McGuinness's (Deborah) Application
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 2019 |
| Neutral Citation | [2019] NIQB 10 |
| Date | 15 January 2019 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2019] NIQB 10
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC10827
Delivered: 15/01/19
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW), DIVISIONAL COURT
________
IN THE MATTER OF AN APPLICATION BY DEBORAH McGUINNESS
FOR JUDICIAL REVIEW
-v-
DEPARTMENT OF JUSTICE
________
Before: McCloskey J and Colton J
________
McCLOSKEY J
Introduction
[1] This is the judgment of the panel to which both members have contributed,
following an expedited hearing on 10/01/19.
[2] These are judicial review proceedings in which the High Court constituted
itself as a divisional court. It did so following receipt of written submissions from the
two main parties contending that this is a criminal cause or matter. While the court
harboured reservations about this having regard to the jurisprudence on this
troubled subject, including the decisions in Re JR27 [2010] NIQB 12 and R (Belhaj) v
Secretary of State for Foreign Affairs [2018] UKSC 33, at [20], with its stress on “ a
criminal matter” [our emphasis], in a context marked by a need for acute expedition
and involving the liberty of the citizen it was decided on a pragmatic basis to treat
this as a criminal cause or matter. This step, of course, has considerable implications
for onward appeal rights: see section 41 of and Schedule 1 to the Judicature (NI) Act
1978.
[3] The central issue to be determined by the court is whether the assessment on
the part of the Respondent, the Department of Justice (“the Department”), that by July
2018 Michael Stone (hereinafter “the prisoner/Mr Stone”), a convicted murderer of
some notoriety sentenced to life imprisonment in 1988 and whose victims include
the brother of the Applicant, Thomas McErlean deceased (“the deceased”), had served
2
the judicially determined minimum term (or tariff) of 30 years imprisonment is
vitiated by illegality.
The Concerned Public Authorities
[4] The agencies featuring in the matrix of these proceedings are:
(a) The Sentence Review Commissioners, a public authority established by
the Northern Ireland (Sentences) Act 1998.
(b) The Parole Commissioners, a public authority established by the Life
Sentences (NI) Order 2001.
(c) The Department of Justice (the “Department”) which has significant
functions and responsibilities under the last mentioned measure.
(d) The Secretary of State for Northern Ireland (the “Secretary of State”)
who previously exercised important functions and responsibilities
relating to life prisoners.
Factual Matrix
[5] The following are the salient aspects of the factual matrix:
(a) The murder of the Applicant’s brother was perpetrated by the prisoner
in a shooting attack on a group of defenceless mourners attending a
burial at Milltown Cemetery on 16 March 1988. The prisoner was
arrested on 22 March 1988.
(b) On 03 March 1989 at Belfast Crown Court the prisoner received a
sentence of life imprisonment, having been convicted of six counts of
murder, five counts of attempted murder, three counts of conspiracy to
murder and 21 further counts (in summary) relating to the possession
of explosive substances, the possession of firearms and ammunition,
causing an explosion and wounding with intent. The sentence of life
imprisonment was imposed in respect of the six counts of murder.
Concurrent sentences ranging from 20 to 27 years imprisonment were
imposed in respect of the other convictions. The trial judge
recommended a tariff of 30 years imprisonment. (This had no binding
effect under the legal arrangements then prevailing).
(c) On 17 February 1999 the Sentence Review Commissioners made a
formal statutory determination acceding to the prisoner’s application
under section 3 of the Northern Ireland (Sentences) Act 1998 (infra) for
a declaration of eligibility for early release and specifying that such
eligibility would materialise on 22 July 2000.
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(d) On 24 July 2000 the prisoner was released on licence.
(e) On 24 November 2006 the prisoner perpetrated another much
publicised attack, on this occasion at Parliament Buildings, Stormont.
(f) On the same date the prisoner was arrested and he was remanded in
custody the following day.
(g) On 25 November 2006 the Secretary of State suspended the prisoner’s
licence under the statutory provisions. The Sentence Review
Commissioners became seized of his case afresh.
(h) On 06 September 2007 the Sentence Review Commissioners informed
the prisoner that they were minded to revoke his licence.
(i) On 14 November 2008 the prisoner was convicted of two counts of
attempted murder, together with seven further counts consisting
mainly of firearms and explosives offences.
(j) On 08 December 2008 the prisoner received two determinate sentences
of 16 years’ imprisonment in respect of the attempted murder
convictions and other determinate sentences ranging from one year to
ten years’ imprisonment, all to operate concurrently, all arising out of
the Stormont incident.
(k) On 06 January 2011 the Court of Appeal dismissed the prisoner’s
appeals against conviction.
(l) On 06 September 2011 the Sentence Review Commissioners formally
determined to revoke the licence upon which the prisoner had been
released on 24 July 2000.
(m) On 29 July 2013 (in accordance with the statutory regime outlined infra)
the Lord Chief Justice of Northern Ireland determined that the tariff in
respect of the life sentence imposed on 03 March 1989 should be 30
years imprisonment.
(n) On 05 September 2013 the Department certified that the release
provisions of the 2001 legislation (infra) would not apply to the
prisoner until he had “… served a period of 30 years, which includes the
time spent in custody on remand”.
(o) On 10 September 2013 the Northern Ireland Prison Service calculated
that the prisoner’s “parole referral date” would be 06 September 2017.
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McGuinness's (Deborah) Application (No 2) v The Sentence Review Commissioners
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