“Immediate” Means Imminent, Not Contingent: Limits on Parole Commissioners’ Powers under Article 28 Criminal Justice (Northern Ireland) Order 2008

“Immediate” Means Imminent, Not Contingent: Limits on Parole Commissioners’ Powers under Article 28 Criminal Justice (Northern Ireland) Order 2008

1. Introduction

This judgment of the Court of Appeal in Northern Ireland (Department of Justice v Parole Commissioners for Northern Ireland [2025] NICA 63) provides an important and highly practical clarification of the powers of the Parole Commissioners for Northern Ireland (“PCNI”) when dealing with recalled prisoners.

The central issue was whether, under Article 28 of the Criminal Justice (Northern Ireland) Order 2008 (“the 2008 Order”), the PCNI can lawfully direct the release of a recalled prisoner on a conditional or contingent basis – in effect: “you will be released when suitable accommodation is found”, without knowing when that will be or whether the condition can in fact be fulfilled.

The Court of Appeal (Keegan LCJ, Colton LJ delivering the judgment, and McLaughlin J) held that the PCNI cannot do so. A direction for “immediate” release under Article 28(5):

  • must be based on the Commissioners being satisfied at the time of the decision that it is no longer necessary, for the protection of the public from serious harm, that the prisoner be confined; and
  • may only attach licence conditions which are capable of being implemented in the near, immediate future, not conditions dependent on uncertain or open-ended future contingencies, especially where those contingencies are material to risk.

The case has direct implications for all release decisions under Article 28 (recall of extended custodial sentence (“ECS”) prisoners), but its reasoning applies by analogy across the public protection sentencing regime and to life sentence recall, given the parallel statutory language.

2. Background and Facts

2.1 The offender and sentence

Mr Martin McAllister, the first notice party, was convicted on 27 April 2022 of conspiracy to commit arson, being reckless as to endangerment of life. He received an extended custodial sentence (ECS) under Article 14 of the 2008 Order:

  • Custodial element: 2 years
  • Extended licence: 2 years

The sentencing court had found that he posed a significant risk of serious harm to the public, hence the ECS.

2.2 Initial release and recall

Having served the two-year custodial term, Mr McAllister was released on 1 August 2023 onto licence, to Trust-run 24-hour supervised accommodation (Cedar Court, Antrim). This was in line with Article 18(8) of the 2008 Order, which obliges the Department of Justice (“DOJ”) to release an ECS prisoner on licence when the “appropriate custodial term” ends.

However, on the first night Mr McAllister displayed what was described as aggressive and destructive behaviour and left the premises in breach of the agreed supervision. The Trust withdrew the accommodation, no suitable alternative was available, and the Probation Board for Northern Ireland (PBNI) sought recall on 2 August 2023. A single PCNI commissioner recommended recall, and DOJ’s Public Protection Branch authorised it.

2.3 The PCNI proceedings

The recall was referred to the PCNI on 8 August 2023 under Article 28(4). A single commissioner provisionally decided not to direct release. Mr McAllister then exercised his right to an oral hearing before a panel.

A series of oral hearings in late 2023 and through 2024 focused heavily on one issue: finding suitable accommodation that could safely manage Mr McAllister’s significant risk of serious harm in the community. The Trust and PBNI explored specialised placements (Apple Blossom Lodge, then the “Grouse” facility) but without success. Insurance difficulties and other problems meant that, by September 2024, there was still no identified, available placement.

At all stages:

  • The professional witnesses and the DOJ accepted that release could only be safely managed if Mr McAllister was placed in suitable supported accommodation.
  • PBNI rejected alternatives such as probation-approved hostels as plainly inadequate for risk management.
  • Mr McAllister’s own representatives accepted in principle that release could properly be directed only on the basis of suitable accommodation being found.

Meanwhile, time was passing. If no direction was made and no further recall occurred, Mr McAllister’s extended licence would end in July 2025, at which point he would be released automatically, without licence or supervision. The panel described this possible outcome as “an appalling vista”.

