Court of Appeal in Northern Ireland Decisions

Neutral Citation No. [2012] NICA 28	Ref:	HAR8546
Judgment: approved by the Court for handing down	Delivered:	3/7/2012
(subject to editorial corrections)


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ QUEEN'S BENCH DIVISION (JUDICIAL REVIEW) _______ IN THE MATTER OF AN APPLICATION BY TERENCE McGEOUGH FOR JUDICIAL REVIEW ________

BETWEEN:

TERENCE McGEOUGH

Appellant/Applicant;

-and- THE SECRETARY OF STATE FOR NORTHERN IRELAND

Respondent.

________ Before: Morgan LCJ, Gillen J and Sir Anthony Hart ______

SIR ANTHONY HART (Giving the judgment of the court)

[1] Mr McGeough appeals against the decision of Treacy J dated 20 March 2012 dismissing an application for judicial review by Mr McGeough against the decision of the Secretary of State to refuse to recommend the exercise of the Royal Prerogative of Mercy in order to relieve Mr McGeough of his obligation to serve any part of the sentence of 20 years imprisonment imposed by Stephens J for the attempted murder of Mr Samuel Brush in 1981.

[2] His appeal raises issues in relation to the nature and scope of the power of a court to review a decision not to advise Her Majesty to exercise the Royal Prerogative of Mercy (conveniently referred to as the RPM), and we are grateful to Mr Scoffield QC (who appeared on behalf of Mr McGeough with Mr Devine) and Mr McGleenan QC on behalf of the Secretary of State for their comprehensive and well-structured written submissions, and their succinct and focused oral submissions.

[3] The circumstances comprising the factual background to the appeal have been set out by Treacy J at paragraphs [2] to [8] of his judgment, and by Coghlin LJ in his judgment at [2010] NICC 33 when he considered very similar arguments advanced on behalf of Mr McGeough in an unsuccessful application to stay the criminal proceedings against him on the grounds of an abuse of process. In his judgment setting out the reasons for Mr McGeough's conviction on the charges arising out of the attempted murder of Mr Brush at [2011] NICC 7, and when sentencing him at [2011] NICC 16 Stephens J also dealt with Mr McGeough's history since the attempted murder of Mr Brush at some length. For present purposes the following brief account of the relevant matters is therefore sufficient.

[4] On 13 June 1981 Mr McGeough was one of two men who took part in an ambush of Mr Brush, a postman and part-time member of the UDR who was making a postal delivery. It is clear that this postal delivery had been planned by terrorists in order to lure Mr Brush to a remote farmhouse where he was attacked with gunfire as he arrived to make the delivery. Mr Brush was armed with a personal protection weapon, and, although very seriously injured by gunshot wounds he sustained, managed to wound one of the two gunmen when he returned fire and before he drove himself from the scene. That gunman was Mr McGeough who was admitted to Monaghan County Hospital at 3.45 pm that afternoon with a bullet wound to his chest. He underwent medical attention both in Monaghan, and later in Dublin before be returned to Monaghan Hospital, from whence he escaped despite being under police guard on 27 June 1981. Because of his injuries he does not appear to have been charged with any offence before he escaped.

[5] It seems that by 1982 Mr McGeough had made his way to America where he committed offences involving the transportation of weapons. The next relevant date is 30 August 1988 when he was arrested attempting to cross the Dutch/German border in a car in which were found two AK47 rifles. As a result he was charged with various offences in Germany, and his trial on those charges commenced on 19 August 1990. It is unclear to us what the outcome of the charges was in the sense of whether he was acquitted or convicted of those charges. In any event on 28 May 1992 he was extradited from Germany to the United States of America on foot of an extradition warrant issued in 1992 by the United States in relation to the offences he had committed in the US in 1982. It appears from the papers that Mr McGeough had spent some 3 years and 9 months in custody in Germany before he was extradited to the United States. He asserts that in the United States he pleaded guilty to the charges brought against him there in relation to the offences he committed in the United States in 1982 and was sentenced to two years imprisonment. He was released in 1996 having served that period of imprisonment.

