About this case:

• Citation:
  [2022] NICA 30
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

The court found that killing a prison officer warranted a lengthy sentence, and the appellant’s alleged personal mitigating circumstances did not affect this.

Background

The appellant was convicted of murdering Adrian Ismay and causing an explosion with intent to endanger life. These offences arose from the death of Mr Ismay after an explosive device was attached to his car parked outside his home on 4 March 2016.

Mr Ismay worked as a senior prison officer in the training branch of the Northern Ireland Prison Service at the time of his death. He died 11 days after the explosion.

The appellant was charged on the basis of a joint enterprise, which alleged that he provided intentional assistance and was knowingly involved in a plan to plant the explosive device, with the intention of killing or seriously injuring Mr Ismay.

The appellant was sentenced by the trial judge to a mandatory life sentence with the minimum term to serve before release fixed at 22 years under article 5 of the Life Sentences (NI) Order 2001. This application to appeal sought to challenge the minimum tariff of 22 years’ imprisonment.

In fact, the sole appeal point raised was whether the trial judge was wrong to conclude that there was nothing by way of personal mitigation in the case that could give rise to a need to factor in a reduction in the sentence of 22 years.

However, the court noted that this appeal was also brought outside the 28-day time limit imposed by section 5(8) of the Justice and Security Act 2007. The court therefore had to consider whether to extend time to appeal in accordance with principles set out in R v Brownlee [2015] NICA 39.

Court of Appeal

In 2021, the court previously dismissed an appeal against this conviction. That judgment referred largely to the evidence of the appellant’s role in the events on the night in question, and during the planning phase. This included:

• The appellant repeatedly checked out Mr Ismay’s online profile.
• The appellant went so far as to check up on the opening times of a large supermarket located at the opposite end of Hillsborough Drive where Mr Ismay lived.
• A couple of days before the device was planted, the appellant searched websites for magnetic qualities of aluminium, electromagnetism and materials for use in electrical components.
• The court also noted the appellant’s “intense and enduring interest in the internet news coverage of the attack”.

The court found that it was “apparent” that this case was within the very serious category, when it came to sentencing. This was due to the planned nature of the offending and the politically motivated nature of the crime, as it was directed against a serving prison officer.

Further, the use of an explosive device was “clearly a highly aggravating factor”. The harm caused by the crime was also high, given that “the death of a serving prison officer has a particularly chilling effect upon our society”.

In assessing the 22-year minimum sentence, the court first considered how terrorist crimes involving police or prison officers have been treated. They noted that R v Wootton and McConville [2014] NICA 69 makes clear that a minimum term of in or about 25 years was appropriate for one of the accused in a terrorist murder of a police officer.

Next, the court considered if there were any personal mitigating factors that should have been considered when reaching this 22-year sentence. The appellant argued that this was a factor that the trial judge had failed to properly consider.

However, the court noted that any personal mitigation due to the appellant’s circumstances was likely to be of limited, if any, value, in a case of this nature.

This was supported by R v Ward [2019] NICA 18, where the Court of Appeal said that where a defendant plays “an important and integral role in planning and carrying out the terrorists’ operation” and where he has been involved in the targeting of the victim, the existence of a mental disorder of itself does not afford significant mitigation.

Consideration

It was argued by the appellant that the court should not impose such a lengthy sentence due to his personal circumstances, which were detailed in three reports from Dr Loughrey, consultant psychiatrist.

The trial judge accepted that the reports did provide significant information as to the psychological complexities, deficits and vulnerabilities of the appellant that left him vulnerable to exploitation.

This included a diagnosis of complex post-traumatic stress disorder resulting from childhood sexual abuse and other later trauma, and a history of alcohol abuse and cannabis misuse.

However, in dealing with the issue of mitigation, the trial judge stated: “Put bluntly, there is really nothing by way of personal mitigation in this case that would give rise to a need to factor in a reduction [from the 22-year minimum sentence].”

The trial judge noted that the defendant “expresses not one scintilla of remorse or regret for his actions”, “continues to deny any involvement in the killing of Mr Ismay” and his diagnosis “in no way goes to explain or offer any excuse for his actions”.

Any personal mitigation which flowed from the reports was limited, especially given that the appellant was “intimately involved in the execution and pre-planning of this callous murder”.

The trial judge further argued that the appellant may benefit from specialist treatment for his various conditions, however, these were not sufficient reasons for reducing the tariff. Further, the appellant “will no doubt receive some assistance in prison for his difficulties and should avail of that”.

Conclusion

Overall, the Court of Appeal considered that the minimum term of 22 years reflected the especially serious nature of the terrorist offence. They found that such lengthy sentences should be applied to offences of this nature, not least to mark society’s abhorrence of such terrorist crimes.

In all of the circumstances, the court found no merit in the appeal, and accordingly declined to extend time for appeal. The application was dismissed.