25 November 2010

FOURTH SECTION
Application no. 37536/08
by John Hugh BRADY
against the United Kingdom
lodged on 31 July 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Mr John Hugh Brady, is an Irish national who was born in 1969 and lives in Strabane. He is represented before the Court by Mr P. Pierce of Kevin R. Winters and Co, solicitors practising in Belfast.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  The life sentence, release on licence and revocation of the licence
The applicant was sentenced to life imprisonment on 25 July 1991 at Belfast Crown Court, having pleaded guilty to murder on 7 May 1991. Under the law as it then applied, no tariff (that is, fixed period of imprisonment) was set in connection with the sentence of life imprisonment.
In 1999, when the applicant had served approximately eight and a half years in prison, he was released on licence in accordance with section 3 of the Northern Ireland (Sentences) Act 1998 (“the 1998 Act”).
On 7 November 2003 the applicant was arrested with two other persons in a car. Two firearms were found concealed in a lunchbox that was inside a drawstring sports bag found on the back seat of the car. He was subsequently charged with the offence of possession of a firearm with intent to endanger life and returned to custody.
On 10 November 2003, details of the circumstances of his arrest were communicated by letter from the Force Intelligence Bureau of the Police Service of Northern Ireland to the Secretary of State and, on 13 November 2003, his licence was formally suspended by the Secretary of State.
On 1 June 2004 the Director of Public Prosecutions for Northern Ireland decided that, having regard to all facts and information submitted by the police, the test for prosecution was not met in the case. The charges against the applicant and the other persons arrested with him were accordingly withdrawn on 3 June 2004. A formal direction for no prosecution was later issued on 17 June 2004.
On 7 June 2004, following the withdrawal of charges, the applicant applied to the Sentence Review Commissioners for a review of the suspension of his licence. On 2 July 2004 the Secretary of State opposed the application and issued a set of response papers. The response papers included a “certificate of damaging information” issued pursuant to Rule 22(1) of the Northern Ireland (Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998 (“the 1998 Rules”: see below) and a notice of the gist of the information issued pursuant to Rule 22(3) of those Rules.
The “gist” provided to the applicant stated:
“The withheld information relates to intelligence to the effect that you have been and are likely to be concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland. In particular you have had and continue to maintain close links with dissident republican elements and have been involved in serious crime committed by the Real Irish Republican Army and will become involved in acts of terrorism upon release.”
On 5 August 2004 the applicant was informed by letter that a panel of Commissioners, as required by section 9(3) of the 1998 Act, had considered the suspension of his licence. The letter stated: “the Commissioners could not be satisfied that the Applicant had not broken the licence condition specified in section 9(1)(c) and hereby indicate that they are minded to make a substantive determination to the effect that his licence should be revoked.” The letter also stated that the Commissioners did not have sight of the information certified as “damaging” when making the decision.
On 20 August 2004 the applicant challenged this preliminary indication, in accordance with Rule 15(3) of the 1998 Rules. The preliminary indication was therefore set aside in order that the matter could be considered de novo at a substantive hearing.
Given that the Secretary of State had certified that information upon which reliance would be placed was “damaging information”, the Attorney General was invited by the Commissioners on 24 August 2004 to appoint a special advocate to represent the applicant’s interests at any closed session of the substantive hearing. The special advocate accompanied the applicant’s counsel to consultations at HM Prison Maghaberry on three occasions for the purpose of taking instructions (8 March 2005, 23 April 2005 and 18 August 2005).
The hearing before a panel of three Sentence Review Commissioners took place over two full days (commencing on 11 August and continuing on 22 August 2005) at HM Prison Maghaberry before a panel of three Commissioners. The applicant was present, as were his legal representatives, the Secretary of State’s legal representatives, the special advocate and a representative of the Prison Service. The open part of the hearing took the first day and the morning of the second day.
The applicant gave evidence before the Commissioners. He was cross‑examined by counsel for the Secretary of State and he was asked questions in turn by each member of the panel. The Commissioners considered the evidence in private following the conclusion of the open part of the hearing. The parties were then recalled and the chair of the panel stated that the Commissioners could not make their decision based on the information that was already before them and that they would have to consider the damaging information in closed session. The damaging information had not been seen by members of the panel or the special advocate before that point.