[6] Mr McGeough claims that he spent a total of approximately 7½ years in custody, first of all in Germany and then in the United States, before his release in 1996. We should record the respondent made the point in written submissions that there was no documentary proof that Mr McGeough had been in custody, whether on remand or as a convicted prisoner, either in Germany or the United States. However, these proceedings have been in being for a considerable period of time, both at first instance and on appeal, and as the resources available to the respondent should enable him to challenge the detail of the periods of incarceration asserted by Mr McGeough we are content to determine the appeal upon the basis that the alleged periods of incarceration are essentially correct in the absence of any evidence on behalf of the respondent to lead us to believe that the contrary may be the case.

[7] Mr McGeough's application is that, contrary to the decision of the Secretary of State, he should benefit from the RPM because of the periods of incarceration he spent in Germany and then in the United States in respect of offences which he alleges were connected to Northern Ireland, and that therefore he should not have to serve any part of the sentence of 20 years imprisonment imposed upon him by Stephens J in 2011 in relation to the offences arising out of the attempted murder of Mr Brush in respect of which he was convicted. It is against that background that we turn to consider the arguments of the parties.

[8] Although the parties agree that the decision of the Secretary of State not to recommend the exercise of the RPM is justiciable in that it may in certain circumstances be reviewed by the courts, we think that it is necessary to consider the principles underlying that proposition. It has been accepted since the decision of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 ("the CCSU case") that in principle an exercise by the executive under a prerogative power affecting the rights of the citizen may in certain circumstances be reviewable by the courts. The relevant authorities prior to 1993 were considered by the Divisional Court in R v Secretary of State for the Home Department, ex parte Bentley [1994] QB 349, and in the judgment delivered by Watkins LJ the Divisional Court accepted that decisions under the RPM were susceptible to judicial review in certain circumstances.

[9] The proceedings before us require us to consider the extent to which any such decision is reviewable. First of all, it appears to be well established that irrationality in relation to the exercise of the RPM would give grounds for judicial review. That much was conceded by Lord Diplock in the CCSU case at page 411 where he said:

"While I see no a priori reason to rule out 'irrationality' as a ground for judicial review of a ministerial decision taken in the exercise of 'prerogative' powers, I find it difficult to envisage in any of the various fields in which the prerogative remains the only source of the relevant decision-making power a decision of a kind that would be open to attack through the judicial process upon this ground."

However, Lord Diplock concluded his consideration of this topic at page 411 by leaving this as "an open question to be dealt with on a case to case basis if, indeed, the case should ever arise."

[10] Whatever may have been believed to be the limitations to the exercise of the RPM and its reviewability at the time of the CCSU case, it is, in our opinion, now clear from the subsequent discussion of this matter in Bentley's case that it is open to the courts to interfere if it is clear that the decision maker had refused to pardon someone on irrational grounds. In Bentley's case at page 363 Watkins LJ observed:

"If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so."

We respectfully agree with this approach. Nevertheless, that still leaves the question of the extent to which the courts should interfere and we shall return to this later in this judgment.

[11] A further situation in which a refusal to exercise the RPM may be reviewable is where there may have been an error of law on the part of the decision-maker, as where the decision-maker errs in law when considering whether he or she has a power to grant a pardon. That is clear from the decision in R (On the application of Shields) v Secretary of State for Justice [2008] EWHC 3102 (Admin). Sheilds had been convicted and sentenced in Bulgaria for an offence, and later repatriated to the United Kingdom under the terms of the Repatriation of Prisoners Act 1984, and an international Convention entered into between the UK and Bulgaria in 1983. Article 12 of that Convention provided that the UK, as the State administering the sentence imposed in Bulgaria, could grant a pardon in relation to the penalty imposed by the Bulgarian court. Considerable doubt arose as to Shields' guilt as a result of a confession by another man that he had been responsible for the offence, but the Bulgarian judicial process did not result in Shields' conviction being overturned. Notwithstanding this, the Bulgarian authorities indicated that in their view the UK authorities did have the power to pardon Shields under the terms of the Convention. However, the Secretary of State took the view that he had no power to do so, and so the court was concerned with a pure question of law, namely whether the Secretary of State had misinterpreted his power in this respect, see [10]. The Divisional Court held that the Secretary of State did have power to at least consider granting a pardon to Shields on the facts presented to the Divisional Court.