2.4 The PCNI’s decision

On 19 September 2024, the PCNI panel issued a decision:

  • It accepted that Mr McAllister continued to pose a risk of serious harm.
  • It nonetheless concluded that, with appropriate licence conditions, the risk could be managed if he were placed in suitable accommodation with support.

The panel therefore purported to direct his release on licence under Article 28, but in a highly unusual form. It held that:

“We are persuaded that with the licence conditions below being in place, Mr McAllister's risk of serious harm can be managed. On that basis release is directed. It is our clear understanding (and that of the other parties to the case) that release cannot take place until and unless these conditions are in place.”

The key licence condition for present purposes was:

“You must permanently reside at an approved address identified by the relevant Health and Social Care Trust and supported by PBNI. You must not leave to reside elsewhere without obtaining the prior approval of your probation officer; and thereafter must reside as directed by your probation officer.”

Crucially, at the time of the decision:

  • No such address had been identified;
  • No date was known by which it would be identified; and
  • The condition depended on future assessment and decisions by third parties (the Trust and PBNI), over whom neither PCNI nor DOJ had full control.

The PCNI also “recommended” that, if practicable, release should be “graduated” via temporary releases, but acknowledged that this was only a recommendation, not part of the formal direction.

2.5 Judicial review and appeal

By the time the matter came before Humphreys J in the High Court (Judicial Review), Mr McAllister had in fact been released into suitable Trust-run accommodation (a voluntary admission to Holywell Hospital on 3 March 2025). The practical issue had thus become academic in his personal case.

However, evidence showed that the PCNI had used contingent release directions in other cases. Given the recurring nature of the issue and its institutional importance, the parties agreed that the court should still determine the lawfulness of such directions.

Humphreys J held that the PCNI could lawfully direct release on a conditional or contingent basis, interpreting “immediate” release as:

  • release immediately upon satisfaction of specified conditions;
  • with those conditions to be fulfilled within a “reasonable time” judged case-by-case.

The DOJ appealed. The Court of Appeal has now reversed that decision.

3. Summary of the Court of Appeal’s Decision

The Court of Appeal held:

  1. Under Article 28(5) of the 2008 Order, the PCNI may only direct a prisoner’s “immediate release” on licence; it has no power to direct release on a contingent or open-ended conditional basis ([105]–[106]).
  2. “Immediate” does not mean instantaneous, but it does require that:
    • any licence conditions material to public protection are known, and
    • those conditions are capable of being implemented in the short, immediate future, with only routine administrative or logistical delay permitted ([59]–[63], [95]–[97], [107]).
  3. The PCNI must be satisfied at the time of the direction that it is “no longer necessary for the protection of the public from serious harm” that the prisoner be confined. It cannot postpone this evaluative judgment to an unknown future date, dependent on contingencies such as whether accommodation will eventually be found ([60], [95], [98]).
  4. Licence conditions necessary to manage risk cannot be left dependent on future assessments, decisions, or resource allocations by third parties (e.g. Health Trusts, housing providers) if those contingencies are material to risk. Such an approach:
    • is inconsistent with the requirement of “immediate release”; and
    • risks arbitrary or uncertain delay in release, without statutory mechanisms for the PCNI to reconsider its decision if risk changes ([95]–[101]).
  5. It is not a legitimate solution to release a prisoner on inadequate or partially-implemented conditions and then seek to manage any increased risk by immediate recall. That is contrary to the statutory scheme and undermines proper risk assessment ([100]).
  6. Decisions of the English courts in R (Bowen) v Secretary of State for Justice and R (Elson) are distinguishable and do not justify contingent release under the Northern Ireland legislation, particularly given:
    • the different statutory wording (“immediate” versus “as soon as”), and
    • major legislative amendments in England and Wales in the Police, Crime, Sentencing and Courts Act 2022, which have not been adopted in Northern Ireland ([73]–[82]).
  7. Accordingly, the PCNI’s decision of 19 September 2024 directing Mr McAllister’s release on the basis of a future, unidentified approved address was ultra vires and unlawful ([105]–[106]).

