Outlaws Both: Martin Corey and Her Majesty’s Judiciary.

By AM Monday, January 27, 2014

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Guest writer Christy Walsh with an examination of the Martin Corey case. Christy Walsh's website can be found here.

It is initially perplexing to think that a common relationship might exist between Martin Corey, and Her Majesty’s Judiciary; one had been sentenced to life in prison in 1973 for killing two RUC officers and the other upholds and protects the administration of justice.


Background:

In 1992 Parole Commissioners decided that Mr Corey should be released, the commissioners can only direct a prisoner’s release if they are satisfied that the prisoner is no longer a danger to the public.

18 years later, on 13th April 2010, the Secretary of State wrote to the parole commissioners seeking a recommendation on whether the licence on which Mr Corey had been released should be revoked. The request was not intended as a question. To assist the commissioners the Secretary of State enclosed a dossier of background information (open material) and other material certified as confidential (closed material). Another way to interpret ‘closed material’ is as an “unsupported complaint” that can’t be verified; I derive that interpretation from Chapter 38 of the Magna Carta.

On 14 April 2010, a single commissioner recommended that the licence of Mr Corey should be revoked and so Mr Corey was taken into custody again on 16 April 2010 where he remained until 14th January 2014. Mr Corey maintains that he is unaware of any evidence against him that justified his imprisonment. Rule 9(3) of the Life Sentences (Northern Ireland) Order 2001 needs only “the gist of such information should be served on the commissioners and the prisoner” by the Minister.

On 9th July 2012, His Honour, Mr Justice Treacy delivered a Judgment (Here) wherein, the Judge concluded that the “open material in this case comprises a cacophony of allegations which may tend to overwhelm”. His Honour went on to find that Mr Corey’s Article 5(4) Convention rights had been breached;

[72] The allegations contained in the open material were insufficiently specific to make it possible for the applicant to provide his lawyers and the Special Advocate with information to refute them. No sufficient factual nexus has been revealed to allow challenge. No opportunity has been given to the applicant to provide information of a probative nature to rebut the case against him and thus no opportunity has been given to him to tip the balance of probabilities.

…

[81] For the above reasons I hold the decision of the Parole Commissioners was reached in breach of the applicant’s Art. 5(4) rights to procedural fairness.

If His Honour’s scathing remarks about the open material, and how that material was wrongly applied by the Parole Commissioners, is anything to go by then the closed material might have been no more coherent than a bag of loose Scrabble Tiles.

On 4th December 2013 the Supreme Court re-affirmed Treacy J’s verdict (Here) that review of Mr Corey’s detention had not been in accordance with law, as per Kerr LJ at paragraph 27:

His order that the review of the appellant’s detention had not been conducted lawfully and that it should be reconsidered was, on its own terms, a full vindication of the right which the appellant had asserted. On that ground alone, I consider that the judge did not have power to order the appellant’s release.

Note that once a person has been sentenced the Court can no longer grant bail therefore Treacy J did not have the power to grant bail on a revived sentence. Article 5(1) allows states to imprison people only when justified by law, and requires prisoners not lawfully detained to be released. The Supreme Court discussed a scenario where a recalled prisoner was being unlawfully detained; Lord Kerr was of the view that such a prisoner should be released, whereas, Lord Mance maintained that such a breach would not require the prisoner to be released but eligible for compensation instead. Since Mr Corey’s lawyers were seeking bail for their client, Lord Kerr deferred decision on unlawful detention “for a future occasion when the issue arises directly”.

Subsequently, on 14th January 2014, the Parole Commissioners released Mr Corey on a more restrictive licence which has been misreported as a grant of bail. The Parole Commissioners decision was probably hastened before Mr Corey’s lawyers could regroup, thus the question of ‘being’ unlawfully detained or interned are now redundant.

While Emergency laws were of concern to many they were enforced, endured, tolerated or deemed necessary because the UK was essentially still a democratic jurisdiction but burdened with 'extra-legal' challenges due to the presence of political violence. With the conflict over, rather than resort back to normative law, as one might expect, there has been a shift from questionable 'democratic' emergency laws to more extreme provisions such as the use of secret evidence and ‘special advocates’ (a ‘secrecy’ lawyer imposed to represent a suspect and his lawyers). Emergency Law using concealed evidence under National Security is still never-the-less scrutinized by the Judiciary. The difference under the current system is that the Judiciary are not trusted to scrutinize ‘closed material’ so that it is concealed from Judges just as much as it is from the suspect.

