Neutral Citation No. [2012] NICA 57  	Ref:     	MOR8693	
			
Judgment: approved by the Court for handing down	Delivered:	21/12/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
______

ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
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Corey’s (Martin) Application [2012] NICA 57

IN THE MATTER OF AN APPLICATION BY MARTIN COREY
FOR JUDICIAL REVIEW

BEFORE MORGAN LCJ, GIRVAN LJ AND McCLOSKEY J

MORGAN LCJ (giving the judgment of the court to which each member has contributed)

[1]	This is an appeal by the Secretary of State from a decision of Treacy J made on 9 July 2012 whereby he found that the Parole Commissioners, a Notice Party in the appeal, had acted in breach of the respondent’s Article 5(4) ECHR rights in reviewing the revocation of the respondent’s licence under Article 9(4) of the Life Sentences (Northern Ireland) Order 2001.  Part of the case against the respondent was based on closed material.  Mr Eadie QC and Mr Palmer appeared for the Secretary of State, Ms Quinlivan QC and Mr Moriarty appeared for the respondent and Mr McMillan QC and Mr Sayers appeared for the Parole Commissioners.  We are grateful to all counsel for their helpful oral and written submissions.

Background

[2]	The background was helpfully set out by the learned trial judge. The respondent was sentenced to life imprisonment for murder in 1973.  He was released on licence in 1992. On 13 April 2010 the Secretary of State requested a recommendation from the Parole Commissioners to revoke his life licence and recall him to prison ‘on the basis of intelligence which indicates that the [respondent] is involved in dissident republican activity and presents a risk of serious harm to the public at this time’. The Secretary of State enclosed a dossier of background information and intelligence some of which had been certified as confidential under Rule 9(1) of the Parole Commissioners’ Rules (Northern Ireland) 2009 (the “Rules”) by the Minister of State on the previous day. 

[3]	On 14 April 2010 a Single Commissioner recommended the revocation of the applicant’s licence.  He stated:   

“This request was based on the suspected dissident republican activity of this licensee. Having perused the confidential file supplied by the security services, I am satisfied that for the protection of the public from serious harm and for the prevention of the commission of further offences, the life licence of Martin Joseph Corey should be revoked.”

[4]	The revocation was issued on the 15 April by the Minister of State acting on behalf of the Secretary of State.  On the same date the recommendation and the Notice of Revocation were sent to the respondent, along with a letter stating that the reason for the revocation was that information existed which suggested that the applicant presented a risk of serious harm to the public.  He was advised that the case would be referred to the Parole Commissioners for review of the decision to revoke the licence and a dossier of information in relation to the case would be served on the respondent and his representatives.  He was also informed of his right to make representations to the Secretary of State and the Commissioners.  On 22 June 2010 a single Parole Commissioner decided that the certification of the information was appropriate.  A Special Advocate was appointed under Rule 9(1) of the Rules and a panel of Commissioners was appointed to consider the case.  None of this is the subject of any challenge.

Statutory Scheme 

[5]	Article 9 of the 2001 Order deals with the recall of prisoners while on licence.

“9. -(1)	If recommended to do so by the Commissioners, in the case of a life prisoner who has been released on licence, the Department of Justice or the Secretary of State may revoke his licence and recall him to prison. 

(2)	The Department of Justice or the Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Commissioners, where it appears to it or him that it is expedient in the public interest to recall that person before such a recommendation is practicable. 

(3) 	A life prisoner recalled to prison under this Article 

(a)	on his return to prison, shall be informed of the reasons for his recall and of his right to make representations; and 

(b)	may make representations in writing to the Department of Justice or (as the case may be) the Secretary of State with respect to his recall. 

(4)	The Department of Justice or (as the case may be) the Secretary of State shall refer the case of a life prisoner recalled under this Article to the Commissioners. 

(5)	Where on a reference under paragraph (4) the Commissioners direct the immediate release of a life prisoner on licence under this Article, the Department of Justice shall give effect to the direction.
 
(5A)	The Commissioners shall not give a direction under paragraph (5) unless they are satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined.
 
(6)	On the revocation of the licence of any life prisoner under this Article, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.”

[6]	Rule 9 of the Rules deals with the non-disclosure of confidential information.
	