4. The Legislative Framework and Context

4.1 Public protection sentences under the 2008 Order

The 2008 Order introduced, for Northern Ireland, a public protection sentencing regime closely aligned (though not identical) to the Criminal Justice Act 2003 in England and Wales. Key features relevant here are:

  • Extended Custodial Sentences (ECS) – Articles 14–18:
    • Article 14 requires the court to impose an ECS where certain serious offences are committed and the court considers there is a significant risk to the public of “serious harm” from further specified offences.
    • An ECS consists of:
      • an “appropriate custodial term”; and
      • an “extension period” on licence, “of such length as the court considers necessary” for public protection.
    • Article 18(3) / (8) oblige DOJ to release an ECS prisoner on licence:
      • once the “relevant part” of the sentence is served and the PCNI has directed release; or
      • in the case of ECSs, automatically at the end of the appropriate custodial term.
  • Licence conditions – Article 24:
    • DOJ prescribes standard licence conditions by rules.
    • Licences must include those standard conditions and may include additional conditions prescribed by DOJ.
    • The Criminal Justice (Sentencing) (Licence Conditions) (NI) Rules 2009 give effect to this, including conditions about residence.

4.2 Recall and re-release under Article 28

Article 28 of the 2008 Order governs recall of prisoners released on licence (including ECS prisoners) and their possible re-release. The core parts are:

  • DOJ may revoke a licence and recall a prisoner itself (in urgent public interest cases) or on recommendation of PCNI (Art 28(2)).
  • DOJ must refer every recall decision to PCNI (Art 28(4)).
  • If, on that reference:
    • PCNI directs the prisoner’s immediate release on licence, DOJ must “give effect to the direction” (Art 28(5)).
    • PCNI must not give such a direction unless satisfied that, for ECS and other public protection sentences, “it is no longer necessary for the protection of the public from serious harm that [the prisoner] should be confined” (Art 28(6)(a)).

The key expressions are:

  • “immediate release” – in Article 28(5); and
  • “no longer necessary… that [the prisoner] should be confined” – in Article 28(6).

Parallel language is used for:

  • fixed term prisoners on recall under Article 29; and
  • life prisoners under the Life Sentences (Northern Ireland) Order 2001, especially Article 6 (duty to release) and Article 9 (recall and “immediate” release).

The Court of Appeal emphasised that this common rubric across different sentence types is deliberate and important: in all cases, when the Parole Commissioners conclude that confinement is no longer necessary for public protection, the lawfulness of continued detention ends and the executive must act promptly to release.

4.3 The residence conditions in the 2009 Rules

The residence-based risk management at the heart of this case is specifically underpinned by the 2009 Rules:

  • Rule 2(2)(c) – every licence must include a standard condition that the prisoner:
    “permanently reside at an address approved by the [supervising officer] and obtain the prior permission of the [supervising officer] for any change of address.”
  • Rule 3(1)(a) – DOJ may also impose a discretionary condition requiring the prisoner to “reside at a certain place” (that is, specifying a particular address).
  • DOJ may not add, vary or cancel discretionary conditions in a recall case without first consulting the PCNI.

This framework means that, in practice:

  • Every released prisoner must have at least an approved address, and sometimes a specific mandated address.
  • Where accommodation is material to risk (as here), the availability and suitability of that accommodation is integral to the risk assessment required under Article 28(6).

4.4 Comparative position in England and Wales

The Court drew heavily on the evolution of the law in England and Wales to demonstrate that:

  • the Northern Ireland legislation is at an earlier stage; and
  • it has not incorporated subsequent English reforms that underpin contingent release in that jurisdiction.

Under:

  • the Crime (Sentences) Act 1997 (for life sentences); and
  • the Criminal Justice Act 2003 (public protection sentences),

the English scheme historically used similar language to Northern Ireland – including “as soon as” and “immediate release” on recall.

