Re D (Secretary of State for Northern Ireland intervening)
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD SCOTT OF FOSCOTE,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 11 June 2008 |
| Neutral Citation | [2008] UKHL 33 |
| Court | House of Lords |
[2008] UKHL 33
Appellate Committee
Lord Bingham
Lord Scott of Foscote
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Original Appellants:
John Larkin QC
Donal Sayers
(Instructed by Field Fisher Waterhouse LLP London agents for Cleaver Fulton Rankin)
Original Respondents:
Gerald Simpson QC
Desmond Hutton
(Instructed by Madden & Finucane)
Interveners
Paul Maguire QC
David Scoffield
(Instructed by Crown Solicitor's Office)
My Lords,
I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Carswell. I am in full agreement with it, and for the reasons that he gives would restore the order of the judge and dismiss CD's application for judicial review.
My Lords,
I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Carswell. I am in full agreement with it, and for the reasons he gives I would allow the Commissioners' appeal and dismiss the respondent's application for judicial review.
My Lords,
The appellants in this appeal are the Life Sentence Review Commissioners ("the Commissioners"), who have a number of functions under the Life Sentences (Northern Ireland) Order 2001 ("the 2001 Order") in relation to prisoners in Northern Ireland sentenced to imprisonment for life. Their major task is to decide whether and when to direct the release of such prisoners. On 3 August 2005 they decided not to direct the release of the respondent C D, who brought an application for judicial review of that decision. On 23 May 2006 Girvan J dismissed the application, but on 6 September 2007 the Court of Appeal (Kerr LCJ and Campbell and Higgins LJJ) allowed C D's appeal and quashed the Commissioners' decision.
The respondent was convicted on 16 September 1982 of murder and sentenced to imprisonment for life. He was released on 26 April 1996 on licence under section 23(1) of the Prison Act (Northern Ireland) 1953, the enactment then applicable. On 5 March 1997 he was arrested in consequence of an allegation by his niece G, then aged 13 years, of buggery, indecent assault and gross indecency. On 7 March 1997 his licence was revoked by the Secretary of State for Northern Ireland, acting under the powers conferred by section 23(2) of the 1953 Act.
Further allegations were made by G's younger sister L and charges were brought against the respondent in respect of the complaint made by G. These charges were withdrawn by the Director of Public Prosecutions on 13 January 1998 and a direction was given by him that there should be no prosecution in respect of L's complaint, apparently on the ground that it was not in the best welfare interests of the girls to require them to give evidence. The respondent remained in prison and between November 1998 and October 2000 his suitability for release received periodic consideration by the Life Sentence Review Board, a non-statutory body which advised the Secretary of State on the exercise of his power to release life sentenced prisoners on licence. The Board declined to recommend his release, on the ground that they considered that he had committed the offences of which his nieces had complained and there was a continuing risk that he might commit further similar offences if released. An application for judicial review of their decisions was brought by the respondent, but on 29 June 2001 the application was dismissed in a written judgment given by Nicholson LJ sitting in the Queen's Bench Division.
The 2001 Order came into force on 8 October 2001 and the respondent's case was referred to the Commissioners on 29 November 2001 under the provisions of article 11(5) and 9(4). It is convenient at this point to outline the material provisions of the Order. Part II provides for the appointment of the Life Sentence Review Commissioners, who are to advise the Secretary of State with respect to any matter referred to them by him which is connected with the release or recall of life prisoners and have the functions conferred by Part III. The "tariff", or that part of the life sentence considered appropriate to satisfy the requirements of retribution and deterrence, is under article 5 fixed by the sentencing court. Under article 6, as soon as a life prisoner has completed the tariff part of his sentence, the Secretary of State has to refer his case to the Commissioners, who must consider whether it is necessary for the protection of the public from serious harm that he should be confined. If they are satisfied that it is not so necessary, they are to direct his release, whereupon it is the duty of the Secretary of State to release him on licence. Articles 8 and 9 make provision for the duration of a life prisoner's licence on release and for his recall to prison if so recommended by the Commissioners. Article 11 (5) applies to a life prisoner such as the appellant, who has been recalled to prison under section 23 of the Prison Act (Northern Ireland) 1953 but is not an existing licensee within the meaning of article 12. The case of such a prisoner is to be referred by the Secretary of State under article 9(4) to the Commissioners, who are to consider whether he should be released and direct accordingly.
The respondent's case was so referred to the Commissioners on 29 November 2001 and there then commenced a long drawn-out process, the length of which was the subject of criticism by counsel for the respondent. I shall deal later with the causes of this delay in reaching a conclusion and it is sufficient to state at this stage that the hearing into the question of the respondent's release was not completed until 15 June 2005, following which a considered decision in writing was given by the Commissioners on 3 August 2005.
In paragraph 3 of their decision the panel of Commissioners who decided the matter set out their approach to the task before them:
"In our opinion, when Article 9 is read with Article 3(4), the Secretary of State must first prove on the balance of probabilities facts which, on the assumption that Mr [D] was released on the basis that there was no more than minimal risk of him committing serious harm, indicate that at the date of recall there was a significant risk of him committing serious harm. If, but only if, such facts are proved we must then go onto consider whether the risk posed at this point in time by Mr [D] is capable of being safely managed in the community and, if not, whether there are steps that might be taken with a view to reducing the current risk to a level that could, in the future, be safely managed in the community."
The panel then went on to consider the allegations made by the complainants G and L against the respondent. Both had been interviewed by social workers and the interviews had been recorded on video, which the panel viewed. The panel received evidence from a range of witnesses, police officers, social workers, a forensic scientist, psychologists, a Probation Service Resettlement Manager and a prison governor. The respondent gave evidence on his own behalf and called witnesses in support of his case. Neither G nor L was called to give oral evidence. The Secretary of State felt that it was not appropriate to seek to have G attend on subpoena, in the light of her expressed unwillingness to give evidence. The panel explored the possibility of her attending voluntarily or of their directing the Secretary of State to subpoena her. Eventually it concluded that for the reasons set out in paragraph 13 of the decision it would be unreasonable to force her to give evidence even by way of a video link.
The respondent's counsel argued in his closing submissions that the failure to summon G had unfairly deprived the respondent of having her evidence challenged directly in cross-examination. The panel indicated that even at that late stage it would favourably consider an application for adjournment to enable his solicitor to subpoena G, and that it would give leave for her to be questioned by counsel as if she had been called as a witness on behalf of the Secretary of State. No such application was made to the panel. They commented on this in paragraph 15 of their decision:
"The panel has concluded that Mr Hutton's approach to the issue of [G] being subpoenaed was a perfectly legitimate tactical manoeuvre by which he sought, on the one hand, to characterise the failure to subpoena [G] as unfair while, on the other hand, he sought to avoid being instrumental in securing her attendance at the hearing and giving evidence with the consequent danger of the case against Mr [D] being strengthened. The panel remains of the opinion, for the reasons given, that it would have been unreasonable to have directed that [G] be subpoenaed."
The panel went on to hold that they were entitled to admit the video recordings and transcripts of the interviews of G and L, as they were not bound by the strict rules of evidence. They gave detailed consideration to the weight to be attached to their evidence, in the light particularly of any discrepancies appearing or the possibility of contamination as the result of discussion between the girls. The panel held that it was "clear beyond peradventure" that L had been sexually assaulted and regarded it as established also that G had been. They then considered seriatim three possible perpetrators of the abuse, who might have had the opportunity to assault the girls. They concluded on the evidence that none of them was the abuser.
They turned to consideration of the evidence against the respondent, discussing the explanation which he gave in his defence for the presence of semen on the floor of...
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