Hegarty (Neil) v The Department of Justice and The Parole Commissioners for Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Stephens LJ |
| Judgment Date | 01 April 2019 |
| Neutral Citation | [2019] NICA 16 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 01 April 2019 |
1
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_________
BETWEEN:
NEIL HEGARTY
Appellant:
-and-
THE DEPARTMENT OF JUSTICE and
THE PAROLE COMMISSIONERS
FOR NORTHERN IRELAND
Respondents:
Neil Hegarty’ Application for Judicial Review
_________
Before: Stephens LJ, Treacy LJ and Sir Richard McLaughlin
________
STEPHENS LJ (delivering the judgment of the court)
Introduction
[1] This is an appeal against the dismissal by McCloskey J of an application for
judicial review brought by Neil Christopher Hegarty (“the appellant”) a sentenced
offender who seeks to impugn two decisions dated 6 December 2017, namely:
(a) a decision by a Single Commissioner of the Parole Commissioners of
Northern Ireland (“the Commissioners”) pursuant to Article 28(2)(a) of
the Criminal Justice (NI) Order 2008 (“the 2008 Order”) to make a
“recommendation” that the appellant’s licence should be revoked and
he should be recalled to prison; and
Neutral Citation No: [2019] NICA 16
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: STE10838
Delivered: 1/4/2019
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(b) a subsequent decision by Steven Alison, an official of the Department
of Justice (“the Department”), pursuant to Article 28(2)(a) of the 2008
Order revoking the appellant’s licence and recalling him to prison.
In essence the appellant contends that both decisions were unlawful being based on
an inaccurate and un-particularised assertion that the appellant had stated before
leaving prison that he would not be consenting to the fitting of electronic monitoring
equipment in respect of his curfew. It is submitted that this assertion could and
should have led to further enquiries by the decision makers prior to making their
respective decisions.
[2] The hearing before McCloskey J proceeded as a rolled up hearing of the leave
and the substantive applications. As we have indicated McCloskey J dismissed the
application for judicial review. In this court the appellant proceeded on the basis
that in doing so the application for leave to apply for judicial review was refused. In
the event it is not necessary to decide whether leave was refused or whether the
application was dismissed on the merits as all the parties submitted and we agreed
that if we were of the view that there was an arguable case with a reasonable
prospect of success so that leave should have been granted then we should proceed
to hear and determine the substantive application under Order 53 Rule 5(8) of the
Rules of the Court of Judicature (Northern Ireland) 1980, see Re Rice’s Application
[1998] NI 265 at 268, Re SOS’s Application [2003] NIJB 252 at 254 paragraph [5] and
Jordan's (Theresa) Application [2018] NICA 34 at paragraph [3]. On that basis the
hearing before us was a rolled up hearing.
[3] Mr Hutton appeared on behalf of the appellant. Mr Sayers appeared on
behalf of the Commissioners for Northern Ireland. Mr McGleenan QC and
Mr McAteer appeared on behalf of the Department.
The statutory provision
[4] The recall of offenders while on licence is governed by Article 28 of the 2008
Order. Article 28(2) in so far as it relates to the Department provides that it may
revoke the appellant’s licence and recall the appellant to prison if (a) recommended
to do so by the Commissioners or (b) without such a recommendation if it appears to
the Department that it is expedient in the public interest to recall the appellant
before such a recommendation is practicable. It can be seen that it is the Department
under Article 28(2) that makes the decision whether to revoke and recall not the
Commissioners. Furthermore before the Department can make such a decision
under Article 28(2)(a) there must be (i) a recommendation by the Commissioners and
(ii) the Department must have exercised its own discretion in arriving at a decision.
Of course in making that decision the licence revocation recommendation of the
Commissioners is not binding on the Department. The recommendation is
essentially advisory. The Department may disagree with the Commissioners’
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5 cases
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THE QUEEN v KT
...Re Mullan’s Application [2007] NICA 47 and Hegarty (Neil) v The Department of Justice and The Parole Commissioners for Northern Ireland [2019] NICA 16. Conclusion [67] We exercise our discretion to quash the sentence that was passed on the offender by the judge and in place of it activate t......
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Queen v KT - DPP Ref (Number 2 of 2019)
...Re Mullan’s Application [2007] NICA 47 and Hegarty (Neil) v The Department of Justice and The Parole Commissioners for Northern Ireland [2019] NICA 16. Conclusion [67] We exercise our discretion to quash the sentence that was passed on the offender by the judge and in place of it activate t......
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Director of Public Prosecution's Reference (Number 6 of 2019) - Ian David Price
...Re Mullan’s Application [2007] NICA 47 and Hegarty (Neil) v The Department of Justice and The Parole Commissioners for Northern Ireland [2019] NICA 16. [79] The offender should present himself at Maghaberry prison by 10am on 6 February 2020 to serve his sentence. ...
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Smyth's (Kieran) Application
...Hinton’s Application [2003] NI 139, Adair’s Application [2003] NIQB 16; Foden’s Application [2014] NIJB 133; Hegarty’s Application [2019] NICA 16, Re Mullan [2007] NICA 47 and Re Rainey [2019] NICA 76. [37] From these various decisions the following principles, which may be relevant to this......
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