However, the Police, Crime, Sentencing and Courts Act 2022 made key changes:

  • The word “immediate” was deliberately removed from recall provisions (e.g. s.255C(5) CJA 2003).
  • A new section 256AZC CJA 2003 now provides that the Secretary of State must give effect to a Parole Board direction:
    “as soon as is reasonably practicable in all the circumstances including, in particular, the need to make arrangements in connection with any conditions that are to be included in the person's licence…”
  • Section 133 of the 2022 Act created express powers for the Parole Board to:
    • make provisional decisions;
    • reconsider decisions; and
    • set aside a release direction where new information or changed circumstances alter the risk analysis.

The Explanatory Notes to the Bill explicitly criticized directions for “immediate release” as “unhelpful and unnecessary”, because they create expectations of instantaneous release which cannot be met in practice (e.g. where accommodation must be arranged).

The Court of Appeal relied on the absence of such reforms in Northern Ireland to conclude that the local legislature has not empowered PCNI to:

  • treat “immediate” as “as soon as reasonably practicable” in an elastic sense; or
  • issue provisional or contingent release directions subject to uncontrolled future contingencies.

5. Statutory Interpretation: The Court’s Approach

5.1 General interpretive principles

The Court expressly applied modern purposive principles of statutory construction, drawing on recent UK Supreme Court authority:

  • R (O) v Secretary of State for the Home Department [2023] AC 255 – Lord Hodge emphasising that “intention of Parliament” is an objective concept, derived from the language used in its context, not the subjective intent of ministers or drafters ([22]).
  • R (PACCAR Inc) v Competition Appeal Tribunal [2023] 1 WLR 2594 – Lord Sales highlighting that statutory purpose and scheme provide the “basic frame of orientation” for interpreting particular provisions ([23]).

From these, the Court reiterated that:

  • The task is to identify “the meaning borne by the words in question in the particular context” (Spath Holme).
  • The purpose and overall scheme of the 2008 Order, especially the public protection rationale, are central.
  • External aids (e.g. Explanatory Notes) are secondary but may confirm or clarify legislative purpose.

5.2 The temporal element: “no longer necessary” and “immediate”

Two connected temporal phrases were central to the Court’s reasoning:

  • Article 28(6): the Commissioners must be satisfied that it is “no longer necessary” for public protection that the prisoner be confined; and
  • Article 28(5): if they so direct, DOJ must effect the prisoner’s “immediate release on licence”.

The Court read these together as establishing a time-linked risk assessment:

  • The Commissioners’ evaluative judgment on risk is anchored to the time of the direction – “it is no longer necessary now that he be confined” ([60]).
  • Because the only lawful basis for further detention is public protection, once that assessment is made in the prisoner’s favour:
    • there is no continuing legal justification for detention; and
    • release must follow with urgency, consistent with “immediate” ([59]–[61]).

The Court accepted that “immediate” does not mean instantaneous:

  • DOJ may take a short, reasonable period to complete essential administrative processing, arrange transport, and finalise practicalities ([62]).
  • Where a particular, identified address is already known and agreed, a short delay (typically hours or 1–2 days in practice) to secure that address may still be compatible with “immediate” ([63]).

However, “immediate” cannot be stretched to cover:

  • indefinite delay while third parties seek accommodation which is:
    • not yet identified, and
    • not yet known to be available at any particular time;
  • open-ended future “contingencies, assessments or decisions” which are material to risk ([95]–[99], [108]).

6. Why Contingent Release Directions Are Unlawful

6.1 The core statutory conflict

The heart of the judgment lies in identifying a fundamental tension between:

  • PCNI’s statutory duty not to direct release unless satisfied that confinement is no longer necessary for public protection (Art 28(6)); and
  • the notion of a direction which only takes effect if and when some future, uncertain condition is fulfilled (such as the later identification of accommodation).

