(1) Lancaster (Anthony) (2) Rafferty (Sharon) and (3) McDonnell (Anthony) Application 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
| Jurisdiction | Northern Ireland |
| Judgment Date | 17 February 2023 |
| Neutral Citation | [2023] NIKB 12 |
| Date | 17 February 2023 |
| Court | King's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2023] NIKB 12
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: SCO12073
ICOS No: 19/008027
19/065082
19/068477
Delivered: 17/02/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’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 applicant
Ronan Lavery KC and Malachy Magowan (instructed by Phoenix Law) for the second
applicant
Ronan Lavery KC and Mark Bassett (instructed by Brentnall Legal Ltd) for the third
applicant
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
___________
SCOFFIELD J
Introduction
[1] There are three applications for judicial review before the court which were
heard together, given that they raise common issues. In each case, the applicant is a
registered terrorist offender who is subject to notification requirements under the
Counter-Terrorism Act 2008 (as amended) and associated secondary legislation.
These requirements obligate the applicants to provide the police with a range of
personal details and information and, importantly in the context of these cases, with
details of planned travel outside the United Kingdom.
2
[2] Significantly, the requirements were amended in April 2019 to require
advance notification of any intention to travel outside the United Kingdom, rather
than, as was previously the case, a requirement only to notify an intention to leave
the United Kingdom for a period of three days or more. This enhanced requirement
imposes a materially increased burden on the applicants, each of whom contends
that they have occasion to travel to the Republic of Ireland with varying degrees of
frequency. In addition, the 2019 amendments required notification of additional
categories of information which had not previously been the subject of such a
requirement.
[3] The applications for judicial review collectively raise issues of the statutory
scheme’s compatibility with the applicants’ Convention rights, with EU law relating
to free movement, and with data protection law. All parties agreed, further to the
decision of the United Kingdom Supreme Court in Re McGuinness’ Application [2020]
UKSC 6, that these applications did not constitute a criminal cause or matter for the
purposes of RCJ Order 53, rule 2 or section 35 of the Judicature (Northern Ireland)
Act 1978.
[4] Ms Quinlivan KC and Ms Askin appeared for the first applicant
(Anthony Lancaster); Mr Lavery KC appeared for the second and third applicants
(Sharon Rafferty and Anthony McDonnell) with Mr Magowan and Mr Bassett
respectively; Ms Murnaghan KC appeared with Mr Kennedy and Mr Thompson for
the two respondents (the Police Service of Northern Ireland and the Secretary of
State for the Home Department); and Mr McGleenan KC and Mr McAteer appeared
for the Department of Justice as a notice party, exercising its right to participate
further to service of an incompatibility notice under RCJ Order 120. I am grateful to
all counsel for their helpful written and oral submissions.
The statutory scheme
[5] These proceedings concern Part 4 of the Counter-Terrorism Act 2008 (“the
2008 Act”), which imposes a range of notification requirements on registered
terrorist offenders (RTOs). Section 40 of the Act is introductory in nature and sets
out the scheme of that Part. Sections 41 and 42 specify the offences to which the
notification requirements apply, both terrorism offences and offences having a
terrorist connection. Section 44 specifies the persons to whom the notification
requirements apply, namely a person who is aged 16 or over at the time of being
dealt with for an offence to which Part 4 applies and who is made subject to a
sentence or order triggering the notification requirements. Those sentences or orders
are defined by section 45 and, in this jurisdiction, by section 45(3). Section 53 makes
provision for the period for which the notification requirements apply and
establishes a graduated scheme in this regard, based on the age of the offender and
the type and length of sentence which they have received. The requirements will
apply for a period of 30 years, of 15 years, or of 10 years, depending upon the
circumstances.
3
[6] Section 47 sets out the details which an RTO is required to notify initially,
when first made subject to notification requirements. The information must be
notified to the police within a period of three days beginning with the day on which
the person is dealt with in respect of the offence in question. Section 47(2), in its
present form, provides that:
“The information required is—
(a) date of birth;
(b) national insurance number;
(c) name on the date on which the person was dealt
with in respect of the offence (where the person
used one or more other names on that date, each of
those names);
(d) home address on that date;
(da) all contact details on that date;
(e) name on the date on which notification is made
(where the person uses one or more other names on
that date, each of those names);
(f) home address on the date on which notification is
made;
(fa) all contact details on the date on which notification
is made;
(g) address of any other premises in the United
Kingdom at which, at the time the notification is
made, the person regularly resides or stays;
(ga) identifying information of any motor vehicle of
which the person is the registered keeper, or which
the person has a right to use (whether routinely or
on specific occasions or for specific purposes), on
the date on which notification is made;
(gb) the financial information specified in paragraph 1
of Schedule 3A;
(gc) the information about identification documents
specified in paragraph 2 of Schedule 3A;
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