Testing the limits of the common law right to trial by jury: a critical analysis of 'Re Hutchings'

The constitutional status of the right to trial by jury is reflected in its recognition as a fundamental right at common law. In 'Re Hutchings', this right was confronted by a far-reaching statutory provision empowering the Director of Public Prosecutions for Northern Ireland to issue a certificate ordering trial by judge alone if satisfied that trial by jury would pose a risk to the administration of justice. The power is accompanied by a partial ouster clause restricting judicial review to the narrowest of grounds. In confirming the breadth of the statutory provisions and degree of discretion granted to the Director, the Supreme Court's judgment in 'Re Hutchings' is of special significance for a series of high-profile "legacy" cases in the prosecutorial pipeline in Northern Ireland. Beyond this local context, though, two issues highly relevant to contemporary public law debates emerge out of 'Re Hutchings'. The article critically engages with each of these. The first is the status and implication of fundamental rights at common law as distinct from rights driving from the European Convention of Human Rights when confronted with statutory provisions that equip the decision-maker with expansive powers. The second is the ongoing issue of how the courts approach far-reaching partial-ouster clauses that limit the grounds upon which a discretion to abrogate a fundamental common law right can be challenged