If the Commissioners’ direction depends upon, say, a Health Trust later agreeing to accept the prisoner into a facility, then:

  • At the time of the direction, they cannot be sure that the risk will be safely managed at the actual point of release; and
  • They are, in effect, attempting to make a present risk assessment about an indefinite future (unknown timing, unknown circumstances).

The Court held that this is incompatible with the statutory requirement that:

“it is no longer necessary for the protection of the public from serious harm that P should be confined.” ([98])

The Commissioners must be able to say that now – on the assumptions that will apply at or very shortly after release. They cannot suspend that judgment pending unknown decisions by others.

6.2 Third-party contingencies and risk

The problematic feature of the PCNI’s approach in this case was that:

  • the crucial licence condition (residence in an approved Trust-identified address backed by PBNI) was itself contingent on:
    • future assessment of Mr McAllister by the Trust;
    • future identification of a facility;
    • future decisions on resource allocation, insurance, and acceptance criteria.

None of these were:

  • within the DOJ’s control; or
  • guaranteed to happen at any particular time, or at all.

As the Court put it:

“If… a decision is made to release a prisoner subject to a condition which requires further assessment, decision making or the expenditure of resources by a third party, the result is that the actual release of the prisoner may become unduly dependent upon the discretion or conduct of a body which is not subject to the statutory duties under the 2008 Order.” ([99])

That raises two different kinds of legal concern:

  1. Public protection concern: Risk might change between direction and release but:
    • PCNI has no statutory power to reconsider its decision once made; and
    • release might then occur at a time when the Article 28(6) threshold (“no longer necessary”) is no longer met ([98]–[101]).
  2. Prisoner’s liberty concern: Release can be delayed (or effectively vetoed) by a non-statutory actor, with the prisoner left in limbo, uncertain when – if ever – the statutory direction will be implemented ([99]).

The Court found that the legislature could not reasonably be taken to have intended either result, particularly with no explicit mechanism in Northern Ireland law for:

  • provisional release decisions; or
  • suspension or reconsideration of a release direction in light of new information (in contrast with the English 2022 reforms).

6.3 The inadequacy of “release then recall” as a solution

One argument advanced on behalf of PCNI was that any change in risk between direction and release could be managed via:

  • releasing the prisoner on the original conditions; and
  • then, if necessary, recalling him promptly under recall powers.

The Court rejected this as both artificial and legally unsound ([100]):

  • It would involve deliberately releasing a prisoner in circumstances where the Commissioners could no longer say that confinement was unnecessary for public protection – contradicting the statutory precondition for release.
  • DOJ would be simultaneously required to perform conflicting tasks:
    • facilitate release; and
    • actively pursue recall.
  • In many real scenarios, immediate recall may not legally arise until specific breaches or behaviours occur; the risk period could be non-trivial.
  • The process would be particularly problematic where the risk-mitigating conditions themselves require significant preparations or expenditure by third parties.

This analysis reinforces the core message: risk must be acceptably managed at the time of actual release, not retrospectively patched via recall once risks materialise.

6.4 The lawful scope of “immediate” – what is allowed?

Importantly, the Court did not read “immediate” in an impossibly strict way. It accepted that:

  • Routine “processing” – finalising paperwork, arranging transport, giving release instructions – may justify a short delay, typically hours or, exceptionally, a day or two ([62]–[63], [97]).
  • Where a particular address is already identified and known to be available (as in Bowen and Elson), a direction for release that takes place when that address becomes available can still be compatible with the statute, because the risk assessment is made on the basis of a known, fixed future date and location ([75]–[78]).

What is prohibited is the type of direction made here:

  • no identified address;
  • no known date by which an address will be available; and
  • risk management crucially dependent on those unknowns.

