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High Court of Justice in Northern Ireland Queen's Bench Division Decisions |
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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Doherty, Re Application for Judicial Review [2001] NIQB 25 (29 June 2001) URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/25.html Cite as: [2001] NIQB 25 |
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Neutral Citation no.[2001] NIQB 25
Ref:
NICC3459
Judgment: approved by the Court for handing down
Delivered:
29.06.01
(subject to editorial corrections)
NICHOLSON LJ
The applicant seeks the following relief:-
"(a) An Order of Certiorari to bring up and quash a decision of the Life Sentence Review Board made on 7th December 1999 and received by the Applicant in and about May 2000 to defer consideration of the reinstatement of the Applicant's Release on Licence to the autumn of 2000.
(b) An Order of Certiorari to bring up and quash a decision of the Life Sentence Review Board made on 30th October 2000 and received by the Applicant on 10th November 2000 to defer consideration of the reinstatement of the Applicant's release on Licence to the autumn of 2001.
(c) A declaration that the said decisions were ultra vires, unlawful and of no force and effect.
(d) An Order that the matter be remitted to the Life Sentence Review Board to be carried out in accordance with the ruling of this Court.
(e) By way of Interim Relief an Order releasing the Applicant from custody on Licence.
(f) Such other relief as the court shall deem necessary.
(g) Costs.
3. The grounds upon which the said relief is sought are:-
(a) The decisions of the Board to defer consideration of the Applicant's case for another year were in breach of natural justice and procedural fairness
(i) The Applicant was not provided with any or adequate disclosure to enable him to know and meet the case against him.
(ii) An oral hearing was not provided.
(iii) The Applicant had no opportunity to counter the evidential material including the witnesses against him.
(iv) The Applicant had no legal representation at the hearing.
(b) The Board's decisions were illegal in that:-
i) They turned upon an assessment of the Applicant's guilt that could only be made following conviction by a court of competent jurisdiction.
ii) The Board failed to take into account relevant considerations, namely:-
(1) That the Director of Public Prosecutions had determined not to proceed with criminal proceedings against the Applicant on the same allegations that the Board was now considering.
(2) That the Psychologist findings presented to the Board were consistent not only with the Applicant having failed to come to terms with this offence, but also with his innocence of the charges laid against him.
(3) The nature of the Applicant's rights under Article 6 of the European Convention on Human Rights.
iii) It was not open to the Board to take a decision about the Applicant's liberty, such a decision being entrusted to the Secretary of State for Northern Ireland.
iv) The said decisions are contrary to Article 6 of the European Convention on Human Rights.
v) The Applicant has a legitimate expectation that the Secretary of State will act in accordance with Article 6 of the European Convention on Human Rights.
vi) All previous determinations of the risk posed by the Applicant have been based on inadequate materials since the Board has not previously considered the materials described in paragraph 25 of Mr Mayes' affidavit sworn on September 5th 2000.
vii) The Board failed to disclose the Director of Public Prosecutions' reasons for discontinuing the prosecution of the Applicant.
viii) The Board has failed in its duty to make findings, and, to furnish an adequately reasoned account of its conclusions on
(3) the nature of the risk allegedly posed by the Applicant, and
(4) the likelihood of such risk
ix) The Board has applied the wrong standard of proof in its consideration of the Applicant's guilt and any consequent risk to the public.
x) The said decisions are contrary to Article 5(4) of the European Convention on Human Rights."
The applicant was convicted at Londonderry Crown Court on 16 September 1982 and was sentenced to life imprisonment for the murder of Gerard Farren, a seventy-four year old widower, in his home. The trial judge, when sentencing the applicant, stated:-
"This is the second case of murder, and the third case of unlawful killing in which the victim was an elderly man … In each of the three cases a harmless, elderly and defenceless man has met a gruesome and terrible death at the hands of thugs like you.
In two of the cases, as in your case, robbery was the motive and you two went out determined to go to any extremes of wickedness to steal what few pounds your 74 year old victim possessed and to ensure that your identity would not be revealed. It was a despicable and shameful crime …"
The sentence was mandatory.
Under Section 23 of the Prison Act (NI) 1953 the Secretary of State directed on 16 April 1996 that the applicant be released on licence subject to the following conditions:-
3. That he should keep in contact with his probation officer.
A person serving such a sentence who is released on licence is liable to be recalled to prison at any time by order of the Secretary of State – see Section 23(2).
On 5 March 1997 the applicant was arrested by police as a result of allegations made by A, then aged nine, a close relation, that he had committed a number of serious sexual offences against her. The offences were alleged to have take place between 1 January 1994 and 5 March 1997 in Londonderry at which the applicant resided with his mother while on home leave from prison and after release on licence.
