Re McClean
| Jurisdiction | England & Wales |
| Judge | LORD CARSWELL,LORD RODGER OF EARLSFERRY,LORD SCOTT OF FOSCOTE,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD BINGHAM OF CORNHILL |
| Judgment Date | 07 July 2005 |
| Neutral Citation | [2005] UKHL 46 |
| Date | 07 July 2005 |
| Court | House of Lords |
[2005] UKHL 46
HOUSE OF LORDS
Appellate Committee
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Carswell
Lord Brown of Eaton-under-Heywood
Appellants:
John Larkin QC
Barry Torrens
(Instructed by Field Fisher Waterhouse,
agents for Cleaver Fulton Rankin)
Respondents:
Seamus Treacy QC
Karen Quinlivan
(Instructed by Arthur Downey & Co)
Intervener
Secretary of State for Northern Ireland
Bernard McCloskey QC
Piers Grant
(Instructed by Treasury Solicitor)
My Lords,
Before the House are an appeal and a cross-appeal. Both raise questions as to the procedure adopted in revoking a declaration previously made in favour of Mr McClean as a life-sentence prisoner under the Northern Ireland (Sentences) Act 1998. They are important questions, bearing on the freedom of the prisoner and the safety of the community in Northern Ireland.
The legislation
The Belfast (or Good Friday) Agreement reached at multi-party talks on Northern Ireland and signed on 10 April 1998 (Cm 3883) had as its political objective to break the cycle of political and sectarian violence which had disfigured the life of the province over a number of years. To that end the Governments of the United Kingdom and Ireland agreed, among other things, to put in place mechanisms for an accelerated programme for the release of prisoners convicted of offences scheduled under the Northern Ireland (Emergency Provisions) Acts 1973, 1978, 1991 or 1996 as, very broadly, offences motivated by political or sectarian considerations. But prisoners affiliated to organisations which had not established or were not maintaining a complete and unequivocal ceasefire were not to benefit from the accelerated release arrangements. The situation in this regard was to be kept under review. Both Governments agreed to complete a review process within a fixed time frame and to set prospective release dates for all prisoners qualifying for release. The review process would provide for the advance of the release dates of qualifying prisoners while allowing account to be taken of the seriousness of the offences for which the prisoners had been convicted and the need to protect the community. It was the parties' intention that, should the circumstances allow it, any qualifying prisoners who remained in custody two years after the commencement of the scheme should be released at that point. Both Governments would seek to enact appropriate legislation to give effect to these arrangements by the end of June 1998. It seems plain that the intention was to promote reconciliation by early release of prisoners who had committed offences motivated by political or sectarian considerations but who were now willing to renounce violence.
Her Majesty's Government honoured its legislative undertaking by introducing what became the Northern Ireland (Sentences) Act 1998, which received the royal assent on 28 July 1998 and was brought into force on the same day. The key feature in the enacted scheme, provided for in section 3(1), is a declaration that a prisoner is eligible for release in accordance with the provisions of the Act. Such a declaration may be made in respect of a prisoner serving a life sentence or a determinate sentence of at least five years, but for present purposes no account need be taken of the latter. In the case of a life sentence prisoner a declaration may be made only if four conditions are satisfied. The first is that the sentence should have been passed in Northern Ireland for an offence committed before 10 April 1998 (the date of the Belfast Agreement), that the offence when committed should have been scheduled under one of the Emergency Provisions Acts already mentioned and that the offence in question should not have been, in effect, excluded from the relevant schedule by certificate of the Attorney General: that, in summary, is the effect of section 3(3) and (7). The second condition is that the prisoner should not be a supporter of an organisation specified by order of the Secretary of State as concerned in terrorism connected with the affairs of Northern Ireland, or promoting or encouraging it, and which has not established or is not maintaining a complete and unequivocal ceasefire: that is the effect of section 3(4) and (8). The third condition, closely linked with the second, is that if the prisoner were released immediately he would not be likely to become a supporter of a specified organisation or to become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland: section 3(5). The fourth condition, mostly directly in issue in this case and applicable only to life sentence prisoners, is that if the prisoner were released immediately he would not be a danger to the public: section 3(6).