[12] Mr Scoffield for Mr McGeough argues that in the present case the Secretary of State has acted in a fashion that involves unequal or inconsistent treatment of Mr McGeough when compared to the treatment of a number of others who are asserted to have been in a materially analogous situation to Mr McGeough, and that the court should quash that decision, and either direct the Secretary of State to reconsider his decision, or declare that he should recommend the exercise of the RPM. We consider that the first question the court should consider is the extent to which the court should review the approach by the executive to the exercise of the RPM. As Mr McGleenan put it at the beginning of the case, the issue is the extent of the deference the court should show to the decision-maker in the particular circumstances of this case.

[13] We are satisfied that by its very nature the RPM is a residual power which can only be exercised in circumstances where the legal process may be unable to resolve an apparent injustice, as in the case of Bentley or Shields. As Lord Diplock put it in Defreitas v Benny [1976] AC 234 at 247 "It begins where the legal rights end". In practice, it is clear that the RPM is conventionally exercised in modern times in one of three situations. First of all, there is special remission (which is what is sought in the present case), that is where the prison authorities miscalculate a release date or release a prisoner early by mistake. Secondly, there is what is termed a conditional pardon, the clearest example being the commutation of a death sentence as in Bentley's case where the penalty was posthumously recognised not to have been commensurate with the offending. Thirdly there is a free pardon, which may relate to miscarriages of justice and where the Secretary of State is satisfied that the prisoner is innocent of the crime for which he or she has been convicted. This has been rarely exercised since the Criminal Appeal Act of 1907 in England and Wales, and its analogue in Northern Ireland. Although these are the three situations in which the RPM is conventionally exercised, it is essential to remember that, as Watkins LJ pointed out in Bentley's case at page 365:

"… it is an error to regard the Prerogative of Mercy as a prerogative right which is only exercisable in cases which fall into specific categories. The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of the particular case."

[14] As the RPM is a flexible power, and one which should not be regarded as only exercisable in certain defined categories of circumstances, and as it is a power which is only exercised in those rare situations where the legal process may leave an apparent injustice unresolved, its exercise is likely to be highly dependent upon the particular facts of each case, facts which will almost certainly vary greatly from one case to another. In addition, many such cases may well require the decision maker to take into account, and weigh, competing considerations where views may legitimately vary as to the relevance of those considerations, and the weight to be given to them. For these reasons we are of the opinion that the decision maker should be afforded a wide degree of latitude within which to make his decision, and that it is only in the clearest of cases that the courts should interfere, and should only do so where the applicant surmounts a high factual threshold.

[15] An additional factor which is of considerable relevance in this case is that Parliament has put in place a statutory scheme under the provisions of the Northern Ireland (Sentences) Act 1998 (the Sentences Act) governing the early release of prisoners convicted of terrorist crimes, and that scheme requires a prisoner sentenced to certain periods of imprisonment to serve at least two years of his or her sentence before the offender can avail of the provisions of the Sentences Act. Because Parliament has already made provision in the Sentences Act to implement the UK Government's obligations in this sphere under the Belfast Agreement any decision under the RPM which relieved an offender of his or her obligation to serve such a sentence is likely to arise only in exceptional circumstances. As Treacy J pointed out, if Mr McGeough's application is granted, its effect would be that he would not serve that period if he were otherwise eligible to be considered for release under the Sentences Act, and we agree with Treacy J when he said

"[42] Lord Bingham in McLean [2005] UKHL at para 5 described the accelerated release provisions of the 1998 Act "as an important and, in a literal sense, extraordinary scheme". Having been convicted of attempted murder and sentenced to 20 years this applicant will in fact only have to serve 2 years as a result of these provisions. ..

