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

The High Court’s inherent jurisdiction may support the effective exercise of its judicial functions, including where legislation regulates the subject matter. It cannot be exercised contrary to a statutory provision or so as to undermine a statutory scheme.

A finding that a prisoner’s review did not satisfy article 5(4) does not itself require interim release where the lawfulness of the detention was not successfully challenged. Remittal for a lawful review may fully vindicate the procedural right. Where legislation entrusts release to a specialist panel applying a public-protection test, inherent jurisdiction cannot be used to bypass that assessment.

Continued detention may become arbitrary if a prisoner lacks a genuine opportunity to demonstrate that the danger justifying detention has ceased. The causal connection with the original sentence may nevertheless endure. Whether an article 5(1) violation automatically requires release was left open.

The appellant, a life prisoner released on licence, was recalled after the parole commissioners received intelligence indicating involvement in a proscribed organisation. Following open and closed hearings, with a special advocate participating in the closed proceedings, the commissioners found that he presented a risk of serious harm and refused release under article 6(4) of the Life Sentences (Northern Ireland) Order 2001.

On judicial review, Treacy J found that inadequate disclosure had breached article 5(4) of the Convention. He remitted the case to the commissioners and granted bail. The Court of Appeal held that the High Court lacked power to grant bail and stayed that order. In a later decision, [2012] NICA 57, it reversed the finding of an article 5(4) breach. Permission to appeal that later decision was refused.

The remaining appeal, although academic, concerned whether the High Court could use its inherent jurisdiction, the Human Rights Act 1998 or article 5 to order the interim release of a recalled life prisoner.

1. The appeal was dismissed unanimously. Lord Kerr delivered the principal judgment, with which Lord Clarke, Lord Hughes and Lord Toulson agreed. Lord Mance agreed that the appeal should be dismissed and gave additional reasons.

2. The Northern Ireland High Court possesses an inherent jurisdiction preserved by section 16(2)(a) of the Judicature (Northern Ireland) Act 1978. That jurisdiction enables a superior court to regulate its process, prevent abuse and ensure that its decisions are effective. It may operate in a field regulated by legislation, but it cannot contravene a statutory provision or run counter to the purpose or spirit of the legislation.

3. The finding that the commissioners’ procedure breached article 5(4) did not require an order releasing the appellant. The judicial review had challenged the fairness of the review, rather than the lawfulness of detention under article 5(1). Remittal for a lawful reconsideration fully vindicated the asserted procedural right. Bail was therefore neither necessary nor sufficiently related to the relief granted.

4. Release by inherent jurisdiction would also have undermined the Life Sentences (Northern Ireland) Order 2001. Article 6(4) entrusted a specialist panel with deciding whether confinement remained necessary to protect the public from serious harm. A judge could not supplant that assessment merely because an earlier review had failed to comply with article 5(4).

5. For article 5(1), the question was not confined to whether the causal connection between conviction and detention had broken. Following James v United Kingdom, detention may be arbitrary where a prisoner lacks a real opportunity to demonstrate that the public danger justifying detention has ceased. The causal connection with the sentence may continue notwithstanding that arbitrariness. The appellant had received an adequate opportunity to demonstrate that he could safely be released, so his detention was not arbitrary.

6. The Court left open whether a prisoner whose detention had become arbitrary and unlawful under article 5(1) must be released. Lord Mance considered it arguable that James identified an ancillary obligation to progress prisoners towards release, breach of which would support appropriate damages without making release automatic.

• United Kingdom Supreme Court: Dismissed the appeal against the ruling that the High Court lacked power to grant bail. The issue was academic because the separate finding of an article 5(4) breach had already been reversed.

• Court of Appeal in Northern Ireland: On 11 July 2012, held that the High Court had no power to grant bail and stayed the bail order. In a later judgment, [2012] NICA 57, it allowed the Secretary of State’s appeal and held that the disclosure had been sufficient for article 5(4).

• High Court of Justice in Northern Ireland: Treacy J found that the commissioners’ reliance on insufficiently disclosed closed material breached article 5(4). He remitted the case under section 21 of the Judicature (Northern Ireland) Act 1978 and admitted the appellant to bail pending reconsideration.