Judgments - In re McClean (Original Respondent and Cross-appellant) (On Appeal from the Court of Appeal Northern Ireland) (Northern Ireland)

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    53.  Article 6(1) entitles everyone

    "In the determination of his civil rights and obligations … to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

For the reasons already given the respondent's only relevant civil right is the right to have the statutory scheme fairly and properly applied according to its terms. That civil right has been adjudicated upon by Coghlin J in the High Court and by the Court of Appeal in Northern Ireland and now, here, by your Lordships. The respondent has no other relevant civil right. In particular he does not have the right to have his entitlement to release under the statutory scheme dealt with by the Commissioners otherwise than in accordance with the procedures that are part of that scheme.

    54.  I would for these reasons reject the respondent's reliance on his Convention rights for the purpose of impugning the manner in which the Commissioners dealt with the section 8 application and, for the reasons given by Lord Bingham and Lord Carswell, would allow the Commissioners' appeal and dismiss the respondent's cross-appeal.


My Lords,

    55.  I have had the advantage of considering the speeches of my noble and learned friends, Lord Bingham of Cornhill, Lord Carswell and Lord Brown of Eaton-under-Heywood in draft. For the reasons they give, I too would allow the Commissioners' appeal and dismiss Mr McClean's cross appeal.


My Lords,

    56.  The respondent Stephen McClean was on 2 February 2000 convicted by Kerr J, sitting in Belfast Crown Court without a jury, of grave crimes committed on 3 March 1998, when he was concerned in the murder of two men and the attempted murder of two others at the Railway Bar in Poyntzpass, Co Down. He was one of two masked gunmen who entered the bar and sprayed the occupants with gunfire. On conviction he was sentenced to imprisonment for life on each of the murder charges, to 20 years' imprisonment on each of the attempted murder charges and to 15 years on firearms charges, all sentences to be concurrent. An appeal against their conviction brought by the respondent and his co-accused Noel William Joseph McCready was dismissed by the Court of Appeal on 28 June 2001.

    57.  Because the offences were committed before 10 April 1998 the respondent became entitled to make an application under the Northern Ireland (Sentences) Act 1998 ("the Act") to the appellants, the Sentence Review Commissioners ("the Commissioners"), for a declaration that he was eligible for release in accordance with the provisions of that Act. My noble and learned friend Lord Bingham of Cornhill has set out in his opinion a summary of the applicable statutory provisions, which I gratefully adopt and need not repeat.

    58.  The respondent made application for a declaration and on 14 April 2000 a panel of Commissioners gave a preliminary indication, pursuant to the provisions of rule 14 of the Northern Ireland (Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998 ("the Rules"), to the effect that they were minded to make a declaration that the respondent was eligible for release under the provisions of the Act. The Secretary of State indicated, pursuant to rule 14(6), that he did not wish to challenge the Commissioners' preliminary indication. The Commissioners proceeded, in accordance with the terms of rule 15, to make on 2 May 2000 a substantive declaration of eligibility for release. In that declaration, as required by section 6(1) of the Act, they specified 12 November 2008 as being the day which they believed would mark the completion of about two thirds of the period which the respondent would have been likely to spend in prison under the sentences imposed on him. The effect of the accelerated release provisions contained in section 10, however, was that the respondent acquired a statutory right to be released on 28 July 2000, being the second anniversary of the day on which the Act came into force. In consequence of these provisions, enacted in order to put into effect the terms of the Belfast Agreement of 10 April 1998, the respondent, notwithstanding the gravity of his crimes, was due for release some two years and four months after his arrest.

    59.  His right to release was, however, subject to defeasance if the declaration was revoked in accordance with the terms of section 8 on an application made to the Commissioners by the Secretary of State. Such a revocation did take place in the circumstances and in the manner which I shall describe, and the validity of the Commissioners' decision to revoke the declaration was the subject of the appeal before the House. By the Northern Ireland (Sentences) Act 1998 (Amendment of Section 10) Order 2000 (SI 2000/2024) made by the Secretary of State on 25 July 2000 section 10(7) of the Act was amended to provide that prisoners were not to be released at any time when an application under section 8(1) for revocation of the declaration relating to him had yet to be finally determined. The respondent has accordingly remained in custody to the present time.

