Loyalist killer was unlawfully granted early release and should be sent back to jail, says judge
A convicted loyalist killer was unlawfully granted early release and should be sent back to jail, a High Court judge ruled today.
Robert Clarke, 73, received a minimum 25-year prison term in 2011 for the historic murder of Catholic chip shop owner Alfredo Fusco.
He served just two years behind bars before being freed on licence under the terms of the Good Friday Agreement.
Mr Justice Scoffield quashed the decision taken by Sentence Review Commissioners (SRC) because Clarke’s offences did not qualify for the early release scheme at that time.
“The effect of this will be that (he) no longer has a right to be released and is liable to be returned to prison,” the judge held.
Clarke was allowed a period of time to get his affairs in order and to mount an appeal against the verdict reached in proceedings brought by the Secretary of State.
Mr Fusco, 53, was shot dead after two gunmen entered his cafe in the York Road area of north Belfast back in February 1973. One of the intruders chased the victim to a storage area and opened fire as he attempted to barricade himself behind a door.
In 2011 Clarke, formerly of Dundrod Road, Nutts Corner, was convicted of the murder after new fingerprint technology was used to identify his prints at the scene.
The sentencing judge said Mr Fusco had been “singled out to be assassinated in a brutal and terrifying manner”.
By that stage Clarke had already served a 15-year term in jail for a separate sectarian killing. North Belfast woman Margaret O'Neill, 58, was gunned down in a drive-by shooting in June 1975.
The 25-year tariff imposed on Clarke following his second murder conviction is not due to expire until February 2036.
But the double killer was freed again in 2013 after the SRC declared him eligible for early release within provisions of the Northern Ireland Sentences Act 1998.
Counsel for the Secretary of State argued that he did not qualify for the scheme covering a defined period of terrorist-related crimes.
The murder of Mr Fusco was committed six months before the relevant emergency legislation for scheduled offences came into force, the court heard. Mr Justice Scoffield identified an error in law in the Commissioners’ decision.
“The clear position is that the SRC (albeit unwittingly and inadvertently) acted contrary to the statutory scheme which governed both their functions and Mr Clarke’s eligibility for release,” he said.
“In doing so, they granted a declaration which they were not legally entitled to grant; and to which Mr Clarke (at that time) had no legal entitlement.”
Dealing with a separate bid to have Clarke forced to return to jail, the judge indicated he has been wrongly at liberty for many years.
He also stressed both the “compelling public interest” in serving sentences and ensuring retribution for “heinous” crimes.
“The early release scheme provided for in the 1998 Act is an extraordinary departure from the normal demands of criminal justice,” the judge said.
Despite acknowledging Clarke’s advancing years and health problems, he stated: “Age and infirmity are also not reasons why a sentence of imprisonment should not be given effect.”
Lawyers representing the convicted murderer claimed legislative amendments introduced by the new Legacy Act mean he will inevitably be released again.
But Mr Justice Scoffield refused to make any assumptions about the outcome of a fresh application to the SRC.
Quashing the decision to grant Clarke eligibility for early release, he added that the ruling would reflect society’s “abhorrence” of his offending.
“The notice party has been convicted, on two occasions, of the most vile sectarian attacks, robbing innocent citizens of their lives, without thought for their dignity or the pain and hardship which would be caused to their loved ones,” the judge declared.
“He now seeks to avoid - indeed, further avoid - the duly imposed punishment for some of his
crimes, in the absence of having legitimately and validly availed of the extraordinary scheme provided by Parliament to facilitate early release only in certain circumstances and under certain conditions.”
Mr Justice Scoffield agreed not to make a final order at this stage after Clarke’s legal representatives confirmed their intention to lodge an appeal.