[43] It is striking to observe that if the accelerated release provisions are as Lord Bingham characterised them, "extraordinary" what epithet would be left to describe the invocation of the Royal Prerogative of Mercy by the Secretary of State to ensure that the applicant serve no part of the sentence lawfully imposed upon him by a competent court?

[44] Exercising the RPM in this way would be inconsistent with the express provisions of the Act which lay down the requirement that persons in the position of the applicant convicted after the Act must serve 2 years of their sentence before obtaining accelerated release."

[16] The evidence in this case shows that there have been a number of such exceptional cases, because experience has shown since the Sentences Act that there were a number of what had been described as "anomalies", that is cases where some prisoners were accepted to have fallen within the spirit, though not the letter, of the Sentences Act, particularly when viewed in the light of the Belfast Agreement which gave rise to the Sentences Act. It is accepted by the respondent that in a number of cases since the Sentences Act the RPM has been applied in order to remit sentences, and Mr McGeough relies upon a number of cases where this was done to support his argument that this has been done in a manner which amounts to his case being treated differently and in an unequal fashion when compared with those cases. We can see no reason why in principle the decision maker's approach should not be reviewable if it is established that there has been an unfair or unequal approach to the exercise of the RPM in individual cases, subject only to the decision maker being afforded the wide ambit of discretion to which we have referred, and the courts exercising proper restraint when reviewing any decision in this area for the reasons we have given, a restraint that requires an applicant to surmount a high factual threshold to show that there has been unfairness or inequality.

[17] It is against that background that we turn to consider the comparators relied upon by the applicant. These can be said to fall into four categories. The first category consists of Anthony Sloan, Robert Campbell, Paul Magee and Angelo Fusco who escaped from prison two days before they were due to hear the outcome of the charges brought against them arising out of the murder of Captain Westmacott. By the time of their escape each had served a period of remand in Northern Ireland. Sloan had served nine months and Campbell, Magee and Fusco had each served 13 months on remand. By virtue of the extraterritorial provisions equivalent to those of the Criminal Jurisdiction Act 1975 each was subsequently convicted in the Republic of Ireland of offences arising out of the circumstances of their prison escapes in Northern Ireland, and each was sentenced to lengthy periods of imprisonment in the Republic for the offences which were committed in Northern Ireland. Sloan served 8½ years, Campbell 8 years, Fusco 7 years and 8 months and Magee 7 years and 7 months. We do not accept that the circumstances of these four individuals are comparable with those of Mr McGeough. The offences for which they were convicted in the Republic were offences which were committed in Northern Ireland but which were triable in the Republic by virtue of the extraterritorial legislation. It was therefore a perfectly proper decision to treat them as having served more than two years for offences committed in Northern Ireland as several more years' incarceration was served in the Republic of Ireland for offences committed in Northern Ireland.

[18] The second group of comparators consisted of a number of those who escaped from the Maze Prison on 25 September 1983. These were Seamus Campbell, Gerard Fryers, James Clarke, Dermott McNally, Seamus Clarke and Dermott Finucane. Each of these individuals were serving sentences of imprisonment which had been imposed prior to their escape on 25 September 1983, and each had served more than two years imprisonment by the time they escaped. Each member of this group returned voluntarily to Northern Ireland and was subsequently released under the provisions of the Sentences Act. However, in Fryers case he was subject to hijacking charges which were not covered by the Sentences Act. In the case of Seamus Clarke he had been sentenced to a period of four years imprisonment for hijacking charges, and so was not eligible for the application of the Sentences Act because it only applied to cases where sentences of five years or more had been imposed. Each of this group had spent more than two years in prison in Northern Ireland prior to their escape, and in those circumstances the decisions to apply the RPM in the case of Fryers and Seamus Clarke were in quite different circumstances to those of Mr McGeough.