    60.  The incident which gave rise to the Secretary of State's application for revocation took place in Banbridge, Co Down on 5 July 2000, when the respondent was on pre-release home leave from prison. When a number of persons were in the process of removing flags erected by members of the Ulster Volunteer Force from lamp posts, a fracas took place in which one Keith Patrick Butler, who took objection to removal of the flags, was violently assaulted and received very severe, extensive and life-threatening injuries. The respondent and two other men were charged with attempted murder and causing grievous bodily harm with intent. After a trial at Belfast Crown Court before Girvan J sitting without a jury, the respondent was acquitted on both charges. Although he held that it had not been proved to the requisite standard that the respondent participated in the joint enterprise of the assault in the manner alleged by Butler, the judge expressed the following view at page 7 of his judgment:

    "I do accept the thrust of the Crown case that McClean and McCready were much more involved in the whole business of flag removal than they admitted. Having seen and heard McClean in giving evidence I reject his evidence that the initial meeting with Harrison was a chance meeting and that they went off in the car without prior arrangement. I am satisfied that McClean and McCready were active participants in the removal of the flags. I reject McClean's evidence that McClean and McCready distanced themselves from the taking down of the flags or that they walked away countrywards. Neither McClean nor McCready made such a case in their interviews and it would make little sense for them to walk away and then in a relatively short distance later come back over to their friends at the scene where the assault took place."

This finding was regarded as material by the Commissioners in reaching their conclusions on revocation.

    61.  On 10 July 2000 the Secretary of State applied to the Commissioners under section 8 of the Act to revoke the declaration granted to the respondent, on the ground that the fourth condition contained in section 3 of the Act, that the respondent would not if released be a danger to the public, was no longer satisfied. This was based on the fact that he had been charged with the attempted murder of Mr Butler on 5 July 2000. On 26 July 2000 a panel of the Commissioners gave a preliminary indication that they were minded to grant the Secretary of State's application. The preliminary indication was challenged by the respondent, so the Commissioners proceeded, with many intermediate alarms and excursions, to a substantive determination.

    62.  One material development was that on 12 October 2001 the Secretary of State added to the list of organisations specified under the terms of the Act the Loyalist Volunteer Force ("LVF"), an organisation which it was alleged the respondent supported (and which had a violent feud in progress with the Ulster Volunteer Force). The Secretary of State then on 3 December 2001 made a further application to the Commissioners under section 8 for revocation of the release declaration, on the ground that the second and third conditions in section 3 were not satisfied. The respondent has at all times denied that he is a supporter of the LVF and claimed that all of the conditions in section 3 were satisfied.

    63.  On 21 December 2001 the Secretary of State made a further application to the Commissioners for leave to enter into evidence certain further items of evidence. One of these was a secret intelligence summary, the contents of which were certified as constituting "damaging information" within the meaning of the Rules. A document containing the gist of the information withheld and the reasons for withholding it was served on the respondent, in accordance with rule 22(3). The document set out those matters in the following terms:

    "1.  The withheld information relates to intelligence to the effect that if you were released immediately you would be a danger to the public. In particular that you have been involved in paramilitary activities on behalf of the Loyalist Volunteer Force (LVF) both before committal to prison in 1998 and in the period since; that you have sought to retain an involvement in the affairs of the group; and that you will become re-involved in LVF activity upon release from prison.

    2.  I am withholding the information for the reasons that disclosure would be likely to -

      (a) adversely affect the health, welfare or safety of other persons, namely, the sources of the information drawn upon in order to compile the intelligence summary;

      (b) result in the commission of offences, namely, offences against the sources of the information referred to at (a) above, their families and property;

      (c) impede the prevention or detection of offences or the apprehension or prosecution of suspected offenders; and

      (d) be contrary to the interests of national security."

Your Lordships were furnished with a copy of this document, but they have not seen or considered any of the damaging information itself.

