The Supreme Court has ruled that a prisoner, whose original punishment of the death penalty was later commuted to forty years in prison, is serving a sentence and not a commutation, and is therefore entitled to remission on good behaviour.
Noel Callan has been in prison since June 27th, 1985. Mr. Callan was convicted and sentenced to death for the capital murder of Garda Sergeant Patrick Morrissey on December 3rd, 1985. His imprisonment under the sentence of death lasted until May 29th, 1986 - when the President of Ireland, on advice of the Government, commuted the death sentence to Penal Servitude to forty years. In 1997 Penal Servitude was abolished and replaced by imprisonment.
Counsel on behalf of Mr. Callan submitted that he is a prisoner serving a sentence of imprisonment. Therefore Mr. Callan is entitled to remission of at least one quarter, perhaps even up to one third, under section 11(5) of the Criminal Law Act 1997 and by article 59 of the Prison Rules 2007.
Originally Counsel submitted on behalf of the State that Mr. Callan is serving a "full sentence of forty years". When the case was heard in the High Court before Mr. Justice Michael Hanna, both parties agreed that Mr. Callan is, in law, a prisoner serving a sentence of forty years. Although the parties disagreed on whether the terms of the "sentence" excludes remission.
However, on day three of the High Court hearing the State called the Principal Officer in the Department of An Taoiseach to give evidence. Mr. Kennedy produced a letter in Court dated May 29th, 1986, from the Secretary of the Government to the President that contained the actual advice:
At a meeting held today, the Government decided to advise the President in the exercise of the power vested in him by Article 13.6 of the Constitution to commute to Penal Servitude for forty years the sentence of death by the Special Criminal Court on the 3rd of December 1985 on Noel Callan on his conviction of the capital murder of Garda Sergeant Patrick Morrissey. Pursuant to that decision, I have been directed by the Taoiseach to convey the Government's advice to the President to commute the sentence of death accordingly.
The advice in the letter does not specify that the commutation from the death penalty to penal servitude was on the understand that it would be served without remission. This caught Counsel for the State by surprise.
After the evidence of Mr. Kennedy, a new submission on behalf of the State argued that Mr. Callan is serving a commutation and therefore falls outside the scope of the Prison Rules. However, Mr. Justice Hardiman pointed out the difficulties with this argument:
It is suggested that [Mr. Callan] was liable to be held in custody for forty years without being subject to the obligations of, or entitled to the protections contained in, the Prison Rules. It must be doubted whether that form of imprisonment would comply with the Constitution or with the State's international obligations.
Accordingly, on appeal to the Supreme Court, a third submission was made on behalf of the State. Counsel submitted that Mr. Callan is not a sentenced prisoner but is entitled to the benefits of the Prison Rules with the exception of Rule 59.
Despite acknowledging the Government had continued to apply remission as if the rule applied to prisoners serving sentences of penal servitude, Counsel for the State suggested that remission could not apply to Mr. Callan because precedent held that the predecessor to Rule 59 did not apply to such prisoners. Expressing his "grave distaste" for such arguments, Mr. Justice Hardiman quipped:
It would have been quite possible to amend the Prison Rules but this was not done. Instead, it was simply decided to proceed as though the Carney case had never happened [...]. The State case continued in this way until Penal Servitude was itself abolished in 1997, forty years after Carney was decided. But, fourteen years later again, when [Mr. Callan] claimed he was entitled to remission it was solemnly decided to rely on Carney [...].
The eventual case submitted on behalf of the State was that Mr. Callan is serving a commutation and not a sentence. However this argument was rejected by Mr. Justice Hardiman on four grounds.
One, when Mr. Callan challenged the legality of his detention under Article 40 the Governor of the Prison established the legality of his detention citing the order of the Special Criminal Court, the advice of the Attorney General, and the letter dated May 29th, 1986.
Two, the forty year period of imprisonment was described by the State as a sentence.
Three, all prisoners sentenced to Penal Servitude of forty years have been released by Executive action.
Four, the submission on behalf of the State that Mr. Callan is serving a commutation is "in terms of logic, law and language" nonsense, as it means "the action or process of changing or altering.
Therefore Mr. Callan was awarded a Declaration stating that he is eligible to earn remission by good conduct under Rule 59(1) of the Prison Rules 2007.
