Re McGuinness (no 2)
 UKSC 6
On appeal from:  NIQB 10
Appellant/Intervener (Department of Justice)
Neasa Murnaghan QC
Terence McCleave BL
(Instructed by Departmental Solicitor's Office (Belfast))
Appellant/Intervener (Michael Stone)
David A Scoffield QC
Richard McConkey BL
(Instructed by McConnell Kelly & Co (Ballyhackamore))
Respondent (Deborah McGuinness)
Ronan Lavery QC
Michael O'Brien BL
(Instructed by McIvor Farrell Solicitors Ltd (Belfast))
Intervener (Attorney General for NI)
John F Larkin QC,
Attorney General for Northern Ireland
(Instructed by Office of the Attorney General for Northern Ireland (Belfast))
Intervener (Sentence Review Commissioners)
Peter Coll QC
Philip McAteer BL
(Instructed by Carson McDowell LLP (Belfast))
Heard on 15 October 2019
( with whom Lady Hale, Lord Wilson, Lord Carnwath and Lord Lloyd-Jones agree)
Two appeals have been brought to this court from the judgment of the Divisional Court of the High Court in Northern Ireland in . The judgment was given in relation to judicial review proceedings relating to the treatment of Mr Michael Stone, who was convicted of serious offences, is currently in prison, and who maintains that his case should be referred by the Department of Justice for Northern Ireland (“the Department”) to the Parole Commissioners for Northern Ireland for consideration whether he should be released on licence. The respondent, Mrs McGuinness, the sister of one of the victims of Mr Stone's crimes, brought these proceedings against the Department to challenge the lawfulness of its decision to refer Mr Stone's case to the Commissioners and was successful in the Divisional Court. The Department appeals and, by a second appeal, so does Mr Stone, who was joined as an interested party in the proceedings.
The Attorney General for Northern Ireland has intervened in the appeals in order to raise an issue regarding the jurisdiction of this court to entertain the appeals. That issue concerns the interpretation of section 41(1) of the Judicature (Northern Ireland) Act 1978 (“section 41(1)” and “the 1978 Act”, respectively). By virtue of section 41(1), subject to certain conditions, there may be an appeal to the Supreme Court “from any decision of the High Court in a criminal cause or matter”. The Attorney General submits that the decision of the Divisional Court which is under appeal is not a decision “in a criminal cause or matter”, on the proper interpretation of that phrase. The Attorney General says that, contrary to what the parties have assumed to be the position, the proper avenue of appeal from the Divisional Court in these judicial review proceedings is to the Court of Appeal in Northern Ireland, not to the Supreme Court.
On 16 March 1988 Mr Stone attacked a group of mourners at Milltown Cemetery, Belfast, killing several of them. One of them was the brother of Mrs McGuinness. On 3 March 1989 Mr Stone was sentenced to life imprisonment and certain concurrent terms of imprisonment, having been convicted of six counts of murder, five counts of attempted murder, three counts of conspiracy to murder and 21 further counts relating to the possession of explosive substances, the possession of firearms and ammunition, causing an explosion and wounding with intent. The trial judge recommended a tariff of 30 years' imprisonment.
The Belfast Agreement of 1998 between the United Kingdom and Irish governments included provision for the introduction of an early release scheme for certain prisoners convicted of crimes related to sectarian violence in the Troubles. The Northern Ireland (Sentences) Act 1998 (“the 1998 Act”) gave effect to that part of the Belfast Agreement.
Mr Stone made an application under the 1998 Act to the Sentence Review Commissioners (“the SRC”), seeking early release pursuant to that Act. On 17 February 1999, the SRC made a formal determination acceding to Mr Stone's application for a declaration of eligibility for early release. The SRC specified that such eligibility would take effect on 22 July 2000. On 24 July 2000 Mr Stone was released on licence pursuant to the 1998 Act.
On 24 November 2006, Mr Stone committed further serious offences, on this occasion at Parliament Buildings, Stormont. He was arrested the same day and was remanded in custody the following day.