In the Court’s formulation:

“We consider that to give proper effect to the use of the word ‘immediate’ and the purpose and context of the legislation it should be construed in such a way that any licence conditions attached to the direction are capable of being put in place in the immediate future as opposed to an indefinite time in the future.” ([95])

7. Treatment of English Authorities: Bowen and Elson

7.1 What Bowen and Elson decided

The PCNI and the High Court had drawn support from English authority, especially:

  • R (Bowen) v Secretary of State for Justice [2017] EWCA Civ 2181, [2018] 1 WLR 2170; and
  • R (Elson) v Greater Manchester Probation Trust [2011] EWHC 3692 (Admin) (Langstaff J).

In those cases:

  • Prisoners serving life sentences were directed for release by the Parole Board; but
  • their release was conditional on residence in a specified approved premises (a named hostel);
  • there was a known delay (e.g. 69 or 118 days) before a bed would become available;
  • the Board had been told at the hearing about the projected availability date, and clearly made its risk assessment on that basis.

The claimants argued that, once the Board had directed release, the Secretary of State was obliged to release them virtually at once, even without the residence condition, or their continued detention was unlawful under section 28 of the Crime (Sentences) Act 1997 and Article 5 ECHR.

Both Whipple J (at first instance) and the Court of Appeal rejected that argument, holding in substance that:

  • the Secretary of State has a duty to release “as soon as” the Board directs release, but this must be read alongside the statutory scheme for imposing licence conditions;
  • where the Board has directed release on the basis of a known future date when an approved address will be available, it is lawful for the Secretary of State to wait until that date to effect release; and
  • Parliament cannot have intended immediate, condition-free release in circumstances where the Board considered such conditions necessary for public protection.

7.2 Distinguishing Bowen and Elson

The Court of Appeal in Northern Ireland declined to treat Bowen and Elson as governing the present case for three linked reasons ([73]–[82]).

(1) Different statutory language: “as soon as” vs “immediate”

The English cases concerned section 28 of the Crime (Sentences) Act 1997, which obliged the Secretary of State to release a life prisoner:

“as soon as … the Parole Board has directed his release…”

By contrast, the recall provisions in both:

  • the 1997 Act; and
  • the Northern Ireland 2008 and 2001 Orders,

use the language of “immediate release”. Langstaff J in Elson had carefully noted the distinction between “as soon as” (for initial release) and “immediate” (for recall), and treated it as deliberate.

Colton LJ held that Bowen, focused on the “as soon as” formula, cannot simply be transposed to a provision which expressly uses “immediate” ([74]).

(2) Crucial factual difference: identified address and date

In both Bowen and Elson, the Parole Board:

  • knew the specific hostel where the prisoner would live; and
  • knew approximately when a bed would become available.

As McCombe LJ put it in Bowen:

“if that accommodation had not been available as part of the risk management plan the panels would not have directed release at all.” (quoted at [70], [76])

In other words, the Board made its risk assessment on the basis of specific, known arrangements coming into effect on a reasonably determinate date. That is fundamentally different from the PCNI’s approach here, where there was:

  • no known address; and
  • no known date of availability.

The Court therefore regarded Bowen and Elson as of “very limited assistance” in a situation where the central condition itself was indeterminate ([75]–[78]).

(3) Changed statutory context in England and Wales

Finally, and significantly, the Court underlined that Bowen must be read in light of the subsequent legislative reform in England and Wales under the 2022 Act:

  • “immediate” has been removed from recall provisions;
  • release is now to be given effect “as soon as reasonably practicable”; and
  • the Parole Board now has powers to make provisional decisions and to set aside release directions in light of new facts or changed risk.

None of these amendments have been enacted in Northern Ireland. The Court found this absence “significant” and supportive of a more literal reading of “immediate” under the 2008 Order ([79]–[82], [102]–[103]).

8. Key Legal Concepts Explained

8.1 Extended custodial sentence (ECS)

An ECS is a public protection sentence imposed where the court considers the offender dangerous within the meaning of Article 14. It has:

  • a determinate custodial term; and
  • an extended licence period.

The extended licence is designed to manage ongoing risk in the community. For ECS prisoners, recall and re-release decisions are particularly important as they are the primary mechanism for balancing public protection with rehabilitation and proportionality after initial release.

