Coulter's (Andrew) Application and in the matter of a decision of The Secretary of State for Justice
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 05 December 2022 |
| Neutral Citation | [2022] NIKB 31 |
| Court | King's Bench Division (Northern Ireland) |
| Date | 05 December 2022 |
1
Neutral Citation No: [2022] NIKB 31
Judgment: approved by the court for handing down
(subject to editorial corrections) *
Ref: SCO12004
ICOS No: 22/097621/01
Delivered: 05/12/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY ANDREW COULTER
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION OF
THE SECRETARY OF STATE FOR JUSTICE
___________
Ivor McAteer KC and David McKeown (instructed by McConnell Kelly, Solicitors) for the
applicant
Laura Curran (instructed by the Crown Solicitor’s Office) for the respondent
___________
SCOFFIELD J
Introduction
[1] The applicant is a recalled prisoner who seeks to challenge a decision of the
Secretary of State for Justice (“the Secretary of State”) to decline to grant him
‘executive re-release’, pursuant to section 255C of the Criminal Justice Act 2003 (“the
2003 Act”).
[2] Mr McAteer KC appeared for the applicant with Mr McKeown; and
Ms Curran appeared for the respondent. I am grateful to all counsel for their helpful
written and oral submissions.
[3] This case is somewhat unusual because it involves application of provisions
within Chapter 6 of Part 12 of the 2003 Act which do not frequently fall for
consideration by the courts of this jurisdiction and, in fact, do not appear to have
legal effect in this jurisdiction (see the extent provisions in section 337 of the 2003
Act). The reason for this is that the applicant was sentenced, released and later
subject to recall in England and Wales. The consequences of that recall are now
being felt in Northern Ireland, since the applicant has recently been detained in this
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jurisdiction and the Secretary of State’s decision-making which is at issue in these
proceedings governs the applicant’s current status here. Having considered the
guidance given by the Court of Appeal in Re McVeigh’s Application [2014] NICA 23 in
an analogous context, I am satisfied that I have jurisdiction to determine the case.
No issue was raised by the respondent as to the court’s jurisdiction or to the
Administrative Court in England and Wales being a more convenient forum to deal
with the application. For similar reasons to those considered in the McVeigh case, it
seems to me that this was an entirely responsible approach on the part of the
respondent.
[4] The application was also brought on for hearing quickly, and on a rolled-up
basis, in light of the applicant’s contention that his liberty is at stake and that he
should be immediately released. The target of the challenge has altered since the
proceedings were issued on an emergency basis and as matters have developed; but
it is now squarely focused on the issue identified in para [1] above.
Factual background
[5] The applicant moved to England from Northern Ireland in 2007 due to a
threat which had been made against him. While he was living in England, he
received a custodial sentence of 12 months and one day in that jurisdiction on
2 November 2007 for offences of aggravated vehicle taking, driving with excess
alcohol, driving with no insurance and driving whilst disqualified. He was initially
imprisoned in HMP Reading but was subsequently released on home detention
curfew on 14 January 2008. He then transferred to normal licence conditions in the
community from 7 April 2008 and was due to remain on licence until 7 October 2008.
It seems that he had indicated to the probation authorities in England at that time
that he wished to return home to his father’s address in Belfast; but this request was
never approved.
[6] The applicant was then subsequently charged (again, in England) with an
offence of assault on 2 April 2008. He then failed to report for supervision under the
conditions of his licence on three occasions. He made no contact with the relevant
authorities and provided no reason as to his non-engagement. He also stopped
residing at the approved premises in which he was required to reside under the
terms of his licence and, relatedly, failed to inform the probation authorities of his
change of address. He then also failed to attend court to answer the charge of
assault in May 2008.
[7] As a result of the events described immediately above, the applicant’s licence
was revoked and he was recalled to prison on 3 June 2008 pursuant to section 254 of
the 2003 Act. By that time, however, as we now know, he had returned to Northern
Ireland to reside with his father. By virtue of section 254(6), when his licence was
revoked at the point of recall, the applicant was then liable to be detained in
pursuance of his sentence and, whilst at large, was to be treated as being unlawfully
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