About this case:

• Citation:
  [2022] NIQB 50
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge Adrian Colton QC

Background

The applicant, a 44-year-old man, was sentenced to a life sentence with a minimum tariff of 15 years for murder, and a concurrent six-year sentence for arson, arising out of an incident in December 2004. His tariff expired on 12 June 2020.

His case was referred to the Parole Commissioners for Northern Ireland (PCNI) under Article 6 of the Life Sentence (Northern Ireland) Order 2001 in July 2021 to consider whether or not to direct his release.

In February 2022, the panel of Parole Commissioners declined to release him on life licence. This decision was the subject of the applicant’s challenge.

The impugned decision

Leave was granted to challenge the decision, claiming that the PCNI erred in law by failing to consider appropriate licence conditions prior to applying the statutory test for release.

Article 6 requires Commissioners not to direct the release of a prisoner unless they are satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined.

In its decision, the panel confirmed that it took into consideration “all of the documents before it, the oral evidence given and the submissions”.

The decision set out the applicant’s criminal record and his progress in custody. It noted two returns to prison from Burren House, where the applicant was on pre-release testing following failed drug tests in October 2019 and August 2021.

He told the panel that his girlfriend had bought the medication for him because he had a headache and that he only later realised it contained codeine.

The decision noted that the applicant continued to be assessed as presenting a significant risk of serious harm, the basis for which included a previous breach of a probation order and previous non-adherence to supervision.

The applicant was assessed by Probation Service as posing a high likelihood of reoffending, and they did not support his release at the time but was of the opinion that he required further work addressing some of the issues raised in the report.

An updated violence risk assessment completed by a forensic psychologist stated that the applicant should be involved in “Continued support from individual psychology assessments…Continued drug and alcohol testing” and “Engaging in therapeutic intervention”.

The report also noted that the murder itself had involved the degradation, humiliation and brutalisation of a vulnerable individual. As the sentencing judge noted, “the manner of the killing makes it a very serious case”.

After committing the offence, the applicant had tried to destroy the crime scene by setting the house alight. At the time, the victim and another person were in the house.

The psychologist believed that the applicant should spend a period in Burren House followed by time in a hostel. In her report she noted that he may benefit from increasing his insight into the small and general everyday stressors and how they may gradually build to a point where they have an impact on his risk management and decision making.

Legal arguments

Before considering the arguments of the parties, the court noted that when considering applications for judicial review of decisions by the Parole Commissioners, the court should recognise and give due deference to the expertise of decision makers in specialised fields.

Bearing this expertise in mind, the court was cautious to avoid “overly zealous textual analysis” and aimed to prioritise substance over form.

The focus of the challenge was the purported failure by the panel to consider whether the undoubted risk identified in relation to the applicant could be managed by appropriate licence conditions.

It was argued that, in the decision, the only express reference to licence conditions was at paragraph 23. The reasons for the decision also did not make any reference to licence conditions and whether licence conditions would meet the risk which was identified by the panel.

In response, it was argued that the applicant was fixating on form over substance, and that his approach was overly formulaic. It was claimed that the panel was clearly aware of the licence conditions referred to in the probation report and confirmed that it took all the relevant material into account.

The respondents claimed: “By referring to the licence conditions within the decision, the panel demonstrated that they were considered. Such consideration could only sensibly have been before they reached their decision not to release.”.

They argued that there was no obligation on the panel to express themselves in exactly the same way as the applicant was suggesting, along the lines that they had expressly considered whether licence conditions would deal with risk before coming to their conclusion.

Consideration

In reaching their conclusion, the court was cognisant that a ruling would not result in the “release of a life sentence prisoner”, it would merely result in a new parole hearing.

Ultimately, the court did have concerns about the decision as formulated. This was an important question affecting the applicant’s liberty, and the panel was, in effect, exercising a judicial function. In those circumstances a high level of scrutiny of the decision was appropriate.

The court noted that the proposed license conditions were extensive, containing 14 points in total, and consideration of these conditions were set out in a single sentence in the decision.

The court determined that it was imperative to consider these license conditions, and that such “consideration” was not a matter of form but a matter of substance. Here, not only were the licence conditions suggested not set out in the decision, but at no stage were they examined or analysed by the panel.

Many of the matters raised by both the Probation Service and the forensic psychologist could in theory have been addressed by the potential licence conditions suggested by the Probation Service.

Conclusion

The decision of the panel was one of major significance for the applicant. In providing the detailed written reasons for its decision the applicant was, in the court’s view, entitled to one which clearly addressed a consideration of licence conditions before applying the statutory test.

The court considered that this was very much a borderline case but, on balance, decided that the panel erred in law by failing to properly address the question of appropriate licence conditions before applying the statutory test.

Accordingly, the court made an order of certiorari quashing the decision of the Parole Commissioners of 7 February 2022.

The court further directed that a new panel of Parole Commissioners for Northern Ireland be convened to consider the issue of the applicant’s release on licence.