“9. -(1)	This rule applies where the Secretary of State certifies as confidential information any information, document or evidence which, in the Secretary of State’s opinion, would, if disclosed to the prisoner or any other person be likely to: 

(a)	adversely affect the safety of any individual; 

(b)	result in the commission of an offence; 

(c)	facilitate an escape from lawful custody or the doing of any act prejudicial to the safe keeping of persons in custody; 

(d)	impede the prevention or detection of offences or the apprehension or prosecution of suspected offenders; 

(e)	be contrary to the interests of national security; or 

(f)	otherwise cause substantial harm to the public interest; 

and any such information, document or evidence is referred to in these rules as confidential information. 

(2)	Neither the Commissioners nor a special advocate shall in any circumstances disclose to or serve on the prisoner, the prisoner’s representative, any witness appearing for the prisoner or any other person, any confidential information and shall not allow the prisoner, the prisoner’s representative, any witness appearing for the prisoner or any other person to hear argument or the examination of evidence which relates to any confidential information. 

(3)	Where the Secretary of State has certified information as confidential, the Secretary of State shall, within 7 days of doing so, serve on the prisoner and on the Commissioners, whether by way of inclusion with the case papers or otherwise, written notice of this stating, so far as the Secretary of State considers it possible to do so without causing harm of the kind referred to in paragraph (1), the gist of the information withheld and the reasons for withholding it.”

The appointment and functions of a special advocate are provided for in Rule 19.

“19.-(1)	On receiving a certificate of confidential information under rule 9, the single Commissioner or chairman of the panel dealing with the case shall inform the Advocate General for Northern Ireland of the proceedings before the panel, with a view to the Advocate General for Northern Ireland, if the Advocate General for Northern Ireland thinks fit to do so, appointing a special advocate to represent the interests of the prisoner. 

(2)	The function of the special advocate is to represent the interests of the prisoner, as mentioned by paragraph (1), by: 

(a)	making written submissions to the single Commissioner; 

(b)	making submissions to the panel in any oral hearings from which the prisoner and the prisoner’s representative are excluded; 

(c)	cross-examining witnesses at any such hearings; and 

(d)	making written submissions to the panel. 

(3)	Except in accordance with paragraph (4) a special advocate may not communicate directly or indirectly with the prisoner whose interests the special advocate has been appointed to represent on any matter connected with the case before the panel. 

(4)	A special advocate may seek directions from the single Commissioner or chairman of the panel dealing with the case authorising the special advocate to seek information in connection with the case from the prisoner whose interests the special advocate has been appointed to represent.”

Although the special advocate is given no express power to advise on the lawfulness of the closed proceedings we consider that it is implicit in the appointment that he has power to recommend and if necessary to seek to conduct judicial review proceedings in respect of the closed session.

The relevant case law

[7]	A v UK (2009) 49 EHRR 29 was concerned with the detention of foreign nationals under the Anti-Terrorism, Crime and Security Act 2001.  Each of those certified as reasonably suspected by the Secretary of State of being international terrorists had a right of review before SIAC which considered both evidence which could be made public (open material) and sensitive evidence which could not be disclosed for reasons of national security (closed material).  The detainee and his legal representatives were provided with the open material and were able to comment on it.  The closed material was not disclosed to the detainee but was provided to a special advocate appointed on his behalf. Inter alia the detainees challenged the compatibility of the procedure with Article 5(4) ECHR.

[8]	The ECHR set out the requirements of Article 5(4) in these circumstances in Paragraphs 218 to 220.

“218	Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others.  Where full disclosure was not possible, art. 5(4) required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him. 

219	The Court considers that SIAC, which was a fully independent court (see paragraph 91 above) and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee.  In this connection, the special advocate could provide an important, additional safeguard through questioning the state's witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure.  On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants' appeals or that there were not compelling reasons for the lack of disclosure in each case.

220	The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings.  However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate.  While this question must be decided on a case-by-case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him.  In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations.  An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation.  Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of art.5(4) would not be satisfied.”

[9]	The principles in A v UK were accepted by the House of Lords in Home Secretary v AF (No 3) [2009] UKHL 28.  Lord Phillips expressly adopted paragraph 220 of A v UK at paragraph 59.

“I am satisfied that the essence of the Grand Chamber's decision lies in para 220 and, in particular, in the last sentence of that paragraph.  This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations.  Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations.  Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”

Lord Hope recognised the practical difficulties at paragraphs 85 and 86.

