About this case:

• Citation:
  [2025] NICA 63
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Judge Adrian Colton QC

Delivering judgment for the Court of Appeal of Northern Ireland, Mr Justice Adrian Colton explained: “What is not lawful or permitted by the statute is that release depends on further contingencies, assessments or decisions by third parties, if their outcome or delivery is material to the risk posed by the prisoner. In such a case, there is an impermissible conflict between the duty of the Department to effect an immediate release of the prisoner and ensuring that the conditions necessary to mitigate the risks to the public are all in place.”

Mr McGleenan KC appeared with Mr McAteer and Mr Summers for the appellant, instructed by the Departmental Solicitor’s Office. Mr Sayers KC appeared with Mr Anthony for the respondent, instructed by Carson McDowell. Mr Toal KC appeared with Ms McAnaney for the first notice party, instructed by Sheridan and Leonard Solicitors. Mr Corkey appeared for the second notice party, instructed by the Business Services Organisation.

Background

In April 2022, Martin McAllister was convicted of conspiracy to commit arson, being reckless as to the endangerment of life, and received an extended custodial sentence of two years in prison and two years on licence.

Having completed two years in prison, he was released on 1 August 2023 to accommodation provided by the Health and Social Care Trust which provided 24-hour supervision. 

Due to his poor behaviour, the accommodation was withdrawn and without suitable alternative accommodation being available, and in August 2023, his recall was sought by the Probation Board of Northern Ireland. 

The matter having been referred to the Parole Commissioners of Northern Ireland (PCNI), the PCNI determined that it was no longer necessary for the protection of the public that Mr McAllister would be confined and directed that he be released on licence.

In reaching that decision, the PCNI considered that Mr McAllister’s release was not to be directed prior to July 2025, at which point he would be released without any supports in place and would effectively be homeless, and that while Mr Allister continued to pose a risk of serious harm to the public, that risk could be managed with appropriate licence conditions provided that he was placed in suitable accommodation identified by the Trust and supported by the Probation Board with appropriate supports.

The PCNI also recommended that, if practicable, any release would be a graduated process which might entail a short series of temporary releases before full release.  

By the time the matter came before the High Court, Mr McAllister had been released from prison into suitable accommodation, however it was agreed by the parties that the application should nonetheless be determined as it raised an important matter of practice and principle for the Department of Justice and the PCNI.

The High Court determined that the PCNI was empowered to direct the release of a prisoner on a conditional or contingent basis and was not obliged to release the prisoner immediately, but only when the specified conditions were fulfilled.

On appeal, the issue for the Court of Appeal was whether the PCNI could lawfully direct the release of a prisoner under article 28 of the Criminal Justice (Northern Ireland) Order 2008 on a conditional or contingent basis.

The Court of Appeal

Mr Justice Colton considered the provisions of the 2008 Order, which sets out the legislative framework for the imposition of public protection sentences for dangerous offenders.

The judge noted that pursuant to article 28 of the 2008 Order, the PCNI can direct the immediate release on licence of a prisoner where that prisoner is serving an indeterminate or extended custodial sentence and where it considers that confinement is no longer necessary for the protection of the public from serious harm.

Having regard to omission of the word “immediate” from the equivalent England and Wales legislation, Mr Justice Colton considered that the inclusion of the word “immediate” was of significance and that this arose from the fact that if the PCNI conclude that it is no longer necessary to confine the prisoner, then there is no lawful basis for the prisoner’s detention.

The court also observed that pursuant to article 24 of the 2008 Order, any licence shall include the standard conditions provided for under the Criminal Justice (Sentencing) (Licence Conditions) (Northern Ireland) Rules 2009 and any other conditions prescribed by the Department of Justice.

Highlighting the standard condition in the Rules that a prisoner must permanently reside at an address approved by a supervising officer and must obtain prior permission for any change of address, and that the Department of Justice can specify the precise address at which a prisoner must reside, Mr Justice Colton emphasised that unless the address is specified in the licence, “in the absence of sufficient information about the availability of suitable accommodation it will be difficult, if not impossible, for the PCNI to discharge its functions”.

The court continued: “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.”

Mr Justice Colton explained that where the PCNI considers that a risk posed by a prisoner could be sufficiently mitigated by the use of conditions, it must have sufficient information and evidence to be able to satisfy itself that the implementation of those conditions is within the control of the Department of Justice or that any third parties having a role to play will be able to ensure performance within a sufficiently short period of time to facilitate immediate release of the prisoner.

In this regard, the court specified that where it is the proposed address which proves problematic, “what must be known is that at least one identified option in terms of address will be acceptable and be available to facilitate an immediate release”.

The court continued: “If, like in this case, 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.”

As to the contention that a material change in risk between the date of a PCNI direction and the actual release of a prisoner could be addressed by releasing the prisoner on the original conditions but then making a recall decision, the court was not satisfied with such a mechanism where same would involve the release of a prisoner in circumstances where the risks posed had not been fully assessed, where the Department would have to work to achieve an immediate recall, and where it was not clear if and when the grounds for recall might be established.

Finally, the court noted that there was no option to make a direction as to release on a “graduated” basis and in this regard, it appeared that the PCNI had been contemplating an approach which was ultra vires the 2008 Order.

Conclusion

Accordingly, the Court of Appeal concluded that the PCNI’s decision to direct the release of Mr McAllister on a conditional or contingent basis was unlawful and allowed the appeal.

The Department of Justice v The Parole Commissioners of Northern Ireland [2025] NICA 63