About this case:

• Citation:
  [2022] NIQB 57
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice David Scoffield

The court found that the applicant’s attempts to rely on the royal prerogative of mercy to reduce his time in prison was based on a flawed interpretation of the terrorism legislation.

Background

In this application for judicial review, Terence Marks sought to challenge a decision of the minister in charge of the Department of Justice in Northern Ireland not to exercise the royal prerogative of mercy in his favour.

The applicant was seen in covert surveillance of a property in Newry, involving the Irish Republican Army discussing matters relating to terrorist activities. This included the identification of possible targets, training and sourcing of weapons and materials for pipe bombs, and sources of funding for criminal activity including robbery.

The applicant was sentenced in 2020 under two charges; belonging to or professing to belong to a proscribed organisation contrary to section 11(1) of the Terrorism Act 2000, and receiving weapons training or instruction contrary to section 54(2) of the Terrorism Act.

In respect of each count, the applicant received a sentence of four years’ imprisonment, with the custodial period being 50 per cent of the term.

However, after the introduction of the Counter-Terrorism and Sentencing Act 2021, this sentence was altered. Under this Act, he would no longer be automatically released at the conclusion of the judicially determined custodial period halfway through his sentence, at the 24-month point.

Instead, he would have to serve two-thirds of his sentence (32 months) after which he would become eligible for release subject to an assessment of his suitability for release by the Parole Commissioners for Northern Ireland.

The applicant contended that this retrospectively increased his sentence, and the Northern Ireland Court of Appeal agreed that there was a breach of his Article 7 ECHR rights.

However, the new provisions remained operative, and it was for Parliament to decide whether, and if so how, to amend the law in response to the court’s finding of incompatibility.

The Ministry of Justice is presently appealing the decision to the United Kingdom Supreme Court.

Given that this matter may not be resolved for some time, the applicant sought mercy in the interim, in respect of the period of imprisonment which will go beyond his judicially determined custodial sentence.

The respondent minister, however, argued that she did not have the power to exercise mercy here, as it was a reserved matter, under paragraph 9(1)(d) of Schedule 3 to the Northern Ireland Act 1998 (NIA).

The minister claimed that the Secretary of State was the correct decision-maker in this matter.

Legal issues

Central to this case was section 23(2) of the NIA, which provides that all “transferred matters, the prerogative, and other executive powers […] shall […] be exercisable on Her Majesty’s behalf by any Minister”.

However, in relation to mercy, section 23(2A) states that the prerogative power is exercisable only by the minister in charge of the Department of Justice, and only for transferred matters.

The question was therefore whether the exercise of mercy was a transferred matter.

The respondent contended that this was not a transferred matter, but a reserved matter. That was because paragraph 9(1)(d) of Schedule 3 identifies as a reserved matter: “in relation to terrorism, the exercise of the Royal prerogative of mercy”.

In response, the applicant argued that his offences did not actually meet this definition of terrorism. He noted that there was no relevant action on his behalf involving serious violence against a person, serious damage to property, or the other danger, risks or interference contemplated in the definition of terrorism in the 2000 Act or Schedule 3 to the NIA.

Consideration

In assessing these arguments, the court was wary to accept the applicant’s definition of terrorism. They noted that terrorism for the purposes of the Terrorism Act includes both the use and threat of such action.

To the court, the receipt of training in relation to firebombs or pipe bombs “inherently involves the threat of later use of those devices by the recipient of the training […] Why else would the training be given?”

As a result, the applicant’s offences were considered to be actions taken for the purposes of terrorism.

Further, in assessing this narrow definition of terrorism, the court noted that the NIA was enacted in 1998, and could therefore not have contemplated the definition used in the 2000 Act, which the applicant was relying on.

The court also noted that the definition of terrorism in the 2000 Act was only for the purposes of that Act. The court accepted that a definition may be relied on across acts with similar subject matter, but did not find that was the case here.

The NIA is a penal statute applying across the United Kingdom, while the 2000 Act is a constitutional statute making provision for the government of Northern Ireland, in the particular context of the Belfast Agreement and ‘the Troubles’ which preceded it.

Finally, the court noted that members of the public would be surprised to hear if convictions for membership of a terrorist organisation and the receipt of weapons training in that context were not considered to be terrorism.

Conclusion

Ultimately, for these reasons, the judge dismissed the applicant’s application for judicial review.