Introduction

In The King v Winston Irvine [2025] NICA 45, the Court of Appeal in Northern Ireland (Keegan LCJ, Treacy LJ, Fowler J) allowed a reference by the Director of Public Prosecutions under section 36 of the Criminal Justice Act 1988 (as amended), holding that a trial judge was “clearly wrong” to find exceptional circumstances justifying a departure from the statutory minimum sentence of five years for certain firearms offences under Article 70(2) of the Firearms (Northern Ireland) Order 2004.

The central issue was not whether the respondent was guilty—he had been convicted of various firearms possession offences—but whether his personal mitigation (notably extensive community and peacebuilding work and family circumstances) could amount to “exceptional circumstances” permitting the court to impose sentences below the statutory minimum. The Court of Appeal answered in the negative, raising the total sentence to five years’ imprisonment on the counts to which the minimum applies.

Background and Key Facts

On 8 June 2022, police surveillance observed Winston Irvine and co-defendant Adam Workman in Belfast. Shortly thereafter, police stopped Irvine and discovered in the boot of his car a bag containing two functioning firearms (a Brixia pistol and a Brocock air cartridge revolver), substantial compatible ammunition (including 200 rounds of 9x19mm), magazines, and imitation firearms. Forensic evidence linked Workman to the bag. Both defendants denied association and knowledge.

Searches of each defendant’s home recovered items bearing UVF insignia. The trial judge found no evidence of a “direct terrorist connection”, although he recognised the obvious public protection and deterrent concerns underlying the firearms regime.

Irvine was convicted on six counts, including possession of a handgun without a certificate (Article 3(1)(a)); possession of ammunition without a certificate (Article 3(2)); and possession of a prohibited firearm (Article 45(1)(aa)). Counts 2, 3 and 5 carried a statutory minimum of five years’ imprisonment under Article 70(2), subject only to “exceptional circumstances.” The trial judge imposed sentences of two and a half years on count 1 and two years on the other counts, finding exceptional circumstances to depart from the minimum on counts 2, 3 and 5. Workman, by contrast, received five years in total; the trial judge rejected exceptional circumstances in his case.

Summary of the Judgment

The Court of Appeal held that the trial judge was clearly wrong to find exceptional circumstances in Irvine’s case. Reiterating the high threshold for departing from the statutory minimum and the legislative purpose of deterrence, the Court emphasised that:

• Ordinary mitigation—such as good character, commendable community service, and family hardship—does not ordinarily cross the threshold of “exceptional circumstances.”
• A departure requires circumstances that would make the statutory minimum “arbitrary and disproportionate.”
• The seriousness of the offences—including possession of functioning firearms and substantial ammunition—and the absence of any credible explanation from the respondent, pointed firmly away from exceptionality.

The Court therefore granted the DPP’s reference, declared the sentence unduly lenient, and substituted the compulsory minimum of five years’ imprisonment on counts 2, 3 and 5, all concurrent. The sentences on the other counts were left undisturbed, resulting in an overall sentence of five years’ imprisonment.

Analysis

Precedents Cited and Their Influence

The Court’s reasoning is grounded in, and develops, a line of authority in Northern Ireland and England & Wales concerning statutory minimum sentences for firearms offences and the limited scope for exceptions.

• R v Corr [2019] NICA 64 and R v Price [2020] NICA 8: These decisions affirm that Article 70(2) reflects a legislative policy of deterrence and public protection. They underscore the “high bar” for exceptional circumstances and the need for a holistic, yet exacting, evaluative assessment. The Court in Irvine quoted Corr on deterrence, reinforcing Parliament’s intention that firearms possession be met severely unless truly exceptional features exist.
• R v Bassaragh [2024] EWCA Crim 20: The Court expressly relied on Bassaragh, which in turn draws on the England & Wales Sentencing Council guidance for analogous minimum-term firearms provisions. Of particular importance is the articulation that circumstances are “exceptional” if imposing the minimum would be arbitrary and disproportionate, and the admonition not to undermine Parliament’s deterrent policy by too readily accepting exceptional circumstances. Irvine effectively assimilates that “arbitrary and disproportionate” lens into the Northern Ireland approach to Article 70(2).
• R v Ali [2023] NICA 20: On the reference jurisdiction, Ali emphasises that a DPP reference is not a general appeal; the appellate court must be satisfied that the sentencing judge was “clearly wrong.” Irvine faithfully applies this threshold: the Court confines itself to the single referred question—exceptionality—and asks whether the trial judge’s conclusion fell outside the range of reasonable responses.
• R v Ruddy [2025] NICA 13 and R v Devlin [2023] NICA 71: These recent decisions explain that family hardship, even when genuine, will rarely qualify as “exceptional.” Irvine aligns with this trend: while acknowledging impact on dependants, the Court reiterates that such factors are routinely present and do not meet the statutory threshold absent truly unusual features.

Collectively, these authorities underpin the core holding in Irvine: departures from the statutory minimum are rare; they require features that would make the minimum term arbitrary or disproportionate; and conventional mitigation—even impressive peacebuilding credentials—will not typically suffice.

