Michael Stone’s prison authorities treated the years he had spent on licence as counting towards the 30-year tariff of his life sentence. Deborah McGuinness, the sister of one of his victims, successfully challenged that calculation in the High Court, but the Supreme Court did not decide whether she was right. It held that the judicial review was not a “criminal cause or matter”, so the appeals could not come directly to the Supreme Court and had to go to the Court of Appeal in Northern Ireland.
The disputed tariff calculation
Michael Stone was serving a life sentence and had spent a period on licence under the Northern Ireland early-release scheme.
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After the licence was revoked, the Prison Service calculated the tariff expiry date by including the years he had spent at liberty. The issue was when he could be considered for release, not a decision to release him.
Deborah McGuinness, whose brother was killed at Milltown Cemetery, brought judicial review proceedings against that notification. She argued that the years on licence should not count and that the tariff would instead expire on or about 22 July 2024. The Divisional Court of the High Court in Northern Ireland upheld her challenge. The Department and Mr Stone, who had been joined as an interested party, appealed. Whether the Divisional Court was right about the calculation was not the question decided by the Supreme Court.
The dispute about jurisdiction
Section 41(1) of the Judicature (Northern Ireland) Act 1978 allows an appeal to the Supreme Court from a High Court decision in a “criminal cause or matter”. Leave is required, and the court below must certify that a point of law of general public importance is involved. In other cases, the appeal lies to the Court of Appeal. An appellant there generally needs an arguable case with a real prospect of success, not a point of general public importance.
Mrs McGuinness and the Department had asked the High Court to treat the judicial review as a criminal cause or matter. The Divisional Court had reservations, but heard the case on that footing so that a possible appeal would not be lost. It certified a question, and the Supreme Court granted permission to appeal. The Attorney General for Northern Ireland then intervened. He argued that the proceedings were a civil cause or matter and that the Supreme Court had no jurisdiction.
What the phrase covers
Lord Sales, with whom Lady Hale, Lord Wilson, Lord Carnwath and Lord Lloyd-Jones agreed, said that the appeal route must be reasonably clear. Reading “criminal cause or matter” too widely would leave some potentially wrong first-instance decisions without an ordinary appeal, because many individual complaints do not raise a point of general public importance.
The phrase therefore identifies a relatively narrow category: proceedings focused directly on bringing and determining criminal charges. The label attached to the High Court claim is not decisive. A judicial review takes its character from the underlying proceedings. Following Amand v Home Secretary, the question is whether those proceedings, if carried through, may directly result in the person being tried and possibly punished for an alleged offence by a court claiming jurisdiction to do so. The person must be put in jeopardy of criminal punishment as the direct outcome.
On that test, judicial review of a decision to prosecute or not to prosecute a specific person for a particular offence is a criminal cause or matter, as is a challenge to the trial itself. So is an order made as a direct consequence of the criminal process. The category does not include every case connected with crime. A civil claim for malicious prosecution falls outside it because it does not determine a criminal charge. A later administrative decision may also fall outside it. Justices’ recommendation for deportation after conviction was treated as part of the criminal proceedings, but the Home Secretary’s subsequent decision to deport was not.
Why these proceedings fell outside it
Mr Stone was not facing an outstanding charge on which he might be tried and sentenced. His criminal process had ended before the Department calculated the tariff expiry date. The issue was whether the Department had correctly understood and implemented a sentence already imposed.
Lord Sales added three reasons for keeping the case on the ordinary appeal route. The criminal category is an exception to the general right of appeal to the Court of Appeal, so it should stay closely tied to an underlying criminal process. The Department’s calculation was not equivalent to a judicial criminal proceeding, and the Divisional Court’s decision was the first judicial decision on the point. It was therefore desirable that the losing side should have the usual merits-based appeal. Finally, the same calculation could arise together with a claim for damages for false imprisonment, if Mr Stone could show that a reference on the Divisional Court’s date would have led the Parole Commissioners to release him promptly. Those related claims should not have different appeal routes. Challenges to the administrative calculation of a release date, and to loss of remission after prison disciplinary proceedings, had likewise been treated as concerning the later working out of a sentence rather than its imposition.
Earlier cases concerning decisions to prosecute did not determine the result. A possible future prosecution was too remote. What mattered was a sufficiently direct connection between the decision under challenge and proceedings on a specific criminal charge.
In a related challenge by Mrs McGuinness to the Sentence Review Commissioners’ consideration of early release, the Divisional Court had also decided that the proceedings were not a criminal cause or matter. Lord Sales agreed with that conclusion, because the Commissioners were performing administrative functions in working out a sentence already imposed, although he did not adopt that court’s reasoning.
Verdict: The Supreme Court unanimously held that it lacked jurisdiction over the direct appeals. An appeal from the Divisional Court lay to the Court of Appeal in Northern Ireland. The Supreme Court did not decide whether the years on licence counted towards the tariff.
