The Supreme Court has set aside a declaration that certain provisions of the Counter Terrorism and Sentencing Act 2021 are incompatible with Articles 7 and 5 of the ECHR.
In November 2020, the Respondents were sentenced to custodial terms of imprisonment for terrorism offences, to be served half in custody and half on licence. However, in April 2021, s.30 of the Counter Terrorism and Sentencing Act 2021 came into force, which inserted Article 20A into the Criminal Justice (Northern Ireland) Order 2008. Article 20A provides that no prisoner convicted of certain terrorism offences shall be released on licence unless they have served two-thirds of their sentence in custody.
The Respondents appealed to the Court of Appeal on the grounds that s.30 was incompatible with Articles 5 (right to liberty and security), 6 (right to a fair trial), and/or 7 (no punishment without law) of the ECHR. They sought an order that the terms of their original sentences be restored. They were granted a declaration of incompatibility to the effect that the insertion of Article 20A by s.30 was incompatible with Article 7. The Court of Appeal found that Article 6 was not engaged and made no determination in relation to Article 5.
The Ministry of Justice (Northern Ireland) appealed to the Supreme Court to set aside the declaration of incompatibility in respect of Article 7. The Respondents cross-appealed in relation to Article 5. The Supreme Court allowed the Ministry of Justice’s appeal, set aside the declaration of incompatibility and dismissed the cross appeal.
Sir James Eadie KC and Jason Pobjoy acted for the Ministry of Justice (Northern Ireland), instructed by the Crown Solicitor’s Office (Belfast).
The judgment is available here.