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After reading law at Queen’s University in Belfast, Brian Kerr worked first as a barrister and then a judge in Northern Ireland’s courts throughout the Troubles.
Serious criminal cases at the time were tried in non-jury Diplock courts, introduced to prevent intimidation by paramilitaries.
The idea of using judge-only trials as a means of tackling the massive backlog of crown court cases that accumulated in England and Wales during the pandemic has resurfaced in recent months. Restarting jury trials has proved difficult because of the need for physical distancing.
Lord Kerr, while not proposing their adoption, believes there are “respectable arguments” to be made for both types.
Diplock courts had two important features, he said: the judge was required to give “a fully reasoned [decision] why he or she reached a particular verdict and there was an automatic right of appeal”.
“In my experience, the court of appeal [in Belfast] was utterly scrupulous in examining judgments,” Kerr added. “It will require the verdict of history but it was suggested by such distinguished civil libertarians as Sir Louis Blom-Cooper that the non-jury system was in some senses superior to the jury trial.”
By contrast, Kerr regards the introduction of internment without trial, which ran from 1971 to 1975, as “now generally recognised as calamitous for the rule of law”. It has, he added, “been said that it was the best recruiting sergeant for the IRA”.
He recently delivered a unanimous ruling overturning the legality of interning Gerry Adams, the former Sinn Féin leader, nearly 50 years ago.
The case turned on whether or not Willie Whitelaw, then Northern Ireland secretary, had personally considered whether to intern Adams as required by the Detention of Terrorists (Northern Ireland) Order 1972.
“It’s ironic,” Kerr said, “that some of the criticism suggested that we [on the supreme court] ought to have been aware of the political inconvenience of our decision … And this falls from the mouths of people who complain about the court being influenced by political decisions.”
As lord chief justice of Northern Ireland during the Troubles, he and his family became accustomed to having armed officers from his close protection unit living in his garden 24 hours a day, 365 days a year.
Asked to choose which had been his most important case, Kerr opted for the 2018 legal challenge brought by the Northern Ireland Human Rights Commission, which ultimately led to reform of abortion laws.
Four of the seven justices – Lady Hale, Lord Mance, Lord Kerr and Lord Wilson – said the restrictive law was incompatible with human rights legislation in prohibiting abortion in cases of rape, incest and fatal foetal abnormality.
Recalling the case, Kerr said: “One only has to read the dreadful circumstances of the young women who were courageous enough to give … an account of their experiences in order to be struck how dreadful those experiences were.
“These were young women who were told at a relatively early stage in their pregnancy that their expected baby would not survive and it was considered by the medical profession in Northern Ireland that it was not open to them to take a step to intervene in that situation.
“They had to experience the congratulations of people who did not know the circumstances of their pregnancy. They had to, in two cases, carry the child knowing they would not survive … It was an extremely important case and one which I was very pleased to be part of.”
Having stood down from the supreme court, Kerr, now 72, will do arbitration and mediation work. Unlike many of his senior judicial colleagues, he is a peer.
“When this dystopian nightmare [of Covid-19] ends … I might go back into the House of Lords to make a bit of mischief,” he said. “None of the [other] supreme court [justices] have translated to the [upper house], which I think is regrettable. Many would give very useful contributions.”
Source: The Guardian
Keyword: Lord Kerr: ‘respectable arguments’ for both jury and non-jury trials | Law