McWilliams v The Department of Justice

Factual and Procedural Background

The Appellant was convicted after an offence in 1993 and, on 31 March 1995, was convicted of murder together with related offences including membership of a proscribed organisation (referred to below as Organization A) and was sentenced to life imprisonment.

Key steps in the custody / licence history relevant to these proceedings (as stated in the opinion) are:

• 28 July 2000: the Appellant was released on licence under the Northern Ireland (Sentences) Act 1998 (the "NISA 1998") — described in the opinion as the "NISA licence".
• 28 August 2013: the Appellant's NISA licence was suspended by the Secretary of State (SOSNI).
• 25 March 2014: the Appellant was convicted of possession of a firearm with intent and received a determinate custodial sentence (DCS) of 12 years (6/6 custody/licence).
• 10 February 2015: the Sentence Review Commissioners revoked the Appellant's NISA licence, and he remained in custody.
• 10 January 2018: the Lord Chief Justice for Northern Ireland (LCJNI) determined a tariff of 21 years in respect of the index offending under the Life Sentences (NI) Order 2001 ("LSO 2001").
• 19 October 2018: following the Parole Commissioners' decision, the Appellant was released on a life licence made under the LSO 2001 (the "LSO licence").
• There was a separate CJO 2008 licence derived from the DCS (2014) which remained extant until 18 July 2024, but the court noted no issue turned on that licence.

Against this statutory and factual background, Company A (the government department which deployed multi‑agency arrangements) developed a supervision model described in the judgment as Multi‑Agency Review Arrangements ("MARA") (the court describes MARA as an internal arrangement of Company A). MARA-based arrangements were applied to the Appellant initially from 16 September 2020 after Company A assessed him as meeting the definition of a "terrorist risk offender" ("TRO") under the MARA arrangements; the Parole Commissioners then varied the Appellant's LSO licence accordingly.

On 6 September 2021 Company A issued a further Variation Notice and a letter to the Appellant informing him that MARA had been deployed, that Panel A (the MARAP panel) had classified him as a TRO, and that his licensed supervision would be managed under the new arrangements. The Variation Notice included four new standard licence conditions (keep in touch as instructed; receive visits; reside at an approved address and seek permission to change address; undertake work approved by the supervising officer). The Appellant did not challenge the four conditions as such. The limited passage challenged was a portion of Company A's letter accompanying the Variation Notice describing the role of the appointed "supervising officer" and stating that, within supervision sessions, the supervising officer "will be asking you questions about many areas of your life" including history of offending, general life history, relationships, employment, education and substance use; the supervising officer would use that material to complete a risk assessment.

The Appellant sought judicial review (initiated 29 October 2021) seeking, in substance, to quash the Variation Notice dated 6 September 2021 to the limited extent of the passage highlighted above. The High Court (Judge Colton) dismissed the Appellant's judicial review ([2024] NIKB 62). The Appellant appealed. The appeal was heard by a court panel consisting of Judge McCloskey (delivering the judgment), Judge Horner and Judge Rooney. Representation was provided by Attorney Lavery and Attorney Bassett (instructed by Company C) for the Appellant, and by Attorney McGleenan and Attorney McAteer (instructed by Company D) for Company A (the Respondent).

Legal Issues Presented

1. Whether, for the purposes of the Article 50 guidance (the MARA guidance), the Appellant fell within the exception in para 3.2 — i.e. whether he was "an individual on licence, with the exception of anyone released on licence under the terms of the [1998 Agreement] who has not been convicted and currently serving a sentence (listed above) since their release under the [1998] Agreement" — and therefore excluded from the definition of "terrorist risk offender".
2. Whether Company A's Variation Notice (dated 6 September 2021) and the practice described in the accompanying letter (in particular, the supervising officer asking questions about the Appellant's past) were vitiated by error of law because Company A misconstrued the Article 50 definition of "terrorist risk offender".

Arguments of the Parties

Appellant's Arguments

• The Appellant's core submission was that he could not properly be the subject of Program A (MARA) supervision because, when the impugned Variation Notice was made, he had (and continues to have) the legal status of a person released on licence pursuant to the 1998 Agreement (NISA 1998) and therefore fell within the para 3.2 exception to the TRO definition.
• He advanced the proposition that the defining feature for the exception was the character of the index offence (Troubles-era offences within the scope of the Belfast/Good Friday Agreement) and not the precise statutory vehicle by which a life licence was subsequently made; he contended that his prior NISA status (as someone released under the 1998 Agreement) should continue to carry the exclusion in para 3.2.
• The Appellant drew attention to the existence of parallel and overlapping licences in his case and argued that those circumstances meant he should be treated as within the Article 50 exception.

