Callan v Ireland & AG
| Jurisdiction | Ireland |
| Judge | Mr. Justice Michael Hanna |
| Judgment Date | 15 April 2011 |
| Neutral Citation | [2011] IEHC 190 |
| Court | High Court |
| Date | 15 April 2011 |
[2011] IEHC 190
THE HIGH COURT
BETWEEN
AND
CRIMINAL PROCEDURE ACT 1993 S2
CRIMINAL PROCEDURE ACT 1993 S3
COURTS OF JUSTICE ACT 1924 S29
CONSTITUTION ART 13.6
OFFENCES AGAINST THE PERSON ACT 1861 S1
CONSTITUTION ART 13.9
CRIMINAL LAW ACT 1997 S11(5)
TRANSFER OF SENTENCED PERSONS ACT 1995 S1
MURDOCH & HUNT MURDOCHS DICTIONARY OF IRISH LAW 5ED 2008
PRISON RULES SI 252/2007 REG 59
CRIMINAL JUSTICE ACT 1990 S5
CRIMINAL JUSTICE ACT 1990 S3(1)
CRIMINAL JUSTICE ACT 1990 S3
CRIMINAL JUSTICE ACT 1990 S3(2)
CRIMINAL JUSTICE ACT 1990 S4
CRIMINAL JUSTICE ACT 1990 S5(1)
CRIMINAL JUSTICE ACT 1990 S5(2)
CONSTITUTION ART 40.1
DEATON v AG & REVENUE CMRS 1963 IR 170
CONSTITUTION ART 34
CONSTITUTION ART 38.1
CONSTITUTION ART 38
LYNHAM v BUTLER (NO 2) 1933 IR 74
O, STATE v O'BRIEN 1973 IR 50
BRENNAN v MIN FOR JUSTICE & ORS 1995 1 IR 612 1995 2 ILRM 206 1995/6/1842
DPP v AYLMER 1995 2 ILRM 624 1986/5/284
DPP, PEOPLE v CAHILL 1980 IR 8
MCDONALD v BORD NA GCON & AG 1965 IR 217
RYAN v GOVERNOR OF LIMERICK PRISON & MIN FOR JUSTICE 1988 IR 198 1988/10/2967
DOWLING v MIN FOR JUSTICE 2003 2 IR 535 2003/12/2687
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2
CONVENTION FOR THE PROTECTION OF HUMAN LIFE & FUNDAMENTAL FREEDOMS PROTOCOL 13 ART 1
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5
CONDON & ORS v MIN FOR LABOUR & AG 1981 IR 62
CONSTITUTION ART 15.5
SLOAN v CULLIGAN 1992 1 IR 223
DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604 2005 2 ILRM 288 2005/17/3473 2005 IESC 33
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3
CRIMINAL LAW
Sentence
Right to remission - Death sentence - Commuted by President of Ireland - Distinction between commutation and sentence - Whether power of commutation executive or judicial in nature - Deaton v AG [1963] IR 170, Lynham v Butler (No 2) [1933] IR 74, The State (O) v O'Brien [1973] IR 50, Brennan v Minister for Justice [1995] 1 IR 612, Brennan v Minister for Justice [1995] 1 IR 612, Ryan v Governor of Limerick Prison [1988] IR 198 and Dowling v Minister for Justice [2003] 2 IR 535 considered - Criminal Justice Act 1951 (No 2), s 23 - Criminal Law Act 1997 (No 14), s 11(5) - Criminal Justice Act 1990 (No 16), s 5 - Claim dismissed (2007/7061P - Hanna J - 15/4/2011) [2011] IEHC 190
Callan v Ireland
STATUTORY INTERPRETATION
Retrospective effect
Construction - Statute incorporating European Convention on Human Rights - Application to repealed legislation of requirement that statutory provisions be applied by courts in manner compatible with Convention - Whether exercise of power of commutation of sentence subject to constitutional justice - Fair procedures - Dublin City Council v Fennell [2005] 1 IR 604 applied, Condon v Minister for Labour [1981] IR 62 and Sloan v Culligan [1992] 1 IR 223 considered - European Convention on Human Rights Act 2003 (No 20), s 2 - Criminal Justice Act 1990 (No 16), s 5 - Constitution of Ireland 1937, s. 40.1 - Claim dismissed (2007/7061P - Hanna J - 15/4/2011) [2011] IEHC 190
Callan v Ireland
Facts The plaintiff was convicted of the capital murder of a member of An Garda Síochána. The sentence was commuted from the death penalty to one of 40 years imprisonment. The plaintiff brought the present proceedings contending that he was entitled to the normal remission periods as applied to other sentences. It was contended that there was no fair or objective reason for the Government to have advised the President commute the sentence without providing for remission. The subsequent enactment of legislation providing for remission in capital cases resulted in inequality of treatment and violated Article 13.6 of the Constitution.
