Re Corey
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lord Toulson,Lord Clarke,Lord Mance,Lord Hughes |
| Judgment Date | 04 December 2013 |
| Neutral Citation | [2013] UKSC 76 |
| Date | 04 December 2013 |
| Court | Supreme Court |
[2013] UKSC 76
THE SUPREME COURT
Michaelmas Term
Lord Mance
Lord Kerr
Lord Clarke
Lord Hughes
Lord Toulson
Appellant
Karen Quinlivan QC
Andrew Moriarty BL
(Instructed by Peter Murphy Solicitors)
Respondent
Gerald Simpson QC
Robert Palmer
(Instructed by Crown Solicitor's Office)
Respondent (written submissions only)
Nicolas Hanna QC
Donal Sayers BL
(Instructed by Carson McDowell)
Heard on 7 October 2013
Lord Kerr (with whom Lord Clarke, Lord Hughes and Lord Toulson agree)
On 3 December 1973, the appellant, Martin Corey, was convicted of the murder of two police officers. He was sentenced to life imprisonment. He remained in prison until 26 June 1992 when the Secretary of State for Northern Ireland released him on licence, pursuant to section 23(1) of the Prison Act (Northern Ireland) 1953.
Following his release in 1992 the appellant remained at liberty for almost 18 years. On 13 April 2010 the Secretary of State wrote to the parole commissioners referring Mr Corey's case to them under article 9(1) of the Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564 (NI 2)) and seeking a recommendation on whether the licence on which appellant had been released should be revoked. Article 9(1) provides that, if recommended to do so by the commissioners, in the case of a life prisoner who has been released on licence, the Secretary of State may revoke his licence and recall him to prison.
On 14 April 2010, a single commissioner recommended that the licence of Mr Corey should be revoked. That recommendation was based on material which had been supplied by the Secretary of State. The material included a confidential file containing intelligence information which had been provided by the security services. After that recommendation had been received, a minister of state, acting on behalf of the Secretary of State, revoked the appellant's licence on 15 April 2010. Mr Corey was taken into custody again on 16 April 2010 and has remained in prison since then.
By virtue of article 9(4) of the 2001 Order, a prisoner recalled to prison must have his case referred to the parole commissioners. After he had been recalled to prison, therefore, Mr Corey's case was duly referred. Initially it was considered by a single commissioner. She gave provisional directions under the Parole Commissioners' Rules (Northern Ireland) 2009 (SRNI 2009/82). Part of the material which had been supplied to the commissioners in April 2010 had been certified as confidential information under rule 9(1) of the 2009 Rules. And rule 9(3) requires that a gist of such information should be served on the commissioners and the prisoner.
On 7 June 2010 the Secretary of State provided a dossier of material in relation to Mr Corey's case. In compliance with rule 9(3) it was accompanied by a statement of evidence which set out the gist of the confidential information. This was considered by the single commissioner. She also examined the confidential material itself. She recommended, pursuant to rule 19, that the Advocate General for Northern Ireland should appoint a special advocate to represent Mr Corey's interests. The commissioner also recommended that the appellant's case should be dealt with by a panel of commissioners, rather than by a single commissioner considering it alone. A panel was duly convened.
On 9 November 2010, following a directions hearing, the chairman of the panel ordered that a statement of all open and closed material relevant to the case, including the product of any exculpatory matter that undermined the Secretary of State's case, should be served on the panel and the special advocate. It was ordered that a similar statement in respect of the open material be served on the prisoner's representatives. They were not to receive the closed material, of course.
A closed hearing took place on 25 January 2011 to consider the material which had been served on the panel and the special advocate. The panel heard submissions on behalf of the Secretary of State. The special advocate also made representations to the panel about the adequacy of the disclosure of the closed material. The commissioners gave a ruling on these submissions on 7 February 2011. Hearings before the panel were then conducted into Mr Corey's case. These took place between 29 and 31 March and 23/24 May 2011. Open and closed evidence was received. Counsel appeared for Mr Corey and the Secretary of State at the open hearings. The special advocate represented the appellant's interests during closed hearings.
