About this case:

• Judgment:
  External link
• Court:
  Court of Appeal

The man had been released on licence after serving a custodial sentence for possession of explosives and possession of articles for use in terrorism.

Dismissing the appeal, the Court of Appeal accepted that the decision to recall was based partially on inaccurate information that the man had refused consent to the electronic tag before he was released, but said that his behaviour on the night of his release what sufficient to justify his recall.

Background

On 6 December 2012, Neil Christopher Hegarty and two co-offenders were stopped by police in the Creggan Estate in Derry. An improvised explosive device (IED) was found in a holdall on the floor behind the driver’s seat. The IED was a projectile device which was capable of penetrating a considerable thickness of steel armour plate.

In 2014, Mr Hegarty was sentenced to five years in custody and five years on licence after being convicted of:

• Possession of explosives with intent to endanger life or cause serious injury to property;
• Possession of articles for use in terrorism.

The custodial element of the sentence expired on 5 December 2017, and Mr Hegarty was to remain on licence until 6 December 2022.

Licence conditions

In the days prior to Mr Hegarty’s release on licence, on 1 December 2017, the Head of the Offender Recall Unit received an email from the NI Prison Service Licencing Unit advising that Mr Hegarty had refused to provide an address – however it was accepted by the Court that Mr Hegarty had only been asked to provide an address on 4 December 2017 and that he had complied with the request the following day.

The Court also accepted that Mr Hegarty had not asserted at this stage that he would not be consenting or complying with the curfew and monitoring conditions (i.e. electronic tagging, etc) of his release on licence.

Attempt to fit the electronic tag

At approximately 23:20 on 5 December 2017, two G4S staff attended Mr Hegarty’s address in order to install the home monitoring equipment and the electronic tag. They could see that there were a number of people in the house, but no-one answered the door – a person the description of Mr Hegarty, mimicked them knocking on the door and then went on to ignore them

The G4S staff left the property as they had serious concerns about their safety given the reported dissident republican threat to G4S employees at the time.

The PSNI submitted a Recall Report to the Parole Commissioners the following day which contained an account of the events and Mr Hegarty’s “conscious decision not to co-operate”.

The Single Commissioner compiled a report stating that the risk of Mr Hegarty causing harm to the public had increased significantly since his release, that this risk could not be managed in the community, and that having removed himself from the requirements of his license within one day of release, Mr Hegarty’s licence should be revoked and he should be arrested and returned to custody.

High Court

Mr Hegarty sought leave to bring judicial review proceedings against his recall to custody, arguing that the decisions were based on an inaccurate and un-particularised assertion that he stated that he would not consent to the electronic monitoring equipment, etc.

In the High Court, the judge accepted that inaccurate information had been relied on, but dismissed the application for judicial review as the recall decision “plainly lay within the range of reasonable decisions available” to the Head of the Offender Recall Unit.

Court of Appeal

In the Court of Appeal it was accepted that the decision had been made upon inaccurate information, and the Single Commissioner should not have proceeded on the basis of an assumption that the information within the police report was accurate.

However, the information regarding what occurred at Mr Hegarty’s home on 5 December 2017, as well as the fact that Mr Hegarty was a convicted terrorist, would necessarily have led to the same decision and the Court was satisfied that the decision was not unlawful.

Stating that what had occurred at Mr Hegarty’s home on the night of his release on licence was sufficient to justify his recall, the Court of Appeal dismissed the appeal.

• by Seosamh Gráinséir for Irish Legal News