The High Court has dismissed Noel Callan’s claim that he should be eligible to earn remission on a 40-year term of penal servitude imposed when his death sentence was commuted in 1986.
In a judgment delivered on 15 April 2011, Mr Justice Michael Hanna held that Mr Callan was serving a presidential commutation, rather than a prison sentence imposed by a court. The distinction meant that the remission provisions he relied on did not apply to his detention.
Mr Callan had been sentenced to death in 1985 after his conviction for the capital murder of Garda Sergeant Patrick Morrissey. The judgment recounts that Mr Callan and Michael McHugh took part in a robbery in Ardee in June 1985. Sergeant Morrissey was shot and killed while pursuing them. Mr Callan’s death sentence was commuted by the President, acting on Government advice, to 40 years’ penal servitude in May 1986. The commutation decision contained no conditions about remission.
Mr Callan argued that the absence of remission conditions made him eligible for standard remission. He also relied on provisions of the Criminal Justice Act 1990, argued that the difference between his position and that of people sentenced under that Act breached constitutional equality, and challenged the character and fairness of the commutation process. He further sought a declaration that a provision of the Offences Against the Person Act 1861 was incompatible with the European Convention on Human Rights.
The court held that remission under the Criminal Justice Act 1951 and the Prison Rules applied to court-imposed sentences, not a punishment substituted by presidential commutation. It also held that the 1990 Act’s remission regime did not cover Mr Callan: he had not been convicted or sentenced under the relevant provisions. The judge said the Constitution, as it stood when the Act was passed, would in any event have prevented the transfer of the President’s power to remit capital sentences to another authority.
The judge rejected the equality argument, finding that the difference reflected the prospective operation of legislation. He held that commutation was an executive act of clemency and that Mr Callan had no right to fair procedures in the decision to grant it. The court also found the 1861 provision could not support the declaration sought: it had been repealed before the 2003 human-rights legislation took effect, which the judge held was not retrospective.
The judgment did not reconsider Mr Callan’s conviction or the commutation. The court said it could not look behind the earlier orders. It dismissed the claim.