4.  On 16 September 1982 the applicant was sentenced to life imprisonment for murder. The life sentence was mandatory.
5.  On 26 April 1996 the applicant was released on licence by virtue of section 23 of the Prison Act (Northern Ireland) 1953.
6.  On 7 March 1997 the applicant’s licence was revoked by order of the Secretary of State following his arrest for alleged sexual offences, which included acts of indecent assault and gross indecency with two of his nieces, who were aged nine and thirteen at the time.
7.  The applicant was subsequently charged with the offences but the charges were withdrawn by the Director of Public Prosecutions on 13 January 1998 because it was not considered to be in his nieces’ best interests to give evidence.
8.  After considering representations made on behalf of the applicant, the Secretary of State decided that his life licence should not be reinstated and that his case should be considered by the Life Sentence Review Board. The role of the Board, which consisted largely of senior officials from the Northern Ireland Office, was to advise the Secretary of State on when he should release on licence under section 23 of the 1953 Act prisoners serving terms of imprisonment for life. In considering these cases the Board took into account the nature of the prisoner’s offence, his age and background, his response in prison, and all other relevant factors, including the comments made by the trial judge when passing sentence.
9.  The applicant’s case was reviewed by the Board on 12 November 1998, 3 November 1999, 7 December 1999, 26 April 2000 and 30 October 2000. On each occasion the Board declined to direct his release as it believed that he had committed the conduct alleged against him and that there was a risk he would commit further acts of a similar nature if released.
10.  The applicant sought permission to apply for judicial review of the Board’s decisions of 7 December 1999 and 30 October 2000 on the grounds, inter alia, that the decisions were contrary to Articles 5 § 4 and 6 of the Convention because the proceedings before the Board had not been “fair” and its function was “administrative rather than quasi-judicial”.
11.  Permission was granted but the application was dismissed on 29 June 2001. Insofar as the applicant had sought to rely on Article 5 § 4 of the Convention, the court, having regard to Wynne v. the United Kingdom, 18 July 1994, Series A no. 294‑A, found that at the relevant time it did not apply to a mandatory life sentence in Northern Ireland.
12.  The applicant did not seek permission to appeal to the Court of Appeal.
13.  Following a review in anticipation of the coming into force, in October 2000, of the Human Rights Act 1998, the Life Sentence Review Commissioners (“the LSRC”) replaced the Life Sentence Review Board. Unlike the Board, the LSRC was independent of the Executive and could give legally binding decisions in relation to the release of prisoners.
14.  On 29 November 2001 the applicant’s case was referred to a panel of the LSRC. The panel’s role was first, to establish whether, at the date of recall, there had been a significant risk of the applicant committing serious harm; and secondly, to consider whether the risk currently posed by the applicant was capable of being managed safely in the community, and, if not, whether there were steps that might be taken with a view to reducing the current risk to a level that could, in the future, be safely managed in the community.
15.  An initial hearing took place on 17 June 2002. At the hearing the applicant’s solicitor indicated that he had no more factual evidence to adduce concerning the allegations of sexual abuse and asked the panel to conduct a paper review of the credibility of those allegations. The panel agreed and, based on the written material, concluded that on the balance of probabilities the applicant had committed the alleged sexual assaults. It therefore set that issue aside and the remainder of the hearing only addressed the question of risk at that point in time.
16.  In the course of the hearing the applicant dismissed his solicitor. The hearing was then adjourned as the applicant had no legal representative. He instructed new solicitors in late September 2002 but they only obtained a legal aid certificate in April 2003, despite the Chairman of the panel intervening to expedite the process.
17.  The panel requested submission of evidence and representations by 31 July 2003. An extension was granted at the applicant’s request and the representations were filed on 17 September 2003. In those representations, the applicant submitted, inter alia, that in a recall case the panel was required to conduct a merits review of the recall decision. He therefore argued that the decision arrived at on paper on 17 June 2002 – that on the balance of probabilities he had committed the alleged sexual assaults – had been unlawfully and unfairly arrived at and the question should be revisited by a fresh panel.
18.  At a hearing on 9 January 2004 the Chairman indicated that he would allow the applicant to reopen the issue of whether or not he had committed the alleged assaults. As a consequence, the panel members recused themselves on 12 January 2004 and a new panel, chaired by Mr Peter Smith QC, was appointed (“the Smith panel”).
19.  A preliminary hearing date was fixed for 16 March 2004. At the hearing the Secretary of State indicated that he would not be calling the two complainants as witnesses, although he did intend to tender the transcripts of video-recorded interviews with them. The applicant’s representatives asked the Chairman to direct the Secretary of State to call them as witnesses. The Chairman refused this application but made it clear that the applicant could subpoena the complainants and cross-examine them as though they were witnesses for the Secretary of State. He assured the applicant that no adverse inferences would follow if he did not summons the witnesses.