    64.  A single Commissioner acceded to the Secretary of State's application on 11 January 2002 and an appeal against his decision was dismissed by a panel of three Commissioners on 22 February 2002. The Secretary of State requested the Attorney General to appoint a person to represent the interests of the respondent and his co-accused McCready (known as a special advocate), pursuant to para 7(2) of Schedule 2 to the Act. The Attorney General, after consulting the respondent's solicitors, appointed Mr John Orr QC to represent his interests in the revocation proceedings for the purpose of dealing with the damaging information.

    65.  A panel of Commissioners held the substantive hearing of the section 8 application on 19 March 2002. In the course of the hearing a closed session was held in the absence of the respondent and his legal representatives, as provided for by para 7(1) of Schedule 2 to the Act. Evidence was given by a senior police officer at this session, at which the special advocate was present to represent the respondent.

    66.  The Commissioners issued a written decision, communicated to the respondent's solicitors under cover of a letter dated 23 April 2002, whereby they confirmed their preliminary indication that they would allow the Secretary of State's application for revocation of the release declaration. In that decision they stated:

    "In making a decision in this application the Commissioners have taken no account whatsoever of the damaging information evidence submitted by the applicant, because it was not necessary to do so to reach a decision in this case.

    The Commissioners' decision is based entirely on the respondent's oral evidence at the revocation hearing and the written Judgement of Mr Justice Girvan in the matter of The Queen v Stephen McClean, Noel William McCready and Philip Robert George Harrison, dated November 27, 2001."

This statement is confirmed by para 9 of the affidavit of Dr Duncan Morrow filed on 14 August 2002.

    67.  The Commissioners set out in the decision their reasons for granting the application in the following terms:

    "1.  The original decision of the Commissioners that the respondent met the criteria for release was finely balanced. Since this is a revocation hearing in relation to an already granted licence, the Commissioners must have reference to the index offence. The Commissioners were concerned about the nature of the index offence, and its proximity in time to the application for release. There had been very little time for evidence to emerge that the respondent would not be a danger to the public. Essentially, the Commissioners had to base their decision on the information then before them, and granted the application because the Secretary of State raised no objection to early release.

    2. In order to revoke the release decision, the Commissioners must be persuaded that in the light of changed circumstances, new evidence or information, an applicable condition in section 3 of the Act is no longer satisfied. In this particular instance, are the Commissioners still able to say that if released immediately, the respondent would not be a danger to the public?

    3. In the criminal proceedings dealing with the incident which gave rise to this application, although the respondent was found not guilty of attempted murder or causing grievous bodily harm with intent and was acquitted on both counts, Mr Justice Girvan accepted the thrust of the Crown case that the respondent was much more involved in the whole business of flag removal than he admitted. However, in the words of the Judge, being an active participant in the flag removal does not of itself prove that the respondent participated in the assault.

    4. Notwithstanding the acquittal of the respondent, the outcome of the criminal proceedings, particularly in relation to the Judge's comments regarding the involvement of the respondent in the business of flag removal, left the Commissioners with additional doubt in their minds about the respondent's danger to the public.

    5. The evidence of the respondent in the Hearing went no way in removing that doubt. On the contrary, the Commissioners came to the same conclusions as Mr Justice Girvan; namely that the respondent was more involved in flag removal than he admitted. It is, in the Commissioners' view, improbable beyond belief that the respondent did not know or at least suspect that they were embarking on a flag removal expedition.

    6. Given the time of year, the week around Drumcree protests, and in an area of ongoing serious feuding between the LVF and the UVF, it is likely that the respondent knowingly entered a situation of high risk in which violence could follow. In the circumstances, it is not possible for the Commissioners to say that if released immediately, the respondent would not be a danger to the public.

    7. Even if the Commissioners were to accept the respondent's version, there would still be a problem with danger to the public. Assuming for the sake of argument that the respondent did not enter a situation of risk knowingly, then he did so out of naivete and lack of foresight and poor judgement. If the respondent is incapable of avoiding situations of obvious risk and potential violence, even then the Commissioners would not be able to say that if released immediately he would not be a danger to society."

