Shaw v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 09 March 2018 |
| Neutral Citation | [2018] IEHC 288 |
| Docket Number | [2016 No. 179 J.R.] |
| Court | High Court |
| Date | 09 March 2018 |
[2018] IEHC 288
THE HIGH COURT
Faherty J.
[2016 No. 179 J.R.]
AND
Judicial review – Temporary release – Fair procedures – Applicant seeking judicial review by way of declaratory orders and/or orders of mandamus and/or certiorari arising from the decision of the first respondent – Whether the operation of the current system governing the granting of temporary release did not afford the applicant a fair and effective system for applying for rehabilitative release
Facts: The applicant, Mr Shaw, in a telescoped hearing, sought the leave of the High Court for judicial review by way of declaratory orders and/or orders of mandamus and/or certiorari arising from the decision of the first respondent, the Minister for Justice and Equality, dated 29th November, 2016, refusing to grant the applicant limited temporary release, specifically, the first respondent’s refusal to support the recommendation of the Parole Board that the applicant be granted two days per annum of escorted outings. The applicant challenged the decision of 29th November, 2016, on the basis that: (i) it failed to meet the natural law requirement to give reasons for decisions; and (ii) the operation of the current system governing the granting of temporary release did not afford the applicant a fair and effective system for applying for rehabilitative release. The applicant also challenged, as unconstitutional, the requirement on him to pay stamp duty in order to allow the proceedings to be taken.
Held by Faherty J that, in all the circumstances, she was satisfied that the first respondent had provided a suitably rationalised response to the Parole Board’s recommendation that the applicant be granted two days escorted outings per year. Accordingly, she did not find the “reasons” challenge to be made out. In all the circumstances, she was satisfied that the applicant had been afforded the full panoply of fair procedures due to him. Accordingly, she held that the fair procedures ground had not been made out. In all the circumstances, she was satisfied that it was not unconstitutional for the State to impose a stamping fee for the processing of documents.
Faherty J held that she would order: (ii) that leave be granted to apply for judicial review in terms of the applicant’s amended statement of grounds; (iii) that the substantive application for judicial review be dismissed.
Application dismissed.
This is a telescoped hearing in which the applicant seeks the leave of the Court for judicial review by way of declaratory orders and/or orders of mandamus and/or certiorari arising from the decision of the first respondent dated 29th November, 2016, refusing to grant the applicant limited temporary release, specifically, the first respondent's refusal to support the recommendation of the Parole Board that the applicant be granted two days per annum of escorted outings.
The applicant is the longest serving prisoner in the history of the State. He is an English national. He has been in custody in this jurisdiction since September 1976. The background to his incarceration is set out in a garda report dated 14th July, 2003, which is part of the applicant's file as exhibited in the grounding affidavit sworn by his solicitor in the within proceedings. It states as follows:-
‘Shaw travelled to Ireland in 1974 with Geoffrey Evans. In February 1975, having committed a number of burglaries they were sentenced to two years imprisonment. On their release in 1976, they travelled around the country again committing a number of crimes. On 28/08/76, they went to Fethard and borrowed a car from a local man. They travelled to Dublin to collect property belonging to Evans. Following this, they drove to Wicklow, they passed a girl, Elizabeth Plunkett, walking near Brittas Bay. They offered her a lift to Dublin and she accepted. She was then subjected to horrific sexual assaults and her body subsequently dumped in the Irish Sea.
On Wednesday, 22/09/76, they travelled to Castlebar where he observed the victim, Mary Duffy walking alone. They dragged her into their car and repeatedly raped her while they drove to Ballynahinch. There she was abused and raped over a period of two days until 24/09/76 when they murdered her and disposed of the body by weighing it down and dumping her in Lake Inagh. Shaw was charged with and convicted of (1) Murder, (2) Rape, (3) False Imprisonment at the Central Criminal Court, Dublin, on 09/02/1978.’
Both the applicant and Geoffrey Evans were charged with the murder of Elizabeth Plunkett but a nolle prosequi was entered following their convictions for the murder, rape and false imprisonment of Mary Duffy.
