Smyth's (Kieran) Application
| Jurisdiction | Northern Ireland |
| Judge | Colton J |
| Judgment Date | 11 February 2021 |
| Neutral Citation | [2021] NIQB 14 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 11 February 2021 |
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Neutral Citation No: [2021] NIQB 14
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: COL11408
ICOS No: 20/57231
Delivered: 11/02/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY KIERAN SMYTH
FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF THE SECRETARY OF STATE
FOR NORTHERN IRELAND
__________
COLTON J
Introduction
[1] This case involves a challenge by the applicant in relation to a decision of the
Secretary of State (“hereinafter SOS”) on 27 March 2020 to order that the applicant’s
determinate custodial sentence licence should be revoked and that he should be
recalled to prison.
[2] I am obliged to Mr Desmond Fahy QC who appears with Mr Michael
Magowan on behalf of the applicant and Mr Coll QC who appears with David Reid
on behalf of the respondent for their helpful written and oral submissions.
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[3] On 21 April 2015 at Newtownards Crown Court the applicant was sentenced
to a determinate custodial sentence of 12 years’ imprisonment arising from his plea
of guilty to offences including robbery, carrying a firearm or imitation firearm with
intent to commit an indictable offence, three counts of false imprisonment and
aggravated vehicle taking.
[4] He was released on licence pursuant to the provisions of Article 17(1) of the
Criminal Justice (Northern Ireland) Order 2008 (“the 2008 Order”) on 14 September
2019. His licence is due to expire on 14 September 2025.
[5] On 27 March 2020, the SOS revoked the applicant’s licence which resulted in
his recall to prison on 27 March 2020.
[6] After a leave hearing, McAlinden J granted the applicant leave to challenge
the decision as per an amended Order 53 Statement:
“Grounds of Challenge
The applicant’s grounds of challenge are:
(i) Illegality. The applicant contends that the impugned
decision was unlawful in the following respects:
(a) as appears from paragraph 3 of the Secretary of
State’s OPEN statement of evidence, the
Secretary of State took the decision to revoke the
applicant’s licence prior to the recommendation
of the Parole Commissioners. He therefore failed
to exercise the statutorily prescribed discretion.
This was in breach of the requirements of
Section 28 of the Criminal Justice (Northern
Ireland) Order 2008.
(ii) Material considerations. The applicant further
contends that the impugned decision is vitiated by the proposed
respondent having taken into account the following immaterial
facts/considerations:
(a) in paragraph 29 of his OPEN statement of
evidence, the Secretary of State appears to
suggest that the applicant should be recalled for
reasons of deterrence and to set an example (see
paragraph 29 of the Statement of Evidence).
These amount to materially irrelevant
considerations.”
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