McCafferty (Terence Damien Patrick) v Secretary of State for Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Stephens J |
| Judgment Date | 26 May 2016 |
| Neutral Citation | [2016] NIQB 47 |
| Year | 2016 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 26 May 2016 |
1
Neutral Citation No. [2016] NIQB 47 Ref:
STE9987
Judgment: approved by the Court for handing down Delivered:
26/5/2016
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION
_______
Between
TERENCE DAMIEN PATRICK McCAFFERTY
Plaintiff:
-and-
SECRETARY OF STATE FOR NORTHERN IRELAND
Defendant:
-------------------------
STEPHENS J
Introduction
[1] This is an application by the Secretary of State for Northern Ireland (“the
Secretary of State”) for a declaration pursuant to Section 6 of the Justice and Security
Act 2013 (“the 2013 Act”) and Order 126, Rule 21 of the Rules of the Court of
Judicature (Northern Ireland) 1980 that these proceedings are proceedings in which
a closed material application may be made to the court. The proceedings in question
are a claim by Terence Damien Patrick McCafferty (“the plaintiff”) against the
Secretary of State in relation to the alleged unlawful revocation on 18 December 2008
by the then Secretary of State of a licence, under which the plaintiff was discharged
from prison on 21 November 2008, which revocation resulted in the plaintiff
returning to prison on 22 December 2008 and remaining in prison until 1 April 2010.
[2] The application for a declaration by the Secretary of State involved both an
open statement of reasons dated 19 June 2014 and a closed statement of reasons. In
such circumstances the Advocate General for Northern Ireland, pursuant to Section
9 of the 2013 Act, appointed special advocates “to represent the interests of” the
plaintiff in that part of this application “from which the plaintiff and his legal
representatives are excluded.”
2
[3] Dr McGleenan QC and Mr Coll QC appeared on behalf of the Secretary of
State. Mr O’Donoghue QC and Mr Devine appeared on behalf of the plaintiff in
those parts of this application which were open. Mr Simpson QC and
Ms Murnaghan QC were the special advocates appointed by the Advocate General
for Northern Ireland to represent the interests of the plaintiff in those parts of this
application which were closed. I am grateful to all counsel for their assistance. In
this open judgment I give reasons for my decision. In the event, it is unnecessary to
produce a closed judgment in addition to this open judgment, see McGartland and
another v Secretary of State for the Home Department [2015] EWCA Civ 686 at paragraph
[8] and XH v Secretary of State for the Home Department [2015] EWHC 2932 (Admin) at
paragraph [3].
The role of special advocates
[4] Section 9 of the 2013 Act provides that a special advocate is a person appointed
to represent the interests of a party in any Section 6 proceedings from which the party
(and any legal representative of the party) is excluded. Sections 8 (1) and 14 define
“section 6 proceedings” as any relevant civil proceedings in relation to which there is
a declaration under Section 6 and includes any proceedings treated as Section 6
proceedings by any enactment. Section 11 (4) (a) provides that, amongst other
proceedings, proceedings on, or in relation to, an application for a declaration under
Section 6 are to be treated as Section 6 proceedings. The application for a declaration
is within the definition of Section 6 proceedings. Mr Simpson submitted that as a
special advocate only represented the interests of the plaintiff in those parts of the
proceedings from which the party (and any legal representative of the party) is
excluded that the special advocates did not have any ability to represent the interests
of the plaintiff in the open proceedings. In support of that submission he relied, not
only on Section 9, but also on Order 129 Rule 9 which is headed “Functions of a
special advocate.” That Rule provides
“9. The functions of a special advocate are to
represent the interests of a specially represented party
by—
(a) making submissions to the court at any hearing
or part of a hearing from which the specially
represented party and the specially
represented party’s legal representatives are
excluded;
(b) adducing evidence and cross-examining
witnesses at any such hearing, or part of a
hearing;
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3 cases
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Gallagher's (Michael) Application
...[30] A decision which may go further than the authorities cited above is that of McCafferty v Secretary of State for Northern Ireland [2016] NIQB 47. When considering section 6(7) Stephens J at paragraph [26] commented that it was “not formulaic” and required the Secretary of State to consi......
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Morley (Eilish) and Ministry of Defence, Peter Keeley and the Chief Constable of the Police Service of Northern Ireland
...respectfully did not support that analysis. [6] As I stated at paragraph [6] in McCafferty v The Secretary of State for Northern Ireland [2016] NIQB 47, the Special Advocates have no authority to make concessions on behalf of the plaintiff. The court remains bound to consider the applicatio......
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Higgins (Simone Kathleen) and Lee (Anthony) V The Chief Constable of the Police Service of Northern Ireland
...a closed judgment in addition to this open judgment for which see paragraph [3] of McCafferty v Secretary of State for Northern Ireland [2016] NIQB 47. [4] Dr McGleenan QC and Mr McEvoy appeared on behalf of the defendant. Mr Lannon appeared on behalf of Ms Higgins. Mr White appeared on beh......