Shuker & Ors, Re Applications for Judicial Review

Factual and Procedural Background

The applicants are charged with offences specified in Schedule 9 to the Terrorism Act 2000, which are subject to Note 1 allowing the Attorney General to certify that such offences are not to be treated as scheduled offences, effectively ‘de-scheduling’ them. The applicants sought judicial review challenging the Attorney General’s decision not to exercise this power to de-schedule their offences. The cases were heard together before a Divisional Court of the High Court of Justice in Northern Ireland, with the applicants contesting the decision not to certify their offences as non-scheduled.

Legal Issues Presented

1. Whether the decision of the Attorney General not to certify the offences as non-scheduled is justiciable and subject to judicial review.
2. If justiciable, whether the decision-making process observed procedural fairness, particularly regarding the applicants’ opportunity to contribute effectively.
3. Whether the decision engaged the applicants’ rights under Article 6 of the European Convention on Human Rights concerning a fair trial and, if so, whether the procedure complied with those rights.

Arguments of the Parties

Applicants' Arguments

• The Attorney General’s decision is justiciable because it affects the fundamental right to trial by jury and should be subject to judicial review.
• They were denied procedural fairness, as they were not given an effective opportunity to contribute to the decision-making process, particularly due to non-disclosure of sensitive material.
• The decision engaged their Article 6 rights under the European Convention on Human Rights, specifically the right to a fair and public hearing, which was allegedly breached by depriving them of trial by jury without adequate procedural safeguards.

Respondent's Arguments (Attorney General)

• The Attorney General’s decision is immune from judicial review due to the unique constitutional role and the sensitive, policy-based nature of the decision, involving national security and confidential material.
• Judicial review is inappropriate except in cases of bad faith or exceptional circumstances; the decision is not amenable to challenge on procedural fairness grounds.
• The decision to try offences by judge alone does not violate Article 6 rights, as trial by jury is not the exclusive guarantee of a fair trial.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether the Attorney General’s decision to refuse certification (de-scheduling) of the offences was justiciable. It acknowledged the unique constitutional role of the Attorney General and the sensitive nature of the decision, which involves national security and confidential intelligence material. However, the court concluded that the decision is justiciable, albeit with significant constraints on the scope of review.

Drawing on established authorities, the court distinguished between non-justiciable high policy decisions (e.g., national defence, foreign policy) and decisions that involve the exercise of public law powers subject to judicial supervision. The Attorney General’s decision was found not to fall within the narrow category exempt from review.

The court recognized that the discretion is unfettered and that the Attorney General’s policy to de-schedule only when satisfied that the offence is not connected with the emergency is lawful. The decision-making process involves sensitive material, often intelligence that cannot be disclosed to the applicants, which justifies judicial reticence in intrusive review.

The court further considered procedural fairness, concluding that even if review were available on this ground, the applicants had been afforded an opportunity to make representations, and the non-disclosure of sensitive information did not necessarily deprive them of an effective opportunity to challenge the decision.

Regarding Article 6 ECHR, the court rejected the contention that denial of trial by jury breached the applicants’ right to a fair trial. It held that trial by jury is not the exclusive standard of fairness and that the decision to try offences by judge alone involves public law rights and a substantial official discretion, thus falling outside the ambit of Article 6’s civil rights protections.

Ultimately, none of the grounds advanced by the applicants succeeded, and the judicial review application was dismissed.

Holding and Implications

The court’s final decision is DISMISSED.

The direct effect is that the Attorney General’s decision not to certify the offences as non-scheduled stands, and the applicants will be tried by judge alone as provided by the Terrorism Act 2000. The decision confirms that such prosecutorial-type decisions, involving sensitive material and national security considerations, are justiciable but subject to limited judicial review, primarily excluding procedural fairness challenges and Article 6 claims in this context. No broader precedent altering the scope of judicial review in this area was established.