High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Background

"The withheld information relates to intelligence to the effect that you have been and are likely to be concerned in the commission and preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland. In particular you have had and continue to maintain close links with dissident Republican elements and had been involved in serious crime committed by the Real IRA and will become involved in acts of terrorism upon release."

The Proceedings Before the Commissioners

"Having fully and carefully considered all the evidence presented in the closed session, the panel took the view that Mr Brady has breached the conditions that he does not support a specified organisation, that he does not become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland and that he does not become a danger to the public."

The Commissioners' Decision

"In accordance with current policy, the Commissioners first considered the evidence during the open aspect of the hearing and concluded that this evidence alone was insufficient to revoke the applicant's licence. We therefore proceeded to hear the damaging information, but that is not to say that we ultimately placed no reliance on the evidence presented in the open hearing. It is quite difficult to fully clarify this statement without revealing anything of the confidential material. However, as a general statement, the evidence heard in the closed hearing presented a different context as in which the evidence heard in the open part of the hearing was considered. The confidential evidence effectively served to tip the balance in relation to her assessment of the open evidence. Thus, after consideration of the damaging information presented, the panel concluded that the applicant had breached the conditions of his licence (i) does not become concerned in the commission, preparation or instigation of acts of terrorism connected with affairs of Northern Ireland and (iii) that he does not become a danger to the public."

The Commissioners therefore revoked the applicant's licence.

"Within the terms of Rule 22 of the Northern Ireland Sentences Act (Sentence Review Commissioners) Rules 1998 the Commissioners are required to safeguard the confidentiality of the damaging information presented to them. For this reason, the panel takes the view that it would be inappropriate to set out in any detail its assessment of the evidence presented to it in the closed session. The general comment may, however, be made that the panel sought to apply clear criteria carefully and consistently to the evaluation of the damaging information before it. The panel were at all times mindful of the constraints inherent on the damaging information procedures and the disadvantage at which the prisoner was placed, notwithstanding the appointment by the Attorney General under Rule 7(2) of a Special Advocate to represent his interests. During the course of the closed part of the hearing and its assessment of the evidence the panel sought to minimise any such disadvantage by methodically and thoroughly examining and testing all of the information before them."

"On the basis of the evidence put before them in the open part of the hearing the panel was not satisfied that Mr Brady had breached the conditions that he does not support a specified organisation, that he does not become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland or that he does not become a danger to the public. Nor did the panel think on the basis of the evidence presented in the open part of the hearing that Mr Brady is likely, if released, to breach the terms of his licence.

Having reached this conclusion, the panel proceeding to consider the damaging information. For the reasons outlined above no detailed assessment of this evidence can be given however, having fully carefully considered all of the evidence presented in the closed session, the panel took the view that Mr Brady has breached the conditions that he does not support a specified organisation, that he does not become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland and that he does not become a danger to the public."

The Statutory Context

"9. - (1) A person's licence under section 4 or 6 is subject only to the conditions-

(a) that he does not support a specified organisation (within the meaning of section 3),

(b) that he does not become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland, and

(c) in the case of a life prisoner, that he does not become a danger to the public.

(2) The Secretary of State may suspend a licence under section 4 or 6 if he believes the person concerned has broken or is likely to
break a condition imposed by this section.

(3) Where a person's licence is suspended-

(a) he shall be detained in pursuance of his sentence and, if at large, shall be taken to be unlawfully at large, and

(b) Commissioners shall consider his case.

(4) On consideration of a person's case-

(a) if the Commissioners think he has not broken and is not likely to break a condition imposed by this section, they shall confirm his licence, and

(b) otherwise, they shall revoke his licence."

"(e) for evidence or information about a prisoner not to be disclosed to anyone other than a commissioner if the Secretary of State certifies that the evidence or information satisfies conditions specified in the rules."

Paragraph 6 of the Schedule provides that the Rules may provide for proceedings to be held in private except where Commissioners direct otherwise and paragraph 7(2) provides:

"Where a prisoner and any representative appointed by him are excluded from proceedings by virtue of sub-paragraph (1) the Attorney General for Northern Ireland may appoint a person to represent the prisoner's interest in those proceedings."

"Non-disclosure of damaging information

22. - (1) This rule applies where the Secretary of State certifies as "damaging information" any information, document or evidence which, in his opinion, would if disclosed to the person concerned or any other person be likely to:

(a) adversely affect the health, welfare or safety of the person concerned or any other person;

(b) result in the commission of an offence;

(c) facilitate an escape from lawful custody or the doing of any act prejudicial to the safe keeping of persons in such custody;

(d) impede the prevention or detection of offences or the apprehension or prosecution of suspected offenders;

(e) be contrary to the interests of national security; or

(f) otherwise cause substantial harm to the public interest;

and any such information, document or evidence is referred to in these Rules as 'damaging information'.

(2) The Commissioners shall not in any circumstances disclose to or serve on the person concerned, his representative or any witness appearing for him any damaging information and shall not allow the person concerned, his representative or any witness appearing for him to hear argument or the examination of evidence which relates to any damaging information.

(3) Where the Secretary of State has certified information as damaging he shall within seven days of doing so serve on the person concerned and on the Commissioners, whether by way of inclusion with the application or response papers or otherwise, written notice of this stating, so far as he considers it possible to do so without causing damage of the kind referred to in paragraph (1), the gist of the information he has thus withheld and his reasons."