The applicant was interviewed at Strand Road RUC Station on 5 March 1997 after arrest following these allegations (of rape, buggery and indecent assault) by A. The interviews were tape-recorded and his solicitor was present. He was duly cautioned. Detailed allegations were put to him including allegations that he put his penis in her mouth on a number of occasions while she and he were on the sofa of the living room where he resided, that he ejaculated and semen would go into her mouth and onto the carpet beside the sofa. Other allegations involved similar activities in the toilet upstairs. Further allegations of buggery and rape and oral sex were put to him. He denied all the allegations.
At a second interview on the same day the applicant said that he had masturbated while sitting on the sofa in the living room and the semen went on the carpet. He said that he had done so about ten times in the previous year. He was told that A had been medically examined by Dr Shields, a forensic medical officer, and by Dr Hutton, a consultant paediatrician, and that they had found signs indicative of repeated anal penetration. They did not find anything indicative of penetrative vaginal abuse or vaginal intercourse but this could not be ruled out.
He was told that A alleged that he had anal sex, oral sex and vaginal sex with her over a period of two-and-a-half years. He was told that there was a video of her making the allegations but that he would not be shown it. He continued to deny the allegations. On that date he was charged with three offences in respect of the allegations which she had made. On 6 March 1997 Dr Griffin of the Forensic Science Agency found semen on the sofa and on the carpet of the living room.
On 7 March 1997 a decision was taken by Baroness Denton on behalf of the Secretary of State to revoke the applicant's release on licence on the recommendation of a senior officer of the RUC and, as a consequence, he was returned to prison to resume his life sentence and to await trial on the charges which had been preferred.
Subsequently, police interviewed B, a close relation of A and of the applicant, then aged thirteen, and in the course of this interview she also alleged that the applicant had committed a number of serious sexual offences against her. In addition to police interviews with A and B, as part of the police investigation into these matters, medical examinations were carried out on each of the alleged victims and a forensic examination was carried out at his residence by Dr Griffin who found seminal stains on the carpet of his bedroom..
On 1 May 1997 he was arrested in relation to the allegations made by B and interviewed at Antrim Road RUC Station. The interview was video-taped and his solicitor was present. He was duly cautioned. He was told that her evidence had been video-taped and that he would be shown the video. D/C Williamson who conducted the interview with D/C Parish summarised what the girl alleged, namely oral sex, buggery and rape. He also informed the applicant that Dr Hutton, a consultant paediatrician, had examined B along with Dr Shields . The general impression that the doctors got, he said, was that the physical findings were consistent with repeated penetrative anal abuse. There was no medical evidence of penetrative vaginal abuse but the physical findings did not rule it out. The findings were consistent with prolonged sexual abuse.
The applicant was also informed that on 7 April 1997 D/C Williamson went to his residence with members of the Forensic Science Agency and in the approximate area where B alleged that sperm fell on the carpet in the applicant's bedroom there were positive indications of actual sperm heads. He denied all the allegations. He was not charged in respect of the allegations made by B. The evidence was that he was not charged, because he already faced charges as a result of A's allegations. I question the wisdom of this decision.
On 13 January 1998 the charges against the applicant in respect of the alleged sexual offences against A were withdrawn by the Director of Public Prosecutions and a direction was given that there should be no prosecution in regard to the allegations of B. In view of this the applicant was told that the Secretary of State would consider whether or not his licence would be reinstated and the applicant was informed that the Secretary of State would consider any representations the applicant wished to make.
Following the receipt and consideration of representations made on behalf of the applicant, the Secretary of State decided that the applicant's life licence should not be reinstated and that his case should be considered by the Life Sentence Review Board (the Board) in the autumn of 1998. This decision was communicated to the Life Sentence Unit on 28 April 1998. The object of the Secretary of State's referral of the case to the Board was to enable it to carry out an assessment of the risk that the applicant presented to the public. The applicant was informed of the Secretary of State's decision on 7 May 1998.
The Board is a non-statutory body chaired by the Permanent Under Secretary of the Northern Ireland Office. Its members include senior Northern Ireland Office officials and a medical officer of the Department of Health and Social Services. It also has two advisers, a consultant psychiatrist and the chief probation officer of the Northern Ireland Probation Service. Its role is to advise the Secretary of State in relation to decisions which concern the release on licence of life sentence prisoners. The Board evaluates each case which it is required to consider and, if it thinks fit, recommends in appropriate instances that a provisional release date should be set by the Secretary of State. Where the Board does not make a release recommendation it determines the date when the inmate's case should next be reviewed. In the context of the applicant's case, the Board focused on the issue of the risk to the public which the applicant represented.
The Board does not operate under any set of procedural rules or guidelines. However its practice is to seek representations from any prisoner affected by its deliberations and the Life Sentence Unit of the Prison Service which services the Board, subject to issues of public interest, is required to make disclosure of relevant materials to the prisoner. In the case of the applicant, disclosure, in different degrees, was made in advance of the Board's meeting on 3 November 1998. It was decided by the Board to defer consideration of his case for one year. On 7 December 1999 it was decided by the Board to defer consideration of his case for a further year.