Held by Hanna J in dismissing the plaintiff's claim. As the plaintiff was not serving a sentence but was serving a commutation he was not entitled to remission. The plaintiff had not been treated unequally simply because there was a difference in remission entitlements in his case and those persons sentenced under the Criminal Justice Act, 1990. The commutation was a privilege accorded to the plaintiff at the discretion of the President and did not attract the protection of constitutional justice.
Reporter: R.F.
JUDGMENT of Mr. Justice Michael Hanna delivered the 15th day of April, 2011
The plaintiff was sentenced to death on the 3 rd of December, 1985, for his part in the murder of a member of An Garda Síochána. Subsequently, the President of Ireland, acting on the advice of the Government, commuted the death sentence to penal servitude for 40 years. The plaintiff brings these plenary proceedings. He says that the President's decision does not contain any conditions in relation to remission and submits that he is therefore eligible to earn and apply for standard remission in accordance with law.
In June, 1985 the plaintiff, along with one Michael McHugh, committed a robbery of the Labour Exchange in Ardee, Co. Louth. During the course of the robbery, shots were discharged by both the plaintiff and Mr. McHugh in order to intimidate the people in the Labour Exchange. As the pair attempted to escape from the scene, they were involved in a traffic collision, in which the plaintiff was injured. The plaintiff made his way up an avenue to a farmhouse. Meanwhile, Mr. McHugh fired a shot at a Garda, Sergeant Morrissey, who was pursuing him, hitting Sergeant Morrissey in the leg. Mr. McHugh then walked up to the injured Sergeant Morrissey and, in effect, executed him by shooting him in the head as he lay helpless and injured on the ground.
At his trial before the Special Criminal Court, the plaintiff gave perjured evidence in which he denied any involvement in the robbery or any involvement with Mr. McHugh in the murder of Sergeant Morrissey. The Court accepted the evidence of the various Gardaí and rejected the plaintiff's denial. On the 3 rd December, 1985, the plaintiff was sentenced to death for the capital murder of Sergeant Morrissey. The plaintiff appealed his conviction to the Court of Criminal Appeal and the Court dismissed the appeal.
On the 29 th May, 1986, the President of Ireland, acting on the advice of the Government, commuted the death sentence to penal servitude for forty years. The President's decision does not contain any conditions in relation to remission.
The Criminal Procedure Act was enacted in 1993. This Act allows a person convicted of an offence to apply to the Court of Criminal Appeal to quash his/her conviction where it is alleged that a new or newly-discovered fact shows that there has been a miscarriage of justice or that the sentence imposed is excessive. The plaintiff sought new ways to reopen his case. He made several applications to the registrar of the Court of Criminal Appeal for access to the cabinet documents relating to the commutation of his death sentence but was informed on behalf of the Minister for Justice on the 15 th March, 1994, that such documents were private and confidential and covered by cabinet confidentiality.
The plaintiff maintains that the admissions he was alleged to have made were falsified. He obtained linguistic evidence that these admissions had been fabricated and applied to the Court of Criminal Appeal on the 2 nd October, 2000, for an order pursuant to ss. 2 and 3 of the Criminal Procedure Act 1993 quashing the order of the Special Criminal Court. The plaintiff sought to have admitted as a newly-discovered fact the evidence disputing the statements he was alleged to have made.
The plaintiff subsequently engaged new counsel and acknowledged for the first time his part in the events leading up to the death of Sergeant Morrissey. He was advised that he should admit his part in the events and challenge the order of the Special Criminal Court on the ground that there was a new fact, i.e. absence of common design to murder a disabled pursuer, and a reasonable explanation why that fact had not been adduced at trial. The plaintiff applied for leave to amend his grounds of appeal to include reference to this fact.
In his affidavit, the plaintiff acknowledged that he had committed perjury in his original trial, that he took part in the robbery and that there was a common design to use firearms to execute the robbery and escape, including, if necessary, to disable a pursuer. He further acknowledged that Mr. McHugh was acting as part of this common design in firing at and disabling Sergeant Morrissey, but denied that there was at any time any common design to murder Sergeant Morrissey after he had been disabled.
The application was refused by the Court of Criminal Appeal in a judgment delivered on the 9 th October, 2002.
The plaintiff sought leave to appeal to the Supreme Court under s. 29 of the Courts of Justice Act 1924 on the grounds that the decision involved a point of law of exceptional public importance and it was desirable, in the public interest, that an appeal should be taken. The Court of Criminal Appeal refused the application in a judgment delivered on the 31 st July, 2003. The Court did "not consider it to be in the public interest that the applicant should be permitted to use his own criminal behaviour in committing perjury to be the basis of an appeal to the Supreme Court." The Court also observed that "[i]t was not argued by the applicant that absence of common design was a newly discovered fact, and that was not decided by this court."
In or around 2007, the plaintiff applied to the Attorney...
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Callan v Ireland & AG
...of 1997 - Whether plaintiff serving a sentence or a commutation - Whether plaintiff entitled to remission of sentence - Callan v Ireland [2011] IEHC 190, (Unrep, High Court, Hanna J, 15/4/2011) and The State (Carney) v Governor of Port- Laoighise Prison [1957] 1 IR 25 considered - Prison Ru......