In re McClean (Original Respondent and Cross-appellant) (On Appeal from the Court of Appeal Northern Ireland) (Northern Ireland)
20. Mr McClean applied for judicial review of the Commissioners' determination on a number of grounds, all of which were dismissed by Coghlin J in the High Court on 15 May 2003. His appeal to the Court of Appeal was allowed by a majority (Nicholson and McCollum LJJ, Higgins J dissenting), but on a single ground relating to the burden of proof on a section 8 application. It is this ruling which gives rise to the Commissioners' appeal, in which they are supported by the Secretary of State. Mr McClean's challenge to the fairness of the procedure followed by the Commissioners was rejected, and forms the subject of Mr McClean's cross-appeal.
The burden of proof
21. The relevant passages in the Commissioners' reasons have been quoted in para 18 above. Perhaps inadvisedly, one of the Commissioners who had been party to the decision swore affidavits in the proceedings suggesting that on a revocation application it was for the Secretary of State to satisfy the Commissioners on the balance of probabilities of the facts on which he wished to rely while it was for the prisoner to satisfy the Commissioners, again on the balance of probabilities, that the applicable section 3 conditions were still satisfied. After referring to some domestic and Strasbourg authority, Coghlin J concluded (in para 27 of his judgment) that it was neither unfair nor disproportionate, on the facts of Mr McClean's case, to require him to establish on the balance of probabilities that he would not be a danger to the public.
22. Dissenting in the Court of Appeal, Higgins J (in para 36 of his judgment) approved the approach of the Commissioners and the ruling of the judge. In para 32 of his judgment he observed:
23. The majority took a different view. Nicholson LJ accepted (para 50 of his judgment) that, so far as there is a burden of proof, it is for a prisoner seeking a declaration under section 3 to satisfy the Commissioners that he complies with the section 3 conditions. But he considered (para 51) that on a section 8 application the Commissioners should not have placed an onus on Mr McClean to prove that he would not be a danger to the public if released immediately. McCollum LJ (in para 85 of his judgment) was of opinion that in so far as an onus of proof exists, it lies on the Secretary of State not merely to establish the new facts but also to persuade the Commissioners that those facts lead to the belief that they suggest that the fourth statutory condition is not satisfied.
24. In submissions to the House Mr Treacy QC, for Mr McClean, supported the reasoning of the Court of Appeal majority. Mr Larkin QC and Mr McCloskey QC, for the Commissioners and the Secretary of State respectively, contended that the Court of Appeal majority had erred in concluding that Mr McClean did not have to satisfy the Commissioners that he would not be a risk to the public if released, that it was for him to persuade the Commissioners that the fourth statutory condition was satisfied, or alternatively that the Commissioners were required to make a judgment about dangerousness without regard to burdens of proof.
25. It is evident that the four conditions laid down in section 3 are not of the same character. The first is a matter of formal record, readily susceptible to proof. The second is purely factual, however difficult to resolve on inadequate or disputed evidence. The third, relating to what a prisoner would or would not be likely to do in future if released immediately, calls for a predictive judgment. So does the fourth condition: the Commissioners are called upon to make the best judgment they can on the material available.
26. As acknowledged by the judges below, the House in R v Lichniak  UKHL 47,  1 AC 903, paras 16, 20, 21, 38, 39, 40 and 41 questioned the aptness of applying a burden of proof to a judgment of risk made by the Parole Board, a doubt echoed in later cases such as R (Sim) v Parole Board  EWCA Civ 1845,  QB 1288, para 42, R (Brooks) v Parole Board  EWCA Civ 80, para 28, and R (DJ) v Mental Health Review Tribunal  EWHC 587 (Admin), para 102. There are dangers in an unduly legalistic approach to what may well be a very difficult predictive judgment.
27. It is, however, possible in my opinion to advance certain general propositions concerning the correct approach to the fourth statutory condition. First, when considering a section 3 application by a life sentence prisoner such as Mr McClean there can be no presumption that he would not be a danger to the public if released immediately. Significantly, the fourth condition is one that only life sentence prisoners, and not those serving determinate sentences, are required to meet. The Commissioners would rightly wish to honour the spirit of the Belfast Agreement, as would the Secretary of State. But the facts giving rise to Mr McClean's convictions show clearly how unsound any presumption in his favour would be.