The applicant and his legal representatives were excluded from the closed session, which lasted for approximately two hours, from 2.30 pm to 4.30 pm on 22 August 2005. From the moment the closed part of the hearing commenced, the special advocate was not permitted to communicate in any way with the applicant or his legal representatives in relation to the case.
On 5 September 2005 the applicant was charged with attempted murder and possession of an explosive substance, relating to an incident on 29 March 2002, and reported for membership of the Real IRA. It was suggested to the Commissioners by the Secretary of State in a letter of 6 September that they might wish to take this development into account in their deliberations.
The determination of the panel was communicated to the applicant on 5 October 2005. In the covering letter the Commissioners indicated that they had taken no account of the information regarding the charges of 5 September 2005 in reaching their decision and had based their decision solely on the material and evidence that was available to them at the hearing.
The determination was that the applicant’s licence should be revoked. The Commissioners stated that they were not satisfied, on the basis of the evidence presented in the open part of the hearing, that the applicant had breached the conditions of his licence; nor did they think, on the basis of the open evidence, that he was likely, if released, to breach the terms of his licence. The Commissioners did, however, determine that his licence should be revoked on the basis of the evidence heard in closed session:
“[H]aving fully and carefully considered all of the evidence presented in the closed session, the panel took the view that the Applicant has breached the conditions that he does not support a specified organisation, that he does not become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland and that he does not become a danger to the public”.
2.  The judicial review proceedings in the High Court
The determination of the Sentence Review Commissioners that the applicant’s licence should be revoked was challenged in judicial review proceedings heard at the High Court in Belfast on 3 May 2006. The Secretary of State, who had taken the initial decision to suspend the applicant’s licence in November 2003, was also represented as a notice party in the proceedings.
It was submitted on behalf of the applicant that, since the Commissioners had decided to revoke his licence on the basis of “damaging information” that had not been revealed to him or his legal representatives, the procedure infringed his rights under Articles 5 § 4 and 6 of the Convention and failed to meet the standards of procedural fairness required at common law. Although he had been afforded the gist of this information, the gist was couched in such broad terms as to make it impossible for him properly to challenge any allegations that were made against him. Although the applicant had the benefit of consultation with the special advocate, at the time of consultation neither of them knew what evidence was going to be presented against the applicant in closed session and it was therefore impossible for the applicant to give proper instructions in respect of the evidence in question. The special advocate had no opportunity to conduct factual research in respect of the “damaging information” and no power to call witnesses or to commission expert evidence in order to challenge the material presented in closed session.
In addition the applicant submitted that the operation of Rule 22 of the 1998 Rules breached his rights under the Convention and at common law since the Rule appeared to give the Secretary of State exclusive jurisdiction over whether material was properly classified as “damaging information”, and therefore subject to immunity from disclosure, without any provision for representations to be made by the applicant. The special advocate in these proceedings did not have a disclosure function whereby he was obliged to test the cogency of the case put forward by the Secretary of State for non-disclosure of material: the effect of Rule 22 of the 1998 Rules was to confer a virtually unfettered power on the Secretary of State to withhold material from the applicant, subject only to a review procedure whereby a single Commissioner would consider whether the information had properly been classified as “damaging”. Moreover, the special advocate had no defined role with respect to the disclosure of potentially exculpatory material to the applicant. No specific ongoing duty was imposed upon the Secretary of State to refer to the special advocate any material that might become available in the future that would tend to undermine the “damaging information” presented at the closed hearing.
The application was dismissed by Girvan J in a reserved judgment of 30 May 2006 ([2006] NIQB 37). He accepted that Article 5 § 4 applied, since the recall even of someone who had only a conditional right to his freedom under licence amounted to a new deprivation of liberty. However, Girvan J held that the application was essentially a challenge to the underlying unfairness of the Act and the Rules and an attempt to reopen issues that had been established inter alia by the House of Lords in R v Parole Board, ex parte Roberts (see below). In order to succeed, the applicant would have to show that the Commissioners had not properly followed the statutory scheme. The applicant’s case was that the procedures had operated in an unfair manner to his detriment, as his detention was based solely on material that he had not seen. That was, however, a result that might inevitably happen in cases involving “damaging information”. The protection of the “triangulation of interests” identified in the authorities (the public, the prisoner and the source of sensitive information) might compel the Commissioners to a conclusion adverse to the prisoner solely on the “damaging information”.
