Pearce's (Thomas) Application v Department of Justice
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 11 March 2020 |
| Neutral Citation | [2020] NIQB 23 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 11 March 2020 |
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Neutral Citation No: [2020] NIQB 23
Judgment: approved by the Court for handing down IN
DRAFT and subject to editorial corrections
Ref: McC11094
Delivered: 11/03/20
[22/11/2019]
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY THOMAS PEARCE
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
-v-
DEPARTMENT OF JUSTICE
________
Before: McCloskey LJ, Huddleston J and His Honour Judge McFarland,
Recorder of Belfast
________
McCLOSKEY LJ (delivering the judgment of the court)
Criminal cause or matter?
[1] The question of whether these proceedings attract the “criminal cause or
matter” provisions of the Judicature (NI) Act 1978 (the “1978 Act”) was raised
proactively by the court at an early stage. The applicable provisions of the 1978 Act
are section 41(1), section 120 and Schedule 2. This elicited competing contentions on
behalf of the parties.
[2] This question arose in two recent decisions of the High Court, namely
Re McGuinness’ Application (No 1) [2019] NIQB 10 and Re McGuinness’ Application
(No 2) [2019] NIQB 76. In the first of these cases the decision impugned was that of
the Secretary of State for Northern Ireland (the “Secretary of State”) referring a
prisoner’s case to the Parole Commissioners for Northern Ireland for consideration,
pursuant to Article 6(4)(a) of the Life Sentences (NI) Order 2001. In the second of
these cases, involving the same challenging party and the same prisoner, the High
Court determined that the criminal cause or matter provisions of the 1978 Act did
not apply to decisions made by the Parole Commissioners under a different
statutory regime, namely the Northern Ireland (Sentences) Act 1998,
notwithstanding the recognition of “multiple criminal justice trappings”: see [38] – [40]
and [45].
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[3] In McGuinness No 1, following certification by the High Court under section
41 of and Schedule 2 to the 1978 Act and the ensuing grant of leave to appeal by the
Supreme Court, the criminal cause or matter characterisation of those proceedings
became an issue in consequence of an intervention by the Attorney General for
Northern Ireland (“AGNI”). A matter of choreography arose, given that the Supreme
Court heard the appeal in McGuinness No 1 on 16 October 2019 and the hearing of
the present case occurred on 04 November 2019. This court determined to complete
the hearing, while ruling that it would not promulgate its substantive decision until
that of the Supreme Court had been made available.
[4] The Supreme Court promulgated its decision in Re McGuinness No 1 on 19
February 2020: see [2020] UKSC 6. The effect of that decision is that the instant case is
not a criminal cause or matter.
The Challenge
[5] In its initial incarnation, the substance of this judicial review challenge, which
is proceeding via the so-called “rolled-up” mechanism, entailed firstly the contention
that the Violent Offences Prevention Order (Notification Requirements) Regulations
(NI) 2016 (the “Violent Offences Regulations”) are unlawful. The second challenge is
that the Violent Offences Prevention Order (“VOPO”) made in respect of the
Applicant is unlawful. The species of illegality asserted is an infringement of his
rights under Articles 7 and 8 of the European Convention on Human Rights
(“ECHR”), contrary to section 6 of the Human Rights Act 1998 (“HRA 1998”).
[6] Given the first of the challenges noted above, among the formal documents
generated by these proceedings are a HRA 1998 Act Notice pursuant to Order 121,
Rule 2 of the Rules of the Court of Judicature of Northern Ireland 1980 (“the Rules”)
and a Notice specifying a Devolution Issue pursuant to Order 120, Rule 2. This
stimulated the response of AGNI noted in [3] above. In the event, at the hearing the
court was informed by Mr Ronan Lavery QC (with Mr Conan Fegan, of counsel)
representing the Applicant that, following consideration, it had been decided not to
maintain the first challenge. The issue of Respondent parties was also clarified and
resolved. As a result the case proceeded against the following two agencies:
(a) The first, the Department of Justice (“DOJ”), is the authority
which devised the Violent Offences Regulations.
(b) The second is the County Court Judge who affirmed the
impugned VOPO on appeal.
The judge elected not to be represented.
The Applicant and the Impugned VOPO
[7] The Applicant has not sworn any affidavit. The following averments in the
first of three affidavits sworn by his solicitor, Mr Ciaran O’Hare, set the scene:
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“An application by the PSNI has been made for a Violent
Offences Prevention Order (VOPO) against the Applicant
following his release from custody on 25 April 2017. He
has served a full term extended custodial sentence of six
years in relation to violent offending against his ex-
girlfriend. This is only the third VOPO to be issued in
Northern Ireland …
His prison history was such that he was not admitted to
parole on his first application and it took a few attempts
before he was eventually released. His release was short-
lived because he almost immediately dis-engaged with
probation and left his notified address to return to
Banbridge where he was excluded …. that his ex-girlfriend,
the injured party, still resided there. When police came to
arrest him he evaded them by jumping from a balcony.
These events meant his licence was revoked and since then
he remained in custody until his release on 25 April 2017.”
This precipitated a police application, on notice to the Applicant, for an interim
VOPO, giving rise to two successive interim VOPOs, dated 24 April 2017 and
11 May 2017 respectively: see [8] infra.
[8] At this juncture it is convenient to insert the following chronology:
(i) 03 July 2008: convictions of the Applicant for the first series of
offences identified in the PSNI application to the court for an
interim VOPO.
(ii) 15 December 2008: further convictions of the Applicant,
including a Crown Court conviction for the offence of
wounding, punished by imprisonment for 18 months.
(iii) 26 March 2009: further convictions of the Applicant.
(iv) 16 November 2009: further convictions of the Applicant.
(v) 30 November 2010: further convictions of the Applicant
including two offences of possessing an offensive weapon in a
public place attracting imprisonment of eight months each,
concurrent.
(vi) 15 November 2011: further convictions of the Applicant for
sundry offences, including breaches of suspended sentence
orders.
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...she was plainly right to take that course. In its argument, the respondent had drawn my attention to the case of Re Pearce’s Application [2020] NIQB 23, which was a challenge to the legality of a violent offences prevention order (VOPO) along with a challenge to the Violent Offices Preventi......