On 26 April 2000 the Prison Service wrote to the applicant in the following terms:-
"LIFE SENTENCE REVIEW BOARD – DECEMBER 1999
I am writing to give you further details of the deliberations of your case by the Life Sentence Review Board at its meeting on 7 December. This follows receipt of correspondence from your solicitor seeking further information in relation to the Board's decision.
Gist of the Review Board's Considerations
The Board recalled the circumstances of your case as considered at its October 1999 meeting. The Board now had the benefit of medical reports in relation to the victims of your alleged abuse. Board members considered the reports to be extremely useful in assisting them in their deliberations of your case. The Board also had available to it representations from your solicitors in relation to the reports. Furthermore, information from Social Services indicated that there was no evidence of further abuse of the children subsequent to your imprisonment.
Discussion of your case focused on risk. The difficulties arising from unproven allegations were recognised by the Board. However the Board considered that its concerns in relation to your alleged activities were sufficient to warrant deferring your case for a further year. In essence the Board believed that you committed the offences in question and was concerned that you might commit further similar offences if released. In these circumstance the Board was not satisfied that it was safe for you to be released at present.
In the circumstances of your case, the Board considered that a one-year deferral was appropriate and it was agreed therefore that your case would be deferred for a further review in the Autumn of 2000 on grounds of risk."
Leave to apply for judicial review of the Board's decision of 7 December 1999 was sought in June 2000 and the hearing was adjourned in order to enable the applicant to explain the delay in making the application. This led to the affidavit of the applicant sworn on 27 June 2000. The extent and content of the Board's disclosure prior to its decision of 7 December 1999 were set out at paragraph 22 of the applicant's affidavit:-
"22. As regards the disclosure received from the Life Sentence Review Board, my instructing solicitors and I were disclosed the following material:
22.1 the judgment and sentence from my original trial. …
22.2 the edited and re-written summary of those proceedings. …
22.3 the prison medical reports. …
22.4 the prison education report. …
22.5 the prison discipline record. …
22.6 the probation report. …
22.7 psychological reports dated 9 September 1998 and 20 September 1999. …
22.8 psychiatric report gist. …
22.9 the witness statement of Ruth Mary Evelyn Griffin, Forensic Scientist. …
22.10 Dr. Sandi Hutton's medical reports of her examinations of A and B. …"
He went on to aver at paragraphs 23 to 24 as follows:-
"23. These documents do not represent complete disclosure in my case. The section entitled 'Risk Assessment' was obliterated from the psychological report of Damien McCullough dated 9 September 1998. Furthermore, it is clear from his report dated 9 September 1998 that he had access, for the preparation of that report, to the following additional materials, a psychometric assessment, a report from Family and Child Care Team dated 14 March 1997, a report from a General Practitioner dated 1 December 1997 and the RUC witness statements from B and A. These materials were not disclosed to myself or my solicitor. Mr McCullough's report of 20 September 1999 clearly draws on these materials in reaching his conclusions. I received an undated and unsigned psychiatric report exhibited above as CD30. The remainder of this report and its date was obliterated. I had no ability to consider or challenge these materials. I do not know what of these or other materials relating to the consideration of my case, and to the alleged sexual offences in particular, were available to the Life Sentence Review Board. I do not know what the recommendation of the Life Sentence Unit was to the Life Sentence Review Board. I do not have a complete schedule or list of the documents available to the Life Sentence Review Board.
24. Further, my Solicitors had previously been disclosed correspondence from the RUC dated 1997 and 1998 which may have been available to the Life Sentence Review Board prior to its decision in 1999.
Leave was granted by Gillen J to apply for judicial review on 30 June 2000.
A further decision of the Board made on 30 October 2000 was notified to the applicant by letter dated 10 November 2000 in the following terms:-
"Gist of the Review Board's considerations
In considering your case at this time the Board recognised that questions had been raised by your solicitors about the establishment and operation of the Board in terms of its consistency with the requirements of the Human Rights Act 1998 which came into force on 2 October 2000. It was mindful of the relevant provisions of the European Convention on Human Rights in its deliberations.
The Board noted that this was the fourth review of your case since your return to prison in March 1997. It recalled the circumstances of your index offence an those relating to your return to prison. It noted the previous reviews of your case since being recalled and observed that the deferral decision of the December 1999 Board was subject to judicial review challenge.
The Board recollected that at that last review it had available to it copies of medical reports prepared from examination of the child victims of your alleged abuse. On this occasion the Board had available to it transcripts of police interviews with yourself and with the alleged victims and also a forensic report in relation to the alleged offences. The Board noted that, along with other material, these ha been disclosed to you and your solicitors and that representations had been received.
The Board noted that, one recent incident apart, you had not presented as a control problem since your return to prison and that you had been engaging well with education and in the Braille Unit. It recollected work you had done previously with probation on such things as alcohol awareness and stress management. More recently it observed that you had completed an Enhanced Thinking Skills programme from which you had received a favourable report.