3.  The setting of the applicant’s tariff for the 1991 murder
Subsequent to the applicant’s release on licence in 1999 the law was amended by the coming into effect of the Life Sentences (Northern Ireland) Order 2001 (“the 2001 Order”), which requires a tariff to be fixed in murder cases and includes provision for the setting of a tariff in cases concluded prior to the Order coming into effect.
In October 2005, following the determination of the Sentence Review Commissioners, the applicant formally requested that the procedures under Article 11 of the 2001 Order be initiated, so that a tariff could be set in respect of the 1991 murder conviction. A tariff hearing subsequently took place before the Lord Chief Justice on 18 October 2006. On 25 October 2006 the Lord Chief Justice imposed a tariff of 15 years, which was formally certified by the Secretary of State on 19 January 2007. The date of expiry of the tariff was 15 April 2005. As a result of the tariff being imposed, the applicant became subject to the life sentence review process under the 2001 Order, as managed by the Life Sentence Review Commissioners (now known as the Parole Commissioners).
4.  The applicant’s appeal in the judicial review proceedings
The applicant appealed to the Court of Appeal against Girvan J’s judgment of 30 May 2006. Prior to the hearing, which was listed for 15 November 2007, the parties were asked by correspondence directed by the Lord Chief Justice to address the following matters by way of skeleton argument and on the morning of the hearing: (i) whether, following the setting of the tariff and that tariff having expired, it fell to the Life Sentence Review Commissioners (under the 2001 Order) rather than the Sentence Review Commissioners (under the 1998 Act) to take decisions on the applicant’s release on licence; (ii) whether any such decision taken by the Life Sentence Review Commissioners would overtake any disposal by the Sentence Review Commissioners; and (iii) whether this rendered the appeal as it was currently framed academic.
Following oral submissions on the above preliminary matters, the Court of Appeal declined to hear argument on the substantive issues arising from the challenge to the dismissal of the application for judicial review by the lower court. It stated that, construed purposively, the 1998 Act and the 2001 Order complemented each other and, in a case such as this, the functions of the Sentence Review Commissioners concerning the release of the applicant effectively transferred to the Life Sentence Review Commissioners: the role of the former was functus officio. The issue at the heart of the appeal was, therefore, academic. It did not consider that a point of law of general public importance was raised by the appeal and did not, therefore, grant leave to appeal to the House of Lords.

The applicant petitioned the House of Lords for leave to appeal but this was refused on 19 May 2008.
4.  Subsequent developments
On 4 February 2008, following a review of the use of low copy DNA evidence, the proceedings against the applicant in connection with the charges of attempted murder and possession of an explosive substance were discontinued, since they relied for a large part on such evidence.
The applicant applied to the Parole Commissioners for release on parole. An open hearing took place on 24 April and 10 November 2008 and a closed hearing was heard on 3 November 2008. The Parole Commissioners declined to direct the applicant’s release.
B.  Relevant domestic law
1.  Statutory provisions
The Northern Ireland (Sentences) Act 1998 established the Sentence Review Commissioners, who are charged with responsibility (i) to consider applications for a declaration that a prisoner is eligible for release under the provisions of the legislation and (ii) to confirm or revoke the suspension of a licence by the Secretary of State. Licences are granted subject to conditions that the person does not support a specified organisation, does not become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland and, in the case of a life sentence prisoner, that the person does not become a danger to the public. On consideration of a case in which a licence has been suspended, the Commissioners shall confirm the licence if they think that the person has not broken and is not likely to break the licence; otherwise, they shall confirm the licence. Schedule 2 to the Act empowers the Secretary of State to make rules to govern the Commissioners’ procedure.
