Morgan and others v Ministry of Justice (Northern Ireland) [2023] UKSC 14

The Supreme Court held that legislation delaying and conditioning the early release of prisoners already serving determinate sentences for terrorist offences in Northern Ireland did not breach article 7 of the European Convention on Human Rights. The changes concerned the execution of the sentences imposed by the trial judge, rather than redefining or increasing those penalties. The prisoners’ detention also satisfied the requirements of article 5.

The sentences and the new release rules

Four men in Northern Ireland received determinate sentences for terrorist offences in November 2020. The sentencing judge first fixed the total term for each offence by reference to its seriousness. He then specified how much would ordinarily be served in custody before release on licence. Under the rules then in force, each man was due to be released automatically at the halfway point.

Section 30 of the Counter-Terrorism and Sentencing Act 2021 came into force on 30 April 2021 and inserted article 20A into the 2008 Order. For terrorist prisoners serving sentences for specified offences who had not already been released, release on licence was no longer automatic at the halfway point. They had to serve two-thirds of the sentence, and the Parole Commissioners could direct release only if satisfied that confinement was no longer necessary for the protection of the public. The provision applied to sentences imposed before as well as after commencement. It therefore postponed each respondent’s earliest release date and made release conditional, although the end dates of the determinate sentences were unchanged. The change followed terrorist attacks in London and a similar restriction already enacted for England and Wales and Scotland; there was no challenge to the policy reasons or to their application in Northern Ireland.

The decisions below

On appeal against sentence, the respondents argued that article 20A retroactively redefined or modified the penalties imposed on them, contrary to article 7(1) of the Convention, and that the change was not sufficiently foreseeable to meet the quality-of-law requirement in article 5(1). The Ministry of Justice was joined. The Court of Appeal, in a judgment of Maguire LJ with which Treacy LJ and Horner J agreed, held that article 7(1) had been breached both by the increase in the custodial period and by the new role of the Parole Commissioners. It made a declaration of incompatibility under section 4 of the Human Rights Act 1998, which did not affect the validity or continued operation of the legislation, and left the article 5 question undecided. The Supreme Court gave the Ministry permission to appeal and the respondents permission to cross-appeal confined to article 5.

Penalty and execution of the penalty

Lord Stephens, with whom Lord Reed, Lord Sales, Lord Hamblen and Lord Burrows agreed, treated the central question as whether the legislation redefined the penalty or merely changed its execution. Article 7(1) can cover measures taken after sentence, but established domestic and Strasbourg case law distinguishes a penalty from measures concerning its execution or enforcement, such as changes to parole or early-release regimes. Measures of the latter kind fall outside article 7, and the foreseeability requirement in that article does not apply to them.

The only penalties imposed by Colton J were the determinate custodial sentences under article 7. Specifying the custodial period under article 8 was a separate task within the statutory regime for release on licence before the full term, and therefore concerned execution. The fact that a Northern Ireland court, unlike a court in England and Wales dealing with a sentence of 12 months or more, participates in fixing that period did not turn the release arrangements into part of the penalty. The Convention concept looks to the nature of the measure rather than the identity of the decision-maker. The Court of Appeal was wrong to treat judicial involvement, or any reduction in the trial judge’s role, as decisive.

Article 20A did not increase the length of the determinate sentences. Its purpose was public protection: terrorist prisoners would remain confined for longer under the existing sentences and would be released early only after a risk assessment by the Parole Commissioners close to the potential release date. Although the minimum period before eligibility rose from one half to two-thirds, severity is not itself decisive, and a measure whose nature and purpose are to regulate early release is not a heavier penalty. The legislation therefore concerned exclusively the execution of the sentences and was compatible with article 7(1).

Article 5

Article 5(1) requires deprivation of liberty to be lawful and the authorising law to be sufficiently accessible, precise and foreseeable. That quality-of-law requirement can apply to execution measures that affect detention, even where article 7 does not. The Court held that it was satisfied. The determinate sentences, calculated without taking early release into account, authorised detention for their full terms. An expectation of release at the halfway point did not remove that authority. It was also foreseeable, if necessary with legal advice, that arrangements for executing such a sentence might later be changed by policy or legislation, including where compelling reasons of public protection required the balance between community and individual interests to be adjusted.

Verdict: The Supreme Court allowed the Ministry of Justice’s appeal, set aside the Court of Appeal’s declaration of incompatibility, and dismissed the respondents’ cross-appeal. Section 30 of the 2021 Act and article 20A of the 2008 Order were compatible with both article 7(1) and article 5 of the Convention.

Source: Morgan and others v Ministry of Justice (Northern Ireland) [2023] UKSC 14