In the matter of an application for Judicial Review by JR123 (Northern Ireland)

This appeal concerned the compatibility of article 6(1) of the Rehabilitation of Offenders (Northern Ireland) Order 1978 with article 8 of the European Convention on Human Rights. The appellant, convicted of serious offences and subject to a sentence exceeding 30 months, argued that the Order must provide for individualised review so that even the most serious convictions could be treated as spent in appropriate cases.

The Supreme Court held that the rehabilitation scheme in the Order — a category-based, bright-line regime which for the most serious offences provides no route to become spent — falls within the State’s margin of appreciation and does not breach article 8. The court applied and relied on the Strasbourg line of authority exemplified by Animal Defenders and domestic authority in Re P, holding that general measures with convincing justifications may permissibly foreclose case-by-case review where that approach avoids arbitrariness, preserves legal certainty and protects third-party interests.

The court further held that a declaration of incompatibility under section 4 of the Human Rights Act 1998 was not available in respect of the Order (not primary legislation) and that the first‑instance judge should not have issued a free‑standing common‑law declaration of incompatibility in the circumstances. The appellant’s claim for damages under section 8 was dismissed by the courts below and was not disturbed.

Background and parties: The appellant (anonymity order maintained) was convicted in 1980 of arson and related offences and sentenced to a term that placed him in the most serious category under the Rehabilitation of Offenders (Northern Ireland) Order 1978 (the Order). He alleged that article 6(1) of the Order, which excludes certain sentences from ever becoming spent, violated his article 8 rights because it provided no mechanism for individualised review to permit rehabilitation in appropriate cases. The Department defended the categorical scheme. The appellant sought a declaration of incompatibility and damages under the Human Rights Act 1998.

Procedural history: At first instance Colton J found incompatibility and (erroneously, as the Supreme Court explains) made what was described as a common‑law declaration because section 4 declarations under the HRA are available only in respect of primary legislation; he dismissed damages. The Department succeeded on appeal to the Northern Ireland Court of Appeal ([2023] NICA 30; [2024] NI 15), which reversed the incompatibility finding and dismissed the damages cross‑appeal. The appellant appealed to the Supreme Court.

• Nature of the claim: an application for judicial review challenging the compatibility of article 6(1) of the Order with article 8 ECHR and seeking a declaration of incompatibility and damages under the HRA.
• Issues framed by the court: (i) whether article 6(1) of the Order is compatible with article 8; (ii) the proper standard of appellate review where proportionality and general legislative measures are in issue; (iii) the correct approach to the grant of declarations of incompatibility and the availability of a common‑law declaration in the devolutional context; and (iv) whether damages under section 8 were appropriate.
• Court’s reasoning (concise):

The Supreme Court held that the challenge is properly analysed as seeking to impose a positive obligation on the State to provide an individualised review mechanism, rather than as a straightforward negative‑obligation case. Applying the margin of appreciation and the Strasbourg guidance in Animal Defenders and related authority, and domestic authority in Re P, the court concluded that a category‑based rehabilitation regime is a legitimate legislative choice. Considerations weighing in favour of the categorical approach included the need for legal certainty, the protection of third‑party interests (employers/insurers and their property rights), the risk of arbitrariness and inconsistency posed by case‑by‑case reviews many years after conviction, and the public interest in maintaining confidence in the criminal justice and rehabilitation regime. The court also held that the first instance judge erred in granting a common‑law declaration of incompatibility in the circumstances because the Order is not primary legislation and such a formal declaration would serve no practical remedial function here. The damages claim was not disturbed because the incompatibility challenge failed; accordingly it was unnecessary to consider damages further.

This was an appeal against the Court of Appeal’s dismissal of the appellant’s challenge to article 6(1) of the Rehabilitation of Offenders (Northern Ireland) Order 1978. The Supreme Court dismissed the appeal. It held that the category‑based rehabilitation scheme in the Order, which for the most serious offences makes no provision for convictions to become spent, falls within the State’s margin of appreciation and is not incompatible with article 8. The court emphasised the legitimacy of general legislative measures (Animal Defenders, Re P), the importance of legal certainty and avoidance of arbitrariness, and that the Order’s structure properly balances individual and third‑party interests. The court also held that a section 4 HRA declaration was unavailable (the Order is not primary legislation) and that the judge should not have issued a free‑standing common‑law declaration in these circumstances.

First instance: High Court (Colton J) – declaration of incompatibility [2021] NIQB 97 and damages decision [2022] NIQB 42 (damages dismissed). Court of Appeal: allowed the Department’s appeal, dismissed cross‑appeal [2023] NICA 30; [2024] NI 15. Appeal to the Supreme Court: [2025] UKSC 8 (this judgment).