The Supreme Court has allowed Noel Callan’s appeal and declared him eligible to earn remission under Rule 59 of the Prison Rules, 2007, despite his original death sentence having been commuted to 40 years’ penal servitude.
The judgment, delivered by Mr Justice Clarke on 18 July 2013, concerns Callan’s sentence for the 1985 capital murder of Garda Sergeant Patrick Morrissey. His conviction stands. The President commuted the death sentence in 1986, on the Government’s advice, to 40 years’ penal servitude. Under the Criminal Law Act 1997, that term is treated as imprisonment.
The dispute was whether Callan had been “sentenced” to a term of imprisonment for the purpose of Rule 59. The State argued that he had not, because the 40-year term followed a presidential commutation rather than a court sentence. Callan argued that he qualified for the ordinary remission rules.
Clarke found that Callan’s detention rested on the combined effect of the court’s conviction and original sentence, the Government’s advice and the President’s commutation. A constitutionally permitted change to the penalty did not remove the essential character of Callan as a person serving a sentence imposed by a court, the judge held. He therefore fell within Rule 59.
The declaration makes Callan eligible, by good conduct, to earn remission of up to one quarter of his term under Rule 59(1). It also makes him eligible for consideration under Rule 59(2), which allows the Minister to grant remission of up to one third where the required conditions are met. The judgment does not itself grant remission or order Callan’s release.
The Court did not decide Callan’s alternative arguments, including challenges concerning the process used to set the commuted term and alleged unequal treatment compared with people convicted of a related form of murder after 1990. Clarke said those issues did not need to be resolved once the Rule 59 argument succeeded.