8.2 Recall and “immediate release”

“Recall” occurs when a prisoner on licence is returned to custody because they are judged to present an increased or unmanageable risk or have breached conditions. Under Article 28:

  • DOJ may recall swiftly; and
  • PCNI then re-assesses whether confinement remains necessary for public protection.

“Immediate release” means that once PCNI decides confinement is no longer necessary (in Article 28(6) terms), DOJ must release without undue delay – subject only to minimal, practical processing time. It does not authorise a direction that may take effect only after uncertain future events, particularly if those events are central to risk management.

8.3 “No longer necessary for the protection of the public from serious harm”

This phrase embodies the central risk test. The Commissioners must:

  • assess the current and near-future risk of serious harm; and
  • decide whether that risk can be sufficiently managed in the community (with proposed licence conditions) such that incarceration is no longer necessary.

It is not enough that risk might be manageable if certain future events occur. If those events are uncertain or beyond the control of DOJ, the requirement that it is “no longer necessary” to confine is not met.

8.4 Licence conditions vs contingent conditions

All licence releases are conditional in a broad sense: a prisoner is released subject to rules, and breach can lead to recall. That is uncontroversial.

What this case rejects is a particular type of contingent condition:

  • where the very fact of release depends on a condition being fulfilled at an unknown time; and
  • where the condition involves substantial future decisions by third parties and is central to risk management.

The Court accepts that standard licence conditions (e.g. reside at a known address, obey supervision) may be attached. But those conditions must be:

  • defined; and
  • capable of being implemented within a short time frame, so that the release truly is “immediate” in the statutory sense.

8.5 Ultra vires

“Ultra vires” means “beyond the powers”. A public authority, including the PCNI, can act only within the powers granted by statute. A purported exercise of power that does not fit within those statutory boundaries is:

  • invalid in law; and
  • liable to be quashed on judicial review.

Here, the Court held that the PCNI’s direction was ultra vires because:

  • Article 28 only permits a direction for “immediate release”;
  • the PCNI instead purported to order a future, contingent release dependent on unknown accommodation; and
  • this was incompatible with the combined requirements of Articles 28(5)–(6).

9. Practical and Future Impact

9.1 On PCNI practice

The judgment requires a recalibration of how PCNI approaches recall cases:

  • No more open-ended contingent release directions:
    • PCNI cannot say “release when suitable accommodation is found” without more.
  • Greater emphasis on evidence at the hearing:
    • PCNI will need detailed, reliable evidence from DOJ, PBNI, Health Trusts and others about proposed accommodation.
    • Where accommodation is central to public protection, Commissioners must be satisfied that:
      • a specific address (or at least a clearly identified option) will be available within a very short timescale; and
      • the steps to secure it are essentially in hand, not speculative.
  • More adjournments in difficult cases:
    • Where critical elements of the release plan are not yet certain, PCNI may feel compelled to adjourn until there is clarity, rather than issue conditional directions as previously.

The Court acknowledges that this may create practical pressures and frustration, especially in cases like Mr McAllister’s where accommodation is hard to source ([83]–[84], [101], [109]). But it concludes that those difficulties cannot justify stretching statutory language beyond its meaning.

9.2 On DOJ, PBNI and Health Trusts

The judgment indirectly increases the onus on operational agencies:

  • Earlier planning: DOJ, PBNI and Health Trusts will need to begin planning for potential accommodation well in advance of PCNI hearings, especially for high-risk or complex needs offenders.
  • Clear information to PCNI: Agencies must provide PCNI with:
    • precise information about what accommodation is available, or when it will be available; and
    • what steps are needed to secure it.
  • Avoiding conflicting communications: DOJ’s letter of 17 September 2024 effectively encouraged PCNI to impose the impugned contingent condition. The Court noted this as “unfortunate” and “unhelpful” ([85]–[87]). DOJ will need internal guidance to avoid giving apparent “green lights” to arrangements that cannot lawfully be implemented.

