KERR v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is an Irish national, born in 1956 and living in Belfast, Northern Ireland. He is represented before the Court by Ms Angela Ritchie, a solicitor practising in Belfast with the firm Madden and Finucane. A. On 31 May 1979 the applicant was convicted at Belfast Crown Court of two murders and associated offences. The court sentenced him to two life sentences in respect of the murders and to determinate prison terms of twenty years for attempted murder and five years for membership of a proscribed organisation. In September 1983 he escaped from prison. He was later recaptured and in April 1988 was convicted of forty offences in connection with his escape. He received sentences ranging from three to seven years’ imprisonment, which the court ordered should run consecutively with the determinate sentences but concurrently with the life sentence. On 18 September 1995 the applicant was released on licence pursuant to the powers granted to the Secretary of State under section 23(1) of the Prison (Northern Ireland) Act 1953 (“the 1953 Act”). The applicant signed a document of release which contained the following note: “A person serving a sentence of life imprisonment who is released on licence is liable under the provisions of section 23 of the Prison (Northern Ireland) Act 1953 to be recalled to prison at any time by order of the Secretary of State.” On 7 November 1996 the applicant was arrested at his home. He was charged on 14 November 1996 with conspiracy to collect and record information likely to be useful to terrorists and the possession of such information, contrary to section 33 of the Northern Ireland (Emergency Provisions) Act 1996. He was remanded in custody. On 21 November 1996 the Secretary of State made an order under section 23(2) of the 1953 Act revoking the applicant’s licence and recalling him to prison. In a letter dated 21 November 1996 the Prison Service informed the applicant that his licence had been revoked by the Secretary of State: “… following careful consideration of all available information about your case, including the original offence for which you received two life sentences and information regarding the circumstances of your recent arrest and subsequent committal to prison on 14 November 1996 charged with terrorist-related offences. [The Secretary of State] has decided on grounds of risk and public interest that it would be inappropriate for you to retain your status as a life licensee.” The applicant was also informed that he could make representations to the Secretary of State by way of petition. As was regular practice at the time, the applicant was not afforded the opportunity to make such representations before the licence was revoked; nor was he provided with any documents about the matters considered by the Secretary of State when deciding to make the order. By petition dated 28 February 1997 addressed to the Secretary of State the applicant stated that he had not been found guilty of any offence and had not been given an opportunity to refute any allegation made against him. He requested an explanation for the revocation of his licence. On 17 April 1997 the applicant’s solicitors wrote to the Secretary of State requesting detailed reasons as to why the licence had been revoked and “for further proposals now in place to review our client’s life licence.” In a further letter dated 22 April 1997 the applicant’s solicitors asked for particulars about the information on which the Secretary of State had acted and details of the “public interest” which formed a ground for his revocation. Although an acknowledgement was sent, it does not appear that a detailed reply was furnished before the applicant commenced judicial review proceedings on 9 May 1997. On 30 July 1997 the prosecution dropped the charges against the applicant. The matter of the revocation of the applicant’s licence was then referred back to the Secretary of State for reconsideration. In a letter dated 31 July 1997 the Prison Service informed the applicant that the charges against him had been withdrawn and that the Secretary of State would again consider his case “in the light of all information available.” The applicant was invited to make any written representations which he might wish the Secretary of State to consider before deciding on his suitability for release on life licence. In a letter dated 5 August 1997 the applicant’s solicitors wrote to the Secretary of State in the following terms: “Our client instructs us to request copies of all material upon which the Secretary of State will rely, in order to make effective representations in respect of his release. Our client instructs us that he will submit a petition as to why he should be released, however, we are instructed that any representations he can make at this stage will inevitably be limited in the absence of any knowledge of the concerns the Secretary of State may have in relation to our client’s release.” The applicant submitted a petition dated 5 August 1997 to the Secretary of State, complaining of the procedure which had been adopted in the revocation of his licence and asking that the licence be reinstated as soon as possible. On 21 August 1997 the Secretary of State determined to release the applicant again on licence, and he was in fact released on that date. By letter dated 18 August 1997 certain materials were disclosed to the applicant’s solicitors, including materials considered by the Secretary of State when revoking the licence on 21 November 1996, as well as materials considered by the Secretary of State in August 1997 before deciding to release the applicant. Certain documents or parts of documents were withheld from disclosure on the ground of public interest immunity. On 9 May 1997 the applicant initiated judicial review proceedings to quash the decision of the Secretary of State to revoke his licence and to obtain a declaration that the revocation was unlawful. Following his release on licence on 21 August 1997, the applicant amended his statement of claim in order to limit the relief sought to a declaration that the revocation was unlawful. He argued, inter alia, that he should have been given an opportunity to make representations before the licence was revoked and been provided with the reasons for its revocation. On 1 April 1998 the Lord Chief Justice, Lord Carswell, gave judgment on the application. Having reviewed domestic case-law he concluded: “It is now clear from the authorities that fairness requires as a general rule that (a) a prisoner whose licence is revoked must receive at some stage an opportunity to make representations about the revocation and (b) in order to do so effectively he must be made aware of the reasons for the revocation if he does not already know them… We do not consider, however, that it is possible to lay down general rules about the stage at which the opportunity to make representations must be afforded or about the extent of any exception to the obligation to give reasons based upon the protection of sources of information who might be put in danger. In our view these are matters in respect of which much may turn upon the circumstances of the individual case and it would not be useful to prescribe procedures in any greater degree of detail. Nor can we say with sufficient precision on the facts before us whether the applicant was prejudiced in the present case by the procedure adopted to an extent sufficient to make that procedure unlawful. He had the opportunity immediately after his licence was revoked to make representations by petition, but did not avail himself of this until over two months had passed, and then only to complain that he had not been told why his licence had been revoked. Nor did he at any time make any representations about the substance of the case, the validity of the Secretary of State’s decision to revoke the licence and the grounds for doing so…” The Lord Chief Justice stated with regard to the above that it would not be appropriate in the circumstances to make a declaration about the lawfulness of the revocation of the applicant’s licence. According to the applicant, he did not apply for leave to appeal against the decision since it represented a correct statement of domestic law and any appeal would have had no reasonable prospects of success.