About this case:

• Citation:
  [2022] NIQB 8
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice David Scoffield

This was an application for leave to apply for judicial review where the applicant was seeking to be released from prison. His complaint was that his time in custody had been wrongly increased as a result of the amendments made by the Counter Terrorism and Sentencing Act 2021.

The Court of Appeal previously granted a declaration of incompatibility under section 4 of the Human Rights Act 1998 (HRA) in respect of the relevant provisions of the 2021 Act in R v Morgan, Marks, Lynch and Heaney [2021] NICA 67.

Background

The applicant pleaded guilty to one count of membership of a proscribed organisation – the Continuity Irish Republican Army – and was sentenced to three years and six months’ imprisonment, as 21 months’ custody and 21 months on licence. The applicant expected to be released on 31 October 2021.

In the meantime, however, the 2021 Act came into force, including section 30 entitled ‘Restricted eligibility for early release of terrorist prisoners: Northern Ireland’. This section introduced article 20A into the Criminal Justice (Northern Ireland) Order 2008. This increased the custodial element of the applicant’s sentence by seven months, after which he would be referred to the Parole Commissioners in order for them to consider his suitability for release (rather than being automatically released after 21 months).

The applicant is now due for release no earlier than 31 May 2022, at which point he will have served two-thirds of the total sentence imposed on him by the Crown Court, rather than the half of that sentence which the sentencing judge had fixed as the appropriate custodial element.

The Court of Appeal gave its judgment on 22 December 2021 and granted relief in terms which did not affect the applicant’s sentence. The applicant now sought to force one or more public authorities to provide him with some additional relief, in light of the finding that his Article 7 rights had been violated.

The applicant’s solicitor wrote to the Department of Justice in Northern Ireland and the Northern Ireland Prison Service (NIPS) asking that the applicant be granted temporary release from prison; that the ‘additional’ portion of his sentence be remitted through an exercise of the Royal Prerogative of Mercy; and/or that amending legislation be swiftly introduced to remove the effect of the new Article 20A of the 2008 Order in his case. Both authorities declined.

The Ministry of Justice sought leave to appeal to the UK Supreme Court against the Court of Appeal’s decision that there was an Article 7 violation in this case.

The applicant’s case

The Court of Appeal noted that the most obvious option for challenging these provisions would have been through a judicial review.

The applicant now contended that the offending provision was in relation to the subordinate legislation, the 2008 Order, against which the court has greater scope for remedy than an Act of Parliament. The 2008 Order was amended by the 2021 Act, but it was the 2008 Order which now determined his release date.

The applicant further argued that, as the Court of Appeal had identified an incompatibility with his Article 7 rights, a number of public authorities were bound to act to remedy or mitigate that breach. He argued that NIPS ought to grant him temporary release from prison, or that the royal prerogative of mercy should be exercised in his favour.

High Court decision

The court was “disappointed” that the case before it was not put before the Court of Appeal, as the argument around the 2008 Order would have expanded the remedies available.

However, Mr Justice David Scoffield could not ignore the fact that the proceedings are still ongoing, as the MoJ has sought to appeal the decision, and that the Court of Appeal determined that a declaration of incompatibility was the only appropriate remedy to grant in relation to the legislation in this applicant’s case and that, as a result, the legislation would continue to have effect.

In light of that, the court considered that the appropriate course was to refuse leave to apply for judicial review.

The court found that the new argument should have been raised with the Court of Appeal. He could not now benefit from his failure to do so, particularly when the new argument might be raised in those potential future proceedings.

The court also found that the public authorities were under no duty to act. A failure on the part of the MoJ to take remedial steps under section 10 of the HRA is also not an “act” for the purposes of section 6, and the section 10 mechanisms are engaged only after it is clear that no appeal is to be pursued or pending, which did not apply in this case.

The Department of Justice and NIPS had not been under any obligation to exercise the royal prerogative of mercy, or grant temporary release. The bar for establishing an unlawful failure to exercise the royal prerogative of mercy is extremely high, and a grant of temporary release would also not have removed the detriment of which the applicant complained.

Temporary release would not impact the Article 7 breach, it would merely have improved the applicant’s situation in the meantime. The Court of Appeal’s order did not affect the legal provisions governing the applicant’s release, meaning that he was detained lawfully.

Conclusion

Ultimately, the court did not consider that the applicant had established an arguable case with a reasonable prospect of success against the various respondents.

The applicant’s application was refused. His arguments in relation to the status of the legislation could and should have been raised with the Court of Appeal.