Eligibility for Early Release
A prisoner may apply to the Commissioners for a declaration that he is eligible for release in accordance with the provisions of this Act.
The Commissioners shall grant the application if (and only if)-
- the prisoner is serving a sentence of imprisonment for a fixed term in Northern Ireland and the first three of the following four conditions are satisfied, or -
- the prisoner is serving a sentence of imprisonment for life in Northern Ireland and the following four conditions are satisfied.
The eligibility criteria laid down by the Act are that:
- the prisoner is serving a sentence that was passed in Northern Ireland for a qualifying offence;
- the sentence is one of imprisonment for life or for a term of at least 5 years;
- the prisoner is not a supporter of a specified organisation
- if the prisoner were released immediately he would not be likely -
- to become a supporter of a specified organisation
- become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland.
- if the prisoner were released immediately, he would not be a danger to the public.
- the offence was committed before 10 April 1998;
- if the sentence was passed in Northern Ireland, the offence:
- was when committed a scheduled offence within the meaning of the Northern Ireland (Emergency Provisions) Act 1973, 1978, 1991 or 1996; and
- was not the subject of a certificate of the Attorney General that it was not to be treated as a scheduled offence in the case concerned.
- if the sentence was passed in Great Britain, the offence:
- was committed in connection with terrorism and with the affairs of Northern Ireland; and
- is certified as one that would have been scheduled under the Northern Ireland (Emergency Provisions) Act, had it been committed in Northern Ireland;
- the prisoner is not a supporter of a specified organisation;
- if the prisoner was released immediately, he would not:
- be likely to become a supporter of a specified organisation; or
- be likely to become involved in acts of terrorism connected with the affairs of Northern Ireland; and
- if a life sentence prisoner, be a danger to the public.
Scheduled offences are defined in successive Northern Ireland (Emergency Provisions) Acts. They include murder and manslaughter, kidnapping, serious assaults and armed robbery, and a wide range of firearms and explosives offences.
It should be noted that the eligibility criteria do not require that a sentence of imprisonment relates to an offence which was committed by or on behalf of a terrorist organisation but simply requires that the offence fell within the definition of a scheduled offence when committed.
The Specified Organisations
Section 3(8) of the Act requires the Secretary of State to 'specify' by subordinate legislation any organisation believed to be concerned in terrorism connected with the affairs of Northern Ireland which has not established or is not maintaining a complete and unequivocal ceasefire. Specification of an organisation means that its supporters are not eligible for the early release arrangements.
The current list of organisations which the Secretary of State has so specified are set out in the Northern Ireland (Sentences) Act 1998 (Specified Organisations) (No. 2) Order 2008. The organisations currently listed are:
- The Continuity Irish Republican Army;
- The Loyalist Volunteer Force;
- Óglaigh na hEireann;
- The Orange Volunteers;
- The “Real” Irish Republican Army; and
- The Red Hand Defenders.
The Accelerated Release Date
The Act makes provision for the accelerated release of prisoners who are granted a declaration in relation to a sentence. Specifically, the Act provides that any prisoner who would have a right to be released on a date which falls after the second anniversary of the Act’s commencement will be released by the Secretary of State on that day, or once the prisoner has served two years of the sentence to which the declaration relates, whichever is the latter.
The Act also provides that a prisoner cannot be released at any time before an application for revocation of the Commissioners’ declaration has been finally determined.
The Secretary of State is empowered to vary the accelerated release provisions by subordinate legislation.
Licence Arrangements and Suspension of Licence
Each prisoner released early under the legislation is subject to the following licence conditions:
- that he does not support a specified organisation;
- that he does not become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland; and
- in the case of a life prisoner, that he does not become a danger to the public.
For a fixed term prisoner the licence remains in force until the date when they would otherwise have been entitled to be released from prison under the legislation in place at that time. For a life prisoner, the licence remains in force for the rest of his or her life.
The Secretary of State may suspend a licence if they believe the person concerned has broken or is likely to break a licence condition. Where a person’s licence is suspended by the Secretary of State, the Commissioners will consider his or her case. If they think that he/she has not broken, and are not likely to break, a condition of the licence, they are required to confirm the licence, in which case the prisoner will be released again. Otherwise, they are required to revoke the licence, in which case the prisoner will lose entitlement to early release and will remain in prison until eligible for release under normal arrangements or subject to a successful further application from the prisoner.
The Rules make provision for successive applications to be made by any prisoner who can demonstrate that their circumstances have changed since the most recent decision of the Commissioners or it comes to light that there was some material information, document or evidence which was not placed before the Commissioners when the most recent decision was made.
Only the Secretary of State can suspend a released prisoner's licence.
They may do so under section 4 or 6 of the Northern Ireland (Sentences) Act 1998 if they believe the released prisoner has broken or is likely to break a condition of his/her licence.
The licence conditions are:
(a) that he does not support a specified organisation;
(b) that he does not become concerned in the commission, preparation or instigation of acts of terrorism;
(c) and, for life sentence prisoners, that he does not become a danger to the public.
Once a released prisoner's licence has been suspended by the Secretary of State, the Commissioners have to consider their case on receipt of an application from them.
If the Commissioners think that the released prisoner has not broken, and is not likely to break, the conditions of his licence, they will confirm his/her licence (to remain free): otherwise they will revoke it.
In the Act, 'terrorism' means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear. The Secretary of State is required to specify by Order any organisation which he/she believes:
(a) is concerned in terrorism connected with the affairs of Northern Ireland or in promoting or encouraging it, and
(b) has not established or is not maintaining a complete and unequivocal ceasefire.