“[85]	The principle is easy to state, but its application in practice is likely to be much more difficult.  In Secretary of State for the Home Dept v AN [2008] EWHC 372 (Admin), [2008] All ER (D) 439 (Feb), Mitting J referred to the guidance that he found in the speeches in Secretary of State for the Home Dept v MB [2008] 1 All ER 657.  In [9] he said:
 
'The conclusion which I draw from the four speeches of the majority in MB is that unless, at a minimum, the special advocates are able to challenge the Secretary of State's grounds for suspicion on the basis of instructions from the controlled person which directly address their essential features, the controlled person will not receive the fair hearing to which he is entitled except, perhaps, in those cases in which he has no conceivable answer to them.  In practice, this means that he must be told their gist.'
 
That analysis, which seeks to combine the approach of Lord Bingham with that of the other three who constituted the majority, must now be read subject to this crucial modification: there is no room for an exception where it is thought that the controlled person has no conceivable case to answer.  The judge must insist in every case that the controlled person is given sufficient information to enable his special advocate effectively to challenge the case that is brought against him.  That is the core principle.

[86]	What will be needed in the application of this principle will, of course, vary from case to case.  The judge is entitled to take the view that a person who really does have a case to answer will make every effort to provide his special advocate with the information he needs to make the challenge.  He will also note that the Strasbourg court was careful not to insist on disclosure of the evidence.  It is a sufficient statement of the allegations against him, not the underlying material or the sources from which it comes, that the controlled person is entitled to ask for.”

The application of the principles by the Parole Commissioners

[10]	The Panel received open and closed material from the Secretary of State.  The respondent made representations on two occasions in relation to the open material and also submitted a statement.  As a result of this the two open statements of evidence submitted were amended.  The Panel conducted closed sessions in relation to the adequacy of the gist of the material disclosed to the respondent and also took into account representations made by the respondent’s representatives in the open proceedings.  Those representatives submitted that the open material in the case consisted of almost exclusively general assertions and that any decision to uphold detention would inevitably be based solely or to a decisive degree on closed material.  It was accepted that some small amount of detail had been provided as to when certain contact took place although this was minimal.  The Panel disclosed that as a result of the closed hearings the special advocate made no submission that the gist of material made available to the respondent in the amended first and second statements fell short of the standard set out in A v UK.

[11]	The Panel addressed this issue at paragraph 33 of its decision.

"The panel accepts that there is much by way of general assertions in the amended open statements particularly as regards Mr Corey's alleged membership and leadership roles within CIRA which is not easy to refute other than by general denial.  At the same time there is enough information in the gist about the persons he was allegedly involved in CIRA activity with to enable Mr Corey to give an innocent account of the nature of his association with them.  The allegations of operational activity in relation to procuring weaponry are also general but the specific allegation that he was involved with Brendan Magill in recruitment activities and procuring weaponry up until the time of his revocation is one that could be met by more than general denial and the specific allegation about the pre-arranged meeting at the filling station with Malachy Maguire on the evening of 9 September 2009 and Mr Corey's subsequent driving to Eddie Breen’s house and remaining there for a period of time enabled Mr Corey to give an innocent explanation of this activity and his association with Mr Maguire and Mr Breen on this day should he have chosen to do so.  Consequently the panel considers that there are enough specific allegations in the gist to lead to the conclusion that the open material does not consist purely of general assertions and to fall short of the A v UK standard.”

The open material asserted that Mr Magill, Mr Maguire and Mr Breen were members of the CIRA and that the filling station at which the meeting with Mr Maguire took place was in the Republic of Ireland.

[12]	Paragraph 33 of the Panel’s decision indicates that it considered that there were three specific allegations that could be met by more than a general denial.  The first was the allegation that the respondent was engaged with Mr Magill in recruitment activities and procuring weaponry up until the time of the revocation of his licence.  In answer to that the respondent indicated that Mr Magill was his godfather and was aged 77.  He had been involved in paramilitary activity a number of years ago but the respondent stated that he believed that that was not still the case.  The respondent indicated that he was a committed member of Republican Sinn Fein and had taken part in white line protests in relation to prisoner issues and that Mr Magill was also a member of Republican Sinn Fein.  The respondent denied the allegation that he was engaged in recruitment or weaponry procurement activities on behalf of the CIRA.

