Larkin's (Michael) Application
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 02 August 2021 |
| Neutral Citation | [2021] NIQB 66 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 02 August 2021 |
1
Neutral Citation No: [2021] NIQB 66
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11580
ICOS No: 21/20435/01
Delivered: 02/08/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF APPLICATION BY MICHAEL LARKIN
FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF
THE NORTHERN IRELAND PRISON SERVICE AND
THE PAROLE COMMISSIONERS FOR NORTHERN IRELAND
___________
Ronan Lavery QC and Malachy McGowan (instructed by Phoenix Law) for the Applicant
Tony McGleenan QC and Laura McMahon (instructed by the Departmental Solicitor’s
Office) for the First Respondent
Donal Sayers QC and Denise Kiley (instructed by Carson McDowell LLP) for the Second
Respondent
___________
SCOFFIELD J
Introduction
[1] By this application for judicial review the applicant, Michael Larkin, a
prisoner currently serving an extended custodial sentence (ECS), challenges
decisions of the Northern Ireland Prison Service (NIPS) in relation to the
non-provision of pre-release testing by way of accompanied and unaccompanied
home leave during the Covid-19 pandemic and, relatedly, a decision of the Parole
Commissioners for Northern Ireland (‘the Commissioners’) made in December 2020
by which they declined to direct his release on licence in the absence of his having
undertaken pre-release testing.
[2] The application raises interesting issues as to the extent to which Article 5
ECHR avails an ECS prisoner still within their appropriate custodial term but who
has served the ‘relevant part’ of their sentence; and the extent to which the prison
authorities were entitled to alter the usual home leave arrangements (particularly
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those which might have an impact on a prisoner’s prospects of release on licence
before the Commissioners) in light of the public health challenges arising from the
pandemic.
[3] Mr Lavery QC appeared with Mr McGowan for the applicant; Mr McGleenan
QC with Ms McMahon for the Department of Justice (‘the Department’), of which
NIPS is an agency; and Mr Sayers QC with Ms Kiley for the Commissioners. I am
grateful to all counsel for their extremely helpful written and oral submissions.
Factual background
The applicant’s offending and sentence
[4] The applicant was sentenced at Craigavon Crown Court on 16 December 2015
to an extended custodial sentence of 15 years, comprised of 10 years’ detention and 5
years’ extended licence for two counts of attempted murder, possession of an
offensive weapon with intent and wounding with intent. Each of these offences had
been committed whilst the applicant was detained in a mental health unit. Mr
Larkin, who had just been detained under the provisions of the Mental Health
(Northern Ireland) Order 1986, attacked the doctor admitting him to the relevant
unit within hospital, including by cutting his throat with a Stanley knife. Two days
later, whilst the applicant was under special observation, he attacked a mental health
support worker with a toothbrush which had been sharpened, stabbing or slashing
him a number of times, resulting in a laceration in his neck which bled. Mr Larkin
had a history of mental health issues, including paranoia which gave rise to
delusions by virtue of which he believed that people were trying to kill him or were
secretly listening to and recording him. It was considered that, at the time of the
index offences, the applicant’s thought processes and perception were disturbed by
the effects of acute psychotic illness. Nonetheless, the offences were plainly very
serious.
[5] The applicant’s parole eligibility date (PED) was 7 October 2019 and he has
therefore been eligible for release since that date, subject to being assessed by the
Commissioners as suitable for release. The applicant’s custody expiry date (CED) is
6 October 2024, at which point he is entitled to release on licence. His ultimate
sentence and licence expiry date (SLED) is 6 October 2029.
The initial consideration of the applicant’s case by the Commissioners
[6] The test for release at this point in the applicant’s sentence is contained in
Article 18 of the Criminal Justice (Northern Ireland) Order 2008 (‘the 2008 Order’)
which requires the Commissioners not to direct the release of a prisoner unless they
are “satisfied that it is no longer necessary for the protection of the public from serious harm
that the prisoner should be confined”.
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2 cases
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Coulter's (Andrew) Application and in the matter of a decision of The Secretary of State for Justice
...that the applicant’s continued detention arises from the order of the sentencing court (see the discussion in Re Larkin’s Application [2021] NIQB 66 at paras [44]-[50]) and given that his particular predicament is likely to be a highly unusual one arising out of the chronology of his offend......
-
Frane's (Shane) Application
...5(1)(a). Once access to the relevant courses was afforded the detention would become lawful once more. [27] In Re Larkin’s Application [2021] NIQB 66, Scoffield J considered the Brown and James principles in light of the restrictions imposed by the Covid-19 pandemic. Noting that the article......