Morgan and others v Ministry of Justice (Northern Ireland)

Changes to an early-release regime do not engage the prohibition on retrospective penalties in article 7(1) of the ECHR where they concern only the execution or enforcement of an existing sentence. Judicial participation in fixing an anticipated release date does not convert that arrangement into part of the penalty. The court must examine the nature of the function performed, rather than the identity of the decision-maker.

Although such an execution measure falls outside article 7’s foreseeability requirement, detention under the changed regime remains subject to article 5(1). A determinate sentence authorises detention throughout its term. It is sufficiently foreseeable that legislation may alter early-release arrangements during that term, particularly where the sentence was fixed without reference to early release.

The respondents received determinate custodial sentences for terrorist offences under the Criminal Justice (Northern Ireland) Order 2008. The sentencing judge specified custodial periods of one half of each sentence, after which release on licence would have been automatic.

Section 30 of the Counter-Terrorism and Sentencing Act 2021 subsequently inserted article 20A into the 2008 Order. It prevented release before two-thirds of the sentence and thereafter required the Parole Commissioners to be satisfied that continued confinement was no longer necessary for public protection.

The Court of Appeal, in [2021] NICA 67, held that the legislation retrospectively modified the penalties contrary to article 7(1) of the ECHR and made a declaration of incompatibility. The Ministry of Justice appealed. The respondents cross-appealed on article 5(1). The central issues were whether the amendments altered the penalties or merely their execution, and whether the resulting detention satisfied the quality-of-law requirement.

1. Appeal allowed unanimously; cross-appeal dismissed. Lord Stephens, with whom Lord Reed, Lord Sales, Lord Hamblen and Lord Burrows agreed, held that section 30 of the Counter-Terrorism and Sentencing Act 2021 and article 20A of the Criminal Justice (Northern Ireland) Order 2008 were compatible with articles 7(1) and 5(1) of the ECHR. The declaration of incompatibility was set aside.

2. Article 7 distinguishes a penalty from measures concerning its execution or enforcement. A retrospective change to an early-release regime falls outside article 7 where it does not redefine or modify the scope of the sentence imposed. Relevant considerations include the measure’s nature and purpose, its domestic characterisation, the procedures for its adoption and implementation, and its severity. Severity alone is not decisive.

3. The penalties were the determinate custodial sentences imposed under article 7 of the 2008 Order. Their lengths were fixed by reference to the seriousness of the offences and without regard to early-release provisions. Specifying custodial periods under article 8 was a separate function concerning the manner in which those sentences would be executed. The court’s participation in that function did not make the resulting release arrangements part of the penalties. The proper focus was the activity performed, rather than the identity of the actor.

4. Article 20A changed only the execution of the existing sentences. Its nature and purpose were to restrict eligibility for early release in order to protect the public. It neither extended the determinate sentences nor altered their end dates. Moving the earliest possible release point from one half to two-thirds and requiring approval from the Parole Commissioners therefore imposed no heavier penalty for article 7 purposes. As an execution measure, it was also outside article 7’s foreseeability requirement.

5. Article 5 nevertheless applied because execution measures may affect detention. The respondents’ sentences provided lawful authority for detention throughout their full terms. Their expectations of automatic release at the halfway point did not alter that authority. It was reasonably foreseeable, with appropriate advice if necessary, that early-release arrangements might be changed during a sentence imposed without allowance for early release. The amended regime was accessible, precise and sufficiently foreseeable to avoid arbitrariness.

1. United Kingdom Supreme Court: The Ministry of Justice’s appeal was allowed unanimously, the declaration of incompatibility was set aside, and the respondents’ article 5 cross-appeal was dismissed: [2023] UKSC 14.
2. Court of Appeal in Northern Ireland: The court held that section 30 of the Counter-Terrorism and Sentencing Act 2021 retrospectively redefined or modified the penalties, contrary to article 7(1), and made a declaration of incompatibility: [2021] NICA 67. It did not determine the article 5 issue.
3. Belfast Crown Court: Colton J imposed determinate custodial sentences and specified custodial periods equal to one half of each sentence. The neutral citation is not stated in the judgment.