Category: Northern Ireland

Mckeown and Others, Regina v: CANI 12 Nov 2013

Three references by the Director of Public Prosecutions under section 36 of the Criminal Justice Act 1988 in which it is submitted that unduly lenient sentences were imposed on the respondents following convictions for riotous assembly contrary to common law.

Morgan LCJ, Coghlin LJ and Horner J
[2013] NICA 63
Bailii
Northern Ireland

Criminal Sentencing

Updated: 27 November 2021; Ref: scu.521282

Martin Corey, Re for Judicial Review: SC 4 Dec 2013

The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence information. The recall was considered by a panel of commissioners and material was served, the applicant having his own representative and a special advocate who was given access to the closed materials. The panel found that he had held a position of leadership within the Continuity Irish Republican Army. He had complained that the closed material procedure infringed his article 5.4 rights. His challenge succeeded at first instance, and the case was remitted for reconsideration with the grant of bail. The court now heard an appeal considering whether the court had had jurisdiction to release the claimant on bail under its inherent hjurisdiction or otherwise.
Held: The appeal failed. The claimant had not challeged the lawfulness of the detention itself, but rather the procedure. Therefore nor had the decision to release been based un any unlawfulnesss of the detention: ‘what Mr Corey claims is the right to have his valid recall to prison reviewed in a way that is compliant with article 5(4) of the Convention. A power to grant bail ancillary to the declaration that the appellant was entitled to that particular form of relief was not only unnecessary in order to make the grant of relief practical and effective, it was unrelated to it.’

Lord Mance, Lord Kerr, Lord Clarke, Lord Hughes, Lord Toulson
[2013] UKSC 76, [2014] 1 AC 516, [2013] WLR(D) 479, [2014] 1 All ER 863, [2013] 3 WLR 1612, UKSC 2012/0217
Bailii, WLRD, Bailii Summary, SC Summary, SC
Prison Act (Northern Ireland) 1953 23(1), Life Sentences (Northern Ireland) Order 2001, European Convention for the Protection of Human Rights 5.4
England and Wales
Citing:
At First Instance – Corey, Re Judicial Review QBNI 9-Jul-2012
C had been recalled from parole, and complained that the procedure had been unfair in that it had been almost entirely based upon closed materials.
Held: The Commissioners’ decision was indeed based solely or decisively on the closed material. . .
Cited – Ex parte Blyth 1944
The High Court did not have jurisdiction to grant bail post conviction . .
Appeal from – Corey, Re Judicial Review CANI 21-Dec-2012
The claimant had been recalled to prison from parole, and challenged his recall, saying that the procedure, being almost entirely based upon closed material infringed his rights to a fair trial. The respondent now appealed against an order finding . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Turkoglu CA 1987
The applicant had been granted bail by a High Court judge when he was given leave to apply for judicial review of the decision refusing him leave to enter the United Kingdom. His application for judicial review was subsequently dismissed and the . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Weeks v The United Kingdom ECHR 5-Oct-1988
The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. . .
Cited – Stafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Cited – Von Bulow v The United Kingdom ECHR 7-Oct-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings . .
Cited – Wells v The Parole Board and Another; Regina (Walker) v Secretary of State for the Home Department QBD 31-Jul-2007
The prisoners challenged their continued detention. They had been sentenced and had served their tariff terms but had been continued to be detained for public protection, but with no current or effective assessment of what risk was posed.
Cited – Lee and Another, Regina (on the Application of) v Secretary of State for Justice Admn 25-Jul-2008
The defendants appealed sentences imposed as indeterminate for public protection. Moses LJ said: ‘the position of a prisoner whose level of dangerousness cannot be ascertained is the same as one who ceases to be a danger. The original justification . .
Cited – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Cited – James, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .

Cited by:
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Prisons, Human Rights, Litigation Practice

Updated: 26 November 2021; Ref: scu.518639

O’Neill and Others v Tomlinson: QBNI 3 Jul 2013

Appeal from the decision of Deputy County Court Judge Gilpin on 25 March 2013 when he awarded andpound;7,500 in respect of general damages to the plaintiffs arising from an escape of oil from the defendants’ property onto the plaintiffs’ property.

[2013] NIQB 97
Bailii

Northern Ireland, Negligence, Nuisance

Updated: 26 November 2021; Ref: scu.518546

JR65, Re Judicial Review: QBNI 11 Oct 2013

[2013] NIQB 101
Bailii
Northern Ireland
Cited by:
See Also – JR65, Re Judicial Review QBNI 8-Jan-2015
. .
Appeal from – JR65, Re Judicial Review CANI 16-Mar-2016
The appellant challenged the absolute prohibition within the province of the giving of blood by any male who had had sex with another male, saying that the ban was incompatible with European law.
Held: The request for review was refused, but . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland

Updated: 25 November 2021; Ref: scu.517532

In re Brownlee for Judicial Review: SC 29 Jan 2014

The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed fee legal aid scheme. He had succeeded at first instance, but the Court of Appeal had held the Rules to be lawful.
Held: The appeal succeeded. The Rules failed to make allowance for the need for legal representatives to be paid for preparatory work in connection with sentencing had not been allowed for. However, sice the Rules had already been amended, the remedy would be by way of a declaration, rather than mandamus.
The Court of appeal had not allowed for the fact that the change of representation was initiated by the legal representatives and not by the appellant.