[19] The third comparator put forward on behalf of Mr McGeough is Leonard Hardy. Although the circumstances relating to Hardy's history are not entirely clear, it is apparent from the affidavit sworn by Mr Case on behalf of the respondent that Hardy had served a period of imprisonment in Ireland in the 1990s. He was subsequently extradited by the German authorities from Spain in relation to offences allegedly committed in Germany. He was prosecuted for attempted murder in Germany, found guilty and sentenced to six years imprisonment on 4 April 2006, although it appears that the German authorities released Hardy from jail shortly afterwards.. We accept that this was a matter for the German authorities and it did not involve any undertaking by the UK authorities. We consider that Hardy is not a relevant comparator because the decisions made by the Spanish and German authorities were decisions made by those countries in respect of offences committed on their territories and did not involve offences committed in the United Kingdom.

[20] The final comparator upon whom Mr McGeough relies is James McArdle. McArdle was arrested in April 1997 as he was believed to be part of a sniper team in south Armagh. Mr McGleenan explained that although he was then questioned about those matters, he was not charged but taken to England and there questioned and charged in relation to the Canary Wharf bombing. He was convicted and sentenced in relation to those matters in June 1998 and sentenced to 25 years imprisonment. He was transferred to Northern Ireland in September 1998, and was then proceeded against in relation to the sniper offences in respect of which he was jointly tried with his co-defendants, convicted and sentenced to 20 years imprisonment. When his case was considered under the Sentences Act it was decided that it would not fall within the terms of the Act because he was not due for release in relation to the Northern Ireland offences until March 2001, whereas he was eligible for early release under the Act in relation to the Canary Wharf convictions by July 2000, as were his co-accused. In his affidavit Mr Case stated that:

"To resolve this, the RPM was used to remit the unexpired portion of his Northern Ireland offences to allow him to apply for early release for July 2000, at the same as his co-accused for the Canary Wharf bombing."

[21] Mr Scoffield relied upon McArdle's conviction in England as relevant, and drew our attention to the terms of paragraph 1 of that section of the Belfast Agreement which dealt with the treatment of prisoners, which was in the following terms:

"Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners, including transferred prisoners, convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences (referred to hereafter as qualifying prisoners). Any such arrangements will protect the rights of individual prisoners under national and international law." (Emphasis added).

He argued that the reference to "those sentenced outside Northern Ireland" was apt to include individuals such as Mr McGeough because of his incarceration in Germany and the United States and that therefore in accordance with the spirit of the Belfast Agreement the RPM should have been exercised in his favour, as it had been in favour of McArdle who had also been convicted outside Northern Ireland and whose period of incarceration in England was taken into account in his favour.

[22] However, Mr McGleenan for the respondent argued that when one examined the various comparators to which Mr McGeough had pointed it was apparent that, unlike him, each of those concerned, with the exception of Hardy, had served periods of imprisonment in Northern Ireland, or elsewhere within the United Kingdom or the Republic of Ireland, in respect of offences committed in Northern Ireland. He accepted that McArdle had not served a period of two years imprisonment for offences committed in Northern Ireland, but argued that had it not been for the decision to send him to England to face the Canary Wharf charges the south Armagh charges would have been dealt with sooner in Northern Ireland, and because he would therefore have served a period of two years imprisonment in Northern Ireland under the Sentences Act it was appropriate to exercise the RPM in his favour so that he could be released at the same time as his co-accused in relation to the Canary Wharf bombing.

[23] The respondent's case is that if there was a policy, it was confined to considering whether the RPM should be exercised to resolve the situation of any individual whose circumstances might be said to amount to an anomaly in that they fell within the spirit of the Belfast Agreement but were excluded from the operation of the Sentences Act by technical considerations, for example in the case of Seamus Clarke whose case did not fall within it because he had only received four years imprisonment and that did not qualify.

