Morgan and others v Ministry of Justice (Northern Ireland)

The Supreme Court held that section 30 of the Counter-Terrorism and Sentencing Act 2021 (which inserted article 20A into the Criminal Justice (Northern Ireland) Order 2008) did not contravene article 7(1) of the ECHR. The court treated the measures as regulating the manner of execution or enforcement of already-imposed determinate custodial sentences (by altering eligibility for early release and making release subject to parole approval) rather than as a redefinition or increase of the penalty imposed by the sentencing judge.

The court also considered article 5(1) ECHR and concluded that the changed release regime met the qualitative requirements of lawfulness (accessibility, precision and foreseeability) applicable to detention. The Court therefore allowed the appellant's appeal against the Court of Appeal's declaration of incompatibility and set that declaration aside.

Background and procedure:

• The respondents were convicted of terrorist offences and sentenced by Colton J on 13 November 2020 to determinate custodial sentences. In specifying custodial periods under article 8 of the Criminal Justice (Northern Ireland) Order 2008 the judge did not extend licence periods, so each respondent expected automatic release on licence at the halfway point of their sentences.
• Section 30 of the Counter-Terrorism and Sentencing Act 2021 (commencing 30 April 2021) inserted article 20A into the 2008 Order, requiring that specified "terrorist prisoners" serve the relevant part of their sentence (for determinate sentences two-thirds) and have their cases referred to the Parole Commissioners, who must be satisfied that release is no longer necessary for public protection before directing release.
• The respondents appealed their sentences to the Northern Ireland Court of Appeal which found a breach of article 7(1) ECHR and made a declaration of incompatibility under section 4 of the Human Rights Act 1998 ([2021] NICA 67). The Ministry of Justice appealed to the Supreme Court; the respondents cross‑appealed limited to an article 5 ground.

Issues framed:

1. Whether the enactment of section 30 (article 20A) retroactively redefined or modified the scope of the penalty imposed by the sentencing judge so as to breach article 7(1) ECHR.
2. Whether the change to the release regime complied with the quality of law requirements in article 5(1) ECHR (accessibility, precision and foreseeability) in respect of lawful detention.

Court’s reasoning and subsidiary findings:

• The court distinguished between the penalty (the determinate custodial sentence imposed under article 7) and the manner of execution or enforcement of that sentence (matters under article 8 and article 17 concerning custodial and licence periods). It held that Colton J had imposed determinate custodial sentences and that his subsequent setting of custodial periods under article 8 formed part of the execution regime, not the imposition of the substantive penalty.
• Although Northern Ireland sentencing procedure involves judicial specification of custodial periods, the Supreme Court rejected the Court of Appeal's emphasis that judicial involvement converted the specification into an element of the substantive penalty. The proper focus is the nature and purpose of the measure; article 20A altered the execution of sentences by restricting eligibility for early release and transferring proximate risk assessment to the Parole Commissioners.
• The changes therefore fell outside article 7(1)'s prohibition on retroactive imposition of a heavier penalty. Because article 20A related to execution of a sentence it did not attract article 7’s qualitative foreseeability requirement.
• Turning to article 5(1), the court held that detention under the determinate sentences together with the new execution regime satisfied the quality of law requirements: the detention had a domestic legal basis, the changes were foreseeable (particularly given past legislative changes and the legitimate public-protection purposes), and the statutory scheme provided sufficiently clear conditions for detention under the revised release regime.
• The Court noted ancillary factual matters such as inaccurate administrative amendments to committal warrants but held those points did not alter the legal analysis: the sentences themselves had not been increased.

Disposition: The appeal by the Ministry of Justice was allowed; the Court of Appeal’s declaration of incompatibility was set aside and the respondents' cross-appeal (confined to article 5) was dismissed.

Appeal allowed. The Supreme Court held that section 30 of the Counter-Terrorism and Sentencing Act 2021 (inserting article 20A into the Criminal Justice (Northern Ireland) Order 2008) effected changes to the manner of execution of determinate custodial sentences rather than a redefinition or increase of the penalties imposed by the sentencing judge; consequently there was no breach of article 7(1) ECHR. The court also held that the revised release regime met the quality of law requirements under article 5(1) ECHR, so no article 5 breach arose. The Court of Appeal’s declaration of incompatibility was set aside and the respondents’ cross-appeal on article 5 was dismissed.

Sentenced by Colton J in Belfast Crown Court on 13 November 2020. Court of Appeal (Northern Ireland) allowed challenges on article 7 and made a declaration of incompatibility: [2021] NICA 67. Ministry of Justice appealed to the Supreme Court: [2023] UKSC 14 (appeal allowed; declaration set aside).