(1) Anthony Lancaster's (2) Sharon Rafferty's and (3) Anthony McDonnell's Application and in the matter of decisions of the Police Service of Northern Ireland and the Secretary of State for the Home Department
| Jurisdiction | Northern Ireland |
| Judge | Keegan LCJ |
| Judgment Date | 18 October 2023 |
| Neutral Citation | [2023] NICA 63 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2023] NICA 63
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: KEE12281
ICOS No: 19/008027
19/065082
19/068477
Delivered: 18/10/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF APPLICATIONS BY (1) ANTHONY LANCASTER,
(2) SHARON RAFFERTY AND (3) ANTHONY McDONNELL
FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF
THE POLICE SERVICE OF NORTHERN IRELAND
AND THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
___________
Karen Quinlivan KC and Leona Askin (instructed by Madden & Finucane, Solicitors) for
the first Appellant
Ronan Lavery KC and Malachy Magowan (instructed by Phoenix Law) for the second
Appellant
Ronan Lavery KC and Mark Bassett (instructed by Brentnall Legal Ltd) for the third
Appellant
Neasa Murnaghan KC, Joseph Kennedy and Ben Thompson (instructed by the Crown
Solicitor’s Office) for the Respondents
Tony McGleenan KC and Philip McAteer (instructed by the Departmental Solicitor’s
Office) for the notice party
___________
Before: Keegan LCJ, Treacy LJ, Horner LJ
___________
KEEGAN LCJ (delivering the judgment of the court)
Introduction
[1] The present case is an appeal from the judgment of Scoffield J (“the trial
judge”) reported at [2023] NIKB 12 wherein he dismissed applications for judicial
review made by the three appellants named above.
2
[2] The appellants are all Registered Terrorist Offenders (“RTOs”). As RTOs,
they are the subject of notification requirements under the Counter Terrorism Act
2008 (“the 2008 Act”) and the Counter Terrorism Act 2008 (Foreign Travel
Notification Requirements) Regulations 2009 (“the 2009 Regulations”). The
notification regime was amended by the Counter Terrorism and Border Security Act
2019 (“the 2019 Act”), effective from April 2019. The respondents are the Police
Service of Northern Ireland (“PSNI”) and the Secretary of State for the Home
Department (“SSHD”). The Department of Justice (“DOJ”) acts as a notice party.
[3] The appellants challenge the decision made by Scoffield J on issues of articles
7, 8 and 14 of the European Convention on Human Rights (“ECHR”) compatibility
as well as the right to exit the UK to enter a member state of the European Union in
provisions now enshrined by the European Union Withdrawal Agreement and the
Northern Ireland Protocol. Mr McDonnell further appeals against the dismissal of
the breach of the data protection regime as contained in the Data Protection Act 2018
(“the DPA”).
[4] There are therefore four grounds of challenge which comprise this appeal and
require us to consider whether the trial judge erred in finding against the appellants
on all issues. We must ask ourselves the following questions in determining the four
core grounds of appeal:
(i) Whether the current notification requirements breach article 8 of the ECHR.
(ii) Whether the current notification requirements are discriminatory contrary to
article 14 of the ECHR.
(iii) Whether the current notification requirements breach article 7 of the ECHR.
(iv) Whether the current notification requirements breach EU rights.
Summary of the background circumstances of each appellant
[5] Mr Lancaster was convicted on 15 October 2015 of one offence of assisting in
arranging a meeting to be addressed by a person who belongs or professes to belong
to a proscribed organisation (in this case the IRA), contrary to section 12(2)(c) of the
Terrorism Act 2000 and was sentenced to 12 months imprisonment, suspended for
three years. Although he did not spend any time in custody, the appellant was
subject to notification requirements under the 2008 Act for a period of 10 years
pursuant to section 53(1)(c) of the 2008 Act.
[6] Mr McDonnell was convicted on 4 December 2013 of five counts of possessing
documents or records likely to be useful to a person committing or preparing an act
of terrorism, contrary to section 58(1)(b) of the Terrorism Act 2000. He received a
determinate custodial sentence (“DCS”) of three years and six months, divided as
one year and nine months in custody and one year and nine months on licence. Like
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