20.  The substantive hearing was fixed for 18 and 19 May 2004. On 12 May 2004 the Prison Service on behalf of the Secretary of State submitted twenty-one witness statements taken by police during the course of the original investigation and sought leave to call one of the complainants as a witness. On 14 May 2004 the Smith panel issued a direction permitting the supplementary material to be appended to the hearing materials and granting the Secretary of State permission to call the complainant.
21.  On 17 May 2004 the applicant’s solicitors wrote to the Smith panel to complain about the late submission of the witness statements and the decision to permit the complainant to be called as a witness.
22.  As a consequence, a further preliminary hearing was held on the morning of 18 May 2004 instead of the substantive hearing originally planned. At the hearing the applicant was told that the complainant would not be attending and it was decided that the Secretary of State should seek to encourage her to attend voluntarily. In the meantime the hearing was adjourned.
23.  On 23 August 2004 the applicant wrote directly to the Smith panel to complain about the delays in his case.
24.  On 21 September 2004 the Smith panel replied to the applicant’s letter, indicating that the Secretary of State was still trying to secure the complainant’s attendance.
25.  On 8 October 2004 the Secretary of State was “forced to conclude that despite our best efforts [the complainant] is reluctant to give evidence voluntarily to the [panel]”.
26.  On 4 November 2004 the Smith panel indicated that it would not direct the Secretary of State to issue a witness summons to secure the complainant’s attendance.
27.  The hearing began on 21 March 2005. Evidence was heard over 21 and 22 March, 23, 24 and 31 May and 1 June 2005, including video recordings of social services’ interviews with the applicant’s nieces. In addition, both parties submitted written representations. In his representations the applicant argued that the evidence of sexual abuse should not have been admitted as he had been unable to cross-examine the complainants.
28.  Having considered the evidence the Smith panel concluded that the Secretary of State had proved on the balance of probabilities that the applicant had committed the alleged sexual assaults against children and that it was not safe to release him on licence at that point.
29.  The Smith panel dealt with the applicant’s submissions on the unfairness of the proceedings by noting that:
“... [counsel for the applicant’s] approach to the issue of [the complainant] being subpoenaed was a perfectly legitimate tactical manoeuvre by which he sought, on the one hand, to characterise the failure to subpoena [the complainant] as unfair, while on the other hand, he sought to avoid being instrumental in securing her attendance at the hearing and giving evidence with the consequent danger of the case against [the applicant] being strengthened. The panel remains of the opinion... that it would have been unreasonable to have directed [the complainant] to be subpoenaed.”
30.  On 3 November 2005 the applicant applied for permission to seek judicial review of the Smith panel’s decision of 3 August 2005 not to direct his release from prison. He contended first, that the procedure before the LSRC had been unfair and in breach of Articles 5 § 4 and 6 of the Convention, as the Smith panel had based a finding against him on the statements of witnesses who had not been available to be challenged by cross-examination. Secondly, he submitted that the Smith panel had misdirected itself on the applicable standard of proof. Thirdly, he argued that there had not been a sufficient “causal connection” between the deprivation of his liberty following his recall and the crime for which he was originally convicted. Finally, the applicant submitted that there had been undue delay by the LSRC in progressing the hearing of the referral and there had accordingly been a breach of Article 5 § 4 of the Convention.
31.  Permission for judicial review was granted on 9 November 2005. On 23 May 2006 the High Court dismissed the application. With regard to the question of causal connection, it found that the offences of murder and serious sexual assault were both crimes of violence and the applicant had been recalled to prison on the ground that his actions pointed to an actual or potential threat of harm to members of the public. In relation to the issue of procedural fairness, the court found that no unfairness was caused to the applicant by the decision not to call his nieces as witnesses as he had had the option of subpoenaing them himself. Moreover, the court accepted that the panel had applied the correct standard of proof. Finally, in respect of the question of delay, the court found that the Smith panel had not been in breach of its Article 5 § 4 obligations as the applicant’s side “was very largely responsible for the long periods in progressing the matter to the point of a hearing”. Even if the Smith panel had been responsible, the applicant’s detention had not been shown to be unlawful and he had not, therefore, suffered any loss of liberty in consequence of any breach of Article 5 § 4.
32.  On 4 July 2006 the applicant filed a notice of appeal against the judgment of the High Court in which he argued that the Smith panel had misdirected itself as to the standard of proof required to establish the allegations against him; that the procedure before the Smith panel had been unfair and in breach of Articles 5 § 4 and 6 of the Convention, most notably because the applicant’s nieces should have been required to give evidence; and finally, that there had not been a “speedy determination” of the lawfulness of his detention. The appeal was heard on 23 April 2007.
