In the matter of an application by Deborah McGuinness for Judicial Review (Northern Ireland)

A High Court decision is made in a “criminal cause or matter” for appeal purposes where the underlying proceedings have a clear and direct connection with bringing or determining a specific criminal charge. The direct outcome must expose a person to trial and possible criminal punishment.

Proceedings concerning a non-judicial public authority’s implementation of a sentence already imposed fall outside that category. This includes calculating a prisoner’s tariff or release date. Such proceedings are civil public law proceedings, from which the ordinary appeal lies to the Court of Appeal.

The Department of Justice referred the case of a life prisoner to the Parole Commissioners after counting a period spent on licence towards his tariff. The sister of one of his victims successfully challenged that calculation in the Divisional Court: [2019] NIQB 10.

The Department and the prisoner appealed directly to the Supreme Court under section 41 of the Judicature (Northern Ireland) Act 1978. The Attorney General for Northern Ireland intervened to dispute the court’s jurisdiction. The preliminary issue was whether judicial review of an administrative decision implementing an existing sentence was a decision “in a criminal cause or matter”.

1. The Supreme Court unanimously held that it lacked jurisdiction to entertain the appeals. Lord Sales delivered the judgment, with which Lady Hale, Lord Wilson, Lord Carnwath and Lord Lloyd-Jones agreed. The proceedings were not a “criminal cause or matter” under section 41 of the Judicature (Northern Ireland) Act 1978. The proper appeal lay to the Northern Ireland Court of Appeal.

2. The leading authority, Amand v Home Secretary [1943] AC 147, requires attention to the proceedings underlying the High Court claim. The relevant category covers proceedings whose direct outcome may be the applicant’s trial and possible punishment for an alleged offence. It therefore extends beyond formally criminal proceedings in the High Court, but remains focused upon the process of bringing and determining criminal charges.

3. The category is an exception to the general right of appeal from the High Court to the Court of Appeal. An expansive construction would restrict access to appellate correction because a direct appeal to the Supreme Court requires certification of a point of law of general public importance and permission to appeal. The category should therefore be reasonably tightly drawn while still capturing proceedings directly connected with a specific prosecution, criminal trial or consequential criminal order.

4. The challenged decision concerned the Department’s understanding and administrative implementation of a sentence imposed in completed criminal proceedings. The prisoner faced no outstanding charge, trial or possible sentence as a direct outcome of the Department’s process. Judicial review of the calculation of his tariff expiry date was accordingly civil public law litigation.

5. The Court of Appeal’s contrary approach in R (McAtee) v Secretary of State for Justice [2018] EWCA Civ 2851 was rejected. The imposition of sentence is part of the criminal process, but later decisions by non-judicial bodies about its effect are not. The majority approach in In re JR27 [2010] NIQB 12, which treated a remote possibility of future prosecution as sufficient jeopardy, was also rejected.

6. The court did not determine the substantive dispute concerning calculation of the tariff. The parties could challenge the Divisional Court’s decision in the Court of Appeal, whose consideration of the special Northern Ireland prisoner regime would assist if the merits later reached the Supreme Court.

1. United Kingdom Supreme Court: Held that it had no jurisdiction under section 41 of the Judicature (Northern Ireland) Act 1978. The proper appeal lay to the Northern Ireland Court of Appeal: [2020] UKSC 6.
2. Divisional Court of the High Court in Northern Ireland: Allowed the judicial review challenge to the Department’s calculation and certified a point of law of general public importance: [2019] NIQB 10.