28. Secondly, section 8 cannot be invoked simply because the Secretary of State or the Commissioners have second thoughts about the section 3 declaration which has been made. For better or worse, such a declaration has been made and the prisoner is entitled to the benefit of it. To trigger the operation of section 8 something must have changed since the making of the declaration: a new specification order under section 3(8), a change in the prisoner's circumstances or the obtaining of evidence or information previously unavailable to the Commissioners. When such a change is shown the Commissioners must assess its significance in relation to satisfaction of the statutory conditions. If they conclude that it has little or none they will refuse the application. But if they are caused to doubt whether one of the statutory conditions is satisfied, their statutory duty is to grant the application to revoke.
29. Thirdly, the primary concern of the Commissioners, as of the Parole Board in England and Wales, must be to protect the safety of the public, with which neither body is entitled to gamble: R v Parole Board, Ex p Watson  1 WLR 906, 916-917, R (West) v Parole Board  UKHL 1, [2005 1 WLR 350, para 30. Thus the Commissioners must recognise that Parliament has conferred a right of accelerated release on a qualifying life sentence prisoner satisfying the four statutory conditions. That is an important right, not to be belittled or discounted or lightly taken away. But it is not a right which can override the important interest of public safety. In the last resort, any reasonable doubt which the Commissioners properly entertain whether, if released immediately, a prisoner would be a danger to the public must be resolved against the prisoner, whether under section 3 or (if it is properly invoked) section 8. In each case the Commissioners' task is essentially the same, to make an informed assessment of risk.
30. In the course of argument, I was concerned at the use in section 8 of language ("believe", "suggests") which had no counterpart in section 3. It appeared that section 8 might contemplate a provisional hearing, leading to a further application and determination under section 3. This was not, however, a reading which any party adopted; it is not consistent with the Rules; and the Commissioners did not treat the section 8 hearing as in any way provisional. I am satisfied that this reading should be discarded.
31. Like Coghlin and Higgins JJ, and differing with respect from the Court of Appeal majority, I find no error of principle in the Commissioners' approach to the section 8 application as expressed in their published reasons. Nor can their assessment of the facts be faulted. Within hours of leaving prison on pre-release home leave, Mr McClean knowingly engaged in a course of provocative conduct which predictably culminated in serious violence, even though he was acquitted of causing it. That was new evidence or information plainly sufficient to trigger the operation of section 8 and plainly sufficient to support the conclusion which the Commissioners reached. Given their findings of fact, I doubt if any other conclusion would have been tenable. I do not think it was entirely apt to speak (as the Commissioner in his affidavit evidence, and Coghlin and Higgins JJ did) of a burden on Mr McClean once section 8 was shown to be properly invoked, but no error in the Commissioners' approach, if there was such, can in my view have affected the outcome.
32. For these reasons, and those given by my noble and learned friend Lord Carswell, I would allow the Commissioners' appeal.
33. In support of Mr McClean's cross-appeal Mr Treacy argued that the right to liberty conferred on him by section 3 of the 1998 Act was, although defeasible, a civil right within the autonomous meaning of article 6(1) of the European Convention and also, or alternatively, a right which entitled him to the procedural protection of article 5(4). These rights were, he submitted, breached in a number of respects in the determination of the Secretary of State's section 8 application. The independence and impartiality of the Commissioners was infringed by the power of the Secretary of State, a party to the proceedings, to communicate information to the Commissioners without disclosure to Mr McClean or his legal representative. The withholding of information from Mr McClean and his legal representative violated a fundamental rule of a fairly-conducted adversarial hearing, that a party should know what is said against him so that he can meet and, if possible, rebut the accusation. The exclusion of Mr McClean and his legal representative from the hearing denied him the ordinary right of any litigant to witness and participate in the proceedings, instruct his legal representative and present his case. The introduction of a special advocate departed from the ordinary rules of professional representation. There was no equality of arms in a proceeding where one party could provide evidence to the tribunal unknown to the other party.