On 25 November 2006 the Secretary of State for Northern Ireland suspended Mr Stone's licence under the 1998 Act. The SRC became seised of his case again. On 6 September 2007 the SRC informed Mr Stone that they were minded to revoke his licence.
On 14 November 2008 Mr Stone was convicted of two counts of attempted murder, together with seven further counts, mainly in relation to firearms and explosives offences, in respect of the incident at Stormont. On 8 December 2008 Mr Stone received two determinate sentences each of 16 years' imprisonment in respect of his convictions for attempted murder and other determinate sentences of between one and ten years' imprisonment, all to run concurrently. Mr Stone's subsequent appeals against conviction were dismissed in January 2011.
On 6 September 2011 the SRC revoked the licence granted to Mr Stone under the 1998 Act, pursuant to which he had spent the period from 24 July 2000 to 24 November 2006 on release.
The Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564) (“the 2001 Order”) introduced a new regime according to which a life prisoner's tariff period before he could be considered for release on licence should be determined by a judge, and not by the Secretary of State. On 29 July 2013, pursuant to the 2001 Order, the Lord Chief Justice of Northern Ireland determined that the tariff in respect of the sentence of life imprisonment imposed on Mr Stone in relation to the incident at Milltown Cemetery in 1988 should be 30 years' imprisonment.
By letter dated 20 September 2017 the Northern Ireland Prison Service, an agency of the Department of Justice for Northern Ireland, referred Mr Stone's case to the Parole Commissioners and notified them that his tariff expiry date would be 21 March 2018. This was on the footing that the period during which Mr Stone had been on release from prison on licence (“the contested period”) should count towards the 30 year tariff period. On the basis of the same assumption, the Parole Commissioners conducted a three year pre-tariff review of Mr Stone's case on 20 March 2015. In the event, pursuant to the notice given by the Department, the Parole Commissioners made a formal determination dated 16 April 2018 that he should not be released upon expiry of his tariff.
Mr Stone has a right under the 2001 Order to seek a further hearing before the Parole Commissioners, to seek his release on licence. The next hearing was scheduled to take place on 15 January 2019.
In the meantime, on 22 November 2018 Mrs McGuinness issued these judicial review proceedings to challenge the Prison Service's notification of a tariff expiry date of 21 March 2018. On her submission, the Prison Service erred in law in bringing into account the contested period of release on licence in calculating Mr Stone's tariff expiry date. Leaving the contested period out of the calculation, his tariff expiry date would be on or about 22 July 2024.
Mrs McGuinness and the Department of Justice made written submissions to the effect that the judicial review was a criminal cause or matter, so that it should be heard by a Divisional Court of the High Court with any appeal being to the Supreme Court, according to section 41(1). As the court explained in its judgment, it was decided that a Divisional Court should hear the case, notwithstanding that the court harboured reservations about whether the case really was a criminal cause or matter; but in view of the need for expedition in a case concerning the liberty of the subject it was decided on a pragmatic basis to treat it as such (para 2).
The logic of this was that if it turned out that this is not a criminal cause or matter, any appeal could proceed in the usual way to the Court of Appeal. By contrast if the case proceeded as a normal judicial review without a Divisional Court and it then transpired that it was properly to be classified as a criminal cause or matter, there would be no right of appeal to the Court of Appeal and the opportunity to appeal to the Supreme Court would have been lost as well. The court proceeded in this way because of uncertainty which it thought arose from the jurisprudence on what it described as “this troubled subject” of the meaning of “criminal cause or matter” in the statute, including the decisions in “ (“ ”) and ; ( ”).
Mrs McGuinness's application for judicial review was heard by the Divisional Court on an expedited basis on 10 January 2019. Its judgment, upholding Mrs McGuinness's challenge, was delivered on 15 January 2019. On the basis that the Divisional Court was prepared to proceed on the basis that the judicial review was “a criminal cause or matter” within the meaning of section 41(1), as all the parties were willing to accept, it certified a question of law of general public importance for the purposes of section 41(2) of the 1978 Act.
Pursuant to section 41(2), the Supreme Court granted permission to appeal to the Department of Justice and to Mr Stone.
However, having learned of this, the Attorney General issued an application to intervene to dispute the assumption that...
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