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

The Supreme Court considered whether judicial review proceedings challenging the Department of Justice's calculation of a life-prisoner’s tariff expiry date constituted a "criminal cause or matter" for the purposes of section 41(1) of the Judicature (Northern Ireland) Act 1978. The court applied the established test derived from Amand and subsequent authorities: the character of the underlying proceedings determines whether the High Court decision is "in a criminal cause or matter" and, in particular, whether the proceedings are the kind the direct outcome of which may be trial and punishment of the applicant.

Applying that test, the Court held that the challenge concerned the implementation and working out of a past sentence by administrative bodies (the Prison Service and Sentence Review Commissioners) rather than any ongoing or prospective criminal process against Mr Stone. Therefore the proceedings were not "a criminal cause or matter" within section 41(1), and the proper appellate route is to the Court of Appeal in Northern Ireland rather than to the Supreme Court.

Background and parties:

• The judicial review was brought by Mrs Deborah McGuinness, sister of a victim of Michael Stone, challenging notification by the Northern Ireland Prison Service that Mr Stone's tariff expiry date was 21 March 2018. The Department of Justice and Mr Stone appealed the Divisional Court's judgment to the Supreme Court. The Attorney General for Northern Ireland intervened to challenge this court's jurisdiction.

Nature of the claim and relief sought:

• Mrs McGuinness sought judicial review of the Department's decision to count the period Mr Stone had spent on release on licence (the contested period) towards his 30-year tariff, on the ground that the contested period should not have been included; excluding it would have pushed the tariff expiry to about 22 July 2024.

Procedural posture:

• The Divisional Court of the High Court in Northern Ireland allowed Mrs McGuinness's challenge and certified a point of law of general public importance under section 41(2) of the 1978 Act, leading to permission to appeal to the Supreme Court. The Attorney General then argued the Divisional Court’s decision was not "in a criminal cause or matter", so the Supreme Court lacked jurisdiction.

Issues before the Supreme Court:

• Whether the phrase "a criminal cause or matter" in section 41(1) of the 1978 Act covers judicial review challenges of the kind brought by Mrs McGuinness (ie challenges to administrative decisions about the effect of a previously imposed criminal sentence), and therefore whether an appeal from the High Court lies to the Supreme Court or instead to the Court of Appeal.

Court's reasoning and conclusion:

• The court reviewed the statutory scheme and controlling authorities (in particular Amand and its progeny) and emphasised that the phrase must be given a focused meaning in the appeals context so as not to unduly restrict ordinary appellate rights. The test looks to the nature of the underlying proceedings: whether, if carried to conclusion, they might result in trial and punishment of the person concerned.
• Applying that test, the court concluded the underlying matter here was the administrative implementation of a sentence already imposed and exhausted as a criminal process; there was no ongoing or prospective criminal prosecution or trial putting Mr Stone in jeopardy. The judicial review therefore fell within ordinary civil/public law proceedings, and appeal should lie to the Court of Appeal, not to the Supreme Court.
• The court therefore declined to decide the merits and did not determine the substantive appeals, because it held that it lacked jurisdiction to hear them.

The Supreme Court held that it has no jurisdiction to entertain these appeals because the Divisional Court’s decision was not "in a criminal cause or matter" within the meaning of section 41(1) of the Judicature (Northern Ireland) Act 1978. The correct appellate route is to the Court of Appeal in Northern Ireland. The reasoning was that the review challenged the administrative working out of a previously imposed sentence rather than any ongoing criminal process putting the person in jeopardy of trial or punishment.

The Divisional Court of the High Court in Northern Ireland heard the expedited judicial review and upheld Mrs McGuinness's challenge: In re McGuinness’s Application [2019] NIQB 10. The Divisional Court certified a point of law under section 41(2) of the Judicature (Northern Ireland) Act 1978. Permission to appeal to the Supreme Court was granted, but the Attorney General intervened to dispute the Supreme Court's jurisdiction. The Supreme Court determined it lacked jurisdiction and directed that the proper route of appeal is to the Northern Ireland Court of Appeal.