McGuinness's (Deborah) Application (No 2) v The Sentence Review Commissioners
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2019] NIQB 85 |
| Date | 18 September 2019 |
| Court | Queen's Bench Division (Northern Ireland) |
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Neutral Citation No: [2019] NIQB 85
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC11071
Delivered: 18/09/19
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY DEBORAH McGUINNESS
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (No 2)
-v-
THE SENTENCE REVIEW COMMISSIONERS
________
McCLOSKEY LJ
Introduction
[1] By the earlier judgment of this court, then constituted as a panel of two
judges, delivered on 1 August 2019 it was determined that this application for leave
to apply for judicial review is neither a criminal cause nor a criminal matter. This
determination has not been challenged on appeal. Given the liberty of the citizen
factor, this case has been processed on a fast track from its inception and in
accordance with the so-called “rolled up” procedural mechanism.
The Challenge
[2] Deborah McGuinness (“the applicant”) is the surviving sister of one of the
victims of murders perpetrated by Michael Stone in a notorious attack on mourners
at Milltown Cemetery, Belfast on 22 March 1988. The agency known as the Sentence
Review Commissioners (“the SRC”), a public authority established by the Northern
Ireland (Sentences) Act 1998, is the Respondent.
[3] The principal interested party in these proceedings, legally represented
throughout, is Michael Stone (hereinafter “the prisoner/Mr Stone”), a convicted
murderer of some notoriety sentenced to life imprisonment in 1989 for the
aforementioned murders and certain related offences and whose victims include the
brother of the applicant, Thomas McErlean deceased (“the deceased”) .
[4] Other agencies to be noted are the Parole Commissioners, a public authority
established by the Life Sentences (NI) Order 2001; The Department of Justice (the
“Department”) which has significant functions and responsibilities under the last
mentioned measure; and the Secretary of State for Northern Ireland (the “Secretary of
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State”) who previously exercised important functions and responsibilities relating to
life prisoners, and who has a relevant rule making function and is the respondent in
the ongoing forum of the uncompleted proceedings before the SRC.
[5] The essence of the applicant’s challenge can be gleaned from the Order 53
Statement, as amended:
“3.1 The applicant seeks to challenge three decisions
related to the consideration of the inmate, Michael Stone
…., for early release:
3.2 The decision of the Sentence Review Commissioners
to accept the application made by the prisoner for early
release ….
3.3 The decision of the single Commissioner …. to
direct that the application …. be the subject of a
preliminary indication by a panel of Sentence Review
Commissioners.
3.4 The decision of the Sentence Review Commissioners
to not provide information about the proceedings before
them and the decisions made in relation to the application
of the prisoner for early release to the applicant.”
In short, the central question to be determined by the court is whether the SRC is
legally competent to consider Mr Stone’s case at this stage and to engage in actions
and decisions having legal effects and consequences.
Statutory Framework
[6] There is an assortment of statutory provisions, of both primary and
subordinate legislation, bearing directly or indirectly and to a greater or lesser extent
on the issues to be considered. These are assembled in the Appendix to this
judgment. I shall attempt the following summary:
(i) The Northern Ireland (Sentences) Act 1998 (the “1998 Act”) established
the SRC as a new public authority, per section 1.
(ii) Section 3 (“Applications”), under the umbrella of “Eligibility for
Release”, created the mechanism of a declaration of eligibility for
release. It allows any qualifying prisoner to apply to the SRC for this
species of declaration.
(iii) By section 3(2) (and following) the SRC is empowered to make such a
declaration only if specified conditions are satisfied. In the particular
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case of life prisoners the fourth of the statutory conditions is that “…if
released immediately, he would not be a danger to the public”, per section
3(6).
(iv) The application must be in respect of a “qualifying offence” as defined,
namely one committed before 10 April 1998 and of the “scheduled”
variety, per section 3(3)(a) and (7).
(v) Per section 6: where the SRC accedes to the application the declaration
granted must specify a day “… which they believe marks the completion of
about two thirds of the period which the prisoner would have been likely to
spend in prison”, per section 6(1), and this, per section 6(2), triggers a
right to be released on licence.
(vi) Section 8 empowers the Secretary of State for Northern Ireland
(“SOSNI”) to apply to the SRC to revoke a declaration under section
3(1) prior to release.
(vii) A release licence must contain the three conditions specified in section
9(1) and only these conditions, namely not supporting a terrorist
organisation, non-engagement in terrorism and, as regards life
prisoners, not becoming a danger to the public: per section 9(1).
(viii) SOSNI is empowered to suspend a licence under section 4 or section 6
based on a specified belief, which will then entail the SRC exercising
the power of either (a) confirming the licence if it “thinks” that the
prisoner has not broken and is not likely to break a condition or (b)
otherwise revoking the licence: per section 9(4).
(ix) Section 16 empowers SOS NI to make an order suspending, or later
reviving, the operation of section 3, viz the core regime established by
the statute. Such an order cannot affect any sentence in respect whereof
a licence under the statute is either current or suspended.
(x) By a combination of section 2 of and Schedule 2 to the 1998 Act SOSNI
is empowered to make rules prescribing “the procedure to be followed in
relation to proceedings of the Commissioners under this Act”.
(xi) Following upon this general empowerment there is a series of specific
provisions whereby SOSNI “may” make rules of a certain type. By
paragraph 8 of Schedule 2 the rules “… may prevent successive
applications under any provision of this Act being made in specific
circumstances”.
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