Re John William Mullan
| Jurisdiction | Northern Ireland |
| Judgment Date | 03 December 2007 |
| Date | 03 December 2007 |
| Court | Court of Appeal (Northern Ireland) |
: [2007] NICA 47
Court and Reference: Court of Appeal (Northern Ireland), KERF5999
: Kerr LCJ, Campbell LJ, Higgins J
: Whether the recall of a life sentence prisoner breached Art 5(1) ECHR; whether the Secretary of State should have obtained a recommendation from the Life Sentence Review Commissioners; whether the delay in considering the case, largely from awaiting ongoing criminal proceedings, breached Art 5(4) ECHR; whether compensation was required.
:In August 1994, M was released on licence from a mandatory life sentence imposed for murder. On 25 November 2004, he was arrested on suspicion of conspiracy to commit false imprisonment and robbery; on 29 November 2004, he was charged and remanded into custody by a magistrates court. The Prison Service obtained information about the allegations, and in 6 December 2004 a minister revoked M's licence under Art 9(2) Life Sentences (Northern Ireland) Order 2001: this was done without first referring the case to the Life Sentence Review Commissioners for a recommendation under Art 9(1) of the Order, in part because M was making a bail application in relation to the fresh charges that day and so the situation was felt to meet the statutory language in Art 9(2) of being "expedient in the public interest" to recall a person before an Art 9(1) recommendation was practicable (though in fact the bail application did not proceed). Also taken into account was the fact that the practice of the Commissioners was to establish a panel to consider whether to make a recommendation under Art 9(1), which could take some time.
The case was referred to the Commissioners on 14 December 2004 for them to consider whether to exercise their power to order the release of the recalled prisoner (under Art 9(5) of the Order). On 21 December 2004, they asked the Secretary of State to provide all materials on which he would rely by 15 February 2005; applications to extend this date were made because of difficulties in securing the release of material from the police pending the criminal trial, and eventually, on 18 May 2005, a direction was made by a Commissioner that the proceedings before the Commissioners await the completion of the criminal proceedings, which was upheld by a panel of Commissioners on 8 September 2005. The prosecution withdrew charges against M on 30 September 2005 (after 304 days of remand in custody).
A preliminary hearing in front of the Commissioners was fixed for 3 November 2005, but this was cancelled after M commenced judicial review proceedings: the latter resulted in a finding on 31 March 2006 that the recall had been lawful but that Art 5(4) ECHR had been breached; an application for compensation was refused. Thereafter, M was granted bail (489 days after his arrest in November 2004). The Commissioners completed their review on 14 June 2007 and concluded that the revocation of the licence should remain in effect: M was then returned to prison. The Commissioners appealed against the finding that Art 5(4) was breached; M appealed against the findings that the recall was lawful and that no compensation should be awarded.
:
Kerr LCJ :
Introduction
[1] On 31 March 2006 Girvan J delivered judgment on an application for judicial review by William Mullan of decisions taken by the Secretary of State and the Life Sentence Review Commissioners in relation to his recall to prison and the revocation of the licence on which he had been released from prison on 15 August 1994. He had been serving a life sentence for murder. This and other sentences for firearm offences had been imposed at Belfast Crown Court on 23 May 1980.
[2] Girvan J dismissed Mr Mullan's claim that his recall to prison and the revocation of his licence had been unlawful but he held that the commissioners were in breach of Art 5(4) of theEuropean Convention on Human Rights and Fundamental Freedoms in failing to ensure that the lawfulness of his detention was decided speedily after the matter had been referred to them by the Secretary of State for Northern Ireland under Art 9(4) of the Life Sentences (Northern Ireland) Order 2001.
[3] Following delivery of this judgment Mr Mullan applied for compensation on foot of the finding that there had been a breach of his rights under Art 5(4) of ECHR. A further hearing took place before Girvan J and on 12 October 2007 this application was refused, the learned judge observing that Mr Mullan's detention during the period of remand in custody could not be attributed to the revocation of his licence since he had been remanded in custody on criminal charges that had been preferred on 29 November 2004.