The Board's consideration of your case again focused on the issue of risk. It noted that you remained strongly in denial of the alleged recall offences and that you could offer no logical explanation for the allegations made against you by your nieces. However, the Board considered a proposal that you participate in a 'Deniers'' programme. The Board believed that this would be beneficial to the progression of your case.
The Board noted that the Probation report recorded the level of family support available to you through regular visits and from your mother offering you accommodation in her home when circumstances allowed for that to happen. However, it acknowledged that serious problems would arise and strong objections would be forthcoming from both the RUC and Social Services were you to return to your home area. It further noted that the offer of a job and accommodation in Newry made to you last year was still available to you. The Board noted the ongoing concern that it had not been possible to address the identified potential area of risk in you case during this period in custody. In considering the possibility of you returning to the community in such circumstances reference was made to your suggested participation in a proposed inter-disciplinary based phased resettlement plan. It was noted that this comprised six elements all of which you would be expected to acknowledge, agree and to conform to in its implementation. It noted that were you not to do so Probation could not stand over and support your participation in such a programme.
The Board recognised again the difficulties arising from the unproven allegations against you and had regard to the representations made by you and your solicitors on this point. It noted also the representations made by your solicitors in relation to the role of the Board in its consideration of your case. However, notwithstanding the force of the representations received, the Board considered that the concerns in relation to your alleged activities and the inability to address those warranted the deferral of your case for a further year. The additional material available to it was considered to serve to underpin the view the Board had taken of your case and that as matters stood it could not be satisfied that it was safe for you to be released at this time.
In all the circumstances of your case and having regard to the primary consideration of the protection of the public the Board considered that a one year deferral was again appropriate on grounds of risk. In reaching that view the Board asked that professional staff, under the direction of the multi-disciplinary group, continue with their efforts to engage you constructively in work aimed at addressing areas of concern in which you are encouraged strongly to participate."
Further documentation had been received by the applicant from the Board by letter dated 11 October 2000:-
(i) Offences Against Discipline Form.
(ii) Prison Medical Report dated 15 June 2000.
(iii) Prison Medical Report dated 14 June 2000.
(iv) Psychological Report dated 28 August 2000 of Damien McCullough.
(v) Enhanced Thinking Skills Report of Siobhan Keating dated 7 September 2000.
(vi) Probation Report dated October 2000 by Allen Darrenbrook.
(vii) Written representations of the applicant dated 20 September 1998 (typewritten) and written representations of the applicant dated 4 October 1999 (typewritten) and typewritten representation of the applicant dated 14 September 2000.
(viii) Written representation by Mark Durkan MLA dated 28 July 2000 and reply of Adam Ingram dated 8 August 2000.
(ix) Copy Revocation of Licence dated 7 March 1997, with material formulated by the Prison Service from the RUC and the applicant and Probation Service and Walter Hegarty in relation to the Revocation and the withdrawal of charges.
(x) Copy transcript of A's interview with police dated 4 March 1997 and copy transcript of B's interview with police dated 27 March 1997.
(xi) Copy transcript of police interview notes on Christopher Doherty on 5 March 1997 (three interviews) and 1 May 1997 (two interviews).
The applicant applied for judicial review of the Board's decision of 30 October 1999. The applications for judicial review of the decisions of 7 December 1999 and 30 October 2000 were heard by me in the latter part of February 2001.
Mr Larkin submitted on behalf of Doherty that the decision of the Board made on 7 December 1999 was wrong and that, if it was wrong, it followed that the decision of 30 October 2000 was wrong.
He submitted, first of all, that it was for the Secretary of State, not the Board, to make decisions of this kind. Undoubtedly the power to recall to prison a person released on licence, to detain him there and to release him on licence again is vested in the Secretary of State.
But he has established the Life Sentence Review Board to advise him as to when he should release on licence under Section 23 prisoners serving terms of imprisonment for life and I am satisfied that the Board has power to decide whether they should advise the Secretary of State to release a prisoner on licence and, implicitly, the power to defer a decision to advise release. Life Sentence Prisoners: An Explanatory Memorandum was published in 1982. That memorandum represents the policy which the Secretary of State applies and prisoners are entitled to expect that it will be applied.
Paragraph 13 states:-
"The cases of all life sentence prisoners are regularly reviewed in the prisons by means of annual reports, which continue throughout the prisoner's period of detention. Annual reporting ensures a measure of continuity and depth which would be missing if reports were compiled only for the purpose of the periodical reviews. Reports are prepared by various members of staff including those in the most direct contact with the prisoner. The reports, which are seen and countersigned by the Governor who adds any comments of his own, are intended to provide as comprehensive a picture of the prisoner as possible covering such matters as his general behaviour in prison, relationships with others, attitude to his crime and sentence, the degree of family or other outside support, performance at work and/or on educational and vocational training courses and his prospects on release. Clearly these reports depend largely on the prisoners being known personally to the reporting officers; they cannot be completed in any meaningful way where the prisoner refuses to co-operate in the reporting procedure, and will necessarily be fuller and generally more informative where a prisoner is taking part in a normal prison regime."
