The State's treatment of a man entering his 28th year of imprisonment for the murder of a garda amounts to "huge and unwarranted unfairness", the Supreme Court was told by his counsel yesterday.
Noel Callan (50), formerly of Cullaville, Castleblayney, Co Monaghan, was aged 22 when convicted by the non-jury Special Criminal Court in December 1985 of the capital murder of Sgt Patrick Morrissey (49) at Rathbrist, Tallanstown, on June 27th, 1985, following an armed robbery the same day at Ardee labour exchange.
Sgt Morrissey was wounded by Callan’s co-accused, Michael 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 of imprisonment.
Callan’s counsel, Deirdre Murphy SC, argued yesterday that several others jailed for capital murder, whose death sentences were commuted by the president to 40 years, had been freed or got temporary release before the end of 40 years but the State continued to insist Callan was not entitled to be considered for remission because his sentence was commuted. The State initially argued Callan was not entitled to remission as the president’s decision commuting his death sentence to 40 years of penal servitude was made on the understanding the full sentence of 40 years would be served “without remission”, counsel said.
On the third day of the High Court hearing, there was a “volte face” in the State’s case after a file was produced which included the actual advice of the government to the president on Callan’s case, she said. The advice was his sentence should be commuted to 40 years but made no reference to remission.
The State then proceeded to argue for the first time, in direct contradiction of its pleaded defence, Callan was not serving a “sentence” at all but rather a “commutation” which, it argued, placed him outside the prison rules.
Paul O’Higgins SC, for the State, said its position was, when a sentence is commuted, the right to statutory remission is lost.
The five-judge court yesterday reserved judgment.