In the matter of an application by Martin Corey (AP) for Judicial Review (Northern Ireland)

The Supreme Court considered whether the High Court of Northern Ireland had an inherent jurisdiction to order the release on bail of a recalled life‑sentence prisoner pending reconsideration by the parole commissioners and whether a finding of breach of article 5(4) ECHR required admission to bail. The court held that the High Court’s inherent jurisdiction could not be used to order release where doing so would undermine or supplant the statutory scheme governing release of life prisoners, in particular the test in article 6(4) of the Life Sentences (Northern Ireland) Order 2001. The court treated the remedial declaration that the parole review was unlawful and the direction to reconsider as an adequate vindication of article 5(4) rights in the circumstances of the case.

Background and parties

The appellant, Martin Corey, a recalled life prisoner, challenged the parole commissioners’ refusal to direct his release after his licence had been revoked and he was recalled to prison. He alleged inadequate disclosure of closed material and that the commissioners’ decision was based solely or decisively on closed material, amounting to a breach of article 5(4) ECHR and a denial of procedural fairness. The Secretary of State was a notice party.

Procedural history

• The licence was revoked in April 2010 and Mr Corey was recalled to custody on 16 April 2010.
• A panel of parole commissioners considered closed and open material and on 15 August 2011 refused to direct release under article 6(4) of the Life Sentences (Northern Ireland) Order 2001.
• The appellant sought judicial review. Treacy J (High Court) held there had been breach of article 5(4), remitted the matter to the commissioners for reconsideration and admitted the appellant to bail pending reconsideration; the Court of Appeal stayed the bail decision and later allowed the appeal on the article 5(4) point ([2012] NICA 57).
• Permission to appeal to the Supreme Court was granted on the question whether the High Court had an inherent jurisdiction to grant bail; the appeal was heard in October 2013.

Issues before the Supreme Court

1. Whether the High Court of Northern Ireland possessed an inherent jurisdiction to order the release on bail of a recalled life prisoner as an ancillary or remedial measure in judicial review proceedings challenging a parole commissioners’ decision.
2. Whether, as a matter of remedial principle under the Human Rights Act 1998 and the Convention, a finding that article 5(4) had been breached entitled the applicant to bail.
3. Relatedly, whether delay in conducting an article 5(4) compliant review could render detention unlawful under article 5(1), requiring release.

Court’s reasoning

The court analysed the nature and limits of the High Court’s inherent jurisdiction and emphasised that such jurisdiction must not contravene statutory purpose or undermine a statutory scheme. The Life Sentences (Northern Ireland) Order 2001 places decisions as to the continued detention or release of life prisoners in the hands of specialists and requires the commissioners to be satisfied that release would no longer be necessary for protection of the public. Granting release by recourse to inherent jurisdiction where the statutory safeguards and specialist assessment had not been applied would be inconsistent with the statutory scheme.

The court held that Treacy J’s declaration that the review procedure had been unlawful and the direction that the commissioners should reconsider their decision provided a full vindication of the article 5(4) right in this case; an ancillary power to order bail was unnecessary and unrelated to the effective vindication of that right. On the related article 5(1) point, the court discussed James v United Kingdom and the circumstances in which detention might become arbitrary, but found that, as a matter of fact and law, Mr Corey had been given an adequate opportunity to show he could be released and therefore the article 5(1) arbitrariness argument did not arise. The appeal was dismissed.

The appeal is dismissed. The High Court did not have an inherent jurisdiction, in the circumstances of this case, to order the release on bail of a recalled life‑sentence prisoner pending reconsideration by the parole commissioners because such an order would undermine the statutory scheme (notably article 6(4) of the Life Sentences (Northern Ireland) Order 2001) which entrusts difficult assessments of risk and public protection to a panel of specialists. A declaration that the review was procedurally unlawful and a direction to reconsider vindicated article 5(4) in this case.

High Court (Treacy J) – judgment delivered 9 July 2012: found breach of article 5(4), remitted the matter to the commissioners for reconsideration and admitted the appellant to bail; Court of Appeal – interim stay of bail (11 July 2012) and on appeal allowed the Secretary of State on the article 5(4) point ([2012] NICA 57); Supreme Court – appeal heard October 2013, judgment [2013] UKSC 76 dismissing the appeal.