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

Dennis Hutchings, a former soldier charged with the 1974 attempted murder of John Paul Cunningham in Northern Ireland, challenged the DPP's certificate ordering trial without a jury. The Supreme Court dismissed his appeal, upholding the certificate under the Justice and Security (Northern Ireland) Act 2007.

Facts

On 15 June 1974, an army patrol of the Life Guards regiment, commanded by the appellant Dennis Hutchings, encountered John Paul Cunningham, a young man of limited intellectual capacity (mental age between six and ten), near Eglish, County Tyrone. Mr Cunningham ran from the patrol across a field towards his home. The appellant and another soldier (‘B’) discharged shots, killing Mr Cunningham. The Historical Enquiries Team later concluded he was unarmed, running away, and posed no threat.

The original RUC/Royal Military Police inquiry resulted in no prosecution. Following a 2015 investigation by the Legacy Investigation Branch, the appellant was charged with attempted murder and attempting to cause grievous bodily harm. On 20 April 2016, the Director of Public Prosecutions (DPP) for Northern Ireland, Barra McGrory QC, issued a certificate under section 1 of the Justice and Security (Northern Ireland) Act 2007 directing that the trial proceed without a jury. The appellant was not consulted before issue, nor informed of the certificate until 5 May 2017.

Issues

The appeal raised two central issues:

• Whether, on a proper construction of section 1 (and condition 4 in section 1(6)) of the 2007 Act, the DPP had power to issue the certificate where a soldier had shot a person suspected of being a member of PIRA.
• Whether the appellant was entitled, as a matter of procedural fairness, to be given reasons and the opportunity to make representations before the certificate was issued, notwithstanding the restrictions in section 7 of the Act.

Arguments

Appellant

Mr Lewis QC argued that the power in section 1 should be construed narrowly, relying on the Explanatory Notes, ministerial statements during passage of the Bill, and the strong presumption favouring jury trial (citing Twomey and Arthurs). He contended condition 4 was aimed at sectarian strife between communities in Northern Ireland. He argued a criminal trial was not analogous to an inquest for jury bias purposes, that majority verdicts and the abolition of peremptory challenges reduced risks, and that the appellant should have been given reasons and an opportunity to make representations before the certificate was issued. He relied on the fundamental right to jury trial as constituting ‘exceptional circumstances’ under section 7(1)(c).

Respondent

Mr Simpson QC, for the DPP, maintained that the statutory provisions were deliberately broad, that the concern was a partisan outcome rather than jury tampering, and that the decision to issue a certificate was analogous to a prosecutorial decision attracting only limited judicial review. He confirmed that representations would be considered if made.

Judgment

Lord Kerr, with whom Lord Reed, Lady Black, Lord Lloyd-Jones and Lord Sales agreed, dismissed the appeal.

Construction of section 1

The language of section 1 was ‘perfectly clear’ and vested the DPP with wide, deliberately open-ended powers. The Director need only ‘suspect’ that one of the conditions was met and be ‘satisfied’ there was a risk to the administration of justice. Such decisions were often of an ‘instinctual, impressionistic kind’, based on unverified intelligence or general experience. The Explanatory Notes and ministerial statements did not narrow the clear statutory language. Condition 4 covered offences connected even indirectly with religious or political hostility, and was wide enough to embrace the circumstances of Mr Cunningham’s killing, where the soldiers suspected him of being a PIRA member.

Risk to administration of justice

The Court relied on In re Jordan’s Applications [2014] NICA 76, which identified ‘formidable difficulties’ in eliminating jury bias in security and terrorist-type cases, and In re McParland’s Application [2008] NIQB 1. The risk of a biased juror or jury in this case was a legitimate basis for the DPP’s satisfaction. Majority verdicts, jury anonymity and the abolition of peremptory challenges reduced but did not eliminate such risk.

Right to jury trial

Although R v Twomey [2010] 1 WLR 630 described jury trial as a ‘hallowed principle’, it was not absolute and could be restricted by express legislation. Article 6 ECHR does not mandate jury trial (X and Y v Ireland). The ‘Diplock’ system with reasoned judgments and automatic rights of appeal (preserved in section 5(6)-(7) of the 2007 Act) ensured fair trial. The fundamental right was to a fair trial, not specifically to a jury. Lord Steyn’s ‘triangulation of interests’ in Attorney General’s Reference (No 3 of 1999) was applied.

Exercise of power by the DPP

The DPP followed the statutory wording faithfully, taking police information, counsel’s advice and the relevant authorities into account. Even if the DPP erred in asserting that Parliament intended a broad interpretation, this was immaterial because he would have reached the same decision on any construction.

Procedural fairness and section 7

Section 7 restricts challenges to bad faith, dishonesty, or ‘other exceptional circumstances’. The appellant could not place his case within ‘exceptional circumstances’ merely by invoking the right to jury trial, particularly given that the statute itself qualified that right. The decision was closely analogous to a prosecutorial decision, which attracts highly exceptional judicial review (per Sharma v Brown-Antoine and Kebilene). The confidential nature of the underlying material and the instinctual character of the decision rendered pre-decision disclosure and representations inappropriate. The issue of a certificate was essentially a case management decision aimed at ensuring a fair trial. The appellant could still make representations to the DPP, which would be considered.

Implications

The decision confirms that the DPP’s power under section 1 of the Justice and Security (Northern Ireland) Act 2007 is broad and deliberately open-ended, and that condition 4 extends beyond inter-communal sectarian violence to cover offences alleged against soldiers who shot persons suspected of being PIRA members. The judgment reinforces that section 7 significantly restricts judicial review of such certificates, aligning them with the exceptional-remedy approach applicable to prosecutorial decisions.

The Court made clear that the fundamental right in criminal proceedings is to a fair trial, not specifically to trial by jury, and that non-jury trial with reasoned judgment and an automatic right of appeal satisfies fairness requirements. The judgment underscores the acute difficulties of guaranteeing impartial juries in ‘security and terrorist-type cases’ in Northern Ireland, where ‘tribal loyalties’ may operate. The Court criticised the delay of over a year in informing the appellant of the certificate, noting it could have reduced delay in the trial.

The decision is significant for defendants facing prosecution in Northern Ireland in respect of legacy troubles-era offences, for the prosecuting authorities, and for the wider constitutional question of when jury trial may properly be removed. It leaves open the possibility, without deciding, that in some cases some information might be provided to assist representations, but holds that this was not such a case.

Verdict: The appeal was dismissed. The certified question was answered ‘yes’: condition 4 in section 1 of the Justice and Security (Northern Ireland) Act 2007 does include a member of the armed forces shooting a person he suspected of being a member of the IRA. The DPP’s certificate directing trial without a jury was upheld.

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