The Government gave effect to their commitment through the provisions of the Northern Ireland (Sentences) Act 1998 and through various pieces of subordinate legislation made under it, most particularly the Northern Ireland (Sentences) Act 1998, (Sentence Review Commissioners) Rules 1998. Both were passed by Parliament in late July 1998.
The Act provides for the appointment of Commissioners and sets out the criteria that must be met for a prisoner to be eligible for early release on licence. The Act also makes provision for the calculation of the appropriate release dates for qualifying prisoners, whether fixed term or life sentence prisoners.
The Rules set out in detail the procedures under which prisoners apply for early release and the Commissioners consider their applications. Within the terms of the Rules there is provision for the views of the Secretary of State (represented by the Northern Ireland Office) to be made known and taken into account by the Commissioners. The Rules normally give both parties access to the same information. However, in certain circumstances information certified by the Secretary of State as “damaging information” may be withheld from the prisoner (and any representative nominated by the prisoner). If this happens, there is provision for the Attorney General to appoint a Special Advocate to represent the interests of the prisoner.
Rule 22(1) of the Sentence Reviews Commissioners’ Rules applies where the Secretary of State (SoS) certifies as ‘damaging information’ (hereinafter ‘DI’) any information, document or evidence which, in his opinion, would if disclosed to the person concerned or any other person be likely to:
a) adversely affect the health, welfare or safety of the person concerned or any other person;
b) result in 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 such 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.
The Initial Application
The prisoner (known as ‘the Applicant’) submits an application form and associated documentation to the Secretariat and the Secretary of State (known as ‘the Respondent’) submits their ‘response papers’. The (Sentence Review Commissioners) Rules 1998, in schedule 1, 2 and 3, sets out specific requirements in relation to the information which must be provided by the parties. The application and response papers are considered by a panel of three Commissioners who give their initial view in writing in the form of a ‘preliminary indication’. The Rules allow either party to challenge the preliminary indication following which the issues are considered afresh at an oral hearing. If there is no such challenge, or after an oral hearing, the final decision of the Commissioners is given to both parties in the form of a ‘substantive determination’. The Act makes provision for the Secretary of State to apply to the Commissioners to revoke a declaration that a prisoner is eligible for release, on certain grounds, at any time before the prisoner is released. Other than this the Commissioners have no power to reconsider a substantive determination, and the only mechanism by which either party can challenge the outcome is by way of judicial review.
Prisoners who are successful in their applications are released on licence, the conditions of which are set out in the Act. The Act also makes provision for the suspension of a licence by the Secretary of State if they believe a person has broken or is likely to break a condition of his/her licence.
Prisoners who are unsuccessful in their applications may make a further application at a later stage if it can be demonstrated that the person’s circumstances have changed since the most recent substantive determination or reliance is placed on any material information, document or evidence which was not placed before the Commissioners when the previous substantive determination was made.
The Rules set out in detail the procedures to be followed where the Commissioners are required to consider the case of a recalled prisoner. In particular, the Rules make provision for the proceedings in relation to recalled prisoners to be expedited.