In the matter of an application by James Hugh Allister and others for Judicial Review (Northern Ireland)
[2023] UKSC 5
Morgan and others v Ministry of Justice (Northern Ireland)
19 April 2023
[2023] UKSC 14
Supreme Court
Several people convicted of terrorism had their sentences changed to delay their release. They argued this was unfair, but the Supreme Court said the change only affected *when* they were released, not the length of their original sentences, so it was okay.
Key Facts
- •The respondents were convicted of terrorist offences and sentenced to determinate custodial sentences in Northern Ireland.
- •The Counter-Terrorism and Sentencing Act 2021 (2021 Act) amended the Criminal Justice (Northern Ireland) Order 2008 (2008 Order) to restrict early release for terrorist prisoners.
- •The amendment (article 20A) changed the automatic release on licence at the halfway point to release at the two-thirds point, subject to Parole Commissioners' approval.
- •The respondents argued that the 2021 Act breached Article 7(1) ECHR (prohibition of retroactive application of penalties) and Article 5(1) ECHR (right to liberty and security).
- •The Court of Appeal found a breach of Article 7(1) ECHR.
- •The Ministry of Justice appealed to the Supreme Court.
Legal Principles
Article 7(1) ECHR prohibits retroactive application of heavier penalties.
Article 7(1) ECHR
Article 7(1) ECHR distinguishes between changes to the penalty itself and changes to its execution.
Del Río Prada v Spain, Uttley v United Kingdom
Article 5(1) ECHR guarantees the right to liberty and security, requiring laws authorizing deprivation of liberty to be accessible, precise, and foreseeable.
Article 5(1) ECHR, Del Río Prada v Spain
Outcomes
The Supreme Court allowed the Ministry of Justice's appeal and dismissed the respondents' cross-appeal.
The 2021 Act did not redefine or modify the scope of the penalties imposed (determinate custodial sentences), but rather changed the manner of their execution. The changes were foreseeable and did not breach Article 7(1) ECHR. The changes also complied with Article 5(1) ECHR as the lawfulness of detention was established by the initial sentences.
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