Paragraph 15 states:-
"Within the Northern Ireland Office life sentence cases are the responsibility at working level of the Life Sentence Unit in the Prison Regimes Division, where there is a preliminary consideration of each case soon after the imposition of sentence or the determination of any appeal. Unless it is decided at that stage that any earlier review is appropriate, cases are first reviewed in the Northern Ireland Office after 3 years and the next major review normally takes place after the prisoner has completed 6 years in custody. At the review after that, which in the majority of cases is after 10 years but may be sooner, the case is considered by the Life Sentence Review Board, which is chaired by the Permanent Under-Secretary of the Northern Ireland Office, and includes among its members senior Northern Ireland Office Officials, a Principal Medical Officer of the Department of Health and Social Services, a Consultant Psychiatrist and the Chief probation Officer. Further reviews are carried out at intervals determined by the Board until a stage is reached when the Board is prepared to recommend to the Secretary of State that a release date should be set; or cases may for particular reasons be brought to Ministers' attention before the Board feels able to recommend the fixing of a release date."
Paragraph 16 states:-
"Reviews are conducted in the light of all the information available about the offence for which the life sentence was imposed and the circumstances in which it was committed (including the part played by the prisoner), the prisoner's age and background, including any previous offences; in appropriate cases any relevant medical and/or psychiatric assessments; any comments made by the trial judge in passing sentence; and the prison reports."
Paragraph 17 states:-
"A life sentence prisoner may petition the Secretary of State at any time about any matter relating to the review of his case. It is now the practice to inform prisoners when their cases are to be considered by the Life Sentence Review Board, and on these occasions prisoners are invited to make any written representations on points which they wish the Board to take into account."
Paragraph 25 states:-
"If a licence is revoked, the licensee is immediately recalled to prison to continue serving his life sentence. The circumstances in which a life licence is most likely to be revoked are where there are grounds for believing that the licensee might again be a danger to the public, or any members of it; where he had committed some further offences; or where he has been in breach of his licence conditions. A person who has been recalled to prison may later be relicensed, subject to the same or different conditions."
Where a licence is revoked it is the practice that the Board reviews the case every year. The prisoner is invited to make representations in writing to the Board. As Carswell J (as he then was) said in Re Whelan's Application:
"It does not require any great degree of percipience on the part of a prisoner for him to be able to appreciate what are the factors in which the Board will be interested when it comes to consider whether a release date should be recommended …"
This is, a fortiori, applicable to a prisoner whose licence has been revoked because children have alleged that he has buggered, raped and indecently assaulted them.
Mr Larkin argued that the duty of fairness which the Board owed to the applicant when reviewing his case in December 1999 was breached by reason of the failure to disclose information to him and his advisers which would have enabled him to make representations to the Board that would have assisted his case.
A list of documents considered by the Board in December 1999 was exhibited to the affidavit of Harold James Mayes sworn on 5 September 2000. The list is also to be found at paragraph 22 of the applicant's affidavit set out at p 10 of this judgment. Amongst them was a psychology report dated 9 September 1998 which was disclosed to the applicant with the risk analysis section edited out at the request of the psychologist "in the interests of A and B, the alleged victims" and at the request of the psychiatrist the gist only of his report was provided to the applicant.
I do not understand why these requests were made but it is important for the Board to keep faith with psychologists and psychiatrists, provided that no injustice is done to the applicant because "it is an essential requirement in the public interest that the Board should have available to it, on a confidential basis, the fullest possible information about each case which comes before it for consideration" (approved in Re Whelan's Application on appeal). In the circumstances of this case I am satisfied that full disclosure would not have assisted him because the full contents of these reports were shown to me at the hearing and, to the best of my recollection shown to the applicant's advisers.
The difficulty which the applicant faces is that the fuller the disclosure made the stronger the cases against him in relation to A and B appear to be. He has always been aware of much of the evidence against him as it was put to him at interview with the police in 1997. Yet he has never sought to allay the concerns which the evidence creates. To this I will return.
Mr Larkin submitted that the failure to allow him to be heard was a breach of the duty of fairness. In Re Whelan's Application on the hearing at first instance before Carswell J (as he then was) the judge stated:-
"… Mr Weir did not attempt to argue that the Board was obliged to hold an oral hearing in the absence of any provision binding it to do so …"
The Court of Appeal upheld his judgment in full and, by implication, assented to the proposition that the Board was not obliged to hold an oral hearing (reported at [1990] NI 348).
An edited version of a letter from Assistant Chief Constable White to the Board was given to the applicant. It was dated 3 February 1998 and reads:-
"Further to your letter of 15 January I have taken the opportunity to review the papers in the Doherty case. Having do so, I can see no reason to alter my recommendation of 7 March 1997, namely, that Doherty's licence should be revoked. This remains my view despite the fact that the most recent charges against Doherty were withdrawn on 13 January 1998, following a direction to that effect by the Director of Public Prosecutions."
