UK Supreme Court: Jurisdiction for hearing Michael Stone judicial review appeal lies with Court of Appeal

About this case:

• Citation:
  [2020] UKSC 6
• Judgment:
  External link
• Court:
  UK Supreme Court
• Judge:
  Lord Sales

Agreeing with the Attorney General for Northern Ireland that the proper route of appeal was to the Court of Appeal, Lord Philip Sales said the proceedings did not constitute “a criminal cause or matter” for the purposes of section 41 of the Judicature (Northern Ireland) Act 1978.

Milltown Cemetery attack

On 16 March 1988, Michael Stone attacked a group of mourners attending a funeral at Milltown Cemetery, Belfast, killing Thomas McErlean, John Murray, and Kevin Brady. Over 60 people were wounded in the attack.

On 3 March 1989, Mr Stone was sentenced to life imprisonment having been convicted of six counts of murder, five counts of attempted murder, three counts of conspiracy to murder and 21 further counts relating to the possession of explosive substances, the possession of firearms and ammunition, causing an explosion and wounding with intent. The trial judge recommended a tariff of 30 years’ imprisonment.

Under the terms of the Belfast (Good Friday) Agreement 1998, certain prisoners convicted of crimes during the Troubles were eligible for early release. On 24 July 2000, Mr Stone was released on licence pursuant to the Northern Ireland (Sentences) Act 1998 (which gave effect to the early release scheme in the GFA).

Revocation of licence

In November 2006, Mr Stone was arrested with weapons and a number of viable explosives at Parliament Buildings, Stormont. His lawyer claimed that the incident was “a piece of performance art”. However, in November 2008, Mr Stone was sentenced to 16 years’ imprisonment for offences committed in the Stormont incident, including the attempted murder of Martin McGuinness and Gerry Adams.

In 2011, Mr Stone’s licence under the 1998 Act (pursuant to which he had been released for six years) was revoked by the Sentence Review Commissioners. Thereafter it was determined that the tariff for life imprisonment (in respect of the Milltown Cemetery attack) should be 30 years imprisonment.

Consideration for release

On the basis that the six years that Mr Stone had been released from prison should be included in the 30 year tariff, the NI Prison Service referred Mr Stone’s case to the Parole Commissioners notifying them that the tariff expiry date would be in March 2018. However, the Parole Commissioners determined that Mr Stone should not be released upon the expiry of his tariff.

Thereafter, Mr Stone sought a further hearing before the Parole Commissioners, which was due to take place in January 2019.

Judicial review proceedings

In November 2018, Thomas McErlean’s sister, Deborah McGuinness, issued judicial review proceedings against the Department of Justice for Northern Ireland, challenging the lawfulness of including the six-year “contested period” in the calculation of Mr Stone’s tariff expiry date. She argued that the proper tariff expiry date would be in 2024.

Mrs McGuinness was successful in the High Court, and both the DOJ and Mr Stone brought appeals directly to the Supreme Court against that decision, on the basis that the judicial review was a proceeding “in a criminal cause or matter”.

Intervention of the Attorney General

The Attorney General for Northern Ireland intervened in order to raise an issue regarding the jurisdiction of the Supreme Court to entertain the appeals.

Pursuant to Section 41(1) of the Judicature (Northern Ireland) Act 1978, subject to certain conditions, there may be an appeal to the Supreme Court “from any decision of the High Court in a criminal cause or matter”.

The Attorney General submitted that the decision of the High Court under appeal was not a decision “in a criminal cause or matter” on the proper interpretation of that phrase – therefore, he said that, contrary to what the parties assumed to be the position, the correct avenue of appeal in the proceedings was to the NI Court of Appeal, not to the Supreme Court.

Supreme Court judgment

Delivering the unanimous judgment of the Supreme Court, Lord Sales explained that an appeal from the High Court ordinarily lies to the Court of Appeal (where the appellant has an arguable claim that the High Court erred). However, when the proceeding in the High Court are deemed to be in “a criminal cause or matter, even though it is not itself a criminal trial”, route of appeal is directly to the Supreme Court. Lord Sales explained that this is only available if the case involves a point of law of general public importance – a narrow category of case.

After considering the historical background of the phrase “a criminal cause or matter” in statute and case law going back to the 19th century, Lord Sales said that the basic test was whether the proceeding in the High Court relates to underlying court proceedings which put the applicant for judicial review in jeopardy of criminal punishment as the direct outcome of those proceedings. He said that, in the context of Section 41, it was “important that the phrase should be treated as tightly focused in this way in order to avoid removing ordinary rights of appeal in cases where that is not clearly justified”.

Lord Sales also said that that phrase should construed with the usual wide right of appeal to the Court of Appeal in mind to avoid giving it an unjustifiably wide application which would unduly undermine the right of appeal to the Court of Appeal.

In the present case, at issue was the calculation of Mr Stone’s tariff and the date when he should be considered for release on licence. Lord Sales said that the judicial review did not relate to the commencement or conduct of any underlying criminal process involving Mr Stone, as all criminal charges against him had already been determined. Instead, the judicial review was concerned with a different topic – namely, whether the operation in law of a criminal sentence already imposed on Mr Stone was properly understood by the DOJ.

Stating that this was an ordinary type of judicial review, Lord Sales held that the present proceedings did not constitute “a criminal cause or matter” for the purposes of section 41 of the Judicature (Northern Ireland) Act 1978. In those circumstances, he held that the Supreme Court did not have jurisdiction to entertain the appeals and the proper route of appeal was to the Court of Appeal.