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

When deciding whether a life-sentence prisoner qualifies for accelerated release under the Northern Ireland (Sentences) Act 1998, the Sentence Review Commissioners must make an evaluative and predictive assessment of public risk from all available material. The assessment is not governed by a conventional burden of proof.

A declaration may be revoked under section 8 only following a specified order, changed circumstances, or previously unavailable evidence or information. Once section 8 is properly engaged, the Commissioners must review whether the section 3 conditions remain satisfied. Any reasonable doubt whether immediate release would endanger the public must be resolved in favour of public safety.

The fairness of a procedure involving withheld intelligence, exclusion from part of the hearing and a special advocate must be assessed as operated in the particular case and viewed overall.

A life-sentence prisoner obtained a declaration of eligibility for accelerated release under the Northern Ireland (Sentences) Act 1998. While on pre-release home leave, he participated in an expedition to remove paramilitary flags which culminated in serious violence. Although acquitted of offences arising from that incident, judicial findings concerning his involvement prompted the Secretary of State to seek revocation of the declaration.

The Sentence Review Commissioners revoked the declaration after considering the prisoner's evidence and the criminal trial judgment. They received secret intelligence through the statutory damaging-information procedure, but stated that they placed no reliance on it.

The High Court dismissed the prisoner's judicial review application. A majority of the Court of Appeal, in [2004] NICA 14, quashed the revocation because the burden concerning dangerousness had been wrongly placed on the prisoner. The Commissioners appealed. The prisoner cross-appealed on procedural fairness and Convention grounds.

1. The Commissioners' appeal was allowed unanimously and the prisoner's cross-appeal was dismissed. Lord Bingham and Lord Carswell delivered the principal reasons. Lord Scott and Lord Brown agreed, and Lord Rodger agreed with the reasons of Lord Bingham, Lord Carswell and Lord Brown.

2. Per Lord Carswell, the determination of dangerousness under sections 3 and 8 of the Northern Ireland (Sentences) Act 1998 is an administrative, evaluative and predictive judgment. It is not a lis inter partes governed by conventional burdens of proof. The Commissioners must obtain the information they consider necessary and determine whether the statutory conditions remain satisfied.

3. Per Lord Bingham, section 8 cannot be invoked merely because the Secretary of State or Commissioners have reconsidered an earlier declaration. There must be a new specification order, a change in the prisoner's circumstances, or previously unavailable evidence or information. If the new material has little or no significance, revocation must be refused. If it causes a proper doubt whether a condition remains satisfied, the declaration must be revoked.

4. Per Lord Carswell, section 8 requires a complete review of the prisoner's case under section 3. The Commissioners must consider the original and new material together, without imposing a burden of proof on either party. They must refuse revocation if the conditions remain satisfied and revoke if they do not.

5. Per Lord Bingham and Lord Brown, public safety is the primary concern. The statutory right to accelerated release is important, but does not override that concern. Any reasonable doubt whether immediate release would endanger the public must be resolved against the prisoner. The Commissioners' findings concerning the prisoner's knowing involvement in a situation carrying an obvious risk of violence justified revocation.

6. Per Lord Bingham and Lord Carswell, the procedure had not operated unfairly. The prisoner received a sufficient gist of the withheld allegations, and the Commissioners expressly relied only on open evidence. The applicability of articles 5(4) and 6(1) was left unresolved. Fairness depended on the procedure as actually operated and viewed overall. Lord Scott considered that neither article supplied the prisoner with a right to alter the statutory scheme; Lord Brown concluded that the result was compatible with article 5(4) even assuming that it applied.

1. House of Lords: The Commissioners' appeal was allowed unanimously and the prisoner's cross-appeal was dismissed. The Court of Appeal's ruling on burden of proof was reversed.
2. Court of Appeal in Northern Ireland: By a majority, the court allowed the prisoner's appeal in [2004] NICA 14, quashed the revocation and remitted the matter for reconsideration on the basis that the Secretary of State bore the burden of proving dangerousness. It rejected the procedural-fairness challenge.
3. High Court of Justice in Northern Ireland: Coghlin J dismissed the application for judicial review on 15 May 2003, holding that the revocation procedure was fair and that placing the burden concerning public risk on the prisoner was neither unfair nor disproportionate.
4. Sentence Review Commissioners: On 23 April 2002 the Commissioners revoked the declaration of eligibility for accelerated release under the Northern Ireland (Sentences) Act 1998.