33.  On 6 September 2007 the Court of Appeal delivered its judgment. The court dealt summarily with the issue of delay. Although it noted that the Smith panel was “beset with a number of problems, not the least of which was the obtaining of legal aid for the appellant”, having examined the chronology furnished by the LSRC it was satisfied that it had acted “with appropriate dispatch”.
34.  On the question of fairness the court observed that the applicant had suffered no disadvantage on account of the decision not to subpoena his nieces. He had had the opportunity to summons them as witnesses and cross‑examine them as though they were the Secretary of State’s witnesses. In any case, the court found it inconceivable that evidence of this nature should have been ignored when the safety of the public was at stake. It therefore concluded that there had been no unfairness to the applicant.
35.  However, the Court held that in determining the standard of proof the Smith panel had misdirected itself. The court accordingly quashed the Smith panel’s decision of 3 August 2005 and directed that a fresh decision be taken by a differently constituted panel.
36.  The applicant’s counsel subsequently filed a further written submission with the Court of Appeal, in which he sought a declaration that the applicant’s detention since 2 October 2000 had been in breach of Article 5 § 1 of the Convention. He also sought damages in respect of that violation and an order for bail.
37.  On 5 December 2007, after hearing oral submissions, the court decided not to consider the applicant’s submissions on Article 5 § 1. It noted that this issue had not been raised in the course of the appeal proceedings and, although it had been included in the initial Order 53 statement (a statement lodged with the judicial review application setting out the name and description of the applicant, the relief sought and the grounds on which it was sought), it had not been directly in issue before the High Court and the judge had therefore made no findings on it.
38.  The LSRC was granted permission to appeal to the House of Lords on the issue of the standard of proof. The applicant cross-appealed on several grounds: that the procedure adopted before the Smith panel had been unfair; that he had been detained unlawfully in breach of Article 5 § 1 of the Convention; and that the delay had caused a breach of Article 5 § 4.
39.  Before the decision of the Court of Appeal the Secretary of State had made a second referral of the applicant’s case to the LSRC as two years had passed since the decision of 3 August 2005. A second panel had been convened to conduct the referral (“the Garrett panel”). However, following the decision of the Court of Appeal this review could no longer take place. Instead, the initial referral to the LSRC, which took place on 29 November 2001, was revived and a third panel was convened to consider afresh the applicant’s recall (“the first Rodgers panel”).
40.  The first Rodgers panel first convened for a hearing on 4 January 2008. It had to consider the same two main issues as the Smith panel: whether there had been a significant risk of the applicant committing serious harm at the date of recall; and whether the risk presently posed by the applicant was capable of being safely managed in the community.
41.  At a hearing on 4 January 2008 the Governor of the Life Management Unit and a senior psychologist at HMP Maghaberry gave evidence to the Rodgers panel on the question of present risk. Following the hearing the applicant’s solicitors wrote to the Northern Ireland Prison Service, asserting that on the basis of the evidence of these two witnesses the risk posed by the applicant could be managed safely in the community. They therefore asked the first Rodgers panel to conclude that there was no significant risk and argued that any further delay in the determination of the case would be in breach of Article 5 § 4 of the Convention.
42.  At a further hearing on 12 March 2008 several witnesses indicated that they no longer believed the applicant would pose a significant risk to the public. Counsel for the applicant therefore contended that a licence should be issued immediately without waiting for a determination of the outstanding factual issue, namely whether or not the applicant had committed the alleged sexual assaults.
43.  However, on 20 March 2008 the first Rodgers panel indicated that it was required to hear all the evidence before taking a decision.
44.  On 1 May 2008 the applicant issued a claim for judicial review challenging this decision of 20 March 2008 by the first Rodger’s panel. He sought an order of mandamus requiring it to come to a decision on the question of his licence; a declaration that his detention since 12 March 2008 had been in breach of Article 5 § 1 of the Convention; and a declaration that the handling of the referral by the Rodgers panel on 12 March 2008 was unlawful and in breach of Article 5 § 4 of the Convention.
45.  At an oral hearing on 9 May 2008 the High Court refused permission to apply for judicial review on the ground that the applicant had not demonstrated an arguable case. In particular, it found the application to be premature, as the first Rodgers panel had not been afforded the opportunity to hear all the relevant evidence in the matter and it would be “incomprehensible” for it to complete its statutory task without doing so. With regard to the issue of delay, the court noted that, while circumstances had prevented the case from proceeding with the expedition which normally attends upon such cases, the evidence as a whole demonstrated that the delays had been necessary and purposeful.