There follows a portion of the letter which was edited out when the applicant or his advisers received it. The last two sentences, which were disclosed, read:-
"With this in mind and having full cognisance of the central tenet in such matters, namely 'the child's welfare is paramount', a direction of 'no prosecution' was issued."
The Director of Public Prosecutions refused to allow the reasons for the withdrawal of the prosecution to be disclosed although the second last sentence clearly indicated to me what these grounds were. At the hearing before me the full contents were disclosed and bore out the inference which I had drawn that the giving of evidence and, especially, the effect of cross-examination would be damaging to the childrens' physical and mental health. There was nothing in it to cast any doubt on their veracity as witnesses.
Whilst in this instance there was no good reason in my view for withholding the full contents of the letter, the fact remains that it was essential for the Board to be aware of the reasons for the withdrawal of the prosecution and a refusal to respect the conditions of confidentiality imposed by the DPP would have stultified the review by the Board. They cannot, therefore, be criticised for accepting and acting on the document on the terms imposed by the DPP. If the grounds for withdrawing the prosecution had been favourable to the applicant, different considerations might have arisen.
What the applicant and his advisers have not addressed are inter alia the following facts:-
(1) there is evidence that the applicant's semen was found on the sofa and on the carpet of the living room of the house in which he resided (with his mother) on home leave and after his release. Why did he masturbate there? How did A, aged nine. know that this semen would be found there unless she was present when the semen went onto the carpet?
(2) there is evidence that his semen was found on the carpet of his bedroom: how did B, aged thirteen, know that it would be found there unless she was present when it went on the floor?
(3) there is evidence that A and B were buggered over a period of several years. Why have they named the applicant as the culprit instead of the real culprit?
The Order 53 statement sets out Mr Larkin's submissions in this way:-
The decision to defer in 1999 was in breach of natural justice and procedural fairness:-
(i) The applicant was not provided with any or adequate disclosure to enable him to know and meet the case against him.
I have dealt with the issue of disclosure briefly, in particular the section of the psychologist's report which was obliterated and which I read in court, holding that the claim for public interest immunity failed, and which was made available to the applicant's advisers.
The applicant further claims that the psychologist had access to a psychometric assessment, a report from Family and Child Care Team dated 14 March 1997, a report from a GP dated 1 December 1997 and the RUC witness statements from A and B. It was pointed out on behalf of the Board that they did not have access to these documents. It seems to me that they cannot be criticised for failing to provide documents which were not in their possession or power to procure. However I am satisfied that none of these documents would have assisted the applicant. He was aware of the allegations of A and B which had been put to him by the RUC.
He further claims that the gist of the psychiatrist's report (CD30) did not assist him and that he did not know how much material was available to the Board. I am satisfied that the psychiatrist's report and the other material would not have assisted him. Nor does it appear to me to matter that he did not know what material was available to the Board. He did know what concerned them because he knew or ought to have known that he was not prosecuted in respect of the offences alleged by A and B because it was not considered to be in their interests, mentally and physically, to go through the ordeal of a trial. Unable, it appears, to offer any explanation for the matters which I have mentioned as calling for explanation, he ought to have realised that the probabilities of convictions, if they had given evidence, were high and that the risk of a discretionary life sentence on conviction were high. I do not understand why he should complain that the Board had the letters from the RUC which his solicitors received. The Board needed the letters in order to reach a fair decision as to whether they should or should not defer a decision to recommend release on licence.
(ii) An oral hearing was not provided.
I have dealt with this issue as fully as I need to do. The argument about Article 5(4) of the Convention which I will deal with later applies only to the decision of 30 October 2000. The decision in Re Whelan's Application by which I am bound clearly supports the view that he was not entitled to an oral hearing.
(iii) The applicant had no opportunity to counter the evidential material including the witnesses against him.
I have no reason to believe that there was an oral hearing. He had the gist of what was allege against him and was given the opportunity to make representations.
(iv) The applicant had no legal representation at the hearing.
As the courts have regarded decisions of the Board as administrative rather than quasi-judicial, I do not consider that the applicant was entitled to legal representation at the meeting of the Board. The decision was not reached at a quasi-judicial hearing.
These rulings are subject to the argument presented by Mr Larkin about the Human Rights Act 1998.
Mr Larkin made a number of peripheral points during the course of argument which I mention, so that they are not overlooked. At one stage there was reference to the applicant working or living in Newry. But this was not explored, said Mr Larkin. My own impression is that the applicant wishes to live in Londonderry and none of the representations made on his behalf sought to develop the proposal to live in Newry.
Mr Larkin questioned whether the dates in respect of which allegations were made by A fitted the periods when the applicant was at home. An affidavit from Mr Mayes indicated that from August 1993 the applicant had periods of pre-release home leave. If this allegation was not accurate, I am satisfied that it would have been challenged comprehensively. Records of such home leave must be available.