[13]	The second specific allegation was that the respondent had a prearranged meeting at a filling station with Malachy Maguire and several CIRA associates on the evening of 9 September 2009 in relation to CIRA matters.  The respondent states that he would have travelled into the Republic of Ireland on many occasions as his sister lives there and from time to time would have bought diesel there.  He states, however, that he has no recollection of meeting anyone by the name of Malachy Maguire.

[14]	The third specific allegation is that after the meeting at the filling station the respondent made his way to the home of Eddie Breen who was alleged to be a member of the Craigavon CIRA and met up with him and several other CIRA associates in relation to CIRA activities.  The respondent said that he knew Mr Breen because they were both involved in protests about prisoners’ conditions and would have visited his house but he denied that he had met up with him and others on 9 September 2009 to brief them.

[15]	The respondent was arrested and interviewed at Antrim Serious Crime Unit on 27 June 2008.  He made a statement in December 2010 in which he alleged that thereafter he was approached on a number of occasions by persons attending his work and phoning him on his mobile phone seeking to persuade him to provide information to police in relation to Republican activities.  He contended that the decision to recall him to prison was motivated by his refusal to engage in this activity.

[16]	The Panel concluded that the Secretary Of State's case was not particularly advanced one way or the other by the open evidence which was insufficient to enable it to conclude that any of the allegations of dissident membership, association, leadership and/or involvement were proven on the balance of probabilities.  The Panel concluded that the respondent was less than honest in his account of his association with some of those who were alleged to be CIRA members but did not accept that he was totally lacking in credibility.  The Panel found that the closed material included evidence providing information which corresponded with the extensive range of allegation made in the gists.  It was satisfied with the integrity of the source material.  The Panel was satisfied that the respondent was involved as a member of the CIRA in the Craigavon/Lurgan areas between early 2005 and April 2010.  It was also satisfied that he held leadership roles within CIRA in 2008 and from April 2009 until his recall.  It concluded that there was strong, detailed and corroborated evidence indicating that prior to recall he was actively involved in trying to procure weapons for Craigavon/Lurgan CIRA.  The Panel concluded that he could not be safely released because on the balance of probabilities he posed a risk of serious harm from which the public had to be protected.

The basis of the challenge and the arguments of the parties

[17]	The ground on which the application for judicial review was pursued at first instance and supported in this court was that the decision not to direct the release of the respondent was incompatible with his rights under article 5 (4) ECHR in circumstances where the open material in the case consisted virtually exclusively of general assertions and the decision to uphold detention was clearly based solely or to a decisive degree upon closed material.

[18]	The learned trial judge accepted that he should approach this case as one in which the closed material had to be withheld.  He noted that paragraph 219 of A v UK recognised that there were two principal safeguards for someone who was subject to such proceedings.  The first was a fully independent court which in this case was provided by the Parole Commissioners.  The second was the special advocate who could question witnesses on the need for secrecy and make the case for additional disclosure.  He recognised, however, that in paragraph 220 the Court noted that if the open material consisted purely of general assertions and the decision was based solely or to a decisive degree on closed material the procedural requirements of Article 5 (4) would not be satisfied.

[19]	It is not in dispute that the Panel’s decision was based to a decisive degree on closed material.  In those circumstances even if all or most of the underlying evidence remained undisclosed so long as the allegations contained in the open material were sufficiently specific it was possible for the respondent to provide his representatives and the special advocate with information with which to refute them without knowing the detail or sources of the evidence which formed the basis of the assertions (see A v UK paragraph 220).  The specificity had to be sufficient to ensure the possibility of rebuttal.  A general accusation, incapable of being tested or refuted other than by denial such as an allegation of membership of an illegal organisation, is unlikely to be sufficient. There must be challengeable information.

[20]	The learned trial judge then examined the three specific allegations which the Panel identified at paragraph 33 of their decision.  He concluded that the allegation that the respondent was involved with Mr Magill in recruitment activities and procuring weaponry did not contain sufficient factual background to allow rebuttal and accordingly was insufficiently specific to make it possible for the respondent to provide his legal representatives and the special advocate with information with which to refute it.  In respect of the allegation about the prearranged meeting at the filling station and the subsequent briefing at the home of Eddie Breen the learned trial judge concluded that there was some factual material provided but the allegations did not provide a link to any specific CIRA activities.