34. Mr Larkin and Mr McCloskey did not accept that Mr McClean enjoyed a civil right within the meaning of article 6(1) or a right protected by article 5(4). But they both accepted that Mr McClean enjoyed an undoubted common law right to a fair decision-making process. Mr Larkin went further, accepting that the procedure laid down by the Act and the Rules could be operated in a way that was unfair. Both however insisted that what falls for consideration here is not the fairness of the procedural regime in theory but its fairness or unfairness as applied to Mr McClean in the present case. This is in my opinion the correct approach. Whatever force there may be in Mr Treacy's general criticisms of the procedural regime laid down by the Act and the Rules, they cannot avail Mr McClean if this regime in fact worked no unfairness to him.
35. I am of opinion, in common with all the judges below, that the procedure adopted did not work unfairness to Mr McClean. I reach that opinion for two main reasons. First, although the Secretary of State communicated to the Commissioners damaging information which he withheld from Mr McClean and his legal representative, he duly conveyed the gist of that information to Mr McClean as quoted in para 17 above. That notice did not, understandably in the circumstances, identify informants or reveal operational methods. But it can have left Mr McClean in no doubt at all of the substance of the Secretary of State's reasons for believing that the fourth statutory condition was not satisfied in his case: that he had been, was and on release would be involved in the paramilitary activities of an organisation which had recently been specified by the Secretary of State as a terrorist organisation. Mr McClean's involvement at Banbridge, described by the Commissioners as "an area of ongoing serious feuding between the LVF and the UVF" (see para 19 above), was entirely consistent with that belief.
36. My second reason for concluding that the procedure did not operate unfairly to Mr McClean is based on the Commissioners' unequivocal statement that they had taken no account whatsoever of the damaging information submitted by the Secretary of State because it was not necessary to do so to reach a decision in this case. Without impugning the good faith or integrity of the Commissioners, Mr Treacy invited the House to view this claim with some scepticism. It is not always possible for even a fair-minded decision-maker to put out of his mind information which he has heard adverse to a party. A decision-maker may be subject to bias without any consciousness of being so. With these points, in general terms, I agree. But a trained mind is on the whole better able than an untrained mind to exclude matters from consideration, and there is no reason to doubt that the Commissioners were high quality professional people carefully chosen to discharge a very important responsibility. There are cases in which it is hard to understand how a conclusion is justified if material said to have been excluded was not relied on, but this is not one of them. If, arguably, there is room for surprise, it is not that the section 3 declaration was revoked but that it was ever made.
37. This conclusion makes it unnecessary to express a concluded opinion on the applicability of articles 6 and 5(4), despite the erudition with which this question was explored in the courts below and in argument. I would simply observe that these articles do not lay down a single unvarying standard of fairness, to be applied inflexibly irrespective of the context and circumstances. I refer to the principles summarised in paras 14-19 of my dissenting opinion in R (Roberts) v Parole Board  UKHL 45. There may, for special reasons (such as, in my opinion, obtained in Northern Ireland), be departures from what would ordinarily be regarded as the basic rules of a fair procedure, but this is subject to the overriding requirement that there are adequate safeguards to ensure that the procedure adopted, viewed overall, is fair and that the right in question (here the important right of liberty) is not deprived of its value. In the present case the procedure was fair. It is not the fairness of the procedure in abstracto which matters, but its fairness as applied to Mr McClean.
38. I would dismiss Mr McClean's cross-appeal.
39. I would invite the parties to make written submissions on costs within 21 days from the date of this judgment.
LORD SCOTT OF FOSCOTE
40. I am in complete agreement with the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Carswell for their conclusion that the way in which the Commissioners dealt with the Secretary of State's application under section 8 of the 1998 Act was in accordance with the requirements of the Act and the Rules made thereunder. I agree also that the procedures adopted by the Commissioners were, viewed overall, fair. I want, however, to add a few words on the applicability of articles 5(4) and 6(1) of the Convention to the circumstances of this case.
41. The facts underlying the respondent's challenge to the Commissioners' decision on the section 8 application have been fully set out by Lord Bingham and I need not repeat them. It suffices to say that on 2 February 2000 the respondent was convicted of the murder of two people, of the attempted murder of others and of possessing firearms and ammunition with intent to endanger life. These were sectarian offences. He was sentenced to life imprisonment for murder, twenty years' imprisonment for attempted murder and fifteen years' imprisonment for possession of firearms and ammunition. His appeal against conviction was dismissed. There has never been any suggestion that these criminal proceedings, his conviction and the sentences imposed on him, were otherwise than in accordance with the law and with the rights guaranteed by the Convention. His detention following his conviction for these offences has unquestionably constituted "lawful detention after conviction by a competent court" (para (a) of article 5(1) of the Convention).
