McGuinness, Re Application for Judicial Review (No 2) (Northern Ireland) [2020] UKSC 6

Mrs McGuinness challenged the Department of Justice's calculation of Michael Stone's tariff expiry date for parole consideration. The Supreme Court held it lacked jurisdiction as the proceedings were not a 'criminal cause or matter' under the Judicature (Northern Ireland) Act 1978, meaning appeals should go to the Court of Appeal instead.

Facts

Michael Stone was convicted in 1989 of multiple murders, attempted murders, and other offences committed at Milltown Cemetery in 1988, receiving a life sentence with a 30-year tariff. He was released on licence in 2000 under the Northern Ireland (Sentences) Act 1998 following the Belfast Agreement. In 2006, Stone committed further offences at Stormont and was arrested, his licence suspended, and subsequently revoked in 2011.

The Department of Justice calculated Stone’s tariff expiry date as 21 March 2018, counting the period he spent on licence towards his 30-year tariff. Mrs McGuinness, sister of one of Stone’s victims, brought judicial review proceedings challenging this calculation, arguing the licence period should not count towards the tariff.

Issues

Jurisdictional Issue

The primary issue was whether the judicial review proceedings constituted ‘a criminal cause or matter’ within the meaning of section 41(1) of the Judicature (Northern Ireland) Act 1978, which would determine whether appeal lay to the Supreme Court or the Court of Appeal.

Judgment

The Supreme Court unanimously held that the proceedings did not constitute ‘a criminal cause or matter’ and therefore the court had no jurisdiction to hear the appeals. The proper avenue of appeal was to the Court of Appeal in Northern Ireland.

Lord Sales, delivering the judgment, explained the proper interpretation of the phrase:

“The common issue raised by Mrs McGuinness in her claim in the present case and by the Department of Justice and by Mr Stone in their appeals does not relate to the commencement or conduct of any underlying criminal process involving Mr Stone. He is not currently the subject of any outstanding, undetermined criminal charge against him on which he is to be tried and may be subjected to sentence. The present proceedings are concerned with whether the Department of Justice has correctly understood and implemented a criminal sentence imposed on Mr Stone in the past.”

Lord Sales emphasised the guidance from Amand v Home Secretary [1943] AC 147:

“If the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a ‘criminal cause or matter’. The person charged is thus put in jeopardy.”

Distinction Between Criminal Process and Administrative Implementation

The court drew a clear distinction between proceedings related to bringing and determining criminal charges, and proceedings concerning administrative decisions about implementing previously imposed sentences:

“There is a clear distinction between proceedings leading up to the imposition by a court of a sentence in relation to a criminal charge, which fall within the relevant phrase according to the guidance in Amand, and proceedings brought to challenge some non-judicial body, such as a prison governor or a minister, which has to calculate the date of release in relation to such a sentence in the exercise of their administrative functions under public law, which does not.”

Implications

This judgment provides important clarification on the scope of ‘criminal cause or matter’ for appeal purposes. It confirms that:

• The phrase should not be given an over-expansive interpretation that would unduly restrict access to ordinary appeal rights
• Administrative decisions implementing previously imposed sentences do not constitute criminal causes or matters
• The test focuses on whether there is direct jeopardy of criminal trial and punishment arising from the underlying proceedings

The decision ensures that parties challenging administrative decisions about sentence implementation retain full appeal rights to the Court of Appeal, rather than being restricted to the more limited route to the Supreme Court requiring certification of a point of law of general public importance.

Verdict: The Supreme Court held it had no jurisdiction to entertain the appeals. The proceedings did not constitute ‘a criminal cause or matter’ within section 41(1) of the Judicature (Northern Ireland) Act 1978. The Department of Justice and Mr Stone should challenge the Divisional Court’s decision by way of appeal to the Court of Appeal in Northern Ireland.

Source: McGuinness, Re Application for Judicial Review (No 2) (Northern Ireland) [2020] UKSC 6