About this case:

• Citation:
  [2026] NICA 10
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Lord Justice Adrian Colton

Delivering judgment for the Court of Appeal, Lord Justice Adrian Colton explained: “It would be an absurdity for a declaration of eligibility for release of a prisoner to be provided when that person was not actually in custody. The intention of the scheme underpinning the 1998 Act was for the early release of those in custody. Otherwise, declarations would not be required.”

Mr McGleenan KC with Mr Reid appeared for the respondent instructed by the Crown Solicitor’s Office, Mr Coll KC with Mr McCleave appeared for the Sentence Review Commissioners instructed by Carson McDowell LLP Solicitors, and Mr Lavery KC with Mr Chambers KC appeared for the notice party/appellant instructed by McNamee McDonnell Solicitors.

Background

On 2 February 1976, the appellant, Mr Robert Clarke, was convicted and received a life sentence in respect of the murder of Ms Margeret O’Neill in 1975. He was released on life licence in July 1990.

Subsequently in 2011, the appellant was convicted of the 1973 ice-cream shop murder of Mr Alfred Fusco together with ancillary offences of possession of firearms with intent. The appellant unsuccessfully appealed against his sentence.

Having failed to secure the exercise of the Royal Prerogative of Mercy (RPM) in his favour, on 19 July 2012, the appellant applied to the Sentence Review Commissioners (SRC) for accelerated release pursuant to the Northern Ireland (Sentences) Act 1998.

The SRC subsequently declared that that the appellant was eligible for release and on 27 February 2013, he was served with notice of release. On 4 December 2019, the Public Prosecution Service queried with the SRC as to whether the appellant was in fact eligible for release under the 1998 Act.

On 30 November 2021, a pre-action protocol letter on behalf of the Secretary of State for Northern Ireland (SSNI) was served on the SRC alleging that the SRC did not have the power to grant the appellant’s early release as the appellant’s offence was not a “qualifying offence” for the purposes of the 1998 Act where his offending preceded the earliest relevant emergency legislation and could not have been a scheduled offence when committed, as required by 1998 Act.

The SRC agreed and determined that it was now “functus officio” and that any relief sought in connection with the appellant’s case was now a matter for the SSNI to pursue.

In 2024, the appellant applied to the SRC again for his release, on the basis that 1998 Act had been amended by the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 such that the appellant’s offence against Mr Fusco was now a qualifying one for the purposes of the 1998 Act.

The High Court subsequently granted a declaration in favour of the SSNI in judicial review proceedings, to the effect that the SRC’s decision as to the appellant’s release was unlawful.

The parties agreed that the court would await the outcome of the appellant’s second application to the SRC before deciding any additional remedies, which application was ultimately refused on the basis that the appellant was not a “prisoner in custody” as required under s.3(2) of the 1998 Act.

The appellant issued judicial review proceedings against the SSNI and the SRC challenging the lawfulness of the decision on eligibility. On 18 December 2024, the High Court dismissed his proceedings.

In May 2025, after a remedies hearing in the SSNI’s judicial review proceedings, the High Court granted an order of certiorari quashing the SRC’s decision and the licence upon which the appellant had been released.

The appellant appealed both decisions of the High Court.

The Court of Appeal

As to the decision in the SSNI’s judicial review proceedings, the appellant alleged that the High Court erred in failing to place weight on inter alia the delay on part of the SSNI and the SRC in bringing the proceedings, the fact that the breach was a technical one and caused by a statutory lacuna, and the appellant’s advanced aged and deteriorating health.

The Court of Appeal determined that the High Court was correct to find that in most cases, it would not be a proper exercise of judicial discretion to refuse to quash a flawed decision and that “the very clear starting point for the court’s consideration would be that something particularly exceptional would be required before the notice party (Mr Clarke) could avoid the grant of relief which the SSNI seeks”.

Lord Justice Colton explained that there is an “overriding public interest in ensuring that full effect is given to sentences imposed by the criminal courts” and that the scheme for early release under the 1998 Act was “an exceptional departure from the normal demands of criminal justice”.

The court continued: “Parliament in enacting the 1998 Act made a deliberate choice to confine eligibility for this exceptional departure to those convicted of offences after the introduction of the 1973 Act. We have no hesitation in saying that had this error come to light shortly after it was made the court would have granted an order quashing the release.”

As to the contention that the SRC’s error was merely technical in nature, the Court of Appeal agreed with the High Court that the error related to the fundamental issue of whether the appellant was eligible for release.

As to the delay alleged by the appellant, Lord Justice Colton considered that there were two significant periods of delay – the first relating to the period between the appellant’s release on licence in February 2013 to the realisation on 4 December 2019 that an error had been made. The High Court had concluded that the SSNI could not reasonably have been expected to act when it was unaware of the issue giving rise to the proceedings.

The second “more problematic” delay was that between 4 December 2019 and the issuing of the SSNI’s proceedings in April 2022, where there had been little by way of explanation as to why it took so long to issue the proceedings.

In respect of the prejudice identified by the appellant, that he lost an opportunity to apply for the RPM when he was granted release on licence, the High Court had taken the view that at best the outcome of any application for the exercise of the RPM would have been speculative.

The Court of Appeal was satisfied that the appellant could still make such an application if he felt it had merit, and further found that the High Court took into account all matters raised by the appellant in exercising its discretion on the delay issue.

As to the appellant’s age and health, the Court of Appeal found no valid criticism or error relating to the High Court’s decision, which found that there was no significant prejudice to the appellant which outweighed the public interest in quashing the unlawful decision in his case.

As to the dismissal of the appellant’s own judicial review proceedings, Lord Justice Colton highlighted that his case turned on a point of statutory construction, “namely, whether at the time of his application to the commissioners the appellant was a prisoner serving a sentence of imprisonment for life for the purposes of section 3(2) of the 1998 Act”.

Having set out the relevant statutory provisions, the judge identified that the key issue in dispute was whether the appellant met the requirement in s.3(2)(b) “that is, is he a prisoner who is serving a sentence of imprisonment for life in Northern Ireland? He can only be granted release if (and only if) he meets that requirement.”

The appellant argued that he met the requirements and an overly restrictive interpretation had been applied which was not justified by the language in the statute. The SSNI argued that the correct interpretation of s.3(2)(b) requires a person to be detained in prison, needing to be released.

Lord Justice Colton reasoned that there could be no doubt that the appellant was serving a sentence of imprisonment for life, and highlighted that the 1998 Act itself is about “the accelerated release of prisoners”.

The judge recounted that at hearing, the appellant’s counsel was asked precisely what the appellant was seeking release from, to which he answered “from his current obligation to return to prison”.

Having regard to the statute, the Court of Appeal concluded that the purpose of the 1998 Act and the specific provisions of s.3 contemplate the release of persons “currently in detention in prison”.

The court’s view was fortified by inter alia the use of the word “prisoner” in contrast to the use of the word “person” elsewhere in the 1998 Act, and found that its interpretation did not require the importation of additional terms such as “in custody”, concluding that a person “ostensibly released on licence under the 1998 Act cannot apply for another licence under the same scheme whilst released”.

Conclusion

Accordingly, the Court of Appeal dismissed the appeals and affirmed the orders of the High Court.

In re Robert Clarke [2026] NICA 10