Martin Ward's Application
| Jurisdiction | Northern Ireland |
| Judge | Mr Friedman KC sitting as HCJ |
| Judgment Date | 15 September 2023 |
| Neutral Citation | [2023] NIKB 92 |
| Court | King's Bench Division (Northern Ireland) |
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Neutral Citation No: [2023] NIKB 92
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: FRI12259
ICOS No: 22/97557
Delivered: 15/09/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY MARTIN WARD
FOR JUDICIAL REVIEW
___________
Mr Ronan Lavery KC and Mr Sean Mullan (instructed by Donnelly & Wall Solicitors) for
the Applicant
Mr Tony McGleenan KC and Mr John Rafferty (instructed by the Crown Solicitor’s
Office) for the Respondent
Mr Tony McGleenan KC and Mr Philip McAteer (instructed by the Departmental
Solicitor’s Office) for the Notice Party
________
FRIEDMAN J
Introduction
[1] By this claim for judicial review the applicant challenges that he remained
subject to the notification requirements contained in Part 2 of the Sexual Offences
Act 2003 (‘SOA’) in the period prior to his successfully appealing to the county court
the underlying magistrates’ court conviction and sentence that triggered the
imposition of those requirements. All that follows is predicated upon the fact that he
was eventually found not guilty, but not before the passing of several months of
obligations to provide personal information under the notification regime.
[2] The applicant’s Order 53 statement alleges illegality under domestic law and
the European Convention of Human Rights (‘ECHR’) against the PSNI and
otherwise by way of a declaration of incompatibility pursuant to section 4 of the
Human Rights Act (‘HRA’) that the notification requirements should not have been
enforced pending, as he described it, “the final determination of the criminal
proceedings.”
[3] As to the domestic law argument, the applicant contends that he was treated
contrary to the provisions of Article 140 of the Magistrates’ Courts
(Northern Ireland) Order 1981 (‘the 1981 Order’) which affords an individual
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prosecuted summarily a right to a rehearing de novo and Article 28(1) of the County
Courts (Northern Ireland) Order 1980 (‘the 1980 Order’) which confirms with regard
to the exercise of a statutory right of appeal that it is the decision of the county court
judge which is to be treated as “final and conclusive.” Pending the determination of
the appeal he therefore submits that the status of the conviction and sentence was
neither final nor conclusive, and therefore the notification requirements under Part 2
SOA should not have become operative.
[4] As to the human rights argument, the applicant claims violations under the
ECHR of the presumption of innocence (article 6(2)) and a disproportionate
interference with his right to private and family life (article 8). He argues that the
continuance of the notification requirements while the de novo rehearing was
pending constituted an adverse impact arising from the criminal proceedings in the
lower court that impugned his innocence and disproportionately interfered with his
private life notwithstanding that article 6 continues to apply to all stages of criminal
proceedings including an appeal.
[5] The respondent PSNI defends the claim on the basis that its engagement with
the applicant to establish that he was complying with the notification requirements
was immaterial to their activation. They occurred automatically by the terms of the
legislation applying to the applicant’s particular combination of conviction and
sentence. By reference to those terms and its broader safeguarding duties the
respondent submits it had no discretion to suspend the claimant’s obligations; or to
disapply their effect by choosing not to record and monitor the requisite
information.
[6] In granting leave on the papers, Mr Justice Colton foresaw that a court might
hold as such and ordered amendment of the Order 53 statement to include the
declaration of incompatibility and issuance of devolution notices. The Department of
Justice appeared as a notice party.
[7] In both aspects of their defence of the human rights claim the respondent and
the notice party relied jointly on Strasbourg jurisprudence adopted by the courts
across the United Kingdom. In so far as there was no decision precisely on point by
Strasbourg, it was submitted (by reliance on the Ullah principle) that in the absence
of any or sufficient Strasbourg doctrine to support the claim, this court was
precluded from allowing it.
Facts
[8] The applicant was convicted at Newtownards Magistrates’ Court on
13 December 2021 of the complaint of exposure contrary to Article 70 of the Sexual
Offences (Northern Ireland) Order 2008 (‘the 2008 Order’). The elements of the
offence are that the applicant intentionally exposed his genitals and at the time of
doing so he intended that someone seeing them would be caused alarm or distress.
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