42. No "tariff" or punitive term was imposed in relation to the Respondent's life sentences for murder. The Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564) came into operation in October of 2001. It provided for the establishment of life sentence review commissioners and tariff setting. Prior to that there was no provision for tariff setting in Northern Ireland. If there had been, the tariff attributed to the respondent's life sentences would, inevitably and rightly, have been a long one. There would have been a lengthy period still unexpired at the time the respondent's section 3 application and the Secretary of State's subsequent section 8 application under the 1998 Act came to be made. If the 1998 Act had not been enacted, giving a possibility of early release " in accordance with the provisions " of the Act (section 3(1)), the respondent would have had no expectation other than many years in prison in lawful detention before he could hope for release.
43. The 1998 Act, as Lord Bingham has explained, was a consequence of the Good Friday Agreement. The contracting governments agreed to institute in their respective countries a review process that would "provide for the advance of the release dates of qualifying prisoners while allowing account to be taken of the seriousness of the offences for which the [prisoners had been] convicted and the need to protect the community" (para 3 of the Prisoners section of the Agreement). The 1998 Act and its Rules constituted the United Kingdom's implementation of the Agreement so far as the institution of a review process was concerned.
44. The importance of the "need to protect the community" permeates the review procedures prescribed by the 1998 Act and its Rules. Section 3 of the Act does not allow the Sentence Review Commissioners to declare a prisoner to be eligible for early release unless a number of specified conditions are satisfied. All, bar one (the first condition), are concerned directly or indirectly with the protection of the community. The prisoner must not be a supporter of a "specified organisation" (section 3(4)) and must not, if released immediately, be likely to become a supporter of a "specified organisation" (section 3(5)). A "specified organisation" is an organisation believed by the Secretary of State to promote or encourage terrorism (section 3(8) and (9)). And the final condition is that a life-sentence prisoner must, if he is to be eligible for release, be someone who, if released immediately, would not be a danger to the public (section 3(6)). Each of these conditions must be satisfied if there is to be an early release under the Act. The fourth condition, although looking into an inherently uncertain future, is expressed in stark and absolute terms: " would not be a danger " This language can be contrasted with the more flexible language of the third condition, which is similarly looking into the future: " would not be likely to become a supporter". The fourth condition is requiring a high degree of certainty on the Commissioners' part before they can conclude that the condition is satisfied.
45. The same emphasis on protection of the public is evident in sections 8 and 9. Section 8 comes into play where the Commissioners have made a declaration, on a section 3 application, that the prisoner is eligible under the Act for release but where the prisoner has not yet been released. The section allows the Secretary of State, on the basis of a change in the prisoner's circumstances or new information or evidence, to apply to the Commissioner for a revocation of the declaration (section 8(1)). The Commissioners are obliged to grant the application and revoke the declaration if they "believe" either that as a result of a change in the prisoner's circumstances an applicable section 3 condition is not satisfied or that the new information or evidence "suggests" that a section 3 condition is not satisfied. The yardstick for success of a section 8 application implicit in the use of the verbs "believe" and "suggests" is not a stringent one but is, to my mind, wholly consistent with the high degree of certainty that the requisite conditions are satisfied required by section 3 of the Commissioners. If the Commissioners "believe" that the new information or evidence put forward by the Secretary of State "suggests" that a condition is not satisfied, that will suffice.
46. Section 9 may come into play where, following a successful section 3 application, a prisoner has been released. All such releases are releases on licence and it is a condition of every licence that the prisoner does not become involved in terrorism or, in the case of a life prisoner, that he does not become a danger to the public. If the Secretary of State believes that either of these conditions has been or is likely to be broken, he can suspend the licence. The prisoner will then lose his liberty and be detained in prison while the Commissioners consider the case. If the Commissioners "think" that the prisoner has not broken and is not likely to break a condition of the release, they must confirm the release. Otherwise the licence must be revoked and the prisoner must remain in detention under his sentence. Section 9 did not come into play in the present case because the respondent never was released. The Banbridge incident described by Lord Bingham (para 11 of his opinion) occurred while the respondent was on pre-release home leave. But section 9 is another example of the care with which the statutory scheme endeavours to ensure that no one is released or, if already released, allowed to remain at large, who is likely to be a danger to the public.