Mr Larkin continued to maintain that the Board must not make use of documents if they cannot fairly be used – for example, by imposition of conditions on the part of the person furnishing the document. I consider that the decision to release a person sentenced to life imprisonment as so important that, if necessary, the Board may have to receive documents in confidence in order to reach a correct decision. This principle applies to the Board which advises the Secretary of State as it does to the Secretary of State.
It is important, however, to identify to the prisoner and his advisers documents in respect of which confidentiality or public interest immunity is claimed in whole or in part, so that he may challenge the refusal to give disclosure. But there will be cases where confidentiality should not or cannot be breached. In the instant case the prison governors' reports, the multi-disciplinary meeting and the annual and weekly reports by prison staff may be privileged from disclosure. The relationship between prisoner and prison staff and others may be irretrievably compromised if the staff are aware that their reports may be disclosed; their ability or willingness to make candid comments on the prisoner may be impaired.
I do not intend to indicate a list of documents which should not be disclosed. The duty of fairness has developed in recent years so that more disclosure has been made in the recent past than formerly. But I reject the submission that the Board is not entitled to act on documents referred to it, so long as the prisoner is told and can challenge in a court a claim of public interest immunity. It would be a rare case in which a judge would decline to inspect a document for which such a claim was made, I consider.
As long as the applicant is entitled to make written representations which enable him or his advisers, inter alia, to direct the attention of the Board to the relevant legal principles, such as the danger of acting on the uncorroborated evidence of children, the Board is entitled to make decisions about his case. Mr Larkin argued that it was not competent for the Board to make findings against him. But I repeat that the Board is not making quasi-judicial findings. Its function is to make administrative decisions.
It was argued by Mr Larkin that the Board had given no consideration as to whether the applicant's case should be placed before the Secretary of State. But is implicit in the decision of the Board to defer a decision that they had decided not to refer the case to the Secretary of State and in my view there is no obligation on the Board to inform the Secretary of State of decisions to defer. These functions have been delegated to the Board and it would be impracticable to require the Secretary of State to review each decision to defer. The right to petition the Secretary of State remains.
Mr Larkin argued that the applicant was "left out of the loop". But he was informed of the decision of the Board and had his remedy. I reject the submission that the Secretary of State should be notified of the deferral. But I agree that the Board should consider whether the deferral should be drawn to the attention of the Secretary of State. It would be good practice to place this on the Agenda of meetings of the Board.
The comparison made between prisoners whose sentences are reviewed under legislation enacted as a result of the Belfast Agreement and prisoners such as Mr Doherty involves political considerations in respect of which it would be inappropriate for a judge to express a view.
I turn to the statement under Order 53.
At (b) it was stated that the Board's decision was illegal in that:-
(i) It turned upon an assessment of the applicant's guilt that could only be made following conviction by a court of competent jurisdiction.
I reject this as it is the function of the Board to assess the risk to the public if the prisoner is released. If the Board believes that he committed the offences charged, although they were withdrawn, or other offences in respect of which he was not charged (offences against B) then they have to decide the extent of the risk involved in releasing him on licence.
(ii) The Board failed to take into account relevant considerations, namely:-
(1) That the Director of Public Prosecutions had determined not to proceed with criminal proceedings against the applicant on the same allegations that the Board was now considering.
The evidence is to the contrary.
(2) That the psychologist's findings presented to the Board were consistent not only with the applicant having failed to come to terms with this offence, but also with his innocence of the charges laid against him.
The Board was entitled to look not merely at the psychologist's findings but at the other evidence in the case.
(3) The nature of the applicant's rights under Article 6 of the Convention.
This seeks to make the role of the Board a quasi-judicial role at the least and I am bound by decisions of the Court of Appeal in Re Whelan's Application and in Re Wright and Fisher's Application [1997] NI 318 to reject this submission, subject to Mr Larkin's arguments on Human Rights issues.
(iii) It was not open to the Board to take a decision about the applicant's liberty, such a decision being entrusted to the Secretary of State for Northern Ireland.
For the reasons which I have given and in view of the decision of the Court of Appeal (of which I was a member) in Re Wright and Fisher's Application I reject this argument.
(iv) The said decisions are contrary to Article 6 of the ECHR.
I have already dealt with this argument at (3).
(v) I need not set this out as the same remarks apply.
(vi) All previous determinations of the risk posed by the applicant have been based on inadequate materials since the Board had not previously considered the materials described in paragraph 25 of Mr Mayes' affidavit sworn on 5 September 2000.
Whilst I am surprised that the Board did not seek the materials set out at (ix), (x) and (xi) in paragraph 25 of Mr Mayes' affidavit, I consider that the materials which they did have in December 1999 justified the conclusions that they reached. But I do express my concern that they did not seek out the additional materials until it must have become obvious to them that a judicial review of their decision-making was imminent. I suspect that they were told, at the very least, the gist of the materials before their decision in December 1999. The applicant was given the gist at interviews in 1997.
(vii) I need not set this out as I have dealt with the point earlier.
(viii) The Board has failed in its duty to make findings and to furnish an adequately reasoned account of its conclusions on the nature of the risk allegedly posed by the applicant and the likelihood of such risk.