Legal Reasoning

The Court’s legal analysis proceeds in four steps:

1. Identify the governing statutory framework and threshold: Article 70(2) requires a minimum five-year sentence for specified firearms offences unless the court is of the opinion that exceptional circumstances relating to the offence or the offender justify not imposing it. The case law makes clear that this is a high bar designed to serve deterrence and public protection.
2. Adopt the “arbitrary and disproportionate” test as the overarching lens: Drawing from Bassaragh, the Court emphasises that exceptional circumstances exist where imposing the minimum would be arbitrary and disproportionate given the totality of the offence and offender circumstances. This is a principled anchor preventing overuse of exceptions and preserving the legislative policy.
3. Assess the asserted exceptional features: The trial judge relied on three offender-based factors—(i) character and commitment to peacebuilding, (ii) broader positive community impact, and (iii) family hardship. The Court of Appeal characterises these as typical mitigation amounting to good character and personal circumstances. Standing alone or together, they do not transform the case into one where the minimum would be arbitrary or disproportionate, particularly in the face of grave offending.
4. Weigh seriousness and absence of explanation: The offences involved two functioning firearms and substantial compatible ammunition—paradigmatic reasons for Parliament’s minimum. Importantly, Irvine offered no credible explanation for having the weapons and ammunition. The combination of serious, risk-laden conduct and silence as to purpose weighs heavily against exceptionality.

The Court also notes that the references supporting Irvine’s community status, while genuine and impressive, “cannot rationally excuse this offending” and, indeed, the offending amounts to “a breach of the trust” placed in him by those communities. On that footing, the mitigation not only fails to justify departure; it arguably cuts the other way in terms of public confidence.

Finally, the Court rejects family circumstances as exceptional in line with Ruddy and Devlin, and confirms that, procedurally, the only permissible appellate intervention is to restore the statutory minimum on the relevant counts, leaving the remainder as imposed but now concurrent to an overall five-year term.

Impact and Significance

Irvine makes several clarifications with practical consequences:

• Consolidation of the “arbitrary and disproportionate” standard in NI firearms sentencing: By expressly relying on Bassaragh and the England & Wales guideline language, the Court standardises the approach to exceptionality under Article 70(2) and harmonises it with the broader UK jurisprudence on minimum firearms terms.
• Good character and public service are rarely, if ever, exceptional: Community and peacebuilding work, while commendable, will usually be treated as ordinary mitigation. In some cases, the breach of trust inherent in misuse of a role that connotes responsibility may aggravate perceptions of culpability or undermine claims to exceptionality.
• Family hardship remains non-exceptional absent extraordinary circumstances: Practitioners should be cautious about advancing family impact as a basis for departing from minimum firearms terms; Irvine entrenches the narrowness of that route.
• Deterrence and public confidence are paramount: The decision emphasises that to avoid frustrating Parliament’s intent and eroding public confidence, departures must be sparingly granted. This will likely reduce sentencing disparities and align co-defendants’ outcomes where roles and evidence are comparable, as seen vis-à-vis Workman.
• Strategic pleading and evidence: Defendants seeking to establish exceptionality must marshal truly unusual, case-specific material making the minimum demonstrably arbitrary or disproportionate. The absence of a cogent explanation for possession of weapons will substantially undermine such claims.

Complex Concepts Simplified

• Statutory minimum sentence: A mandatory baseline term set by Parliament for specific offences. Courts must impose at least this term unless a statutory exception applies.
• Exceptional circumstances (Article 70(2)): Unusual features relating to the offence or offender that make imposing the minimum sentence inappropriate. Irvine confirms that exceptionality turns on whether the minimum would be “arbitrary and disproportionate.” Ordinary mitigation (good character, community work, family hardship) seldom qualifies.
• Deterrence: A key sentencing aim here—signalling that possessing firearms and ammunition is met with severe punishment to dissuade others, thereby protecting the public.
• Unduly lenient sentence (ULS) reference: A power allowing the DPP to ask the Court of Appeal to review a sentence that appears too low. The appellate court intervenes only if the sentencing judge was “clearly wrong,” not merely because the appellate court would have chosen a higher sentence.
• Concurrent sentences: Multiple sentences running at the same time. In Irvine, raising counts 2, 3 and 5 to five years produced a total of five years because the sentences were concurrent.
• Terrorist connection: A factor sometimes relevant to gravity in Northern Ireland firearms cases. The trial judge found no direct terrorist connection here. Irvine demonstrates that absence of such a connection does not, by itself, create exceptional circumstances; the statutory minimum may still apply.

Conclusion

Irvine is a clear, authoritative restatement and refinement of the threshold for departing from the statutory minimum sentence for firearms offences in Northern Ireland. The Court of Appeal’s adoption of the “arbitrary and disproportionate” standard, drawn from Bassaragh and the England & Wales guideline, tightens the already high bar for exceptionality under Article 70(2). It confirms that:

• Exceptional circumstances must be truly unusual;
• Good character, public service, and family impact are ordinarily insufficient;
• Seriousness inherent in possession of functioning firearms and substantial ammunition, coupled with lack of an innocent explanation, cuts strongly against departure;
• Public confidence and legislative deterrence objectives must not be undermined.

Practically, Irvine will guide sentencing courts toward consistent imposition of the statutory minimum in firearms cases absent compelling, distinctive features demonstrating that the minimum would be arbitrary or disproportionate. It also signals to practitioners that attempts to recast conventional mitigation as “exceptional” will rarely succeed. In reaffirming these principles, the Court aligns Northern Ireland’s approach with the broader UK jurisprudence, enhances predictability, and underscores the primacy of public protection in firearms sentencing.