[24] Mr Scoffield also sought to rely upon the terms of the Weston Park Agreement in support of the application. We can deal with this very briefly. It is correct that in that Agreement the UK Government expressed a willingness to consider dealing with others in similar situations to the applicant in a manner that might have led to his being more favourably regarded, but the materials before us show that the Government withdrew the necessary legislation when it became clear that there was insufficient support in Parliament for its proposals, and we do not consider that this adds anything to the applicant's case as that willingness was not translated into reality.

[25] If the approach of the respondent can be considered a policy in the circumstances of the present case, we are satisfied that Treacy J was correct to find that the circumstances of each group or individual comparator put forward on behalf of Mr McGeough were far from analogous to Mr McGeough's case, contrary to the arguments advanced on his behalf. We accept that the circumstances of the decision to exercise the RPM in each of those cases were consistent and based upon the position that only those who had served a period of two years imprisonment within the jurisdiction of the United Kingdom or the Republic of Ireland should be considered for the exercise of the RPM. These two countries were the only countries who were signatories to the Belfast Agreement, and it was entirely understandable for the respondent to take the view that only those who had served two years imprisonment in either of those countries, or whose circumstances were very closely analogous thereto in the case of McArdle, should benefit from the exercise of the RPM to ensure that they be released after having served at least two years' incarceration in either country. This cannot be said to be the position so far as Mr McGeough is concerned because his circumstances are very different to those comparators to whom he has referred, and we can see no inequality or unfairness in the way his case was treated by the respondent. Mr McGeough's case therefore fails on the principal ground upon which it has been advanced before us.

[26] A further ground developed in the appellant's written submissions, but somewhat faintly advanced by Mr Scoffield in his oral submissions, was that in correspondence with Mr McGeough's solicitors the respondent had advanced contradictory explanations for the refusal to recommend the exercise of the RPM in Mr McGeough's favour. We are satisfied that this point is without merit. It is sufficient to say that a careful reading of the correspondence shows that the respondent answered each specific question as it was posed, and the questions changed substantially throughout the correspondence. We accept that the respondent answered each question appropriately, and that when the correspondence is looked at in that context it is clear that there was no contradiction or inconsistency in the respondent's reasoning.

[27] A subsidiary ground with which we can also deal very briefly is the allegation made by Mr McGeough that:

"It is my view Sinn Fein have failed to lobby the NIO and/or the British Government on my behalf, in the way that it has done for other individuals who are or were its members, supporters or political allies."

In a letter dated 12 January 2012 from his solicitors, Mr Gerry Kelly MLA denied that this was the position and asserted that:

"From the outset, Sinn Fein have been robust in their position that the case against [Mr McGeough] should not proceed and [Mr McGeough] should be released immediately to return to his family."

There is no evidence before us to support Mr McGeough's assertion that there is some form of deal between Sinn Fein and the Government to prevent the exercise of the RPM in Mr McGeough's favour. In any event it is abundantly clear from the letter of 22 January 2003 from the Northern Ireland Office to Mr Kelly that representations were made on Mr McGeough's behalf that he should not face arrest and questioning if he returned to Northern Ireland, and that the NIO expressly informed Mr Kelly that Mr McGeough was one of those who "in the current circumstances of their case, would face arrest and questioning if they returned to Northern Ireland".

[28] Before concluding this judgment we note that in his judgment Treacy J referred at [46] to the unreported judgment of Kerr J (as he then was) of Re Martin Corden of 22 June 2001, saying:

"It is noteworthy that in Corden Kerr J acknowledged that it was open to the [Secretary of State] to allow political considerations to play a part."

Whilst it is true that in Corden Kerr J made observations which support such a conclusion, in order to decide this case we do not consider it necessary to consider whether it is open to the Secretary of State to allow political considerations to play a part in reaching a decision on the exercise of the RPM, and we prefer to leave consideration of that issue until a case where it arises when the matter can be more fully investigated and argued than has been possible either in this case or in Corden's case.

[29] For all of these reasons we are satisfied that the decision of Treacy J was correct and the appeal is accordingly dismissed.