In Re Whelan's Application the Court of Appeal stated at p 366:-
"Mr Weir did not seek to argue that the Board was obliged to give reasons for its decision but he submitted that before coming to its decision it should inform the prisoner of the matters which caused it concern so that he could make effective representations to it. We consider it to be clear that the Board is not under an obligation to give reasons for its decisions. But we further consider that the distinction which Mr Weir sought to draw between the Board giving a prisoner information of the matters which caused it concern and the Board giving its reasons for deciding not to recommend release is artificial …"
(ix) I need not set this out as, again, it challenges the decisions of the Court of Appeal that the function of the Board is administrative rather than quasi-judicial.
The main thrust of Mr Larkin's submissions rested on the Human Rights Act 1998 which applies only to the decision of 30 October 2000. Article 5(4) of the Convention entitled discretionary life sentence prisoners to have the lawfulness of their continual detention decided by a court at reasonable intervals. But in Wynne v United Kingdom 19 EHRR 333 the European Court held that there was no violation of Article 5(4) where a prisoner received a mandatory life sentence for murder, was released on life licence and subsequently was convicted of manslaughter, for which he received a discretionary life sentence.
It was held that the continued validity of the original life sentence and its reactivation on his recall remained. He continued to be detained under the original mandatory sentence.
Mr Larkin reminded me that the doctrine of 'stare decisis' did not apply to decisions of the European Court. He questioned the validity of the decision in Wynne. He referred me to a number of distinguished academic writings on the decision such as the commentary in Livingstone & Owen's Prison Law, 2nd Ed and Starner on European Human Rights Law at pp 470, 471. The latter states:
"In English law, sentences which currently attract Article 5(4) reviews are the discretionary life sentence and the sentence of detention at Her Majesty's Pleasure imposed on child murderers. The mandatory life sentence imposed on adult murderers was held by the court in Wynne v United Kingdom to be wholly punitive, attracting no Article 5(4) rights once the sentencing process is complete."
In a footnote it is stated:
"However, recent development in domestic law, and in particular the House of Lords case of R v Secretary of State ex parte Pierson [1998] AC 539 have largely jettisoned the theory that the mandatory life sentence is wholly punitive. The court may soon be invited to revisit Wynne in the face of a strengthened case that its rationale is no different from the discretionary life sentence."
Mr Larkin referred to the Explanatory Memorandum in relation to the Board and to paragraph 33 thereof and argued that the Board was not concerned with punitiveness but with the dangerousness of the prisoner.
He referred to Thynne, Wilson and Gunnell v UK (1990) 13 EHRR 666. The applicants were sentenced to discretionary life imprisonment because in addition to the need for punishment, they had each been considered by the court as dangerous. In such cases the sentence contained both a punitive element and a protective element and left the final decision on the prisoner's release to the Home Secretary. The punitive period of detention had expired and the applicants were entitled to subsequent judicial control of their detention by virtue of Article 5(4). The court reaffirmed that neither the Parole Board nor judicial review proceedings were sufficient to satisfy the requirement of judicial control.
The court drew a distinction between the discretionary and the mandatory life sentence on the basis that the former, unlike the mandatory life sentence, was composed of a punitive element and subsequently of a security element.
He referred to Regina v Home Secretary ex parte Pierson [1998] AC 539. There are, indeed, arguments for contending that a mandatory life sentence is not wholly punitive. If this is so, such arguments are at least equally valid when a mandatory life sentence prisoner has been released on licence and his licence has been revoked.
Mr Larkin also referred to Hussain v UK [1996] EHHR 1 and Singh v UK.
However the procedures established in England for the review of life sentence prisoners do not apply in Northern Ireland and it seems to me that a Divisional Court Judge has no right to bypass decisions of the Court of Appeal or of the European Court of Human Rights.
It is not necessary to set out the helpful submissions of Mr Maguire to which I had regard when dealing with the submissions of Mr Larkin. He helpfully contrasted the English procedure with the procedure in Northern Ireland and emphasised that the English authorities centred on the tariff. He referred, inter alia, to Re Crawford's Application [1994] NIJB 83 at 86 and 87 and to Regina v Secretary of State for the Home Department ex parte Stafford [1998] 1 WLR 503. As the law stands Article 5(4) of the Convention does not apply to a mandatory life sentence in Northern Ireland.
Accordingly for the reasons I have given I dismiss the application for judicial review of the decision of the Board of 7 December 1999. Further documents came into the possession of the Board in October 2000 and were disclosed to the applicant. These have been set out.
For the same reasons which I have given for dismissing the application in respect of the decision of 7 December 1999 I dismiss the application in respect of the decision of 30 October 2000. I also dismiss it on the ground that I have rejected the argument based on Article 5(4) of the Convention.
I am grateful to both counsel for their submissions. I am conscious of the fact that I have not dealt with them as fully as I might have done. But I trust that I have covered the main points.
