Morgan & Ors v Ministry of Justice (Northern Ireland) [2023] UKSC 14

Terrorist prisoners challenged legislation extending their custodial periods from half to two-thirds of their sentences before eligibility for parole. The Supreme Court held this change related to execution of sentence, not the penalty itself, and therefore did not breach Article 7 or Article 5 ECHR.

Facts

The respondents (Morgan, Marks, Lynch, and Heaney) were convicted of terrorist offences in Northern Ireland and sentenced to determinate custodial sentences by Colton J in November 2020. Under the Criminal Justice (Northern Ireland) Order 2008, they would have been automatically released on licence at the halfway point of their sentences.

Following terrorist attacks in London in 2019 and 2020, Parliament enacted the Counter-Terrorism and Sentencing Act 2021. Section 30 inserted Article 20A into the 2008 Order, which changed the release regime for terrorist prisoners: instead of automatic release at the halfway point, prisoners would only become eligible for release at the two-thirds point, and only if the Parole Commissioners were satisfied it was no longer necessary for public protection that they remain confined.

Issues

The principal issues were:

Article 7 ECHR

Whether the retrospective application of the new release provisions constituted a ‘heavier penalty’ in breach of Article 7(1) ECHR, which prohibits the retroactive application of criminal penalties.

Article 5 ECHR

Whether the legislative changes breached the ‘quality of law’ requirement under Article 5(1) ECHR regarding lawful detention.

Judgment

The Supreme Court unanimously allowed the Ministry of Justice’s appeal and dismissed the respondents’ cross-appeal.

Lord Stephens, delivering the judgment of the court, distinguished between measures constituting a ‘penalty’ and those concerning the ‘execution or enforcement’ of a penalty. He stated:

Both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a penalty and a measure that concerns the execution or enforcement of the penalty. In consequence, where the nature and purpose of a measure relate to the remission of a sentence or a change in a regime for early release, this does not form part of the penalty within the meaning of art.7.

The Court held that the penalties imposed were the determinate custodial sentences themselves. The role of the court in specifying custodial periods under Article 8 of the 2008 Order related to the manner of execution of those sentences, not to the penalty itself:

just because there is judicial involvement in a measure which relates to the execution or enforcement of a penalty does not change the measure to one in which a penalty is fixed. The predominant focus should remain on the activity rather than on the identity of the actor.

Regarding Article 5, the Court held that detention remained lawful throughout the full term of the original sentences. It was foreseeable that arrangements for early release might be changed during a sentence:

it is entirely foreseeable, if necessary with appropriate legal advice, that during the currency of a determinate custodial sentence, which was calculated and imposed without account being taken of the possibility of early release, the arrangements for the manner of execution of the sentence might be changed by policy or legislation.

Implications

This judgment confirms the distinction between the penalty imposed by a court and measures relating to its execution. Legislatures retain broad discretion to modify early release arrangements even retrospectively, provided the underlying sentence remains unchanged. The decision affirms that judicial involvement in release decisions does not transform such decisions into part of the ‘penalty’ for Article 7 purposes. The ruling has significant implications for counter-terrorism policy, permitting governments to respond to emerging security threats by adjusting release regimes for serving prisoners without breaching fundamental Convention rights.

Verdict: The Supreme Court allowed the Ministry of Justice’s appeal and set aside the declaration of incompatibility made by the Court of Appeal. The respondents’ cross-appeal was dismissed. There was no incompatibility between section 30 of the Counter-Terrorism and Sentencing Act 2021, Article 20A of the Criminal Justice (Northern Ireland) Order 2008, and Articles 5 or 7 of the ECHR.

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