R v Morgan, Marks, Lynch & Heaney

This case involved an appeal by Mr. Marks and others against the increased custody period imposed under the Counter-Terrorism and Sentencing Act 2021.

TLDR:

• Mr. Marks and others were convicted of terrorism-related offenses.
• Their custody periods were increased retrospectively under the 2021 Act.
• The Court of Appeal found a breach of Article 7 ECHR but could only issue a declaration of incompatibility.
• The Ministry of Justice is appealing the decision to the UK Supreme Court.

The case concerned Mr. Marks, who was convicted of being a member of a proscribed organization, the Irish Republican Army (IRA), and attending meetings where terrorist activities were discussed. He was sentenced in November 2020. However, the Counter-Terrorism and Sentencing Act 2021 retrospectively increased the period he was required to spend in custody.

Under the new regime, Mr. Marks would have to serve two-thirds of his sentence before being eligible for release, subject to an assessment by the Parole Commissioners for Northern Ireland (PCNI). This change extended his expected release date from February 2022 to October 2022, with a possibility of remaining in custody until February 2024 if not deemed eligible for release.

Mr. Marks and others similarly affected brought a late appeal against the sentence, arguing that the 2021 Act breached their rights under Articles 5, 6, and 7 of the European Convention on Human Rights (ECHR). The Court of Appeal agreed there was a breach of Article 7, which prohibits retrospective criminal penalties. However, the court found that it could not read the relevant provision of the 2021 Act in a way that removed the effect of the increased custody period. Instead, it issued a declaration of incompatibility under section 4 of the Human Rights Act 1998.

The Ministry of Justice is appealing this decision to the UK Supreme Court, and Mr. Marks has been granted leave to cross-appeal on the question of remedy. In the meantime, the provisions of the 2021 Act remain in force, and Mr. Marks remains in custody.

Mr. Marks sought the exercise of the Royal Prerogative of Mercy (RPM) from the Minister of Justice for the period of imprisonment beyond the judicially determined custodial period. The Minister refused, stating she had no power to exercise the RPM in this case, as it was a reserved matter under the Northern Ireland Act 1998.

The applicant's solicitors argued that the Minister did have the power to exercise the RPM, and the case was brought for judicial review. The court concluded that the matter was indeed reserved and dismissed the application for judicial review.