[21]	In those circumstances the learned trial judge concluded that the requirements of A v UK had not been satisfied and that the Parole Commissioners had not provided a sufficient safeguard against the lack of full disclosure.  It is relevant to note that the learned trial judge reached this conclusion without sight of the closed material.  He pointed out that the ECHR had carried out a similar exercise in relation to the first and tenth applicants in A v UK.  The respondent supported the conclusions of the learned trial judge and the reasons given by him and further confirmed that they did not wish the court to examine the closed material.

[22]	The appellant submitted that the disclosure to the respondent had to be such that he could challenge the allegations against him by giving effective instructions to the special advocate.  That would be so even if all or most of the underlying evidence remained undisclosed and the detail or sources of the evidence which formed the basis of the assertions remained unknown to him.  On that both parties were agreed.  The appellant submitted, however, that consideration of the effectiveness of the opportunity to give instructions to the special advocate necessarily required consideration of the extent to which the material contained in the closed case had been disclosed.

[23]	It was further submitted that the High Court had jurisdiction to examine the closed materials and to hear submissions from the Secretary Of State and the special advocate in closed session.  The appellant contended that the Panel was best placed to judge the adequacy of the disclosure and their judgment should not be impugned on an application for judicial review in the absence of consideration of all the materials before them unless there was some misdirection in law.  The Panel was entitled to find that the allegations were sufficiently specific to allow the respondent to give effective instructions to the special advocate.  There was no requirement that the disclosure should be sufficient to enable the respondent to rebut the allegations in open session.

Consideration

[24]	Paragraph 220 of A v UK is concerned with the extent to which a special advocate can provide an effective safeguard for the detainee.  We accept therefore that in a case where allegations are made but the evidence not disclosed the test is whether the detainee is in a position to give effective instructions to the special advocate to ensure a fair hearing.  We do not understand there to be any difference of substance on this test between the parties. The issue is whether the Parole Commissioners applied the test correctly.

[25]	The nature of the disclosure required to put the detainee in a position to give effective instructions is of course dependent on the nature of the allegation.  If the detainee is facing a general allegation of membership of a criminal gang he cannot give instructions beyond a bare denial unless some material grounding the allegation is disclosed. 

[26]	The requirement for disclosure can also be affected by the response of the detainee.  By way of example if it were alleged that the detainee was part of a criminal gang which engaged in some criminal activity at a particular location on a particular day the response may be that the detainee was not there.  In those circumstances it may not be necessary to expand on the allegation.  The special advocate may well have effective instructions.  If, however, the response is that the detainee was there when the criminal activity was committed but did not know what was going to happen and did not participate it may be necessary, for instance, to determine whether the detainee should be provided with the allegation that he was present at a meeting where the criminal activity was planned.

[27]	One could, of course, postulate countless such examples but the point is that the adequacy of the specificity of the disclosure will normally require consideration of the allegation made, the response to it and the closed material upon which the Secretary of State wishes to rely.  The issue that we are asked to address in this appeal is whether the gisting process undertaken by the Panel was flawed.  Like the learned trial judge we are asked to carry out that exercise without access to the closed material.

[28]	We do not consider that such an exercise leads to the conclusion that the Parole Commissioners have erred in making disclosure. The first allegation identifies the person, Mr Magill, with whom the respondent is alleged to be involved and the activities, recruitment and procurement of weaponry.  The respondent accepts that he met and talked to Mr Magill but denies that he touched on these areas at all.  In those circumstances it is not difficult to see that identification of recruits or weaponry might add nothing to the position of the special advocate.  These are allegations of specific conduct. We cannot infer that the disclosure was inadequate.

[29]	In answer to the allegation that the respondent met Mr Maguire and others at the filling station on 9 September 2009 in connection with CIRA business the response is that it did not happen.  This is an allegation of meeting a particular person on a particular day.  In light of the response it is by no means clear that the identification of the precise subject of discussion would make any difference.  We could not draw any such inference.  The same applies to the meeting at the house of Mr Breen.

[30]	In each of these instances we have focused upon the ability of the special advocate to refute the allegations in light of the instructions given to him.  A denial by the detainee that a meeting occurred or that a topic was discussed addresses a specific allegation and is quite different from the denial of a general allegation such as membership of an organisation.  Although it is not necessary to our decision we note that the special advocate who saw all of the material and made extensive submissions on it having correctly identified the legal principles did not take issue with the gisting process.

[31]	For the reasons set out we allow the appeal.