The High Court granted John Shaw leave to apply for judicial review of the Minister for Justice and Equality’s refusal to support two escorted outings a year, but dismissed his substantive challenge.
In a judgment delivered on 9 March 2018, Ms Justice Faherty found that the decision to refuse temporary release was not shown to be arbitrary, capricious or unjust. She also rejected challenges concerning the fairness of the Parole Board review process and the stamp duty charged for the proceedings.
Shaw, an English national who had been in custody in Ireland since 1976, was serving a life sentence imposed after his 1978 conviction for the murder, rape and false imprisonment of Mary Duffy. The judgment recounts that he had no temporary release during his imprisonment. The Parole Board’s fifth review recommended in October 2016 that he remain at Arbour Hill Prison for access to medical care and receive two days a year of escorted outings, subject to continued good behaviour and Irish Prison Service discretion.
The Minister accepted the recommendation that Shaw remain at Arbour Hill but declined to support the outings. The decision letter listed factors considered, including the offences, sentence, time served, prison conduct and reports from relevant agencies. A 2016 dynamic risk assessment had placed Shaw in a high risk category for reoffending, while a clinical review assessed the risk of serious harm as medium.
Shaw argued that the Minister had not explained why she rejected the Parole Board’s recommendation, leaving him unable to address the concerns in a future application. Justice Faherty said the letter could have stated the reason for rejecting the recommendation more plainly. Read as a whole and in the context of the review process, however, it gave sufficient information about the basis for the decision. The court said the Minister was not required to adopt the Board’s advice and that the court could not substitute its view of the merits.
The court also rejected Shaw’s complaint that he should have been allowed a lawyer at his Parole Board interview or an oral hearing before the Board. It found that he had opportunities to present his views, including interviews with two Board members, written submissions through his solicitors and a chance to comment on the interview report. The Board’s role was advisory; the Minister remained the decision-maker.
Finally, the court held that the stamp duty requirement was not unconstitutional in Shaw’s circumstances. His solicitor had paid the fee, and the judgment considered the Legal Aid Custody Scheme and a separate prisoner petition procedure relevant to access to the courts.
The judgment granted leave on the amended grounds and dismissed the substantive judicial review application. It did not order escorted outings.