaped both out lives and out cdminal legal system for over 40 years.

It

is a system under

scrutiny not iust by the Assembly and the vadous Inspectorates formed from the work

of

the

Criminal Justice Review. Again that small community structure means that the system attracts
local attention reflected
system that is run

in detailed

press and media

reporting.

i. *.,

the goal is faimess in

in an efficient manner; a system that is transparent; and hopefully

as a result a

system that engenders public confidence.

We in that system look fonrard to the day when we can enjoy all the benefits of the peace
bought at such a high price by the citizens of Northem Ireland, including members of the
judiciary

that the structure of security around us, while reduced, can be a thing of the past.

That is not in our

gift. We have the heavy burden, as do you, of delivering

that just system.

More than enough to be getting on withl

27h June2073

APPENDIX
The Terrorism Act 2000

Definition of tenorism
The Terrorism Act 2000

('TA 2000') contains a number of innovative

measures

alongside more familiar provisions. The principal innovation is the new definition of
terrorism contained in the TA 2000, which is quite different from the old Prevention of
Tenorism Acts definition. The new definition is international in inspiration and effect.
It is similar to definitions of terrorism that have emerged from lawmakers in other
developed states and international institutions. All the substantive offences created by
the TA 2000 are linked to the definition of terorism set out in s.l of the Act,

Jurisdiction for terrorist offences in ptevious PIAs was territorial. In the new Act, the
courts have jurisdiction to try terrorist offences which are said to have occurred outside
the United Kingdom or are directed towards governments or peoples outside the United
Kingdom. The extensions of jurisdiction to a near universal model is also consistent
with the United Kingdom's international obligations under a number of anti-terrorism
treaties to which it is party.
i
Section 1 defines terrorism as the use of threat of certain types of action where the use or
threat is designed to influence the govemment or to intimidate the public or a section of
the public, and the use or threat is made fot the purposes of advancing a political,
religious or ideological cause. The action can take place outside the United Kingdom,
and can be directed towards a govemment or people outside the United Kingdom.
There is no requirement in s.1 that the government which the prohibited action is
designed to influence be democratic or legitimately established. The threat or use of
action against an undemocratic or illegitimate government anywhere in the wodd for a
political, ideological or religious purpose is therefore terrorism according to the TA 2000.
The Act defines as terrorist an1 acion or threat of action against a Person or property or
electronic system designed to influence government or intimidate the public or sections
of the public with the purpose of advancing a political, religious or ideological cause (as 1
and 2).

That definition has continued to thread its way through successive anti terrorism
legislation including for example the Terrorism Act 2006 passed in the wake of the
bombings of the London Underground system in July 2005. This Act created a number
of new Jff.rr.., designed to counter terrorist activity not previously addressed e.g.
encouragement of terrorism (which includes glorification of the commission or
preparation of such acts), the dissemination of terrorist publications, the preparation o[
terrorist attacks, the training for terrorism and, attending a place for terrorist training'
But at the core of all those new offences the definition of terrorism remains unaltered.

The span of police Powers ---- arrest

Special police powers were designed around "terrorism". Amongst the broadest are the
powers of a constable to arrest under s.41 of the Terrorism Act 2000 "a Person whom he
ieasonably suspects to be a tefforist", These have given ri$e to concem, Article 5 of the
Convenrion affords to everyone the right to liberty and security. There was a fear that

most arrestees would be released without charge and that the criterion of "tefforism"
was not a sufficiently stiff test for the deprivation of liberty and that intelligencegathering and disruption rather than ptosecution were to be the main purposes of the
exercise. 'Being "concemed in" is wider than being actively involved in the commission
of a terrorist act, being a conspirator, or attempting to commit such an act'. Thus, there
does not have to be any certainry on the part of the police conceming the particular
crime committed by a suspect, nor do they need to be clear about a suspect's level of

involvement in terrorist activiw.

Protections

A number of protections of due process were however built into the system affording
judicial oversight

if

detention is sought to be extended beyond 48 hours.

The defendant is entitled to be present at the hearing and to be accompanied by a lawyer.

The defendant has to be told why his continued detention is considered necessary by the
police during the hearing, although in certain circumstances where it would prejudice the
continued investigation if the defendant were present he and his lawyer can be excluded.
The County Court judge hears the application by video link from the court to the police
station where the defendant is being questioned.
time of the day or night but in practice are usually
Applications can be brought
^t ^ny
heard no later than midnight.
At the hearing the judge has to (a) consider the lawfulness of the arrest; (b) whether the
investigation is being conducted diligendy and expeditiously; and (c) that further
detention is necessar)' (a) to obtain relevant evidence, whether by questioning the
defendant or otherwise;
Ot 0) to preserve relevant evidence; or (c) pending results of the examination of
relevant evidence or anything being examined to obtain relevant evidence.

A County Court judge may grant further extensions up to a maximum of 14 days from
the time of arrest.
Any further application after 14 days has to be considered by a High Coutt iudge who
can extend the period of detention to a maximum 28 days from arrest.
Once the period of detention is coming to an end the police have to decide whether to
release or charge the defendant.
and not released on police bail he must be brought before
DistrictJudge who can either release him on bail or remand him in custody fot up to

If a defendant is to be charged
a

28 days at a time.

bail is refused the defendant (irrespective of whether he is charged with a terrorist

offence) can apply to the High Court for bail, or if bail has been granted by the District
Judge the police are entitled to appeal against the gtant of bail, in which case the
defendant will be remanded in custody until the appeal is heard, which will normally be
the next working day (including Saturday, if necessary)

If

There is a statutory presumption in favour of granting bail unless the defendanu-

Will fail to tum up for trial

10

a
a

Will commit further offences whilst on bail

Will not observe bail conditions (a wide range of strict conditions may irirposed,
such as residing at a particular address, reporting to the police, curfew, etc)

Will interfere with witnesses.

The Span of Police Powers
Another illustration of the breadth of the term "terrorism" concems s.44 of the
Terrorism Act 2000. It confers on a police officer in uniform a power to stop at random
vehicles and pedestrians andy search for articles which might tie used in connection with
terrorism. The broad definition of "terrorism" potentially compounds the problems
caused by the untrammelled nature of power.
The point is best illustrated though the relationship benveen the powers confered by the

Act and the notion of reasonable suspicion. Section 43 of the TA 2000 gives the police
stop and seatch powers if they have reasonable suspicion that someone is involved in
terrorist activities. However, the police were perceived to have prefened to use their
extensive powers in ss44(1) and Q) and 45, which allow them to stop pedestrians and
vehicles within designated areas 'for the purpose of searching for articles of a kind which
could be used in connection with terrorism' uithoil the need for reasonable suspicion.
These powers afforded the police unfettered discretion to stop and search in relation to
terrorist activities. These 2 provisions have been the subject of judicial consideration and
in 2010 the ECHR concluded that they did not comply with the Convention.

LL