Kielan Allen v Northern Ireland Prison Service
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 15 September 2020 |
| Neutral Citation | [2020] NICA 40 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 15 September 2020 |
1
Neutral Citation No: [2020] NICA 40
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC11307
Delivered: 15/09/2020
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
__________
IN THE MATTER OF AN APPLICATION BY KIELAN ALLEN
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
v
NORTHERN IRELAND PRISON SERVICE
________
Before: McCloskey LJ and Huddleston J
________
McCLOSKEY LJ (delivering the judgment of the court)
Introduction
[1] Kielan Allen (“the Appellant”), a sentenced prisoner, appeals to this court
against the decision and order at first instance of the Lord Chief Justice, sitting as
vacation duty judge, dated 17 August 2020, whereby his application for leave to
apply for judicial review challenging a sentence calculation decision of the
Respondent, the Northern Ireland Prison Service (the “Prison Service”) was
dismissed. The impugned decision is to the effect that the Appellant’s release from
sentenced custody will take place on 21 September 2020. The Appellant’s case is that
as a matter of law he should have been released from prison on 08 August 2020. The
resolution of this appeal turns on (a) the construction of section 26(2A)(b)(i) of the
Treatment of Offenders Act (NI) 1968 and (b) the application of this statutory
provision to the relevant factual matrix.
[2] To the foregoing dates and events we would add the following:
(a) The first instance decision having been made on 17 August 2020, the
Notice of Appeal is dated 24 August 2020.
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(b) Legal aid for the purpose of prosecuting this appeal was granted to the
Appellant on 28 August 2020.
(c) The appeal first came to the attention of this court when the papers
were referred to me as duty Court of Appeal judge on 02 September
2020. The appeal was accorded maximum priority thenceforth.
(d) Between 02 September and 04 September the court issued a series of
case management directions and on the latter date conducted a
comprehensive case management/review hearing (by video link).
(e) The substantive hearing proceeded and was completed on 07 and
09 September 2020. Completion of the hearing on the first of these
dates was not possible on account of the twin factors of limited court
time and the need to issue further directions to the parties.
[3] A preliminary observation is appropriate. The factual matrix of the case at
this, the appeal, stage, differs significantly from that before the court at first instance.
This arises inter alia because of the generation of further material information
following promulgation of this court’s initial case management directions. Taking
into account that the case involves the liberty of the citizen there was, very properly,
no objection by the Prison Service to the adduction of this further evidence. It was
admitted by a case management ruling of this court on 04 September 2020. Further,
new evidence, of a documentary nature, was also admitted. In this context it is
appropriate to record the court’s appreciation of the parties’ commendable responses
to the demands and exigencies arising from the court’s directions and their
co-operation with the court generally.
Factual Matrix
[4] Summarising and before proceeding to some of the detail, the Appellant was
the subject of five separate prosecutions involving a total of 18 offences. These
offences fall into two groups of 17 and one respectively. The alleged offences
belonging to the first group culminated in the sentencing of the Appellant to seven
months’ imprisonment (following a successful appeal against sentence) on 31 July
2020 (the “sentencing date”). The sole member of the second group, an alleged
offence of having inflicted grievous bodily harm with intent contrary to section 18 of
the Offences Against the Person Act 1861, gave rise to a free standing charge (the
“GBH charge”) which, ultimately, was formally withdrawn (on 27 July 2020).
[5] The chronology in a little more detail is as follows:
(a) The first eight offences belonging to the first group all allegedly
occurred on 10 March 2020. They involved charges of criminal
damage, tampering with a vehicle, disorderly behaviour, resisting
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4 cases
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Conway's (Kevin) Application
...and the same principles apply as long as there is no period of release between the imposition of the sentences.” [19] In Re Allen [2020] NICA 40, the Court of Appeal emphasised that: “In every section 26 case, the court must be scrupulously faithful to every part of the interlocking and cum......
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Heaney's (Lee) Application
...(and not for any other reason).” [emphasis added] [16] Section 26A was considered in some detail by this court in Re Allen’s Application [2020] NICA 40. There the court made the following general observation, at para [13]: “The scheme of section 26 of the 1968 Act is to credit sentenced pri......
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Conway's (Kevin) Application
...recently in the case of An Application by Kielan Allen for Leave to Apply for Judicial Review v Northern Ireland Prison Service [2020] NICA 40. That case involved an applicant seeking credit for remand time in respect of a charge which was ultimately withdrawn. The challenge turned on wheth......
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McCann's (Darryl) Application and in the matter of a decision of the Northern Ireland Prison Service
...A. Section 26 is not designed to give credit for “sentenced custody”: see para [13] of McCloskey LJ’s judgment in Re Allen’s Application [2020] NICA 40; and see para [21] of Humphreys J’s judgment in Re Conway’s Application [2022] NICA 18. [17] Where an accused is remanded in custody in rel......