Mackle (Gabriel) Application for Judicial Review and in the matter of decisions of The Department of Justice
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 17 February 2023 |
| Neutral Citation | [2023] NIKB 13 |
| Date | 17 February 2023 |
| Court | King's Bench Division (Northern Ireland) |
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Neutral Citation No: [2023] NIKB 13
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: SCO12074
ICOS No: 21/003739/01
Delivered: 17/02/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY GABRIEL MACKLE
FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF
THE DEPARTMENT OF JUSTICE
___________
Karen Quinlivan KC and Andrew Moriarty (instructed by Madden & Finucane,
Solicitors) for the Applicant
Tony McGleenan KC and Philip McAteer (instructed by the Departmental Solicitor’s
Office) for the Respondent
___________
SCOFFIELD J
Introduction
[1] By this application, the applicant, Gabriel Mackle, challenged new
arrangements for the supervision of his licence by the Department of Justice in
Northern Ireland (“the Department”) under the Multi-Agency Review
Arrangements (known as “MARA”). These are arrangements for cooperation
between the Department, the Northern Ireland Prison Service (NIPS), the Probation
Board for Northern Ireland (PBNI) and the Police Service for Northern Ireland
(PSNI) in respect of the effective management of the risks posed by terrorist-related
offenders (TROs); and the term ‘MARA’ is also colloquially used as a collective noun
for those organisations when acting pursuant to those arrangements.
[2] In particular, the applicant sought to challenge the decisions on the part of the
Department, corresponding on behalf of MARA, by which it determined that the
following additional conditions were to be attached to his licence, namely:
(i) That travel into the Republic of Ireland within a 10 mile radius of Mr Mackle’s
approved address (which is in Forkhill, Co Armagh) would be for essential
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domestic purposes only. In particular, this travel was limited to: conveying
his child to and from school (and attending related school events such as
parent-teacher meetings); shopping; refuelling at petrol stations in the
Republic of Ireland; and dog walking for leisure purposes.
(ii) That, in respect of travel further than 10 miles from his approved address in
the Republic of Ireland, or for non-essential or leisure purposes (for example,
socialising with friends or attendance at GAA games) applications for
permission to travel into the Republic of Ireland would require to be
submitted on a case-by-case basis.
[3] The applicant sought declarations that the restrictions contained in the
additional licence conditions to the effect mentioned above were unlawful; and an
order of certiorari quashing them, as well as damages. The applicant’s grounds of
challenge are that the impugned conditions are in breach of his rights under article 8
ECHR; in breach of his rights under article 14 ECHR (taken together with his rights
under article 8); and that they are irrational and/or so unfair as to be Wednesbury
unreasonable. As appears from the discussion below, the applicant’s licence has in
fact now expired. This judgment on the application is nonetheless provided as it
would be relevant to the claim for damages on the applicant’s part but, in any event,
raises some issues of principle which may well arise in future cases.
[4] Ms Quinlivan KC appeared with Mr Moriarty for the applicant; and
Mr McGleenan KC appeared with Mr McAteer for the respondent. I am grateful to
all counsel for their written and oral submissions.
Factual Background
[5] The applicant was sentenced in Antrim Crown Court on 5 June 2014 for the
offences of possessing explosives with intent to endanger life or cause serious injury
to property and possession of ammunition with intent to endanger life. These
offences arose out of an incident on 7 August 2013, when the police stopped the
applicant riding a motorcycle. As a result of a search, he was found to be in
possession of 20 rounds of ammunition and a bottle of liquid suspected to be
mercury.
[6] The applicant received a determinate custodial sentence which involved four
years in custody, followed by a further period of four years on licence. The
applicant was released from custody on 6 August 2017. His sentence licence expiry
date was 6 August 2021. However, on 9 November 2017, he was recalled to custody.
This arose after he attended a hunger strike commemoration event in Bundoran
organised by Republican Sinn Féin on 26 August 2017, at which he was a guest of
honour and was awarded a plaque as a recently released “prisoner of war.”
Photographs of the event showed a group of around ten masked men wearing what
appeared to be military uniforms, dark glasses, and berets. On a further occasion, on
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