McCabe, Re Application for Judicial Review [2007] NICA 35 (26 April 2007)

McCabe, Re Application for Judicial Review [2007] NICA 35 (26 April 2007)

The appellant was entitled to have his tariff fixed by an independent and impartial tribunal, and to an Article 5(4) compliant review of his detention after the expiry of the penal element of his sentence. The Board in Northern Ireland was not such a tribunal, and the failure to provide such a review between February 2001 and April 2003 constituted a breach of Article 6(1) and Article 5(4) ECHR. However, the appellant remained a serious risk to the public due to his alcoholism and repeated breaches, justifying his continued detention. The fixing of the tariff in England was binding and not extinguished by the transfer to Northern Ireland.

Citation
[2007] NICA 35
Parties
Applicant/appellant: Thomas McCabe; Respondents: Northern Ireland Prison Service and Secretary of State for Northern Ireland
Jurisdiction
Northern Ireland
Judgment Date
26 April 2007
Procedural Posture
Judicial Review / Appeal From High Court Decision Dismissing Judicial Review Application
Outcome
Appeal allowed in part; declaration of breach of Convention rights granted.
Legal Topics
Life Imprisonment, Tariff Fixing, Article 5 ECHR, Article 6 ECHR, Judicial Review, Legitimate Expectation, Transfer of Prisoners, Risk Assessment, Release on Licence
Criminal Law Human Rights Law Prison Law Administrative Law Life Imprisonment Tariff Fixing Article 5 ECHR Article 6 ECHR +5 more

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Parties

Thomas McCabe

Applicant/appellant

Northern Ireland Prison Service and Secretary of State for Northern Ireland

Respondents

Procedural Posture

Judicial Review / Appeal From High Court Decision Dismissing Judicial Review Application

Legal Issues

  1. 1 Whether the appellant's continued detention after expiry of the penal tariff was lawful under domestic and European law
  2. 2 Whether the appellant was entitled to an Article 5(4) ECHR compliant review of his detention after the tariff expired
  3. 3 Whether the fixing of the tariff in England was binding after transfer to Northern Ireland

Ratio Decidendi

The appellant was entitled to have his tariff fixed by an independent and impartial tribunal, and to an Article 5(4) compliant review of his detention after the expiry of the penal element of his sentence. The Board in Northern Ireland was not such a tribunal, and the failure to provide such a review between February 2001 and April 2003 constituted a breach of Article 6(1) and Article 5(4) ECHR. However, the appellant remained a serious risk to the public due to his alcoholism and repeated breaches, justifying his continued detention. The fixing of the tariff in England was binding and not extinguished by the transfer to Northern Ireland.

Court Disposition

Appeal allowed in part; declaration of breach of Convention rights granted.

Orders

  • Declaration that the appellant was entitled to an Article 5(4) compliant tribunal after expiry of the tariff and that failure to provide such a tribunal was a breach of Article 6(1) and Article 5(4) ECHR.
  • No order for release or damages; continued detention justified by risk to the public.