    68.  In hearing the application on 19 March 2002 the Commissioners proceeded on the basis that they were required to reconsider their original determination in light of new information available in July 2000 (minutes of hearing, para 22). A discussion concerning burden of proof had been held at a hearing on 24 January 2001, the outcome of which was a ruling, as Dr Morrow expressed it in para 3 of his affidavit of 14 August 2002:

    "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 applicant to satisfy the Commissioners also on the balance of probabilities that the applicable section 3 conditions were still satisfied."

The hearing on 19 March 2002 went ahead on the basis that this was the applicable burden of proof of the issues before the Commissioners.

    69.  Mr McClean brought an application for judicial review of the Commissioners' decision, seeking orders of certiorari and mandamus and declarations. The application was dismissed by Coghlin J in a written decision given on 15 May 2003. The arguments advanced on behalf of Mr McClean ranged over a variety of issues, but the main thrust covered two grounds, first, that the admission of the damaging information and the use of a special advocate constituted breaches of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and, secondly, that the Commissioners were wrong to place the burden of proof on Mr McClean. The judge held against him on both grounds. In respect of the burden of proof, he regarded it as resting upon the prisoner, but concluded after examination of the general shape and function of the Act that it was neither unfair nor disproportionate to require him to establish on the balance of probabilities that he would not be a danger to the public.

    70.  Before the Court of Appeal the case was run on the same two grounds. The court (Nicholson and McCollum LJJ, Higgins J dissenting) reversed the judge's decision and quashed the decision of the Commissioners, remitting the matter to them for rehearing with a number of directions. All members of the court held that the procedure of the Commissioners, including the use of damaging information, did not involve a breach of the Convention, but the majority concluded that the burden of proof had been wrongly imposed upon the prisoner. The order of the court was framed in terms which directed the Commissioners to require the Secretary of State to prove on the balance of probabilities that the prisoner, if released immediately, would be a danger to the public. Both Nicholson LJ and Higgins J analysed the procedure of the Commissioners as involving the discharge by either the prisoner or the Secretary of State of a burden of proof, Nicholson LJ concluding that it should not be imposed upon the prisoner, while Higgins J took the view that the Commissioners were correct to place it upon him. McCollum LJ agreed with the conclusion that the Commissioners were in error in placing a burden of proof on the prisoner, but analysed their procedure in terms which I think contained a better approach to the issue. Citing a passage from para 16 of the opinion of Lord Bingham of Cornhill in R v Lichniak [2002] UKHL 47, [2003] 1 AC 903 (to which I shall return later), he stated at para 77 of his judgment:

    "However I find it difficult to apply the traditional principles of evidence to proceedings of the kind under consideration here. The conclusion that a person is or is not a danger to the public, while it may be reached quite emphatically, is not the establishment of a concrete fact, but rather the formulation of an opinion or impression. As such it is not capable of proof in the manner usually contemplated by the law of evidence."

He went on at paras 81 to 83:

    "[81]  The test for the Commissioners therefore is whether they believe that evidence or information which was not available to them when they granted the application suggests that an applicable condition is not satisfied. The word 'suggests' is not indicative of the imposition of a burden of proof. On the other hand, if their state of mind is such that they are unable to form that belief then they should not grant the application. I do not take the view that, after the Secretary of State has placed new information before them a burden of proof passes to the appellant to show that in spite of that information he will continue to pose no danger to the public but rather that they must form an impression as to the existence and extent of danger posed by him to the public based on the information placed before them.

    [82]  A conclusion of fact is readily susceptible to the imposition of a burden of proof, and in so far as the learned judge and the Commissioners recognized a burden of proof on the Secretary of State to establish the facts amounting to new evidence or information I would agree with their view, but I am unable to agree that the issue of whether danger to the public has been manifested by that evidence or information is one in respect of which the burden of proof fell on the Appellant.

    [83]  This is in the nature of an inference or impression that the Commissioners may form on the basis of the information or evidence placed before them without either party being required to demonstrate its greater probability or improbability. A wide variety of factual situations could give rise to such a view. It is not necessary that a prisoner should have been guilty of any criminal behaviour. Some offences might not give rise to any apprehension of danger to the public, while some behaviour that did not constitute a breach of civil or criminal law might well do."

