Published Wednesday, 18 June 2014
Eileen Doherty, who was murdered in Belfast in 1973. (© Pacemaker)
Robert Rodgers claimed he suffered unfair and unequal treatment over being denied release from prison under the discretionary government power.
But a judge ruled that there was no illegality in the Secretary of State's decision not to grant him a Royal Prerogative of Mercy (RPM).
Rodgers, 60 and formerly of Tierney Gardens, Belfast, was found guilty last year of the historic murder of Eileen Doherty in September 1973.
Ms Doherty, a 19-year-old Catholic, was shot three times after her taxi was hijacked by gunmen in the south of the city.
He has previously served 15 years of another prison sentence for the killing of a Catholic man a year after the murder of Ms Doherty.
Ciaran McElroy, 18, was shot in September 1974 on Park End Street, Belfast.
Despite being jailed again for life, Rodgers is set to be freed early next year under the terms of the Good Friday Agreement.
But his legal team claimed he should still be considered for an RPM.
They argued that if he had been convicted and sentenced for Ms Doherty's murder prior to the 1998 peace deal he would have been released, having already served more than two years for the separate terrorist-related killing of Mr McElroy.
Rodgers claimed the RPM had been used in other cases which saw republicans get out of jail.
During his judicial review hearing, it emerged that between 2000 and 2002 the pardons were granted 16 times in the context of the Northern Ireland (Sentences) Act 1998.
These included four categories
- To correct anomalies in the treatment of offenders given the same sentence as co-defendants who would otherwise serve longer in prison
- To release prisoners who would have been eligible for release under the Good Friday Agreement had they not been transferred from a different jurisdiction
- To release prisoners who would have been eligible had their offences been categorised as scheduled at the time they were committed
- To release prisoners who would have been eligible had they not served their sentences overseas.
Since then there have been three requests, all of which were refused.
Along with Rodgers, the other two were former IRA man Gerry McGeough, jailed for the attempted murder of part-time soldier Samuel Brush in 1981, and Robert James Clarke, who received a life sentence for shooting dead chip shop owner Alfredo Fusco in Belfast in 1973.
The Secretary of State turned down Rodgers' application on the basis that he had been convicted of an entirely separate offence and that no anomaly existed in his case.
Delivering judgment on the legal challenge on Wednesday, Mr Justice Stephens held that any variance from the terms of the 1998 Act only occurred in limited and highly fact dependent circumstances.
He found that the Secretary of State had not fundamentally changed the legislative scheme and rejected claims of an unfair or unequal approach in Rodgers' case.
The judge stated: "Any policy that as created could only reiterate the legislative intent that a person subsequently convicted should serve two years in relation to any sentence imposed before being entitled to accelerated release, and then go on to state that each case will be considered on its particular facts."
He confirmed: "I reject the applicant's challenge on the basis on unfairness or inequality."
© UTV News