Right to a Fair Trial and Unlawful Detention:


Treacy J concluded that the Parole Commissioners had acted unlawfully by breaching Article 5(4) of the Convention but decided that the Parole Commission should be afforded the opportunity to rephrase their decision to make Mr Corey’s detention comply with Article 5. Referring to case law, Kerr LJ, clarifies the distinction his lawyer had proposed before His Honour between her client being released or his recall reviewed by the Parole Commissioners which she was again asserting before the supreme Court:

All that aside, the principal difficulty with Ms Quinlivan’s argument is that in both cases the applicants were asserting their right to liberty. If their claims were upheld, they were entitled not to be detained, whereas what Mr Corey claims is the right to have his valid recall to prison reviewed in a way that is compliant with article 5(4) of the Convention. (Paragraph 30, Supreme Court Judgment, 4th December 2013)

Mr Corey’s case raises issues of dual rights under Article 5 of the Convention relating to reasonable detention and the right to liberty, and, Article 6 relating to reasonable time and the right to a fair trial where the prospect of a fair trial has been prejudiced by undue delay. Article 6(1). is designed to avoid that a person charged should remain too long in a state of uncertainty about his fate; Article 6(3)(a) requires that Mr Corey “be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”; Article 5(2) “Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him.”; Article 5(3) for its part implies that there must be special diligence in the conduct of the prosecution. Already in this respect the reasonable time mentioned in this provision may be distinguished from that provided for in Article 6.

It should be remembered that a single commissioner received, considered and revoked Mr Corey’s license in less than 24 hours. So the combination of closed and open material cannot be that lengthy or complex yet after four years it remains too complex for Mr Corey to be properly indicted or put on trial. Trials may be delayed on account of the progress of an investigation; but in Mr Corey’s case the investigation had essentially been started and completed on 14th April 2010. The Parole Commissioners are now under less pressure to make a final decision and they may be content to leave the new license restrictions in place.

Outlaws and The Magna Carta:

The origins of an Outlaw derive from a time when Kings, or Feudal Lords and Barons, could commit people to exile ‘within’ the Kingdom because they may have fallen out of favour. Its effect was that that person would no longer have protection ‘in law’ thus, they were ‘out of law’ (Outlaw). Today the ‘out of law’ space appears to be a quasi-legal black hole exercised by Government Ministers where secret evidence is used to deprive someone from legal norms and common law standards of due process. Herein is the unlikely relationship between Mr Corey and Her Majesty’s Judiciary, neither, are trusted to be permitted to know or examine what the secret evidence might be and so they each share a meta-physical space as Outlaws in the eyes of the Minister. One obvious reason the Minister might suspiciously view the Judiciary as ‘Outlaws’ is because he cannot control them. As was seen when Mr Justice Treacy rubbished the value of the Minister’s evidence finding that the “open material in this case comprises a cacophony of allegations… The allegations contained in the open material were insufficiently specific…” that Mr Corey can only speculate on what his defence might be.

The Minister is essentially playing the role of a Bailiff prior to the Magna Carta. As Bailiff the Minister favours Parole Commissioners, a multidisciplinary panel, over the Judiciary in so far as he will trust a parole commissioner to evaluate the ‘closed material’ but he will not trust a Judge to do it. The system as it stands is that where ‘closed material’ is being relied upon then parole commissioners make their decision on only the barest “gist” of information whereas Senior Judges are not even permitted that much; a parole commissioner might have no legal background in comparison to that of a talented and experienced Judge.

Due process rights protect us not only directly when we are accused of a crime, but also indirectly by serving as checks on governmental power. Due process considerations at an early stage would have prevented abuses of Martin Corey’s Article 8 Conventions rights (Privacy and right to family life) where he has been outlawed and exiled from his home and family; and also, his Article 10 rights (re: free speech rights to talk to journalists or politicians). The use of secretive evidence is not filling any gaps where the law fails but instead its purpose is to circumvent the need for verifiable evidence, the Judiciary, along with national, and, international law. The Minister can effectively sweep aside an 800 year heritage of British common law development so that he, as Minister or Bailiff, can hold both an individual and the Judiciary ‘out of his law’. The Minister’s assault on democracy and long established common law fair trial principles and international human rights guarantees are quite stark when compared against the relevant Chapters of the Magna Carta (Here), an 800 year old document that aimed to secure rights and prevent tyranny, as follows;

38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his "law", without credible witnesses brought for this purposes.

39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we refuse or delay, right or justice.

For any Unionist who may feel that these extraordinary measures are necessary to deal with Dissident factions would do well to reconsider their idea of Britishness. While Mr Corey is not permitted to express his views I think it fitting to leave the last words to the Judiciary, as per Lord Hoffman, who put in context the British Government’s unreasonable fears and over exaggerations of threats posed by radical violence:

96. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. [2004] UKHL 56 at 96. (Here)