McGuinness, , Re Application for Judicial Review (No 1)

Factual and Procedural Background

This opinion concerns two appeals by the Department of Justice and a prisoner against a High Court decision which quashed the Northern Ireland Prison Service's statutory referral of the prisoner's case to the Parole Commissioners, intimating a tariff expiry date. The prisoner was convicted in 1989 of multiple counts of murder and other offences and sentenced to life imprisonment with a recommended tariff of 30 years. He was released on licence in July 2000 under the Northern Ireland (Sentences) Act 1998 but was recalled to custody in November 2006 after committing further offences. The Department later referred his case to the Parole Commissioners in September 2017, setting a tariff expiry date in March 2018. The legal dispute centers on whether the period the prisoner spent lawfully released on licence under the 1998 Act counts towards serving the 30-year tariff period under the Life Sentences (Northern Ireland) Order 2001.

Legal Issues Presented

1. Whether the period during which the prisoner was lawfully released on licence under the 1998 Act should be included in calculating the serving of his 30-year tariff period under the 2001 Order.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the absence of express statutory provisions addressing whether the licence period under the 1998 Act counts towards the tariff under the 2001 Order. It undertook a detailed analysis of the legislative scheme, including the nature of life sentences, the tariff period, and the statutory framework governing early release and licence conditions.

The court emphasized that a life sentence encompasses both custody and licence periods, with the prisoner continuously serving the sentence. It noted that the 2001 Order requires the court to specify the part of the sentence that must be served before release provisions apply, but does not expressly require that this period be spent in custody only.

Article 6(6) of the 2001 Order excludes periods when a prisoner is unlawfully at large, but the licence period in question was lawful and subject to conditions. The court found no statutory provision excluding such lawful licence periods from the tariff calculation.

Comparisons with other statutory provisions, such as temporary discharge rules and compassionate release, supported the conclusion that lawful release periods are generally included in the sentence. The court rejected the High Court’s reasoning that inclusion of the licence period would constitute an unintended windfall, reasoning that such a policy decision rests with the legislature, not the judiciary.

The court also considered the political and legislative context, recognizing the sensitivity of troubles-related prisoner releases and concluding Parliament was fully aware of the implications when enacting the 2001 Order.

Ultimately, the court held that the licence period under the 1998 Act must be included in calculating the tariff expiry date under the 2001 Order.

Holding and Implications

The appeals are allowed.

The court's decision reverses the High Court ruling, confirming that the period the prisoner spent lawfully released on licence under the 1998 Act counts towards serving the 30-year tariff period specified in the certificate under the 2001 Order. As a result, the tariff expiry date calculated by the Northern Ireland Prison Service, which included the licence period, stands. The decision directly affects the prisoner’s release timetable but does not establish new precedent beyond clarifying the application of existing statutory provisions.