Over the years of his incarceration, the applicant's case has been the subject of a number of reviews which were undertaken in April 1990, May 1991, June 1994, June 1997, and May 2000 by the Sentence Review Group, and subsequently on five occasions by the Parole Board, the body which replaced the Sentence Review Group. Reviews by the Parole Board took place in 2006, 2008, 2010 and 2013. The fifth review – the subject of the within application – commenced in early 2016, and culminated with the decision of the first respondent of 29th November, 2016.
In the course of its reviews over the years, the Parole Board made various recommendations in respect of the applicant. Following the conclusion of the first review in 2006, the Board noted, inter alia, that the applicant had then been in custody for more than twenty nine years, more than half his life, but the Board was of the view that a recommendation for any type of temporary release ‘was not appropriate at this time’. It was, however, satisfied that the applicant be considered for transfer to a more open custodial setting and recommended a transfer to Castlerea Prison with the view to his being accommodated ultimately in the Grove area of that institution. On 14th February, 2006, the first respondent's predecessor agreed with the recommendation that the applicant be transferred to Castlerea. It was stated, however, that this was ‘not an indication that Mr. Shaw will be given release in the foreseeable future’. In April 2006, the applicant was duly transferred to Castlerea and he moved to the Grove area of the prison in May 2006.
The applicant had in fact previously been transferred to Castlerea, following a recommendation of the Sentence Review Group. However, as he had not been moved to the Grove area as had been recommended, he requested a transfer back to Arbour Hill prison, where he remained until the move to Castlerea in April, 2006.
In the course of the Parole Board's second review, the applicant requested that he be considered for escorted visits out, a request which was considered reasonable in the report of the Probation Officer dated 6th November, 2007, albeit there was ‘some degree of risk attached’.
The upshot of the second review is contained in the letter of 17th November, 2008 from the Parole Board to the first respondent's predecessor wherein, inter alia, the Board noted that the applicant had settled well in the Grove area of Castlerea and that his behaviour was recorded as being impeccable. The letter went on to state:-
‘The Board accepted that the risk of Mr. Shaw committing offences has been reduced by the passage of time but it was concerned by his pattern of offending and the difficulties his case presents in terms of a risk assessment. While cognisant that Mr. Shaw has been in custody on his current sentence for more than thirty years, the Board was not prepared to recommend release or a transfer to more open custodial conditions for him. The Board recommends that Mr. Shaw be considered for occasional escorted outings to support the progress he has made in adapting to the more normal conditions in the Grove. The Board proposes to review Mr. Shaw's case again in about two year's time.’
The first respondent's predecessor did not agree with the Board's recommendation. This was communicated to the applicant by letter of 9th January, 2009.
The third review commenced in or about June 2010. The report of the Prison Review Committee noted the applicant's wish for ‘an escorted day out which has been refused to date’. It also noted that the applicant ‘was assessed as a very high risk to re-offend, due to the static values in his case, which are mainly due to his previous offending’. The Probation Officer's report noted that the applicant's ‘risk level is assessed as very high, despite his age’. The risk assessment was carried out using ‘the RM2000 Risk Assessment’ tool, which was based on static factors such as the previous sexual convictions and victim characteristics. The report noted that ‘[a]s a result, this risk level will never decrease as those factors do not change. It is important to note that it is 34 years since his last sexual conviction. The other sexual convictions were 40 years old.’
The Probation Officer's recommendation was as follows:-
‘John Shaw has served 34 years of a life sentence and has thus far been granted no concessions. He is anxious to receive some acknowledgment for the work he has done with all relevant services and for his good prison conduct. I would recommend that he receive an escorted day out and Mr. Shaw has indicated that he would abide with any and all conditions associated with this. Mr. Shaw should also continue his work with the Probation Service in a meaningful manner.’
In its letter to the first respondent's predecessor dated 21st January, 2010, the Parole Board noted that while the first respondent had previously accepted the Board's recommendation to transfer the applicant to Castlerea, the recommendation in the second review for...
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