The rules made under the Act are the Northern Ireland (Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998. Rule 7 enables the Commissioners to exclude a person, including the prisoner and his representative, from the hearing and provides that the Attorney General may appoint a person to represent the prisoner’s interests. Rule 9 enables further applications to be made where there has been a change of circumstances or where there is new material, information or evidence not previously before the Commissioners.
Rule 22, which was at the centre of the judicial review proceedings in this case, provides (in full):
“(1) 	This rule applies where the Secretary of State certifies as ‘damaging information’ any information, document or evidence which, in his opinion, would if disclosed to the person concerned or any other person be likely to:
(a) 	adversely affect the health, welfare or safety of the person concerned or any other person;
(b) 	result in the commission of an offence;
(c) 	facilitate an escape from lawful custody or the doing of any act prejudicial to the safe keeping of persons in such custody;
(d) 	impede the prevention or detection of offences or the apprehension or prosecution of suspected offenders;
(e) 	be contrary to the interests of national security; or
(f) 	otherwise cause substantial harm to the public interest;
and any such information, document or evidence is referred to in these Rules as ‘damaging information’.
(2)	The Commissioners shall not in any circumstances disclose to or serve on the person concerned, his representative or any witness appearing for him any damaging information and shall not allow the person concerned, his representative or any witness appearing for him to hear argument or the examination of evidence which relates to any damaging information.
(3) 	Where the Secretary of State has certified information as damaging he shall within seven days of doing so serve on the person concerned and on the Commissioners, whether by way of inclusion with the application or response papers or otherwise, written notice of this stating, so far as he considers it possible to do so without causing damage of the kind referred to in paragraph (1), the gist of the information he has thus withheld and his reasons.”
The Life Sentences (Northern Ireland) Order 2001 created the Life Sentence Review Commissioners and made provision for the determination of tariffs in respect of persons sentenced to imprisonment for life. The Life Sentence Review Commissioners were renamed as the Parole Commissioners in 2008 in order to reflect the broadening of their functions under new public protection sentencing arrangements in the Criminal Justice (Northern Ireland) Order 2008: see Article 49(1) of that Order. The Commissioners have the responsibility to direct the release of a life sentence prisoner following expiration of the tariff where satisfied that it is no longer necessary for the protection of the public from serious harm that the person should be confined. Article 4 and Schedule 2 provide a power to make rules to govern Commissioners’ procedure.
The applicable rules are the Life Sentence Review Commissioners Rules 2001. The Rules provide specifically for the circumstances in which non-disclosure of information by the Secretary of State may be justified (Rule 15) and also for the appointment of a special advocate by the Attorney General (Rule 16).
2.  Case-law
R (Roberts) v Parole Board [2005] UKHL 45 concerned a mandatory life sentence prisoner whose tariff had expired and whose application for release had been refused by the Parole Board. The parties to the case agreed that Article 5 § 4 applied. The House of Lords had to determine whether the Parole Board was able, within the powers granted by the Criminal Justice Act 1991 and compatibly with Article 5 § 4, to withhold information relevant to the appellant’s parole review from his legal representatives and, instead, to disclose that material to a special advocate who would represent the appellant at a closed hearing before the Parole Board. There was no statutory underpinning for the provision of the special advocate procedure.
Their Lordships were divided 3-2 on the issues raised in the appeal. Lord Bingham and Lord Steyn concluded that the procedure would infringe the domestic and Convention law principles of fairness. Lord Bingham doubted whether a decision of the Board adverse to the appellant based on evidence not disclosed even in outline to him or his legal representatives which neither he nor his legal representatives had heard could be held to meet the fundamental duty of procedural fairness required in Article 5 § 4. However, he declined to rule that the adoption of the proposed procedure was necessarily incompatible with Article 5 § 4. Some outcomes might not offend Article 5 § 4, despite the employment of a special advocate. At paragraph 19 of his speech he set out the situations where that might be so. Lord Bingham laid weight on the absence of any parliamentary sanction for the special advocate procedure in the case of the Parole Board. Referring to specific statutory provisions establishing such procedures (including the 1998 Act) Lord Bingham went on to state at paragraph 30 of his speech:
“The examples considered above show plainly that Parliament in practice observes the principle of legality. If it intends that a tribunal shall have power to depart from the ordinary rules of procedural fairness, it legislates to confer such power in clear and express terms and it requires that subordinate legislation regulating such departures should be the subject of parliamentary control. It follows this practice even when the security of the nation is potentially at stake ... It is my opinion contrary to legal principle and good democratic practice to read such a power into a statute which contains no hint whatever that Parliament intended or even contemplated such a departure. Had it done so, as in the other cases considered the departure would have been carefully confined and controlled. It is nothing to the point to argue that if damaging adverse evidence is withheld from a prisoner and his legal representative he is better off with limited help given by a specially appointed advocate than without it unless there is a lawful authority to conduct the hearing while withholding such evidence from the prisoner which in the present context there is not.”
