Rodger's (Robert James Shaw) Application
| Jurisdiction | Northern Ireland |
| Judge | Stephens J |
| Judgment Date | 2014 |
| Neutral Citation | [2014] NIQB 79 |
| Date | 18 June 2014 |
| Court | Queen's Bench Division (Northern Ireland) |
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Neutral Citation No. [2014] NIQB 79 Ref:
STE9288
Judgment: approved by the Court for handing down Delivered:
18-6-14
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
Rodger’s (Robert James Shaw) Application [2014] NIQB 79
IN THE MATTER OF AN APPLICATION BY ROBERT JAMES SHAW
RODGERS FOR JUDICIAL REVIEW
________
STEPHENS J
Introduction
[1] On 25 September 1974 Robert James Shaw Rodgers, the applicant,
murdered Kieran William McIlroy at Parkend Street, Belfast. A member of the
public who witnessed the offence pointed the applicant out to an army patrol.
Following his arrest and caught red-handed with the murder weapon, the
applicant pleaded guilty at Belfast City Commission on 11 February 1975. He
was sentenced to life imprisonment. The only possible motive for this murder
was the victim’s religion. After approximately 16 years he was released from
prison on licence in July 1990. The applicant’s evidence is that after his release,
he consciously decided to “move away from violence” and paramilitary
activity. That he went to university and became heavily involved in youth and
community work, including cross-community work. In short, that he left his
past life behind him.
[2] However, the murder of Mr McIlroy was not the only murder committed
by the applicant. On 30 September 1973 he murdered Eileen Doherty at
Annadale Embankment, Belfast. The factual background to that murder
included the use of a hijacked taxi which was later found and from which palm
prints were taken. Years later and in 2009, improvements in technology and the
work of the Historical Enquiries Team, led to the electronic matching of the
prints to the applicant. On 14 December 2010 the applicant was arrested on
suspicion of her murder. On 14 February 2013 he was convicted by Horner J of
that offence (see judgment under citation [2013] NICC 2) and a life sentence was
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imposed. On 15 March 2013 Horner J fixed 16 years as the minimum term to be
served by the applicant (see judgment under citation [2013] NICC 4).
[3] Both murders were sectarian. Both were committed in connection with
terrorism and the affairs of Northern Ireland.
[4] The applicant contends that if he had been sentenced for both of these
offences prior to 28 July 1998 he would have been released under the provisions
of the Northern Ireland (Sentences) Act 1998 (“the 1998 Act”). That he has
already served more than two years for an offence in connection with terrorism
and the affairs of Northern Ireland. That in the past having served two years
was the criteria applied in other cases and that the exercise of the Royal
Prerogative of Mercy (“the RPM”) or some other method, was used to enable
prisoners to be released if they had served more than two years in prison in
either the United Kingdom or Ireland for pre 10 April 1998 troubles-related
offences. The 10 April 1998 being the date of the Belfast Agreement, otherwise
known as the Good Friday Agreement. That, in the circumstances, the failure
by the Secretary of State, on 22 April 2013, to recommend the exercise of the
RPM was unlawful. The grounds upon which the applicant relies are that:
(a) His case fits within a category of analogous cases in which the RPM has
previously been exercised by the then Secretary of State expressly to
supplement the provisions of the statutory early release scheme
contained in the 1998 Act and to address cases which fall “within the
spirit” although not the letter of the scheme established pursuant to the
Belfast Agreement, that there has been an “unfair or unequal approach to
the exercise of the RPM” between his case and other cases in which the
RPM was exercised and that the unfairness or unequal approach is to
such a degree as to establish illegality.
(b) The applicant has a legitimate expectation that the RPM would be
exercised in his case on the basis of the policy which was previously
operated, which policy it is submitted, can be discerned from the cases in
which the RPM was previously exercised.
(c) In the alternative, if the Secretary of State in fact had no policy in relation
to the exercise of the RPM in conjunction with the 1998 Act, that itself
was unlawful. Firstly, the respondent’s failure to define the policy was
procedurally unfair because a person, such as the applicant, could not
make meaningful representations as to the use of the RPM in his case if
he was unaware of the factors to be taken into account. Secondly, the
failure to have a policy would be in breach of Article 5 ECHR, since the
completely unfettered use of the RPM was likely to give rise to arbitrary
and capricious detention. For detention to be lawful the legal rules
governing it must be adequately accessible and precise, and not
arbitrary. For instance if a distinction is made between those who benefit
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from the exercise of the RPM and those who do not, the applicant is
entitled to know what these distinctions are in order to ascertain whether
the distinctions fall foul of the prohibition on discrimination (within the
ambit of Article 5) under Article 14 ECHR on the basis of unequal
treatment being afforded to prisoners depending on whether they were
nationalists or loyalists.
(d) The reason given by the Secretary of State was that the RPM had not
previously been used to relieve an offender of the obligation to serve 2
years in relation to one offence where the offender had served 2 years in
relation to another offence was in fact incorrect. The applicant asserts
that in the case of James McArdle the fact that he had served 2 years in
relation to offences committed in England was the reason or one of the
reasons for exercising the RPM so that he did not have to serve 2 years
for offences committed in Northern Ireland.
(e) The categorisation of the cases in which the RPM had been exercised did
not accurately reflect what had previously occurred. Accordingly that
the Secretary of State had approached the exercise of her discretion in the
applicant’s case leaving out of account the correct factual background to
the previous use of the RPM in the context of the 1998 Act.
(f) The Secretary of State has failed to give any or adequate reasons for her
decision not to recommend the exercise of the RPM to the applicant.
(g) There has been discrimination on the basis of unequal treatment being
afforded to prisoners depending on whether they were nationalists or
loyalists.
[5] Leave to apply for judicial review was initially refused ([2013] NIQB 69)
and the applicant successfully appealed that decision to the Court of Appeal.
The matter now comes before this court for determination.
The statutory framework and the Royal Prerogative of Mercy (“the RPM”)
[6] The Belfast Agreement dated 10 April 1998 between the Government of
the United Kingdom of Great Britain and Northern Ireland and the
Government of Ireland followed intense negotiations involving the political
parties in Northern Ireland and the Governments of the United Kingdom and
Ireland. Annex B to the Belfast Agreement contained a commitment by both
Governments to “put in place mechanisms to provide for an accelerated
programme for the release of the prisoners ….” In addition it was also stated
that “the intention would be that should the circumstances allow it, any
qualifying prisoners who remained in custody two years after the
commencement of the scheme would be released at that point.”
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