47. And, finally, I want to refer to the Rules made by the Secretary of State which prescribe the procedures to be followed by the Commissioners in discharging their functions under the Act. The rule making power is conferred by section 2 and paragraph 1 of the 2nd Schedule to the Act. Paragraph 5 of the 2nd Schedule says that the rules may make provision about evidence and information, including provision:
Paragraphs 6 and 7 allow rules to be made enabling the Commissioners to hold proceedings in private and to specify circumstances in which the prisoner and his representatives may be excluded from the proceedings. Paragraph 7 goes on to say that where a prisoner and the representative are excluded from the proceedings, the Attorney General for Northern Ireland may appoint a special advocate to represent the prisoner.
48. Rules were made accordingly on 30 July 1998. They came into effect the next day. They included a rule, rule 22, enabling the Secretary of State to provide the Commissioners with "damaging information" that may not be disclosed to the prisoner or his representatives. Lord Bingham has set out rule 22 in full (para 16 of his opinion).
49. The 1998 Act and the 1998 Rules made thereunder constitute the statutory scheme enacted in order to discharge the Government's undertaking in the Good Friday Agreement to put in place a review process that would permit the early release of prisoners serving sentences for sectarian offences if this could be done consistently with the need to protect the community. The statutory scheme was introduced in the pursuit of a highly important political objective. It was not introduced in order to respond to some requirement of criminal justice or in recognition of any human rights guaranteed by the Convention. Its well-spring was political, namely, the political imperative of trying to move towards a political settlement in Northern Ireland.
50. This statutory scheme is a single, coherent scheme. The procedural rules, among which are the rules enabling "damaging information" to be withheld from a prisoner and his representatives, authorising the Commissioners to exclude the prisoner and his representatives from the proceedings and to appoint a special advocate to represent him, enabling the Commissioners to sit in private, are as much an integral part of the scheme as the prohibition in section 3 on the release of a prisoner unless all requisite conditions are satisfied. The scheme taken as a whole provides prisoners serving sentences for sectarian offences with a clear benefit, namely, the possibility of early release that they would otherwise have no right to expect. But they cannot cherrypick, embracing parts of the scheme that suit them but complaining of other parts that don't.
51. Mr Treacy QC, counsel for the respondent, submitted that the procedures prescribed by the Rules breached the respondent's rights under the Convention guaranteed by either or both of article 5(4) and article 6(1). But this submission ignores the fact that the respondent's human rights do not entitle him to any early release scheme. He has been convicted of serious offences and sentenced to lengthy terms of imprisonment. There are many years to go before he could, absent the 1998 Act scheme, have any expectation of release. His continued incarceration does not infringe his human rights. The 1998 Act and its Rules constitute a statutory scheme of which the respondent was, and still is, a potential beneficiary. He certainly has the right to have the scheme properly and fairly applied to him in accordance with its terms. But he does not have the right, under the Convention or otherwise, to complain that the scheme is not sufficiently favourable or that part of the scheme, more particularly rule 22, infringes his human rights and should be struck down.
52. Article 5(4) says that
This provision has, in my opinion, no relevance to proceedings before the Commissioners whether under section 3, section 8 or section 9. On applications under each of these sections the Commissioners must follow the procedures prescribed by the Act and the Rules and must do so fairly. A prisoner can, of course, challenge by judicial review proceedings the propriety of the Commissioners' handling of an application. The respondent has done so. But the result of the challenge will, or should, depend on whether the Commissioners have properly followed the statutory scheme. It will not depend on whether the statutory scheme departs, in some respect or other, from some other scheme that would allegedly be fairer to prisoners. In short, unless and until the respondent is released in accordance with the 1998 Act statutory scheme, or some other applicable statutory scheme such as the parole scheme, his continued detention for the duration of his sentence, with whatever automatic reductions to which he may be entitled, will, in my opinion, be unimpeachably lawful.