Lord Neuberger, President, Lord Kerr, Lord Clarke, Lord Reed, Lord Hodge
[2014] UKSC 4, UKSC 2013/0247, [2014] NI 188
Bailii, Bailii Summary, SC Summary, SC
Legal Aid, Advice and Assistance (Northern Ireland) Order 1981
Northern Ireland
Citing:
Appeal from – Brownlee, Re Judicial Review CANI 23-Oct-2013
The applicant had successfully challenged the Legal Aid rules as they applied to his seeking representation on a sentencing issue in the Crown Court which had led to him being unable to find legal representation because of the inadequacy of the fee . .
At First Instance – Brownlee, Re Judicial Review QBNI 20-Mar-2013
The applicant, a convicted prisoner sought a declaration that the respondent’s decision to make no provision for exceptional circumstances in the payment of fees under the 2011 Amendment Rules is unlawful and a declaration that the said Rules . .
Cited – Regina v Rowbotham and others 1988
Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied . .
Cited – McLean and Another v Buchanan, Procurator Fiscal and Another PC 24-May-2001
(Appeal from High Court of Justiciary (Scotland)) It was not an infringement of a defendant’s right to a fair trial where the costs of defending the case brought against him would be substantial, but where his solicitors would be paid only a small . .
Cited – Cullen v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) HL 10-Jul-2003
The claimant had been arrested. He had been refused access to a solicitor whilst detaiined, but, in breach of statutory duty, he had not been given reasons as to why access was denied. He sought damages for that failure.
Held: If damages were . .
Cited – Regina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .
Cited – P, Regina v Misc 18-Mar-2008
Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .
Cited – Pennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Aid

Updated: 21 November 2021; Ref: scu.521153

Brownlee, Re Judicial Review: CANI 23 Oct 2013

The applicant had successfully challenged the Legal Aid rules as they applied to his seeking representation on a sentencing issue in the Crown Court which had led to him being unable to find legal representation because of the inadequacy of the fee scales offered.
Held: The Department of Justice’s appeal succeeded. The problem was largely of the defendant’s own making. He had had representation through conviction, only sacking his legal team before sentencing. The problem was largely self made by the defendant. However, inadequate remuneration within a legal aid scheme can breach a defendant’s right to a fair trial under article 6 of the European Convention on Human Rights if a defendant consequently finds it impossible to obtain the services of an appropriate lawyer to represent him.

Morgan LCJ, Higgins LJ and Girvan LJ
[2013] NICA 57
Bailii
Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005, European Convention on Human Rights 6
Citing:
Appeal from – Brownlee, Re Judicial Review QBNI 20-Mar-2013
The applicant, a convicted prisoner sought a declaration that the respondent’s decision to make no provision for exceptional circumstances in the payment of fees under the 2011 Amendment Rules is unlawful and a declaration that the said Rules . .

Cited by:
Appeal from – In re Brownlee for Judicial Review SC 29-Jan-2014
The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Legal Aid

Updated: 21 November 2021; Ref: scu.517771

Brownlee, Re Judicial Review: QBNI 20 Mar 2013

The applicant, a convicted prisoner sought a declaration that the respondent’s decision to make no provision for exceptional circumstances in the payment of fees under the 2011 Amendment Rules is unlawful and a declaration that the said Rules operate to constitute a breach of the applicant’s right to a fair trial pursuant to Art 6 of the ECHR. He was awaiting sentence, on a matter which might leave him subject to an indeterminate life sentence, but had no legal representation. The judge at trial had decided that he needed representation at a senior level. The LSC had cofirmed that having switched legal representation, fees would be available only on a fixed fee basis.
Held: The Rules were unlawful: ‘in order to avoid illegality there must be a modest adjustment to the impugned scheme or some other provision to enable the necessary adjustment to meet the exceptional and unusual circumstances which have arisen and to avoid the injustice which will thereby inevitably result if this is not done.’ Treacy J made an order of mandamus requiring the respondent, the Department of Justice to take all necessary steps to make Mr Brownlee’s right to legal aid effective.

Treacy J
[2013] NIQB 36
Bailii
Crown Court Proceedings (Cost) (Amendment) Rules 2011, European Convention on Human Rights 6
Citing:
Cited – P, Regina v Misc 18-Mar-2008
Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .

Cited by:
Appeal from – Brownlee, Re Judicial Review CANI 23-Oct-2013
The applicant had successfully challenged the Legal Aid rules as they applied to his seeking representation on a sentencing issue in the Crown Court which had led to him being unable to find legal representation because of the inadequacy of the fee . .
At First Instance – In re Brownlee for Judicial Review SC 29-Jan-2014
The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Criminal Practice, Legal Aid, Human Rights, Legal Professions

Updated: 20 November 2021; Ref: scu.503527