Judgment clears path to Callan’s release

Noel Callan was 22 years old when Michael McHugh, an older workmate, approached him with a plan to rob the labour exchange in Ardee, Co Louth.

The robbery went ahead on June 27th, 1985. Once they had taken £25,000, the pair fled the scene in the manager’s car before switching to a motorbike.

The plan quickly went awry. Sgt Patrick Morrissey (49) pursued the two men as they made their escape, and at a place called Rathbrist Cross they crashed the motorbike into an oncoming car, leaving Callan injured.

He made his way up a laneway to a farmhouse; as he reached the house he heard a shot. About two or three minutes passed. Then he heard a second shot.

The men's trial heard the first shot was fired by McHugh and hit Sgt Morrissey in the leg. After what the trial judge described as "an appreciable interval", McHugh walked up to the injured garda and shot him in the head.

'Cold-blooded murder'

"This was an act of cold-blooded murder," wrote Mr Justice Adrian Hardiman in his judgment yesterday, against a "courageous, indeed heroic" servant of the State.

According to Callan’s uncontradicted account, he played no direct part in the shooting, but he was convicted of murder on the basis of “common design”.

McHugh and Callan were both sentenced to death, but the sentences were later commuted to 40 years' imprisonment. In a sense the Supreme Court case decided yesterday turned on the meaning of that word: commutation.

In the earlier High Court proceedings, the State made various contradictory arguments against giving Callan the right to be considered for remission, a right that could reduce his 40-year term by up to a third. Mr Justice Hardiman described some of these arguments caustically as "breathtaking in their technicality" and of "grave distaste". At one point, he noted, the State tried to rely on a 40-year-old Supreme Court judgment which the State itself had ignored for 15 years.

By the time the case came to the Supreme Court, the State narrowed its argument to one net point. Callan should not be allowed to be considered for remission because he was not serving a sentence but was “serving a commutation”.

The five-judge court unanimously rejected that view. “I believe that, in terms of logic, law and language, this is a nonsense,” wrote Mr Justice Hardiman. Having drawn on the dominant Irish-language version of the Constitution, where commutation is expressed as maolú (mitigation), as well as the Latin origin of the word commutation (its root is mutare, or to change) and standard English dictionary definitions of the word, the judge concluded: “The notion of ‘serving a commutation’ is a nonsense for it means ‘serving a change’.”

"It seems to me," wrote Mr Justice Frank Clarke in a separate judgment, "that in ordinary usage Mr Callan would be described as serving a sentence, albeit one which had been varied from that originally imposed."

Path to release

As a consequence, the court ruled, Callan is eligible for remission under prison rules – a decision that in effect clears the path to his release.

The judgment may also have wider implications. It could benefit the small number of other individuals who were given the 40-year capital sentence for killing a garda and who were ineligible for release under the terms of the Belfast Agreement.

Moreover, it is noteworthy that both judges Hardiman and Clarke declared that Callan should be eligible not only for standard remission of one-quarter but also for greater, or enhanced, remission. This latter type, which amounts to one-third off a sentence, was inserted as rule 59.2 of the prison rules in 2007 for those who demonstrated they were engaging in further structured activities while in prison.

Enhanced remission

According to Liam Herrick, executive director of the Irish Penal Reform Trust, only one person has so far benefited from enhanced remission and no system has been put in place setting out how it should work in practice. "The judgments would seem to suggest that rule 59.2 should have some meaning and that there should be in place a system by which people can qualify for the higher rate of remission," Mr Herrick said yesterday.