    71.  The two grounds to which I have referred formed the subject of the arguments presented to the House. The Commissioners appealed against the decision of the Court of Appeal on the issue of the burden of proof, and Mr McClean cross-appealed on the Convention issue. I shall deal first with the appeal.

    72.  For the reasons which I shall give I am unable to agree with the conclusion reached by the majority of the Court of Appeal that the Commissioners were in error in their decision, or that the order of the court which required them to impose the burden of proof on the Secretary of State was correct. Nevertheless I consider that the approach taken by McCollum LJ in the passages which I have quoted from his judgment provides a more appropriate way for the Commissioners to determine the issues which they have to decide than that which focuses on the burden of proof.

    73.  Under section 3 of the Act the Commissioners are to grant the application for a release declaration of a prisoner sentenced to life if four conditions are satisfied. The first is purely factual. The three remaining conditions are framed in terms of negatives and each requires some exercise of judgment. In deciding on the second condition the Commissioners have to make a determination about the present affiliations of the prisoner. In the third they have to do so about his future likely affiliations and activities. The fourth condition requires a pure exercise of judgment, the issue being whether the prisoner, if released immediately, would not be a danger to the public. It seems to me that forming those judgments, certainly in respect of the second, third and fourth conditions, is more akin to many administrative decisions than the ordinary judicial process of deciding whether a matter requiring proof has been established. Decisions of the latter type require sufficient evidence to be adduced by the party who wishes to establish it, and if he does not succeed in doing so it may be properly said that he has failed to discharge the burden resting upon him. Although the prisoner obviously wants the Commissioners to find that the conditions have been satisfied, it is not a lis inter partes, and it is not the function of the Secretary of State to prove the case for keeping him in custody. The Commissioners will seek the information on which to make their decision from whatever source it may be obtained. That will include the prisoner, who will be concerned to show in relation to the fourth condition that his future behaviour is likely to constitute no danger to the public. It may also include information from the prison and security services about his past and present activities and associations, which will not necessarily be unfavourable to him. When they have assembled the information which they deem necessary the Commissioners determine whether the four conditions have been satisfied.

    74.  This approach is supported by the observation of Lord Bingham of Cornhill in R v Lichniak [2002] UKHL 47, [2003] 1 AC 903, when he said of the Parole Board, whose function is similar in many respects to that of the Commissioners (para 16):

    "I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment."

An analogous function is to be found in section 3(8) of the Act, which requires the Secretary of State to specify any organisation which he believes is concerned in terrorism or has not established or is not maintaining a complete and unequivocal ceasefire. In so deciding the Secretary of State is not applying the concept of a burden of proof, but is forming a conclusion based on evidence and information which he has before him (for a discussion of the exercise of this power see Re Williamson's Application [2000] NI 281, 299-301). Many examples could be assembled from administrative decisions to be taken in the course of exercising functions conferred by statute. Some of those in cognate spheres are the decisions of the Parades Commission to issue determinations in respect of public processions (Re Tweed's Application [2001] NI 165) and the discretion of the Secretary of State to pay criminal injury compensation notwithstanding the fact that the claimant may have been engaged at some time in the commission of acts of terrorism (Re McCallion's Application [2001] NI 401). In R v Chambers [1994] NI 170 Hutton LCJ held that the decision of a senior police officer to authorise a delay in access to a prisoner by a solicitor, where he has to have reasonable grounds for believing that certain conditions are satisfied, is not to be determined by the application of the concept of a burden of proof.

    75.  There are rather more difficulties with the construction of section 8 of the Act. Subsection (1) is relatively straightforward. The Secretary of State must apply for a revocation if he believes -

(a)  that as a result of an order under section 3(8), or a change in the prisoner's circumstances, an applicable condition in section 3 is not satisfied, or

    (b)  that evidence or information which was not available to the Commissioners when they granted the declaration suggests that an applicable condition in section 3 is not satisfied.

Under paragraph (a) certain factual changes will have occurred, the specification of an organisation by the Secretary of State or a change in the prisoner's circumstances. If the Secretary of State in the light of those factual changes (assuming that they are established) believes that an applicable condition is not satisfied, then he is to apply to the Commissioners to revoke their declaration.

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