[4] The commissioners have appealed against the finding that their failure to deal with the review of the legality of Mr Mullan's detention amounted to a breach of Art 5(4). Mr Mullan (whom we will refer to as 'the respondent') has appealed against the decision that the original revocation of the licence and his recall to prison was lawful. He has also appealed against the refusal of compensation.
Background
[5] The respondent remained at liberty following his release on licence until 25 November 2004. On that date he was arrested on suspicion of conspiracy to imprison an employee of First Trust Bank and to carry out a robbery. The respondent and 2 others were detained at an address in north Belfast where they had apparently attempted to force entry at gunpoint of a dwelling house. It was suspected that he and the others had been planning to imprison the bank employee who lived there in order to carry out the robbery of the branch where he worked. On 29 November 2004 the respondent was charged with 2 offences of conspiracy - to falsely imprison the bank employee and to rob him. The charge of conspiracy to rob alleged that a firearm was to be used. He appeared before a magistrates' court the next day and was remanded in custody.
[6] On the respondent being remanded in custody, the Prison Service sought information from the police about the circumstances of the respondent's arrest and advice on whether his licence should be revoked. On 3 December 2004, a report was received from the police in which the circumstances of the respondent's arrest were outlined. The report also contained information about police surveillance of his movements in the days before his arrest. The Police Service expressed the view that the respondent represented a serious risk to the public.
[7] Having received this advice from the police, the Prison Service then considered whether to apply for a revocation of the respondent's licence. Since this is a matter of some significance in relation to the claim that the revocation of the licence was unlawful, we will quote from the affidavit of Harold James Mayes as to how it was dealt with by the Prison Service. Mr Mayes is employed in the Life Sentence Unit (LSU) and he said this at para 2(vii)-(ix):-
"(vii) On the same day, Friday 3 December 2004, consideration was given by the Prison Service as to whether the [respondent's] licence should be revoked. A particular issue which was [adverted] to was that of whether, if a revocation was appropriate, it should be [effected] under the route provided by Art 9(1) of the Life Sentences (Northern Ireland) Order 2001, or that provided by Art 9(2). The former involved first obtaining a recommendation from the Life Sentence Review Commissioners while the latter did not.
(viii) While consideration of the issue was under way at a time in the early afternoon of 3 December Prison Service officials received information that the [respondent] had sought bail before the High Court and that his bail application was listed for hearing on the morning of 6 December 2004.
(ix) In these circumstances it was decided that the route to revocation found at Art 9(2) of the Order should be used as the view was formed that it would not have been a practical proposition in these circumstances to have referred the case to the Life Sentence Review Commissioners for their recommendation. Such a step was not viewed as appropriate due to the urgency of the issue as it was the intention to seek to obtain a decision on the question of whether or not the [respondent's] licence should be revoked before any decision was made in the High Court whether or not in respect of the offences which the [respondent] faced he should be granted bail. In the past the Prison Service has referred other cases to the Life Sentence Review Commissioners for a decision as to whether or not the commissioners recommended revocation of a life sentence prisoner's licence but in these cases the process of obtaining a recommendation had been lengthy and involved the establishment of a panel for this purpose and necessarily deliberations by that panel in respect of the matter. Consequently, the judgment was arrived at that it would not have been practical for the commissioners to have dealt with the issue of a recommendation in the applicant's case between a Friday afternoon and the following Monday morning."
[8] A submission was prepared for the Secretary of State recommending that the licence be revoked. The imminent bail application was referred to and the Secretary of State was advised that he should take a decision immediately because it was possible that the respondent might be released on bail. It was drawn to his attention that the matter had not been referred to the commissioners and, according to Mr Mayes, "the submission gave due attention to the language of Art 9(1) and (2) of the 2001 Order".
[9] The submission to the Secretary of State was sent by e-mail to his private office at 4.34pm on 3 December 2004. In the event, he was not able to deal with it over the weekend and on the morning that the bail application was due to be heard, 6 December, it became clear that the Secretary of State would not be available for this matter. Another minister, Mr Barry Gardiner MP...
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Knight’s (Robert Torrens) Application
...with this submission is that an identical submission was rejected by the Court of Appeal in Re William John MullanDNI[2008] NI 258, [2008] Prison LR 207 at para 43 where the Court said, after having referred to those cases, as follows: ‘… We agree that, if a requirement for the applicabilit......