The Applicant's Case

The House of Lords Authorities

(i) Re McClean [2005] NI 490, an appeal from this jurisdiction dealing with questions arising under the 1998 Act,

"Counsel for the respondent submitted that the procedures prescribed by the rules breached the respondent's rights under the Convention guaranteed by either or both of Article 5(4) and Article 6(1). But this submission ignores the facts that the respondent's human rights do not entitle him to any early release scheme. He has been convicted of serious offences and sentenced to lengthy terms of imprisonment. There are many years to go before he could, absent the 1998 scheme, have any expectation of release. His continued incarceration does not infringe his human rights the 1998 Act and its rules can constitute a statutory scheme of which the respondent was and still is a potential beneficiary. He certainly has the right to have the scheme properly and fairly applied to him in accordance with its terms but he does not have the right under the Convention or otherwise to complain that the scheme is not sufficiently favourable or that part of the scheme, more particularly Rule 22, infringes his human rights and should be struck down."

In relation to Article 5(4) Lord Scott said that it had no relevance in the proceedings before the Commissioners and in relation to Article 6(1) he concluded:

"The respondent's only relevant civil right is the right to have the statutory scheme fairly and properly applied according to its terms. That relevant right has been adjudicated upon by Coghlin J in the High Court and by the Court of Appeal in Northern Ireland and now I hear by Your Lordships. The respondent has no other relevant civil right. In particular he does not have the right to have his entitlement to release under the statutory scheme dealt with by the Commissioners otherwise than in accordance with the procedures that are part of that scheme."

Lord Brown at paragraph 105 of his speech stated that he saw force in Lord Scott's views. He concluded that even assuming (which might be the better view) Article 5(4) did apply in the circumstances and that the Commissioners were discharging the function of a court in determining the lawfulness of the prisoner's continuing detention there was no incompatibility between the requirements of Article 5(4) and the prisoner's need to satisfy the Commissioners that he could safely be released.

R (Smith and West) v Parole Board

"The examples considered above show plainly that Parliament in practice observes the principle of legality. If it intends that a tribunal shall have power to depart from the ordinary rules of procedural fairness, it legislates to confer such power in clear and express terms and it requires that subordinate legislation regulating such departures should be the subject of parliamentary control. It follows this practice even when the security of the nation is potentially at stake … It is my opinion contrary to legal principle and good democratic practice to read such a power into a statute which contains no hint whatever that Parliament intended or even contemplated such a departure. Had it done so, as in the other cases considered the departure would have been carefully confined and controlled. It is nothing to the point to argue that if damaging adverse evidence is withheld from a prisoner and his legal representative he is better off with limited help given by a specially appointed advocate than without it unless there is a lawful authority to conduct the hearing while withholding such evidence from the prisoner which in the present context there is not."

Lord Steyn agreeing with the views of Lord Bingham considered that the Special Advocate procedure struck at the root of the prisoner's fundamental right to a basically fair procedure. If such departures are to be introduced this must be done by Parliament. He considered that the Special Advocate procedure emptied the prisoner's fundamental right to an oral hearing of all meaningful content.

Principles Emerging from the Authorities

(a) The 1998 Act contains an express power for the Secretary of State to certify that evidence satisfying conditions specified in the Rules should not be disclosed to anyone other than the Commissioners. The Rule may permit the exclusion of the prisoner and his representatives and, in that event, the Attorney General may appoint a Special Advocate to represent the prisoner's interest. The Secretary of State, so far as he considers it possible to do so without causing damage, may give notice of the gist of the information which has been withheld and his reasons for certifying it. This statutory power sets out clear legislative basis for modifying the ordinary rules of fairness applicable to the hearing and the golden rule of disclosure.

(b) The statutory scheme presents a balanced weighing up of competing interests, provided it is fairly and properly operated, used and implemented where the circumstances warrant its use. The procedure does involve a derogation from the ordinary rules of fairness and should be used in strictly confined circumstances justified by the Rules.

(c) The civil rights provisions of Article 6(1) are not in play. Although in McClean the question was left open by all save Lord Scott, the reasoning of Lord Slynn, Lord Hope and Lord Carswell in Roberts establishes that in the circumstances of the statutory scheme considered in that case Article 6(1) was not in play. The same principle applies a fortiori in the context of the 1998 Act. The judge at first instance and the Court of Appeal in Re McClean all concluded that Article 6(1) was not in play. That reasoning was in line with the later reasoning of the majority in Roberts albeit in the context of the statutory scheme considered in that case.

(d) In Re McClean in the House of Lords only Lord Scott definitively held that Article 5(4) was not engaged. The judges in the lower courts considered that Article 5(4) was not engaged. Their reasoning predated Smith and West. I find compelling Lord Slynn's reasoning in paragraph [55] of his speech that recall even of someone who has only a conditional right to his freedom under licence is a new deprivation of liberty by detention engaging Article 5(4). There seems to be no logical reason why the same principle should not apply in relation to recall under the 1998 Act.

(e) On the assumption that Article 5(4) does apply the statutory scheme represents a balanced exercise by the legislature weighing up the competing interests that must be taken into consideration in the statutory context of the release scheme. The reasoning of Lord Carswell in Roberts is fully in line with the views of the judges in the lower courts in Re McClean.

Determination of the Applicant's Challenge