In re McClean

The House considered the proper approach and burden on applications under section 8 of the Northern Ireland (Sentences) Act 1998 to revoke a declaration of eligibility for accelerated release made under section 3. The court held that a section 8 application triggers a full review of the earlier declaration: the Sentence Review Commissioners must reassess, on the available material, whether the section 3 conditions (in particular section 3(6), the life-prisoner "danger to the public" condition) remain satisfied. The Commissioners are not required to impose a conventional burden of proof on either party; their task is an evaluative predictive judgment of risk, resolving reasonable doubt against the prisoner. The court also held that the statutory procedural regime permitting withholding of "damaging information" and the appointment of a special advocate did not render the hearing in this case unfair, and that exclusion from closed parts of the hearing did not, on the facts, breach the prisoner’s fair-trial or liberty protection rights under the Convention.

The appellant Commissioners (supported by the Secretary of State) appealed against the Court of Appeal's decision which had quashed their revocation of the declaration granted to Stephen McClean under the Northern Ireland (Sentences) Act 1998. Mr McClean had been convicted of multiple serious sectarian offences committed in March 1998 and received life sentences. He applied under section 3 for a declaration of eligibility for early/accelerated release; the Commissioners granted the declaration and, because of section 10(5), he acquired a statutory right to be released on 28 July 2000. Shortly before that date he became involved in an incident while on pre-release home leave and was charged. The Secretary of State applied under section 8 to revoke the earlier declaration, relying in part on intelligence certified as "damaging information"; a special advocate was appointed for closed sessions.

The procedural and substantive issues before the House were:

• Nature of the decision under section 8: whether a section 8 application requires only a preliminary finding that the new material "suggests" a condition is not satisfied, or a full re-determination of the section 3 conditions;
• Burdens of proof and allocation of responsibility: whether the onus lay on the Secretary of State to prove on the balance of probabilities that the prisoner would be dangerous if released, or whether the Commissioners must make an evaluative judgment without imposing such a burden on either party;
• Fairness of procedure: whether the non-disclosure regime for "damaging information" and exclusion of the prisoner and his ordinary representatives (with a special advocate in closed sessions) breached fairness or Convention protections (article 6(1) or article 5(4)).

The House held that a section 8 application requires a de novo review: the Commissioners must reassess whether, in their judgment, the section 3 conditions remain satisfied in light of any change of circumstances or newly-obtained evidence. The Commissioners' task is evaluative and predictive; they are not to apply rigid burdens of proof in the manner of ordinary civil litigation. Rather, they should consider all material and form a judgment; if reasonably doubtful whether the life-prisoner would not be a danger to the public, that doubt must be resolved against the prisoner. On the facts the Commissioners were entitled to revoke Mr McClean's declaration. The court further held that, in the circumstances of this case, the procedure including use of a special advocate and withholding of damaging material did not render the hearing unfair.

Outcome sought: the Secretary of State sought revocation of the section 3 declaration; the Commissioners revoked it; Mr McClean judicially reviewed that revocation and obtained a majority in the Court of Appeal on the burden issue; the House allowed the Commissioners' appeal and dismissed Mr McClean's cross-appeal.

Appeal allowed. The House held that a section 8 application requires the Commissioners to conduct a full re-assessment of the section 3 conditions in light of any change in circumstances or new evidence; the Commissioners are not required to impose a conventional burden of proof on either party but must make an evaluative predictive judgment of risk and, if left with a reasonable doubt whether a life prisoner would not be a danger to the public, resolve that doubt against the prisoner. On the facts the Commissioners were entitled to revoke Mr McClean's declaration. The cross-appeal alleging unfair procedure was dismissed on the facts because the gist of withheld intelligence was given and the Commissioners stated they did not rely on the damaging material.

On appeal from the Court of Appeal in Northern Ireland, [2004] NICA 14. The House heard an appeal by the Sentence Review Commissioners (supported by the Secretary of State) against the Court of Appeal's quashing of the Commissioners' revocation of a section 3 declaration; there was also a cross-appeal by Mr McClean challenging procedural fairness.