Lord Steyn, agreeing with the views of Lord Bingham, considered that the special advocate procedure struck at the root of the prisoner’s fundamental right to a basically fair procedure. If such departures were to be introduced this must be done by Parliament. He considered that the special advocate procedure emptied the prisoner’s fundamental right to an oral hearing of all meaningful content.
The majority view of Lord Woolf, Lord Rodgers and Lord Carswell was that the Parole Board had express and implied power to give such directions as were needed to ensure that the proceedings before it were conducted fairly in the interests of the prisoner, the public and those who supplied with information to enable it to perform its role. Where there were public interest reasons that satisfied the Board of the need for non-disclosure not only to the prisoner but also his representatives, and the Board considered that the nature of the proceedings and the extent of the non-disclosure did not mean that the prisoner’s right to a fair hearing would necessarily be abrogated, the Board had an implicit or express power to give directions as to the withholding of information and, if it would assist the prisoner, the use of a special advocate. There could be situations where it was possible and other situations where it was not possible for the Board within its powers and compatibly with Article 5 § 4 to withhold material relevant to the review of the prisoner’s legal rights and instead disclose it to a special advocate. Into which category a case fell could only be identified after examining all the circumstances and could not be decided in advance as a matter of principle. The procedure might not be ideal but it might be the only method of balancing the triangulation of interests involved in the small number of cases where a special advocate might be instructed.
Dealing with the question of the compatibility with Article 5 § 4 of the system of withholding sensitive material, with the special advocate procedure mitigating its rigours, Lord Carswell observed as follows:
“143.  The present case is a classic instance of weighing up competing interests. The appellant’s interests in presenting his case effectively with sufficient knowledge of the allegations made against him is clear and strong. The informant has a compelling interest in being protected from dangerous consequences which might ensue if any indication leaked out which would lead to his identification. Thirdly, there is the public interest in ensuring that the Parole Board has all proper material before it to enable it to decide which prisoners were safe to release from prison.
144.  Having balanced these interests, I conclude that the interests which I have outlined of the informant and the public must prevail over those of the appellant, strong though the latter may be. I emphasis, however, that my conclusions relating to the powers of the Parole Board to use the Special Advocate procedure and the compatibility with Article 5 § 4 are a decision in principle, for that was all that was before the House.”
The majority made clear that the special advocate procedure should be used only in rare and exceptional cases and as a course of last resort (see Lord Carswell at paragraph 144). As Lord Woolf pointed out at paragraph 43, the procedure was a derogation from the golden rule of full disclosure and must be the minimum necessary to protect the public interest.
COMPLAINT
The applicant complains under Article 5 § 4 of the Convention about the procedure before the Sentence Review Commissioners, which led to the revocation of his licence. In particular, he complains that the Commissioners’ decision was based on “damaging information” which was not disclosed to him and that the provision to him of the “gist” of the “damaging information” and the Special Advocate procedure were not sufficient to protect his interests.
QUESTIONS TO THE PARTIES
1.  Did the Sentence Review Commissioners have a power to review the Secretary of State’s decision to certify evidence as “damaging information”? If so, what part could the special advocate play in this process?

2.  Did the procedure before the Sentence Review Commissioners comply with the requirements of Article 5 § 4 of the Convention?