Arthurs, Re Judicial Review

Factual and Procedural Background

The applicants, referred to as Plaintiff 1 and Plaintiff 2, sought judicial review of a decision made by the Director of Public Prosecutions for Northern Ireland ("the Director") on 16 March 2009. The Director certified that their trial be conducted without a jury under section 1 of the Justice and Security (Northern Ireland) Act 2007 ("the 2007 Act"). The applicants faced multiple criminal charges related to dishonesty and the handling of criminal property. The indictment included offences under the Proceeds of Crime Act 2002 and various Theft Acts.

The Director’s decision was based on a statutory test involving suspicion of certain conditions linked to proscribed organisations and risk to the administration of justice if a jury trial were held. The certificate was lodged with the Crown Court prior to arraignment on 27 March 2009. The applicants were aware of the impending certificate before arraignment and pleaded not guilty. Subsequent correspondence sought evidential basis for the certificate, but disclosure was withheld on public interest grounds. The applicants initiated judicial review proceedings on 7 December 2009, with leave granted on 15 January 2010.

Legal Issues Presented

1. Whether the Director’s decision to certify a non-jury trial under section 1 of the 2007 Act was lawful and complied with procedural fairness.
2. Whether Article 6 of the European Convention on Human Rights (ECHR) was engaged by the Director’s decision and, if so, whether it was breached.
3. The extent and nature of judicial review available against prosecutorial decisions under section 7 of the 2007 Act, including limitations on grounds for challenge.
4. The appropriate standard of proof and procedural safeguards required before removing a defendant’s right to a jury trial.
5. Whether delay in challenging the certificate after arraignment affected the availability or propriety of judicial review.

Arguments of the Parties

Appellants' Arguments

• The Director’s decision was substantively flawed, procedurally unfair, and violated Article 6 ECHR.
• There was no evidence linking the applicants or their associates to the proscribed organisation alleged by the Director.
• The removal of the right to a jury trial should be scrutinised carefully by the court, not decided solely by the prosecution.
• Article 6 requires the court to have access to all relevant evidence to independently assess the Director’s decision.
• Procedural fairness demanded that the applicants be informed of the gist of the case against them and be allowed to make representations before the decision.
• The statutory test should be strictly construed, requiring proof beyond reasonable doubt before removing the right to jury trial.
• Relied on case law concerning control orders and jury tampering provisions to support the need for heightened procedural safeguards.

Respondents' Arguments

• Article 6 is not engaged because the Director’s certificate is an ancillary procedural decision, not a determination of a criminal charge or civil right.
• A non-jury trial conducted by a court of competent jurisdiction does not violate the right to a fair trial.
• The decision falls within prosecutorial discretion, which is subject to limited judicial review only on grounds of dishonesty, bad faith, or exceptional circumstances as set out in section 7 of the 2007 Act.
• The approach in Re Shuker supports limited review and rejects procedural fairness obligations in similar prosecutorial decisions.
• The Director properly applied the statutory test based on reliable intelligence and material, and his decision was not irrational or unlawful.
• Delay in challenging the certificate after arraignment undermines the ability to reconsider or modify the certificate and weighs against granting relief.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework under the 2007 Act, focusing on the Director’s power to issue a certificate for a non-jury trial based on suspicion of specified conditions and a risk to the administration of justice. It noted the statutory limitation on judicial review under section 7, permitting challenges only for dishonesty, bad faith, or exceptional circumstances, reflecting the traditionally deferential approach to prosecutorial decisions.

The court considered the engagement of Article 6 ECHR. It concluded that the Director’s decision did not determine a criminal charge or civil right in a manner that engaged Article 6 protections. The certificate was procedural and ancillary, not decisive of the applicants’ rights or reputation, consistent with established case law. The court rejected the appellants’ argument that Article 6 required full disclosure and court scrutiny of the Director’s decision at this stage.

Procedural fairness under common law was also considered. The court held that the nature of the Director’s decision, involving sensitive intelligence and evaluative judgment, did not require disclosure of the gist of the case or prior consultation with the applicants. The Director acted fairly in forming suspicion and assessing risk based on available material. The court found no evidence of procedural unfairness or legal error.

The court emphasised the importance of strict construction of statutory restrictions on the right to jury trial, acknowledging it as a constitutional right subject to alteration by clear statutory language. The statutory test’s modest standards of suspicion and risk were met on the material before the Director, and the decision was not irrational or unreasonable.

Regarding delay, the court noted the challenge was brought after arraignment, limiting the possibility of revisiting the Director’s decision and potentially prejudicing the trial process. The court recommended that future challenges be made before arraignment with appropriate adjournments to preserve procedural fairness and trial integrity.

Ultimately, the court concluded that the statutory provisions were properly applied, the Director’s decision was lawful, and the judicial review challenge failed.

Holding and Implications

The court’s final decision was to DISMISS the application for judicial review.

The direct effect is that the Director’s certificate for a non-jury trial stands, and the applicants’ trial will proceed without a jury as certified. No new precedent was established; the decision affirms the limited scope of judicial review over prosecutorial decisions under the 2007 Act and the non-engagement of Article 6 at this procedural stage. The ruling underscores the importance of timely challenges before arraignment to preserve procedural options and ensures that the statutory framework for non-jury trials in Northern Ireland is upheld within its intended limits.