Respondent's (Company A's) Arguments

• Company A submitted that the appeal raised a single central question: whether the Article 50 exception applied to the Appellant. Company A argued that it did not.
• Company A's position (supported in the High Court) was that the Appellant's NISA licence had been suspended and subsequently revoked in 2015, that he was not at the relevant time released under the 1998 Act, and that from 19 October 2018 his status was that of a person released on licence under the LSO 2001. For that reason, the exception in para 3.2 did not apply and the Appellant fell within the TRO definition and therefore within the scope of the MARA scheme.
• Company A emphasised that the Appellant did not challenge the Parole Commissioners' recommendation or the Department's decision to make the variations; the legal issue concerned the legal status of the Appellant and the correct construction of para 3.2.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Precedent A [2004] UKHL 17	The construction of a document (including statutory or guidance wording) is a question of law; its meaning is to be ascertained objectively and by reference to its full context.	The court invoked this principle to treat the construction of the Article 50 definition of "terrorist risk offender" as a legal question to be decided objectively in context; it supported the court's approach to the textual and contextual analysis of para 3.2.

Court's Reasoning and Analysis

The court's analysis focused on two interlinked matters: (A) the Appellant's legal status at the time of the Variation Notice (6 September 2021); and (B) the correct construction of the Article 50 definition of "terrorist risk offender", in particular the exception in para 3.2.

A. Status chronology (as summarised by the court)

• 31 March 1995–28 July 2000: sentenced prisoner following the 1993 index offending.
• 28 July 2000 – 28 August 2013: released on licence under NISA 1998 ("NISA licence").
• From September 2017 — period without PBNI supervision described by the court — until new arrangements were devised after restoration of the executive.
• 25 March 2014: conviction and imposition of a DCS of 12 years (6/6).
• 10 February 2015: NISA licence revoked by the Sentence Review Commissioners — that NISA licence was not reinstated nor replaced.
• 10 January 2018: tariff determination under LSO 2001; 19 October 2018: released on a new life licence under the LSO (the "LSO licence"); by 6 September 2021 the Appellant's effective status was as a person at liberty pursuant to the LSO licence.

B. Construction of the Article 50 definition

The court held that the construction of the Article 50 wording is a question of law. Applying the orthodox objective approach to construction (relying on the authority identified above), the court examined whether the Appellant could sensibly be said, at the time of the Variation Notice, to be "an individual on licence ... released on licence under the terms of the [1998 Agreement] who has not been convicted and currently serving a sentence ... since their release under the [1998] Agreement."

The court concluded that the Appellant did not satisfy the exception for two principal reasons, one textual and the other contextual:

• Textual reason: The Appellant's NISA licence had been revoked in 2015 and was therefore "extinct" at law; it could not continue to confer the status of a person "released on licence under the terms of the [1998 Agreement]" at the time the Variation Notice was made in 2021. Treating a revoked licence as continuing to confer the 1998 status would read too much into the text.
• Contextual reason: The special status accorded to qualifying prisoners under the 1998 Agreement and NISA was exceptional and contingent on the statutory scheme; there was no clear textual or contextual basis for concluding that this exceptional status should survive indefinitely notwithstanding subsequent events such as reconviction and revocation of the earlier licence. The Appellant's subsequent offending and the revocation of his NISA licence were material events that the context did not require to be ignored.

The court therefore endorsed the analysis of Judge Colton in the High Court: the Appellant was not, at the relevant time, a person released on licence under the 1998 Agreement; rather, his operative status from 19 October 2018 was that of a person released on licence under the LSO 2001. On that basis the Appellant fell within the Article 50 definition of a "terrorist risk offender" and within the scope of the MARA arrangements and the Variation Notice.

The court rejected the Appellant's invitation to construe the para 3.2 exception as applying to a historical NISA release notwithstanding revocation: the proposed construction was "untenable" in light of the ordinary meaning of the words and their context.

Finally, the court noted it had raised with the parties a related practical question — whether these proceedings were largely theoretical given that (a) the Appellant had not been required to answer the challenged questions and (b) any sanction for refusal might not be obvious — and the court observed that this issue would benefit from fuller argument in a future case, particularly having regard to Article 9 LSO 2001 (revocation and recall) provisions. The court did not resolve that separate question in the present appeal.

Holding and Implications

HOLDING: The Court affirmed the judgment of the High Court (Judge Colton) and DISMISSED THE APPEAL.

Implications (direct and immediate):

• The Variation Notice issued by Company A on 6 September 2021 and the attendant amendments to the Appellant's LSO licence remain valid and operative as against the Appellant to the extent addressed in these proceedings.
• The Appellant was, at the relevant time, a person at liberty pursuant to a life licence under the LSO 2001 and therefore did not fall within the Article 50 para 3.2 exception for persons released on licence under the 1998 Agreement; accordingly he may be lawfully managed under the MARA arrangements applied by Company A.
• The court endorsed the High Court's approach to textual and contextual construction of the Article 50 definition; the judgment is an affirmation of that construction in this factual context rather than the establishment of a wider new legal principle beyond the points decided.
• The court explicitly left open (for future litigation) the related practical and legal question of compulsion and sanction in respect of a refusal to answer intrusive supervisory questions and noted that fuller argument, with attention to Article 9 LSO 2001, would be required in a suitable case.