About this case:

• Citation:
  [2023] NIKB 13
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice David Scoffield

The court found that the restrictions were proportionate, especially given the ease of cross-border travel on the island of Ireland.

Background

In this application for judicial review, Gabriel Mackle challenged new arrangements for his parole supervision by the Department of Justice in Northern Ireland under the Multi-Agency Review Arrangements (MARA). The MARA imposed requirements were that:

1. Travel into Ireland within a 10-mile radius of Mr Mackle’s approved address (which is in Forkhill, Co Armagh) would be for essential domestic purposes only, including taking his child to school, shopping, and leisure activities, such as dog walking.
2. Any travel further than 10 miles would require permission, submitted on a case-by-case basis.

The applicant sought declarations that these restrictions were unlawful, an order of certiorari quashing them, and damages. He claimed that they breached his Article 8 and 14 ECHR rights, and that they were irrational and/or so unfair as to be unreasonable.

The applicant was sentenced in 2014 for the offences of possessing explosives with intent to endanger life or cause serious injury to property and possession of ammunition with intent to endanger life.

He received a sentence which involved four years in custody, followed by a further four years on licence. During his license period, he attended an event in Bundoran organised by Republican Sinn Féin, at which he was a guest of honour and was awarded a plaque as a recently released “prisoner of war”.

The applicant was on licence when he travelled to this event in Ireland. He was recalled to prison because it was considered that his attendance at the event breached the terms of his original licence in a number of respects.

The applicant, however, contended that he had been given permission to travel to Ireland on the date in question, following a conversation with his probation officer. When this was disputed, it became clear that the Probation Board for Northern Ireland (PNBI) had:

The Department acknowledged that the applicant had not done anything unlawful per se but contended that his participation at the event amounted to “risky behaviour”.

In March 2018 the Assistant Director in Probation emailed the applicant’s legal representatives clarifying that the applicant did not need to seek permission for cross-border travel for day-to-day activities.

The impugned decision

The decision under challenge came in September 2020. The applicant was served with a copy of new arrangements for the supervision of his licence under the auspices of MARA. This included a requirement to seek approval if the applicant was seeking to travel outside Northern Ireland.

Following a review meeting in October 2020, MARA agreed to approve daily travelling to Ireland for essential domestic and limited recreational purposes only. This was considered to be consistent with the approach adopted by the Probation Board in March 2018.

However, it was deemed inappropriate to give the applicant ‘blanket’ approval to travel for non-essential reasons. The applicant would require permission, submitted seven days in advance, for any location further than 10 miles outside Northern Ireland. This distance was identified after MARA considered key addresses supplied by the applicant.

Arguments

The applicant argued that these restrictions amounted to discrimination, comparing his position with that of a terrorist offender who might live in Great Britain, who would be able to travel much further under similar licence notifications. This discrimination, he argued, was rooted in political opinion and national origin.

In response, the respondent contended that these conditions were proportionate and reasonable, because it permitted the applicant to some cross-border travel, while also ensuring a level of control over travel outside the jurisdiction, which was considered to be a standard part of supervision for prisoners on license.

The respondent considered this control to be proportionate, as well as being specifically tailored to accommodate his everyday life. Other travel requirements only required that they be dealt with on a case-by-case basis.

Consideration

In considering his case, the court recognised that the applicant relied heavily on the original assessment of his parole conditions. However, this stance was open to change, and the court could also, “quite see why the Department was keen to involve other criminal justice agencies who would provide a more rigorous element of supervision and management”.

The court noted that the approach taken by the PBNI had been to allow the applicant to have more control over his travel arrangements. However, this was by reason of potential risk to its staff, which represented “an undermining of the statutory purposes, of which such offenders should not be entitled to take advantage”.

The court also rejected the applicant’s comparison of himself with a hypothetical Great Britain parolee. The judge found this logic to be flawed, as cross-border travel would have put the applicant outside the jurisdiction of the MARA agencies and outside the jurisdiction in which he was serving his sentence.

The court did accept that the licence conditions represented a restriction on his article 8 rights, however, the judge was also satisfied that these had been imposed for a legitimate aim, namely, national security, public safety, and the prevention of crime.

Therefore, these conditions were determined to be proportionate, as the judge considered that the interference struck a fair balance between the applicant’s rights and those of the community.

The court found that these restrictions may have amounted to an inconvenience, and a restriction on spontaneous travel plans at short notice, but found that neither represented a breach of his ECHR rights.

The court also found that the ease of cross-border travel on the island of Ireland called for greater vigilance and additional controls than might apply to an applicant in Great Britain.

Conclusion

Ultimately, the court did not consider that the applicant made out any of his grounds for judicial review and therefore the application was dismissed.