Publication date:
The PPS respects the role of the independent judiciary in sentencing offenders. We also have a duty to protect the integrity of any potential proceedings and we are therefore limited in publicly commenting on this case whilst the Director of Public Prosecutions gives consideration to whether the sentences imposed should be referred to the Court of Appeal as unduly lenient.
However, we also understand the public interest relating to the recent sentencing of the two defendants who were prosecuted and pleaded guilty to a number of offences under the Firearms (Northern Ireland) Order 2004. Regrettably some of the recent commentary on and coverage of this case has contained a number of factual inaccuracies, and in the interests of transparency and public confidence the PPS would like to clarify the following points.
Charges brought by the prosecution
The Firearms (Northern Ireland) Order 2004 creates offences in relation to the unlawful possession of firearms. These are the standard offences used to prosecute offending of the type that arose in this case, whether that offending is alleged to have a terrorist or non-terrorist connection. A number of the offences prosecuted in this case carried a maximum sentence of 10 years imprisonment.
Consideration was given to whether additional offences should be prosecuted. After careful consideration of all the evidence submitted by police, it was concluded that there was insufficient evidence to prosecute either defendant for any additional offence, including a terrorist offence, such as membership of a proscribed organisation. To prosecute for such an offence there needs to be admissible evidence upon which a Court could be sure that a defendant is a member, and not merely an associate of members of a proscribed organisation, or a supporter of any such organisation.
Statements in the media in relation to a defendant’s alleged position within a proscribed organisation do not constitute admissible evidence.
The PPS is satisfied that the correct offences were prosecuted in this case. They properly reflected the criminality alleged and provided the Court with adequate powers in terms of sentencing.
Entering of guilty pleas
In this case both defendants were set to contest the charges against them before changing their position and entering pleas to all charges on the day of trial. There was no deal or agreement either sought by, or agreed with the prosecution, that preceded this change of plea. Neither was the entering of the guilty pleas contingent on any concessions being made by the prosecution. The decision to plead guilty to the charges brought was a matter entirely for each of the defendants and their legal teams.
Court determination of whether there is a “terrorist connection”
Cases involving firearms that have a terrorism context have been prosecuted using the firearms legislation for decades, regardless of whether there is a suspected loyalist or republican association involved. The same approach is taken in respect of cases involving explosives, where prosecutions are brought under the Explosive Substances Act 1883. A prosecution for “terrorist” offending may or may not include a charge under the terrorism legislation, depending upon the particular circumstances. In all cases which do not feature a specific terrorism charge it has always been open to sentencing courts to determine that the offending was terrorist in nature and to treat that as an aggravating feature. Therefore the prosecution does not have to involve a specific offence under terrorist legislation for the court to be able to find that that there is a terrorist connection to the offending.
This approach has been formalised in statute since 2019 and where it appears that an offence may have a terrorist connection, a Court is obliged to determine whether that is the case. Such a finding constitutes an aggravating factor (as before) but may also have consequences for the future release of the offender on licence and in respect of notification requirements imposed upon the offender. A Court can make such a finding where there is admissible evidence which proves to the criminal standard of proof that the offence was, or took place in the course of, an act of terrorism; or where the offence was committed for the purpose of terrorism. Terrorism for this purpose has a specific definition under section 1 of the Terrorism Act 2000.
Contrary to some commentary on this matter, in this case the prosecution did not and could not have removed from the court any ability to find that the offending in this case had a terrorist connection. The written submission from the prosecution on this point was:
The Prosecution are not in a position to point to evidence of any specific act of terrorism relating to the offences in his case. In terms of evidence relevant to the question of whether it was committed for the purpose of terrorism we rely upon the material that was found in the premises/devices of both of the Defendants associating them with the UVF. It is a matter for the Tribunal of Fact to consider whether these offences have a "terrorist connection".
Exceptional circumstances
The finding by the court that there were exceptional circumstances to justify a sentence less than the statutory minimum sentence of 5 years in respect of Winston Irvine was a separate aspect of the sentencing exercise to that which involved the determination by the court as to whether the evidence established a terrorist connection to the offending. The ability to depart from the minimum sentence is provided for within the relevant firearms legislation and is available to the Court regardless of whether or not the offending is found to have a terrorist connection.
Consideration as to whether there is a basis to make a reference to the Court of Appeal
Whilst sentencing is a matter for the independent judiciary, as noted above, the Director of Public Prosecutions is currently giving consideration to referring these sentences as unduly lenient. This is a formal process. The full sentencing remarks and submissions are being obtained, and the advices of Senior Counsel sought, to assist in determining whether there is a proper legal basis to refer the sentence to the Court of Appeal. A decision to refer must be taken within 28 days of the date on which the sentence was imposed.
ENDS
Notes to Editors:
- The date by which a referral to the Court of Appeal must be made in this case is 17th June 2025.
- An unduly lenient sentence is one that falls outside the range of sentences that a judge, taking into consideration all relevant factors and having regard to sentencing guidance, could reasonably impose. The sentence must not just be lenient, but unduly lenient.
- Section 30 of the Counter-Terrorism Act 2008 provides for the Court to determine whether an offence has a terrorist connection. The definition of a terrorist connection is provided for at section 93 of the Counter-Terrorism Act 2008.
- Article 70 of the Firearms (Northern Ireland) order 2004 provides for minimum sentences for certain specified firearms offences unless the court is of the opinion that there are exceptional circumstances which justify its non-imposition.