46.  The applicant filed a notice of appeal against this decision.
47.  In the interim further hearings before the first Rodgers panel took place on 21 and 27 May 2008.
48.  On 11 June 2008 the House of Lords allowed the LSRC’s appeal, finding that the Smith panel had not failed to adopt and apply the correct standard of proof, and restored its decision of 3 August 2005. At the same time the House of Lords dismissed the applicant’s cross-appeal (see paragraph 38 above).
49.  Their Lordships considered that the procedure adopted in respect of the subpoenaing of the complainant had not been unfair because it had not disadvantaged the applicant. Likewise, they agreed with the High Court that there had been a sufficient causal connection between the deprivation of the applicant’s liberty and his original conviction. Their Lordships therefore found that there had been no breach of Article 5 § 1 of the Convention.
50.  In respect of the Article 5 § 4 issue, although their Lordships expressed some “disquiet” at the “extraordinarily long period which elapsed between recall and final decision”, they found “no single gap in the chronology which points to avoidable delay on the part of the Commissioners”. They therefore considered that from 29 November 2001 – when the matter was first referred to the LSRC – until 3 August 2005 – the date of the Smith panel’s decision – the LSRC had taken reasonable steps to proceed to a hearing and that any delays had been mostly out of its control. In particular, Lord Carswell stated that
“[32]  It is necessary to bear in mind, first, that the remedy is being sought by the Respondent against the Commissioners, not against the Secretary of State, and that what has to be considered is whether the Commissioners failed to act with proper expedition, not whether the system required overhaul so as to speed up the process in some way. For this reason one must leave out of consideration the period up to November 2001 – over half of the overall lapse of time – when the matter was referred to the Commissioners for consideration. One may observe, however, that a good deal of activity took place between March 1997 and November 2001, involving two determinations by the Life Sentences Review Board and an application for judicial review.
...
[35].  I am of the view, on consideration of the foregoing summary [of events between November 2001 and August 2005], that the Commissioners took reasonable steps to proceed to a hearing, and that the delays were mostly outside their control. Some of them were attributable to the respondent’s change of legal representation and to requests from his solicitors to extend time over various steps. Some delays were unavoidable, bearing in mind that the panel consisted of part-time members and dates had to be found when they could all attend and the witnesses were available. I conclude accordingly that the Commissioners did not delay unduly at any stage, notwithstanding the very long time that the proceedings took to reach a determination. I therefore would not favour making any declaration of breach of article 5(4) of the Convention.”
51.  Following the judgment of the House of Lords, the decision of the Smith panel of 3 August 2005 was reinstated and the first Rodgers panel became functus officio. A new panel was appointed; however, in light of the previous involvement of the members of the first Rodgers panel in the applicant’s case those members were appointed to the new panel (the second Rodgers panel). It was not necessary for the second Rodgers panel to re‑determine the lawfulness of the applicant’s recall in 1997 as this issue had already been determined by the Smith panel. The sole issue was therefore that of current risk.
52.  A hearing was listed for 7 October 2008. Following the hearing of updated evidence, the second Rodgers panel directed that the applicant be released on licence subject to conditions.
53.  In the meantime, the Court of Appeal had allowed the applicant’s appeal against the High Court’s refusal to grant permission to apply for judicial review of the first Rodgers panel’s decision of 20 March 2008 (see paragraph 46 above). The judicial review application was remitted to the High Court.
54.  On 23 January 2009 the High Court refused the applicant’s application for judicial review. Insofar as the applicant had relied on Article 5 § 1 of the Convention, the court found that the first Rodgers panel had been entitled to refuse to reach a conclusion on risk until they had heard the further evidence as to the basis of the recall. There had therefore remained a causal connection between the original conviction and the risk of harm to the community which justified the detention of the applicant in March 2008. In respect of his Article 5 § 4 arguments, the court found that there had been no absence of consideration or periodic review of the applicant’s detention.
55.  On 14 June 2011 the Court of Appeal dismissed the applicant’s appeal against this decision. On the Article 5 § 4 issue – namely, whether the evidence of risk before the first Rodgers panel in March 2008 must inevitably have led it to the conclusion that the applicant’s detention was no longer necessary for the protection of the public –, the court noted that the evidence of the witnesses with regard to the risk the applicant posed had not been uniform and the panel had therefore been entitled to reach the decision that it did. Consequently the applicant’s continued detention between March and October 2008 had not been arbitrary and was rationally connected to the reason for his recall and sentence.
56.  On the advice of counsel given on 20 June 2011 the applicant did not pursue an appeal to the Supreme Court.