The High Court of Northern Ireland has refused judicial review of a claimant who was charged under terrorism legislation in 2020.
The court found that the applicant’s attempts to invoke the Royal Prerogative of Mercy to reduce his prison sentence were based on a misinterpretation of anti-terrorism legislation.
In this application for judicial review, Terence Marks sought to challenge a decision by the Minister responsible for the Ministry of Justice in Northern Ireland not to exercise the Royal Prerogative of Mercy in his favour.
The claimant was seen in connection with an undercover surveillance of a property in Newry involving the Irish Republican Army discussing matters relating to terrorist activities. This included identifying possible targets, training and supplying weapons and materials for pipe bombs, and sources of funding for criminal activity, including theft.
The applicant was convicted in 2020 on two counts; belonging or claiming to belong to a proscribed organization contrary to Article 11(1) of the Terrorism Act 2000and receiving weapons training or instruction contrary to section 54(2) of the Terrorism Act.
On each count the applicant was sentenced to four years’ imprisonment, the period of imprisonment corresponding to 50% of the sentence.
However, after the introduction of Counter Terrorism and Punishment Act 2021, this sentence has been modified. Under this law, he would no longer be automatically released at the end of the period of judicial detention set at the midpoint of his sentence, after 24 months.
Instead, he would have to serve two-thirds of his sentence (32 months), after which he would become eligible for release subject to an assessment of his suitability for release by the Northern Ireland parole board members. .
The applicant argued that this retroactively increased his sentence and the Northern Ireland Court of Appeal held that his rights under Article 7 ECHR had been breached.
However, the new provisions remained in force and it was for Parliament to decide whether and how to change the law in response to the court’s finding of incompatibility.
The Department of Justice is currently appealing the decision to the UK Supreme Court.
Given that this case may not be resolved for some time, the applicant has requested pardon in the meantime, in respect of the period of imprisonment which will go beyond his judicially fixed custodial sentence.
However, the respondent Minister argued that she had no authority to exercise clemency here, as it was a reserved matter, under paragraph 9(1)(d) of the appendix 3 of the Northern Ireland Act 1998 (NIA).
The Minister claimed that the Secretary of State was the right decision maker in this matter.
At the heart of this case was section 23(2) of the NIA, which provides that all “transferred business, prerogative and other executive powers […] to have to […] be exercised in the name of Her Majesty by any Minister”.
However, with regard to leniency, Article 23(2A) stipulates that the prerogative power can only be exercised by the responsible Minister of the Ministry of Justice and only for transferred cases.
The question was therefore whether the exercise of grace was a transferred matter.
The Respondent maintained that this was not a transferred business, but a reserved business. This is because paragraph 9(1)(d) of Schedule 3 identifies as a reserved matter: “in respect of terrorism, the exercise of the Royal Prerogative of Mercy”.
In response, the plaintiff argued that his offenses did not actually fit this definition of terrorism. He noted that there had been no relevant actions on his behalf involving serious violence against any person, serious damage to property or the other dangers, risks or interference contemplated in the definition of terrorism in the 2000 Act. or Schedule 3 of the NIA.
In assessing these arguments, the court hesitated to accept the applicant’s definition of terrorism. They noted that terrorism for the purposes of the Terrorism Act includes both the use and the threat of such action.
For the tribunal, the receipt of training relating to incendiary bombs or pipe bombs “intrinsically involves the threat of subsequent use of these devices by the recipient of the training […] Otherwise, why would the training be given? »
Consequently, the applicant’s offenses were considered to be acts committed for terrorist purposes.
Further, in assessing this narrow definition of terrorism, the court noted that the NIA was enacted in 1998 and therefore could not have contemplated the definition used in the 2000 Act, upon which the petitioner relied.
The court also noted that the definition of terrorism in the 2000 Act only applied for the purposes of that Act. The court accepted that a definition could be invoked for acts having a similar object, but did not find that to be the case here.
The NIA is criminal law applicable throughout the UK, while the 2000 Act is a constitutional law providing for the Government of Northern Ireland, in the particular context of the Belfast Agreement and the ‘trouble’ which preceded.
Finally, the court noted that members of the public would be surprised to learn that convictions for membership in a terrorist organization and receipt of weapons training in this context were not considered terrorism.
Ultimately, for these reasons, the judge dismissed the plaintiff’s application for judicial review.