Weekly Digest: 24 February 2020

In 1988, Mr Stone attacked a group of mourners at Milltown Cemetery, Belfast, killing several. One of the deceased was the brother of the appellant, Mrs McGuinness. In 1989, Mr Stone was convicted and sentenced to life imprisonment and certain concurrent terms of imprisonment, with a recommended tariff of 30 years’ imprisonment.

The Belfast Agreement of 1998 between the British and Irish governments, and several political groups in Northern Ireland, introduced an early release scheme for certain prisoners convicted of crimes related to sectarian violence in the Troubles. The Northern Ireland (Sentences) Act 1998 (“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 (“SRC”) seeking early release. In 1999, the SRC made a determination that Mr Stone was eligible for early release. Mr Stone was released on licence on 24 July 2000. In 2006, Mr Stone committed further offences at the Parliament Buildings, Stormont. The Secretary of State for Northern Ireland suspended his licence. In 2008, Mr Stone was convicted and received two determinate sentences of 16 years’ imprisonment, and other determinate sentences of between one and ten years’ imprisonment, all to run concurrently. In 2011, the SRC revoked Mr Stone’s licence.

In 2017, the Northern Ireland Prison Service referred Mr Stone’s case to the Parole Commissioners, notifying them that his tariff expiry date would be 21 March 2018. This was done on the basis that the period during which Mr Stone had been released on licence should count towards his 30-year tariff period. In the event, the Parole Commissioners made a formal determination in 2018 that Mr Stone should not be released upon expiry of his tariff.

Mrs McGuinness issued these judicial review proceedings to challenge the Prison Service’s notification of a tariff expiry date of 21 March 2018, on the ground that the Prison Service erred in law in including the period of release on licence in Mr Stone’s tariff.

The Divisional Court of the High Court heard the case, deciding to treat it as “a criminal cause or matter” on a pragmatic basis, and certified a question of law of general public importance suitable for appeal to the Supreme Court under section 41 of the Judicature (Northern Ireland) Act 1978 (“the 1978 Act”). The Attorney General for Northern Ireland intervened in the appeal to dispute the assumption that Mrs McGuinness’s application for judicial review constituted “a criminal cause or matter” and to challenge the Supreme Court’s jurisdiction to hear the appeals.

The Supreme Court unanimously held that the present proceedings do not constitute “a criminal cause or matter”, with the result that the Court does not have jurisdiction to consider the appeals.

Section 41 of the 1978 Act provides for an appeal to the Supreme Court “from any decision of the High Court in a criminal cause or matter” (at [21]). The phrase “a criminal cause or matter” has been used in two different statutory contexts: first in provisions governing rights of appeal; and second in section 6 of the Justice and Security Act 2013 (“the JSA 2013”) in relation to a special closed procedure for secret intelligence material in court proceedings. As accepted by the Supreme Court in R (Belhaj) v Director of Public Prosecutions (No 1) [2018] UKSC 33, the statutory context of section 6 of the JSA 2013 is different from that of section 41(1) of the 1978 Act [24].

The Supreme Court reviewed the history of the phrase from its first use in section 47 of the Supreme Court of Judicature Act 1873 to the 1978 Act, which replicated in Northern Ireland the appeal system of England and Wales (at [25]-[56]). Two basic features of the regime of appeal rights were important. First, the appeal rights in relation to a High Court decision in a criminal cause or matter were directed primarily to maintaining the coherence of the legal system rather than rectifying specific errors. An appeal to the Supreme Court is only possible if a point of law of general public importance is certified [66]. Secondly, and in contrast, in all other cases, appeal rights from the High Court to the Court of Appeal are directed to ensuring that errors at first instance in individual cases can be rectified. It is not necessary in this context to show that the appeal gives rise to a question of general public importance (at [67]).

The leading case on the meaning of the phrase “a criminal cause or matter” was that of the House of Lords in Amand v Home Secretary [1943] AC 147. The approach set out in that decision required consideration of the proceedings underlying those in the High Court. A criminal cause or matter will be one that puts the applicant in jeopardy of criminal punishment, where that punishment is “the direct outcome” of the proceeding (at [66], [77]).

The issue raised in the present case did not relate to the commencement or conduct of any underlying criminal process involving Mr Stone. There was no outstanding, undetermined criminal charge on which he stood to be tried and for which he could be sentenced. Instead, the present proceedings were concerned with whether his past criminal sentence has been correctly understood and implemented. The High Court decision was therefore not in “a criminal cause or matter” and the relevant right of appeal was to the Court of Appeal, not the Supreme Court (at [78]). It was noted that the Northern Ireland Court of Appeal’s consideration of the 1998 Act would likely be of assistance if the case were later to return to the Supreme Court. As such, it was not appropriate to say anything about the merits of the appeals (at [96]).

In conjoined appeals, two offenders (B and R) appealed against the extended sentences imposed following their guilty pleas to robbery.

B, aged 37 at sentencing, had robbed a convenience store armed with a hammer. He had 24 previous convictions including robbery and manslaughter. He was sentenced to five years and four months’ imprisonment with an extended licence period of five years. He had already been recalled to prison following his release on licence from a sentence of imprisonment for public protection. R, aged 51 at sentencing, had robbed a cash-in-transit custodian carrying £26,000. He assaulted members of the public who intervened. R had 18 previous convictions including murder, wounding with intent, assault occasioning actual bodily harm and a similar robbery. He was sentenced to eight years’ imprisonment with an extended licence period of three years. He had also already been recalled following his release on licence from a life sentence for murder.