On 15 August 2011 the panel gave its decision. This comprised both a closed and an open judgment. In a detailed ruling which formed part of the open judgment, the panel stated that it was satisfied that Mr Corey had become involved in the Continuity Irish Republican Army from early 2005 and that he was in a position of leadership in that organisation from 2008 until his recall to prison. It was concluded that the appellant posed a risk of serious harm to the public at the time of his recall.
Under article 6(4) of the 2001 Order the commissioners are forbidden to direct that a life prisoner be released unless they are satisfied that "it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined". Since the commissioners were not so satisfied in relation to Mr Corey, they refused to direct his release.
The appellant sought judicial review of the commissioners' decision on the grounds (among others) that inadequate material had been disclosed in the gist and that the refusal to direct his release had been based solely or to a decisive degree on the closed material and was, on that account, in breach of Mr Corey's rights under article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Secretary of State was a notice party to the application for judicial review.
In a judgment delivered on 9 July 2012, Treacy J held that the commissioners' decision was indeed based solely or decisively on the closed material. He further found that the allegations contained in the open material were not sufficiently specific to enable the appellant to provide his lawyers and the special advocate with information to refute them. The hearing which the commissioners had conducted into the appellant's case constituted, on that account, a breach of the appellant's "right to procedural fairness" under article 5(4) of the Convention.
Instead of quashing the decision of the commissioners, however, Treacy J decided, pursuant to section 21 of the Judicature (Northern Ireland) Act 1978, to remit the matter to them with a direction that they reconsider the case and reach a decision in accordance with his ruling. The judge also decided to admit the appellant to bail pending reconsideration of his case by the parole commissioners. The Secretary of State immediately applied for a stay of Treacy J's order and within a short time thereafter lodged an appeal against the judge's decision. Although the commissioners also lodged an appeal, this was not pursued and they participated as a notice party in the appeal proceedings brought by the Secretary of State.
The Court of Appeal convened an early hearing to consider that part of the judge's order by which he had directed the appellant's release. On 11 July 2012 it decided that the judge did not have power to grant bail. The Court of Appeal therefore stayed enforcement of that part of Treacy J's order which had admitted the appellant to bail. Delivering the judgment of the court, Morgan LCJ said that the determining issue was whether there had been "a break between the sentence [of life imprisonment] and the continued detention of the [appellant]" (para 8). Since there was no such break, the judge did not have power to grant bail.
An application for permission to appeal the decision of the Court of Appeal on the question of the High Court's jurisdiction to grant bail was lodged with this court on 27 September 2012. Permission to appeal was granted on 13 December 2012. In the meantime, the appeal by the Secretary of State against that part of Treacy J's decision in relation to the breach of article 5(4) (which had been deferred in July 2012) was heard by the Court of Appeal on 26 October and 26 November 2012. In a judgment delivered on 21 December 2012 the appeal was allowed: [2012] NICA 57. The Court of Appeal concluded that the material provided to the appellant and his advisers was sufficient to allow him to give effective instructions to those representing him. There was therefore no breach of article 5(4) of the Convention.
Application was made to this court for permission to appeal the Court of Appeal's decision on the issue of breach of article 5(4). That application was refused. In these circumstances, the appellant's appeal on the question whether the High Court had an inherent jurisdiction to grant him bail or otherwise order his interim release is, strictly speaking, academic. Because of the importance of the issue, however, this court considered that the appellant's appeal on this question should be allowed to proceed.
Ms Quinlivan QC made three principal arguments on behalf of the appellant. Firstly, she submitted that, when determining a judicial review challenge to the commissioners' refusal to release a recalled prisoner, the High Court had power to order the discharge of the prisoner as part of its inherent jurisdiction. Secondly, she argued that the Human Rights Act 1998 afforded an applicant whose Convention rights were found to have been violated the right to an effective remedy. Where breach of the appellant's article 5(4) rights had occurred, the effective remedy for that breach...
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