A man in his 28th year of a 40 year sentence for the murder of a "heroic" Garda could be freed almost immediately after a five judge Supreme Court unanimously ruled he is entitled to statutory remission, including the greater remission available for good behaviour.
Noel Callan (50) was jailed in 1985 with a co-accused Michael McHugh for the murder of Sergeant Patrick Morrissey but their death sentence were later commuted by the President, on advice of the Government, to 40 years penal servitude.
His lawyers Deirdre Murphy SC described as “hugely unfair and unwarranted” the State’s refusal to allow him remission when he was not directly involved in the actual shooting of Sgt Morrissey and when several others jailed for capital murder whose death sentences were commuted to 40 years were either freed or got temporary release before the end of 40 years.
The decision means he will be freed by 2016 at the latest but the court also ruled Callan, previously described as a “model prisoner”, is eligible for higher remission of one third with the effect he could be freed immediately.
Mr Justice Adrian Hardiman, with whom the other judges agreed, described as "nonsense" and "breath-taking in their technicality" various contradictory arguments advanced by the State in the High Court to support its claims Callan was not entitled to remission. The court's attitude to some of the arguments advanced was one of "grave distaste", he added.
Having abandoned several arguments, including relying on a 40 year old Supreme Court decision the State itself had ignored for 15 years, the State had ultimately argued before the Supreme Court Callan was not serving a “sentence” at all but rather “a commutation”.
The State previously argued commutation was granted on the basis of no remission but, during the High Court hearing, it for the first time produced documents dating back to 1986, indicating no such condition was attached.
It was clear lawyers for the State were unaware until then of that document and its production led to a “complete volte face” in the State’s arguments, Mr Justice Hardiman said.
In separate judgments, Mr Justice Hardiman and Mr Justice Frank Clarke, granted Callan’s appeal against the High Court’s rejection of his case and granted a declaration he is a prisoner serving a sentence of imprisonment to whom remission applies under the Prison Rules, including the higher remission for good behaviour.
Mr Justice Hardiman also paid tribute to Sgt Morrissey, describing him as “a courageous, indeed heroic, servant of the State”. Sgt Morrissey’s widow was in court.
Callan, formerly of Cullaville, Castleblayney, Co Monaghan, was aged 22 when convicted with Mr McHugh by the non-jury Special Criminal Court in 1985 of the capital murder of Sgt Morrissey (49) at Rathbrist, Tallanstown, on June 27th, 1985 following an armed robbery the same day at Ardee labour exchange.
Sgt Morrissey, while pursuing the robbers, was initially wounded by McHugh, Clonalig, Crossmaglen, Co Armagh, who then went back and “executed” him, Callan’s lawyers argued. Both Callan and McHugh were sentenced to death for murder but their sentences were commuted to 40 years penal servitude.
Mr Justice Hardiman said the shooting of Sgt Morrissey was “an act of cold-blooded murder”. He was first shot in the leg by McHugh, who minutes later then walked up to him and shot him in the head.
The judge noted Callan’s claim he played no direct part in the shooting was not contradicted. Callan was not physically present as he had made his way to a farmhouse after suffering head and leg injuries when the motorbike on which he and McHugh were trying to escape crashed.
Callan had later given perjured evidence he had no involvement in the robbery but, while that could not be excused, it could be explained by the fact he was put on a wing in Portlaoise Prison just after the murder with McHugh and members of the INLA including the “notorious” Dessie O’Hare, the judge said.
Callan had claimed McHugh had threatened him against doing anything that would prejudice McHugh’s claims of being involved, the judge noted.