The appellants submitted that it was wrong in principle or manifestly excessive to impose an extended sentence, pursuant to the Criminal Justice Act 2003 (“2003 Act”) s.226A, when they had already been recalled to prison on licence, because the future assessment of risk that would be undertaken by the Parole Board was sufficient to protect the public.

The appeals were dismissed.

Extended sentences: recalled prisoners 

For the appellants’ argument to be successful, they had to distinguish their cases from the decision in R. v Smith (Nicholas) [2011] UKSC 37, [2011] 1 W.L.R. 1795, [2011] 7 WLUK 544, which was subsequently explained in R. v J [2012] EWCA Crim 132, [2012] 1 W.L.R. 3055, [2012] 2 WLUK 258.

The impact of those two authorities was that (i) it was neither necessarily unlawful nor wrong in principle for an indeterminate sentence to be imposed on an offender already serving an earlier indeterminate sentence; and (ii) the judge had to decide whether the offender posed the risk envisaged by the statute, not on the basis that they were already in custody at the date of sentencing but on the basis that they were not.

The argument that an extended sentence was to be distinguished from other sentences because of the potential disadvantage to the offender of the restriction on possible release until two-thirds of the custodial element of the extended sentence had been served failed.

A fundamental element of the decision in Smith was that the decision regarding risk must be made on the basis that the offender was “at large” and had not been recalled. It was irrelevant that an offender had been recalled on licence. The argument also contravened an important principle of sentencing, namely that judges do not take account of the statutory provisions for early release.

Parliament, in implementing the extended sentence provisions, deliberately created a more onerous regime than originally created by the 2003 Act, when release was at the halfway point of the custodial term. In R. (on the application of Stott) v Secretary of State for Justice [2018] UKSC 59, the Supreme Court held that the early release provisions were justified as a proportionate means of achieving the government’s legitimate aims.

The appellants’ submissions would mean that, in circumstances such as the instant case, a judge would never pass an extended sentence, even if the criteria were met. In focussing solely on the role of the Parole Board in determining whether continued detention was necessary to protect the public, the appellants’ approach would impermissibly restrict judicial discretion.

By implementing the delayed early release provisions, Parliament provided a discrete form of public protection. Judges had to focus on the protection provided to the public through an additional period for an offender to be on licence, whilst ignoring the consequences of the new early release regime. The conditions of s.226A were met and it was not manifestly excessive, wrong in principle, or an inappropriate exercise of discretion to impose an extended sentence, Smith and R. v J followed (see [26]-[29], [33]-[34], [40]).

Inconsistent decisions 

There had been inconsistent decisions from the Court of Appeal addressing the lawfulness of an extended sentence imposed during the currency of an indeterminate sentence. Insofar as such decisions were in conflict, Smith was to be followed ([37]-[39]).

Extended sentence length 

In relation to B’s offending, based on the victim impact statement, it was impossible to say that the incident had caused serious psychological harm. However, there were aggravating features, including B’s record for violent offences. Even if serious psychological harm was insufficiently made out, the judge was entitled to go outside the category range for 2B of three to six years’ imprisonment, and to decide that, prior to credit for plea, the sentence would have been eight years’ imprisonment. After one-third credit for plea, the length of the determinate element (five years and four months’ imprisonment) was not manifestly excessive.

R submitted that the judge, when identifying the sentencing bracket for culpability, should not have taken the violence demonstrated to those who intervened into account. Indeed, the violence was not very significant, but there were several aggravating factors: R had relevant previous convictions; the offence was committed against someone providing a public service; and others were put at risk of harm. Those factors positioned the offence between categories A and B. The starting point of eight years’ imprisonment, increased to 12 years to reflect the aggravating factors and reduced to eight years with full credit for plea, was appropriate (at [42]-[44]).

A terror suspect known only as QQ has become the first person to be convicted of a new offence of breaching an order under counterterrorism laws. The unemployed defendant who had been made subject of a two-year-long temporary exclusion order in June 2018, but who had not been charged or convicted of any terror offence, had failed to register at a Leicester police station. Marks J at the High Court has adjourned sentencing until 27 March 2020, saying it was a “novel offence” for which there was no sentencing guidance.

The full piece can be read here.

The Metropolitan Police’s first operational deployment of facial recognition cameras failed to identify a single suspect after scanning 4,600 people without success in an operation at the Stratford Centre that took five and a half hours. The “biometric mass surveillance” cameras were switched on for a second trial, at Oxford Circus, in central London on 20 February 2020. In 2019, the University of Essex found that the technology achieved only eight correct matches out of 42, in six trials evaluated.

The full piece can be read here.

Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, has warned that extending the prison terms of those convicted of terrorism offences could make such individuals more dangerous on their release. Longer prison stays risk exposing them to “worse influences” in prison than would be present in the community. This comment comes after the Government passed legislation through the House of Commons to end the automatic release of persons convicted of terrorism offences halfway through their sentences. Instead, such prisoners will become eligible for release two-thirds of the way through their sentences; the Parole Board will determine whether they are in fact suitable to be released at that point. The House of Lords is due to debate the Bill on Monday, 24th February.

The full piece can be read here.