A declaration under section 3 in the case of a life sentence prisoner must, by section 6 of the Act, specify a day which is believed to mark the completion of about two thirds of the period which the prisoner would have been likely to spend in prison under the sentence. The prisoner is then entitled to be released on licence, subject to conditions, on or about the date so specified or the date of the declaration, whichever is earlier: section 6(2) and (3), section 4(3) and section 9. But section 10 introduces a very important feature of the Act and of the present case: "the accelerated release day". Where, as in the present case, a sentence was passed after the date on which the Act came into force (28 July 1998) and is to be treated under section 26 of the Treatment of Offenders Act (Northern Ireland) 1968 as reduced by a period of custody beginning before 28 July 1998, the accelerated release day is the second anniversary of that date, 28 July 2000: section 10(5). The prisoner has "a right to be released" on the accelerated release day: section 10(2).
The administration of this important and, in a literal sense, extraordinary scheme is entrusted to a body of Sentence Review Commissioners to be appointed by the Secretary of State under section 1 of the Act, chosen (section 1(3)) as commanding widespread acceptance throughout the community in Northern Ireland and including among their number, so far as practicable, members with psychiatric or psychological as well as legal experience (section 1(2)). It is to them that a prisoner may apply under section 3 for a declaration of eligibility for release, and section 3(2) provides that, in the case of a life sentence prisoner, the Commissioners "shall grant the application if (and only if)" the four conditions noted in paragraph 3 above "are satisfied". It is the Commissioners who, in granting a declaration to a life prisoner, must specify (under section 6(1)) the day which "they believe" marks the completion of about two thirds of the period which the prisoner would ordinarily have been likely to serve. By contrast, the operation of the accelerated release provisions in section 10 takes effect automatically and calls for no further declaration or action by the Commissioners.
The Secretary of State's duty to appoint the Commissioners has already been noted, and he has an important power to make rules governing the Commissioners' procedure under Schedule 2 to the Act, referred to below. He also has power, under section 9(2), to suspend a licence on which a life sentence prisoner has been or is to be released under section 6 "if he believes the person concerned has broken or is likely to break" a condition of his licence. The consequence (section 9(3)) is that the person shall be detained in pursuance of his sentence, or be deemed unlawfully at large, and the Commissioners must consider his case. On considering the case the Commissioners must confirm the licence if they think the person has not broken and is not likely to break a licence condition, but otherwise they must revoke the licence: section 9(4). On confirmation, the person's right to be released in effect revives, and if he is at large he has (so far as the relevant sentence is concerned) a right to remain at large: section 9(5).
It is section 8 which lies at the heart of this appeal. Section 8(1) requires the Secretary of State to apply ("shall apply") to the Commissioners to revoke a declaration under section 3(1) if, at any time before a prisoner is released under section 6, the Secretary of State believes
"(a) that as a result of an order under section 3(8) [specifying an organisation as promoting terrorism or not observing a complete ceasefire], or a change in the prisoner's circumstances, an applicable condition in section 3 is not satisfied, or
(b) that evidence or information which was not available to the Commissioners when they granted the declaration suggests that an applicable condition in section 3 is not satisfied."
Section 8(2) imposes an exactly corresponding duty on the Commissioners, who are required to grant an application under this section "if (and only if) the prisoner has not been released under section …6" and they share the Secretary of State's belief as to (a) or (b). Section 11(3) of the Act requires the Commissioners, if they revoke a declaration under section 8, to give notice of the revocation and the reasons for it to the prisoner and to the Secretary of State.
The facts
On the evening of 3 March 1998 (just over a month before the Belfast Agreement) there were eight customers in the public bar of the Railway Bar, Poyntzpass, County Down, when two masked gunmen burst in and ordered those present to lie down, which they did. When the occupants were in a position of complete vulnerability the gunmen opened fire, intending (on...
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