If accommodation is simply not forthcoming, agencies may have to accept the risk of an offender ultimately reaching the end of the sentence and being released without supervision, rather than seek to mitigate that risk via contingent PCNI directions.

9.3 On prisoners and human rights considerations

The judgment reflects a tension between:

  • the prisoner’s Article 5 ECHR right to liberty, particularly the principle that detention must cease when it is no longer necessary; and
  • the public interest in preventing serious harm from high-risk offenders.

The Court essentially resolves this by:

  • treating the necessity of confinement as a dynamic question linked to realistic release arrangements; and
  • insisting that PCNI cannot declare confinement no longer necessary while essential protective conditions (like accommodation) remain wholly uncertain.

From the prisoner’s perspective, this may mean:

  • longer periods in custody where naturalistic arrangements simply cannot be secured; and
  • less scope to challenge delays in release via arguments that PCNI should have made contingent directions.

However, the corollary is that:

  • PCNI decisions to direct release will be more robust and better grounded in actual arrangements; and
  • where detention continues, courts will be able to scrutinise whether PCNI has properly considered whether, in light of what is realistically achievable, “it is no longer necessary” to confine.

9.4 Potential legislative reform

The Court expressly notes that the difficulties in this case mirror concerns which led to reform in England and Wales. It states:

“The matter, of course, can be resolved should the legislature decide to introduce the amendments that were made in England and Wales to cover this very scenario. That is a matter for the Department to consider. However, we must apply the law as it stands.” ([103])

In practice, reform options might include:

  • amending Article 28 to:
    • replace “immediate release” with a duty to release “as soon as reasonably practicable” after a PCNI direction; and
    • explicitly allow for taking into account the time needed to arrange licence conditions (including accommodation).
  • creating a power (akin to s.133 CJA 2003) for:
    • provisional PCNI decisions;
    • reconsideration or setting aside of release directions where risk changes or new information emerges before release.

Absent such reforms, Northern Ireland remains on a stricter statutory footing, which this judgment enforces.

10. Conclusion: Key Takeaways

This decision establishes a clear and significant precedent for Northern Ireland’s parole and public protection regime:

  1. No contingent release under Article 28: The PCNI cannot lawfully direct release on a basis that is conditional upon uncertain future events (such as the later identification of suitable accommodation) where those events are material to risk.
  2. Meaning of “immediate”: “Immediate release” under Article 28(5) allows for short administrative or logistical delay, but only where the licence conditions necessary for risk management are:
    • defined at the time of the decision; and
    • capable of being put in place in the near, immediate future.
  3. Timing of risk assessment: The Commissioners must be satisfied at the time of decision that confinement is no longer necessary in light of the actual, concrete release arrangements – not on the basis of hypothetical or hoped-for future developments.
  4. Third-party contingencies: Conditions that depend on future decisions, assessments, or resource allocations by non-statutory bodies, and which are central to risk, cannot lawfully underpin a direction for immediate release.
  5. Limited role for English precedents: Authorities such as Bowen and Elson are distinguished both on statutory wording (“as soon as” vs “immediate”) and on facts (known vs unknown accommodation timing), and the Court explicitly notes that the 2022 English reforms have not been adopted in Northern Ireland.
  6. Policy and reform implications: The judgment underscores a tension between public protection and practical constraints in accommodating high-risk offenders, but concludes that any relaxation of the strict “immediate” release model is a matter for the legislature, not judicial reinterpretation.

In the broader legal context, Department of Justice v PCNI is a careful reaffirmation of orthodox statutory interpretation: the courts will respect legislative choices in language (“immediate”) and structure, even where they produce practical challenges for parole decision-makers. It also signals, to policymakers and practitioners alike, that the safe and lawful management of high-risk offenders in the community may now require legislative modernization, institutional coordination, and improved planning, rather than creative but ultra vires solutions by the Parole Commissioners.

Case Details

Year: 2025
Court: Court of Appeal in Northern Ireland

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