Marks (Terence) Application for Judicial Review and in the matter of a decision of The Minister for Justice
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Neutral Citation | [2022] NIQB 57 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 26 August 2022 |
1
Neutral Citation No: [2022] NIQB 57
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11910
ICOS No: 22/053342/01
Delivered: 26/08/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY TERENCE MARKS
FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION OF
THE MINISTER FOR JUSTICE
___________
John Larkin QC and Aoife Macauley (instructed by McNamee McDonnell, Solicitors) for
the Applicant
Tony McGleenan QC and Philip McAteer (instructed by the Departmental Solicitor’s
Office) for the Respondent
Tony McGleenan QC and Philip McAteer (instructed by the Crown Solicitor’s Office) for
the Notice Party
___________
SCOFFIELD J
Introduction
[1] By this application for judicial review, the applicant, Terence Marks, seeks to
challenge a decision of the Minister in charge of the Department of Justice in
Northern Ireland (“the Minister”) not to exercise the Royal Prerogative of Mercy
(RPM) in his favour. The central ground of challenge is that the Minister has erred in
law in considering that any exercise of the RPM in respect of the applicant is a matter
for the Secretary of State for Northern Ireland (“the Secretary of State”), who has
been joined as a notice party to these proceedings, rather than for her, the Minister.
For his part, the Secretary of State agrees with the Minister’s analysis. As presented,
the application does not concern the substance of a decision on the exercise of the
RPM in the applicant’s case; but merely the question of who is the correct office-
holder to consider the matter.
2
[2] Mr Larkin QC and Ms Macauley appeared for the applicant. Mr McGleenan
QC and Mr McAteer appeared for both the Minister and the Secretary of State. I am
grateful to all counsel for their helpful written and oral submissions.
Criminal cause or matter
[3] Since the key issue in contention is (what has been referred to as) the
‘allocation’ of the RPM, the applicant did not consider that this application was a
criminal cause or matter for the purposes of RCJ Order 53, rule 2 or onward appeal
rights under the Judicature (Northern Ireland) Act 1978. The respondent and notice
party agreed with this analysis.
[4] If the issue in contention was the legality of a substantive refusal to exercise
the RPM, further consideration may have had to be given to whether or not such a
challenge was a criminal cause or matter. In R v Secretary of State for Northern Ireland,
ex parte Hannaway and Others (as the National Graves Association) [1995] NI 159, it was
assumed that such a challenge had a criminal character and the application was
heard by a Divisional Court of the Queen’s Bench. In contrast, in Re McGeough’s
Application [2012] NIQB 11 and [2012] NICA 28, the matter was treated as not
constituting a criminal cause or matter. In light of the relatively recent guidance
provided by the Supreme Court in Re McGuinness’ Application [2020] UKSC 6, it
seems to me likely that such a case would properly now be considered not to fall
within the category which required to be heard by a Divisional Court, since the
question of whether a penalty which had previously been imposed (either by a court
or by operation of law) ought, by the exercise of the RPM, to be remitted would not
be one “focused directly on the process for bringing and determining criminal
charges” (see para [69] of the judgment of Lord Sales). For present purposes,
however, that does not need to be determined; and I proceed on the basis of the
position agreed between the parties, which appears to me to be correct.
Factual Background
[5] The applicant was one of six persons sentenced by Colton J on 13 November
2020. He was sentenced in respect of two charges, namely (1) belonging to or
professing to belong to a proscribed organisation contrary to section 11(1) of the
Terrorism Act 2000 (“the Terrorism Act” or “the 2000 Act”); and (2) receiving
weapons training or instruction contrary to section 54(2) of the Terrorism Act. In
respect of each count, the applicant received a sentence of four years’ imprisonment,
with the custodial period being specified as 50% of the pronounced term. The
sentencing remarks are reported as R v Morgan & Others [2020] NICC 14. Both
sentences were to run concurrently.
[6] Mr McGleenan took care to direct my attention to the sentencing remarks of
the trial judge, which provide details of the applicant’s offending behaviour. The
prosecution arose from covert surveillance of a property in Newry, during which a
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